The judges upheld a lower court ruling from last year that pilots Joseph Lepore of Bay Shore, New York, and Jan Paladino of Westhampton Beach, New York, were negligent for not verifying that anti-collision equipment and a device that would have alerted controllers to their location were functioning in the Embraer Legacy 600 executive jet they were flying. They have both denied that accusation.
Last year, a lower court found the men guilty and sentenced them to more than four years in prison—but that sentence was converted into community service work. Federal prosecutors and a victims' family group appealed that ruling, arguing the men must serve time in prison because of the number of lives lost in the crash.
On Monday, judges at a regional federal court in Brasilia ruled that the men do not need to perform community service. They also shortened their sentence to three years and one month—but ruled the men could serve their sentence in an "open" regime, meaning under Brazilian law they need not step foot in prison, just occasionally check in with Brazilian authorities. The ruling can be appealed and prosecutors had earlier indicated that was likely if this ruling did not go their way.
After hours calls to prosecutors' offices were not returned. Calls to Theo Dias, a Brazilian lawyer for the American pilots, rang unanswered.
The failures that led to the 2006 crash have been bitterly disputed by controllers, pilots, judges and aviation officials.
The Americans' business jet collided with a Boeing 737 operated by Gol Lineas Aereas, Intelligentes SA. The smaller plane, owned by Ronkonkoma, New York-based ExcelAire Service Inc., landed safely while the larger jet crashed into the jungle, killing all aboard.
It was Brazil's worst air disaster until a jet ran off a runway less than a year later in Sao Paulo and burst into flames, killing 199 people.
Lepore and Paladino faced charges in Brazil of negligence and endangering air traffic safety for allegedly flying at the wrong altitude and failing to turn on the aircraft's anti-collision system. Last year, the judge convicted them of impeding the safe navigation of an airplane.
Neither Lepore nor Paladino were in Brazil for the ruling. They have not returned to the South American nation since being allowed to leave about two months after the crash.
In December 2008, a Brazilian air force report concluded that the U.S. pilots might have contributed to the crash by inadvertently turning off the plane's transponder and collision-avoidance system. However, the U.S. National Transportation Safety Board blamed the collision mostly on shortcomings in Brazil's military-run air traffic control system.
In videoconference testimony at the trial last year, the pilots denied any wrongdoing.
"We knew that the TCAS (Traffic Collision Avoidance System) and the transponder were on, but we had no indication that there was anything out there, no display, no warnings, no pop-ups," Lepore testified at last year's trial. "All we knew is that our transponder was working. If there was another plane out there it could have been their equipment that wasn't working."
Paladino also denied any responsibility for the crash.
In 2010, a military court convicted air traffic controller Jomarcelo Fernandes dos Santos, an air force sergeant, to 14 months in jail for failing to take action when he saw that the Legacy's anti-collision system had been turned off. Four other controllers were acquitted for lack of proof.