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 

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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 

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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 appeared by 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 probably what 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 violation pursuant 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 jeopardy bars 

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's motion to dismiss as 

11 presenting that as a basis for dismissal. 

12 But in that regard I would note 

13 that the FAA's complaint was timely filed with 

14 regards to when the FAA was actually provided 

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. Pennywi t t was going to make a mot ion 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. Pennywi t 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 proceedings that basically is 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 lawfully punished 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. 

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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 possibility of 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 concurrence written 

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 government have an 

11 enormous array of civil administrative 

12 sanctions at their disposal that are capable 

13 of being used to punish persons repeatedly for 

14 the same offense, violating the bedrock double 

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 distinction between 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 indicia here of potential repeated punishment, 

15 particularly given 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 experience with 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 something that would turn 

6 a civil punishment into what's really a 

7 criminal punishment is if the FAA was trying 

8 to imprison Mr. Pennywi tt. 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 Honor mentioned Mr. Pennywitt being repeatedly 

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. 

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1 This is a civil case. This is not an example 

2 of us trying to get -- we 1 re not trying to get 

3 a civil conviction where we couldn 1 t -- we the 

4 government broadly couldn 1 t get a criminal 

5 conviction. 

6 It 1 s 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 circumstances with much harsher penal ties 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 securities violations 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 1 s 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 1 s 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 essentially attempting to punish him 

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 different punishments based on that 

15 conviction in the criminal court which 

16 includes money, 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 asking you to move into your own motion I'm 

5 going to ask Mr. Pennywitt at this time to 

6 respond to your arguments regarding his 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 

2 0 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 respondent was 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 little bit about it in your materials 

21 but this is your opportunity to 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 convicted felon. So basically my 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 prosecuting attorney. 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 probably would like to take the opportunity to 

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 certified mail receipt to the FAA dated April 

19 18, 2013. But I don't see any confirmation of 

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 certification of 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 admissibility to Respondent's Exhibits R-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 question regarding the 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 summary judgment 

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1 motion parties may submit exhibits that 

2 potentially could be admissible at trial. 

3 Sometimes the admissibility is 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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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 concerned about. 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 essentially the 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 summary judgment. 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 discovery and in his guilty plea 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 helicopter and 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 

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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. 

2 0 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 conviction materials. What happened? 

20 Why is that? In your opinion. 

21 MR. PENNYWITT: In my opinion this 

22 is what the prosecuting attorney -- that the 

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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 originally pled 

20 for full dispositive relief 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 inherently would-- 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 broader Department 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 interfere with 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 understand that in the letter from Mr. 

9 Pennywitt 's attorney that 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 helicopter but 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 explicitly under 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 relying on Mr. Pennywi tt' 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 acknowledge that. 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 Sentencing Guidelines. 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 essentially believe 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. Pennywitt was assessed only 

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 information was 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 conviction which 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, only being 

10 required to serve one year of probation and 

11 perform minimal community service. So I think 

12 in the summary judgment motion 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 consideration of 

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 greater penalty than what 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 between Mr. 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 Transportation Office of the Inspector General 

14 I believe. 

15 So she is -- she's just simply not 

16 an employee of the FAA or a representative of 

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 States Attorney or United States Attorney made 

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 considered that to be an acceptable negotiated 

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 

2 0 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. Stevenson just 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 

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1 this criminal prosecution. In answer to your 

2 question. Also --

3 JUDGE SULLIVAN: Well, let me ask 

4 you about that, Mr. Pennywi tt, 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 involved advice from the FAA, sent an 

13 FAA memorandum concerning the applicability of 

14 assessing a civil penalty for this type of 

15 violation as noted in discovery --

16 JUDGE SULLIVAN: Mr. Pennywi t 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 should be required to 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 prosecutors did 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 

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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 evaluation and 

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-attain your 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: Currently what 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 working as 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 negatively impacted because 

21 of the inability to get a CPA certification? 

22 Explain that, please. 

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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 arrested me. 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 

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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? 

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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. 

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1 JUDGE SULLIVAN: Okay. All right. 

2 Anything else that you would like to add to 

3 your argument challenging the 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 presented by 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 received documentation from 

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 

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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 laser pointing upon 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 specifically note 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 criminal punishment is something that 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 

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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 indicated that it would consider 

21 the facts in any particular way. Simply 

22 asking questions of a pro se litigant about 

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1 matters that if he were represented would 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 information and 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. Pennywi tt a 

18 number of questions about some of the 

19 conditions of his supervised release 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 sure personally unpleasant 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 information otherwise 

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 system can 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 something that he would need to provide 

11 documentation on. 

12 I have only very limited 

13 documentation about 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 penalty based on his inability to 

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 country who 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. Pennywi tt 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 

2 0 where a gentleman had shined the laser pointer 

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 i ving 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 signed by 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 

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l going to give you an opportunity to file some 

2 financial material. Mr. Stevenson is 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 attorney and the probation officer 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 university library will usually carry 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 

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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 regarding both 

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 alternative we could push 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 September when you are available to read 

19 Mr. Pennywitt' s materials and to respond we'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. Probably by the end of 

2 the week of August 25 I would probably be 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 reasonable amount of advance notice 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. Pennywi t 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 calendar with 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 Christmastime plans will 

20 be but that should be early enough in the 

21 month that there wouldn't be a conflict. 

22 JUDGE SULLIVAN: Mr. Pennywi t t, 

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1 how about for you? 

2 MR. PENNYWITT: That's okay with 

3 me. 

4 JUDGE SULLIVAN: Okay. Then let's 

5 plan on continuing this 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? 

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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 information on 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 today before 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. 

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1 JUDGE SULLIVAN: Okay. Then I 

2 will thank you both very much for your 

3 presence today and for your working materials. 

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 supplemental materials. 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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202-234-4433 Washington DC 

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107 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005·3701 www.nealrgross.com