from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:17-cr-60001-JIC-1
TJOFLAT, MARTIN, and JILL PRYOR, Circuit Judges.
Amour appeals his conviction for operating an aircraft with
an unapproved fuel system in violation of 49 U.S.C. §
46306(b)(9). He argues that the term "operates an
aircraft" covers actions during or imminent to flight.
Therefore, he contends, the term does not reach his taxiing
and refueling of an aircraft in preparation for a flight on
the following day. We disagree. As defined in both the United
States Code and the Code of Federal Regulations-and clarified
through the decisions of the Civil Aeronautics Board
("CAB") and the National Transportation Safety
Board ("NTSB")-the term "operate"
encompasses the refueling of an aircraft for the purpose of
Amour became licensed as a pilot in 1999 and since then has
occasionally worked as a "ferry pilot, " which
means that he facilitates the sale of aircraft by flying them
to the locations of purchasers. Javier and Rolando Peyrat,
two Paraguayans, retained St. Amour's services as a ferry
pilot sometime in late 2012 or early 2013. They hired him to
fly a Cessna 182 single-engine aircraft, registration number
N3482F, from the Ft. Lauderdale Executive Airport
("FXE") in Florida to Asunción, Paraguay-a
city in the heart of South America. In preparation for this
journey of nearly 4, 000 miles, St. Amour sought to outfit
N3482F with an auxiliary fuel system of his own design.
auxiliary fuel system consisted of a plastic, maritime fuel
tank secured with a ratchet strap to the back seat of the
aircraft. From the plastic tank ran a clear hose that exited
the aircraft through a fitting in the fuselage. The hose ran
up the wing and into the fuel tank of the aircraft. It was
secured to the wing with duct tape. Inside the cabin, an
electric pump pushed fuel from the plastic tank, through the
hose, and into the aircraft's fuel tank. The pump was
powered by a cigarette lighter in the cockpit.
Amour hired a mechanic at FXE named Raphael Garzon to install
this auxiliary fuel system. Garzon, however, failed to
complete the installation because he could not install a
modified fuel cap in one of the wings, which prevented the
fuel line from the plastic tank from being fed into the
aircraft's tank. St. Amour thus hired another mechanic
named Patricio Farias to finish the job.
March 27, 2013, St. Amour taxied N3482F to Farias' hangar
at FXE. Farias completed the installation of the fuel system
in a few hours for $100. With the installation complete, St.
Amour started the aircraft's engine and taxied to a
maintenance facility for refueling. Later that day, agents of
the Drug Enforcement Agency ("DEA") apprehended St.
Amour in front of the maintenance facility on suspicion of
an interview with DEA agents, St. Amour said that he had
planned to depart in N3482F for Paraguay between 10 a.m. and
11 a.m. the following day, March 28. While the DEA agents neither
discovered drugs nor arrested St. Amour, the situation was
referred to the Department of Transportation
("DOT"). Much later, in an interview with DOT
agents, St. Amour again stated that he had planned to leave
for Paraguay the following day and would have but for the
intervention of the DEA.
January 6, 2017, a one-count indictment was filed against St.
Amour for operating an aircraft with knowledge that the
auxiliary fuel system did not comply with the regulations and
requirements of the Federal Aviation Administration
("FAA"). See 49 U.S.C. § 46306(b)(9).
He was arrested on February 22, 2017.
2017, St. Amour moved to dismiss the indictment as a matter
of law. St. Amour argued that he had not operated
N3482F within the meaning of 49 U.S.C. § 46306(b)(9)
because the word "operate" in that provision refers
only to conduct during or imminent to flight. Based on this
construction, St. Amour contended that he did not operate the
aircraft because he neither flew nor intended to fly N3482F
on March 27; he taxied and fueled the aircraft for a flight
the next day. Therefore, in effect, St. Amour advocated for a
definition of "operate" that requires a strict
"temporal proximity" between the conduct and
Government disagreed. It argued that the term
"operate" reaches the use of an aircraft to prepare
for flight, regardless of when that flight is scheduled. In
the Government's view, the use of an aircraft in
preparation for or incident to flight constitutes
"operation" of that aircraft. To support this
interpretation, the Government pointed out that the safety
hazards posed by an unauthorized fuel system exist both in
the air and on the ground.
order on June 19, 2017, the District Court denied the motion
to dismiss the indictment. Before addressing St. Amour's
arguments, the District Court noted that "the parties
have stipulated to the facts and waived any procedural bar to
a merits determination at this stage." The District
Court then moved to the merits. It held that the term
"operate" is "clearly broader than the more
specific concept of 'flying' an aircraft" and
that "obtain[ing] fuel for a flight scheduled for the
next day constitute[s] 'operation' of an
aircraft." In reaching this result, the District Court
found the Ninth Circuit's decision in Daily v.
Bond, 623 F.2d 624 (9th Cir. 1980) (per curiam),
"particularly persuasive because it supports the
proposition that [St. Amour's] 'operation' of the
aircraft was 'for the purpose of air navigation'
because it [was] preparatory to flight." The District
Court declined to define "exactly how close in time the
operation of an aircraft must be in relation to air
navigation to constitute a violation of 49 U.S.C. §
46306(b)(9), " but determined that St. Amour's
refueling of the aircraft was "sufficiently
connected" to the flight scheduled for the following
the denial of his motion to dismiss, St. Amour entered a
guilty plea but reserved his right to appeal the denial of
his motion to dismiss. On July 24, 2017, St. Amour filed a notice
of appeal challenging the denial of his motion to dismiss.
The same as before, St. Amour argues that the term
"operate" is ambiguous as defined in the United
States Code and the Code of Federal Regulations and should
receive a narrow construction that covers conduct during or
imminent to flight.