## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 31 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant, vs. WILLIAM OXX, JONATHAN OXX, MARTIN TILLY, CHRISTOPHER BERKE, DAVID KATZ, STEVE MULHOLLAND, JOHN M. HENDERSON, AARON M. BRENNAN, AND MICHAEL KVALE, Defendants-Appellees. No. 96-4173

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. No. 96-CR-077 J)
Lisa E. Jones, Department of Justice, Washington, D .C. (Lois Schiffer, Assistant Attorney General, Washington, D.C., Scott M. Mathes on, Jr., United States Attorney, Wayne Dance, Assistant United States Atto rney, Salt Lake City, Utah, and M. Alice Thurston, Department of Justice, Washi ngton, D.C. with her on the brief, and Kevin Jones, Department of the Interior, Salt Lake City, Utah, of counsel), for Plaintiff-Appellant. Fred M. Morelli, Jr., Aurora, Illinois, for Defendants-Appellees.
Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.- 2 -

KELLY, Circuit Judge.
The government appeals from an order dismissing a p etty offense information charging Defendants-Appellees with the delivery of persons by parachute in a national park without a permit and n ot in an emergency, in violation of 36 C.F.R. § 2.17(a)(3) (1996). Our ju risdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3731. We reverse.

Background Defendants are BASE jumpers. “BASE” is an acronym f or buildings, antennae, spans, and earth forms; when a person has completed a jump from each structure he can be certified as a BASE jumper. De fendants’ charges stem from jumps during the week of April 28 to May 3, 1995, w hen they jumped from cliffs on the Utah side of the Glen Canyon National Recreation Area. After a brief free-fall they deployed parachutes, and all but one landed safely on the surface of Lake Powell. The district court dismissed the information becaus e of what it considered incurable ambiguity in the governing regulations. Its rationale was that defendants’ BASE-jumping parachutes were somewhat s imilar to non-powered aircraft, which are allowed on Lake Powell under 36 C.F.R. § 2.17(a)(1) and § 7.70(a)(6) (1996). The court ruled that these pr ovisions conflicted with a- 3 -

phrase in §2.17(a)(3) which prohibits delivery of aperson by “other airborne means” without a permit. That phrase, the court sa id, clearly prohibits landing a plane on Lake Powell, in contradiction of the provi sions allowing it. Under these circumstances the district court held the regulatio ns did not adequately notify the average person what conduct was prohibited, and the rule of lenity required the incurably ambiguous regulations to be construed in favor of the defendants. On appeal the government argues that the applicable re gulation suffers from no ambiguity and is clear enough on its face to give d efendants notice that their conduct was prohibited.

Discussion Although we generally review the dismissal of an in dictment or information for abuse of discretion, we review de novo a dismis sal based on the district court’s interpretation of the governing law. See United States v. Wood , 6 F.3d 692, 694 (10th Cir. 1993). As with any question of interpretation, we begin wi th the plain language of the regulation, which “must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc. , 447 U.S. 102, 108 (1980). Section 2.17(a)(3) provides: “(a) The following are prohibited: . . . (3) Delivering or retrieving a person or object by parachute, heli copter, or other airborne means,- 4 -

except in emergencies involving public safety or se rious property loss, or pursuant to the terms and conditions of a permit.” 36 C.F.R. § 2.17(a)(3) (1996). Defendants argue, first, that their conduct cannot be regulated under § 2.17(a)(3) because their parachutes provided the kind of control characteristic of non-powered aircraft, which are permitted under § 2.17(a)(1). The district court, although not finding that defendants’ parach utes were “aircraft,” agreed that BASE-jumping parachutes “provide a BASE jumperwith control akin to horizontal flight that enables the jumper effective ly to steer clear of the structure leapt from and to guide the parachute to a safe lan ding area.” Aplt. App. at 22. Thus defendants argue that their activity is covere d by § 2.17(a)(1), which prohibits operation of aircraft except at places de signated by special regulations. The surface of Lake Powell is such a designated lan ding area. See 36 C.F.R. § 7.70(a)(6) (1996). Accordingly the defendants as sert that because their BASEjumping parachutes are really non-powered aircraft, and such aircraft are permitted on Lake Powell, they have not violated th e regulation. This argument, of course, turns on whether the defendants’ BASE-jumping devices are nonpowered aircraft or are parachutes within the meani ng of § 2.17(a)(3). Second, defendants argue that the regulatory prohib ition of “delivering” a person is too ambiguous to cover their conduct. Third, they argue that even if “delivery” unambiguo usly applies to their- 5 -

conduct, a conflict exists between § 2.17(a)(3), wh ich prohibits delivery of a person by “other airborne means” without a permit, and §§ 2.17(a)(1) and 7.70(a)(6), which allow aircraft on Lake Powell. T his ambiguity, they argue, deprived them of adequate notice that their conductwas prohibited. We turn first to the primary issue on appeal: are defendants’ BASEjumping parachutes included within the meaning of “ parachute” in § 2.17(a)(3)? Federal regulations define a parachute as “a device used or intended to be used to retard the fall of a body or object through the air .” 14 C.F.R. § 1.1 (1997). The parachutes at issue here do exactly that. Technolo gical improvements in the shape, maneuverability, and control of modern parac hutes, including those used here, do not make them cease to be parachutes. Def endants uniformly referred to their BASE-jumping apparatus as a “parachute” even while protesting it was something else, see Aplees. Brief at 4, 6, 7, 8, until oral argument, when they began calling the parachute an airfoil. The distri ct court noted in its memorandum opinion that “BASE jumping does involve the use of a parachute.” Aplt. App. at 19. We conclude that the term “parac hute” in § 2.17(a)(3) unambiguously applies to the parachutes used by def endants in BASE jumping. Defendants assert that the word “delivering,” in th e phrase “delivering . . . a person . . . by parachute,” is too ambiguous to c over BASE jumping. 36 C.F.R. § 2.17(a)(3) (1996). “Delivering” is not defined i n the regulations, but we believe- 6 -

it is apparent that moving oneself from one area to another, as defendants did, constitutes delivery. As applied to their conduct, then, “delivering” is unambiguous. Defendants also argue that a facial conflict exists between § 2.17(a)(3), which prohibits delivery by “other airborne means” without a permit, and §§ 2.17(a)(1) and 7.70(a)(6), which permit operatio n of powerless aircraft on Lake Powell. We need not address this supposed amb iguity because the information charged delivery by parachute, not by “ other airborne means.” See Aplt. App. at 1-2. And it charged a violation onlyof § 2.17(a)(3), neither mentioning nor charging a violation of any other st atute or regulation. Because we have held that the term “parachute” in § 2.17(a) (3) unambiguously applied to defendant’s conduct, any ambiguity in the regulatio n of powerless flight is irrelevant. Nevertheless, to answer the contentionthat what is forbidden in § 2.17(a)(3) is simultaneously allowed elsewhere, w e note that § 2.17(a)(3) only prohibits airborne delivery without a permit. Whenread together, so that each provision has meaning, there is no more conflict be tween the regulations than there is between one rule that allows a person to d rive a car on the roads and another that requires her to have a permit to do so . The rule of lenity may not be invoked to manufacture ambiguity. See Albernaz v. United States , 450 U.S. 333, 342 (1981) (“Where Congress has manifested its inte ntion, we may not- 7 -

manufacture ambiguity in order to defeat that intent.”) (quoting Bifulco v. United
States , 447 U.S. 381, 387 (1980). Because there is no ambiguity in the language of th e regulation, defendants had adequate notice of the illegality of their cond uct. Since “parachute” and “delivering” clearly applied to the defendants’ act ivity, we conclude the regulation “made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” United States v. Lanier , 117 S. Ct. 1219, 1225 (1997). In the absence of ambiguity, the rule of lenity—or strict construction—may not be applied. See Moskal v. United States , 498 U.S. 103, 108 (1990) (stating that the rule of lenity should be applied only if, “[a]fter ‘seiz[ing] everything from which aid can be derived,’” the statute is still am biguous) (quoting United States
v. Bass , 404 U.S. 336, 347 (1971) (quoting United States v . Fisher , 6 U.S. (2 Cranch) 214, 230 (1805) (Marshall, C.J.))); Alberna z , 450 U.S. at 342-43; see also United States v. Wilson , 10 F.3d 734, 736 (10th Cir. 1993) (holding that the rule of lenity “is not applicable unless ‘there is a grievous ambiguity or uncertainty in the language’”) (quoting Chapman v. United States , 500 U.S. 453, 463 (1991)). As a last resort, Defendants attempted at oral argu ment to bring their conduct within the regulatory exception for emergen cies. They suggested that whenever a person jumps off a cliff he is in an eme rgency and may deliver- 8 -

himself by parachute without a permit. That argume nt, of course, will not fly. A parachute by any other name is still a parachute, and delivering a person by parachute is prohibited. As the intent of the regu lation is abundantly clear, “nothing is left to construction.” United States v . Fisher , 6 U.S. (2 Cranch) at
230.
REVERSED.