SERVED: NOVEMBER 14, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC "~ 

In The Matter Of: 

Docket No. FAA-2013-0716 

TYLER PENNYWITT 

) 

) 

) 

) 

Respondent ) 

Case No. 2012S0150128 

ORDER DENYING THE RESPONDENT'S 

MOTION TO DISMISS THE COMPLAINT 

ON THE GROUND OF DOUBLE JEOPARDY 

J .... :-: ~) t 

On June 27, 2014, an Order Reserving Motions, Setting Deadlines for Filing 

Supplemental Materials, and Continuing the Hearing was filed. Among other things, this Order 

reserved the Respondent's Motion to Dismiss and set an August 22, 2014 deadline for the parties 

to file supplemental materials. 

On August 5, 2014, the FAA filed its Supplemental Submission on Motion for Summary 

Judgment ("FAA Supplement"). 

On August 25, 2014, Mr. Tyler Pennywitt ("Respondent") filed a Supplemental 

Submission on Motion for Summary Judgment ("Respondent's Supplement"). 

On October 14,2014, an Order Denying the Respondent's Motion to Dismiss the 

Complaint on the Grounds of Untimely Filing was filed. 

I. SYNOPSIS OF THE PARTIES' POSITIONS 

A. Respondent's Motion to Dismiss 

The prose Respondent's Motion to Dismiss ("Motion") on the ground of double 

jeopardy was included as part of his May 29, 2014 and August 25, 2014 responsive arguments to 

the FAA's May 5, 2014 Motion for Summary Judgment. In essence, the parties agree that the 

Respondent has already pled guilty and suffered punishment on one felony count of 18 U.S.C. 
§ 39A-the newly enacted federal criminal statute prohibiting laser pointing. As a result, the 

Respondent argues that this subsequent civil regulatory prosecution-for the "exact same" act of 

laser pointing which occurred on June 4, 2012-is constitutionally prohibited by the Double 

Jeopardy clause. (Motion, 4.) The prose Respondent objects to being prosecuted and punished 

twice for the June 4, 2012laser pointing offense. (11/15/13 Ans.; 5/29114 Motion, 1.) In support 

of his Motion, the Respondent highlights multiple facts and relies upon the U.S. Supreme 

Court's discussion and holding regarding double jeopardy in United States v. Halper, 490 U.S. 

435 (1989). 

B. FAA's Response to Motion 

In response, the FAA asserts that the Respondent's criminal conviction and sentence does 

not shield the Respondent from facing civil prosecution for the June 4, 2012laser pointing 

incident, in part because the FAA's civil regulation requires different elements ofproofthan the 

federal criminal statute. The FAA also argues that the Respondent's reliance on the Halper 

decision is misplaced, since eight (8) years after Halper was decided, the U.S. Supreme Court in 

Hudson v. United States, 522 U.S. 93, 99 (1997) overruled Halper and revised its standard of 

double jeopardy review. 

II. GENERALFACTSUMMARY 

The October 14, 2014 Order provides a detailed fact summary of this case, which is 

incorporated here by reference. The general fact summary contained in this Order supplements 

the October 14, 2014 fact statement. 

A laser pointer is a device commonly sold to the public at stores such as Radio Shack. 

(Exh. R-3.) On June 4, 2012, the Respondent, Tyler Pennywitt, was arrested at his home on an 

allegation of shining a laser pointer at a Jacksonville, Florida Sheriffs Office helicopter. (Compl. 

1; Motion, 1; Exhs C-C and R-1.) Mr. Pennywitt spent the night in a state jail facility, and was 

then released on his own recognizance. (Exh. R-1; 6/26/14 Tr. at 63-64.) 

After arresting Mr. Pennywitt, the Jacksonville Sheriffs Office contacted the FAA about 

the incident (date unspecified), and FAA Inspector Joseph W. Gramzinski began an 

investigation. (FAA Supp. 1; Motion, 1.) The Jacksonville Sheriffs Office asked Inspector 

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Gramzinski about prosecuting Mr. Pennywitt criminally (date unspecified). In response, 

Inspector Gramzinski told the Jacksonville Sheriffs Office that federal criminal prosecutions 

were not handled by the FAA, but instead by the U.S. Department of Transportation's Office of 

the Inspector General ("OIG"). 

During Inspector Graminski's investigation, he corresponded with Mr. Pennywitt's 

attorney, Eric Friday. (FAA Supp. 1.) As part ofthis correspondence, on July 6, 2012, Mr. 

Friday sent a letter to Inspector Gramzinski in which he provided an explanation for the June 4, 

2012 incident, and enclosed a letter of apology from Mr. Pennywitt to the helicopter pilot. Mr. 

Friday asked Inspector Gramzinski for leniency in resolving the matter. (Exh. R-3.) 

It is unclear whether FAA Inspector Gra.mZinski or the Jacksonville Sheriffs Office first 

contacted the OIG about the June 4, 2012 incident or when such contact(s) took place. (FAA 

Supp. 2.) Nevertheless, the OIG was contacted (date unspecified), and OIG Special Agent 

Glenda White was assigned to the case. (FAA Supp. 2.) Agent White began a federal criminal 

investigation (date unspecified). 

On September 11, 2012, OIG Agent White directly contacted Mr. Pennywitt by telephone 

and asked to speak with him about the incident. Mr. Pennywitt told Agent White that he was 

represented by an attorney, and wanted to check with his attorney first. Later that same day, on 

September 11,2011, Mr. Pennywitt's attorney, Mr. Friday, contacted Agent White, and 

discussed the incident. (Exh. C-K.) Among other things, Mr. Friday told Agent White that Mr. 

Pennywitt had not violated the Florida state criminal statute's "knowledge" provision regarding 

laser pointing at aircraft. (Exh. C-K). In response, Agent White told Mr. Friday that she was 

investigating the June 4, 2012 incident under a federal criminal statute. (/d.) Two days later, on 

September 13, 2013, Mr. Friday emailed Agent White a courtesy copy of the July 6, 2012letter 

to Inspector Gramzinski, which contained Mr. Pennywitt's written apology to the helicopter 

pilot, as well as a request for leniency.(Exh. C-L.) Sometime after September 13, 2013 (date 

unspecified), Inspector Gramzinski provided Agent White with a copy of the FAA's 

investigative evidence about the June 4, 2012laser pointing. 

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Based on Agent White's investigation (otherwise undescribed), the U.S. Attorney's 

Office subsequently filed federal criminal charges (date unspecified) against Mr. Pennywitt 

arising from the June 4, 2012 laser pointing act. 

Thus, on October 4, 2012, approximately three weeks after Mr. Friday's telephone 

conversation with Agent White, Mr. Pennywitt was charged with violating 18 U.S.C. § 39AAiming a laser pointer at an aircraft. (Motion, 2.) This was a felony crime which carried a 

maximum penalty of five (5) years in jail, $250,000 in fines, and a three (3) year probation 

period with various conditions. Five days later, on October 9, 2012, Mr. Pennywitt was arrested 

again, in front ofhis children, and booked into a federal jail facility. (Motion, 2; 6/26/14 Tr. at 

64-65.) Within 20 hours ofbooking he was released after posting a $10,000 unsecured bond and 

agreeing to pretrial release conditions. (Motion, 2; 6/26/14 Tr. at 65.) As a result of Mr. 

Pennywitt's federal indictment, attorney Mitchell Stone substituted for attorney Eric Friday. 

On December 11, 2012, approximately seven (7) weeks after Mr. Pennywitt's criminal 

indictment, the FAA issued a Notice of Proposed Civil Penalty, alleging that the Respondent had 

committed one (1) violation of 14 C.F.R. § 91.11 and proposing a $1,100 civil penalty. (Mot., 2, 

Ex. R-5.) Approximately three (3) weeks later, on January 3, 2013, the FAA issued an Amended 

Notice ofProposed Civil Penalty, in which it increased its proposed civil penalty from $1,100 to 

a total of$11,000. (Id., Ex. R-3.) 

Throughout Mr. Pennywitt's criminal prosecution, OIG Agent White remained actively 

involved. (R Supp .. 2.) In February 2013, Agent White telephoned Mr. Stevenson, the FAA 

attorney in the civil penalty proceeding, and told him that Mr. Pennywitt's attorney, Mr. Stone, 

had requested in the criminal case that the FAA's civil action be settled as part of the criminal 

proceeding. (FAA Supp. 3.) Mr. Stevenson advised Agent White that neither the U.S. Attorney's 

Office nor the U.S. District Court had the authority to resolve the FAA's civil penalty 

proceeding. (FAA Supp. 3.) 

Shortly thereafter, on April11, 2013, the FAA issued a Final Notice of Proposed Civil 

Penalty. 

Six days later, on April17, 2013, Mr. Pennywitt pled guilty to one (1) count of violating 

18 U.S.C. § 39A. That same day, on April17, 2013, Mr. Stone, Mr. Pennywitt's criminal defense 

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attorney filed a Request for Hearing in the FAA's civil penalty proceeding. ("4/17 /13 Request"). 

(Mot. Dismiss 3, Exh. R-9.) 

Approximately three (3) months later, on August 1, 2013, Mr. Pennywitt reappeared in 

the U.S. District Court for felony sentencing. Among other federal sentencing conditions, Mr. 

Pennywitt was ordered to serve one (1) year of probation-during which time he was directed to 

cooperate in the collection of DNA; perform fifty (50) hours of community service, complete a 

substance abuse evaluation and any recommended treatment for narcotic, drug, or alcohol 

addiction; and complete a mental health evaluation. The Respondent was also prohibited from 

possessing or using firearms, directed to pay a $100.00 Special Assessment, and lost his voting 

rights. (Motion for SJ, Exh. G; FAA Supp; 6/26/14 Tr. at 50.) 

One week later, on August 8, 2013, the FAA issued its Order Assessing Civil Penalty 

("OACP"), in which the FAA assessed Mr. Pennywitt with a $11,000 penalty for the June 4, 

2012laser pointing incident. 

Upon receipt of the OACP (date unspecified), Mr. Stone immediately telephoned Mr. 

Stevenson, the FAA attorney. According to the FAA, Mr. Stone did not mention the 4/1 7/13 

Request he had filed. Instead, Mr. Stone "complained" about the OACP, in part on the grounds 

that the U.S. Attorney had misled Mr. Stone and Mr. Pennywitt to believe that the federal 

criminal conviction would be fully dispositive ofthe entire incident. (FAA Supp. 3.) During this 

telephone conversation, Mr. Stevenson told Mr. Stone that Mr. Pennywitt's criminal conviction 

and sentence was not fully dispositive, and that the FAA would not withdraw its OACP. (!d.) 

On August 14, 2014, six (6) days after the OACP was issued, Mr. Stone filed in the U.S. 

District Court criminal case a Motion to Vacate and Set Aside Judgment and Sentence, alleging 

double jeopardy. As part of this Motion to Vacate, Mr. Stone attached a copy of the 

Respondent's 4/17/13 Request. 1 (FAA Supp., 3.) The U.S. District Court denied the Motion to 

Vacate on the grounds that the issue was not ripe under the federal criminal proceeding, since the 

criminal proceeding was "the government's first attempt to punish" Mr. Pennywitt. (R. Supp., 

Exh. R-15, 2.) 

1 The issues involving the Respondent's 4/17113 Request for Hearing were separately addressed in the October 14, 

2014 Order Denying the Respondent's Motion to Dismiss the Complaint on the Grounds of Untimely Filing. 

Page 5 of18 
III. APPLICABLE LAW 

A. FAA's Civil Regulation 

The FAA alleges that the Respondent committed one (1) violation of 14 C.F.R. § 91.11. 

(Compl., 2.) Section 91.11 provides: 

No person may assault, threaten, intimidate, or interfere with a crewmember in 

the performance of the crewmember's duties aboard an aircraft being operated. 

14 C.F.R. § 91.11. 

Brief History ofF AA' s Civil Regulation 

Section 91.11 was first enacted by Special Regulation on July 28, 1961, as part of the 

FAA's response to multiple "hijackings of air carrier aircraft." 26 Fed. Reg. 7009 (Aug. 4, 

1961). At the time of enactment, the FAA's stated goal was to "provide additional controls over 

the conduct of passengers in order to avoid a serious threat to the safety of flights and the 

persons aboard them." Id. (emphasis added.). 

Fifty years later, on June 1,2011, the FAA issued an interpretation of 14 C.F.R. § 91.11, 

"advising the public that directing laser beams towards aircraft operating on the ground or in the 

air so that it interferes with a crewmember in the performance of the crewmember's dutfes is a 

violation of section 91.11." 76 Fed. Reg. 76611 (Dec. 8, 2011) (Interpretation). Thus, the FAA's 

2011 interpretation broadly expanded the scope 14 C.F.R. § 91.11, to include control over the 

conduct of individuals who were not aircraft passengers or aboard the aircraft. At the time of the 

FAA's June 1, 2011 interpretation of 14 C.F.R. §91.11, there was no federal criminal statute 

prohibiting laser pointing at aircraft. 

B. Federal Criminal Statute 

On February 14, 2012-approximately eight (8) months after the FAA issued its June 1, 

2011 interpretation of 14 C.F.R. § 91.11)-the United States Congress enacted 18 U.S.C. § 39A, 

which criminalized the act of "Aiming a laser pointer at an aircraft." Section§ 39A provides in 

part: 

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(a) Offense.-Whoever knowingly aims the beam of a laser pointer at an aircraft 

in the special aircraft jurisdiction of the United States, or at the flight path of such 

an aircraft, shall be fined under this title or imprisoned not more than 5 years, or 

both. 

18 U.S.C. § 39A(a) (2012). 

BriefHistory of Federal Criminal Statute 

It took Congress seven (7) years to pass legislation criminalizing the act of laser pointing 

at aircraft. In 2005, the U.S. House of Representatives first identified the need for this criminal 

provision, after the House Subcommittee on Aviation gathered evidence and took testimony 

from FAA officials, airline pilots, and other aviation experts. H.R. Rep. No. 109-250, at 2-3 

(2005). Witnesses testified that the laser pointing incidents were a threat to aviation safety. Id. 

Subsequently, in a Report submitted to the Whole House on October 18, 2005, the Committee on 

the Judiciary stated in part: 

Over the past several years, the number of reports to the Federal Aviation Administration 

(FAA) detailing the aiming of lasers into airplane cockpits has dramatically increased. 

Since 1990, there have been over 400 of these incidents and more than 100 incidents have 

been reported since November 2004. 

* * * 

· FAA research has shown that laser illuminations [in airplane cockpits] can temporarily 

disorient or disable a pilot during critical stages of flight such as landing or take-off, and 

in some cases, may cause permanent physical injury to the pilot. 

ld. at 2 (footnote omitted). 

Despite repeated attempts in 2005, 2006, 2007, 2010, and 2011, members of Congress 

were unable to pass legislation addressing the safety concem.

2 However, on February 14, 2012, 

Congress succeeded in passing legislation that made it a crime to knowingly aim the beam of a 

laser pointer at an aircraft. FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 311 

(codified at 18 U.S.C. § 39A (2012)). It should be noted that Congress enacted this federal 

criminal statute approximately three and a half (3 Yz) months prior to the Respondent's June 4, 

2012 arrest. 

2 See, e.g., Securing Aircraft Cockpits Against Lasers Act of2005, H.R. 1400, 109th Cong. § 2 (2005); H.R. 6226, 

109th Cong. § 2 (2006); H.R. 1615, 110th Cong. § 2 (2007); H.R. 5810, 111th Cong. § 2 (2010); and H.R. 386, 

112th Cong. § 2 (2011). 

Page 7 of 18 
C. Amendment V of the U.S. Constitution 

Amendment V of the United States Constitution provides in part: "nor shall any person 

be subject for the same offence to be twice put in jeopardy of life or limb[.]" This constitutional 

protection, commonly referred to as the Double Jeopardy Clause, is a fundamental protection for 

the American citizen. Yet, as both the Respondent and the FAA noted in their arguments, the 

application of the Double Jeopardy Clause ("Clause") remains difficult, as evidenced by the U.S. 

Supreme Court's recent decisions, United States v. Halper, 490 U.S. 435 (1989), and Hudson v. 

United States, 522 U.S. 93 (1997). 

This difficulty in the application of the Clause was briefly described by Justice Stevens in 

his concurring opinion in Hudson: 

[T]he States and the Federal Government have an enormous array of civil administrative 

sanctions at their disposal that are capable of being used to punish persons repeatedly for 

the same offense, violating the bedrock double jeopardy principle of finality. 

Hudson, 522 U.S. at 111 (Stevens, J., concurring in the judgment). 

IV. OVERVIEW OF THE HALPER AND HUDSON DECISIONS 

As noted earlier herein, the Respondent's Motion relies on the analysis by the U.S. 

Supreme Court in United States v. Halper, 490 U.S. 435 (1989). (Motion, 4-5.) 

In Halper, the federal Government charged Ira Halper, the manager of a medical 

laboratory service, with 65 criminal counts for allegedly filing false claims for Medicare 

reimbursement. Mr. Halper was convicted on all65 counts, as well as on 16 counts of mail fraud. 

He was sentenced to two (2) years in federal prison, and fined $5,000. Halper, 490 U.S. at 437. 

The Government then filed a civil action against Mr. Halper under the False Claims Act. 

Based on facts established by Mr. Halper's criminal conviction, the U.S. District Court granted 

summary judgment for the Government on the issue of Mr. Halper's civil liability. Halper, 490 

U.S. at 438. The Government requested a statutorily authorized civil penalty of$130,000, based 

on the penalty provisions of that Act. The District Court declined to grant this relief, however, on 

the grounds that the $130,000 was "more than 220 times greater than the Government's 

measurable loss." ld. at 439. The District Court qualified the $130,000 proposed fine as 

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"punishment" which, in view of Halper's previous criminal conviction and sentence, was barred 

by the Double Jeopardy Clause. !d. at 439-40. The District Court then entered civil judgment in 

the total amount of $16,000. !d. at 439. Upon the Government's motion for reconsideration, the 

U.S. District Court reaffirmed its Double Jeopardy ruling. 3 The Government appealed directly to 

the U.S. Supreme Court. In its analysis of the case, the U.S. Supreme Court first explained the 

perimeters ofthe Double Jeopardy Clause: 

[It] protects against three distinct abuses: a second prosecution for the same offense after 

acquittal; a second prosecution for the same offense after conviction; and multiple 

punishments for the same offense. 

!d. at 440. 

Next, the Court found that the Halper issue involved the third type of abuse-whether 

subjecting Mr. Halper to liability of$130,000 for false claims amounting to $585, constituted a 

second, or multiple 'punishment' for the purpose of double jeopardy analysis." !d. at 441. 

In its opinion, the Court noted that civil prosecutions arising from the same conduct could 

occur-and not violate the Clause-when the proceedings were "remedial" and designed to 

"protect the government from financial loss" rather than ''vindicate public justice." Halper, at 

444 (citing United States ex. rei. Marcus v. Hess, 317 U.S. 537, 548-49 (1956)). The court also 

acknowledged that remedial sanctions might carry "the sting of punishment" and advance 

"punitive" goals, but noted that this did not mean the sanctions violated the Clause. !d. at 44 7. 

Thus, to determine whether the Clause had been violated, the Halper Court focused on a 

"particularized assessment of the penalty imposed and the purposes that the penalty may fairly be 

said to serve." !d. at 448. In a unanimous opinion, the Supreme Court agreed with the U.S. 

District Court, found that Double Jeopardy applied in Mr. Halper's case, and held that: 

[U]nder the Double Jeopardy Clause a defendant who already has been punished in a 

criminal prosecution may not be subjected to an additional civil sanction to the extent that 

the second sanction may not fairly be characterized as remedial, but only as a deterrent or 

retribution." 

!d. at 448-49. 

3 Upon reconsideration, the U.S. District Court also admitted to some error in its calculation of the $16,000 civil 

penalty, but ruled that the $130,000 penalty still could not be imposed. Halper at 439. 

Page 9 of18 
In the Motion in this case, Mr. Pennywitt asserts that the Halper discussion and analysis 

is directly on point, and should be applied: 

The civil penalty is based on the exact same conduct as the criminal case and the civil 

penalty bears no rational relation to any governmental loss. Therefore a motion to dismiss 

based on double jeopardy would be well taken .. .in favor of the Respondent. 

(Motion, 5.) 

In response, the FAA argues that the U.S. Supreme Court revisited the Halper case in 

1997 (i.e., eight years later), and overruled its Halper analysis in the case of Hudson v. United 

States, 522 U.S. 93, 99 (1997). The FAA is correct, although the Hudson case did not necessarily 

provide better or clearer guidance on the issue of double jeopardy. 

In Hudson, the Government, through the Office of Comptroller of Currency ("OCC"), . 

administratively imposed monetary penalties and occupational debarment on three bank officers 

for violating federal banking statutes. Although the alleged bank losses were "almost $900,000", 

the Government entered into Consent Orders with the banking officers, which limited each of the 

bank officer's individual civil liability to $16,500 or less. !d. at 97. Shortly thereafter, the 

Government filed a 22 count federal criminal indictment against the bank officers "for 

essentially the same conduct." !d. at 95 and 97. The bank officers moved to dismiss the criminal 

indictment on double jeopardy grounds. On appeal, the U.S. Court of Appeals held, following 

the Halper analysis, that the OCC's civil sanctions against the bank officers entered into by 

Consent Orders, were "not so grossly disproportional to the proved [Government] damages" that 

the criminal case was barred by the Double Jeopardy Clause. Id. at 98. The U.S. Supreme Court 

granted certiorari, because of"concems" about "novel" double jeopardy claims "spawned in the 

wake of Halper." !d. 

In a 5-4 decision (unanimous in the judgment), the Hudson Court agreed with the Court 

of Appeals that Double Jeopardy did not apply, but for different reasons. The Hudson Court 

disavowed the double jeopardy analysis it had used in Halper, and reaffirmed its previously 

established double jeopardy analysis exemplified in the case of United States v. Ward, 448 U.S. 

242, 248-249 (1980). Hudson, 522 U.S., at 95. The Hudson court also renewed its reliance on 

the "guidepost" analysis in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), in 

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determining whether a civil statutory scheme was "so punitive" that it transformed a civil remedy 

"into a criminal penalty." Hudson, 522 U.S. at 99. 

The Hudson Court majority opinion found that in Halper, the Court had deviated from 

traditional double jeopardy doctrine in two respects. First, the Halper Court had bypassed the 

threshold question of whether the second, civil punishment sought against Mr. Halper had been a 

criminal punishment, and instead focused on whether the second sanction was "so 

overwhelmingly disproportionate" to the harm caused as to constitute punishment, regardless of 

whether that punishment was characterized as civil or criminal. !d. at 1 01 (internal quotation 

omitted). Second, the Halper Court assessed the "'character of the actual sanctions imposed ... 

rather than evaluating the [penalizing] statute on its face to determine whether it provided for a 

criminal penalty. !d. (quoting Halper, 490 U.S., at 447). 

In the Hudson Court's analysis of the banking officers' case, it applied the two-part test. 

exemplified in Ward to evaluate the double jeopardy claim: 1) "whether the legislature, 'in 

establishing the penalizing mechanism, indicated either expressly or impliedly a preference for 

one label or the other [i.e., criminal or civil label],"' Id. (quoting United States v. Ward, 448 U.S. 

242, 248 (1980)); and 2) in those cases where the legislature "has indicated an intention to 

establish a civil penalty," id., '"whether the statutory scheme [is] so punitive either in purpose or 

effect,"' id. (quoting Ward, 448 U.S., at 248-49), "as to 'transfor[m] what was clearly intended 

as a civil remedy into a criminal penalty,"' id. (alteration in original) (quoting Rex Trailer Co. v. 

United States, 350 U.S. 148, 154 (1956)). 

The Hudson Court addressed this second question-whether the civil remedy in the 

banking officers' case had been so punitive as to transform it into a criminal penalty-by 

applying the following "useful guidepost" factors (not exclusive) listed in Kennedy v. MendozaMartinez, 372 U.S. 144, 168-169 (1963): 

(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) 

"whether it has historically been regarded as a punishment"; (3) "whether it 

comes into play only on a finding of scienter"; ( 4) "whether its operation will 

promote the traditional aims of punishment-retribution and deterrence"; (5) 

whether the behavior to which it applies is already a crime"; (6) "whether an 

alternative purpose to which it may rationally be connected is assignable for it"; 

and (7) "whether it appears excessive in relation to the alternative purpose 

assigned." 

Page 11 of18 
Hudson, 522 U.S. at 99-100. 

The Hudson Court emphasized that "'[t]hese factors must be considered in relation to the 

statute on its face," id. at 100 (quoting Kennedy, 372 U.S. at 169), "and 'only the clearest proof' 

will suffice to override legislative intent and transfor.m what has been denominated a civil 

remedy into a criminal penalty," id. (quoting Ward, 448 U.S. at 249). 

The Hudson Court concluded that Congress intended the OCC money penalties and 

debarment sanctions to be civil in nature, based on the express provision in the statute that such 

penalties are "civil." !d. at 103. The Court then applied the seven "guidepost" factors listed in 

Kennedy and found that there was "simply very little showing, to say nothing of the 'clearest 

proof' required by Ward, that the OCC civil money penalties and debarment sanctions are 

'criminal."' !d. at 105. Thus, the Double Jeopardy Clause was "no obstacle to [the bank officers] 

trial on the pending indictments[.]" !d. 

Although Chief Justice Rehnquist wrote the majority opinion in the Hudson case, it was 

not shared by all the members of the Court. Instead, Justices Stevens, Souter, Breyer, and 

Ginsburg joined in the majority judgment, but they filed separate opinions in which they 

discussed certain disagreements. 

For example, Justice Stevens opined that rather than reexamining and overturning the 

central holding of Halper, the Hudson Court should have applied the "same-elements" test 

established in Blockberger v. United States, 284 U.S., 299 (1932). Hudson, 522 U.S., at 107 

(Stevens, J. concurring in the judgment). Under the "same-elements" test, "two provisions are 

not the 'same offense' if each contains an element not included in the other." !d. (quoting United 

States v. Dixon, 509 U.S. 688, 696 (1993). Nevertheless, Justice Stevens emphasized that "the 

Government cannot use the "civil" label to escape entirely the Double Jeopardy Clause's 

command, as we have recognized for at least six decades." !d. at 110. (citations omitted). 

Additionally, both Justice Stevens and Justice Breyer cautioned against "evaluating a 

statute only on its face, rather than assessing the character of the actual sanctions imposed." 

Hudson, 522 U.S., at 116 (Breyer, J. concurring in the judgment) (internal quotations and 

citations omitted). Justice Breyer also agreed that "it seems quite possible ... that a statute that 

Page 12 of 18 
provides for a punishment that normally is civil in nature could nonetheless amount to a criminal 

punishment as applied in special circumstances." !d. at 116-1 7. 

V. DISCUSSION AND ANALYSIS 

As noted earlier herein, the Respondent, Mr. Pennywitt, was first indicted on federal 

criminal charges, and then the FAA filed civil charges against him. Mr. Pennywitt pled guilty in 

2013 to one violation of 18 U.S.C. § 39A, the newly enacted federal criminal statute. Mr. 

Pennywitt still faces the FAA's continued prosecution of the civil charges, and is challenging the 

constitutionality of such government action. 

Mr. Pennywitt is one of the first individuals to be charged, both with the newly enacted 

2012 federal criminal statute, and with the FAA's civil regulation, for the act of laser pointing at 

an aircraft. Nevertheless, the question of whether the Double Jeopardy Clause prohibits the 

prosecution of a violation of 18 U.S.C. § 39A and a civil prosecution for a violation of 14 C.P.R. 

§ 91.11 was recently addressed in United States v. Smith, No. 8:12- CR- 252, 2013 WL 

1386638 (D. Neb. Apr. 4, 2013) (Mem. and Order), aff'd on other grounds, 765 F.3d 1070 (8th 

Cir. 2014), pet. for cert. filed, No. 14-6462 (Sept. 24, 2014). 

On August 22, 2012, a federal grand jury indicted Michael Smith for one violation of 18 

U.S.C. § 39A, in which Mr. Smith was alleged to have aimed a laser beam at an Omaha Police 

helicopter on or about July 11, 2012. !d. at *1. Approximately two (2) months later, on October 

16, 2012, the FAA served Mr. Smith with a Notice of Proposed Civil Penalty, alleging that he 

had also violated 14 C.P.R.§ 91.11 during the July 11, 2012laser beam incident. !d. Three 

months later, in January 2013, "the FAA notified Smith by letter" that it was seeking "a $9,000 

civil penalty" for the July 11, 2012 incident, on the basis that it was 'warranted and 

appropriate."' !d. The FAA also notified Mr. Smith that it intended to issue a Final Notice of 

Proposed Civil Penalty, which would cause Mr. Smith to suffer "indebtedness" for the proposed 

$9,000 amount, ''to the United States." !d. 

Upon receipt of the FAA's January 2013 "letter", Mr. Smith immediately moved in the 

U.S. District Court to dismiss the pending federal criminal charges with prejudice, on the ground 

of double jeopardy. The assigned U.S. Magistrate recommended that the motion be denied. Mr. 

Smith objected, and asked for review by the U.S. District Court Judge. !d. at 1. 

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During judicial review, Mr. Smith argued that the U.S. Attorney's criminal prosecution 

against him violated the Double Jeopardy Clause because "the FAA ha[d] already imposed what 

amounted to a criminal penalty for the same conduct alleged in the pending indictment." Jd at I. 

Mr. Smith cited to the Hudson case, and claimed that the nature of the FAA's proceedings, and 

the amount of the civil fine, made "the purportedly civil proceedings punitive in nature for 

purposes of the Double Jeopardy Clause." !d. 

In its decision, the District Court first noted that the FAA had stayed issuance of the Final 

Notice of Proposed Civil Penalty to "avoid 'impeding"' the criminal prosecution. !d. As a result, 

no civil penalty had been imposed against Mr. Smith, and the criminal action remained the first 

proceeding Mr. Smith faced. Thus, the U.S. District Court Judge specifically did not address the 

question as to whether the FAA's proposed civil penalty was so punitive in purpose or effect as 

to transform it into a criminal penalty, or, assuming it was a criminal penalty, whether jeopardy 

had attached to the FAA proceeding. !d. at 2. 

Then, instead of discussing and applying the Hudson analysis, the District Court Judge 

looked to see ifthe FAA's civil regulatory elements were identical to the federal criminal statute, 

utilizing the "same elements" test identified in Blockburger and discussed by Justice Stevens in 

his concurring opinion in Hudson. As a result, the District Court found that "prosecution under 

both provisions was not barred by the Double Jeopardy Clause." !d. The Court reasoned as 

follows: 

To show a violation of§ 39A, the government must prove Smith knowingly 

aimed the beam of a laser pointer at an aircraft, but need not show that this 

actually interfered with the performance of a crewmember's duties. To have 

violated§ 91.11, on the other hand, Smith must have actually interfered with the 

performance of an aircraft crewmember' s duties, but need not have used a laser 

pointer to do so. Under Blockburger, these do not constitute the same offense. 

!d. at2. 

In essence, the District Court in Smith avoided the Hudson analysis, which looked at 

multiple factors in reviewing a claim of double jeopardy. 

As noted earlier herein, the Hudson Court applied a two-part test analysis to evaluate the 

banking officers' double jeopardy claim. The first part ofthe test was to determine "whether the 

Page 14 of 18 
legislature, 'in establishing the penalizing mechanism, indicated either expressly or impliedly a 

preference for one label or the other"' [i.e., criminal or civil label]. Hudson, at 101. 

In the instant case, the FAA's authority to pursue civil penalties is found in 49 U.S.C. 

§ 46301, titled "Civil Penalties." Section 46301(d)(2) provides in part that the FAA 

Administrator "may impose a civil penalty for a violation of ... Chapter 44 7 (except sections 

44717 and 44719-44723)." (emphasis added). The statute's provision of authority on the FAA 

Administrator to assess the penalty is, in itself, "prima facie evidence that Congress intended to 

provide for a civil sanction." Hudson, 522 U.S. at 103. The Respondent in this case is charged 

with violating 14 C.F .R § 91.11, which is a regulation prescribed under Chapter 44 7. 4 Therefore, 

Congress has expressly indicated a preference that the civil label (i.e., not a criminal label) attach 

to any penalty assessed for a violation of 14 C.F.R. § 91.11. 

The second part of the Hudson test is to evaluate those cases where the legislature "has 

indicated an intention to establish a civil penalty" and 'determine whether the statutory scheme is 

so punitive either in purpose or effect "as to 'transfor[m] what was clearly intended as a civil 

remedy into a criminal penalty."' !d. at 101. As discussed earlier herein, as part of this second 

test analysis, the Hudson Court utilized the following seven (7) "guidepost" factors (not 

exclusive) listed in Kennedy. These factors are addressed in this case below. 

(1) Whether the civil sanction involves an affirmative disability or restraint. 

Imposing a money penalty on the Mr. Pennywitt does not involve an affirmative restraint. 

There is no incarceration, probation, or any other restriction on Mr. Pennywitt's movements. 

While Mr. Pennywitt has argued that his work and professional career has been permanently 

damaged by his felony conviction, this damage,has not been imposed by any civil sanction. It has 

been a consequence of the criminal conviction. As a result, it cannot be used in evaluating the 

purpose and effect of the civil statutory scheme. Nevertheless, the potential damage to Mr. 

Pennywitt's career and earning capacity may certainly be addressed during the consideration of 

what civil penalty should be imposed, under a "totality of circumstances" review. 

4 The original authority for the promulgation of 14 C.F.R. § 91.11 was 49 U.S.C. § 1421. 26 Fed. Reg. 7009 (Aug. 4, 

1961) Following the recodification and reorganization of Title 49, section 1421 currently appears at 49 U.S. C. 

§ 44701. 

Page 15 of 18 
(2) Whether a monetary fine has historically been regarded as a "punishment." 

Civilly imposed money penalties have not historically been viewed as "punishment." 

Hudson at 104. In discussing this factor, the Hudson Court noted that ''the payment of fixed or 

variable sums of money" in a civil sanction "has been recognized as enforceable by civil 

proceedings since the original revenue law of 1789." !d. at 104 (quoting Helvering v. Mitchell, 

303 U.S. 391,400 (1938)). In this case, the FAA seeks to impose a variable monetary sanction 

against Mr. Pennywitt, which historically has not been regarded as a "punishment." 

(3) Whether the civil sanction comes into play only on a finding of scienter. 

"Scienter" refers to an individual's state of mind, or knowledge. Section 46301(d)(2), 49 

U.S.C., allows imposition of a civil penalty "for a violation of' 14 C.F.R. § 91.11 without regard 

to the Respondent's state of mind. Obviously the FAA must prove the laser pointing incident 

served to "assault, threaten, intimidate, or interfere with a crewmember" but these elements 

might be proven without any malicious or specific intent. Thus, the Respondent's scienter does 

not control whether a civil violation of Section 91.11 is found, or whether a civil penalty should 

be assessed. Under the Hudson analysis, this lack of scienter lends weight to finding that the civil 

sanction is not criminal in nature. Hudson, at 104. Nevertheless, Mr. Pennywitt's knowledge or 

intent in the laser pointing incident in this case may certainly be considered when determining 

the amount of the civil penalty. 

(4) Whether the operation of the civil regulation will promote the traditional aims 

of punishment-retribution and deterrence. 

The presence of a deterrent purpose or effect in a civil regulation and monetary fine is not 

dispositive. A civil penalty may serve as deterrence, without converting such penalty into the 

functional equivalent of a second criminal prosecution. Hudson, at 102. The FAA has been given 

the authority to assess civil penalties to help to deter future violations of its regulations. This may 

very well feel like a "punishment" to the Respondent, but such perception does not automatically 

convert the FAA's exercise of its regulatory sanction authority into a criminal punishment, in 

violation ofthe double jeopardy clause. Id at 105. 

Page 16 of18 
( 5) Whether the behavior to which the regulation applies is already a crime. 

Clearly the laser pointing behavior identified in 14 C.F .R. § 91.11 is also a federal crime. 

Mr. Pennywitt has already pled guilty to the criminal violation of 18 U.S. C.§ 39A for the June 4, 

2012 incident. However, this factor alone is not determinative in a double jeopardy evaluation, 

because it is "well settled that Congress may impose both a criminal and a civil sanction in 

respect to the same act or omission." United States v. Ursery, 518 U.S. 267, 292 (1996) (quoting 

Helvering, 303 U.S. 391 at 399). 

( 6) Whether an alternative purpose to which the civil remedy may rationally be 

connected is assignable for it. 

According to the FAA's civil penalty sanction guidance, a civil penalty assessment 

should deter both future violations by the party against whom it is assessed, and also help deter 

future violations by others. Ideally, these goals educate both the individual and the public, and 

help improve the overall safety ofthe aviation industry. Civil penalty actions help the FAA fulfill 

its mission to further the public interest by "assigning, maintaining, and enhancing safety and· 

security as the highest priorities in air commerce." 49 U.S.C. § 40101(d). These are rational 

goals, directly related to the FAA's congressionally mandated mission. 

(7) Whether the civil sanction appears excessive in relation to the alternative 

purpose assigned 

The FAA is asserting that Mr. Pennywitt should be assessed the maximum amount of 

$11,000 in civil sanction for the June 4, 2012laser pointing incident. In response, Mr. Pennywitt 

asserts that such sanction is unreasonable on its face, particularly given his criminal conviction 

and punishment. Even if it is assumed, hypothetically, that the proposed $11,000 civil sanction in 

this case might be excessive, that does not trigger the Double Jeopardy Clause protection for the 

civil regulation as a whole. 

Congress has established, in 49 U.S.C. § 46301(a)(5)(A), the civil penalty range of$0.00 

to $11,000 for violations of Section 91.11 by an individual. This is a variable amount, subject to 

administrative review. In this case, Mr. Pennywitt still has the opportunity to present evidence 

and ask for consideration of the "totality of the circumstances" in challenging the FAA's 

proposed fine of$11,000. Factors considered in addressing the "totality of the circumstances" for 

determining an appropriate civil penalty, include (not exclusive): (1) the nature and 

Page 17 of 18 
circumstances of the violation; (2) the extent and gravity of the violation; (3) the person's degree 

of culpability; ( 4) the person's history of prior violations, if any; (5) the person's ability to pay the 

civil penalty; (6) the effect on the person's ability to stay in business; and (7) other matters as 

justice may require." In re Folsom's Air Service, Inc., FAA Order No. 2008-11 at 11 (Nov. 6, 

2008). Such a statutory scheme, which allows for a respondent to challenge and provide evidence 

in opposition to the FAA's proposed civil penalty in any individual case, is not excessive in 

relation to its purpose. 

VI. CONCLUSION 

Based on the language of 49 U.S.C. § 46301, the money penalties provided for in 49 

U.S.C. § 46301 were clearly intended to be civil penalties. After analysis of the statutory penalty 

scheme under the factors enumerated in Hudson, the statutory scheme is not so punitive in 

purpose or effect to override that intent and transform the FAA's civil penalty enforcemel).t 

actions to "multiple criminal punishments for the same offense." Therefore, the Double Jeopardy 

Clause does not prevent the FAA's civil penalty case charging the Respondent with a violation 

of Section 91.11 from proceeding. 

Based on the foregoing and pursuant to 14 C.F.R. §§ 13.205(a)(8) and 13.218(t)(2), and 

after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The Respondent's Motion to Dismiss on the Ground of Double Jeopardy is denied. 

2. A separate order shall issue on or before November 21, 2014 on the FAA's Motion for 

Summary Judgment. 

Attachment: Service List 

Page 18 of18 
SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0005 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Office of the Regional Counsel, AS0-7 

Southern Region 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Tyler Pennywitt 

Respondent 

4483 Hanover Park Drive 

Jacksonville, FL 32224 

TEL: 904-252-1356 

FAX: 904-928-0909 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-31 0) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

ONE COPY 

FDMS No. FAA-2013-0716 

(Civil Penalty Action) 

5 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 

20591, Attention: Hearing Docket Clerk, AGC-430.