US DEPARTMENTOFTRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION

FEDERALAVIATION ADMINISTRATION, Complainant, ' Docket No. FAA;zoB-0716 

# RECEIVED MAY 2 82014 

# HEARING DOCKET

FAA Case No. 201250150128 vs. TYLER PENNYWITT, Respondent. Judge Sullivan



### MOTION TO DISMISS RESPONSE TO MOTION FOR SUMMARYJUDMENT Respondent, Tyler Pennywitt, hereby moves this Court to dismiss on the grounds Motion for Summary Judgment violates Respondent's 5th Amendment constitutional right against double jeopardy. As grounds, Respondent files the following memorandum oflaw: 

### MEMORANDUM OF LAW FACTS: On June 4, 2012 Respondent was arrested for shining a laser pointer at an aircraft. An arrest report was filed (Exhibit R-1), and Respondent was transported to the Duval County Jail. Specifically, Respondent was alleged to have shined the laser pointer at the police helicopter in violation of Florida Statute S784.062(3)(A). Respondent was charged in State court and was incarcerated pending first appearance and a bond hearing. Attorney Eric Friday represented Respondent on theState charges and on June 5, 2012 Attorney Friday secured Respondent pretrial release (Exhibit R-2) On July 6, 2012 Attorney Friday submitted a letter to the State and the Federal Aviation Administration (FAA) explaining that Respondent inadvertently shined the laser in the direction ofthe helicopter without realizing it was powerful enough to actually reach the helicopter. Additionally, the letterwent on to explain that Respondent was showing the laserto his threeyear old son while playing in the backyard oftheir house. Theywere stargazing and pointingthe laseratvariousstationaryobjects and into the sky when the helicopter flew into that airspace. The letter indicated that Respondent shined the laser atthe helicopterwith no intentto harm without realizing itwas a crime. Therefore he had no intentto commitany harm orcrime (Exhibit R-3). That letter was submitted to the Federal Aviation Administration (FAA) and routed to case agent, Special Agent Glenda White. Reports confirm that the resulting investigation directly involved advice fromthe FAA since an FAA Memorandum concerning the applicability ofassessing a civil penaltyforthistype ofviolation was included in discovery and referenced in reports ofinvestigation. (Exhibit R· 

### 4) Special Agent White and FAA Aviation Safety' Inspector Joseph Gramzinski were involved in requesting the United States Attorney's Office to 

# file federal charges against the Respondent for violation of 18 USC Section 39A. In that regard, the July 6, 2012 letter from Attorney Friday caused concern due to the potential defenses it suggested. However, the elements of proof necessary in the newly enacted federal statute would not provide the Respondent those potential defenses outlined by my attorney in theJuly 6, 2012 letter. As a result, on October 4, 2012 Respondent was indicted on federal charges. On October 9, 2012, Respondent was arrested and released on an unsecured $10,000 bond with conditions of pretrial release. Respondentthen retained Attorney Mitch Stone on advice from Attorney Friday. On December 11, 2012, Office of Regional Counsel Attorney Christopher R. Stevenson sent Respondent a letter noticing him the FAA was proposing a civil penalty of $11,000 for Respondent's actions ofshining the laser at the helicopter, (Exhibit R·S). Respondent broughtthis to the attention of Attorney Stone who reviewed the letter and determined that itwas an administrative matter that was out of his legal area of practice. Attorney Stone advised Respondent he would need to retain an administrative FAA lawyerfor advice. On Jan 3, 2013, the FAA sent Respondent a second letter amending the notice to correct a typographical error in the first notice. The letter was identical to the first letter in that both letters contained the same language as for as the indication would be proposing an $11,000 civil penalty. This letter like the first gave Respondent 30 days to respond to the offer to enter into informal negotiations to settlethe matterorpaythe $11,000 civil penalty, (Exhibit R-6). Since Respondent could not afford to hire a lawyer who specialized in FAA administrative law, Respondent brought the letterto Attorney Stone, who explained this was out of his area of expertise. However, it was discussed that if the FAA succeeded in obtaining a civil penalty of $11,000 against Respondent the he would have a potential double jeopardy claim as to the pending federal criminal charges. Importantly, the Attorney Stone opined that the FAA would in fact have to impose the civil penaltyto make such aclaim. Importantly, theJanuary 3, 2012 letterfrom Stevenson merely indicatedthe FAAwouldpropose a penalty in the amount of $11,000. It offered an opportunity to engage in an informal negotiation or simply agree to pay the fine. The implication was that ifthere was no response to participate in the informal process a formal process would start via some sort of civil or administrative complaint or lawsuit and atahearingthe FAAwould propose the $11,000 maximum penalty. The notice gave Respondent 30 days to respond in writing ifthe decision was to engage in the informal negotiations. Nowhere did it say a failure 

### to respond would result in the imposition of the proposed civil penalty without due process. In most administrative processes acomplaint ofsome kind is usually filed with a court or hearing office set up to hear such complaints. Then the respondent issummoned and ultimately ahearing office ormagistrate decides the issues and if it imposes apenalty it sets the amount as well. In that respect, the threat that the FAA would propose a civil penalty in the amountof$11,000 did notappearto be sufficientto allege doublejeopardy.

' Since Respondent did not have the funds to hire an attorney to defend the administrative case,: the decision was to not engage in informal negotiations. Importantly, Respondent had nothingto offer in terms of a settlement due to the extreme financial hardship the criminal cases in the State and Federal courts had caused him. Therefore the only alternativewas to waitforthe civil oradministrative suit to follow and then possibly try to convince the FAA to dismiss in lieu ofthe criminal sanctions that were likelytofollow. Therefore respondent did not opt to negotiate an informal settlement or pay the proposed $11,000 fine. Rather, Respondent let the 30 day time limit pass and waited to see if a complaint or lawsuit was filed against him. Nothing happened. In fact, it was several months from the date ofthe incident and more than 90 days after the notice and nothing happened. Therefore Attorney Stone advised Respondent to sign the plea agreementthat had been negotiated and a change of plea hearing was setforApril10, 2013. Interestingly, thethird letterfromthe FAAwas sentto Respondent on April11, 2013. Itwas not received until several later days later. Coincidentally, Respondent was supposed to have entered his plea on April 10, 2013. However, due to inadvertent changes to the plea agreement that had to be corrected the change of plea hearing was reset to April17, 2013. That April11, 2013 letter indicated it was a final notice, but again only suggested that a proposed civil penalty would be assessed in the amount of $11,000. This letter allowed another 15 days to request a hearing orthe civil penalty would be ordered. (Exhibit7) Respondent provided that letterto Attorney Stone who was reluctantto get involved but felt it was important to stop an automatic civil penalty from being imposed and to see if the FAA would actually file the complaint since the Respondent was entering a plea on April 17, 2013. To that end, even if a change of plea had occurred, followed by the imposition civil penalty, the Respondent would still be able to raise the issue ofdoublejeopardy. Therefore Attorney Stone submitted a certified letter requesting a formal evidentiary hearing to the FAA copying Attorney Stevenson as directed (Exhibit 8). It should be noted that the Respondent have not been afforded a formal evidentiary hearing as requested bythis letterand received by Mr. Stevenson's office. Neither the FAA nor Attorney Stevenson responded to Attorney Stone's letter dated April 17, 2012. No hearing was set, no suit filed and no communication in response to the letter occurred for close to four months. This gave Attorney Stone and Respondent the impression that the FAA had forgone the decision to proceed with this action, therefore Respondent proceeded to sentencing on August 1, 2013. Interestingly, Attorney Stevenson waited until afterthe Respondent had been sentenced before issuing afinal order imposingthe $11,000 civil penalty. That orderwas stamp dated August 8, 2013 butnotdated in the certificate ofservice. Coincidentally, that letterwas prepared and sent one week after the Court imposed sentence (Exhibit9) 

### lEGAlANALYSIS: Since months had passeq and the FAA had been proposing a civil penalty but had not exacted such punishment and Attorney Stone was unfamiliar with FAA administrative procedures regarding same, Attorney Stone advised the Respondenttogo forward withthe sentencing. Had the Respondent known the Order Assessing Civil Penalty would immediately follow sentencing, Attorney Stone's recommendation would not have been made. Rather a motion to dismiss on double jeopardy grounds would have been filed priorto sentencing. Therefore Respondent entered the plea and proceeded through sentencing without the benefit offiling a motion to dismiss on that basis. To add confusion to this, Attorney Stone had submitted the Amended Notice dated January 3, 2013 to the United States Attorney's Office in a mitigation packet requesting Pretrial Diversion. The inclusion ofthat letterwas to suggest the $11,000 penalty was being proposed by the FAA and ifthat occurred that would be punishment enough. Therefore the Government was on notice the additional penalties were being proposed but no action was taken to ensure against the Respondent being subjected to double punishment for the same crime. Attorney Stone also discussed the proposed civil penalty with the Government and was given no specific information concerning the intentions of the FAA regarding the pursuitofthe civil penalty. Reports prove the FAA was instrumental in pushing for this prosecution. In fact, reports that preceded the filing ofthis federal case verifythe FAA through itsagents were involved in the decisionto ensure the Respondent was punished criminally. Attorney Stevenson's own letterverifies he was privy toAttorney Friday's letterdatedJuly 6, 2012. It is unconstitutional for the FAA to insist upon criminal prosecution with the intent to also impose significant civil penalties not tied to any specific loss for the exact same transaction and occurrence. More distressing is that an attorney representing the same governmental agency that is pushing for criminal sanctions appears to have waited in thetall grassfor Respondent tostep into atrap and then he pounced. The implication being that the FAA did not want to create a double jeopardy defense by acting before the criminal case was concluded. As a result, Respondent has been subjected todouble punishmentforthe same crime. 

### CASE LAW: The United States Supreme Court has set out a two-part test for determining whether civil penalties rise to the level of punishment and preclude criminal prosecution forthe same conduct. The first question is whether the civil penalties concern the same conduct as the criminal proceedings. The second question is whether the civil penalties rise to the level ofcriminal punishment "because ofthe lack of rational relation to the Government's loss." U.S 

### vs. Halper, 490 U.S 435, 109 S. Ct. 1892, 104 

### l.Ed. 2d 487 (1989). Here, both prongs are met. 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 motiontodismiss**bas~d** on doublejeopardywould be welltaken and entered in**f~vor** ofRespondent



### CONCLUSION The Motionfor SummaryJudgment submitted bythe FAA states "While Respondent was criminally convicted, he was hardly punished beyond the mere fact ofthatconviction, only being required to serve one year ofprobation and perform minimalcommunityservice." Afederal felony conviction is nota lightpunishment. The felony conviction has had and will continueto have adramatic impactonthe Respondent's lifeforthe remainderofhis life. The Respondent is the sole providerforhis family- wife and 2young children. His employer is aware ofhiscurrent legal situation and they have been supportive. Nevertheless, they hired him with the expectationthat he would become aCPA. Background checks are partofthe certification process and those withfelony convictions are denied entryas amatterofcourse. Any CPAfirmwill not be able to employee aconvicted felon for obvious reason. His earning capacity is therefore, greatlydiminished forthe remainderofhis life. The Respondent's felony conviction also impacts his abilityto be productively involved in his childrens' lives. This includes involvement in theireducation, sports and recreation. Essentially, all of these activities are offlimitsto convicted felons even ifthefelony has nothingto do with being adanger tochildren. The federal felony conviction carries significant ramifications. The Respondent has nothing to offer in terms of asettlementdue to the extreme financial hardship the criminal cases in the State and Federal courts have cause him. Given the natureofthe offense, the fact thatthe civil penalty is nottied to any specific loss, the harshness ofthe civil penalty being imposed by the same agency that promoted the criminal prosecution, amotiontodismiss thiscase is appropriate.

WHEREFORE, Respondent respectfully requests thattheJudge grant Motionto Dismiss and affirmthe Respondent in its entirety.

Respectfully submittedthis

# 2 (dayof May, 2014CERTIFICATE OF SERVICE

Original arid one copyvia USPS: Federal Aviation Administration Attention: Hearing DocketClerk, AGC-430 WilburWright Building- Suite 2W1000 800 Independence Avenue, S. W. Washington, DC 20591 One copyvia 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 copyvia USPS: Judge

### H. Sullivan U.S, Administrative LawJudge Office ofHearings, M-20 U

_ S, DepartmentofTransportation 1200 NewJersey Avenue, 

### SE (Ell-310) Washington, DC 20590