### UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: TYLER PENNYWITT, Respondent.

Thursday, June 26, 2014 FDMS Nos. FAA-2013-0716

The teleconference pursuant to notice, at 2:00p.m. convened,

BEFORE: THE HONORABLE J.E. SULLIVAN, Administrative Law Judge 

# RECEIVED JUL 11**201~** 

## HEARING DOCKET

NEAL 

### R. GROSS 1

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### APPEARANCES:

On Behalf of the Complainant: CHRISTOPHER H. STEVENSON, ESQ. of: Federal Aviation Administration Office of Regional Counsel, AS0-7 Southern Region P.O. Box 20636 

### Atlanta, GA 30320

(404) 305-5200 (404) 305-5223 

### fax

On Behalf of the Respondent: TYLER PENNYWITT, pro se 4483 

### Hanover Park Drive Jacksonville, FL 32224


### Also Present: Cody L. Smith, Office of Hearings

NEAL

### R. GROSS 2

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1 

### P-R-0-C-E-E-D-I-N-G-S 2 

### 2:04p.m. 3 

### JUDGE SULLIVAN: We 1

### re on the 4 record in the matter of the Federal Aviation 5 

### Administration v. Tyler Pennywitt. This is 6 Docket No. FAA-2013-0716. 7 Today is Thursday, June 26, 2014, 8 and the parties have appearedby telephone for 9 oral argument on the FAA 1

### s motion for summary 10 judgment. 11 

### The FAA is represented by Mr. 12 Christopher R. Stevenson, the attorney of 13 record. The respondent, Tyler Pennywitt, is 14 representing himself. 15 

### Also present sitting in as an 16 observer in support of Mr. Pennywitt is his 17 spouse, Ms. Debbie Pennywitt. 18 

### In addition, sitting in at the 19 Office of Hearings courtroom is Mr. Cody L. 20 Smith, an attorney advisor with this office, 21 and he 1

### s appearing as an observer only. Good 22 afternoon, everybody.

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### 1 What I'm going to do is I'm just 2 going to highlight briefly what's been filed 3 since the last court order was issued so that 4 we're all up to speed. 5 

### On December 13, 2013 an order 6 setting litigation dates and procedures was 7 filed. 8 

### Subsequently on May 5, 2014 the 9 FAA filed its motion for summary judgment. 10 On May 29, 2014 Mr. Pennywitt 11 filed a motion to dismiss in response to 12 motion for summary judgment. 13 And on June 10, 2014 the FAA filed 14 a reply in support of motion for summary 15 judgment and response in opposition to motion 16 to dismiss. 17 We have some things to talk about 18 today. And I think probablywhat I'm going to 19 do is identify the two or three matters that 20 you need to address. 21 And then I will turn first to Mr. 22 Stevenson and discuss those things with him

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### 1 first. And I do so simply because as the 2 prosecuting representative, tradition always 3 allows the prosecuting agent to go first. 4 So essentially, Mr. Stevenson, we 5 

### have the motion for summary judgment 6 requesting a motion for a dispositive ruling 7 on the merits of the violation itself which is 8 an allegation of one violationpursuant under 9 14 CFR 

### 91.11. 10 Second, we have a motion for 11 dispositive relief on the proposed fine that 12 the FAA has alleged in its complaint, that 13 being a total penalty of $11,000 for the 14 alleged violation. 15 

### And third, we have a motion to 16 dismiss by the respondent on various grounds 17 including the issue of double jeopardy. And 18 then there was also, as you may have noticed, 19 an issue raised within that motion regarding 20 the timeliness of the filing of the complaint. 21 And I'm going to talk to you about all of 22 those different things.

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### 1 I think what I'd like to do is 2 just ask you what your preference is at this 3 point in terms of addressing those three 4 primary matters that are before the Court 5 today. Which would you like to take first? 6 

### MR. STEVENSON: I would take the 7 motion to dismiss first. 8 

### JUDGE SULLIVAN: Okay. Do you 9 care to address the motion to dismiss that's 10 been filed by the respondent? And I have that 11 right in front of me and I'm happy to follow 12 along with your argument. 13 

### MR. STEVENSON: Sure. I will try 14 not to repeat myself. So I'll just note with 15 regards to double jeopardy I think this is 16 pretty straightforward. Double jeopardybars 17 a subsequent criminal prosecution. This is 18 not a criminal prosecution. And so the double 19 jeopardy clause does not apply. 20 

### The respondent cited one case in 21 support of his notion that double jeopardy 22 would apply but that is a case that was

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### 1 expressly overruled, or at least that holding 2 was expressly overruled by the Supreme Court 3 later on as discussed in the agency's 4 response. 5 

### The Supreme Court noted that 6 essentially Halper was out of synch with all 7 of the other double jeopardy jurisprudence. 8 With regards to the timeliness of 9 the complaint, I apologize, I did not

-- I had 10 not read the respondent'smotion to dismiss as 11 presenting that as a basis for dismissal. 12 But in that regard I would note 13 that the FAA's complaintwas timely filed with 14 regards to when the FAA was actuallyprovided 15 with notice that the respondent had requested 16 a hearing. 17 The respondent did not

-- and I 18 say the respondent. This is the respondent 19 through his criminal attorney who filed the 20 request for a hearing. 21 We did not receive a copy of that 22 at the time. After we issued

-- and then

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### 1 because we had not received a copy we went 2 ahead and issued an order imposing the civil 3 penalty. 4 That was -- it was at that point 5 that was the first time that the FAA ever 6 heard any -- or sorry, that the FAA at the 7 legal stage ever heard any response from Mr. 8 Pennywitt or his attorney. 9 As Mr. Pennywitt explains in his 10 motion they made a deliberate tactical 11 decision to ignore the process up to that 12 point for

-- I guess for purposes of making 13 their double jeopardy argument. 14 I spoke to the attorney at that 15 time. He didn't say that they had requested 16 a hearing. I did not find out that a hearing 17 had been requested until Mr. Pennywitt's 18 criminal attorney filed a motion in his 19 criminal case and I was provided with a copy 20 of that motion by the U.S. Attorney's Office 21 who I had at that point talked to because this 22 double jeopardy issue had been referenced to

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### 1 me by Mr. Pennywitt's attorney. 2 And as an attachment to that 3 

### motiono was this request for hearing. And 4 that was the first time that I saw it. 5 I immediately contacted the civil 6 penalty docket. They indicated that they had 7 received this. And so we filed the complaint. 8 And if I recall correctly this is 9 discussed in the original filing made by the 10 FAA when we filed our complaint. 11 

### So, first, our complaint was not 12 untimely. Our complaint was filed as soon as 13 we actually received the request for a 14 hearing. 15 Second, I believe that regardless 16 if Mr. Pennywit t was going to make a motion to 17 dismiss on the basis that the complaint was 18 not timely, that is a motion that needed to be 19 made at the time the FAA filed the complaint, 20 not a motion to be made months and months 21 later after the parties have engaged in 22 everything substantive about the litigation

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### 1 except for the hearing itself. Thank you. 2 

### JUDGE SULLIVAN: Okay. And before 3 I hear from you on other matters I'm just 4 

### going to turn very briefly to Mr. Pennywitt. 5 

### Mr. Pennywitt, if you're not 6 familiar with this process I just wanted to 7 let you know that when you hear Mr. Stevenson 8 making certain points and you disagree with 9 them you want to make a little note for 10 yourself, or if your wife is helping you take 11 notes, take some notes. 12 And then I will be sure to give 13 you a chance to make any statement that you 14 think challenges those arguments or disputes 15 them. So you want to be making some notes as 16 you hear Mr. Stevenson speak if you did not 17 know that already. 18 

### MR. PENNYWITT: Thank you, Your 19 Honor. 20 

### JUDGE SULLIVAN: You're welcome. 21 Okay, thank you. 22 

### Mr. Stevenson, why don't we go

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### 1 next

-- before we go to the motion for summary 2 judgment, and I realize part of this question 3 may dip into the civil penalty issue in the 4 summary judgment. 5 But I'd like to talk and ask you a 6 few questions about the double jeopardy 7 argument now if I may. 8 

### MR. STEVENSON: Yes, Your Honor. 9 

### JUDGE SULLIVAN: I would agree 10 with you of course that the Halper case that 11 Mr. Pennywit t has provided to us has been 12 abrogated by a subsequent decision issued by 13 the Supreme Court approximately nine years 14 after Halper was decided. 15 But in the Halper and the Hudson 16 cases there is a continuing expression of 17 concern by members of the Supreme Court that 18 was not challenged about the provision in 19 double jeopardy, the concept of double 20 

### jeopardy, that there should not be a 21 punishment exercised by the government in 22 civil proceedingsthat basicallyis a repeated

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1 punishment for the same behavior. 2 And I will-- I'm going to refer 3 to some material in both Halper and in the 4 Hudson case just so that I can focus you in on 5 where I'd like you to address some concerns. 6 So in Halper, and I have the case 7 in front of me and I am going to see if I can 8 reference this. This is 490 U.S. 435, U.S. v. 9 Halper. And I 'm on the very last page of page 10 440. And this is part of the majority opinion 11 written by Justice Blackman. 12 He's talking about how, and I 13 quote, "If there is anything settled in the 14 jurisprudence of England and America it is 15 that no man can be twice lawfullypunished for 16 the same offense.'' 17 And then he talks a little bit 18 about how the double jeopardy clause protects 19 against three distinct abuses. And I'm still 20 on page 440 but I'm a little higher up on the 21 page at this point. It's directly under the 22 paragraph roman numeral II.

NEAL R. GROSS (202) 234·4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISlANDAVE., N.W. WASHINGTON, D.C. 20005·3701 (202) 234-443313 1 He talks about that there are 2 three distinct double jeopardy abuses. One, 3 a second prosecution for the same offense 4 after acquittal. That's clearly criminal. 5 Two, a second prosecution for the 6 same offense after conviction. Again, purely 7 criminal. 8 And three, multiple punishments 9 for the same offense. And I am concerned at 10 least from reading the material so far that 11 there is some possibilityof that in this case 12 in part because there is a continuing 13 discussion in the Hudson case about that exact 14 problem. 15 And in that discussion, and I'm 16 going to go to Hudson v. United States. This 17 is 522 U.S. 93. And go to-- give me a minute 18 to find my page. Okay. 19 This is in the concurrencewritten 20 by Justice Stevens. And this would be

-- 21 there's a variety of problems that he makes. 22 But on page 499 of the decision he

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### 1 agrees with the majority opinion that Halper 2 should be abrogated for various reasons. 3 But he also talks about how there 4 is a subtle proposition that the government, 5 and I'm going to quote, "cannot use the civil 6 label to escape entirely the double jeopardy 7 clause's command. " 8 And then he goes on to talk about 9 how that proposition is so important because 10 "the states and the federal governmenthave an 11 

### enormous array of civil administrative 12 sanctions at their disposal that are capable 13 of being used to punishpersons repeatedlyfor 14 the same offense, violatingthe bedrockdouble 15 jeopardy principle of finality." 16 

### And then he goes onto talk a 17 little bit more in the next few pages about 18 how this is a difficult type of issue to raise 19 and to prove and so forth and so on. But the 20 concept being that you don't want to have a 21 person, a citizen of the country continually 22 being called back into court for essentially

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1 the same offense and punished over and over 2 again. Which is what I'm hearing from Mr. 3 Pennywitt in some of his material. 4 So when you say that the double 5 jeopardy matter doesn't really apply because 6 this is a civil case instead of a criminal 7 case I would agree with you that there is a 8 very clear distinctionbetween this case being 9 a civil case and the conviction that Mr. 10 Pennywitt has already experienced was under 11 the criminal forum. 12 I'm not quite sure I'm as equally 13 persuaded, however, that there isn't some 14 indiciahere of potential repeatedpunishment, 15 particularlygiven the fact that the criminal 16 statute under which Mr. Pennywitt was charged 17 and prosecuted under was enacted for the 18 purpose of addressing laser-pointing. 19 And it came into being about four 20 months before he was charged with the civil 21 action that we're hearing right now that 22 preceded the criminal statute. The enactment

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### 1 of the criminal statute is fairly new. And 2 the civil provision under which we're 3 operating has had its roots in our area for 4 some time obviously. 5 So, can you address that concern 6 at all, or the argument at least that was made 7 regarding that particular part of double 8 jeopardy? 9 MR. STEVENSON: 

### I can address 10 that, Your Honor, although I should first ll with apologies, to preserve my record, let me 12 note that I

-- while I understand that the 13 respondent is pro se I feel that we may be 14 getting into areas that are beyond the scope 15 of the actual motion that he made and that I 16 have not had the particular opportunity to 17 prepare for for this motion conference. But 18 19 JUDGE SULLIVAN: 

### Well, I'm not 20 sure that I understand that. Maybe I do. I 21 mean, I know that his material is fairly 22 broad-based in the way he presents it.

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### 1 But in reading the Halper case 2 that he cites and then in the Hudson case that 3 you cite, and I tried to stay pretty close to 4 

### those two cases. And based on my own 5 experiencewith double jeopardy it seems to me 6 that he has at least raised that issue 7 adequately. 8 And so if I have addressed this in 9 a way that you are not prepared for I'm 10 certainly happy to give you more time to take 11 a look at that. 12 But I'm just raising it and 13 letting you know that I do have a concern 14 about it. 15 MR. STEVENSON: 

### I can address it 16 

### in general terms. I have not gone and done 17 case law research on the exact rule. 18 But I think that the concern that 19 Your Honor is referencing I think more so in 20 Hudson than in Halper is something that is 21 handled in the law. 22 And it's handled in a specific way

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### 1 which is that if the

-- even though cases 2 we saw with a lot of cases labeled as civil by 3 

### the legislature. And for the most part that 4 

### is the end of the matter. 5 

### But it is possible for a 

### 6 punishment labeled as civil to be so criminal 7 in nature, or so harsh that it is really a 8 criminal action and the courts are not going 9 to be bound by that label. And I think that 10 is more helpful to look at. 11 

### While I know the more general 12 concerns expressed by Halper and Souter, 13 that's in an overturned part of a decision, 14 that's in a concurrence that is specifically 15 disagreeing with parts of the majority. 16 

### And I don't think that there is 17 anything in this case that would indicate that 18 this sort of action is criminal in nature 19 which is what would have to be taking place 20 for double jeopardy to occur. 21 First, I mean I'm not aware of any 22 determination that any FAA civil penalty

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### 1 action ever has been found to be criminal in 2 nature. 3 I would note that although this is 4 obvious, you know, I suppose I would note that 5 a classic example of somethingthat would turn 6 a civil punishment into what's really a 7 criminal punishment is if the FAA was trying 8 to imprison Mr. Pennywitt. That's a criminal 9 

### sanction. That's not something that the 10 government can escape the double jeopardy 11 clause by calling it civil and then toss him 12 in jail through a civil action. 13 It's a civil penalty that is a 14 at the common law and classically that is 15 something that can be done with civil law 16 

### But not only that but it is 17 while Mr. Pennywitt personally may feel it's 18 an unfair amount of money, $11,000 is in the 19 grand scheme of civil penalties that can be 20 imposed not terribly much. 21 The FAA and other federal agencies 22 on a routine basis impose civil penalties of

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### 1 tens of thousands, or hundreds of thousands, 2 or even millions of dollars and those are not 3 considered criminal penalties. 4 

### To some extent there's some 5 variance there based on the nature of the 6 offense, but I am not aware of any case, and 7 I haven't done detailed research on this, but 8 at least based on my knowledge I'm not aware 9 of any case where any court has found such a 10 small civil penalty to constitute a criminal 11 punishment such that the double jeopardy 12 clause would be applied. 13 

### I also would note that, I'm not 14 sure how it plays into the analysis by Your 15 HonormentionedMr. Pennywittbeingrepeatedly 16 hauled in to answer for the same thing. 17 I don't think that that is a -- I 18 don't know that Your Honor was saying that

-- 19 that was a concern that Your Honor had that 20 that could happen, but that is not what is 21 happening here. 22 There has been a criminal case.

NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443321 1 This is a civil case. This is not an example 2 of us trying to get

-- we 1re not trying to get 3 a civil convictionwhere we couldn 1t

-- we the 4 government broadly couldn 1t get a criminal 5 conviction. 6 It 1s not something where he has 7 been sought after repeatedly criminally or 8 repeatedly civilly. 9 And it is certainly common for the 10 federal government to have both criminal and 11 civil statutes that cover the same or similar 12 conduct and to proceed under both of those in 13 circumstanceswithmuch harsherpenalties than 14 either the criminal penalty that was imposed 15 on Mr. Pennywitt here or the civil penalty 16 that the agency seeks. 17 For example, in the realm of 18 securities there are situations where 19 individuals have been sent to prison for 5, 20 10, 20 years for securitiesviolations and the 21 SEC has also independentlygone after them for 22 hundreds of thousands or millions of dollars

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1 in civil penalties. And that is not something 2 that to the best of my knowledge has run afoul 3 of the double jeopardy clause. 4 Ultimately the question is is this 5 $11,000 civil penalty a criminal punishment 6 that 1s hiding as a civil action. And it is

-- 7 ultimately it is not. 8 It is purely civil in nature. It 9 is not in any way criminal in nature. And it 10 does not run afoul of the double jeopardy 11 clause. 12 JUDGE SULLIVAN: Well, I would 13 agree with you, Mr. Stevenson, that there is 14 certainly a well established basis for the 15 government to pursue an individual or a 16 corporate entity both criminally and civilly. 17 There is marvelous examples just 18 in terms of DWI cases, for example, on a very 19 small level. You are arrested and charged for 20 a driving while intoxicated offense. You can 21 potentially also be cited civilly with a 22 driver 1s license violation and have your

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1 license removed in a civil administrative 2 hearing. All from the same allegation of 3 driving while intoxicated. So you know, 4 clearly there is a long history in this 5 country of having both criminal and civil 6 action arising out of one offense or one type 7 of behavior. 8 I think the concern that I see 9 raised by Mr. Pennywitt is that the civil 10 action is essentiallyattemptingto punishhim 11 again with a large amount of money. Even 12 though he has already been through the 13 criminal court and suffered as he says a 14 variety of differentpunishmentsbased on that 15 conviction in the criminal court which 16 includesmoney, but not as you have indicated, 17 to the extent that the FAA feels is 18 appropriate. 19 So, but I thank you very much for 20 that argument. And I'm going to probably talk 21 a little bit more about that when we get to 22 the penalty phase as well.

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### 1 It's about 2:30 right now. Mr. 2 Stevenson, why don't I do this because I have 3 

### Mr. Pennywitt as a pro se litigant. Instead 4 of askingyou to move into your own motion I'm 5 going to ask Mr. Pennywitt at this time to 6 respondto your arguments regardinghis motion 7 for dismissal on the grounds of double 8 jeopardy. Mr. Pennywitt. 9 

### MR. PENNYWITT: Yes, ma'am. 10 

### JUDGE SULLIVAN: Yes. I'm going 11 to ask you to respond specifically to the 12 arguments made by Mr. Stevenson at this point 13 regarding your motion for dismissal on the 14 grounds of double jeopardy. 15 

### And then I 'll also ask you to 16 address the timeliness issue at the end of 17 

### that period. And then we'll go into Mr. 18 Stevenson's motion for summary judgment. 19 

### So, could you first address the 20 issue of the double jeopardy request for 21 relief that you've made? 22 MR. PENNYWITT: In response to the

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### 1 double jeopardy, one thing I wanted to bring 2 up about

-- I'm sorry. I still believe I'm 3 being punished for the same exact crime both 4 criminally and civil. 5 

### JUDGE SULLIVAN: And can you -- 6 

### MR. PENNYWITT:

-- at the exact 7 time. 8 

### JUDGE SULLIVAN: And do you want 9 to elaborate or talk a little bit more about 10 that? 11 

### MR. PENNYWITT: I don't know how. 12 JUDGE SULLIVAN: Okay. Well, why 13 don't I ask you a couple of questions then if 14 that's permissible. 15 And I'm going to go to your motion 16 to dismiss. Do you have that in front of you? 17 

### MR. PENNYWITT: Yes, ma'am. 18 

### JUDGE SULLIVAN: Okay. I'm going 19 to go to, let's see, you don't have it paged 20 out but I'm going to basically put some page 21 numbers on the bottom of your motion to 22 dismiss starting with the first page which

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### 1 I'll number as number 1 and then the second 2 page is 2 and so forth. 3 

### MR. PENNYWITT: Okay. 4 

### JUDGE SULLIVAN: Okay. So in all 5 we have five pages. 6 

### MR. PENNYWITT: Yes, Your Honor. 7 

### JUDGE SULLIVAN: On the fifth page 8 in the conclusion you have some information 9 that you say, "While respondentwas criminally 10 

### convicted he was hardly punished." You're 11 quoting from the motion for summary judgment. 12 Do you see that? 13 

### MR. PENNYWITT: Yes, Your Honor. 14 

### JUDGE SULLIVAN: Okay. Why do you 15 think that this particular civil action is 16 simply punishing you again for the criminal 17 conviction that you've already experienced? 18 

### What's the same about it? What's 19 

### different about it? In your opinion. You 20 talked a littlebit about it in your materials 21 but this is your opportunityto talk orally to 22 us today.

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### 1 MR. PENNYWITT: Well, I mean, the 2 FAA were the ones that were pushing for this 3 criminal conviction. And then they got the 4 conviction. 5 

### And I feel that a felony on my 6 record is detrimental. This will be haunting 7 me for the rest of my life. And that sort of 8 felony conviction, that's my life. 9 And if I'm an accountant and I was 10 planning to sit for the CPA exam and I cannot 11 sit for the CPA exam now because I am a 12 convictedfelon. So basicallymy earnings, my 13 salary is capped because I can no longer go 14 and further my career because of this felony 15 conviction. 16 It appears that the FAA does not 17 feel that the federal penalty was sufficient, 18 so they are charging me again. 19 JUDGE SULLIVAN: 

### And why is it 20 that you think that the criminal conviction 21 should stand by itself and be the only thing 22 that you face?

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1 MR. PENNYWITT: Because it's the 2 same crime. 3 JUDGE SULLIVAN: When you say that 4 the FAA pushed for your criminal case what do 5 you mean by that? 6 MR. PENNYWITT: They were -- the 7 FAA representative was the one that was 8 criminally prosecuting me. 9 JUDGE SULLIVAN: And who was that? 10 Do you remember? 11 MR. PENNYWITT: Your Honor, Agent 12 Glenda White with the FAA. And she was 13 present in every hearing. 14 JUDGE SULLIVAN: And when you say 15 she was present at every hearing, was she the 16 attorney, or was she basically helping the 17 attorney for the federal government? What 18 role did she have in your criminal conviction? 19 MR. PENNYWITT: She was helping 20 the prosecutingattorney. She sat at the same 21 table with him. So it was the two of them 22 against me. And my lawyer.

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1 JUDGE SULLIVAN: Okay. Let me ask 2 you is there anything else that you would like 3 to add to your written argument about the 4 double jeopardy? 5 Mr. Stevenson has talked a little 6 bit in his materials and orally about this 7 later case that the Supreme Court issued 8 called Hudson v. the United States. Have you 9 had a chance to read it? 10 MR. PENNYWITT: I only read his 11 motion, Your Honor. 12 JUDGE SULLIVAN: Okay. You 13 probablywould like to take the opportunityto 14 read the case that he referred to as well. 15 Do you understand the argument 16 that he just made about why that case is more 17 persuasive than the case you cited to me? 18 MR. PENNYWITT: To some degree. 19 JUDGE SULLIVAN: When you say to 20 some degree can you explain that to me so that 21 I know where you're at? 22 MR. PENNYWITT: I guess Mr.

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### 1 Stevenson is saying that-- I'm just drawing 2 a blank right now, Judge. 3 

### JUDGE SULLIVAN: No, that's fair. 4 All right. Well, we can come back to that, or 5 I can give you some additional time after this 6 hearing to address it. 7 Let's talk about the timeliness of 8 the complaint. And I'm going to go back to 9 your materials. And I'm going to go to page 10 3 of your motion to dismiss. 11 And at the very bottom of page 3, 12 the last full paragraph starts with the words, 13 "Neither the FAA nor Attorney Stevenson 14 responded." Do you see that? 15 

### MR. PENNYWITT: Yes, Your Honor. 16 

### JUDGE SULLIVAN: Okay. Let me ask 17 you a question. You say that you sent this 18 April 17, 2012 letter to both the FAA main 19 office and to Mr. Stevenson on April 17, 2012. 20 Do you have any proof of that? 21 MR. PENNYWITT: Yes, I do, Your 22 Honor.

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1 

### JUDGE SULLIVAN: And where is that 2 proof? 3 

### MR. PENNYWITT: That would be 4 Exhibit 8, I believe, Your Honor. 5 

### JUDGE SULLIVAN: Your Respondent's 6 Exhibit 8. 7 

### MR. PENNYWITT: That would be 8 Exhibit R-8. 9 

### JUDGE SULLIVAN: And I see in 10 Exhibit R-8 that there is a letter that is 11 purportedly written by your former attorney 12 Mr. Stone dated April 17, 2013 addressed to 13 both the FAA in Washington, D.C. and to Mr. 14 Stevenson in Atlanta, Georgia. 15 

### MR. PENNYWITT: Yes, ma'am. 16 

### JUDGE SULLIVAN: And then on the 17 second page of R-8 I see that there is a 18 certifiedmail receipt to the FAA dated April 19 18, 2013. But I don't see any confirmationof 20 anyone at the FAA signing for that certified 21 mail document. 22 Do you have proof of any kind of

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### 1 receipt of the certified mailing? 2 MR. PENNYWITT: In the 3 

### confirmation letter it says, "Status 4 delivered." The item was delivered at 9 a.m. 5 

### on April 24. 

### In Washington, D.C. 6 

### JUDGE SULLIVAN: Yes, and thank 7 

### you for that. That's on page 2 

### of Exhibit R8 8. 9 

### Do you have any further 10 certificationof a mailing to Mr. Stevenson in 11 Atlanta, Georgia? 12 MR. PENNYWITT: I'll have to look, 13 Your Honor. 14 

### JUDGE SULLIVAN: Okay. I'm going 15 to put that down as part of your to-do list. 16 You can write that down too if you will. 17 

### MR. PENNYWITT: Yes, ma'am. 18 

### JUDGE SULLIVAN: Okay. Let' s talk 19 then about the motion for summary judgment. 20 And to do that one of the things 21 we're going to do is talk about the 22 admissibility of the exhibit that has been

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### 1 submitted. 2 And I'm going to start with you, 3 Mr. Stevenson. Do you have any objection to 4 the admissibilityto Respondent'sExhibitsR-1 5 through R-9 at this point? 6 

### MR. STEVENSON: One moment, Your 7 Honor, if you don't mind. 8 

### JUDGE SULLIVAN: Sure. 9 

### MR. STEVENSON: I 

### have no 10 objection to the consideration of these 11 documents on summary judgment, Your Honor. 12 JUDGE SULLIVAN: Thank you. Mr. 13 Pennywitt, then I turn to you and I ask you 14 the same questionregardingthe FAA's proposed 15 exhibits. And those exhibits have been marked 16 as Exhibit C as in cat dash A as in apple 17 through Cas in cat dash I as in inkling. 18 Do you have any objection to the 19 admissibility of these documents? And I 20 probably should explain to you what that 21 means. 22 Essentially, at a summaryjudgment

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1 motion parties may submit exhibits that 2 potentially could be admissible at trial. 3 Sometimes the admissibilityis not 4 perfect so the exhibit as it's presented at 5 the summary judgment motion may not be in a 6 form that's at that moment admissible under 7 general rules of evidence and procedure, but 8 it's in a form close enough so that the 9 parties can presume that the party that wants 10 to get it in will have it ready to go at 

### trial 11 if the parties end up at trial. 12 So when you're looking at these 13 different exhibits that Mr. Stevenson has put 14 together you want to see if they're basically 15 close enough to being accurate, reliable and 16 relevant to the proceedings that they would be 17 admissible if the matter came to trial. 18 And 

### if you see something that kind 19 of springs out at you as being not admissible 20 then you want to say that you think there's a 21 problem and then what the problem is. 22 Do you want to take a minute and

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### R. GROSS (202} 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202} 234-443335 

### 1 look at Mr. Stevenson's exhibits to see if 2 there's anything in there that you think 3 doesn't meet the test of admissibility? 4 

### MR. PENNYWITT: Your Honor, are 5 you referring to all the exhibits or just 6 Exhibit C? 7 

### JUDGE SULLIVAN: I'm referring to 8 all of the exhibits that are attached to Mr. 9 Stevenson's motion for summary judgment. 10 The first one is marked Exhibit C 11 as in cat dash A. The last one is marked C as 12 in cat dash I. And then of course the ones in 13 between A and I follow the letters of the 14 alphabet, such as C-B, 

## c-c, C-D, and so forth. 15 So, I want you to take a look at 16 all of them. And there are, let's see, nine 17 exhibits altogether. 18 You want to take a minute or two 19 to do that? 20 

### MR. PENNYWITT: Yes, Your Honor. 21 JUDGE SULLIVAN: Okay. We'll sit 22 quietly while you do that.

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1 MR. PENNYWITT: Your Honor, for 2 the most part they are okay. I think there 3 was a few i terns that were I guess, such as the 4 time I was arrested and whatnot. But for the 5 most part they're correct. 6 JUDGE SULLIVAN: Okay. Well, 7 let's check if the things that you are a 8 little concernedabout. Which are those? And 9 let's talk about them. Which exhibit are you 10 referring to? 11 MR. PENNYWITT: I have responded 12 to the discrepancies in Exhibit A, Your Honor. 13 JUDGE SULLIVAN: Okay. So Exhibit 14 A is the FAA's request for admission. And 15 when you say you've responded to the 16 discrepancies, which discrepancies are you 17 talking about? 18 MR. PENNYWITT: Such as I guess 19 response number 1. 20 JUDGE SULLIVAN: Okay. So, 21 essentiallythe statement, response, "Deny-." 22 That's your response and that's what you want

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### 1 it to say? 2 MR. PENNYWITT: Yes. 3 

### JUDGE SULLIVAN: Okay. So, this 4 

### Exhibit C-A basically identifies your 5 responses. And Mr. Stevenson is saying that 6 the wants all of your responses to come in as 7 evidence under C-A. Do you have any problem 8 with that? 9 

### MR. PENNYWITT: No, Your Honor. 10 

### JUDGE SULLIVAN: Okay. Anything 11 else in terms of Exhibit C-B through C-I? 12 MR. PENNYWITT: No, Your Honor. 13 

### JUDGE SULLIVAN: Okay. Do you 14 have any further objections then or do they 15 all look fairly admissible to you? 16 

### MR. PENNYWITT: Yes, they seem 17 fairly admissible. 18 

### JUDGE SULLIVAN: Okay. Thank you 19 

### very much. Then, Mr. Stevenson, let me go 20 back to you. 21 And if you would be so kind, take 22 a few minutes to address your motion for

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1 summaryjudgment. And if you want to refer me 2 to certain pages feel free. I have the 3 material right in front of me. 4 MR. STEVENSON: Thank you, Your 5 Honor. Did you want me to restrict myself 6 right now to the merits and save sanctions for 7 later, or talk about both of those? 8 JUDGE SULLIVAN: I think if you 9 could do it one at a time it would be easier 10 for Mr. Pennywitt. So, if you could talk 11 first about the violation and the merits on 12 summary judgment for the violation finding. 13 I'll turn to Mr. Pennywitt after 14 that. And then we'll finish up with the 15 proposal of the fine. 16 MR. STEVENSON: Thank you, Your 17 Honor. I will also note now or at some later 18 time if Your Honor wants to know I can provide 19 additional information on the identity of the 20 person, Glenda White, that Mr. Pennywitt 21 referenced. 22 JUDGE SULLIVAN: Okay.

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### 1 MR. STEVENSON: As far as the 2 motion for summary judgment goes it's fairly 3 straightforward I think as to the merits. 4 

### The allegation from the FAA is 5 interfering with a crew member. As admitted 6 in discoveryand in his guiltyplea respondent 7 did knowingly aim the laser pointer at the 8 aircraft from the Jacksonville Sheriff's 9 Office as -- and as he admits in his discovery 10 he doesn't know what that did to the crew. 11 The FAA has attached a statement 12 from the pilot discussing how the laser 13 illuminating-- the laser did illuminate the 14 cockpit of the helicopterand it did interfere 15 with his ability to operate the aircraft. 16 

### As to the finding of violation 17 that is everything that is alleged in the 18 complaint and everything that the FAA has to 19 show. He took a laser pointer, he pointed it 20 at the aircraft and it interfered with the 21 crew member's duties. 22 JUDGE SULLIVAN: Anything else you

NEAL R. GROSS (202) 234-4433 COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443340 1 would like to add, Mr. Stevenson? 2 MR. STEVENSON: No, Your Honor, 3 although of course I'd be happy to address any 4 questions you have. 5 JUDGE SULLIVAN: Okay. Thank you. 6 Mr. Pennywitt, let me turn to you. 7 What we're doing right now is we're talking 8 about the FAA's motion for summary judgment 9 and we're restricting this particular 10 conversation to just the alleged violation. 11 And I wanted to ask you if you 12 have anything you would like to say in 13 response to Mr. Stevenson's argument. 14 MR. PENNYWITT: Yes, I did aim the 15 laser light at the aircraft but I did not have 16 any idea the laser light would interfere with 17 the crew members or would even reach the 18 aircraft. And I've already stated that in my 19 federal case. 20 JUDGE SULLIVAN: Let me ask you 21 about that a little bit. You had in your 22 materials

-- give me a minute so that I can

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1 

### find it. This is in Exhibit R-3, a letter 2 dated July 6, 2012 from a Mr. Friday. 3 

### MR. PENNYWITT: Yes. 4 

### JUDGE SULLIVAN: Who is an 5 attorney that previously represented you. 6 

### And Mr. Friday provides some 7 information to the FAA in Orlando, Florida 8 about what happened from your perspective on 9 the night that the laser pointer incident 10 occurred which was June 4, 2012. 11 And this talks about stargazing 12 and having an evening with your young son. 13 Then I have the material that the 14 FAA presented that is in Exhibit 

## c-c and 15 Exhibit C-D, C-E, C-F, C-G, all those criminal 16 conviction papers. And none of those facts 17 that are included in your Exhibit R-3, or very 18 few of those facts are replicated in the 19 criminal convictionmaterials. What happened? 20 Why is that? In your opinion. 21 MR. PENNYWITT: In my opinion this 22 is what the prosecuting attorney

-- that the

NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443342 1 prosecuting attorney evidently conveyed to me 2 that it didn't matter why I did it, it's the 3 fact that I did do it. Knowingly did it. 4 JUDGE SULLIVAN: Okay. Okay. But 5 in terms of the violation itself it sounds 6 like you are not disagreeing at least for 7 purposes of this motion that the FAA has 8 presented facts sufficient to make a finding 9 if the Court does so regarding whether or not 10 the violation occurred. 11 MR. PENNYWITT: That is correct. 12 I already pleaded in federal court that I did 13 it

0 14 JUDGE SULLIVAN: Okay. All right. 15 Then, Mr. Stevenson, let me ask you to go to 16 the next point of your motion for summary 17 judgment. 18 And I'm going to ask you a 19 question about that. You had originallypled 20 for full dispositiverelief asking for summary 21 judgment on both the violation and the 22 proposed fine of $11,000.

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1 In your reply, however, you made 2 an alternate pleading, a summary judgment 3 requesting that relief be granted to the 4 extent deemed appropriate. 5 And if you could address both of 6 those requests that would be helpful. 7 MR. STEVENSON: Well, Your Honor, 8 I did not intend anything substantively 9 different by those. 10 My understanding would be that if 11 I ask for if I ask the judge for full 12 relief on every aspect of a complaint that 13 that inherentlywould-- the judge could grant 14 me relief on part of it, or to the extent that 15 the judge, you know, finds is appropriate you 16 could grant relief. 17 JUDGE SULLIVAN: Okay. I'm going 18 to interrupt you. You're absolutely correct. 19 MR. STEVENSON: Okay. So I did 20 not intend any substantive difference between 21 those two requests. It's just a difference of 22 phrasing.

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1 

### JUDGE SULLIVAN: Okay. So then, 2 let's proceed then. And if you would be so 3 kind as to talk about why you believe your 4 

### pleadings support a judgment for $11,000 

### that 5 

### would be helpful. And then I will turn to Mr. 6 

### Pennywitt. 7 

### MR. STEVENSON: Thank you, Your 8 

### Honor. As discussed in the judgment motion 9 

### this is a little bit different from our usual 10 

### civil penalty calculations because the FAA as 11 

### part of a broaderDepartment of Transportation 12 

### program and as Your Honor noted earlier that 13 

### as part of this federal government program 14 

### there was also a criminal law enacted. 15 

### The FAA as part of that effort 16 

### issued this special sanction guidance on the 17 

### laser pointer incidents. And it talks about 18 

### this effectively moderate, mid-range, $2,200 19 

### to $4,399 

### violation for a 

### first-time 20 

### inadvertence and then going above that for 21 

### conduct that's deliberate. 22 As also noted in the FAA's

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### 1 sanction guidance interfering with a crew 2 member is essentially by default deliberate. 3 It would be a very unusual circumstance for 4 someone to interferewith a crew member and it 5 wasn't deliberate. 6 

### Additionally, the facts in this 7 case do show that this was not an inadvertent 8 act. I understandthat in the letter from Mr. 9 Pennywitt 'sattorneythat was sent in resposne 10 to the original letter of investigation the 11 attorney says that it was inadvertent that he 12 pointed it at the helicopterbut Mr. Pennywitt 13 pled guilty to knowingly pointing it at the 14 helicopter. 15 

### And I don't think that it's 16 actually contended anymore that he was, you 17 know, trying to aim at something else. He did 18 knowingly aim it at the helicopter. 19 

### The evidence presented by the 20 Sheriff's Office also which is that this was 21 not just one point, this was repeated points 22 while the helicopter was circling, trying to

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### 1 keep an eye on where the laser was coming from 2 so that a ground unit could go and 3 investigate. 4 

### And I 

### think that that

-- that is 5 

### an aggravated circumstance generally, but it 6 

### also goes to show that this is not 7 inadvertent. 8 

### And so I think that under the 9 sanction guidance that is something that

-- 10 explicitlyunder the sanction guidance. That 11 is something that has to take it out of the 12 $2,200 to $4,399 range that would apply for a 13 first-time inadvertent violation. 14 And given the aggravation that is 15 present here the maximum of $11,000 is 16 appropriate given the repeated laser strikes. 17 And I would explicitly note that 18 is without relyingon Mr. Pennywitt's reported 19 statements to the police officers that he had 20 done this before. I mean, if we go to a 21 hearing we can talk about that, but I would 22 assume for the purposes of summary judgment

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1 

### that he would dispute having made those 2 statements. 3 

### So, and as I note there was a 4 

### criminal conviction in this case. I 5 

### acknowledgethat. But the criminal conviction 6 

### carried

-- I understand it ended up denying 7 

### Mr. Pennywitt the ability to take the CPA 8 

### test. I'm sure that nobody likes having a 9 

### felony conviction. 10 

### But Mr. Pennywitt was not 11 

### imprisoned. Mr. Pennywitt was not given any 12 monetary punishment as part of the criminal 13 

### case beyond the mandatory I think is it a $100 14 

### assessment per count that the federal courts 15 

### impose anytime someone is criminally 16 

### convicted. Those were things that are 17 possible under the statute but were not 18 imposed in this particular case. 19 

### And so although under the FAA 20 sanction guidance a criminal punishment taken 21 is something that can be considered there is 22 the sort of criminal action taken here is

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1 not one that would mandate reducing the civil 2 penalty to a lower amount. 3 JUDGE SULLIVAN: Let me ask you a 4 question about that because in your materials 5 you provide some comprehensive information 6 about the offense and the sentencing. 7 And I'm going to go to the

-- I 8 apologize for the delay. I have a variety of 9 different pages tagged. I want to make sure 10 I'm going to the correct one. 11 In this particular document, I'm 12 looking at Exhibit C dash D as in David. 13 MR. STEVENSON: Yes, Your Honor. 14 JUDGE SULLIVAN: This is on page 15 2. This particular document has multiple 16 pages. 17 At the top it talks about a 18 maximum penalty of five years, a maximum fine 19 of $250,000, a supervised release of not more 20 than three years and a special assessment of 21 $100. 22 And we know that on the next page,

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### 1 page 3 under guidelines sentence it states 2 that the defendant's applicable guidelines 3 

### range is determined by the court pursuant to 4 

### the United States SentencingGuidelines. The 5 

### base offense level began at 9. 6 

### The paperwork on page 4 

### shows that 7 

### Mr. Pennywitt received a two-level downward 8 

### adjustment for acceptance of responsibility 9 

### pursuant to the United States Sentencing 10 

### Guidelines. 11 

### There was also in terms of the 12 

### material on page 6 

### a requirement of Mr. 13 

### Pennywitt to fill out a financial affidavit 14 

### and then make available to the prosecutor's 15 

### office his tax returns for the prior five 16 

### years before a sentence was imposed. 17 

### And I'm 

### wondering if 

### you 18 essentiallybelieve or are asserting that the 19 

### Court should ignore those particular 20 provisions of the criminal sentence in your 21 

### argument that this simply wasn't appropriate 22 or not enough.

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1 

### MR. STEVENSON: I 'm sorry, when 2 Your Honor refers to those particular 3 

### provisions, do you mean the financial 4 disclosure provisions? 5 

### JUDGE SULLIVAN: I'm talking about 6 

### all the provisions of the documents that you 7 

### have provided to me that talk about this 8 

### particular plea agreement and the sentencing 9 

### that ensued because of this. 10 

### There's no doubt from your 11 

### materials that Mr. Pennywittwas assessedonly 12 

### a $100 

### assessment in a monetary fine. But 13 there appears to have been some considered 14 process to reach that particular fine, just 15 based on your summary judgment material. 16 In addition, that particular fine 17 appears to have been assessed only after 18 certain informationwas provided to the court 19 and a downward assessment was reached with 20 full agreement of the government. 21 

### So I'm somewhat curious if you 22 will about the FAA's assertion that the fine

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### 1 is not substantial for this particular 2 individual or is not a substantial reflection 3 of the punishment overall that was assessed in 4 this convictionwhich goes far beyond in this 5 Court's review of the materials of the $100 6 assessment. That appears to be only one small 7 part of a much bigger picture. 8 

### MR. STEVENSON: Well, Your Honor, 9 if I recall correctly the references in my 10 summary judgment motion I noted that I 

### 11 believe I noted that he was convicted, that 12 there was a $100 special assessment, that he 13 was assessed community service and was on 14 probation for a year. 15 I would have to

-- the respondent 16 was criminally convicted. He was required to 17 serve one year of probation and perform 18 

### minimal community service. And I think 19 elsewhere I referenced the $100. 20 JUDGE SULLIVAN: What page are 21 MR. STEVENSON: I do not

-- 22 JUDGE SULLIVAN:

-- motion, sir?

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### 1 MR. STEVENSON: That, I apologize. 2 I see mine is not

-- mine unfortunately does 3 not have

-- so this would be the fifth page 4 which would be the

-- 5 

### JUDGE SULLIVAN: Okay, thank you. 6 

### MR. STEVENSON: Okay. I mean, I 7 reference there that while the respondent was 8 criminally convicted he was hardly punished 9 beyond the mere fact of conviction, onlybeing 10 required to serve one year of probation and 11 performminimal community service. So I think 12 in the summaryjudgmentmotion I did reference 13 this. 14 

### The one punishment that I see 15 being imposed, and I apologize if I'm missing 16 something, is something that I would not

-- 17 the one thing that Your Honor referenced that 18 I don't think that I referenced in my motion 19 was the requirement to provide financial 20 information to the U.S. Attorney's Office 21 which I did not perceive as a punishment. 22 JUDGE SULLIVAN: I didn't either,

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### 1 Mr. Stevenson. 2 MR. STEVENSON: Okay. 3 

### JUDGE SULLIVAN: I'm saying that 4 there appears to have been a considerationof 5 the financial capabilities of the respondent 6 

### prior to assessing the $100 fine. That was 7 what I was talking about. 8 And I appreciate you pointing out 9 to me what you said in your summary judgment 10 motion. I did see that. 11 

### I would suggest to you, however, 12 that my review of Exhibit C-G and other 13 exhibits about the conviction showed a far 14 greaterpenaltythanwhat you have summarized. 15 

### But I will leave it to Mr. 16 Pennywitt to tell us what was and was not of 17 merit in his opinion. 18 Anything else that you would like 19 to add for your motion for full relief on the 20 $11,000 proposed fine? 21 MR. STEVENSON: Yes. I'd like to 22 know with regards to the question of full

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### 1 consideration I don't know what the process 2 was that went on betweenMr. Pennywitt and his 3 

### attorney and the United States Attorney's 4 

### Office with regards to this criminal 5 conviction. 6 I 

### was not involved in that 7 

### process. The FAA was not involved in that 8 process. 9 And because it does seem pertinent 10 now let me specificallynote that Glenda White 11 

### is not an FAA employee. Glenda White is a 12 special agent with the Department of 13 TransportationOfficeof the InspectorGeneral 14 I believe. 15 So she is

-- she's just simply not 16 an employee of the FAA or a representativeof 17 the FAA. And her presence assisting a United 18 States Attorney in the prosecution of a case 19 is not the FAA being involved in a case. 20 That was a criminal case that was 21 handled by one agency. This is a civil case 22 that was handled by another agency. That

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### 1 attorney, you know, that Assistant United 2 StatesAttorneyor United StatesAttorneymade 3 his or her decision, I guess it was his 4 decision, based on the factors that they were 5 considering. 6 

### And the mere fact that they 7 consideredthat to be an acceptablenegotiated 8 plea result of the matter does not preclude 9 the FAA from making its own determination, 10 especially in light of the fact that that was 11 the result of a plea agreement. 12 And Mr. Pennywitt was given ample 13 opportunity in this case to come in and talk 14 to the FAA and try to enter into that sort of 15 

### agreement with the FAA as well. And as he 16 

### indicates in his own motion to dismiss he 17 

### chose not to do that. 18 

### And the fact that he was able to 19 

### work out an agreement and avoid trial in 20 another case and obtain a lesser penalty does 21 not in any way detract from the FAA's ability 22 to make an appropriate sanction determination

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1 and to impose that sanction in order to 2 further aviation safety. 3 JUDGE SULLIVAN: Okay. Anything 4 else that you would like to add to your 5 primary argument? 6 MR. STEVENSON: Not at this time, 7 Your Honor. 8 JUDGE SULLIVAN: Thank you. Mr. 9 Pennywitt. 10 MR. PENNYWITT: Yes. 11 JUDGE SULLIVAN: Turning to you. 12 What is your position about the FAA's proposed 13 $11,000 civil penalty? 14 MR. PENNYWITT: First let me go 15 back to what Mr. Stevensonjust said, that the 16 FAA was not involved in the criminal 17 prosecution. 18 They were involved in the criminal 19 prosecution. I have a memorandum from the FAA 20 which is shown in Exhibit R-4 in my motion to 21 dismiss. 22 And the FAA was fully aware of

NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443357 1 this criminal prosecution. In answer to your 2 question. Also

-- 3 JUDGE SULLIVAN: Well, let me ask 4 you about that, Mr. Pennywitt, because Exhibit 5 R-4 is dated June 1, 2011 and your offense is 6 dated April

-- or I'm sorry, June 4, 2012, 7 which is a year later. So why do you think 8 Exhibit R-4 shows that the FAA was involved in 9 your case after June 2012? 10 MR. PENNYWITT: The court is 11 concerned that the resulting investigation 12 directly involvedadvice from the FAA, sent an 13 FAAmemorandumconcerningthe applicabilityof 14 assessing a civil penalty for this type of 15 violation as noted in discovery

-- 16 JUDGE SULLIVAN: Mr. Pennywit t, 17 I'm going to stop you. You're reading 18 something to me. Where are you in your 19 materials? 20 MR. PENNYWITT: I'm on the bottom 21 page of page 1 on my motion to dismiss. 22 JUDGE SULLIVAN: Okay. Let me go

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1 to that first. 2 MR. PENNYWITT: The last 3 paragraph. 4 JUDGE SULLIVAN: Okay. So, you're 5 saying that letter, and you're talking about 6 a letter that Mr. Friday sent on July 6, 2012. 7 MR. PENNYWITT: No. Yes. 8 JUDGE SULLIVAN: Okay. And that 9 letter is Exhibit R-3. 10 MR. PENNYWITT: Yes, Your Honor. 11 JUDGE SULLIVAN: Okay. And 12 Exhibit R-3 is addressed to an individual 13 working for the FAA in Orlando, Florida. 14 So, other than R-3 in your 15 exhibit, and I understand that there' s a 16 memorandum in R-4, is there anything else you 17 want to add to your assertion that the FAA was 18 involved? At least in these materials you 19 provided today. 20 MR. PENNYWITT: Not that I'm aware 21 of. 22 JUDGE SULLIVAN: Okay. Then let's

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### 1 talk about the money. Mr. Stevenson has made 2 an argument that you shouldbe requiredto pay 3 $11,000 if the Court finds against you. What 4 is your position on that? 5 

### MR. PENNYWITT: Well, let's go 6 back to the plea agreement that resulted in 7 the two-level downgrade. 8 

### On the conviction when I pled 9 guilty I did receive probation, community 10 service. I did pay the $100 fine. 11 

### Along with that there was an 12 extensive, because I was facing a $250,000 13 fine, the federal prosecutorsdid an extensive 14 background check on my financial resources. 15 The federal court did not assess a 16 financial penalty because they determined I 17 was unable to pay. And I am still unable to 18 pay any financial penalty. 19 

### JUDGE SULLIVAN: Let me ask you a 20 little bit about the conviction if I may. 21 You were directed to do 50 hours 22 of community service. Can you tell us where

NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443360 1 that occurred, what you did? 2 MR. PENNYWITT: Yes. That was at 3 the Jacksonville Alcoholics Benevolence 4 Association in Jacksonville, Florida. ·And I 5 performed 50 hours community service. And I 6 went in on the weekends. And that was 7 completed. 8 JUDGE SULLIVAN: Okay. You were 9 directed to get a mental health evaluationand 10 any treatment recommended. Did you do that? 11 MR. PENNYWITT: Yes, I did, and 12 that has been completed. 13 JUDGE SULLIVAN: You were directed 14 to get a substance abuse evaluation and to 15 pursue any and all treatment recommended. Did 16 you do that? 17 MR. PENNYWITT: Yes, Your Honor, 18 and that has been completed. 19 JUDGE SULLIVAN: You were directed 20 to not possess any firearms during the period 21 of your probation. Were you compliant? 22 MR. PENNYWITT: Yes, I'm compliant

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### 1 and I'm still on probation. 2 

### JUDGE SULLIVAN: How much longer 3 will your probation last from this moment on? 4 

### MR. PENNYWITT: I will be

-- my 5 probation terminates on July 31. 6 

### JUDGE SULLIVAN: Of 2014? 7 

### MR. PENNYWITT: Yes, Your Honor. 8 

### JUDGE SULLIVAN: You were directed 9 to subject yourself to DNA testing. Did you 10 do that? 11 

### MR. PENNYWITT: Yes, Your Honor. 12 JUDGE SULLIVAN: You were directed 13 to submit to random drug tests, at least three 14 during the period of your probation. Have you 15 been compliant? 16 

### MR. PENNYWITT: Yes, Your Honor. 17 

### JUDGE SULLIVAN: Typically someone 18 who is charged with a felony and convicted of 19 a federal felony loses their voting rights. 20 Did that occur for you in this conviction? 21 MR. PENNYWITT: Yes, Your Honor. 22 

### JUDGE SULLIVAN: Do you have the

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### 1 ability to re-attainyour voting rights after 2 a certain period of probation has passed, or 3 was that discussed with you? 4 

### MR. PENNYWITT: I am not aware of 5 being able to vote again. 6 

### JUDGE SULLIVAN: Currentlywhat is 7 your occupation, sir? 8 

### MR. PENNYWITT: I am an accountant 9 at a local CPA firm. 10 

### JUDGE SULLIVAN: You were directed 11 as part of your probation to obtain and 12 maintain full-time employment during the 13 

### period of your probation. Have you been 14 compliant? 15 

### MR. PENNYWITT: Yes, Your Honor. 16 

### JUDGE SULLIVAN: Given the fact 17 that you're workingas an accountant currently 18 how is it that you can assert to the Court as 19 you have done in your materials that your 20 level of income is negativelyimpactedbecause 21 of the inability to get a CPA certification? 22 Explain that, please.

NEAL R. GROSS (202) 234-4433 COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 (202) 234-443363 

### 1 MR. PENNYWITT: Well, Your Honor, 2 when I started with this particular CPA firm 3 back in May 2011

-- sorry, May of 2012 it was 4

-- one of the conditions of my employment was 5 obtaining my CPA license, or at least begin 6 the process of obtaining my license in hopes 7 of someday becoming partner of the firm. 8 And now hopes of being partner of 9 that firm are nonexistent. And there's no pay 10 raise. I have not received a pay raise since 11 this incident. 12 JUDGE SULLIVAN: According to the 13 materials filed by Mr. Stevenson you were 14 arrested and taken into custody on June 4, 15 2012. Did you spend the night in jail? 16 

### MR. PENNYWITT: Yes, Your Honor. 17 

### JUDGE SULLIVAN: As part of your 18 arrest procedure did you have to go through a 19 strip search and a shower, the typical kinds 20 of things that people do when they're 21 arrested? 22 MR. PENNYWITT: I was -- yes, I

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### 1 did. I didn't have to take a shower but I was 2 strip searched. 3 And this was just when the state 4 arrestedme. And then I was arrested again

-- 5 

### JUDGE SULLIVAN: In October 2012? 6 

### MR. PENNYWITT: Yes. And I went 7 through the whole process again. 8 

### JUDGE SULLIVAN: And were you 9 

### rearrested at the same facility? Or were you 10 taken to a federal facility? 11 

### MR. PENNYWITT: A 

### federal 12 facility. 13 

### JUDGE SULLIVAN: During your first 14 arrest process how long did you stay in jail? 15 It looked to me from the materials submitted 16 by Mr. Stevenson you were released within 24 17 hours, but I want to just double-check on 18 that. 19 

### MR. PENNYWITT: It was around 20 20 hours, Your Honor. 21 JUDGE SULLIVAN: When you were 22 arrested for the second time, how much time

NEAL R. GROSS (202) 234-4433 COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443365 

### 1 did you spend in jail? 2 MR. 

### PENNYWITT: I was in and out 3 

### the same day. 4 

### JUDGE SULLIVAN: So you didn't 5 

### sleep overnight? 6 MR. 

### PENNYWITT: I did not sleep 7 

### overnight, but I was arrested in front of my 8 

### children at home. 9 

### JUDGE SULLIVAN: Other than those 10 two periods of time where you were arrested 11 and processed into the jail facilities, have 12 you spent any other time in a prison facility 13 for this particular offense? 14 MR. 

### PENNYWITT: For this offense, 15 

### no, Your Honor. 16 

### JUDGE SULLIVAN: You've indicated 17 

### in your statements today that there were 18 

### financial disclosures that you made in 19 

### approximately 2012-2013 prior to the 20 sentencing rendered by the U.S. District 21 Court. Do you have copies of any of that 22 material, or does your probation officer?

NEAL R. GROSS (202) 234-4433 COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443366
1 MR. PENNYWITT: I have copies of 2 what was submitted. I know I have copies. 3 JUDGE SULLIVAN: Okay. According 4 to the materials that both you and Mr. 5 Stevenson presented you had at least two 6 attorneys working with you on this case if we 7 can include the criminal case along with the 8 matter that's being discussed today. 9 Were both of these attorneys 10 appointed to represent you on a pro bono 11 basis, or did you pay out of pocket for their 12 services? 13 MR. PENNYWITT: The state case was 14 by Eric Friday. And he refunded a portion of 15 the fee. Eric Friday referred me to Mitch 16 Stone for the federal case. And that was paid 17 for to be honest by my mom, my mother. 18 JUDGE SULLIVAN: Okay. Do you 19 have records of how much you paid Dr. Friday? 20 And does your mother have records of how much 21 she paid Mr. Stone? 22 MR. PENNYWITT: Yes.

NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443367 1 JUDGE SULLIVAN: Okay. All right. 2 Anything else that you would like to add to 3 your argument challengingthe proposed$11,000 4 fine by Mr. Stevenson? 5 MR. PENNYWITT: I think this is 6 enough, what we've gone over. 7 JUDGE SULLIVAN: Okay. All right. 8 Mr. Stevenson, you have right of final reply. 9 Do you have anything you would like to add at 10 this time? 11 MR. STEVENSON: Thank you, Your 12 Honor, I do. There are a couple of things I 13 would like to note. 14 I mean, the first is that, again, 15 there have been a number of topics covered in 16 that discussion with Mr. Pennywitt that were 17 never asserted by Mr. Pennywitt in his motion 18 or his response. 19 Well, for example, the cost of his 20 attorneys. I'm not specifically well 21 first, I think it would be inappropriate with 22 all respect for the Court to consider matters

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1 

### that are not asserted by the parties, or 2 information on those matters presentedby the 3 parties. 4 JUDGE SULLIVAN: 

### Actually, Mr. 5 

### Stevenson, let me explain what I'm doing and 6 

### then you can take whatever position you want. 7 

### Because I think I know what you're trying to 8 

### say. 9 

### When you submit documentation the 10 

### Court reviews that documentation and can 11 

### inquire about it, either to you as the party 12 

### that has submitted it or to the opposing 13 

### party, particularly if you are relying upon 14 

### that information to support your prima facie 15 

### evidence. 16 

### So, you have presented 17 

### documentation to this Court. The Court has 18 read it and read it thoroughly. 19 I have receiveddocumentationfrom 20 the respondent party, the respondent in this 21 

### case, indicating a disagreement with your 22 motion for summary judgment on the penalty.

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### 1 The pro se respondent has provided 2 a variety of different issues that he has 3 

### raised, in particular saying that his 4 conviction on the criminal case on which the 5 FAA has presented very good paperwork, thank 6 

### you very much his conviction on the 7 criminal case should satisfy, more than 8 satisfy any and all punishment that he should 9 be forced to serve essentially. 10 At which point the Court has full 11 ability to ask both the FAA and/or the 12 respondent about the punishment that is 13 contained in the FAA's prima facie paperwork. 14 I have not gone beyond that. 15 So, I appreciate the fact that you 16 

### did not specifically discuss that. We 

### 17 obviously addressed that when we talked about 18 what you referenced in page 5 of your 19 materials. 20 It's a concern to me that the FAA 21 has not discussed it and does not appear to 22 understand the gravity of some of the things

NEAL R. GROSS (202) 234-4433 COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-443370 1 that Mr. Pennywitt has been forced to do and 2 experience because of that conviction. 3 That doesn't mean that I don't 4 take equally seriously the FAA's interest in 5 stopping as best as it can this whole problem 6 with laserpointingupon aircraft which is, as 7 you have pointed out in your materials, a 8 terrible problem. 9 But it is something that the Court 10 can and should address with the parties, 11 particularly in a summary judgment motion. 12 Now, you may disagree with that 13 but I think you would be hard pressed to find 14 that the Court's inquiry went anywhere beyond 15 the borders of the evidence that was presented 16 to the Court for this motion. 17 With that, having heard your 18 objection I note it for the record and you're 19 welcome to expand upon it upon appeal if this 20 case is ever appealed. 21 Do you have any reply? 22 MR. STEVENSON: Yes, Your Honor.

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### l Well, since I mentioned the cost of the 2 attorneys, let me specificallynote that that 3 is something that is not taken into account 4 

### and that the FAA 

### does not take into account. 5 

### With all respect the judge should not take 6 

### into account. 7 

### It is not

-- while clearly under 8 

### our own sanction guidance the fact that a 9 

### criminalpunishment is somethingthat we would 10 

### consider and which is why I provided Your 11 

### Honor with the information, the full 12 information about that. 13 The fact that a person has to or 14 chose to hire an attorney and expended 15 expenses in that is not, either in a civil 16 case or a criminal case, is not a punishment 17 that reduces the civil penalty that we would 18 impose. 19 

### I think that is

-- as a blanket 20 rule we, either if I'm representing the 21 Administrator in an MTSD case or I'm 22 representing the FAA 

### in front of yourself or

NEAL R. GROSS (202) 234-4433 COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443372 1 another ALJ of the Department of 2 Transportation I believe it would be 3 inappropriate for a penalty to be reduced 4 based on the fact that the respondent had 5 chosen to hire an attorney to fight the 6 allegation. 7 JUDGE SULLIVAN: And I would agree 8 with you, Mr. Stevenson, but it is an issue 9 that has been raised by the respondent in his 10 materials on page 2, his inability to hire a 11 lawyer. It is an issue that is ancillary to 12 the whole concept of whether or not he has the 13 financial ability to afford an $11,000 14 proposed fine. 15 So when you look at the facts of 16 someone's financial ability you look at all 17 the facts. 18 And I would caution the FAA that 19 this Court has not made any ruling. This 20 Court has not indicatedthat it would consider 21 the facts in any particular way. Simply 22 asking questions of a pro se litigant about

NEAL

### R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443373
1 matters that if he were representedwould have 2 been provided to this Court through counsel. 3 So, I don't I'm hoping that you 4 can accept the fact that the Court wants to 5 ask questions of both parties that will 6 clarify the issues for everyone. 7 That doesn't mean that I 'm going 8 to take that informationand utilize it in any 9 particular given way. I'm simply seeking the 10 information at this point to make a decision 11 about whether or not there is a material fact 12 in dispute. 13 If there are material facts in 14 dispute and the Court finds that that is so 15 then the only decision rendered would be 16 whether or not summary judgment may be 17 granted. No other decision would be rendered 18 from this point. 19 So, I don't want you to feel like 20 the Court is making conclusions or weighing 21 evidence. The Court is not doing that. 22 Do you have other matters or other

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1 reply to the material that Mr. Pennywitt 2 talked about in response to the Court's 3 inquiry? 4 MR. 

### STEVENSON: Yes, Your Honor. 5 And I think

-- and I do accept and understand 6 the distinction that Your Honor is making. 7 And I apologize if I have not conveyed my -- 8 I feel obligated on behalf of my client 9 because I don't know what the thought process 10 is or what the considerations are that I feel 11 that I

-- in order to preserve my client's 12 argument if information is discussed that 13 should not be considered. 14 I always have a concern that I'm 15 going to waive an argument by not mentioning 16 it. 17 But you asked Mr. Pennywitt a 18 number of questions about some of the 19 conditions of his supervisedrelease and about 20 his arrest. 21 And you indicated that you were 22 not sure that the FAA is at least I

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### 1 believe, that you're not sure the FAA is 2 appropriately considering those. 3 

### While on the one hand those are 4 

### pertinent, on the other hand I do not believe 5 

### that they are a significant consideration. 6 As we've discussed the FAA does 7 

### take into account whether or not there's a 8 

### criminal conviction. But the matters that are 9 

### being discussed with Mr. Pennywitt while I'm 10 

### surepersonallyunpleasant for him are matters 11 

### that would be routine in a 

### criminal 12 proceeding. 13 And a respondent

-- any respondent 14 who has received a criminal conviction for a 15 felony is generally going to have been 16 

### arrested, they are going to have been 17 processed. 18 Although they are not identified 19 as standard conditions of supervision, the 20 conditions of supervision of not owning 21 firearms and of substance abuse testing are 22 fairly routine within the federal criminal

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### 1 justice system. And so those are to me 2 wrapped up in the concept of he received a 3 criminal conviction. 4 I 

### would presume that any 5 defendant, unless given informationotherwise 6 I would presume that anyone who was convicted 7 of a felony in a federal court is going to 8 have to deal with conditions of supervised 9 release such as not owning a firearm. They 1

### re 10 going to lose their right to vote. I believe 11 in the State of Florida you can get that back 12 later although I do not know the details of 13 that process later. 14 That they are going to have to do 15 substance abuse-related matters such as drug 16 

### testing. But those are wrapped up in the 17 process of getting conviction and being on 18 unsupervised release. 19 And while they 1

### re not trivial they 20 are also to some extent the bare minimum 21 punishment that the criminal systemcan impose 22 for that.

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1 The one additional note I would 2 make is I don't know what, Your Honor, it's 3 part of homework assignments and so perhaps 4 this is going to be addressed, but you've 5 asked Mr. Pennywitt about his ability to pay. 6 If Mr. Pennywitt wants his ability 7 to be taken into account which is not 8 applicable in this sort of case in the same 9 way as it is, for example, a hazmat case, 10 that's somethingthat he would need to provide 11 documentation on. 12 I have only very limited 13 documentationabout that. I have not received 14 whatever he gave to the probation office 15 during discovery, did not present extensive 16 documentation to me and I did not present it 17 to the Court because I did not see him making 18 an argument in his motion that would support 19 reducing the penaltybased on his inabilityto 20 pay. 21 I understand that there's a 22 reference to his inability to pay in the

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### 1 motion. 2 But I would note

-- but of course 3

-- as a matter of fact, the one document that 4 Mr. Pennywitt did provide indicates that his 5 personal monthly net income, not his gross 6 income but his net income is $3,900 a month. 7 

### Certainly there are plenty of 8 people in the countrywho make more than that. 9 

### But that is very far above poverty. And I 

### 10 don't think based on his income that that 11 represents an inability to pay. 12 And I think that Your Honor was 13 correct in asking questions to clarify that 14 although perhaps his future income increases 15 have been affected, Mr. Pennywitt did not lose 16 his job because of this. He did not have his 17 pay reduced because of this. 18 There are times where

-- there was 19 another case that was in this office recently 20 where a gentlemanhad shined the laserpointer 21 out of the company truck so he was fired when 22 he was arrested for that. And so we had a

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### 1 respondent who was literally unemployed and 2 

### 1 iving with his mother. And that sort of 3 

### financial consequences is not one that has 4 

### befallen Mr. Pennywitt such that he would be 5 

### unable to make a 

### payment. Thank you. 6 

### JUDGE SULLIVAN: Thank you very 7 

### much, Mr. Stevenson. 8 

### Okay. I'm going to thank 9 everybody for staying a little later than we 10 had scheduled. And I obviously need to give 11

-- I'm going to ask both parties to file some 12 supplemental materials. So let me go to my 13 list. 14 Mr. Pennywitt. 15 

### MR. PENNYWITT: Yes, Your Honor. 16 

### JUDGE SULLIVAN: I would like you 17 to look for and if you can file your proof of 18 certified mail receipt to Mr. Stevenson for 19 the April 17, 2013 letter signedby Mr. Stone. 20 And I'm going to give you some due dates for 21 time to file. 22 

### In addition, Mr. Pennywitt, I'm

NEAL

### R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433

### so 

### l going to give you an opportunity to file some 2 financialmaterial. Mr. Stevensonis correct. 3 If there is an assertion by you that you 4 

### cannot pay, or that the $11,000 

### proposed 5 

### amount is too high for your particular 6 

### circumstances you have to back that up with 7 

### some information. 8 

### And so there are two types of 9 

### information I think that you need to give or 10 

### file if you're interested in perfecting your 11 

### record. 12 The first is the financial 13 documentation that you provided to your 14 attorneyand the probationofficer at the U.S. 15 District Court prior to your criminal 16 conviction. The financial affidavit and any 17 other tax returns and financial information 18 that you provided to them. 19 The second would be some current 20 financial information. Essentially you pick 21 up where that financial information stopped 22 and you say, okay, from X date to today here

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### 1 is my financial declaration. Here is my most 2 recent tax return and so forth. 3 

### MR. PENNYWITT: Okay. 4 

### JUDGE SULLIVAN: Okay. 5 

### MR. PENNYWITT: Yes, Your Honor. 6 

### JUDGE SULLIVAN: Fourth, I think 7 it would be helpful if you could provide some 8 additional proof of your community service, 9 what you did, when you did it. That would be 10 helpful. 11 

### MR. PENNYWITT: Okay. 12 JUDGE SULLIVAN: If there are 13 other things

-- and I also would like you to 14 read the Hudson decision that was issued by 15 the Supreme Court that Mr. Stevenson has 16 talked about in his materials. 17 And you'll see on page 2 of Mr. 18 Stevenson's reply material in the bottom of 19 the page he cites to the United States

-- or 20 Hudson v. United States, 522 U.S. 93 (1997). 21 You should be able to find that on the web if 22 you type in that reference. That's how you

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### 1 find that case to read. 2 If you can't find it on the web 3 you could go to a law library near your house 4 and usually there are schools that keep some 5 law books. You have a university near your 6 home? 7 

### MR. PENNYWITT: Yes, Your Honor. 8 

### JUDGE SULLIVAN: Okay. The 9 universitylibrarywill usuallycarry some law 10 books, particularly the Supreme Court law 11 books. And this case is fairly recent. So if 12 you cannot find this case on the website by 13 doing a Google search you could also try and 14 go to your local library and see if you can 15 find it with the help of a librarian. And 16 that will help you get up to speed as to what 17 Mr. Stevenson's position is regarding double 18 jeopardy. 19 

### MR. PENNYWITT: Thank you, Your 20 Honor. 21 JUDGE SULLIVAN: You're welcome. 22 

### Mr. Stevenson, let's talk with you

NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443383 1 next. I would like you to provide some 2 information about Glenda White simply to 3 supplement the argument that you made today 4 regarding the FAA's non-activity in Mr. 5 Pennywitt's criminal case. 6 Two, I'm going to defer asking you 7 to do any further research on double jeopardy. 8 I want to take a second look at both the cases 9 and what they say. 10 If there is something that I need 11 from you in terms of your client's position I 12 will let you know and I'll do that fairly 13 soon. 14 Number three I apologize for 15 keeping you waiting. Let me see if I can find 16 that one. Oh, I think this is about the 17 timeliness of the complaint. 18 You had indicated in your cover 19 letter to the complaint that you filed that 20 you had

-- that it was referred to you by a 21 third party on August 26, 2013. 22 I would like you to identify who

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1 that third party was so that our record is 2 clear. 3 Now, let's talk about a time frame 4 for getting this material. Mr. Pennywitt, you 5 have the larger share of work to do. How much 6 time do you need in your opinion to get this 7 material and file it both with the Court with 8 a courtesy copy to Mr. Stevenson? 9 MR. PENNYWITT: Would a month be 10 too much to ask for, Your Honor? 11 JUDGE SULLIVAN: Well, given our 12 July Fourth holiday I'm not sure that it's too 13 much. Let me just double-check my calendar. 14 Mr. Stevenson, my recollection is 15 that you had some things going on. I know 16 that you're appearing before me in another 17 case and there were some issues regardingboth 18 your schedule and the opposing counsel's. Was 19 that a July problem for both of you? 20 MR. STEVENSON: Yes, Your Honor. 21 I effectively have most or all of my weeks 22 scheduled between now and about August 25

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### 1 except for the week of July 21 where I have a 2 few conferences including a 

### scheduling 3 conference with Your Honor in a third case. 4 

### I will not be traveling. Every other week 5 between now and then I will be out of the 6 office for most or all of the week. 7 

### JUDGESULLIVAN: Okay. Well, that 8 makes sense. 9 We currently have an October 21 10 through October 22 trial date. And I'm going 11 to make a suggestion to you both. 12 If I set out the supplemental 13 filings for both of you into September that 14 runs us afoul with everybody trying to get 15 ready for the October trial date. 16 It may be, and I'm not saying it 17 is, but assuming that there is any kind of 18 hearing in this matter

-- well, let me change 19 this. 20 

### It may be, assuming that the 21 double jeopardy argument does not prevail. 22 And I'm not saying it will or it won't at this

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1 

### point. I need to do some additional research. 2 

### But if it doesn't prevail and the 3 case goes forward it's possible that matters 4 

### can be resolved once supplemental filings are 5 

### in. 6 

### It's also possible that we would 7 

### still need to have a hearing. But it would 8 

### make more sense to me at this point if we 9 

### struck the hearing at this point, set a date 10 

### for supplemental filings and then reconvene 11 

### either to set a new hearing date, or in the 12 

### alternativewe couldpush out the hearing date 13 

### today to give everybody a chance to do the 14 

### supplemental materials and respond to them. 15 

### Let me ask you, Mr. Stevenson, 16 

### what's your preference? Because I know you 17 

### have a very booked calendar. And if we wait 18 

### until Septemberwhen you are available to read 19 

### Mr. Pennywitt's materials and to respondwe're 20 

### really cutting things very, very short for 21 

### trial purposes. 22 MR. 

### STEVENSON: I would concur

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### 1 with that, Your Honor. Probablyby the end of 2 the week of August 25 I would probablybe able 3 to respond. But that does not give you a lot 4 of time. 5 If there is going to be a hearing 6 that would not give you a lot of time to issue 7 a decision such that we would have a 8 reasonableamount of advancenotice of whether 9 or not the hearing was going to occur. So I 10 would not object to continuing the matter at 11 this point. 12 JUDGE SULLIVAN: Do you have a 13 preference about either setting a new date 14 today or waiting? Do you have a preference 15 about that? 16 

### MR. STEVENSON: I don't have a 17 strong preference. Once we get past October 18 my schedule is fairly free. 19 However, as I think Your Honor has 20 observed in other cases there is a virtue to 21 just going ahead and setting a date. And so 22 at least it's there and you don't schedule on

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### 1 top of it. 2 So there could be some value to 3 just setting something out there just to make 4 sure that we've got that down on our calendars 5 in the event that it's necessary. 6 

### JUDGE SULLIVAN: Mr. Pennywit t, 7 what are your thoughts about this? 8 

### MR. PENNYWITT: I am flexible. 9 

### JUDGE SULLIVAN: Okay. Why don't 10 

### we do this. Let's plan on continuing the 11 October trial date for just a little while so 12 that we can clear up some of these other 13 matters. 14 And if we do that let's try and 15 reschedule it today. Mr. Pennywitt, do you 16 have your calendarwith you by any chance? Is 17 that possible for you to do today? 18 

### MR. PENNYWITT: Yes, Your Honor. 19 

### JUDGE SULLIVAN: Okay. Then let 20 me take a look at my calendar. We're talking 21 about I think a two-day trial if I recall. 22 Yes.

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1 I'm going to take a look at my 2 calendar. And of course this puts me -- I can 3 suggest a couple of different things. And I 4 don't know what your schedules are in between 5 Thanksgiving and Christmas if that's 6 acceptable. 7 I could do this case the week of 8 December 8 . I don't know if that ' s giving us 9 enough time for when you come back but I'm 10 going to throw it out anyway. 11 Or, I would be pushing you folks 12 into March. March of 2015. 13 So starting with you, Mr. 14 Stevenson, what's your preference? The March 15 would be about March 22, 2015. 16 MR. STEVENSON: My preference 17 would be to schedule it for the week of 18 December 8. For me at least that should be 19 I'm not sure what my Christmastimeplans will 20 be but that should be early enough in the 21 month that there wouldn't be a conflict. 22 JUDGE SULLIVAN: Mr. Pennywit t,

NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISlANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443390
1 how about for you? 2 MR. PENNYWITT: That's okay with 3 me. 4 JUDGE SULLIVAN: Okay. Then let's 5 plan on continuingthis matter from October 21 6 and October 22, 2014 to December 9 and 7 December 10, 2014 with December 8 and December 8 11 and travel days. 9 And that should give us enough 10 time so that Mr. Stevenson has a chance to go 11 and travel as much as he's planning between 12 July and August. And Mr. Pennywitt, that will 13 give you a little extra time to get all of 14 your materials together. 15 So, why don't we plan on Mr. 16 Pennywitt filing his materials Mr. 17 Pennywitt, why don't we say August 22, 2014? 18 And Mr. Stevenson, you were saying 19 that sometime in August you could get your 20 materials out. Do you want to have that same 21 date or a little later, depending on your 22 schedule?

NEAL

### R. GROSS (202) 234·4433 COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443391 

### 1 MR. STEVENSON: I don't think that 2 I will need any additional time to get a 3 response out. I think I'll be able to be in 4 the office enough around the travel just to 5 get that information out. 6 

### I mean, you said you wanted 7 informationon Glenda White. Do you want that 8 simply in the form of a filing, or do you want 9 an affidavit from her about her status? 10 

### JUDGE SULLIVAN: I think your 11 filings, you're an officer of the court. So 12 long as you can assert what her role was and 13 that her role had nothing to do with the FAA 14 that's fine. If she wants to do an affidavit 15 and say that, that's fine too. 16 

### I think it simply needs to be 17 clarified in some way that the FAA was not 18 leading the charge in terms of the criminal 19 conviction as Mr. Pennywitt has asserted. 20 

### Number two, with the timeliness 21 issue, that has nothing to do with Ms. white. 22 And I will be able to get you out

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### 1 something about whether or not I need a 2 response on double jeopardy shortly I think. 3 I just need to take a second look at the 4 Hudson case. 5 Does that answer your question? 6 

### MR. STEVENSON: Yes, Your Honor. 7 So yes, especially the filing from the

-- I 8 should not have a problem working that in 9 around the hearing. 10 I don't know how long

-- because I 11 don't know what the response will be. It may 12 take me longer to be able to review Mr. 13 Pennywitt's submission. But just getting that 14 information out is something I should be able 15 to work in around the travel. 16 

### I would also just so I don't 17 forget since we're asking, you had

-- the 18 second thing you had asked me for was the 19 identity of the person that I got a copy of 20 that from. 21 Would you like me to include that 22 in the same filing? Or I can tell you on the

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1 

### record now how I got that. 2 

### JUDGE SULLIVAN: I think if you 3 would simply do it in a filing that would be 4 

### preferred. 5 

### MR. STEVENSON: Thank you, Your 6 

### Honor. 7 

### JUDGE SULLIVAN: You're welcome. 8 

### And then in terms of the double jeopardy issue 9 

### I'm going to take a second look at that after 10 

### we close today. And I'm going to let you both 11 

### know whether I need anything more on that, 12 

### and/or whether I'm ready to rule on that right 13 

### away. So that I'm kind of looking at as a 14 

### different issue than the motion for summary 15 

### judgment. 16 

### Mr. Stevenson, starting with you, 17 

### is there anything else that you need to 18 

### address for your client todaybefore we close? 19 

### MR. STEVENSON: No, Your Honor. 20 

### JUDGE SULLIVAN: And Mr. 21 

### Pennywitt, same question to you sir. 22 

### MR. PENNYWITT: No, Your Honor.

NEAL

### R. GROSS (202) 234-4433 COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443394

1 JUDGE SULLIVAN: 

### Okay. Then I 2 will thank you both very much for your 3 presence today and for your workingmaterials. 4 I 

### appreciate all the work that you both have 5 done in this matter so far. 6 I 

### look forward to getting your 7 

### additional supplementalmaterials. And again, 8 

### as I 

### mentioned I 

### will try and address the 9 

### double jeopardy argument as soon as possible 10 so that if I 

### need anything from either of you 11 on that I 

### can let you know in writing. 12 With that we can go off the record 13 and I 

### wish you all a good day. Thank you. 14 (Whereupon, the above-entitled 15 matter went off the record at 4:02p.m.) 16 17 18 19 

### 20 21 22

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C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Tyler Pennywitt

Before: USDOT/FAA

Date: 06-26-14

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234-4433 Court Reporter

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com