US DEPARTMENTOFTRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION
FEDERALAVIATION ADMINISTRATION, Complainant, Docket No. FAA-2013-0716 FAA Case No. 2012S0150128 vs. Judge Sullivan 

# RECEIVED AUG 2 52014 

# HEARING DOCKET

TYLER PENNYWITT, Respondent.



### SUPPLEMENTAL SUBMISSION ON MOTION FORSUMMARYJUDGEMENT By Order dated June 27, 2014, the Judge instructed the Respondent to file: (3a) Any proof of mailing by the FAA attorney of the Respondents request for Hearing dated April 17, 2013. (b) The financial documents thatthe Respondent submitted to the United States Attorney's Office as part of his criminal case in the U. S. District Court. (c) Any new financial documents that the Respondent would like to submit, from the date of his criminal sentencing in 2013 to the present, to supplement his assertions of financial hardship (d) Any documentation regarding the type and extent of community service performed by the Respondent in accordance with his federal criminal sentence. In response to (3a), The FAA Final Notice of Proposed Civil Penalty dated April 11, 2013, instructed the Respondent to request a hearing within 15 days via expedited courier to the Hearing Docket Clerk. The copy ofthis certified mailing has been provided. The Notice further instructed that a copy ofthe hearing request must be sentto Attorney Stevenson via U.S. Mail. This mailing occurred at the same time as the certified letter; however, there is no documentation for regular mail. It is unfortunatethat FAA attorney's office did not receive orcannot locate the request. However, Attorney Stevenson has confirmed that the Hearing Docket Clerk did receive the certified mailing in a timely manner. The Respondent has included the following Exhibit in response to (3b): 1. The Presentence Report Financial Condition/Abilityto Pay (Exhibit R-10) The Respondent has included the following Exhibits in response to (3c): 1. The Respondent's 2013 Federal IncomeTax Return (Exhibit R-11) 2. The Respondent's monthlyfinancial statements reported to US probation officerforthe months of(February-June 2014) (Exhibit R-12) 3. Also Respondent submits attorney bill for representation in criminal case totaling $10,000. This money was borrowed from afamily memberto be repaid at a later date. (Exhibit R-14)

1The Respondent has included thefollowing Exhibit in response to {3d): 1. The Respondent's MonthlySchedule ofHours Worked forcommunity service submitted tothe US probation officer (Exhibit R-13) The Judge also encouraged to the Respondent to read Hudson v. United States, 522 U. S. 93 (1997) which he has done. Additionally, the Respondent has attached Judge Timothy Corrigan response tothe Motion to Vacate based on Double Jeopardy grounds. (R-15) The ruling refers to Robertson v. U.S. ex rei. Watson, 560 U.S. 272, 275 (2010). In this case, a sovereign cannot bring a second prosecution against adefendantforthe same offense. In response to the Supplemental Submission on Motion for Summary Judgment submitted by Attorney Stevenson addressing the FAA's involvement in my criminal prosecution, theJSO contacted the FAA and Inspector Gramzinski began an investigation into potential violations. The JSO asked Inspector Gramzinski about the FAA pursuing criminal charges against the Respondent. Inspector Gramzinski informed the JSO that the FAA does not bring criminal charges but that the DOT does. Inspector Gramzinski referred the JSO to DOT Special Agent Glenda White and he called herto inform herthat he had referred the JSO to her. Special Agent White contacted JSO and began a criminal investigation. Later, Inspector Gramzinski provided SA White with a copy of the FAA's evidence for exculpatory evidence in the criminal case. Therefore, the FAA was aware that a criminal investigation was being conducted. During the telephone conversation ofSeptember 11, 2012, SA White stated tothe Respondent thatthe FAA is an agency within the DOT (Gov't Exhibit J in Supplemental Submission on Motion for Summary Judgment). This connection allows a reasonable assumption that she was collecting and sharing informationfor both civil and criminal prosecution. This appearance is further supported by the fact that SA Glenda White was in attendance at every criminal court appearance made by the Respondent. Within days afterthe criminal court appearance, the Respondent received USPS mail communication from the FAA. For example, on April 10, 2013 the Respondent was in federal court to enter his guilty plea and on April11, 2013, the FAA issued the Final Notice of Proposed Civil Penalty. On August 1, 2013, the Respondent was sentenced in federal court and on August 8, 2013, the FAA issued the OrderAssessing Civil Penalty. While the FAA did not prosecute the criminal case, there is certainly every appearance thatthe FAA was aware ofeach step ofthe criminal proceedings. During the telephone conference of June 26, 2014, Judge Sullivan asked the Respondent about the circumstances surrounding the laser light incident. While these details were irrelevant during the criminal prosecution, perhaps they bear relevance in the civil court. The Respondent was playing in his backyard with his 3-year old son and a laser light he had recently received as agift. The helicopter was merely an unexpected target in the sky. The Respondent's intentions certainly were notto disrupt the flight path or to cause harm. The specific details of the evening ofJune 4, 2012 are documented in

2Attorney Friday's letterto Inspector Gramzinski (Respondent's Motion to Dismiss, Exhibit R-3) and the Respondent's apology lettertothe JSO helicopter pilot (Respondent's Motionto Dismiss, Exhibit R-3). The Respondent realizes that the FAA is extremely concerned about laser pointers being flashed at aircraft. Nevertheless, this act ofindiscretion was notsomethingthatthe Respondent did with intentto cause adisaster. At the time, he did not realize the significance of his actions. It is incredible thatthe manufacturer is not legally required to issue a warning on the label of these products. To that end, Respondent now realizes the potential adverse consequences ofhis actions, has expressed remorse, and has completed all the restitutions ordered bythe criminal court.

# :~~ctfully**sub~itte?jis**

# /1day ofAugust, 2014 

# u 7 

# .;/1**r~yv**

TylerJ.

# Penny~ Respondent

3CERTIFICATE OF SERVICE

Original and one copy via USPS: Federal Aviation Administration Attention: Hearing Docket Clerk, AGC-430 WilburWright Building -Suite 2W1000 800 Independence Avenue, S. W. Washington, DC 20591
One copy via USPS:

Mr. Christopher R. Stevenson Complainant's Counsel Office ofthe Regional Counsel, AS0-7 Southern Region Federal Aviation Administration P.O. Box 20636 Atlanta, GA 30320
One copy via USPS: Judge J.E. Sullivan U.S. Administrative Law Judge Office of Hearings, M-20 U.S. DepartmentofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590

# EXHIBITS R-10 Through R-14 Are Located AtThe FAA Hearing Docket But Are Not PubliclyAvailable As Per ALJ Sullivan's Instructionstothe Hearing Docket Vicki Leemon, AGC-430

### (Exhibit R-15)

## TylerJ. Pennywitt From: Sent: To: Subject: Mitch Stone [mitch@stonelockett.com] Thursday, July 10,201411:10AM TylerJ. Pennywitt Judge denied our motion but I suggest using this orderto move to dismissthe FAAcase 

## PENNYWITT

## v. U.S.c> '•!(i'i. ; H ;, ,; ,. JOHNTYLER PENNYWIIT, Petitioner, 

### v. UNITEDSTATES OFAMERICA, Respondent. United States District Court, MD. Florida, Jacksonville Division. July 7, 2014. John TylerPennywitt, Petitioner, representedbyMitchellA. Stone, Stone Lockett. United States ofAmerica, Respondent, representedbyJay Carl Taylor, USAttorney's Office. 

### ORDER TIMOTHY J. CORRIGAN, DistrictJudge. This case is before the Court on Petitioner's Motion to Vacate and SetAside Judgmentand Sentence (Doc. 1), to which the government responded. (Doc. 6). Pursuantto Rule 8(a) ofthe Rules Governing Section 2255 Proceedings, the Court has determined that an evidentiary hearing is not necessaryto decide the instant petition. Petitionerwas indicted on October4, 2012 on two counts, which alleged that he knowingly aimed the beam ofa laser pointer at an aircraft in the special aircraftjurisdiction ofthe United States on two occasions. (Doc. 1 at2). Subsequently, Petitionerwas informed thatthe FAA soughtan $11,000 penalty against him forthe same conduct. (Doc. 1 at 3). Petitioner pled guilty to one count ofthe criminal indictmentand, on August 1, 2013, was sentenced to one yearof probation. (Doc. 1 at 7). On August 8, 2013, the FAA issued a final order imposing the $11,000 penalty against Petitioner. (Doc. 1 at 7). Petitioner contested the imposition ofthe fine, and administrative proceedings overthe fine are underway. (Doc. 6 at 2). A final hearing in that case is set for September2014, and Petitionerwill be able to appeal any adverse judgment. (Doc. 6 at2-3). Ratherthan appeal from his criminal sentence, Petitionerflied a motion under28 U.S.C.§2255 on August 14, 2013. (Doc. 1 ). Petitionerseeks to vacate and setaside his criminal sentence and judgment so that he can move to dismiss the charges against him on doublejeopardy grounds. (Doc. 1). Petitioner argues that, until the imposition ofany civil penalty, he was unable to moveto set aside his plea or move to dismiss the charges against him on doublejeopardy grounds. (Doc. 1 at 7). Had Petitioner known that the FAAwould assess a civil penalty as soon as he was sentenced, he would have moved to dismiss the indictmenton doublejeopardy grounds, and not gone forward with sentencing. (Doc. 1 at 7). Indeed, Petitioneralleges that the FAAwaited to impose the civil fine until after his criminal case was overto avoid any potential doublejeopardy defense. (Doc. 1 at 8). Underthe Double Jeopardy Clause, a sovereign cannot bring a second prosecution against a defendantforthe same offense. Robertson v. U.S. ex rei. Watson, 560 U.S. 272, 275 (2010). Petitionerdoes not, however, seek to prevent a second prosecution1 Instead, Petitioner asks this Courtto go back in time and vacate his first prosecution in light ofa later proceeding.

1Petitioner cannot have his choice ofwhich proceeding he would like to challenge. He was prosecuted for, pled guiltyto, and was sentenced fora crime before any civil fine was imposed. As such, his prosecution, the government's first attempt to punish him for his misconduct, did notviolate the Double Jeopardy Clause. Whethera subsequent proceeding in anotherforum violates the Double Jeopardy Clause is notforthis Courtto decide. Accordingly it is hereby ORDERED: Petitioner's Motion to Vacate and SetAside Judgment and Sentence (Doc. 1) is DENIED. DONE AND ORDERED 

### FOOTNOTES

1. It is unclearwhether any potential civil fine levied by the FAA would 

### even qualify as a criminal punishment underthe Double Jeopardy Clause underthe criteria laid out in Hudson

### v. United States, 522 lJ**S~93** (1997). However, this Court need not address that issue.



## madtett

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