US DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

' Docket No. FAA;zoB-0716 

RECEIVE

MAY 2 8 2014 

HEARING DOC

FAA Case No. 201250150128 

vs. 

TYLER PENNYWITT, 

Respondent. 

Judge Sullivan 

MOTION TO DISMISS 

RESPONSE TO MOTION FOR SUMMARY JUDMENT 

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 of law: 

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 the State 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 of the 

helicopter without realizing it was powerful enough to actually reach the helicopter. Additionally, the 

letter went on to explain that Respondent was showing the laser to his three year old son while playing 

in the back yard of their house. They were stargazing and pointing the laser at various stationary objects 

and into the sky when the helicopter flew into that airspace. The letter indicated that Respondent 

shined the laser at the helicopter with no intent to harm without realizing it was a crime. Therefore he 

had no intent to commit any harm or crime (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 from the FAA since an FAA Memorandum concerning the applicability of assessing a civil penalty 
for this type of violation was included in discovery and referenced in reports of investigation. (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 the July 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. Respondent then 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 of shining the laser at the helicopter, (Exhibit R·S). Respondent brought this to the attention of 

Attorney Stone who reviewed the letter and determined that it was an administrative matter that was 

out of his legal area of practice. Attorney Stone advised Respondent he would need to retain an 

administrative FAA lawyer for 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 settle the matter or pay the $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 letter to 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 

penalty to make such a claim. 

Importantly, the January 3, 2012 letter from Stevenson merely indicated the FAA would propose 

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 if there 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 at a hearing the FAA would propose the $11,000 maximum penalty. 

The notice gave Respondent 30 days to respond in writing if the 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 a complaint of some kind 

is usually filed with a court or hearing office set up to hear such complaints. Then the respondent is 
summoned and ultimately a hearing office or magistrate decides the issues and if it imposes a penalty it 

sets the amount as well. In that respect, the threat that the FAA would propose a civil penalty in the 

amount of $11,000 did not appear to be sufficient to allege double jeopardy. 

' 

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 nothing to 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 alternative was to wait for the civil or administrative 

suit to follow and then possibly try to convince the FAA to dismiss in lieu of the criminal sanctions that 

were likely to follow. 

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 of the 

incident and more than 90 days after the notice and nothing happened. Therefore Attorney Stone 

advised Respondent to sign the plea agreement that had been negotiated and a change of plea hearing 

was set for April10, 2013. 

Interestingly, the third letter from the FAA was sent to Respondent on April11, 2013. It was 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 or the civil penalty would 

be ordered. (Exhibit7) 

Respondent provided that letter to Attorney Stone who was reluctant to 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 of double jeopardy. 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 by this letter and 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 after the Respondent had been sentenced before 

issuing a final order imposing the $11,000 civil penalty. That order was stamp dated August 8, 2013 but 
not dated in the certificate of service. Coincidentally, that letter was prepared and sent one week afte

the Court imposed sentence (Exhibit 9) 

lEGAl ANALYSIS: 

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 Respondent to go forward with the 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 dismis

on double jeopardy grounds would have been filed prior to sentencing. Therefore Respondent entered 

the plea and proceeded through sentencing without the benefit of filing a motion to dismiss on tha

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. Th

inclusion of that letter was to suggest the $11,000 penalty was being proposed by the FAA and if tha

occurred that would be punishment enough. Therefore the Government was on notice the additiona

penalties were being proposed but no action was taken to ensure against the Respondent bein

subjected to double punishment for the same crime. Attorney Stone also discussed the proposed civ

penalty with the Government and was given no specific information concerning the intentions of th

FAA regarding the pursuit of the civil penalty. 

Reports prove the FAA was instrumental in pushing for this prosecution. In fact, reports tha

preceded the filing of this federal case verify the FAA through its agents were involved in the decision t

ensure the Respondent was punished criminally. Attorney Stevenson's own letter verifies he was priv

to Attorney Friday's letter dated July 6, 2012. 

It is unconstitutional for the FAA to insist upon criminal prosecution with the intent to als

impose significant civil penalties not tied to any specific loss for the exact same transaction an

occurrence. More distressing is that an attorney representing the same governmental agency that 

pushing for criminal sanctions appears to have waited in the tall grass for Respondent to step into a tra

and then he pounced. The implication being that the FAA did not want to create a double jeopard

defense by acting before the criminal case was concluded. As a result, Respondent has been subjecte

to double punishment for the same crime. 

CASE LAW: 

The United States Supreme Court has set out a two-part test for determining whether civ

penalties rise to the level of punishment and preclude criminal prosecution for the same conduct. Th

first question is whether the civil penalties concern the same conduct as the criminal proceedings. Th

second question is whether the civil penalties rise to the level of criminal punishment "because of th

lack of rational relation to the Government's loss." U.S vs. Halper, 490 U.S 435, 109 S. Ct. 1892, 104 
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 

motion to dismiss bas~d on double jeopardy would be well taken and entered in f~vor of Respondent 

CONCLUSION 

The Motion for Summary Judgment submitted by the FAA states "While Respondent was 

criminally convicted, he was hardly punished beyond the mere fact of that conviction, only being 

required to serve one year of probation and perform minimal community service." A federal felony 

conviction is not a light punishment. The felony conviction has had and will continue to have a dramatic 

impact on the Respondent's life for the remainder of his life. 

The Respondent is the sole provider for his family- wife and 2 young children. His employer is 

aware of his current legal situation and they have been supportive. Nevertheless, they hired him with 

the expectation that he would become a CPA. Background checks are part of the certification process 

and those with felony convictions are denied entry as a matter of course. Any CPA firm will not be able 

to employee a convicted felon for obvious reason. His earning capacity is therefore, greatly diminished 

for the remainder of his life. 

The Respondent's felony conviction also impacts his ability to be productively involved in his 

childrens' lives. This includes involvement in their education, sports and recreation. Essentially, all of 

these activities are off limits to convicted felons even if the felony has nothing to do with being a danger 

to children. 

The federal felony conviction carries significant ramifications. The Respondent has nothing to 

offer in terms of a settlement due to the extreme financial hardship the criminal cases in the State and 

Federal courts have cause him. Given the nature of the offense, the fact that the civil penalty is not tied 

to any specific loss, the harshness of the civil penalty being imposed by the same agency that promoted 

the criminal prosecution, a motion to dismiss this case is appropriate. 

WHEREFORE, Respondent respectfully requests that the Judge grant Motion to Dismiss and affirm the 

Respondent in its entirety. 

Respectfully submitted this 2 ( day of May, 2014 
CERTIFICATE OF SERVICE 

Original arid one copy via USPS: 

Federal Aviation Administration 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

800 Independence Avenue, S. W. 

Washington, DC 20591 

One copy via USPS: 

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 

One copy via USPS: 

Judge H. Sullivan 

U.S, Administrative Law Judge 

Office of Hearings, M-20 

U _ S, Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590