-Knight Ridder Newspapers

MIAMI – Two former America West pilots who drank rounds of beer in a Miami bar and hours later were removed from the cockpit of a Phoenix-bound airliner now face federal charges of operating the jet while under the influence of alcohol.

The two men, pilot Thomas Cloyd, 46, of Arizona, and copilot Christopher Hughes, 43, of Texas, pleaded not guilty Thursday to the single-count indictment and were released on $100,000 bail each.

The pair, fired from their jobs, surrendered Thursday morning in the highly publicized case – ending two years of speculation as to whether they ever would be prosecuted on charges of being intoxicated as their plane was pushed back from the gate at Miami International Airport with 124 passengers on board.

Last summer, a federal judge ruled that the Miami-Dade state attorney’s office did not have the authority to prosecute the pilots because federal law trumped Florida statutes in cases involving interstate commerce such as cross-country air travel. The only exception: if the pilots caused loss of life, injury or property damage.

Cloyd and Hughes caused no harm at all; they were removed from their cockpit before takeoff after ground crews told supervisors that the pilots smelled of alcohol.

Another wrinkle in the case is that the pilots had blood-alcohol readings above the state’s standard of .08 percent but below the federal guideline of .10 percent. At first, the results appeared to boost the pilots’ chances of avoiding prosecution – until Wednesday, when the indictment was unsealed.

Assistant U.S. Attorney Lynn Kirkpatrick is likely to present those breath-test results along with other potentially incriminating evidence to show that the pilots were impaired under federal law before they boarded America West Flight 566 on July 1, 2002.

But attorney James Rubin, representing Hughes, and the federal public defender’s office, assigned to represent Cloyd, is likely to counter that the pilots’ breath-test results fell below the federal criminal standard for drunkenness.

Criminal-law experts said the federal government’s case will be harder to prosecute without the presumption of intoxication. The outcome, they said, would depend on whether the total evidence proves that the two pilots were impaired as they prepared to fly from Miami to Phoenix.

Witnesses, bar bills and other evidence are expected to be used to build on the breath-test results.

The pilots first caught the attention of MIA security screeners as they tried to board the Airbus jet. Screeners said Hughes and Cloyd tried to carry cups of coffee through a security checkpoint, a violation of security rules imposed after the Sept. 11, 2001, terrorist attacks.

The screeners told Miami-Dade police that the pilots smelled of alcohol and had flushed faces and bloodshot, watery eyes.

A police sergeant notified the control tower, which ordered the pilots to return the plane to the gate.

Police escorted them off the plane and asked about the smell of alcohol on their breath. Hughes said it was “merely mouthwash,” according to a police report.

Police informed the pilots of their rights against self-incrimination and then asked them how much alcohol they had drunk the night before their morning flight.

The pilots said they drank pints of draft beer at Moe’s in Coconut Grove. Cloyd said he didn’t know how many he had consumed but that it was “too many,” according to an investigator’s notation. Hughes told police he had consumed “many” pints.

Officers asked the pilots to take a field sobriety test, which they failed. Officers took them to an airport station for the breath test about two hours after they were taken off the jet.

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Cloyd’s blood-alcohol reading was .091 and Hughes’ was .084, police said. Those figures are above state but below federal criminal standards for intoxication.

At the same time, Federal Aviation Administration regulations prohibit pilots from operating an aircraft within eight hours of consuming alcohol or if they have a blood-alcohol level of .04. The pilots allegedly drank beer for six hours at the bar – until seven hours before the flight’s departure.

At Thursday’s hearing before Magistrate Judge Robert L. Dube, both pilots said little. Hughes said he was married with two children. Cloyd said he, too, was married with two children and three stepchildren. Under the terms of their bail, they can travel only between their home states and South Florida.

If convicted, each could face a maximum sentence of 15 years in prison, though sentencing guidelines would recommend less time.

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(c) 2004, The Miami Herald.

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Distributed by Knight Ridder/Tribune Information Services.

AP-NY-07-08-04 2051EDT

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