General partnerships ordinarily are not considered investment contracts because they grant partners — the investors — control over significant decisions of the enterprise. Deutsch Energy Co. v. Mazur, 813 F.2d 1567, 1570 (9th Cir. 1987); Goodwin v. Elkins Co., 730 F.2d 99, 102-03 (3d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 61 (1984); Odom v. Slavik, 703 F.2d 212, 215 (6th Cir. 1983); Gordon v. Terry, 684 F.2d 736, 741 (11th Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983); Williamson v. Tucker, 645 F.2d 404, 422 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). In Williamson, a leading case, the Fifth Circuit identified a narrow exception to the strong presumption that a general partnership is not a security.

The pilot of the aircraft is directly and ultimately responsible for the operation of his aircraft. Davis v. United States, 824 F.2d 549, 551 (7th Cir. 1987); Redhead v. United States, 686 F.2d 178, 182 (3rd Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1190, 75 L.Ed.2d 435 (1983); Spaulding v. United States, 455 F.2d 222, 226 (9th Cir. 1972); Tinkler, 700 F. Supp. at 1073; 14 C.F.R. § 91.3(a). 15.

The Commission affirmed that decision, as did this court. Faith Center, Inc., 82 F.C.C.2d 1 (1980), reconsid. denied, FCC 81-235 (1981), aff'd mem., Faith Center, Inc. v. FCC, 679 F.2d 261 (1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 435 (1983).

"Under VFR, a pilot directs his aircraft according to what he can see, navigating from place to place according to visual cues outside his aircraft." Redhead v. United States, 686 F.2d 178, 180 n. 1 (3d Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1190, 75 L.Ed.2d 435 (1983). "Under IFR, it is presumed that pilots are unable to see either other aircraft or the ground and are guided by air traffic controllers."

The motion was denied, and the denial was affirmed on appeal. United States v. Hastings, 681 F.2d 706 (11th Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983). The two defendants then had separate trials.

This ad hoc probationary scheme obviously creates at a minimum the appearance of impropriety, if not an inference of actual bias. United States v. Hastings, 681 F.2d 706, 710-11 (1982), cert. denied, 459 U.S. 1203 (1983), cited in the Dissent, is inapposite. The judge in Hastings sought judicial immunity from a federal criminal prosecution.

When considering the criminal prosecutions of judges, other circuits have repeatedly rejected judicial criminal immunity for official acts, largely in the context of bribery prosecutions. See United States v. Claiborne, 727 F.2d 842, 845 (9th Cir.) (per curiam), cert. denied, 469 U.S. 829, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984); United States v. Hastings, 681 F.2d 706, 709-11 (11th Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983); United States v. Isaacs, 493 F.2d 1124, 1143-44 (7th Cir.) (per curiam), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974), overruled on other grounds by United States v. Gimbel, 830 F.2d 621 (7th Cir. 1987). Former President Trump argues that bribery allegations were not considered "judicial acts" at common law, Appellant's Br. 21, but his sources do not support his conclusion.

Coughlin v. Capitol Cement Co., 571 F.2d 290, 300 (5th Cir. 1978). Martin v. City of New Orleans, 678 F.2d 1321, 1325 (5th Cir. 1982) (quoting Dwoskin v. Rollins, Inc., 634 F.2d 285, 293 (5th Cir. 1981)), cert. denied, 459 U.S. 1203 (1983). Houston v. Herring, 562 F.2d 347, 349 (5th Cir. 1977) (quoting Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1100 (5th Cir. 1973)).

In Glen-Arden Commodities, Inc. v. Costantino, 493 F.2d 1027 (2d Cir. 1974), for example, the Second Circuit noted that investors' profits depended on the promoter's expertise in selecting whiskey for investors to purchase as well as on the promoter's promise to buy back the whiskey in the future. Id. at 1035; see also Gary Plastic, 756 F.2d at 240-41 (finding an investment contract where promoter both promised to maintain a secondary market for CDs — a post-purchase managerial activity — and used its market power to negotiate favorable CD rates with participating banks — a pre-purchase activity); Gordon v. Terry, 684 F.2d 736, 740 n. 4, 742-43 (11th Cir. 1982), cert. denied, 459 U.S. 1203 (1983) (emphasizing promoter's claimed expertise in locating bargain-priced Florida properties for investor to purchase, as well as promoter's post-purchase activities of structuring leverage scheme and utilizing personal contacts to ease resale, in denying summary judgment on question of whether investment contract existed). Indeed, there are occasions, albeit rare, when most of the promoter's significant managerial activities occur before purchase and a court has found Howey's third prong satisfied.

These assumptions and expectations arise from hundreds of FAA rules and guidelines covering different flight situations and the customary way they have come to be applied in the flying community. Under FAA rules, all FAA "Flight Specialists" on the ground in so-called "Flight Service Stations," who give pilots weather and other flight information, and all "controllers" who direct pilots in the operation of aircraft under their positive control when underway, are entitled to assume that pilots with whom they communicate have complied with FAA regulations and have studied the basic maps of the area, know the terrain and the navigational facts concerning departure routes, TCA's, clearances and the like. 14 C.F.R. Section(s) 91.103; Redhead v. United States, 686 F.2d 178, 183 (3rd Cir. 1982), cert. denied, 459 U.S. 1203 (1983); December 13, 1990 Airman's Information Manual Rule 325 (Note) ("The term Radar Contact, when used by the controller during departure, should not be interpreted as relieving pilots of their responsibility to maintain appropriate terrain and obstruction clearance."). Rule one makes it clear that the pilot in command, like the ship captain, has the ultimate responsibility for the safety of his plane and his passengers and must comply with the extensive body of regulations published by the FAA. 14 C.F.R. Section(s) 91.