United States v. Cope

• Decision Date: 01 May 2012
• Docket Number: No. 11–1537.,11–1537.
• Citation: 676 F.3d 1219
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Aaron Jason COPE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

676 F.3d 1219

UNITED STATES of America, Plaintiff–Appellee,

v.Aaron Jason COPE, Defendant–Appellant.

No. 11–1537.

United States Court of Appeals, Tenth Circuit.

May 1, 2012.

Timothy V. Anderson, Anderson & Associates, Virginia Beach, VA, appearing for the Appellant.

Sergio Garcia, Special Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, appearing for the Appellee.

Before LUCERO, EBEL, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Aaron Jason Cope was convicted of one count of operating a common carrier—a commercial airplane—under the influence of alcohol in violation of 18 U.S.C. § 342. On appeal, Mr. Cope challenges his conviction based on improper venue, insufficiency of the evidence, and improper reliance on federal regulations. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Title 18 U.S.C. § 342 provides that “[w]hoever operates or directs the operation of a common carrier while under the influence of alcohol or any controlled substance ... shall be imprisoned not more than fifteen years or fined under this title, or both.” A common carrier includes “a locomotive, a rail carrier, a sleeping car carrier, a bus transporting passengers in interstate commerce, a water common carrier, and an air common carrier.” 18 U.S.C. § 341. “An individual with a blood alcohol content of .10 percent or more shall be presumed to be under the influence of alcohol.” Id. § 343(1).

A. Factual Events

On December 8, 2009, Mr. Cope was the copilot and first officer of a commercial flight from Austin, Texas to Denver, Colorado—United Express Flight 7686—operated by Shuttle America, Inc., a subsidiary of Republic Airways. Robert Obodzinski was the captain. Mr. Cope and Mr. Obodzinski were both employees of Shuttle America.

The day before the flight, Mr. Obodzinski and Mr. Cope flew from Denver to Austin. After they arrived in Austin, they went to a local hotel with their other crew members. Mr. Obodzinski invited the crew to dinner, but Mr. Cope declined, stating that he did not feel well.

Mr. Obodzinski did not see Mr. Cope again until the next morning in the hotel lobby. Mr. Obodzinski testified that “[Mr. Cope] had a little bit of a puffy face, and his eyes were a little red, and I assumed that since he said the night before he wasn't feeling well, that he was probably coming down with a cold.” Appx., Vol. I, at 177.

Mr. Obodzinski and Mr. Cope flew from Austin to Denver that morning without incident. While in the cockpit, Mr. Obodzinski detected occasional hints of the smell of alcohol. Initially, Mr. Obodzinski thought the smell was coming from a spilled drink in the cabin outside the cockpit. But when they arrived in Denver, Mr. Obodzinski leaned over Mr. Cope and “took a big whiff.” Id. at 191. He concluded that the smell of alcohol was coming from Mr. Cope.

After completing his post-flight duties, Mr. Obodzinski contacted dispatch to delay the next leg of their flight. He also spoke with his chief pilot and Republic Airways' human resources officer. After conferring with these company representatives, Mr. Obodzinski advised Mr. Cope: “If you have any problem taking a breathalyzer, call off sick and get out of here.” Id. at 196. According to Mr. Obodzinski, Mr. Cope “just kind of stood there looking at me blank faced.... He said, [‘]Well I guess I better call off sick then.[’]” Id. at 197.

Mr. Obodzinski received instructions to escort Mr. Cope to a breath testing facility in the Denver airport. Richard Jones, a breath-alcohol technician, administered two breathalyzer tests on Mr. Cope, one at 10:33 a.m. and another at 10:54 a.m. The result of the first test was .094 and the second was .084. Based on these results, Mr. Cope was not permitted to fly the next leg of his scheduled flight.

Mr. Cope was indicted by the federal grand jury in the District of Colorado for operating a common carrier while under the influence of alcohol in violation of 18 U.S.C. § 342. Mr. Cope waived his right to a jury trial. After a two-day bench trial, the district court convicted Mr. Cope and sentenced him to a below-guidelines sentence of six months in prison and two years of supervised release.

B. The Trial Testimony

1. The Breathalyzer Test

At trial, both parties spent significant time discussing the validity of the results of the two breathalyzer tests. The government's expert, Cynthia Burbach, a forensic toxicologist working for the State of Colorado, testified that the results were valid and accurate.

Ms. Burbach based her testimony on the results of the breathalyzer tests and the absence of evidence that Mr. Cope ingested any alcohol during or after the flight. She testified that, at the time of the tests, Mr. Cope was no longer absorbing alcohol. He was instead in the alcohol elimination phase.

Ms. Burbach explained that the average elimination rate is between .01 and .025 milligrams per deciliter per hour but that she had observed elimination rates as high as .036 per hour in the laboratory and as high as .056 per hour in the literature. She observed that Mr. Cope's elimination rate as exhibited by the two breathalyzer tests was higher than average.¹ Based on his higher-than-average elimination rate, Ms. Burbach said that Mr. Cope was “absolutely an experienced drinker.” Appx., Vol. II, at 378.

She further testified that breath testing has a .02 variance and that if two results on the type of breathalyzer machine that Mr. Jones used are within .02, “those are two good tests.” ² Id. at 396. When asked during cross-examination whether there was a possibility that the breathalyzer test produced invalid results, Ms. Burbach responded: “Yes. [But] I don't have any evidence that shows me there's an invalid result.” Id. at 459.

Mr. Jones, the breath alcohol technician who administered Mr. Cope's breathalyzer tests, also testified to the reliability of the results. He said the breathalyzer machine functioned properly, had recently passed its monthly accuracy test, and was calibrated to Denver's high altitude. Mr. Jones stated that a pre-test scan indicated that there was no alcohol in the ambient air in the testing facility.

Mr. Cope's expert, Dr. Patricia Rosen, a board certified physician in internal and emergency medicine and toxicology, testified that the breathalyzer results could not be scientifically accurate. She explained that the elimination rate demonstrated by the results of the breathalyzer tests was higher than anything she had ever seen or read about in the literature and that such an elimination rate was “not physiologically possible.” ³ Id. at 537. Dr. Rosen opined that the results were not “accurate with a medical degree of certainty,” id., and that she would not trust them if she saw them in the emergency room.

2. Mr. Cope's Alcohol Consumption the Night Before the Flight

Mr. Obodzinski did not see Mr. Cope from the time that they arrived at their hotel in Austin until they left for the airport the next morning. But he testified that, while they were at the Denver airport, Mr. Cope made statements to him about consuming alcohol the night before. Mr. Cope told Mr. Obodzinski that he had consumed “a couple [of] beers before bed.” Appx., Vol. I, at 198. Then, while waiting for the train at the Denver airport to go to the testing facility, Mr. Cope mentioned that he also drank some whiskey the night before. Finally, while in the waiting room at the testing facility, Mr. Cope told Mr. Obodzinski that he had visited a bar with a friend in Austin and also had purchased beer at a gas station.

3. Mr. Cope's Physical Signs of Impairment

Mr. Obodzinski testified that Mr. Cope performed his duties properly on the flight. He said the only outward signs that Mr. Cope exhibited were his red eyes and puffy face at the hotel before the flight and the smell of alcohol during the flight.

Mr. Jones provided similar testimony. He stated that he smelled alcohol on Mr. Cope but that Mr. Cope otherwise acted normally and did not exhibit any outward signs of impairment.

4. Expert Opinion on Impairment

Both experts testified about the effects of alcohol and when an individual is considered impaired. Ms. Burbach testified that the scientific community considers any individual with a blood alcohol content (“BAC”) greater than .05 to be impaired. She explained that experienced drinkers “have tolerance to the visible effects [of alcohol] but ... cannot have tolerance to the cognitive effects,” Appx., Vol. II, at 372, meaning that experienced drinkers generally do not exhibit outward signs of intoxication until their BAC is significantly higher than that of inexperienced drinkers.

Ms. Burbach concluded that Mr. Cope's “cognitive and psychomotor function was impaired.” Id. at 437. She also concluded that Mr. Cope's ability to operate an aircraft would have been diminished and that “he would have been unsafe to operate [the] aircraft.” Id. at 415.

Dr. Rosen admitted that an individual with a BAC of .084 should not be operating an aircraft. But when asked whether she thought Mr. Cope was impaired in light of the evidence that he performed his duties competently, she testified: “[I]f he did everything he was supposed to do and his behavior was normal, I don't know that I would be uncomfortable with him flying. I don't know that I would be able to say he was impaired.” Id. at 569.

C. The District Court's Opinion

The district court concluded that the government proved beyond a reasonable doubt that Mr. Cope was guilty of operating a common carrier while under the influence of alcohol. It noted that the “most compelling” evidence against Mr. Cope were the breathalyzer tests reflecting a BAC of .094 and .084. United States v. Cope, No. 11–CR00106–JRT, 2011 WL 2491283, at *5 (D.Colo. June 17, 2011). As the district court stated: “It is clear that [Mr.] Cope was in the elimination phase of his alcohol...