Petition for Writ of Certiorari — Culuton v. United States

Supfeme Court, U8.

FILED

no 8 758 NOV 20 2003

2S? oo) oo

Jn The

Supreme Court of the Gnited States

¢

JAMES M. CULLITON,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

¢

JOHN BALAZS

Counsel of Record

Attorney At Law

916 2nd Street, 2nd Floor

Sacramento, CA 95814

(916) 505-1687

Attorney for Petitioner James M. Culliton

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

WHETHER THIS COURT SHOULD ISSUE A WRIT OF

CERTIORARI BECAUSE THE NINTH CIRCUIT ERRO-

NEOUSLY HELD THAT DEFENDANT CULLITON’S

§ 1001 CONVICTION FOR PROVIDING FALSE AN-

SWERS ON A FUNDAMENTALLY AMBIGUOUS FED-

ERAL AVIATION ADMINISTRATION MEDICAL FORM

DID NOT VIOLATE DUE PROCESS, THEREBY DI-

RECTLY CONFLICTING WITH THE ELEVENTH CIR-

CUIT’S DECISION IN UNITED STATES v. MANAPAT,

928 F.2d 1097 (11th Cir. 1991), ON AN ISSUE OF EX-

CEPTIONAL IMPORTANCE TO OUR NATION'S PI-

LOTS. -

i

~

LIST OF PARTIES

The parties to the proceedings below were the Peti-

tioner, James M. Culliton, and the Respondent, United

States of America.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. ................ i

I coriskvnschsnbeccssesennieyssdsesnveressiessedeens ii

TABLE OF CONTENTS ...........cccccscesseseseesseseeeseeneeens ili

pe Fg ie e 8 ogy): eee Vv

PETITION FOR WRIT OF CERTIORARI ................ 1

EE MI os vnxtorevertoreteotsssvearseesessonecvscsscesees 1

EE iv cha inschenetennshixenhhiesviencsinseraccovesensunns 1

PROVISIONS OF LAW INVOLVED .....................0006 2

STATEMENT OF THE CASE ....0...0cccccscsrssvescccrscceceee 2

REASONS FOR GRANTING THE PETITION ......... 7

THE NINTH CIRCUIT’S OPINION THAT CUL-

LITON’S FEDERAL FALSE STATEMENT CON-

VICTION BASED ON HIS ANSWERS TO

FUNDAMENTALLY AMBIGUOUS QUESTIONS

ON A FAA MEDICAL FORM DID NOT VIOLATE

DUE PROCESS CONFLICTS WITH A CON-

TRARY DECISION BY THE ELEVENTH CIR-

CUIT AND PUTS OUR NATION’S PILOTS AT

RISK OF UNJUSTIFIED PROSECUTION FOR

MAKING INNOCENT, GOOD FAITH ANSWERS

WHEN CHECKING BOXES IN RESPONSE TO

VAGUE QUESTIONS ON THE FAA FORM.......... 7

iv

TABLE OF CONTENTS -— Continued

Page

A. THE FAA MEDICAL FORM AT ISSUE IN

THIS CASE IS SO VAGUE AND FUNDA-

MENTALLY AMBIGUOUS THAT AN AN-

SWER TO THE QUESTIONS ON THE

FORM MAY NOT SERVE AS THE BASIS OF

A §1001- FALSE STATEMENT CONVIC-

TION CONSISTENT WITH DUE PROCESS

B. THE NINTH CIRCUIT'S DECISION IN

THIS CASE CONFLICTS WITH THE RULE

OF THE ELEVENTH CIRCUIT AND THE

POSITION OF THE FEDERAL AVIATION

RE EE scp scrsipnsnnssantsiacevicnasnnsene 14

C. THE NINTH CIRCUIT'S OPINION SUB-

JECTS OUR NATION’S PILOTS TO THE

RISK OF UNJUSTIFIED PROSECUTION

SIMPLY FOR CARELESSLY CHECKING

BOXES ON A VAGUE AND CONFUSING

PPA DAMA The BEM on cesesisevsnsssveseceusessciniesss 16

TABLE OF AUTHORITIES

Page

CASES:

United States v. Bass, 404 U.S. 336 (1971) ......... cc eeeeeeeees 9

United States v. Boone, 951 F.2d 1526 (9th Cir.

PIE YE oc:ssnte:vnivisitncdssnlaisacacanvsadzaninimeeliammaemmenendaiamanmants 8

United States v. Culliton, 300 F.3d 1139 (9th Cir.

2002), withdrawn, 328 F.3d 1074 (9th Cir. 2003)........... 5

United States v. Culliton, 328 F.3d 1074 (9th Cir.

BR niccidennsnadticuane ENA SNES OY Te 1, 3, 6, 10, 12

United States v. Farmer, 137 F.3d 1265 (10th Cir.

DI nnsissincciniomavdomnrbcaaeinneamnoanaae 8,9

United States v. Lighte, 782 F.2d 367 (2d Cir. 1986).......... 8

United States v. Manapat, 928 F.2d 1097 (11th Cir.

BI eisissishsritnecsarcinntesibilacgn ane 5, 8, 14, 15, 17

United States v. Rowe, 144 F.3d 15 (1st Cir. 1998)............. 9

United States v. Ryan, 828 F.2d 1010 (3d Cir. 1987),

abrogated on other grounds by United States v.

Wells, 519 U.S. 482 (1997)..........ccccorcsccccssoccssssssesssssessooens 8

United States v. Serafini, 167 F.3d 812 (3d Cir.

DODD osvsccsinnndssianssaseintceneidaneontansmaeennanaeamnmaaaalaiaa 9

United States v. Wells, 519 U.S. 482 (1987)..........cccccceeeeeeee 8

OTHER AUTHORITIES:

TE UD. © DO vg vsivessciasiiccnersiaccievicasnioamaamauaan 2, 5,9

90 UR, © FOE wiessnisincstinicdcicancnitonnmaadiuamana 9

5B UB, © WD iisvcivcssincsscssrscnciniccsimmnsivonenancanemanannnean 9

DE UID. ORIG) sivisisiiiecisincarcsersesomencccnaganien 1

vi

TABLE OF AUTHORITIES — Continued

BR tee © OT ONY) vicstvcsinssevssivinisceibvarvadsdosssassercsecesc. 17

Supreme Court Rules 13.1, 13.3......ccccccccccccscssseccesesceeeeec.., 1

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, JAMES M. CULLITON, respectfully petitions

for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit in this case.

y

v

OPINIONS BELOW

In an opinion filed August 22, 2002, the Ninth Circuit

reversed Culliton’s judgment of conviction. Appendix 1. On

the government’s petition for rehearing, the Ninth Circuit

vacated its original decision and issued a new opinion

affirming Culliton’s judgment of conviction and sentence.

Appendix 2. The Ninth Circuit denied Culliton’s petition

for rehearing and rehearing en banc in an order filed

August 25, 2003. Appendix 3. The district court did not

issue any written decision concerning the issues set forth

in this petition.

cs

Vv

JURISDICTION

On April 30, 2003, the Ninth Circuit affirmed the

district court’s judgment of conviction in a published

opinion. United States v. Culliton, 328 F.3d 1074 (3th Cir.

2003) (Appendix 1). After requesting and receiving an

extension of time, Culliton timely filed a petition for

rehearing and rehearing en banc on July 29, 2003. On

August 25, 2003, the court of appeals issued an order

denying the petition for rehearing and rehearing en banc.

Appendix 3. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1) and this Court’s Rules 13.1 and 13.3.

4

v

2

PROVISIONS OF LAW INVOLVED

Due Process Clause Of The Fifth Amendment to

the United States Constitution

No person shall ... nor be deprived of life, lioerty, or

property, without due process of law,....

18 U.S.C. $ 1001(a)

(a) Except as otherwise provided in this

section, whoever, in any matter within the juris-

diction of the executive, legislative, or judicial

branch of the Government of the United States,

knowingly and willfully—

(1) falsifies, conceals, or covers up by

any trick, scheme, or device a material fact;

(2) makes any materially false, ficti-

tious, or fraudulent statement or representation;

or

(3) makes or uses any false writing or

document knowing the same to contain any ma-

terially false, fictitious, or fraudulent statement

or entry;

shall be fined under this title or imprisoned not

more than 5 years, or both.

¢

STATEMENT OF THE CASE

Defendant James M. Culliton was convicted after a

jury trial of one count of making a false statement in

violation of 18 U.S.C. § 1001 for checking “no” in three out

of twenty-two medical history boxes on a Federal Aviation

Administration (FAA) form 8500-8, which is used in

applying for an airman’s medical certificate from the FAA.

3

An applicant fills out the front page of the FAA form at a

doctor’s office immediately before a full interview and

examination by the doctor. Reporter’s Transcript (RT) at

149-50. The form asks the applicant to check boxes labeled

either “yes” or “no” for twenty-two medical history ques-

tions and two questions about criminal convictions. The

form instructs that the applicant may note in a section

titled “Explanations” that he had previously reported a

particular medical condition on a prior form and that the

condition had not changed. Jd. The form also instructs the

applicant not to report common illnesses such as colds or

sore throats. Id.

After examining and talking with the applicant, the

doctor, who the FAA has designated as an aviation medical

examiner, fills out the back page of the form and provides

further detail of the applicant’s medical history in a

section titled “comments on the history and findings.” RT

149, 156. In addition to the results of a routine physical

examination, the doctor also reports on this back page the

results of various vision exams, blood pressure, pulse, and

an urinalysis. After the medical examination and inter-

view, the examiner is asked to certify whether the appli-

cant meets the standards for the appropriate class of

medical certificate. RT 149.

In this case, in completing the FAA form in connection

with a June 6, 1997 medical examination, Culliton

checked the boxes marked “yes” indicating that he had

suffered “frequent or severe headaches,” “unconscious-

ness,” and “other illness, disability, or surgery.” Appendix 5

(FAA form 8500-8 dated June 6, 1997). He also marked

“yes” to questions asking whether he had been medically

rejected by the military service and had been admitted to a

hospital. Jd. The government charged Culliton with falsely

4

marking “no” to the three questions asking whether he

had a history of (1) “eye or vision trouble except glasses,”

(2) “dizziness or fainting spell,” or (3) “mental disorders of

any sort.” The indictment charged that Culliton falsely

denied suffering from these conditions when in fact he had

experienced “eye or vision trouble, ... dizziness, and

mental disorders, including anxiety, depression, mood

changes and memory problems” from an accident in

August 1995, in which his office chair broke causing him

to hit his head on a credenza and temporarily lose con-

sciousness.

At trial, Culliton testified and admitted that he had

suffered in the past from medical problems caused when

he hit his head in an office injury in August 1995. He

explained that he disclosed his head injury in filling out

the same form in 1996 where he wrote that he was “hit on

head in office” and was rendered “unconscious.” RT 310.

During that medical interview, Culliton fully discussed his

conditions and told the doctor that he had been “disori-

ented” after the accident. RT 315. Indeed, the doctor noted

on the form that “Airman had a brief episode of LOC [loss

of consciousness] when a chair collapsed” and it “repre-

sents an explainable isolated event.” Trial Exh. 20. In a

letter dated June 24, 1996, the FAA notified Culliton that

it had concluded that his accident and resulting symptoms

did not render him unfit for a second-class medical certifi-

cate, but it cautioned him that “because of [his] history of

unconsciousness, operation of aircraft is prohibited at any

time new symptoms or adverse changes occur or any time

medication is required.” RT 92-95; Trial Exh. 23. Culliton

was issued a second-class medical certificate, which is

required to fly as a flight engineer or cargo carrying pilot.

RT 161.

5

When he filled out the same form again in June 1997,

Culliton reported that he had suffered from “frequent or

severe headaches,” “unconsciousness,” and checked “yes”

for the box asking if he had experienced any “other illness,

disability, or surgery.” Appendix 5. Culliton testified that

he explained orally to the medical examiner what had

happened concerning the accident and that he had been

rendered unconscious. RT 326. Dr. Brown, Culliton’s 1997

medical examiner, had a copy of the June 24, 1996 FAA

letter, and he again certified Culliton for a second-class

certificate.

In this case, the federal investigation began when one

of the parties to a civil suit Culliton had filed as a result of

the injuries suffered from his office accident refused to

settle and instead turned over Culliton’s confidential

medical records to its private investigators, who in turn

contacted a California state investigator about instituting

a criminal action. When the Sacramento County District

Attorney’s Office declined to prosecute, the investigator

took the file to the U.S. Attorney’s Office which opened an

investigation. Although no fraud or other prosecution was

ever brought, the Sacramento U.S. Attorney’s office none-

theless filed the instant false statement prosecution

charging that Culliton made false statements on a FAA

8500-8 form.

In an opinion filed October 22, 2002, the Ninth Circuit

reversed Culliton’s conviction under 18 U.S.C. § 1001 for

making a false statement on the FAA 8500-8 form. United

States v. Culliton, 300 F.3d 1139 (2002) (Culliton J),

withdrawn, 328 F.3d 1074 (9th Cir. 2003) (Appendix 1).

Following the only other circuit to address the ambiguity

of questions on this form, see United States v. Manapat,

928 F.2d 1097 (11th Cir. 1991), the Ninth Circuit correctly

6

concluded that the “challenged questions on the FAA form

are sufficiently confusing, vague, and overbroad as to

invite selective prosecution.” 300 F.3d at 1140.

On April 30, 2003, in response to the government’s

petition for rehearing, the court of appeals reversed

course, withdrew its initial opinion, and filed a new

opinion affirming Culliton’s conviction. United States v.

Culliton, 328 F.3d 1074 (9th Cir. 2003) (Culliton ID) (Ap-

pendix 2). Conflicting with the Eleventh Circuit’s Manapat

decision and failing to follow case law barring false state-

ment or perjury convictions for answers to excessively

vague questions, the Ninth Circuit’s new opinion errs in

concluding that the FAA form in question is not

“fundamentally ambiguous” so as to preclude a felony

conviction under section 1001.

The Court should grant Culliton’s petition for a writ of

certiorari to correct the panel’s erroneous conclusion that

the questions at issue on the FAA form are not fundamen-

tally ambiguous so as to bar a false statement prosecution.

A writ of certiorari is also necessary in order to resolve a

conflict with the Eleventh Circuit’s contrary decision. The

issue in this appeal is extremely important because the

Ninth Circuit’s opinion subjects all our country’s pilots to

the risk of unjustified prosecution in federal court when-

ever they in good-faith answer vague and ambiguous

questions on a FAA form 8500-8, in order to obtain a

required medical certificate.

Sd

7

REASONS FOR GRANTING THE PETITION

THE NINTH CIRCUIT’S OPINION THAT CULLITON’S

FEDERAL FALSE STATEMENT CONVICTION BASED

ON HIS ANSWERS TO FUNDAMENTALLY AMBIGU-

OUS QUESTIONS ON A FAA MEDICAL FORM DID

NOT VIOLATE DUE PROCESS CONFLICTS WITH A

CONTRARY DECISION BY THE ELEVENTH CIRCUIT

AND PUTS OUR NATION'S PILOTS AT RISK OF

UNJUSTIFIED PROSECUTION FOR MAKING INNO-

CENT, GOOD FAITH ANSWERS WHEN CHECKING

BOXES IN RESPONSE TO VAGUE QUESTIONS ON

THE FAA FORM.

Lacking evidence of any wrongdoing after a lengthy

state and federal fraud investigation, the government

instead charged Culliton with a single count of making a

false statement in a FAA form 8500-8. Following the

Eleventh Circuit and guidance from the FAA itself, the

Ninth Circuit originally reversed Culliton’s conviction on

the ground that the questions on the form were so vague

and ambiguous that principles of Due Process barred

prosecution based on answers to such questions. The

Court’s subsequent decision to grant the government's

petition for rehearing, to vacate its original opinion, and to

affirm Culliton’s false statement conviction conflicts with

the Eleventh Circuit’s rule and subjects our nation’s pilots

to the risk of unjustified prosecution based solely on good-

faith innocent answers to ambiguous questions. Indeed, in

an Amicus letter to the Ninth Circuit in connection with

Culliton’s petition for rehearing, the Aircraft Owners and

Pilots Association expressed its concern that the Ninth

Circuit’s opinion “may have the future effect of finding

that innocent omissions, made in good faith and in the

interests of appropriate disclosure, nonetheless subjects

the individual to criminal prosecution.” Appendix 4, at

App. 29-30.

A. THE FAA MEDICAL FORM AT ISSUE IN THIS

CASE IS SO VAGUE AND FUNDAMENTALLY

AMBIGUOUS THAT AN ANSWER TO THE QUES-

TIONS ON THE FORM MAY NOT SERVE AS THE

BASIS OF A § 1001 FALSE STATEMENT CONVIC-

TION CONSISTENT WITH DUE PROCESS OF

LAW.

In affirming Culliton’s conviction, the Ninth Circuit

correctly stated the general rule that when “a question is

excessively vague, or ‘fundamentally ambiguous,’ the

answer may not, as a matter of law, form the basis of a

prosecution for perjury or false statement.” App. 17 (citing

United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir. 1987),

abrogated on other grounds by United States v. Wells, 519

U.S. 482, 486 n.3 (1997)); accord United States v. Farmer,

137 F.3d 1265, 1268 (10th Cir. 1998); United States v.

Manapat, 928 F.2d 1097, 1099-1101 (11th Cir. 1991). “A

question is fundamentally ambiguous when it ‘is not a

phrase with a meaning about which men of ordinary

intelligence could agree, nor one which could be used with

mutual understanding by a questioner and answerer

unless it were defined at the time it were sought and

offered as testimony.” United States v. Boone, 951 F.2d

1526, 1534 (9th Cir. 1991) (quoting United States v. Lighte,

782 F.2d 367, 375 (2d Cir. 1986)). .

In evaluating a “question’s ambiguity, the court must

consider the context in which the question was asked, as

well as the potentially arnbiguous wording.” Jd. Although

the existence of some ambiguity in a question will not bar

a perjury or false statement prosecution, Ryan, 828 F.2d at

9

1015, a jury is not entitled to guess as to the defendant’s

understanding of the question. Farmer, 137 F.3d at 1269.

In some cases, an “awkwardly phrased” question “might

standing alone be thought as a matter of syntax not to be

fatally ambiguous,” but in context “the question may take

on a meaning wholly at odds with the broad” literal

meaning of the question and thus preclude prosecution.

United States v. Serafini, 167 F.3d 812, 820 (3d Cir. 1999).

Cases addressing the ambiguity of a question almost

invariably arise in the context of perjury or false declara-

tion cases. In prosecutions for perjury or false declarations

under oath, the defendant is forewarned of the importance

of an accurate answer by taking an oath. The oath re-

quirement warns the declarant to give a deliberate,

accurate response and the oath taker can ask the ques-

tioner for clarification of an ambiguous question. See 18

U.S.C. § 1621 (perjury); 18 U.S.C. § 1623 (false declaration

under oath). On the other hand, a person can be charged

in a § 1001 prosecution with making inaccurate or false

statements in a variety of informal contexts, such as when

questioned orally by federal agents or by simply checking

off boxes from a list of questions on a federal form, without

notice of the need for careful, accurate answers. Thus,

there is even greater reason in false statement prosecu-

tions than in perjury or false declaration cases to strictly

construe ambiguous questions against the government in

order to prevent prosecutions based solely on uninten-

tional or careless answers. See United States v. Bass, 404

U.S. 336 (1971) (ambiguous statutes construed strictly in

favor of the defendant under rule of lenity); United States

v. Rowe, 144 F.3d 15, 21-22 (1st Cir. 1998) (principles

underlying rule of lenity applied in interpreting potentially

10

ambiguous questions in a prosecution for making false

statements in a bankruptcy proceeding).

In this case, the government prosecuted Culliton for

making check marks in three boxes on a FAA form that

asked whether the applicant for an aviation medical

certificate had ever suffered from “dizziness or fainting

spell,” “eye or vision trouble except glasses,” or any “men-

tal disorders of any sort: depression, anxiety, etc.” The

government charged Culliton with falsely denying that he

had ever experienced these medical conditions when in

fact he had suffered these conditions as a result of an

office accident in 1995.

In the context of a full medical examination, these

questions are inherently ambiguous and it is unfair to

prosecute an individual for purportedly making a false

statement simply for checking the “no” boxes to a few

vague medical questions. It is undisputed that the form is

not used by the FAA as a final medical report to determine

whether an applicant is fit to fly; rather, the form is a

preliminary screening tool for further discussion between

the applicant and the medical examiner, who also subjects

the applicant to various medical tests. RT 150, 156, 181-

82. The form does not define any of the terms at issue.

Moreover, many of the questions address overlapping or

related medical conditions, such that affirmatively an-

swering one question adequately brings the issue to the

attention of the medical examiner for further discussion.

Compare question (b) (dizziness or fainting) with question

(c) (unconsciousness for any reason); question (e) (hay

fever or allergy) with question (f) (asthma or lung disease).

In this context, the Ninth Circuit’s Culliton II opinion

explains that, as the government concedes, “the Form’s

11

questions are capable of rendering innocent responses

objectively false.” App. 19. Almost everyone has experi-

enced at some time in the past some form of dizziness, eye

problems, or mental condition. Who has not been tempo-

rarily dizzy in one form or another? Has not everyone felt

“anxious” or “depressed” at one time in their lives? Under

a literal interpretation of the form, every applicant would

check “yes” to each of the three questions Culliton was

charged with falsely answering so that these questions

would be rendered meaningless for their intended screen-

ing purpose.

Instead, the medical questions on the FAA form

presuppose a significant amount of interpretation by the

applicant as to what constitutes a sufficiently serious

condition as to warrant reporting on the form. Dr. Silber-

man, a physician and manager at the FAA, testified for the

government that the meaning of various questions and

medical conditions is “up to the airman.” RT 198, 200-01.

He festified that what constitutes sufficient “dizziness” so

as to be reportable on the form is to be determined by the

applicant. RT 200 (“‘Dizziness or fainting spells,’ that

again is up to whatever the airman thinks that means.”);

RT 205 (“If [vertigo] was consistent and affected the

airman I would expect him to say something, but if it

might have been just one episode you might not say

something.”); RT 205-06 (agreeing that “[i]f it was a one-

time episode you wouldn’t want them to be misdiagnosed

and create a problem”).

The Ninth Circuit’s Culliton II opinion wrongly

minimized the form’s ambiguity by asserting that Culliton

raised only hypothetical or technical challenges to the

form’s questions. App. 20-21. In fact, Culliton unques-

tionably did provide a reasonable, innocent explanation at

12

trial, and he did fully disclose his office accident and the

symptoms resulting from it. Culliton had been a pilot for

many years and had filled out over thirty FAA 8500-8

forms to obtain or renew his medical certificate. RT 309. In

the form submitted with the medical evaluation in Janu- -

ary 1996, Culliton fully disclosed his head injury and the

fact that he had been rendered “unconscious” and treated

at Kaiser hospital. Trial Exh. 20. He also discussed his

symptoms with the examiner, Dr. Moore, who reported in

his “comments and findings” that Culliton “had a brief

episode of LOC [less of consciousness] when a chair col-

lapsed.” Jd. Aware of his office accident and the medical

conditions he suffered as a result, the medical examiner

concluded that the incident “represents an explainable

isolated event.” Id. By letter dated June 24, 1996, the FAA

notified Culliton that it would issue him a second-class

~medical certificate, though it cautioned him that “because

of [his] history of unconsciousness, operation of aircraft is

prohibited at any time new symptoms or adverse changes

occur or any time medication is required.” RT 92-95; Trial

Exh. 23.

When he returned for a medical examination the next

year to renew his medical.certificate, Culliton checked the

boxes “yes” to indicate that he had experienced “frequent

or severe headaches” and “unconsciousness.” Appendix 5.

Culliton testified that he discussed the accident and his

symptoms again during the June 1997 medical evaluation.

RT 326. He told the doctor “what had happened with

regard to the accident, and that [he] had been uncon-

scious.” RT 326. And in the explanations section, Culliton

wrote that he had previously reported these conditions

and there had been no change from the previous form.

Appendix 5. Culliton’s 1997 examiner testified that he

eaten

13

possessed a copy of the FAA’s June 1996 letter in which

the FAA notified Culliton that it would issue him a second-

class medical certificate. RT 92-95. The doctor testified

that the letter demonstrated that Culliton “was completely

honest and up front when he told me that he had reported

it to the FAA; that they considered these conditions,

because they even mentioned it in this particular letter.”

RT 95.

Nonetheless, the government charged Culliton with

making a false statement for filling out the FAA form in

1997 by checking boxes “no” that asked whether he had

suffered from dizziness, eye or vision trouble, or “mental

disorders of any sort.” With respect to dizziness, Culliton

told the examiner that “for a while I did have severe

dizziness. But Kaiser finally said that all it was was a

sinus attack, and sinusitis. . . . I discussed all this with Dr.

Brown [the 1997 examiner], that it was a sinus attack that

caused dizziness.” RT 327-28. With respect to the question

that asked about eye or vision trouble except glasses,

Culliton testified that he had some vision problems after

his accident but “when I got the glasses the blurriness

goes away. There are no spots.” RT 340. After his accident,

Culliton did report to his doctor that he believed his eyes

had locked up one time, but two doctors examined him and

told him there was nothing wrong with his eyes. RT 341-

43."

' Although Culliton’s color blindness literally qualifies as a “vision

problem,” Dr. Silberman testified that the FAA knew of this problem

and had granted Culliton a waiver. So although Culliton checking “no”

over the years to the vision problem question on numerous FAA 8500-8

forms would be false if the question was interpreted literally, the FAA

(Continued on following page)

14

Similarly, this case perfectly illustrates the “funda-

mental ambiguity” in the question asking an applicant

whether he or she has ever suffered from “mental disor-

ders of any sort: depression, anxiety, etc.” The government

contended that Culliton’s negative response was false

because after his accident he reported to his doctor feeling

depressed and anxious over the situation. But Culliton

explained that the doctor told him something to the effect

that “you’re just depressed over the whole thing.” RT 351.

Culliton added that he was never aware of “any diagnosis

from any doctor, from any health care facility given to me

that I had clinical depression.” RT 352. He was not pre-

scribed any medication for depression, except that he was

given an anti-depressant as a sleeping aid, not to combat

depression. Jd. Because Culliton had previously reported

the office accident and no longer suffered from eye prob-

lems, dizziness, or any known mental disorder, he believed

he had answered fully truthfully.

B. THE NINTH CIRCUIT’S DECISION IN THIS

CASE CONFLICTS WITH THE RULE OF THE

ELEVENTH CIRCUIT AND THE POSITION OF

THE FEDERAL AVIATION ADMINISTRATION.

The FAA itself and the Eleventh Circuit’s opinion in

- United States v. Manapat, 928 F.2d 1097 (11th Cir. 1991),

have recognized the inherent ambiguity in the FAA form

at issue in this case. A 1987 FAA memorandum explained

that the FAA “need[s] to think about changing the form

“knew what the problem was so we didn’t bother him with it.” RT 204-

05. Indeed, the government did not charge Culliton with making this

so-called “false” statement.

ef

15

and substance of the questions asked in the Form 8500-8”

because “i]t has not generally been possible to success-

fully prosecute people in the past in part because of the

vague, qualitative, and evaluative nature of these ques-

tions.” Broderick Memorandum, 2/17/1987 (cited in Culli-

ton II, at App. 19-20, and Manapat, 928 F.2d at 1101 n.3).

Moreover, in Manapat, the Eleventh Circuit affirmed

the district court’s order dismissing a false statement

indictment on the ground that the same FAA form at issue

here was fundamentally ambiguous as a matter of law.

There, the indictment charged the defendant with falsely

checking “no” to two questions that asked about traffic or

other convictions. The Eleventh Circuit concluded that the

questions “are too ambiguous to allow a jury to speculate

as to the defendant’s intentions at the time she filled out

the application form.” 928 F.2d at 1100-1101. Although the

decision focused on questions asking about criminal

convictions and their placement on the form rather than

questions about medical conditions as in this case, the

Manapat opinion expressed concern about the ambiguity

of all the questions on the form. 928 F.2d at 1099 (quoting

district judge, “I think it is fundamentally unfair to base a

felony prosecution on any answers that may be given by

anybody on this form”). Indeed, the subjective nature of

questions about medical conditions more strongly supports

dismissal for ambiguity than questions asking whether

one has ever been convicted of a traffic or other criminal

offense.”

2 The FAA 8500-8 form at issue in Manapat and the current form

used in this case contain identical questions. The only difference is that

the current version has the two criminal history questions placed

(Continued on following page)

16

C. THE NINTH CIRCUITS OPINION SUBJECTS

OUR NATION'S PILOTS TO THE RISK OF UN-

JUSTIFIED PROSECUTION SIMPLY FOR CARE-

LESSLY CHECKING BOXES ON A VAGUE AND

CONFUSING FAA MEDICAL FORM.

In connection with Culliton’s petition for rehearing,

the Aircraft Owners and Pilots Association (AOPA) sub-

mitted an Amicus letter with the Ninth Circuit addressing

AOPA’s concerns with that court’s opinion and the deci-

sion’s effect on the more than 400,000 individual pilots and

aircraft owners that comprise AOPA’s membership. Ap-

pendix 4, at App. 28-31. In particular, the AOPA stated

that it “fears that the Court’s decision in this case could

set a precedent under which future respondents may be

convicted for answering questions to the best of their

knowledge and ability, with every intention of giving

complete and accurate answers, but the answer is deter-

mined to be objectively false.” App. 29. As the Association

explained to the Ninth Circuit about the form:

Practically speaking, though, innocent omissions

may easily occur because the instructions are not

clear so as to limit the scope of the answer the

question is attempting to elicit and because of an

individual’s natural tendency not to disclose each

and every circumstances that could arguably fit

within the language of the question, nor would

the FAA want or expect them to reveal each and

every circumstance, even if each could be ex-

plained away in a separate space or page. This

directly below the medical history questions where the earlier version of

the form had the two crimina) history questions placed near the end of

the medical history section.

eee

17

Court’s 2003 decision may have the future effect

of finding that innocent omissions, made in good

faith and in the interest of appropriate disclo-

sure, nonetheless subjects the individual to

criminal prosecution.

App. 29-30. Thus, the Court should grant a writ of certio-

rari because the Ninth Circuit’s opinion places our coun-

try’s pilots in unwarranted danger of prosecution for good-

faith, innocent answers that turn out to be objectively

false.

_ Finally, reversing Culliton’s conviction would not in

any way hamper the FAA's ability to police applicants’

fitness to serve as airmen or administratively prosecute

those who provide false information on its forms. As the

Eleventh Circuit explained in Manapat, its holding means

only “that the government may not provide someone with

a confusing and ambiguous form and then prosecute when

the answers are ambiguous.” 928 F.2d at 1102. Indeed, the

FAA has an administrative board and procedures in place

to evaluate medical certificate determinations and other

aviation related decisions. Its regulations include a rule

against the making of a false statement on a FAA 8500-8

form as a ground for not granting or revoking a medical

certificate. See 14 C.F.R. § 67.20(a)(1). Even if the instant

prosecution is held barred under principles of due process,

the FAA may still refuse to grant a medical certificate, or

revoke a certificate already granted, if Culliton or any

applicant is found to have falsely responded to an answer

on the form or some other government request for infor-

mation.

18

CONCLUSION

For the reasons stated above, the Court should grant

the petition for a writ of certiorari.

Dated: November 20, 2003

Respectfully submitted,

JOHN BALAZS

Counsel of Record

Attorney for Petitioner

James M. Culliton