Roach v. National Transp. Safety Bd.

• Decision Date: 05 November 1986
• Docket Number: No. 83-1549,83-1549
• Citation: 804 F.2d 1147
• Parties: Joseph A. ROACH, Petitioner, v. The NATIONAL TRANSPORTATION SAFETY BOARD, and J. Lynn Helms, Administrator, Federal Aviation Administration, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1147

804 F.2d 1147

Joseph A. ROACH, Petitioner, v. The NATIONAL TRANSPORTATION SAFETY BOARD, and J. Lynn Helms Administrator, Federal Aviation Administration, Respondents.

No. 83-1549.

United States Court of Appeals Tenth Circuit.

Nov. 5, 1986.

L.B. Ullstrom, Denver, Colo. (Robert P. Smith, Denver, Colo., was also on brief), for petitioner.

Darlene M. Freeman, Chief, Enforcement Proceedings Branch, Regulations & Enforcement Div., Office of Chief Counsel, F.A.A., Washington, D.C., for respondents.

Before HOLLOWAY, Chief Judge, and McWILLIAMS and SEYMOUR, Circuit Judges.

HOLLOWAY, Chief Judge.

Petitioner Joseph A. Roach timely petitions, pursuant to 49 U.S.C. Sec. 1486(a), for review of a final order of the National Transportation Safety Board (NTSB) suspending Mr. Roach's commercial pilot's certificate for thirty days. We affirm.

I.

Petitioner Roach is president of Roach Aircraft Company, an aircraft sales outlet at Jefferson County Airport in Colorado. The record shows that Roach has compiled over 10,000 hours of flight time as a pilot and has been in the business of selling aircraft for over 20 years. Prior to the incident in question, he had no record with the FAA of any flight violations.

On November 6, 1980, at the La Junta, Colorado Airport, Roach conducted a sales demonstration flight of a Piper Aerostar 601P for two clients who were thinking of purchasing the aircraft from Roach Aircraft. ¹ After the demonstration flight, Roach, together with a Roach Aircraft Sales Representative, Ms. Sandervae Hopkins, took off for the return flight to Denver. However, before returning to Denver, Roach made three passes over the La Junta Airport runway at an altitude of approximately 500 feet so his customers could see the plane in flight. At the end of the third pass, Roach executed a 360 degree aileron roll and then left for Denver. I R. 191-93, 201, 217-220. ²

The incident led to an FAA investigation. Although the FAA investigators recommended a civil fine of $500, the FAA's Notice of Proposed Certificate Action instead called for suspension of Roach's Commercial Pilot Certificate for 120 days. After an informal conference with Roach and his attorney, the FAA ordered Roach's pilot certificate suspended for 60 days. The order of Suspension found that Roach had violated Section 91.79(c) of the Federal Aviation Regulations, which prohibits operation of an aircraft at less than 500 feet above the surface and within 500 feet of structures on the surface; Section 91.31(a), which, at the time of Roach's flight, prohibited operation of a civil aircraft "without compliance" with that aircraft's operating limitations as prescribed by the FAA; ³ Section 91.15(c), which prohibits a pilot from intentionally executing a maneuver that exceeds a bank of 60 degrees relative to the horizon unless all non-crewmembers aboard the aircraft are wearing parachutes; and Section 91.9, which prohibits operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another. I R. 1-4.

Roach sought review of the order of suspension with the FAA's regional office. At the de novo hearing, the ALJ concluded that the Administrator failed to prove that Roach violated Federal Aviation Regulation 91.79 because he did not prove that Roach flew within 500 feet of any building when he made his three passes over the runway. I R. 265-267. However, the ALJ upheld the remaining charges. He concluded that since the operating manual for the Piper Aerostar involved did not authorize acrobatic maneuvers such as the aileron roll Roach executed, Roach operated a civil aircraft without compliance with the operating limitations for that aircraft in violation of Federal Aviation Regulation (F.A.R.) 91.31(a). I R. 269-271. The ALJ concluded that Ms. Hopkins was a passenger and not "a crewmember who is performing required crewmember duties," so that when Roach executed his aileron roll, he executed an intentional maneuver that exceeds a bank of 60 degrees relative to the horizon while his passenger, Ms. Hopkins, was not wearing a parachute, in violation of F.A.R. 91.15(c). I R. 267-69. Although the ALJ found that the passes over the runway did not violate Regulation 91.79(c), they and the aileron roll were sufficiently careless to warrant the conclusion that Roach violated F.A.R. 91.9 by operating his aircraft in a manner so as potentially to endanger the life or property of another. I R. 271-73. Since the ALJ concluded that one of the four charges was without merit and in view of Roach's long history in aviation, he reduced the suspension of Roach's pilot certificate from 60 days to 30 days. I R. 273-75.

Roach appealed the ALJ's order to the NTSB which affirmed the ALJ's order. Helms v. Roach, Docket SE-5396. This petition for review followed.

Roach argues on appeal that: (1) by allowing the Administrator to call him as an adverse witness the ALJ violated Roach's Fifth Amendment right not to testify against himself in a criminal proceeding; (2) the ALJ applied novel interpretations of two of the regulations, depriving him of fair warning and reasonable notice of the conduct those provisions prohibit, in violation of due process of law; (3) the ALJ erred in admitting evidence on which he based his conclusion that Roach was not in compliance with flight limitations applicable to the aircraft he was flying when he executed his aileron roll; and (4) the ALJ demonstrated personal bias and prejudice against Roach.

II.

Roach argues first that the ALJ violated his Fifth Amendment privilege against self-incrimination when he compelled Roach to testify as an adverse witness.

A.

The Fifth Amendment's self incrimination clause protects two distinct rights: first, a defendant's right not to take the witness stand at his own criminal trial and, second, the privilege of any witness, in any formal or informal governmental proceeding, not to answer questions when the answers might incriminate him. See, e.g., United States v. Housing Foundation of America, 176 F.2d 665, 666 (3d Cir.1949); United States v. Gay, 567 F.2d 916, 918 (9th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1655, 56 L.Ed.2d 90 (1978). To assess Roach's claim that the ALJ violated his Fifth Amendment privilege by compelling him to testify, we must first determine precisely which rights under the Fifth Amendment's self incrimination clause Roach may rely upon.

The criminal defendant's "absolute right not to take the stand," United States v. Seifert, 648 F.2d 557, 560 (9th Cir.1980), is the right of an accused at his own criminal trial "not only to avoid giving incriminating responses to inquiries put to him but to be free from the inquiries themselves." McCormick on Evidence, Sec. 130, at 315 (3d Ed.1984). To rely on this right, a defendant need only not offer to testify. United States ex rel. Santana v. Fenton, 570 F.Supp. 752, 759 (D.N.J.1981), rev'd on other grounds, 685 F.2d 71 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983).

With respect to the second protection, the witness' privilege against self incrimination "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973). However, this "is a privilege to decline to respond to inquiries, not a prohibition against inquiries designed to elicit responses incriminating in nature." McCormick on Evidence, supra, Sec. 136, at 334.

To rely on this facet of the Amendment's protection, a witness must normally take the stand, be sworn to testify, and assert the privilege in response to each allegedly incriminating question as it is asked. United States v. Malnik, 489 F.2d 682 685 (5th Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974). See also United States v. Riewe, 676 F.2d 418, 420 n. 1 (10th Cir.1982) ("Although no blanket ... fifth amendment privilege[ ] against testifying ... [is] recognized ... the taxpayer may assert [that] right[ ] in response to specific questions asked ..."); McCormick on Evidence, supra, Sec. 136, at 334-35. Unless a witness thus objects, the Government may ordinarily assume its compulsory process does not elicit testimony the witness considers incriminating. Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370 (1976). A witness can prevail in his assertion of the privilege only when he has "reasonable cause to apprehend danger from a direct answer." United States v. Hoffman, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951), see also Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968) (hazard of self incrimination must be "substantial and 'real', and not merely trifling or imaginary"); United States v. Jones, 703 F.2d 473, 476 (10th Cir.1983). Unless the danger of self-incrimination is readily apparent the burden of showing such danger exists rests with the claimant of the privilege. Ueckert v. Commissioner of Internal Revenue, 721 F.2d 248, 250 (8th Cir.1983). The court, not the witness, must determine whether he is entitled to prevail on the privilege. Hoffman, 341 U.S. at 486-87, 71 S.Ct. at 818.

When the Administrator called Roach as an adverse witness, Roach's counsel objected on the ground the hearing was "quasicriminal." ⁴ The ALJ stated that the case was civil so that Miranda warnings and other protections normally afforded criminal defendants would not apply. I R. 175. Therefore, he allowed the Administrator to call Roach as an adverse witness. Under examination by the attorney for the Administrator, Roach admitted he executed the aileron roll which formed the basis for the allegations against him, I R....