## u.s. DEPARTMENT OF TRANSPORTATION

# RECEIvED OFFICE OF HEARINGS FEDERAL AVIATIONADMINISTRATION 

## MAY -5 2014 

## HEARING DOCKET
FEDERAL AVIATION ADMINISTRATION, Complainant,

vs. TYLERPENNYWITT., Respondent. DocketNo. FAA-2013-0716 FAA Case No. 2012S0150128
Judge Sullivan
MOTION FOR SUMMARY JUDGMENT Pursuant to 14 C.P.R. § 13.218(f)(5), and Rule 56(c) of the Federal Rules of Civil Procedure, the FAA hereby moves for summaryjudgment in this matter. No genuine issue of material fact exists to be determined, and the FAA is entitled tojudgmentas a matter oflaw. As grounds for the motion, the FAA states the following. STATEMENT OF THE CASE On April 11, 2013, the FAA issued a Final Notice of Proposed Civil Penalty against Respondent, and the Complaint was filed on August 30, 2013. The Complaint alleged that on or about June 4, 2012, Respondent had aimed a beam oflight from a laser pointer at a Jacksonville Sheriffs Office (JSO) helicopter, illuminating the cockpit and interfering with the crewmembers' performance oftheir duties.**Complaint~~** 

### 1-4. As a result, the Complaint alleged that Respondent had violated§ 91.11 ofthe Federal Aviation Regulations and that a civil penalty of$11,000 was appropriate.**!d.~~** 

### 5-7. In his Answer, the Respondent denied all of the factual allegations. Answer**~~** 

### 1-4. Respondent also 

### asserted that he shouldnot be "charged twice for the same crime." Answer.

### STATEMENT OF THE UNIDSPUTED FACTS On June 4, 2012, Respondent knowingly aimed a laser pointer at a helicopter. See 

### Exhibit A '1['1[1-2. The aircraft was a helicopter of the Jacksonville Sheriffs Office (JSO), and Respondent successfully illuminated the cockpit ofthe helicopter. Exhibit B '1[ 4. After the initial laser strike, the police helicopter orbited the origination point ofthe laser while police ground units travelled to the scene. 

### Id During this time frame, Respondent used the laser to illuminate the helicopter approximately six more times. 

### Id The laser illumination of the helicopter's cockpit interfered with the pilot's ability to operate the aircraft by interfering with the pilot's ability to read his instrument panel or see outside of the helicopter. 

### Id '1!'11 

### 4, 6 These effects continued even after the immediate laser strikes, as the pilot's vision took time to readjust to the ambient illumination. 

### Id '1[6. The JSO located and arrested Respondent that evening. See 

### Exhibit C. Respondent was criminally charged in 

### the United States District Court for the Middle District of Florida. Respondent ultimately pled guilty to and was convicted ofa violation of 18 U.S.C. § 39A, which provides that "Whoever knowingly aims the beam ofa laser pointer at an aircraft in the special aircraftjurisdiction ofthe United States, or at the flight path of such an aircraft, shall be fmed under this title or imprisoned not more than 5 years, or both." Exhibits D, E, F, G. Respondent
was sentenced to a one-year term of probation, 50 hours of community service, and a $100 assessment for one count ofconviction. Exhibit G. Respondent was not sentenced to a term of imprisonment or required to pay a fme or restitution. See 

### Exhibit G. SUMMARY OF THE ARGUMENT There is no dispute that Respondent knowingly aimed a laser pointer at the JSO helicopter. As Respondent admits thathe has no knowledge ofthe effect ofhis laser on the flight

### crew ofthe helicopter, the pilot's statements as to the fact ofthe laser strikes and the effects of the laser on the pilot's ability to operate the aircraft are also undisputed, and establish that Respondent's laser use interfered with flight operations, in violation of §91.11. Additionally, sanction sought is appropriate, and the Double Jeopardy clause does not operate to bar a subsequent civil action arising out ofthe same conduct as that ofaprior criminal conviction. ARGUMENT "Aparty may make a motion for decision, regarding all or any part ofthe proceedings, at any time before the administrative law judge has issued an initial decision in the proceedings. The administrative law judge shall grant a party's motion for decision if the pleadings, depositions, answers to interrogatories, admissions, matters that the administrative lawjudge has officially noticed, or evidence introduced during the hearing show that there is no genuine issue ofmaterial fact and that the party making the motion is entitled to a decision as a matter oflaw. The party making the motion for decision has the burden of showing that there is no genuine issue ofmaterial fact disputed by the parties." 14 C.P.R.§ 13.218(±)(5). Violation 

### In this case, there is no genuine dispute as to any material fact. Respondent had admitted to in discovery, and pled guilty to, knowingly shining a laser pointer at the aircraft as alleged in the Complaint. See 

### Exhibits A, D, G. The declaration ofthe pilot establishes that Respondent's laser successfully illuminated the cockpit ofthe aircraft and impaired the vision ofthe pilot, thus interfering withhis ability to operate the aircraft. See 

### Exhibit B

# n 4, 6. Respondenthas admitted that he has no knowledge of what occurred in the aircraft and, therefore, cannot establish a genuine issue of material fact on this point. See 

### Exhibit A**~~** 

### 3-4. These undisputed facts establish a violation of§ 91.11 ofthe Federal Aviation Regulations, which provides that "No

### person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember's duties aboard an aircraft being operated." Sanction 

### Further, the sanction sought in this case is appropriate under the circumstances. Effective May 1, 2012, laser incidents have been a special emphasis enforcement item for the FAA, as reflected in Appendix H to FAA Order 2150.3B. 1 

### Not only are laser cases in general covered by this special emphasis enforcement program, but the harm caused by Respondent's actions is exactly the sort of harm that the program seeks to prevent. See 

### FAA Order 2150.3B at H-4 (listing the safety hazards that can be caused by laser strikes). That Order provides that for a single, first-time laser violation that is inadvertent or not deliberate, a penalty in the range of $2200 to $4399 is appropriate. FAA Order 2150.3B at H-4**~2.** 

### For a non-airman engaged in a deliberate laser violation, however, the FAA seeks the statutory maximum penalty of $11,000. 

### Id at H-5**~** 

### 3. In 

### general, FAA sanction guidance presumes a first-time violator and an inadvertent violation, and applying deliberation as an aggravating factor. FAA Order 2150.3B at 7-5, 7-92 

### However, there are some violations that are generally inherently deliberate, including interfering with a crewmember. 

### Id at 7-10 n.4. Normally, for a violation that is generally inherently deliberate, the consequence is that the deliberate nature of the violation is not applied as an aggravating factor, because the sanction range already takes the deliberate nature ofthe violation into account. 

### Id However, this general principle is not applicable to laser interference cases under the special emphasis enforcement program that has been in place since May 2012. See 

### FAA Order 2150.3B at H-5**~** 

### 3. That more recent and more specific policy overrides the more

1A copy ofthe applicable portions ofAppendix H ofFAA Order 2150.3B is attached as ExhibitH. 2 A copy ofthe applicable portions ofChapter 7 ofFAA Order 2150.3B is attached as Exhibit I.

### general policy, and deliberation is an aggravating factor in laser cases. Compare 

### FAA Order 2150.3B at 7-10 n.4 with 

### FAA Order 2150.3B at H-4, H-5. In this case, as in the typical laser case, the conduct was deliberate. Respondent did not inadvertently shine a laser pointer at the JSO helicopter, he did so deliberately. The deliberate nature ofthe offense is emphasized because Respondent did not simply illuminate the cockpit of the helicopter once, but continued to illuminate the helicopter after it began orbiting the area in
an effortto locate him. See 

### Exhibit B**~** 

### 4. The FAA also notes that under its general sanction guidance, "the FAA does not generally take punitive legal enforcement action for the same conduct, unless it believes the criminal sanctions are not sufficient to provide an adequate deterrent for future violations by the violator and others similarly situated
... If the FAA decides to proceed with a punitive civil enforcement action in addition to the criminal prosecution, it generally considers the criminal penalties incurred in those proceedings in determining the appropriate sanction to be sought in the FAA's punitive enforcement action." FAA Order 2150-3B at 7-7. In this case, the FAA does not believe that the criminal sanctions imposed are sufficient to provide adequate deterrent, and the minimal criminal penalties imposed in Respondent's criminal case do not provide abasis for reducing the civil sanction sought in this case. While Respondent was criminally convicted, he
was hardly punished beyond the mere fact ofthat conviction, only being required to serve one year ofprobation and perform minimal community service. See 

### Exhibit G. In light ofthe special safety concerns involved in laser cases, see 

### FAA Order 2150.3B at H-4, and the need to deter this sort ofconduct in similarly situated individuals, and the deliberate nature of Respondent's conduct, a maximum civil penalty for Respondent's violation is appropriate.

### Double Jeopardy 

### In his Answer, Respondent asserted that he should not be "charged twice for the same crime." Answer. The FAA takes this to be an affirmative defense ofan assertion that the Double Jeopardy clause precludes this action and/or precludes the imposition of a sanction for any violation found in this action. Such an affirmative defense is misplaced, as the Double Jeopardy Clause has no applicationhere. The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice putinjeopardy oflife or limb." U.S. Const. Amend. V. "The Clause protects only against the imposition ofmultiple criminal 

### punishments for the same offense." Hudson 

### v. United States, 

### 522 U.S. 93, 99 (1997) (emphasis in original) (citing Helvering 

### v. Mitchell, 

### 303 U.S. 391 (1938)). This proceeding is not criminal in nature. The Double Jeopardy Clause has no application here. It

### does not preclude a finding ofviolation, and it does not preclude or affect the imposition ofsanction. CONCLUSION It is undisputed that Respondent knowingly aimed his laser at an aircraft, that he succeeded in illuminating the cockpit ofthe aircraft, and that this interfered with the ability of the pilot ofthe aircraft to safely operate it. Further, under these undisputed facts, and the special emphasis enforcement program that was implemented by the FAA, pursuant to Department of Transportation policy, prior to Respondent's violation, a civil penalty at the statutory maximum of$11,000 is appropriate. Accordingly,judgment should be entered in favor ofthe FAA.

### WHEREFORE, Complainantrespectfully requests thatthe Judge grant Sununary Judgment and affirm the Complaint in its entirety.



# __!\ Respectfully submittedtmsLday ofMay, 2014.

# CH~~N Attorney Office ofthe Regional Counsel

### CERTIFICATE OF SERVICE I hereby certifythat a copy ofthe foregoing Motion for Summary Judgmenthas been sentthis date bythe following methods: original and one copy via Federal Express: Federal Aviation Administration 800 Independence Avenue, S.W. Attention: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000 Washington, D.C. 20591

one copyviaFederal Express: TylerPennywitt 4483 Hanover ParkDrive Jacksonville, FL 32224

one copy via Federal Express: Honorable Judge J.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 fax: (202) 366-2131

DatedFAA's REQUESTS FORADMISSION Responses 1. Admitthat you used a later point on the evening ofJune 4. 2012, atapproximately 2230 local time. Response: Deny- 1was escorted from my home in handcuffs at approximately 2

### J25 local time on June 

### 4, 2012. 

### I used the laser light in my backyard at approximately 2030 local time. 2. Admit that you aimed the beam from that laser pointer at an aircraft. Response: Admit 

### 3. A'ilmi•• 'hat you did illuminate the cockpit of

### aJacksonville Sheriffs Office helicopter. Response: Unknown- I was not in the helicopter cockpit. I do notknow ifit was illuminated. 4. Admit that this illumination interfered with the flight crew's operation ofthe aircraft. Response: Unknown -I was not in the cockpit and l no knowledge offlight crew operations, therefore, I do not know ifany interference oceutTed. 5. Admitthat you knowingly aimedthe laser pointer at the aircraft. Response: Admit 6. Admit that you pled guilty to aiming the beam ofa laser pointer at an aircraft, in violation of 18 U.S.C. § 39A. Response: Admit 7. Admit that you were guilty ofaimingthe beam ofa laser pointer at an aircraft. in violation of 18 U.S.C. § 39A. Response: Admit 8. Admit that the $11 ,000 civil penalty proposed in this case is not a criminal penalty. Response: Unknown -I do not understand the difference between a civil penalty and a criminal penalty. I do not understand howl can be charged and convicted ofboth. 9. Admit thatyou received a two-level downward adjustmentto your sentence in your criminal case based on your acceptance ofresponsibility for your criminal violation ofaiming a laserpointer at an aircraft. Response: Admit l0. Admitthatthe description ofevents in the Factual Basis incorporated into yourplea agreement is accurate. Response: Deny- The sentence "The suspect was located. mirandized, and consented to a search of the house'' is inaccurate. The suspect was located. A discussion with officers aboutthe laser light activity occurred. My wife and I consented to a search but my wife Jed them directly to the laser light. No search was required. After the laser light was located. Iwas mirandized and placed in handcuffs. Also, the Factual Basis states that the JSO helicopter was flying at 900 feet when it was targeted. Ot1lcer Strickland (the JSO pilot) slates that he was 2000 feet when hit by the laser light, I do not know which altitude is con·ect. l only know that there is a discrepancy. 

# j GOVERNMENT

## ~ EX!JT 

### !I IU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION



### FEDERALAVIATION ADMINISTRATION, Complainant,

vs. TYLER PEI\TNYWITT, Respondent. Docket No. FAA-2013-0716 FAA Case No. 201280150128

Judge Sullivan

DECLARATION OF STEPHEN STRICKLAND 

### COMES NOWthe Declarant, Stephen Strickland, and states as follows: 1. I am over the age of 18 and I understand the obligations ofan oath. 2. I serve as a police officer (#6142) in the Aviation Unit ofthe Jacksonville Sheriff's Office (JSO), Duval County, Florida. I have served in the JSO for nineteen years, and in the aviation unit for nine years. 3. On June 4, 2012, I was flying a JSO helicopter approximately six miles southeast of CraigAirport (KCRG) in Jacksonville, Duval County, I'Jorida. 4. While being vectored for the RNAV 32 approach by JAX approach, Officer S. Vaughan #5941 and I were hit by a green laser. We were heading 140 at 2000 feet about 6 miles southsoutheast of Craig. The laser entered the cockpit and was extremely bright. The laser made reading the gauges impossible. The laser also hit the cockpit window making it difficult to impossible to sec outside. We broke o!Iour approach with JAX and went to the area ofHodges and John Turner Butler Boulevard,just north ofa power station. We went down to 1800 feet and set up an orbit ofseveral miles around the areato maintain a safer distance as we directed ground units, Officers Mark Lessard #67898 and Christopher Bernard #62798, to the house that the laser was coming from. The suspect lased us about six or seven times in our orbits at various points in the orbit. Each time it made reading instruments or seeing outside the cockpit difficult to impossible depending on how the laser hit us. This also affected our night vision after the laser

### stopped. When ground units were in position, we descended and began a tight orbit over the house. 5. We had also been lased from the same area by a green laser on the prior night around 2230. As we worked this call, in Craig's airspace andjust south ofthe final approach course for runway 32, Craig advised that about seven aircraft had complained oflaser incidents in that area over the past week. 6. Each time we were hit by the laser it made it very difficult to operate the aircraft. We were a law enforcement flight and I elected to stay in the area due to the hazard that this presented to other aircraft and the need to stop this hazard.
I, Stephen Strickland, declare this .<;. 

### Nday ofMay, 2014, under penalty ofperjury under the laws ofthe United States that the above statements are true and correct.

Stephen Strickland9046461442 JSO,.CRA!G*AIRF!ELD

/·l"'tAppcaranN: C(m/itiJml:**Comi~P<eJ: Cunli~u<t!;**  ArrestAnd Booking Report Jacksonville Sheriff's Office

Jacksonville Florida ' ADULT

ArrestiugAgeucy.- Jacksonville Sheriff1S Office Day/Date/TimeArresu:d: Monday6/4/2012 22:00 

## N'"'' PENNYWITT, TYLER JOHN Aliases: Nickname(s}: Cumlnt<fd;
CamirmM;

Arresw.:'sH()meAddress: 4463 HANOVER PARK DR Api./L()rll: City,JACKSONVILLE S•••ooFLORIDA Zip' 32224 Taz:653 Cros:mreet: 00&8/4/1971 Age: 

### 40 Height: 5 1 9 11**!Vei~Ju (lb~);**  170 CurubrurJ:**Comi~utd:** Y.c2012IncN415483 Pn!l'JuvJail# Jail# 2012015606 ISO ID #461330 SSN

Route To.·

""'"WHITE£,/micio·,NOT OF HISPANIC ORIGINs."

### Male Eye Color:BROWNHQirColor: BROWN Complexion: FAIR I LIGHT Build: Medium ECD Usng<.- NOTAPPLICABLE RTR wriuettrelated ro tliis incident? NO RTRfncidem Yr: RTR/tJcident#: 12:12:38 06-08-2012**L"""<1•11/~u~d:** CowlmwJ:

• .J.mt.md#
6/4/2012 23:50 Fife Dirr:;;:t:YES Corm: Circuit OBTS#1603069003

OCdeployedprior lo/dtll"ing )\rresr: NO

fsa11 Offense ahate crime? NO Is an Offense adali11g viofe11ce crime? NO RequiredtO regisreras asexoffeudo:r? NO Suspec.lfnvoke Miranda? NO Arres1eeneellsADA Consideration? NO Arrestee Confessed? YES MiraudtJRighrs Given'! YES Disability orSpecial Consideration: ACI.:"OmmodationsRequested: Driw:.r'sLicense 11 P530...S1**0~**71**~284-0** Stare: FLORIDA S11b]e.ct'sReside11t Type: CITY flm**Phor~e** # Bus. Phot1e II PhoneExt. CellPhone# (904)·252·1356 CellPhone Provider AT&T E·mail Is**i'agrar~t?** NO Subjccr'sRcsidcm::tSt(Iws.:RESIDENT Armed With: NOT APPLICABLE (NONE) Distinguishi11g Marks: Arre.srMo.de On: OV Employer: SIMONIC AND ASCO Place ofBirtii:JACK$0NVILLE DUVAL FLORIDA UNITED STATES CoumryofCirizetlship: UNITED STATES School LostAtrended: JACKSONVILLE UNIVERSITY us Citizen: YES Domestic Violence Involved: NO Cl!ildre.n wrder18Present: lfNo is ir DomesticRelated: NO Day(Do.reiT/me oflncide.m"Fram: Monday6/4/2012 19;45 llrcidemAddress:4483 HANOVER PARK DR Apt./Lot#: cuy.-JACKSONVILLE s..,,..FLORIDA Zip: 32224**To.~653 Cros~mreer:**  OffenseLocation**Type:Residence~Home** lnui"Viell'edb)'-' Jmen•iewerJD: WhereArrested: 4483 HANOVER PARK OR Apt./Lat#: Ci<y.-JACKSONVILLE 

### s""'FLORIDA Zip' 32224 Taz:653 Crosssrreer: lnvo{ved in TrafficAc.cidem: NO InjuriesfromAcciderrr: Statute or OrdinanceNumber(s); #1 Day/DateiTimeoflltddem-To: Monday6/4/2012 20:59 Sub-Sector: H1

Sub-Secwr: H1

Is IJJcidem O(mgRelared: NO Is**Arrestee~~** Gtmg member?NO

SumacNo:784.062(3){A) Degree:F3 UCR Cade.·9000 Attell/pt Code:Commit**6/4/2012~23:45** 214

MISUSE OF A LASER LIGHTING DEVICE ON A MOTOR VEHICLE, VESSEL, OR AIRCRAFT

-- NO BODILY INJURY CilatilJIIil I.Jso ComrofII
ADL T PENimvm, IYLERJOHN SA# Wormm Type: NotApplicable lflarranr/Qlse # No. ofCmmrs:
ARREST REPORT ,,1 "'3 

## 1""' 2012o1s6o6 

## ADLT GOVERNMENT EXHIBIT



# L9046461442 JUnSOICIIOn.• JSO*CRAJG*A!RFIELD Purge/Bond Type: Bond DispCJsilicm: 

### VOPIFTA ONLY BondAmoum: CT. LCJcarlon/Div,: Dareof Issue; 

### Blanket Bond:

OriginalStafllteNa: Degree: UCR Code: Arrempr Code: Commit Descriprion: 12:13:28 06-08-2012 3/4
Dateof**Re~urn:** Judge: DispMirion Dare:

@J)ITIONALINFORMATION 1 R•poni•.< Offi"" C.C.BERNARD 62798 On 06/04/12, at 2059, Myselfand Ofc. M.J.Lessard were dispatched to the area of Hodges Blvd and JTB in reference to assisting our Aviation unit (Air3). Air Unitwas being flown by S.G. Vaughn #5941 and S. Strickland #6142. We were advised by the Air Unitthatthere was a nearby subject who had shined a green laser light into their aircraft four times this evening, thus blinding the pilots. Air 3further advised that he had pointed the light at their aircraft last evening as well on 06/03/12. We were advised thatthere have been numerous incidents in the past involving a green light shining into an aircraft In this close proximity. I spoke with a memberwith the FAA who advised that they would be able to research past events involving similar incidents in this area during normal business hours. I was notable to access JSO cad system due to a network crash with an unknown duration of down time. Air 3 was able to positively identifythe residence in which the laser was being pointed from. We knocked and made contactwith the suspect's wife, Debbie Pennywitt. I asked ifthere was a green laser inside ofthe house which she advised that her husband has a green laser light. As I was speaking with Mrs. Pennvwitt, the listed suspect ran acrossthe living room, in which I later discovered he jumped inthe shower. Mrs. Pennvwittthen invited us inside of her residence. While inside, we made contact with the listed suspectcoming out of the shower. The suspect was read his Miranda Rights, by card and later advised that he understood his rights. Post Miranda, the suspect advised that has pointed the laser atvarious aircrafts over a dozen times. He advised he had no reason as to why he did so. He stated that he did not know the laser reached that far intothe sky. When asked ofthe location ofthe laser pointer, he advised itwas located on his bedside dresser. Ole. Lessard was able to retrieve the laser pointer. Ofc. Lessard then coordinated with the Air Unitand pointed the light atthe residence's backyard. The Air Unit was able to positively identifythat itwas the same laser that wasjust previously pointed atthem. The suspect was arrested and transported tothe PTDF. The laser pointer was placed in the property room as evidence. Case cleared by arrest.
TranspoNed By: C.C.BERNARD #62798 Arres.tiug Officer(s)#l:C.C,BERNARD #62798**Approvin~:**S11pervisor: S.M.FARRIS #6748 N2: M.J.LESSARD #67898
Suuea[Florida, Count>· of Duval Arres1!11g JTransporring-Offu:er's Signat!lre:

--------------- Sworn to (or affirmed) andsrtbscl"ibedbeforeme lhis

__ .da}'of
____,20 ---...J by**f';im.Tf~·** orSramp.**Comml~ion<J**nameof NOilltJ'**i'<d>li~** Investigative Time: #1 Hours: 3 Minutes: 

### o CostAmount: $144.72 DmgActMry: NOT APPUCABLE AlcoholRd«ed: UNKNOWN (OR N/A) 

### ADLT PeNNY\VIIT. m.F.RJOHN Dn.g Typ" NOT APPLICABLE Dn.gR•ta.ed: UNKNOWN (OR N/A) 

### ARREST REPORT ,,, "o 1ou• wJwis6o6 

### ADLT9046461442 JSO*CRA!G'"A!RF!ELD**~Propertv:**#1 Weapon Sei2ed:**-----'~2;:.'.:.'•:.'.::2::;5_..;:.06::·:::0:,::8::·2::;0:.:1~2:..._**___ _;:•/4 sram,.-SEIZEO (NOT STOLEN) Propen)'Type.-GREEN LASER LIGHT Property Taken byArre$finf{0/!ir:er:Evidence**T~tmed**in ar: Property Room Ffreo.rm Type: Dmg Type: MtWiifacrurer: Serial# Q11anti1y:1.00 Descrfpzion: GREEN LASER LIGHT WITNESS#1 \Yeig!u:

Ra
.....-WHITEErlmt,;ry.-NOTOF HISPANIC ORIGIN**Se.~:**Female DOB.-1/1/1965 Ai;e: 

### 47 Name.- PENNYWITT DEBBIE Amo1rm of Money

Um'ro[Measure:

Address: 4483 HANOVER PARK DR Apt./Lot II: Sub-Sectorof t\rreSlLocatiou: H1 Ciry.- JACKSONVILLE Srare FLORIDA Zip.- 32224 Taz:653 CrosssFreet: HomePha11e # B1ts. Phone# PlwneExt. CellPhonefl**(904)~223~3572** CellPlume ProviderAT&T E-mail Is l'agran.l? NO Jailln.formation (BackDoor) Dateand TimeAdmitted: 6/4/2012 23:50 Jail# 2012015606 l!ive11ileiCotJrt Clerk# Triage Questions: l!woived i11 IrafftcAccidenr: NO Injuries from Accidem: OCdeployedprior to/duringArrest: NO Was ahobble resrrainr1tsetlon1he llrres/f:ft? NO Doesthe arresree exflibi.l anyslgnsof suicidalbehal'iororattempts? NO Doesthe arrestedhavennyobsen•able meilical{memalhealthproblems? NO Has the arrestee shown llll)'escapeporemial orviolence propensitybehaviors? NO l:; there**t~IIY**otherinformarfon abo!!! thearTe.<:tee tharjajlpersormelneedfa know? NO If

yes, wlrar? PartIIof ArrestAndBookingReport: ArresteePersonalInformation: How Longinfax? Verficarion B_r:

----------- Chemical Test Data**.~pecim~"'** 

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## ,. g_J:!!O!. TIME: IJroud:**'~** g/Z/01. 11M£: (kim::
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Bn:a1/1 T nr/n.m-tmocm: Tnm**M~.:l>incll** O(l(f<'IMNnm<'Md[,1).1! DQW.' RightThumb Print



### ADLT PENNYII'fiT, TYLER JOHN 

### ARREST REPORT 

# ,,3"" Jail# 2012015606 

### ADLTCase 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 1 of 14 PageiD 57

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
UNITED STATES OF AMERICA 

## FILED IN OPEN COURT 

# .t-J. 

# n**~** 

# ,s CLERK U.S. OiSTRICT COURT MIDDLEOISTfiiCT OfFLORIDA JACKSONVILLE. FLORIDA



## v. CASE NO. 3:12-cr-172-J-32MCR JOHN TYLER PENNYWITI


### PLEA AGREEMENT Pursuant to Fed. 

### R. Crim. P. 11(c), the United States ofAmerica, by Robert E. O'Neill, United States Attorney for the Middle District of Florida, and the defendant, JOHN TYLER PENNYWITI, and the attorneyforthe defendant, Mitchell A. Stone, Esq., mutually agree as follows: 

### A. Particularized Terms 1. Count(s) Pleading To The defendant shall enter a plea ofguilty to CountTwo ofthe

# d~c Indictment. Count harges the defendantwith aiming the beam ofa laser pointer at an aircraft in the special aircraftjurisdiction ofthe United States as that term is defined in Title 49, United States Code, section 46501, in violation of 18 

## u.s.c. § 39A.

Defendant's Initials

# c:TJ-P AF Approva@__**~GOVERNMENT**

## ~**~IT** 

# 1-::.---Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 2 of 14 PageiD 58



### 2. Maximum Penalties

__ .J '

# Count~fcarries a maximum sentence of 

### 5 years

# im~risonment, a fine of

### $250,000, a term ofsupervised release of not more than 

### 3 years, and a special assessment of

### $100, said special assessment to be due on the date of sentencing. With respect to certain offenses, the Court shall order the defendant to make restitution to any victim ofthe offense(s), and with respect to other offenses, the Court may orderthe defendant

## to make restitution to any victim of the offense(s), or to the community, as set forth below. 

### 3. Elements ofthe Offense(s) The defendant acknowledges understanding the nature and elements ofthe offense(s) with which defendant has been charged and to which defendant is pleading guilty. The elements of Count

# ~are: First:
Second:
Third: The defendant aimed the beam ofa laser pointer at an aircraft; The aircraft was in the special jurisdiction ofthe United States, and The defendant aimed the beam knowingly. 

### 4. Counts Dismissed 

# c." Atthe time ofsentencing, the remaining count against the tit\'" 

### defendant, Count 

### iwe, will be dismissed pursuant to Fed. 

### R. Grim. P. 

# Mj/M 11 (c)(1)(A).

Defendant's Initials

# cfj)f 2Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 3 of 14 PageiD 59

5. No Further Charges Ifthe Court accepts this plea agreement, the United States Attorney's Office for the Middle District of Florida agrees notto charge defendant with committing any otherfederal criminal offenses known to the United States Attorney's Office at the time ofthe execution ofthis agreement, or related tothe conduct giving rise to this plea agreement. 6. Guidelines Sentence Pursuant to Fed. 

### R. Crim. P. 11(c)(1)(8), the United States will recommend to the Court thatthe defendant be sentenced within the defendant's applicable guidelines range as determined by the Court pursuantto the United States Sentencing Guidelines, as adjusted by any departure the United States has agreed to recommend in this plea agreement. The United States would also recommend that USSG §2A5.2(a)(4) applies and the base offense level should begin ata level 

### 9. The parties understand that such a recommendation is not binding on the Court and that, if it is not accepted by this Court, neitherthe United States nor the defendantwill be allowed to withdraw from the plea agreement, and the defendant will not be allowed to withdraw from the plea of guilty. 7. Acceptance of Responsibility- Two Levels Atthe time of sentencing, and in the eventthat no adverse information is received suggesting such a recommendation to be unwarranted,
Defendant's Initials

# c( 

# 61 3Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 4 of 14 PageiD 60

the United States will to the Courtthat the defendant receive a two-level downward adjustmentfor acceptance of responsibility, pursuantto USSG §3E1.1(a). The defendant understands that this recommendation or request is not binding on the Court, and if not accepted bythe Court, the defendantwill not be allowed to withdraw from the plea. 8. Use of Information- Section 181.8 Pursuantto USSG § 1 B1.8(a), the United States agrees that no self-incriminating information which the defendant may provide during the course ofdefendant's cooperation and pursuantto this agreement shall be used in determining the applicable sentencing guideline range, subject to the restrictions and limitations setforth in USSG §1B1.8(b). B. Standard Terms and Conditions 1. Restitution, Special Assessment and Fine The defendant understands and agrees that the Court, in addition to or in lieu ofany other penalty, shall orderthe defendantto make restitution to any victim ofthe offense(s), pursuant to 18 U.S.C. § 3663A, for all offenses described in 18 U.S.C. § 3663A(c)(1) (limited to offenses committed on or after April 24, 1996); and the Court may orderthe defendantto make restitution to any victim ofthe offense(s), pursuantto 18 U.S.C. § 3663 (limited to offenses committed on or after November 1, 1987), including restitution as to all counts charged, whether or notthe defendant enters a plea ofguiltyto such counts, and
Defendant's Initials

# ~ 4Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17113 Page 5 of 14 PageiD 61

whether or not such counts are dismissed pursuant to this agreement. The defendantfurther understands that compliance with any restitution payment plan imposed by the Court in no way precludes the United States from simultaneously pursuing other statutory remedies for collecting restitution (18 U.S.C. 

### § 3003(b)(2)), including, but not limited to, garnishment and execution, pursuantto the MandatoryVictims Restitution Act, in order to ensure thatthe defendant's restitution obligation is satisfied. On each count to which a plea ofguilty is entered, the Court shall impose
a special assessment pursuant to 18 U.S.C. 

### § 3013. To ensure thatthis obligation is satisfied, the Defendant agrees to deliver a check or money orderto the Clerk ofthe Court in the amount of$, payable to "Clerk, U.S. District Court" within ten days ofthe change of plea hearing. The defendant understands thatthis agreement imposes no limitation as to fine.2. Supervised Release The defendant understandsthat the offense(s) to which the defendant is pleading provide(s) for imposition ofa term ofsupervised release upon release from imprisonment, and that, ifthe defendant should violate the conditions of release, the defendantwould be subject to a further term of imprisonment.

Defendant's

# Initials~ 5Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 6 of 14 PageiD 62

3. Sentencing Information The United States reserves its right and obligation to report to the Court and the United States Probation Office all information concerning the background, character, and conduct ofthe defendant, to provide relevant factual information, including the totality ofthe defendant's criminal activities, 

### if any, not limited to the count(s) to which defendant pleads, to respond to comments made bythe defendant ordefendant's counsel, and to correct any misstatements or inaccuracies. The United States further reserves its right to make any recommendations 

### it deems appropriate regarding the disposition ofthis case, subject to any limitations set forth herein, ifany. 4. Financial Disclosures Pursuantto 18 U.S.C.§ 3664(d)(3) and Fed. 

### R. Crim. P. 32(d)(2)(A)(ii), the defendant agrees to complete and submit to the United States Attorney's Office within 30 days ofexecution ofthis agreement an affidavit reflecting the defendant's financial condition. The defendant promises that his/herfinancial statement and disclosures will be complete, accurate and truthful and will include all assets in which he/she has any interest or over which the defendant exercises control, directly or indirectly, including those held by a spouse, dependent, nominee or otherthird party. The defendantfurther agrees to execute any documents requested by the United States needed to obtain from anythird parties any records of assets owned by the defendant, directly or
Defendant's

# Initials~ 6Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 7 of 14 Page!D 63

through a nominee, and, bythe execution ofthis Plea Agreement, consents to the release ofthe defendant's tax returns forthe previous five years. The defendant similarly agrees and authorizes the United States Attorney's Office to provide to, and obtain from, the United States Probation Office, the financial affidavit, any ofthe defendant's federal, state, and local tax returns, bank records and any otherfinancial information concerning the defendant, for the purpose of making any recommendations to the Court and for collecting any assessments, fines, restitution, or forfeiture ordered bythe Court. The defendant expressly authorizes the United States Attorney's Office to obtain current credit reports in order to evaluate the defendant's ability to satisfy anyfinancial obligation imposed by the Court. 5. Sentencing Recommendations It is understood by the parties that the Court is neither a party to
nor bound by this agreement. The Court may accept or reject the agreement, or defer a decision until it has had an opportunity to considerthe presentence report prepared by the United States Probation Office. The defendant understands and acknowledges that, although the parties are permitted to make recommendations and present arguments to the Court, the sentence will be determined solely bythe Court, with the assistance ofthe United States Probation Office. Defendant further understands and acknowledges that any discussions between defendant or defendant's attorney and the attorney or other
Defendant's Initials

# cf()(J 7

### Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 8 of 14 PageiD 64

agents for the government regarding any recommendations by the government
are not binding on the Court and that, should any recommendations be rejected, defendantwill not be permitted to withdraw defendant's plea pursuant to this plea agreement. The government expressly reserves the right to support and defend any decision thatthe Court may make with regard to the defendant's sentence, whether or not such decision is consistentwith the government's recommendations contained herein. 6. Defendant's Waiver of Right to Appeal the Sentence The defendant agrees that this Court hasjurisdiction and authority to impose any sentence up to the statutory maximum and expresslywaives the right to appeal defendant's sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuantto the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentenceviolates the Eighth Amendmentto the Constitution; provided, however, that ifthe government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. 

### § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. 

### § 3742(a).

Defendant's Initials

# qj}f__ 8Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 9 of 14 PageiD 65



### 7. Middle District of Florida Agreement It is further understood thatthis agreement is limited to the Office of the United States Attorney forthe Middle District of Florida and cannot bind other federal, state, or local prosecuting authorities, although this office will bring defendant's cooperation, ifany, to the attention of other prosecuting officers or others, if requested. 8. Filing ofAgreement This agreement shall be presented to the Court, in open court or in camera, in whole or in part, upon a showing of good cause, and filed in this cause, at the time of defendant's entry ofa plea ofguilty pursuant hereto. 9. Voluntariness The defendant acknowledges that defendant is entering into this agreement and is pleading guilty freely and voluntarily without reliance upon any discussions between the attorney forthe government and the defendant and defendant's attorney and without promise of benefit of any kind {other than the concessions contained herein), and without threats, force, intimidation, or coercion of any kind. The defendant further acknowledges defendant's understanding of the nature ofthe offense or offenses to which defendant is pleading guilty and the elements thereof, including the penalties provided by law, and defendant's complete satisfaction with the representation and advice received from defendant's undersigned counsel {if any). The defendant also
Defendant's Initials

# CZ/)L_ 9Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17113 Page 10 of 14 PageiD 66

understands that defendant has the rightto plead not guilty orto persist in that plea if it has already been made, and that defendant has the right to be tried by a jury with the assistance ofcounsel, the right to confront and cross-examine the witnesses against defendant, the right against compulsory self-incrimination, and the right to compulsory process for the attendance ofwitnesses to testify in defendant's defense; but, by pleading guilty, defendantwaives orgives up those rights and there will be notrial. The defendantfurther understands that if defendant pleads guilty, the Court may ask defendant questions aboutthe offense oroffenses to which defendant pleaded, and 

### ifdefendant answers those questions under oath, on the record, and in the presence ofcounsel (ifany), defendant's answers may later be used against defendant in a prosecution for perjury orfalse statement. Thedefendant also understands that defendantwill be adjudicated guilty ofthe offenses to which defendant has pleaded and, if any ofsuch offenses are felonies, maythereby be deprived ofcertain rights, such as the right to vote, to hold public office, to serve on a jury, orto have possession of firearms. 10. Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admitthat the facts setforth in the attached "Factual Basis," which is incorporated herein by reference, are

Defendant's Initials

# !!}}P__ 10Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 11 of 14 PageiD 67

true, and were this case to go totrial, the United States would be able to prove those specific facts and others beyond a reasonable doubt. 11. Entire Agreement This plea agreement constitutes the entire agreement between the government and the defendantwith respect

### to the aforementioned guilty plea and no other promises, agreements, or representations existor have been made to the defendant or defendant's attorney with regard to such guilty plea. 12. Certification The defendant and defendant's counsel certifythatthis plea agreement has been read in its entirety by (or has been read to) the defendant and that defendant fully understands its terms. DATED this 

### I 7 day ofApril, 2013.



### ROBERT E. O'NEILL Unite



### J 

### OR Defendant

Attorney for Defendant

Defendant's Initials

# !:!/Jt__ 11 ssistant United States Attorney



### M . HEAVENER, Ill Assistant United States Attorney Deputy Chief, Jacksonville DivisionCase 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 12 of 14 PageiD 68



### UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION UNITED STATES OF AMERICA 

## v. Case No. 3:12-cr-172-J-32MCR JOHN TYLER PENNYWITT


### :i'

# off PERSONALIZATION OF ELEMENTS

### ~ 

### 't 1. On orabout**June~** 

### 2012, in the Middle District of Florida, did you aim the beam of a laser pointer at a helicopter owned and operated by the Jacksonville Sheriffs Office? 2. Was the helicopter within the specialjurisdiction, that is, the airspace, ofthe United States? 3. Did you aim the beam knowingly?

Defendant's Initials

# cJ[TP 12Case 3:12-cr-00172-TJC-MCR Document38 Filed 04/17/13 Page 13 of 14 PageiD 69

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION UNITED STATES OF AMERICA


### v. Case No. 3:12-cr-172-J-32MCR JOHN TYLER PENNYWITT

FACTUAL BASIS On June 4, 2012, a helicopterflown by the Jacksonville Sheriffs Office (JSO) was targeted by a green laser on four separate occasions during nighttime hours. The laser originated from the backyard ofa residential house located in the Southside area ofJacksonville. The pilots were able to guide JSO patrol units to the housefrom where the laser originated. Patrol officers knocked on the door and were permitted entry into the house bythe suspect's wife. When asked 

### ifthere was a green laser in the house, Debbie Pennywitt told the officers that her husband had one. The suspect was located, mirandized, and consented to a search ofthe house. He admitted that he had a laserthat he kept in the bedroom and that he had pointed it atthe JSO helicopter. He claimed that he didn't realize that it reached
so far into the sky (the JSO helicopterwas flying at 900 feetwhen it was targeted).

Defendant's

# Initials~Case 3:12-cr-00172-TJC-MCR Document 38 Filed 04/17/13 Page 14 of 14 PageiD 70

The officers took the laser intothe suspect's back yard and, in coordination with air units, positively identified the housewhere the suspect lived
as the house from where the laser originated June 4, 2012. Atthe time ofthe incidents, the aircraft was flying in airspace within the specialjurisdiction ofthe United States.

Defendant's Initials

# :!!lt..._ 2Case 3:12-cr-00172-TJC-MCR Document 39 Filed 04/19/13 Page 1 of 1 PageiD 71

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION UNITED STATES OF AMERICA
vs. CASE NO. 3:12-cr-172-J-32MCR JOHN TYLER PENNYWITT
REPORT AND RECOMMENDATION'

CONCERNING PLEA OF GUlLTY The defendant, by consent, has appeared before me pursuant to Rule 11, Fed. R. Crim. P. and Rule 6.01 (c)(12), M. D. Fla. Rules, and has entered a plea of guilty to Count Two ofthe Indictment. After cautioning and examining the defendant under oath concerning each ofthe subjects mentioned in Rule 11, I determined that the guilty plea
was knowledgeable and voluntary, and that the offense charged is supported by an independent basis in fact containing each ofthe essential elements of such offense. therefore recommend that the plea of guilty be accepted and that the defendant be adjudged guilty and have sentence imposed accordingly. DONE AND ENTERED at Jacksonville, Florida, this 17th day of April, 2013.

# ·~NTE**C~;JCHARDSON** UNITED STATES MAGISTRATE JUDGE Copies to: Honorable Timothy J. Corrigan United States District Judge Marielena Diaz, Courtroom Deputy Assistant United States Attorney (Campion) Mitchell Stone, Esq. United States Probation United States Pretrial Services GOVERNMENT· EXHIBIT 

# C--

1The parties have agreed to waive the fourteen (14) day objection period to this

### ~~~1'1"".....-11111 Recommendation. 28 U.S.C. § 636(b)(1)(B), Rule 6.02, M.D. Fla. Rules.Case 3:12-cr-00172-TJC-MCR Document 41 Filed 08/01/13 Page 1 of 1 PageiD 74 

### UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION UNITED STATES OF AMERICA CASE N0.3:12-cr-172-J-32MCR

## v~ J \ NTYLER PENNYWITT a/ka TYLER JOHN PENNYWITT Counsel for Government: \ Counsel for Defendant: Jay Carl Taylor Mitchell A. Stone HONORABLE TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE Courtroom Deputy: Marielena Diaz U.S. Probation: Irish Anderson Court Reporter: Shannon Bishop
CLERK'S MINUTES PROCEEDINGS OF SENTENCING: United States' witnesses: ------------------------- Defendant's witnesses: 

## ·=;::-,===--------------------- United Stales' exhibits filed In evidence:

____________________ _ Defendant's exhibits filed in evidence: --------------------- _X_ Plea previously accepted. 

### _x_ Defendant adjudged guilty on CountTwo f2! ofthe Indictment Imprisonment: -,,---;,----.-.,-- Court recommends confinement at:

# ===::-- Defendant receive substance abuse treatment. Court recommends to the BOP that defendant receive mental health treatment.

__ Supervised Release:=-=----- 

### _x_ Probation: ONE !1! YEAR _X_ Special Assessment: $100.00 to be paid immediately. Restitution; X Special conditions ofsupervised release/probation:=====:-::==========--- Defendant shalt provide the Probation Officer access to any requested financial information. Defendant shall be prohibited from incurring new credit charges, opening additional lines ofcredit, or obligating himself/herself for any major purchases without approval ofthe Probation Officer. _X_ Defendant shall be evaluatedto determine whether he requires mental health treatment and, W so, the defendant shall participate as directed In a program of mental health treatment. _X_ Defendant shall participate in a program for substance abuse treatment. Defendant shall participate in the Home Detention program for a period of-:-:--:-:--::: _X_ Defendant shall perform FIFTY (50) hours ofcommunity service as directed by the Probation Officer. Ifdeported by the Bureau of Immigration and Customs Enforcement (BICE), the Defendant shall not re-enterthe United States unless allowed to do so legally. Mandatory drug testing suspended. Defendant poses a low risk. X Defendant shall cooperate in the collection of DNA as directed by the probation officer. _X_ Count One !1! is dismissed on motion ofAssistant U.S. Attorney or pursuant to Plea Agreement. Defendant is remanded to the custody ofthe U.S. Marshal. Defendant shall surrender to the designated institution as notified by the U.S. Marshal. _X_ Defendant advised of right to appeal and to counsel on appeal. Other:

DATE: August 1, 2013 TIME: 10:04 a.m. - 10:27 a.m.


### ij GOVERNMENT 

# I**EX~IT** 

# ; t: "Case 3:12-cr-00172-TJC-MCR Document 42 Filed 08/08/13 Page 1 of 5 PageiD 75 AO 245B { RHV 06:05) Sheet 1 • Judgrneht in a Criminal**C~se** 

# UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLOR)DA JACKSONVILLE DIVISION'

UNITED STATES OF AMERICA
V.
JOHN TYLER PENNYWITT a/k/a TYLER JOHN PENNYWITT THE DEFENDANT: _X pleaded guilty to count Two (2) of the Indictment _pleaded nolo contendere to count(s) which was accepted by the court _was found guilty on count(s) after a plea of not guilty. The defendant is adjudicated guilty ofthese offenses: TITLE & SECTION 18 U.S.C. § 39A NATURE OF OFFENSE Aiming the Beam ofa Laser Pointer atan Aircraft ofthe Special Aircraft Jurisdiction ofthe United States JUDGMENT IN A CRIMINAL CASE CASE NUMBER: 3:12-cr-172-J-32MCR USM NUMBER: 57526-018

Defendant'sAttorney: Mitchell A Stone

OFFENSE ENDED COUNT June 4, 2012 Two of the Indictment

The defendant is sentenced as provided in pages 2 through 5 of this judgment The sentence is imposed pursuant to the Sentencing Reform Act of 1984, as modified by United States v. Booker and 18 U.S.C.§§ 3551 and 3553. _The defendant has been found not guilty on count(s) 

### X. Count One (1

### i ofthe Indictment is dismissed on the motion ofthe United States. IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence. or mailing address until all fines. restitution, costs. and special assessments imposed by this judgment are fully paid. If ordered to pay restitution. the defendant shall notify the court and Un1ted States Attorney of any material change in economic circumstances.
Date of Imposition of Sentence: August 1, 2013

DATE: August--+-· 2013Case 3:12-cr-00172-TJC-MCR Document 42 Filed 08/08/13 Page 2 of 5 PageiD 76 AO 2456 (Rev. 06/05) Sheet4

- Probation Defendant Case No.: JOHN TYLER PENNYWITT a/ka TYLER JOHN PENNYWITT 3:12-cr-172-J-32MCR Judgment- Page __£_ of..§.._ PROBATION The defendant is hereby placed on probation for a term of ONE (1) YEAR. The defendant shall not commit another federal, state, or local crime. The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submitto one drug test within 15 days of placementon probation and at least two periodic drug tests thereafter, as determined by the court. The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk offuture substance abuse. (Check, ifapplicable.) 

### X Thedefendantshall not possess afirearm, ammunition, destructivedevice, orany otherdangerousweapon. (Check, ifapplicable.) 

### X. The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, ifapplicable.) The defendantshall registerwith the state sex offender registration agency in the statewhere the defendant resides, works, or is astudent, as directed by the probation officer. (Check, ifapplicable.)

1) 

### 2) 3) 4) 

### 5) 6) 7) 

### 8) 9) 10) 11) 12) 13) The defendant shall participate in an approved program for domestic violence. (Check, ifapplicable.) Ifthis judgment imposes afine ora restitution, it is acondition of probation thatthe defendant pay in accordance with the Schedule of Payments sheet ofthis judgment. The defendant shall comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page. STANDARD CONDITIONS OF SUPERVISION the defendant shall not leave thejudicial district without the permission of the court or probation officer; thedefendantshall reporttothe probation officerand shall submit atruthful and completewritten report in the manner and frequency directed by the Court or probation officer; the defendant shall answer truthfully all inquiries by the probation officer and follow the instruction ofthe probation officer; the defendant shall support his or her dependents and meet otherfamily responsibilities; the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; the defendant shall notify the probation officer at least ten days prior to any change in residence or employment; the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administeranycontrolled substance, orany paraphernalia related to any controlled substances, exceptas prescribed by a physician; the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; thedefendantshall notassociatewith any personsengaged in criminal activity, and shall notassociatewith anyperson convicted ofa felony, unless granted permission to do so by the probation officer; the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation ofany contraband observed in plain view ofthe probation officer; the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; the defendantshall not enter intoany agreementto act as an informerora special agentofa lawenforcementagency without the permission ofthe court; and as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or**~haracterjstics,** and**~hall** permit the probation officerto make such notifications and to confirm the defendanrs compliance with such notification requirement.Case 3:12-cr-00172-TJC-MCR Document 42 Filed 08/08/13 Page 3 of 5 PageiD 77 AO 2458 (Rev 06/05) Sheet 4C
- Probation**8elen~an!: jO~N**  IX};!§Rf-Wil

### t alka IYLER JoHN PENNVWII I

ase o.: :1 -cr-1 -J- Judgment- Page 3 of 5

SPECIAL CONDITIONS OF SUPERVISION The defendant shall also complywith the following additional conditions of probation: The defendant shall participate in the Home Detention program for a period of_. During this time, defendantwill remain at defendant's place of residence except for employment and other activities approved in advance by the defendant's Probation Officer. Defendantwill be subject to the standard conditions of Home Detention adopted for use In the Middle District of Florida, which may include the requirement towear an electronic monitoring device and to follow electronic monitoring procedures specified bythe Probation Officer. Further, thedefendantshall be required to contribute to the costs of services for such monitoring not to exceed an amount determined reasonable by the Probation Officer based on ability to pay(or availability ofthird party payment) and in conformance with the Probation Office's Sliding Scale for Electronic Monitoring Services. 

### JS The defendant shall participate, as directed by the Probation Officer, in a program (outpatient and/or inpatient) for treatment of narcotic addiction ordrug or alcohol dependency. This program will include testing for the detection of substance use or abuse. Further, the defendant shall be required to contribute to the costs of services for such treatment not to exceed an amountdetermined reasonable by the Probation Officer's Sliding Scale for Substance Abuse Treatment Services. 

### X The defendantshall be evaluated to determine whether he requires mental health treatment and, ifso, the defendant shall participate as directed in a program ofmental health treatment approved by the Probation Officer. Further, the defendant shall be required to contribute to the costs of services for such treatment not to exceed an amount determined reasonable to by Probation Officer based on ability to pay or availability of third party payment and in conformance with the Probation Office's Sliding Scale for Mental Health Treatment Services. The defendant shall provide the probation officer access to any requested financial information. The defendant shall be prohibited from incurring new credit charges, opening additional lines of credit, acquisitions orobligating himself/herself for any major purchases without approval ofthe probation officer. Should the defendant be deported, he/she shall not be allowed to re-enter the United States without the express permission ofthe United States Attorney General. 

### .X. Defendant shall perform FIFTY 150\ HOURS hours ofcommunity service. The defendantshall registerwiththestatesexualoffenderregistration agency(s) in anystatewhere he resides, visits, is employed, carries on a vacation, or is a student, as directed by the probation officer. The defendant shall have no direct contact with minors (under the age of 18) without the written approval ofthe probation officer and shall refrain from entering into any area where children frequently congregate including: schools, day-care centers, theme parks, playgrounds, etc. Thedefendant is prohibited from possessing, subscribing to, orviewing anyvideo, magazines, or literature depicting children in the nude and/or in sexually explicit positions. The defendant shall submit to a search of his/her person, residence, place of business, any storage units under his/hercontrol, orvehicle conducted bythe probation officerata reasonabletime and in a reasonable manner, based upon reasonable suspicion ofcontraband or evidence ofa violation ofa condition of release; failure to submit to a search may be groundsfor revocation; defendant shall inform any other residents that the premises may besubject to a search pursuant to this condition.Case 3:12-cr-00172-TJC-MCR Document 42 Filed 08/08/13 Page 4 of 5 PageiD 78 AO 2458 (Rev 06/05) Sheet 5 - Criminal Monetary Penalties Defendant: JOHN TYLER PENNYWITT atka TYLER JOHN PENNYWITT Case No.: 3:12-cr-172-J-32MCR Judgment-**Page~** of_§_
CRIMINAL MONETARY PENAL TIES The defendant must pay the total criminal monetary penalties underthe schedule of payments on Sheet6. Assessment Total Restitution Totals: $100.00
Thedetermination ofrestitution is deferred until

__. be entered aftersuch determination. An AmendedJudgment in a Criminal Case (AO 245C) will The defendant must make restitution (including community restitution) tothe following payees in the amount listed below. Ifthe defendant makes a partial payment, each payee shall receive an approximately proportioned rayment, unless specified otherwise in the priority order or percentage payment column below. However, pursuan to 18 U.S.C. § 3664(1), all nonfederal vict1ms must be paid before the United States is paid.
Name of Payee "Total Amount of Loss Amount of Restitution Ordered

Restitution amount ordered pursuant to plea agreement $ ------· Priority Orderor Percentage of Payment

Jhe defendant shall pay interest on any fine or restitution of morethan $2,500, unless the restitution or fine is paid 10 full beforethefifteenth dayafterthedateofthejudgment, pursuantto 18 U.S.C. § 3612(1). All ofthe payment options on page 6 may be subjectto penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g). The court determined that the defendantdoes not have the ability to pay interest and it is ordered that: the interest requirement is waived for the_ fine

_ restitution. the interest requirement for the

_ fine

_ restitution is modified as follows:

• Findings forthe total amount of losses are required under Chapters 109A, 110, 110A, and 113AofTitle 18 forthe offenses committed on or after September 13, 1994, but before Apri123, 1996.Case 3:12-cr-00172-TJC-MCR Document 42 Filed 08/08/13 Page 5 of 5 PageiD 79 AO 2456 (Rev 06/05) Sheets- Schedule of Payments Judgment - Page 5 of

## .i..
SCHEDULE OF PAYMENTS Having assessed the defendant's ability to pay, payment ofthe total criminal monetary penalties are due as follows: A. _lL Lump sum special assessment payment of $ 100.00 due immediately. not laterthan ,or _in accordance

_ C,

_ D, _ E or _ F below; or B. Payment to begin immediately (may be combined with

_ C,

_ D, or_ F below); or C. Payment in equal (e.g., weekly, monthly, quarterly) installments of$ over a 

### D.

E. F. period of

__(e.g., months or years), to commence days (e.g., 30 or60 days) after the date ofthis judgment or Payment in equal (e.g., weekly, monthly, quarterly) installments of$ overa period of , (e.g., months or years) to commence (e.g. 30 or 60 days) after release from imprisonment to a term ofsupervision; or

## !;'8Wl~sl'\t**~H~r~Pelbi~tgWb~ iW/11~;"~&.deh1** **e~~~ -gg** **u'ft ~1ri.Acffir~~~rnent**  plan based on

## ~'ii%s~gs~::nent of IReastenaants 8buny 

### !o'pay ar that t1me, or Special instructions regarding the payment of criminal monetary penalties: The .defendapt is ordered to**be~·n makinl\\.oav.me~~of**  Sper month aod.this P.evment schedule shall conttnue unt1 suco 11me as tile rt IS n me,a ov. etdelenaant, the v1ct1m ortrre government thatthere has oeen a matena change 1n e deten ants a011 o pay.

Unless the court has expressly ordered otherwise, ifthis judgment imposes a period of imprisonment, payment ofcriminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk ofthe court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed. Joint and Several Defendant and Co-Defendant**N<~mes** and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and correspondmg payee, ifappropnate: The defendant shall pay the cost ofprosecution. The defendant shall pay the following court cost(s): The defendant shall forfeit the defendant's interest in the following property to the United States:

Pavments shall be aooliedjn the follol(lino order. 1.11 assestsment.J2l)restittution1**pdtincipa~** 131 restitution interest, 141 fine pnnc1pa1, {5) fine Interest{c) communny restitUtion, 1() pena111es, an {B cos s, Inc u mg**to~tofprosecutlon** ano court costs.05/01/12 2150.38, Chg 4 Appendix 

### H Compliance and EnforcementBnlletin 

### No. 2012-1 SUBJECT: Sanctions for persons who direct a laser toward an aircraft in violation of 14 C.F.R. §§ 91.11, 121.580, 125.328, or 135.120. DISCUSSION: Datarecently compiled bythe FAAreflects a continuing upward trend in the number ofreported incidents oflasers being aimed at aircraft. Aiming a laser at an aircraft can seriously impair a pilot's vision and interfere with the flight crew's ability to safely handle its responsibilities. Flight crewmembers exposed to laser light, while operating an aircraft at night, have experienced glare (atemporary disruption in vision caused bythe presence ofa bright light within an individual's field ofvision), flashblindness (the inabilityto see, causedbybright light enteringthe eye thatpersists after the illumination has ceased), and afterimage (an image that remains in the visual field after an exposure to bright light). A sufficientlypowerful laser could cause permanent ocular damage, blinding crewmembers and making a successful landing virtually impossible. OnJune 1, 2011, the FAA's Assistant ChiefCounse1 for Regulations issued a memorandum interpreting 14 C.F.R. § 91.11 as being applicable to a person, not on board the aircraft, who aims a laser beam at that aircraft. The memorandum noted that the interpretation applied equally to the similarly worded provisions of 14 C.F.R. §§ 121.580, 125.328, and 135.120. Subsequently, this interpretation was published in the Federal Register to increase public awareness that: (1) directing laser beams towards aircraft operating onthe ground or in the air so that it interferes with a crewmember in the performance ofthe crewmember's duties is a violation ofsection 91.11; and (2) persons violating section 91.11 are subject to a civil penalty. See 76 Fed. Reg. 76611-76612 (Dec. 8, 2011). Minors found in violation ofsection 91.11 under this interpretation are subjectto enforcement action and sanction. Because ofthe continuinghigh number oflaser-related flight crewmember interference occurrences and the high riskto safetytheypresent, the FAA's Acting Administratorhas determined that a special emphasis enforcementprogram is warranted for violations of 14 C.F.R. §§ 91.11, 121.580, 125.328, and 135.120 resulting from such occurrences. ACTION: Until further notice, the following special emphasis enforcement program is in effect for violations of 14 C.F.R. §§ 91.11, 121.580, 125.328, or 135.120 committed by an individual when he or she aims a laser beam at an aircraft: I. Informal action (oral or written counseling) and administrative action (warning notices or letters ofcorrection) are not used to address such violations. 2. A single, first-time, inadvertent or non-deliberate violation by an individual generally warrants a civil penalty in the moderate range ($2,200-$4,399). 1

1An individual who holds an airman certificate should appreciate the potential for danger associated with directing a laser at the crew operating an aircraft. Accordingly, a violator's status as an airman is an aggravating factor that maywarrant a civil penalty above the moderate range for a single, first-time, inadvertent or non-deliberate violation. 

### H-4 GOVERNMENT EXHIBIT 

# ti

### 05/01/12 2150.38, Chg 4 Appendix H 3. For a deliberate violation by an individual not holding an airman certificate, the FAA may seeka civil penaltyup to the statutory maximum of$11,000 perviolation under 49 U.S.C. § 4630l(a)(5)(A). 4. For a deliberate violation by an airman certificate holder, regardless ofwhetherthe airman was exercisingthe privileges ofhis or her certificate atthe time ofthe violation, the appropriate sanction generally is revocation ofthe airman certificate. A civilpenalty in the maximumrange maybe appropriate 

### in addition to certificate revocation. 5. TheFAA's Regional Counsel Offices will coordinate withFAA's Office ofChief Counsel, EnforcementDivision, in initiating and processingthese legal enforcement actions.

H-510/01/07 2150.38 Chapter 7. Sanction Guidance Policies
1. 

### Purpose. This chapterprovides the FAA's policies for determining an appropriate sanction once FAA enforcement personnel decide that legal enforcement action is appropriate. This chapter contains the general policythe FAA intends to apply in selectingthetypes ofsanctions, ranges of sanctions within those types, and specific sanction amounts to impose in legal enforcement actions for typical violations ofthe FAA's statute and regulations. This guidance covers the parameters both for selecting sanctions and for modifying sanctions during the informal procedures. The guidance in this chapter is applied in adjudications under 49 U.S.C. §§ 44106,44709,44710, 44726,44924,46111,46301, and 70115. Hazardous materials sanction guidance and policies are addressed inAppendix C. 

### 2. General Guidelines.
a. Certificate Suspension Action and Civil Penalty Action: Sanctions for Punitive and DeterrentPurposes. (I) General. 

### Ifa certificateholder improperly exercises theprivileges ofa certificate, a natural consequence ofthat act is to lose the privileges for a period oftime commensurate with the violation. Balanced againstthis principle, however, the FAA considers the adverse impact that a certificate suspension couldhave on the public. Thus, the agency generally suspends the certificates ofindividual certificateholders for violations. However, theFAAusually takes civil penalty action against air carriers and airports because such actions do not disrupt service, which may adversely affect the public. Nevertheless, whenthe FAA determines that safety considerations warrantit, the agency will suspend the certificate ofany type ofcertificate holder. In no case will theFAAtake civil penalty action alone whenremedial legal action is necessary or appropriate. (2) Use ofbothpunitive certificate action and civil penalty action for the same violations. The FAA generally does not take civil penalty action and punitive certificate action (that is, certificate suspension for a fixed period oftime) against a certificateholder for the same conduct. Ifunusual circumstances warrant deviation from this practice, legal counsel consult with the Assistant ChiefCounsel for Enforcement (AGC-300) before initiating the actions. (3) Change in type ofproposed sanction. The initial enforcement action reflects the agency's best assessment ofthe appropriate sanction for the violations alleged. After initiating the action, legal counsel ordinarily does not change the type ofsanctionunless additional facts or circumstances are presented to the FAAthatwarrant a change. Ifthe action was coordinated under chapter 6, paragraph 3, withAGC-300 before initiation, then legal counsel coordinates any change in the type ofsanction with AGC-300 before making the change. 

### b. Legal Sanctions for Remedial Purposes. (I) Indefinite certificate suspension pending compliance or demonstration of qualification. Suspension action is appropriate where there is a need temporarily to 7-1 

### GOVERNMENT EXHIBIT 

# l10/01/07 2150.38 suspendthe privileges ofthe certificate orrating pendingdemonstration ofqualification or compliance with statutory orregulatory requirements. FAA generally uses remedial suspension when an individual does not voluntarily surrender his orher certificate pendingreexamination. See chapter 5. (2) Certificate revocation

- general. TheFAA revokes a certificate when a certificate holder lacks the qualifications to holdthe certificate. The certificateholder's continued exercise oftheprivileges ofthe certificate in such circumstances would be contraryto safety in air commerce or airtransportation and the public interest. Revocation is appropriate whenever a certificate holder's conductdemonstrates a lack ofthe technical proficiency or a lack ofthe degree ofcare,judgment, orresponsibility, required ofthe holder ofsuch a certificate. Orders of revocation are issued on an emergencybasis whenthe certificate holder lacks qualification and is reasonably able as a practical matterto exercise the privileges ofthe certificate. Legal counsel does not allege a lack ofqualifications to avoid dismissal ofcharges under 49 C.P.R. § 821.33, theNTSB's stale complaintrule. (3) Certificate revocation- individuals. TheFAA generallyrevokes an individual's certificate orrating whenever he or she demonstrates a lack ofwillingness or abilityto comply consistently with statutory orregulatory requirements. A lack ofwillingness or ability to comply maybe demonstratedby such things as repeated or deliberate violations orby violations that involve grossly careless orreckless conduct. Even a single violation maybe sufficientto warrant a conclusion an individual lacks qualifications. The FAA ordinarily revokes all certificates ofa person who commits a violation involving intentional falsification. (4) Certificaterevocation

- entities. Revocation is normally appropriate when a certificate-holding entity deliberately or flagrantly violates the statute orregulations orfalsifies records. Revocation also is generally appropriate whenthe certificate holderhas committedthe same or similarviolations in the recent past demonstrating a lack ofqualification, or when the certificate holder no longerhas, and does not obtain in a reasonable time, the personnel or equipmentto conduct its operation in full compliance with statutory and regulatory requirements. (5) Mandatory certificate revocation. Under 49 U.S.C. § 44710, the FAA is required to revoke the certificates ofany airmanwho has been convicted ofviolating certain federal or state statutes relating to a controlled substance when an airplane was used inthe commission ofthe offense andthe airman served as an airman, orwas aboard the aircraft, in connection with commission ofthe offense orthe facilitation ofthe commission ofthe offense. Evenwhenthere has been no conviction, revocation is requiredwhen an airman has knowingly carried out an activity punishable under these criminal statutes. The Administratormay waive the revocation if a law enforcement officerrequests the waiver and theAdministrator decides the waiver will facilitate law enforcementpurposes. See 49 U.S.C. § 44710(f). Under49 U.S.C. § 44106, the FAA also mustrevoke theregistration certificate ofany airplane used in the commission ofsuch an offense whenthe use was permittedby the owner ofthe aircraft withknowledge that itwould be used for suchpurpose. Under49 U.S.C. § 44726, the FAAmustrevoke the certificates ofany certificate holder or an individual who has a controlling or ownership interest in the holder who was convicted ofa violation offederal law relating to the installation, production, repair, or sale ofa counterfeit or fraudulently-represented aviation part ormaterial orknowingly, and with the 7-210/01/07 2150.38
intent to defraud, carried outor facilitated an activity punishable under such a law. The Administrator may waive that sanctionto facilitate law enforcementpurposes or amend, rather than revoke, a certificate under certain circumstances. See 49 U.S.C. §§ 44726(±) and (g). (6) Mandatory certificate action for security concerns. Under49 U.S.C. § 46111, the Administrator is requiredto issue an order amending, modifYing, suspending, or revoking any FAA-issued certificate iftheAdministrator is notified bythe Under Secretary ofBorder and Transportation Security (BTS) ofthe Department ofHomeland Security (DHS) thatthe certificateholder poses, or is suspected ofposing, a risk ofair piracy orterrorism or a threat to airline orpassenger safety. Under49 U.S.C. § 44924, the Administrator is required, atthe request ofthe Under Secretary ofBTS, to suspend orrevoke foreign repair station certificates in connection with security audits. 

### 3. Applicability and Exclusions. The sanction guidance table (table) in AppendixB provides types ofsanctions and general ranges ofsanction amounts for violations of49 U.S.C. subtitle VII and 14 C.F.R. parts 1-199 and 49 U.S.C. subtitle IX, chapter 701 and 14 C.F.R. chapterIII. Oncethe agency has determined that legal enforcement action is warranted for a violation, FAA enforcementpersonnel use the table and paragraph 4 ofthis chapter, as well as any other sanction guidance in this order, to determine a proposed sanction. Thematters described in chapter 7, subparagraphs 3a.-d. are some types ofagency action that fall outsidethe scope of paragraph 3 and the table.


### a. Decisions to Take Administrative Action (Warning Notices or Letters of Correction). An administrative action does not constitute either a formal adjudication ofthe incident or a finding ofviolation. Forthat reason, FAA investigative personnel do notpropose a sanction using the table. 

### b. The FAA's Exercise ofProsecutorial Discretion. The decision whetherto prosecute a particular case is based on a review ofthe evidence and relevant policy and litigation considerations. The agency exercisesbroad discretion in boththe initial decision to bring a legal enforcement action, and in any later determination to compromise or settle a case based on various considerations. The FAA's discretion in these areas is absolute and presumedto be immune from review. Heckler v. Cheney, 470 U.S. 821, 831 (1985).


### c. Hazardous Materials Violations. Actions involving violations ofthe federal hazardous materials transportation law, 49 U.S.C. chapter 51, orthe Department ofTransportation's Hazardous Materials Regulations, 49 C.F.R. parts 106 through 185. Enforcement sanction guidance for these violations is found in Appendix C. 

### d. Violations byMembers ofthe U.S. Armed Forces. The FAA is required toforward reports ofthese violations to the Secretary ofthe department concerned under 49 U.S.C. § 4610l(b), whenever the violator is acting in the performance ofofficial duties. TheFAA, however, takes remedial action in additiontoreferring a report whenthe violator, whether ornot

7-3

### 10/01/07 2150.38 acting in the performance ofofficial military duties, holds anFAA certificate, and the violator's qualifications are at issue. The FAAmay takepunitive action against a member ofthe U.S. Armed Forces for a violation committed when the member is not performing official duties. 

### 4. Mitigating or Aggravating Factors and Elements. The factors in chapter 7, subparagraphs 4.a. through m. have been developed over years ofpolicy making and case adjudication. They have proven useful and appropriate for determiningthe seriousness ofa violation and for selecting an appropriate sanction. Elements for evaluating and weighing eachfactor are also described. These factors and elements provide a framework for determining sanctions for violations specifically listed in the table as well as those not specifically listed. All the factors and elements, however, may not apply to each violation. Onlythose factors and elements that are relevantto a violation are considered in determining a sanction for the violation. This list of factors and elements is not intended to be exhaustive; other factors may be relevant as well
.. 

### a. Nature ofthe Violation. Three elements define the nature ofa violation: first, whether the violation was operational or non-operational; second, whetherthe violation involved careless orreckless conduct; andthird, whether the violation involved any special aggravating or mitigating factors. (I) Individuals. When an individual who holds a certificate improperly exercises the privileges ofthat certificate, the natural consequence ofthat act shouldbe loss ofprivileges for a period oftime commensurate withthe violation. The FAA, therefore, primarily uses certificate actions to enforce operationalregulations against individuals who hold certificates. The potential adverse impact that certificate action may have on an individual's livelihood does not alter this principle. Non-operational violations may warrant a different type ofsanction. (2) Entities. The FAA ordinarily takes civil penalty action against a certificate-holding entity (for example, an air carrier) when it determines there would be a substantial adverse impact on the public interest from disrupted service by that certificateholder and the impact is not outweighed by safety considerations. Even when a substantial adverse impact would occur, when there is a need to prevent continuing violations or other egregious conduct by any certificate holder, when any certificate holder lacks qualification, orthere is areasonable basis to questionthe qualifications ofany certificate holder, the FAAtakes remedial action, for example, revocation or indefinite suspension, as necessary. (3) Careless orreckless conduct. Violations that involve careless orreckless conduct in violation of I 4 C.F.R. § 9I.I 3 maywarrant more severe sanctions. Carelessness connotes conduct thatfalls below the standard ofcare orprudence expected ofa reasonable person, or holder oftherelevant certificate, acting under the same or similar circumstances. Recklessness connotes conductthat demonstrates a gross, or even callous or flagrant, disregard for safety. Aircraft operations that do not otherwise result in a violation ofa specificregulation should be evaluated in light ofthese standards to determine whether they constitute careless or reckless operations in violation of 14 C.F.R. § 9 I.13. When a person operates an aircraft in violation ofa specific regulation otherthan 14 C.P.R.§ 91.13, however, that violation constitutes a careless or reckless operation in and ofitself. In these cases, the misconduct may also result in a violation ofI 4 C.F.R. § 91.13 ifit actually orpotentially endangers the lives orproperty ofothers. 

### 7-410/01/07 2150.38 When calculating the amount ofsanction based on this factor, a distinction generally is drawn between instances where 14 C.F.R. §91.13 is an independentviolation and those where it is residual to another violation. When a 14 C.F.R. §91.13 violation is residual only, a higher sanction generally is notwarranted unless the conduct is also reckless. b. Whether the Violation was Inadvertentand Not Deliberate. Ifa violation is deliberate or not inadvertent, a sanction atthe upper end ofthe range or exceedingthe range for that type ofviolation generally is appropriate. A deliberate violation generally warrants a sanction that is more severe than one that isjustnot inadvertent. (I) Not deliberate. This element means a lack ofthe degree ofdeliberation found in intentional misconduct. Deliberate or intentional misconduct is an aggravating circumstance and includes deliberate conductthat leads to a violation as well as circumstances indicating intentto commit a violation. (2) Inadvertence. An act is inadvertent when it is the result ofboth inattention and lack ofpurposeful choice. For example, an inadvertent act occurs when a pilotflies at an incorrect altitude because he or she misreadthe aircraft's instruments; however, it is not an inadvertent act when a pilot flies at an incorrect altitude as a result ofchoosing not to consultthe aircraft's instruments or choosing notto use other available means to verify altitude. The test to be applied is whetherthe conduct, not the factual or legal consequences, is inadvertent and unintended. Ferguson v. National Transportation SafetyBoard, 678 F.2d 821, 828-829 (9th Cir. 1982).

c. Certificate Holder'sLevel ofExperience. (I) Level ofexperiencerefers primarilytothetype ofcertificate and ratings held (for example, student, private, commercial, airline transport pilot, or certified flight instructor), and the number ofhours flown, by the certificate holder. Certificateholders with greater levels of experience may beheld to a higher standard. Thus, for example, commercial pilots may be held to a higher standard than private pilots and airlinetransport pilots maybe held to an even higher standard than commercialpilots. (2) In determining an appropriate sanction, the FAA may consider the extentto which the certificate holder's action deviated from the degree ofcare and diligence normally expected ofa person withthe certificateholder's level ofexperience. A significant deviation from the degree ofcare and diligence expected ofthe holder ofthat certificate may warrant a more aggravated sanction. d. Attitude oftheViolator. (I) A good compliance attitude is the norm and does not warrant a reduction in sanction. A priorviolation history may suggest that a person has a poor compliance disposition, which is an aggravating factor. Furthermore, a person who commits an act or omission contraryto statutory or regulatory requirements after receiving notice through a prior administrative action or counseling that such conduct is in violation ofthose requirements might well beregarded as having apoor compliance disposition. In evaluating compliance disposition, the FAA does not 7-5

### 10/01/07 2150.38
view an alleged violator as having a poor attitude because the alleged violatorfails torespond to a letter ofinvestigation, choosesto be represented by counsel, or conteststhe violation. (2) In assessing the attitude ofan alleged violator, the FAAmay considerthe declaration ofan emergencyto airtraffic controL When an emergency is genuine and not ofthe person's ownmaking, the emergency is exculpatory under 14 C.FK § 9L3(b). However, this situation is distinct from the situation where a declaration ofemergency is not exculpatorybut is a factor that mightbe appropriate to consider in determining sanction. In emergency situations, the FAA views declaring an emergencyto airtraffic control as a sign ofgoodjudgment and a constructive attitude. When an emergency is ofa person's own making, thatperson's declaration ofan emergency maybe considered mitigating in determining the sanctionto be imposedfor any violations committed, in much the same way it is considered mitigating ifa person voluntarily reports a violation.


### e. Degree ofHazard. (1) The degree ofhazard may be increased as a result ofthe interplay ofthe operational environment (for example, weather conditions, congested vs. sparselypopulated areas) and the nature ofthe threatto safety (to the life orproperty ofanother, including those in the aircraft being operated, to other aircraft, ortopersons orproperty onthe surface) thatthemisconduct presents. The safetythreat is based on thereasonably foreseeable consequences ofthe misconduct For example, operating 500 feet below the minimum altitude poses a greater hazard than operating 100 feet below. Similarly, ifan aircraft operator fails to comply with an airworthiness directive by operating 10 hours past a required inspection, the degree ofhazard is probably not as great as whenthe aircraft is operated I00 hours beyondthe required. And it is not mitigating when a violation does notresult in actual harm; that is simply fortuitous. (2) The sanction ranges reflect the degree ofdanger normally inherent in an average violation ofa regulation, without aggravating circumstances. As discussed in chapter7, subparagraph 5.b., an increase in the degree ofhazard may form the basis for exceedingthe sanction ranges. For example, the range for an unauthorized low flight does not assume extreme departures from required altitudes, for example, flying an airplane over a crowded assembly of persons at 50 feet 

### f. Action Taken by Employer or Other Authority. This factor ordinarily involves the following elements: whetherthe alleged violator's employerhas taken disciplinary action and whether criminal prosecution is involved. 

### (I) Employment discipline. Where the violationwould normally call for a certain type ofenforcement action, theFAAtakes that action regardless ofany action taken by the violator's employer. Generally, the FAA does not credit an employer's disciplinary action toward a period ofsuspensionthe FAA imposes against the violator's certificate because ofthe different purposes ofgovernment-ordered, as contrasted with employer-ordered, actions. (2) Criminalprosecution. When arising outofthe same conduct, local, state, or federal prosecution does not preclude the FAA from taking appropriate remedial enforcement action; nor 

### 7-610/01/07 2150.38
does itpreclude the FAA from taking appropriate punitive enforcement action. Forcases where federal, state, or local authorities prosecute criminally, the FAA generally does take remedial enforcement action ifthat is warranted despite the criminal prosecution. However, the FAA does not generally take punitive legal enforcement action for the same conduct, unless it believes the criminal sanctions are not sufficient to provide an adequate deterrent for future violations bythe violator and others similarly situated, or when the FAA wants to establish a violation history record. Ifthe FAA decides to proceed with a punitive civil enforcement action in addition to the criminal prosecution, it generally considers the criminal penalties incurred in those proceedings in determining the appropriate amount ofsanctionto be sought in theFAA's punitive enforcement action. 

### g. Use ofa Certificate. This factor relates to the nature orkind ofactivity or operation involved at the time the violationwas committed. Whether the certificate holder was engaged in student, private, commercial, or airline activity bears on the severity ofthe sanction. Air carriers are held to the highest standard ofcare. Likewise, personnel engaged in airtransportation are held to the highest safety standard. 

### h. Violation History. (I) A violation-free history is the expected norm, notthe exception and, therefore, is not a mitigating factor. Sanctionranges in the table generally represent the normal range ofsanction for a single, first-time, inadvertent violation. Given the expected norm, a prior violation record can be evidence ofa poor compliance disposition or ofa pattern ofdisregard for the FAA's regulations, which are aggravating factors. As a result, a violation history canjustifY imposing a sanction at thehigher end ofthe normal range or a sanction beyond the normal range. Itmight alsojustifY revocation rather than suspension ifthe pattern ofviolation reflects a lack of qualification. In addition, a violation history mightjustifY a certificate suspension ifpreviously issued civil penalties have notproduced the desired deterrent effect. In deciding whether a violationhistoryjustifies aggravating the sanction or changing the usual type ofsanction, the FAA considers the length oftime that has elapsed between violations, whetherthe violations involved the same or similarregulations, andwhether the violations are factually similar. (2) The following actions constitute violation history when they involve regulatory violations and become final: orders ofamendment, modification, suspension, or revocation ofan FAA certificate; orders assessing a civil penalty; findings ofviolation contained in a consent order, order ofcompliance or denial; and findings ofviolation made by a federal court. In addition, apartymay agree as part ofa settlement that the FAA may consider allegedviolations as findings ofviolation for future sanction determinations. i. 

### Decisional Law. Decisions ofthe FAA decisionmaker representtheFAA Administrator's position on issues arising in civil penalty assessment actions, including issues regarding sanctions. The policy inthis order also represents the Administrator's position on sanctions in legal enforcement actions. Tothe extentthatthis document conflicts with FAA decisionmaker decisions published before this document's issuance, the sanction guidance policy in this order supersedes those decisions. However, FAAdecisionmaker decisions published after

7-710/01/07 2150.38
the issuance ofthis document that conflictwiththe policy in this order supersede this document and are controlling. j. Ability to Absorb Sanction. Sanctions should be deterrent. While punitive sanctions should notbe unduly harsh, they should be substantial enoughto preventviolators from profiting from their violations, that is, the sanction should be high enough to remove any profit incentive for violations. Penalties should never be permitted to be a cost ofdoingbusiness. Aircarriers, in particular, are required by law to have the financial wherewithal to operate according to established safety standards. While the FAA does not allow financial circumstances to excuse any violation, it does consider a carrier's size and financial strength in choosing the appropriate sanction amount. The difference in the penalties fixed in the law for large and small business concerns recognizes this fact. A civil penaltythat maybe a mere cost of doing business to a major air carrier might compel a small air carrier to go out ofbusiness. Therefore, the FAAuses air carrier size as one means ofensuring a relatively equivalent deterrent effect on each air carrier that violates the same FAA regulation. The resulting classification ofair carriers by size and ranges ofcivilpenalties are set forth inpart one ofthe table. For all entities and individuals, the FAA considers ability to pay a civil penalty and the effect a civil penalty will have on a person's ability to continue in business to the extentitknows such information. k. Consistency ofSanction. One ofthe agency's goals is to achieve relative consistency in imposing similar sanctions for similar violations. The FAApursues this objective to assure fairness and so the sanction's impact has an equivalent degree ofdeterrent or disciplinary value to others similarly situated. This goal may not always be achieved, however, because ofthe inherently subjective nature ofthe exercise of judgmentin setting sanctions. I. Whether the Violation was Reported Voluntarily. (1) The FAA has programs that allow persons to report voluntarily apparent violations and receive lesser enforcement action provided certain criteria are met. Theseprograms include the aviation safetyreporting program, the voluntary disclosure reporting program, andthe aviation safety action program. Besides these programs, the FAAmay grant special enforcement consideration under certain circumstances to a person who, incident to his orherreport of another's violations, voluntarily discloses his orher own participation in the same orrelated violations. This special enforcement consideration may range from mitigating the sanction to determining that no enforcement action is required. (2) Ifa person is not covered under one ofthese programs butnonetheless voluntarily reports an apparent violation to the FAAbefore the FAAdiscovers it, takes immediate action to correct the noncompliance, and works with the FAAon steps to preclude recurrence ofthe apparent violation, the FAAmay consider such actions in mitigating the sanction for the violation.
m. Corrective Action. The FAA considers corrective action a mitigating factor in determining sanction provided the corrective action exceeds the minimum regulatory or statutory requirements. The amount ofcredit given in setting a sanction depends on the extent andtiming ofthe corrective action, that is, how extensive was the corrective action and how quicklywas it taken. Implementing new procedures that are above those requiredunder the FAA'sregulations 7-810/01/07 2150.3B

to prevent future violations ordinarily is considered a mitigating factor in determining an appropriate sanction. Corrective action taken after the alleged violator first becomes aware ofa deficiency butbefore FAA discovery ofthe violation ordinarily warrants greatermitigation than corrective action that is taken only after the alleged violatorreceives notice ofthe FAA's enforcement action. Corrective action taken by an alleged violatorthat simplybrings thatperson into compliance with the statutory orregulatory requirements is not considered in mitigation of sanction. To mitigate a sanctionbased on such corrective action would put at an economic disadvantage competitors who have expended the resources necessary to maintain compliance. 

### 5. Use ofthe Table ofSanctions.
a. General. Sanction determinations are not accomplished through a strict mathematical formula; rather, sanction determinations result from ajudgment ofwhere a case lies along a spectrum ofgravity. Ultimately, the circumstances ofeach case are evaluated in terms ofthe needs ofsafety and the public interest. 

### b. Single, First-time, Inadvertent Violations. (1) Part II ofthe table specifies both the normal types ofsanction (certificate action, civil penalty action, or othertype) and the normal ranges within those types the FAA ordinarily seeks to impose in a legal enforcement action for a single, first-time violation that is generally inadvertent (the table includes ranges ofsanctions for several violations that usually are intentional, for example, interference with a crewmember, smoking on an aircraft). In addition, the table generally reflects a presumption that the alleged violator wants to comply with the law and to remedy any noncompliance and thatthe alleged violator, therefore, has a constructive attitude. (2) Forfactors b, d, orh ofparagraph4 (that is, inadvertent and not deliberate conduct, attitude, and violationhistory), the FAA does not normally deviate from the ranges listed in the table solely based onthe inadvertence ofthe violation or on the alleged violator's good reputation, pastpublic service, violation-free history, or constructive attitude. Any mitigating circumstances are to be found in the facts and circumstances ofthe violation itself. (3) Applying ranges within a sanction type. Indetermining where, within eachrange, a sanction should be imposed, the FAA generally considers factors a, c, e, f, g, i,j, k, and m of paragraph 4 (that is, nature ofthe violation, level ofexperience, degree ofhazard, action by employer or other authority, use ofcertificate, decisional law, ability to absorb sanction, consistency ofthe sanction with similar cases, corrective action), to the extentthey are applicable or relevant. When determining a specific sanction amount within a range, FAA enforcement personnel begin with an amount in the middle ofthe range and increase that amount toward the higher end ofthe range for aggravating factors or decrease that amount towardthe lower end of the range for mitigating factors. (4) Deviating from ranges within a sanction type. The FAA might impose sanctions below the normal ranges based onjustifiable mitigation under factorsj, I, and m ofparagraph4 (that is, the ability to absorb the sanction, voluntary reporting, corrective action). The FAA may 7-910/01/07 2150.3B impose sanctions above the normal ranges when the following circumstances, relating to factors b, d, e, and h ofparagraph 4 are present: the violation is other than inadvertent4

, the violator has a violation history, the violation involves a significant degree ofhazard, orthe violator has a poor compliance disposition. The ranges also maybe exceeded whenthe case involves multiple violations. (See chapter 7, paragraphs 6 and 7).


### c. Types ofSanction. (1) General. The FAA ordinarily does notinitiate punitive civil penalty and punitive certificate actions (that is, fixed-period certificate suspensions) against a certificate holder for the same offense. While electing to impose one sanction is not a legal bar to a concurrent proceeding to impose another, pursuing both actions solely for punitive purposes usually is not necessary. The FAAtakes remedial and punitive actions inthe same case, however, when warranted. (2) Selectingtypes ofsanctions. Except in exceptional circumstances, the FAAuses the type ofsanction recommended in the table. The FAAmust impose any sanctionmandated by statute (for example, revocation under 49 U.S.C. §§ 44106(b), 44710(b), and 44726(b) unless waived by the Administrator). 

### 6. General Guidance on Multiple Acts orMultiple Violations.
a. Description ofMultiple Violations. Enforcement actions often involve multiple violations: multiple violations ofa single regulation; a single violation ofmultiple regulations; ormultiple violations ofmultiple regulations. In addition, under49 U.S.C. §4630I(a)(2), ifa violation is a continuing one, each day the violation continues, or each flight for which the violation was committed, constitutes a separate offense. 

### b. General Sanction Guidance. Multiple violations ordinarily result in high sanction amounts. Such sanction amounts ordinarily are notdetermined by simply adding up the individual penalties for multiple violations setforth in the table, however. Simply adding up the individual penalties for each violation couldresult in compounding a sanction in a disproportionately harsh manner for the conduct involved. Conversely, multiple violations may be so serious in their consequences for safety andthe public interest as to require a penalty greater than the sum ofthe recommended amount ofpenalty provided for inthe table for each violation.


### c. Single Act ofNoncompliance Resulting in Multiple Violations. When a single instance ofnoncompliance results in multiple violations ofgeneral and specific regulations involving the same or similar conduct, the FAA ordinarily does not compoundthe sanction to reflect the amount ofsanctionrecommended in the table for eachregulatory violation. In calculating the amount ofsanction for multiple violations, FAA enforcementpersonnel consider

4 "When the violation is one that is generally inherently deliberate (e.g., interference with crewmember or smoking violations), factor b. is not considered in determining whether the sanction should be above the range in the table. The ranges in the table for such violations already have taken into consideration the inherently deliberate nature of the violation. 7-1010/01/07 2150.3B
the totality ofcircumstances relating to the multiple violations, including the alleged violator's degree ofculpability, and whether the alleged violator had taken steps, although unsuccessful, to preventthe violations. d, Type ofLegal EnforcementAction. Where this guidance designates the type oflegal enforcement action for a single violation, the FAA ordinarily selects the sametype ofsanction for multiple violations ofa similar nature. The seriousness ofmultiple violations, however, may require changing what is normally a civilpenalty action to a certificate action or, sometimes, a punitive certificate suspension to a remedial revocation action. 7. Special Considerations for Numerous Multiple Violations Resulting From an Initial Act or Omission. To determine penalties for numerous multiple violations that result from an initial act or omission, the FAA applies the special considerations and gnidance inchapter7, subparagraphs 7.a. through e. These cases involve such a high number ofmultiple violationsthat ifF AA enforcementpersonnel were simply to add the recommended amounts ofpenalty for each flight or day that constitutes a separate violation, the resulting sanction amount couldbe disproportionately harsh for the misconduct involved, in an average case.
a. DeterminingProposed Penalty. To determine an appropriate civil penalty in a case involving numerous multiple violations resulting from an initial act or omission (for example, an aircraft operated on a dozen or more flights after being improperlyreturned to service), FAA enforcementpersonnel: (1) IdentifY each initial act or omission that caused orresulted in the multiple violations (for example, improper maintenance plus improper return to service; failure to maintain a quality contral system). (2) Consultthe table in Appendix B and the general guidance inchapter 7, paragraph 4, on aggravating and mitigating factors to determine the amount ofpenalty appropriate for each initial act or omission that caused orresulted in the multiple violations (for example, in airworthiness cases, a penalty for the act ofimproper maintenance or inspection; in manufacturing cases, a penaltyfor the act offailing to maintain a quality control system). (3) Determinethe amount ofpenalty for the numerous multiple violations by applying the guidance in chapter 7, subparagraphs 7.b. through d. Ofparticular importance in determining an appropriate sanction for numerous multiple violations is the degree ofthe alleged violator's culpability for the multiple violations. A lower degree ofculpability is presentwhen the alleged violator neither knew nor was likely to discover the continuing violations. For example, once improper maintenance was done there were no signs ofit from such things as discrepancies reported by the crew, and no inspections thatwould have led to its discovery were scheduled. A more significant degree ofculpability is present when factors such as the following are present:

• the initial act or omission was entered in records that should have led to immediate detection and correction; • the initial act or omission remained undetected and continuedthrough required inspections or checks designed to reveal such discrepancies; 7-1110/01/07 2150.38

• the alleged violator was not following maintenance or inspection proceduresthe FAA had approved or accepted; • the level ofthe alleged violator's organizationthatwas aware of, or involved in the noncompliance included management (for example, management implemented policies that contributed to the violations), although an alleged violator's culpability does notrequire managementinvolvement; • the alleged violator has a history ofsimilar violations or a history ofsystemic deficiencies. Knowing and willful violations connote the highest degree ofculpability. (4) Addthe penalties arrived at for the initial violation to the penalty for the multiple violations. b. Limitations on Total Civil Penalty Amounts for Numerous Multiple Violations. (!)In an average case involving numerous inadvertent, multiple violations resulting from a single act or omission, that is, not one that is covered bychapter 7, subparagraphs 7.c. or 7.d., the total civil penalty for the multiple violations ordinarily falls within the ranges provided in eitherFignre 7-1 or 7-2. The group classifications are defined in partI ofAppendixB. (2) The term isolated inFigures 7-1 and 7-2 typically describes a single instance ofan employee's failure to follow a statutory orregulatory requirement, contraryto the company's ownpractice orprocedure. A case may involve a number ofisolated andunrelated violations. Each group ofthe multiple violations resulting from each isolated violation ordinarily is subject to the isolated, inadvertentranges in Fignres 7-1 or 7-2. (3) Inadvertent failures are considered systemic ifthey are repetitive or otherwise demonstrate an underlying deficiency in the alleged violator's system, practices, orprocedures. Systemic failures generally warrant more substantial penalties and indicate a need for corrective action. (4) The aggravating or mitigating factors and elements in chapter 7, paragraph 4. are considered to determine an appropriate civil penalty within the applicable range in Figure 7-1 or 7-2, for the multiple violations resulting from the initial act or omission. Ofparticular importance is an evaluation ofthe seriousness ofthepotential hazard caused by the violation and the degree ofculpability ofthe alleged violator for the multiple violations.

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