United States v. Kirst
| Decision Date | 22 November 2022 |
| Docket Number | 20-30193 |
| Citation | 54 F.4th 610 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Forest Mitchell KIRST, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen L. Corso (argued) and Charisse Arce, Assistant United States Attorneys; E. Bryan Wilson, Acting United States Attorney; Office of the United States Attorney, Anchorage, Alaska; for Plaintiff-Appellee.
Gene D. Vorobyov (argued), San Francisco, California, for Defendant-Appellant.
Before: William A. Fletcher, Ronald M. Gould, and Daniel P. Collins, Circuit Judges.
Opinion by Judge W. Fletcher ;
OPINION
On August 24, 2014, defendant Forest M. Kirst piloted a small plane in Alaska on a charter flight carrying three paying passengers. The plane crashed as Kirst attempted to fly over Atigun Pass in the Brooks Range. One of the passengers died a month later from injuries sustained in the crash.
The National Transportation Safety Board ("NTSB") investigated the crash, and the Federal Aviation Administration ("FAA") revoked Kirst's airman certificate. During both the investigation and Kirst's appeal of the revocation of his airman certificate, Kirst claimed that the plane was climbing through 5,500 to 5,700 feet with a target altitude of 6,000 feet as it approached the pass. GPS data showed that the plane was flying at an altitude more than 1,000 feet lower than what Kirst claimed.
The government filed three criminal charges against Kirst. Counts One and Two charged Kirst with obstructing a pending "proceeding," in violation of 18 U.S.C. § 1505. The proceeding in Count One was the NTSB investigation. The proceeding in Count Two was the appeal before the NTSB of the FAA's revocation of his airman certificate. Count Three charged Kirst with piloting an aircraft without a valid airman certificate, in violation of 49 U.S.C. § 46306(b)(7). A jury returned guilty verdicts on Counts One and Two and an acquittal on Count Three. The district court sentenced Kirst to 12 months and 1 day in prison on Counts One and Two, to run concurrently; 3 years of supervised release; and a $5,000 fine.
On appeal, Kirst challenges his conviction on Count One, arguing that the NTSB investigation was not a "proceeding" within the meaning of § 1505. Further, Kirst challenges his convictions on both Counts One and Two, arguing that there was insufficient evidence to support the convictions and that a jury instruction was improper. Finally, Kirst challenges the $5,000 fine, arguing that he is unable to pay it.
We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
On August 24, 2014, Kirst piloted a small plane on a charter flight out of Fairbanks, Alaska, carrying Darrel Spencer, Daphne McCann (Spencer's sister-in-law), and Marcene Nason (McCann's sister). Spencer had an interest in photography and booked the flight with Kirst for $3,500 to photograph polar bears.
The weather on the day of the flight was clear, with a light wind. The plane took off from Fairbanks, stopped at Bettles for a roughly 20-minute break, and continued north toward Prudhoe Bay. The plan was to fly along the coast to look for polar bears. Spencer sat in the front passenger seat. McCann sat behind Kirst, and Nason sat behind Spencer.
As the plane headed north toward Prudhoe Bay, the passengers spotted a moose and wanted to photograph it. Kirst flew lower and circled the moose for a few minutes before climbing to a higher altitude.
About 15 or 20 minutes later, the plane approached Atigun Pass. The elevation of the pass is 4,400 feet. The elevation of the surrounding peaks is a little over 6,000 feet. McCann testified at trial that the plane was flying below the peaks of the mountains as it approached the pass and that she could see the peaks only by looking up. McCann estimated that the plane was between two-thirds to three-quarters of the way from the ground to the top of the mountains. McCann noticed no vibrations, damage to the propeller, or anything else unusual.
Two witnesses saw the plane as it flew over Chandalar Shelf on the way to Atigun Pass. One of the witnesses testified at trial that there is a "steep incline" after the shelf before reaching the pass. That witness estimated that the plane was flying roughly 500 feet above the shelf. The other witness was driving a gravel truck on the road leading up to the shelf. That witness estimated that the plane was flying roughly 100 feet above the shelf when he first saw it. When the witness reached the shelf, he saw the plane again. He estimated that the plane was now about two miles away and about 1,000 feet above the ground.
Several pipeline workers saw the crash. One worker testified at trial that the plane was "flying real low," that it did not "seem out of control," and that the wings were "level." He testified: "I just saw it coming to a land, and ... it went to its right side, and it just kind of like stopped and slid like a little bit down the hill." That worker testified that the plane appeared to be flying normally and that it was staying on a flight path parallel to the ground. A second worker testified that when he saw the plane it was "between 250 [and] 500 feet" off the ground. He had previously estimated, in talking to an investigator, that the plane had been "500 to 800 feet" above him. He testified that the engine was "revving," with the "rpm picking up." A third worker described the crash:
[I]t just kind of shocked me how low it was flying.... Four or five seconds later, it was on the ground.... [I]t was a miracle landing.... [I]t was countoured to the mountain.... [W]hen [it] hit, it just stopped and then it just slid downhill a little bit.
Passenger McCann testified:
We banked to the right while we were looking at the mountains, and I felt like an air pocket, like when you're in a big plane and you go whoop, and your stomach goes up, and the next time I opened my eyes, we were on the ground.
Several pipeline workers rushed to the plane after the crash. When they arrived, Kirst asked them to remove the canopy (the cockpit cover) to get him and the passengers out of the plane. Kirst suffered serious injuries to his back. Despite his injuries, Kirst was lucid and communicative. He gave clear instructions about turning off the fuel system and appeared to be aware of what was happening. Kirst instructed an Alaska Department of Transportation worker to turn off the master switch and the ignition. That worker noticed that one of the propeller blades was missing and that the throttle was bent. He testified at trial, "If it was at full throttle, the throttle would be completely to ... the panel, and I remember it being out a little bit and bent down."
Kirst made several statements immediately after the crash. One of the workers testified at trial that as Kirst sat on the rocks after being removed from the plane, he said, "Well, there goes insurance, there goes my business." The worker testified that Kirst repeated to himself, "What the heck happened," "Did I come in too low," and appeared to run through the possibilities of what happened before the crash. After another worker helped carry Kirst down to an ambulance, that witness testified that Kirst said that his business was ruined, that he was in a lot of trouble for the crash, and that a downdraft had partially caused the crash. Kirst told one of the Department of Transportation workers that he had been 1,000 feet above the mountaintops, that a downdraft caught the plane, and that increasing the power did not help the plane escape the downdraft. In the ambulance, Kirst told one of the female passengers, "If I were your husband, I would punch me in the nose." When asked why, Kirst responded that it was because they got into the crash. Kirst explained to a medic that he "ran out of horsepower."
Spencer died a month later from injuries suffered in the crash.
State troopers reported the crash to the NTSB and the FAA. The NTSB is an independent federal agency responsible, inter alia, for investigating transportation accidents and deciding pilots' airman certification appeals. See 49 U.S.C. §§ 1131, 1133. In its investigatory role, the NTSB is charged with "establish[ing] the facts, circumstances, and cause or probable cause" of aircraft accidents. Id. § 1131. The NTSB has no regulatory or enforcement authority. The FAA has enforcement authority to revoke a pilot's airman certificate. The NTSB and the FAA exchange factual information in the course of their investigations of aviation accidents. 49 C.F.R. §§ 831.5(a)(5), 831.21 (2020).
On the day after the crash, the NTSB launched a limited accident investigation. A limited investigation involves gathering information from first responders and witnesses without sending an investigator to the crash site. No NTSB investigator visited the crash site.
The NTSB concluded that weather was not an issue in the crash. Data from a weather station 2,500 feet from the accident site indicated no gusty, downdraft-type winds. A photograph taken from a Department of Transportation building before the accident showed no cloud pattern typically associated with downdrafts. Weather data indicated that there were only light winds from the northeast.
Kirst's plane was equipped with two GPS devices. One of the devices, a Garmin 430, was permanently installed on the plane. The Garmin 430 had lost all its data and was of no value to the investigation. State troopers recovered another GPS device, a Garmin 196, from the plane and sent it to the NTSB for examination.
The Garmin 196 recorded rudimentary flight information, including the plane's flight path, ground speed, and over-the-ground altitude. The Garmin 196 also provided a moving map with orientation, and it recorded the plane's position once every ten seconds. Garmin 196 devices have not been certified by the...
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