# u.s. DEPARTMENT OF TRANSPORTATION

# R

# E.

# cEI 

# vED OFFICE OF HEARINGS ·· = 

## FEDERALAVIATIONADMINISTRATION



## FEDERAL AVIATION ADMINISTRATION, Complainant,

vs. TYLERPENNYWITT., Respondent. 

# AUG -4**201~** 

# H

# EAHING DOCK£11

DocketNo. FAA-2013-0716 FAA CaseNo. 2012S0150128

Judge Sullivan

SUPPLEMENTALSUBMISSION ONMOTION FORSUMMARYJUDGMENT 

## By Orderdated June 27,2014 Order, the Judge instructedthe FAAto file (1) information regarding the FAA's non-involvement in Respondent's criminal case, including a statement identifying Ms. Glenda White and the agency she worked for and represented during that criminal case; and (2) information regarding the identity ofthe third party who referred the Respondent'srequest for ahearingto the FAA, and when/howthis referral tookplace. It 

## is undisputed that on June 4, 2012, the Respondent illuminated the helicopter of a Jacksonville Sheriff's Office (JSO) helicopter. The JSO contacted the FAA, and Aviation Safety Inspector Joseph W. Gramzinski began an investigation into potential Federal Aviation Regulation (FAR) violations. As part of this investigation, Inspector Gramzinski sent Respondent a Letter ofInvestigation (LOI) on June 22, 2014, to which Respondent's attorney Eric Friday responded by letter dated July 6, 2012. See 

## Response to Motion for Summary JudgmentatExhibitR-3. The JSO, presumably dissatisfied with the state law remedies available, asked Inspector Grarnzinski about the FAApursuing criminal charges against Respondent. Inspector Gramzinski

## informed the JSO that the FAA does not bring criminal charges, but informed them that the Department ofTransportation (DoT) Office ofthe Inspector General (OIG) did, and referred the JSO to DoT OIG Special Agent Glenda White. Inspector Gramzinski also called Special Agent White and informed herthat he hadreferredthe JSO to her. Special Agent White contacted the JSO and began a criminal investigation. On September 11, 2012, Special Agent White telephonically contacted Respondent. Exhibit 

## J. Respondent asked Special Agent White who she worked for, and Special Agent White informed Respondent that she worked for the DoT OIG, and explained to Respondent that the FAA conducted administrative investigations but that she conducted criminal investigations. !d. 

## Respondent referred Special AgentWhite to attorneyFriday. !d. 

## That same day, attorney Friday telephonically contacted Special Agent White. Exhibit K. Attorney Friday asked that Special Agent White explain who she was and who she worked for, and Special Agent White again explained that she was a criminal investigator for the DoT OIG, and again explained that while the FAA was conducting an investigation into regulatory violations, she was conducted an investigation into criminal violations. Id. 

## Two days later, attorney Friday provided Special Agent White with acopy ofthe July 6, 2012 letter. Exhibit L. 

## Subsequently, Special Agent White requested, and Inspector Gramzinski provided, a copy ofthe FAA's evidence from itsinvestigative file. Thepurpose ofthis request was so that all available evidence (such as the statement provided to the FAA bythe helicopter pilot) could be provided to Respondent's criminal defense, in order to preclude any opportunity for Respondent to later claim that the prosecution had failed to provide him with all potentially exculpatory information. This was Inspector Gramzinski's only interaction with Special Agent White after informingherthathehadreferredthe JSO to her.

2

## In February 2013, Special Agent White telephonically contacted the undersigned. This contact was prompted by a request by Respondent's criminal defense attorney for the civil penalty action to be settled as part ofthe criminal case. The undersigned confirmed Special AgentWhite's understanding thatthe U.S. Attorney's Office did not have the authority to settle,

nor did the District Court have the authority to rule on, the FAA's civil action. The undersigned informed Special Agent White that Respondent was welcome to contact the undersigned about the civil case, but had not done so. This was the only contact between the undersigned and Special AgentWhite concerning Respondentpriorto Respondentbeing convictedand sentenced. Special Agent White worked for and represented the DoT OIG in Respondent's criminal case, during an initial investigation and later working in conjunction with the United States Attorney's Office. Atno time was Special AgentWhite arepresentative ofthe FAA. On April II, 2013, the FAA issued a Final Notice ofProposed Civil Penalty against Respondent. Having receivedno response, the FAAproceeded to issuethe OrderAssessing Civil Penalty on August 8, 2013. The undersigned subsequently received a telephone call from attorney Stone, who was representing Respondent in the criminal case. Attorney Stone complained about the Order, asserting that it constituted doublejeopardy, and claiming that he had been misled by the Assistant United States Attorney (AUSA) handling the case into believing that pleading guilty would resolve the civil action. Attorney Stone asked the undersigned to withdraw the Order. Attorney Stone made no mention ofrequesting a hearing in the civil action. After speaking with Attorney Stone, the undersigned contacted the AUSA. After discussion withthe AUSA, the undersigned contacted attorney Stone and informed him that the FAA would not withdraw its Order. Attorney Stone told the undersigned that he would seek to



## 3

## have Respondent's criminal conviction thrown out. The undersigned asked the AUSA and/or Special Agent White to provide the undersigned with a copy of any such motion filed in the criminal case. 1 

## On August 14, 2013, attorney Stone electronically filed in the criminal case a Motion to Vacate and Set Aside Judgment and Sentence. On August 26, 2013, Special Agent White sent the undersigned an e-mail, attaching a copy ofthe Motion to Vacate. One ofthe attachments to that Motion to Vacate (R-8) was a letter from attorney Stone to the FAA Civil Penalty Docket requesting a hearing on the Final Notice ofProposed Civil Penalty. This was the first time the undersignedhad seen that letter. Accordingly, the thirdparty who referred the requestfor hearing to the undersigned was Special Agent White, and that referral took place via e-mail on August 26,2013. After revtewmg the Motion, including the letter attached as R-8, the undersigned contacted the FAA Civil Penalty Docket to determine whether it had received the request for a hearing. The docket indicated that it had received the request for a hearing, and on August 30, 2013, the FAAfiled its Complaint in this matter. 

# r" Respectfully submittedthis 

# 2

# f day ofJuly ,2014.

CHRISTOPHERR. STEVENSON Attorney Office ofthe Regional Counsel

1

### The undersigned does not specificallyrecall to which ofthe two, orboth,hemadethe request. 

## 4

## CERTIFICATE OF SERVICE 

## Ihereby certifythata copy ofthe foregoing Reply in SupportofMotionfor SummaryJudgment and Response in Oppositionto Motionto Dismiss hasbeen sentthis date bythe following methods: original and one copy viacertified mail: Federal Aviation Administration 800 Independence Avenue, S.W. Attention: Hearing Docket Clerk,AGC-430 Wilbur WrightBuilding- Suite 2Wl000 Washington, D.C. 20591

one copy via certified mail: TylerPennywitt 4483 HanoverParkDrive Jacksonville, FL 32224 Honorable Judge J.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC20590 fax: (202) 366-7536



# tJUL L2,9 2014 Dated



## 5United States Department ofTransportation -Officeof Inspector General

Case Number: 112A0050401 Date ofActivity: 09/11/2012 Subject ofActtvlty: PENNYWITT, TYLER J. 

# Memorandum ofActivity

Reporting Office: JRI-4 Miami Date Report Drafted: 09/12/2012 Activity Conducted By(Namo(s)): Glenda White Typo ofActivity: Record of Conversation Location ofActivity: US DOT/OIG JRI-4 Building 111, Yorktown Avenue Jacksonville FL 32212 Signature: GW On September 11,2012, Special Agent (SA) Glenda 

### L White, United States Department ofTransportation (US DOT), Office of Inspector General (OIG), Jacksonville, FL, telephonically contacted Tyler Pennywitt, Jacksonville, FL. SAWhite identified herself. SA White explained JSO referred an investigation to heroffice regarding an incident wherein Pennywitt shined a laser at a Jacksonville Sheriffs Office (JSO) helicopter. SA White advised she would .like to interview Pennywitt in regards to the laser incident Pennywitt asked SA White ifshe could provide additional information regarding who she worked for. SA White explained she worked forthe US DOT/OIG, and advised this matterwas referred to her office because the Federal Aviation Administration (FAA) was a modal agency within the US DOT. Pennywitt advised he already provided information to the FAA. SA White explained the FAA conducted administrative investigations and her office conducted criminal investigations. SA White explained, as part of her investigation, she needed to provide Pennywitt the opportunity explain what occurred. Pennywitt advised he previously retained counsel forthe FAA matter and wanted to discuss this request with his attorney before he agreed to an interview. Pennywitt advised Eric Friday, Jacksonville, FL, was his attorney. SA White provided Pennywitt with her contact information and advised Friday could contact her ifhe wanted to schedule an interview for Pennywitt. Pennywitt advised he would have Friday contact SA White as soon as possible. Identification: Name: Tyler Pennywitt Address: 4483 Hanover Park Drive Jacksonville, FL 32224 Phone: (904) 252-1356

Reviewed By (Initials): M G Date: 09/12/2012

This report is the property ofthe Office ofInspectorGeneral, and is ForOfficial Use Only. tt contains sensitive lawenforcement information, the use and dissemination ofwhich Is subjectto the PrivacyAct, 5 U.S.C. § 552a. Thls Information may not be copied or disseminated withoutthe wrttten permission ofthe OIG, which will be granted only In accordance with the PrivacyActand the Freedom ofInformation Act, 5 U.S.C. § 552. Any unauthorized or unofficial use or dissemination ofthis Information will be penalized. Page 1 of 1 Office of Inspector General - Investigations U.S. Department ofTransportationCase Number: 112A0050401 Date ofActivity: 09/11/2012 Subject ofActivity: FRIDAY, ERIC United States Department ofTransportation -Office of Inspector General 

# Memorandum ofActivity

Reporting Office: JRI-4 Miami Date Report Drafted: 09/12/2012 Activity ConductedBy (Namo(s)): Glenda White Type ofActivity: Record of Conversation Location ofActivity: US DOT/OIG JRI-4 Building 111, Yorktown Avenue Jacksonville FL 32212 Signature: GW On September 11, 2012, Eric Friday, Attorney, Jacksonville, FL. telephonically contacted Special Agent (SA) Glenda L. White, United States Department ofTransportation (US DOT), Office of Inspector General (OIG), Jacksonville, FL, and advised he represented Tyler Pennywitt, Jacksonville, FL. Friday advised Pennywitt contacted him because SA White wanted to interview Pennywitt regarding the laser incident. Friday asked SA White ifshe could explain who she was and who she worked for again to him. SAWhite explained she was a criminal investigatorfor US DOT/OIG, and JSO referred the matter regarding the laser incidentto her office forfurther investigation. Friday advised he had already responded to a request for information by the Federal Aviation Administration (FAA). SAWhite explained the FAAwas a modal agency under US DOT, and the FAAwas conducting an administrative investigation related to possible regulatory violations. SA White advised heroffice conducted criminal investigations. Friday asked ifthe matter would be provided to an attorney out ofWashington, DC, for prosecution because he had dealtwith situations like that in the past. SA White advised her office would referthe matterto the local United States Attorney's Office (USAO) in Jacksonville, FL. Friday advised the state statute required the individual to knowingly shine a laser light at an aircraft and that was not what happened in this incident. Friday asked if SAWhite could provide him with the relevant statute she was using to save him some research. SA White advised the matterwould fall under Title 

### 18 United States Code (USC), Section 39a. Friday advised he was not inclined to allow Pennywitt to be interviewed, but he wanted to inform SA White what he planned to introduce as a defense. Friday advised itwould be the same information he provided to the FAA, but he would like to verbally advise SA White as well. Friday advised Pennywitt's home was not near an airport or in the flight path ofany airport. On the day ofthe incident, Pennywitt was in his back yard entertaining his three year old son with a laser/star pointer. Pennywitt was shinning the light on power lines, etc., and during the time Pennywitt was entertaining his son with the laser, the laser light accidentally hit the JSO helicopter. Friday said it was merely an accident. Friday wanted to point out he personally purchased the exact same laser pointer used by Pennywitt from Radio Shack, and there was nothing on the packaging to indicate oradvise the laser should not be shown at aircraft or that the laser would interfere 

### with aircraft operations. Friday adv'1sed Pennyw·ltt had no intention ofshinning the light on the JSO helicopter. Friday advised Pennywitt was not a criminal, he was just a guy who made a mistake. SAWhite thanked Friday for returning her call and providing the above information. SA White advised she would complete her investigation and the matterwould be forwarded to the USAO forfurther review and/or action. Identification: Name: Eric Friday

This report is the property ofthe Office ofInspectorGeneral, and Is ForOfficial Use Only. Itcontains sensitive law enforcement Information, the use and dissemination ofwhich Is su.bjectto the PrtvacyAct, 5 U.S.C. § 552a. This Information may notbe copied or dlssemlnated withoutthe written permission ofthe DIG, which will be granted only In accordance with the PrivacyAct and the Fre&dom ofInformation Act, 5 U.S.C. § 552.Any unauthorized orunofficial use or dissemination ofthis information will be penalized. Page 

### 1of 2 Office ofInspectorGeneral**~** Investigations U.S. DepartmentofTransportationCase Number: 112A0050401 Date ofActivity: 09/11/2012 Subject ofActivity: FRIDAY, ERIC Title: Attorney Agency: Fletcher & Phillips 541 East Monroe Street, Suite 1 Jacksonville, FL 32202-2838 Phone: (904) 353-7733 Reporting Office: JRI-4 Miami Date Report Drafted: 09/12/2012 Activity Conducted By (Name(s)): Glenda White Type ofActivity: Record ofConversation Location ofActivity: US DOT/OIG JRI-4 Building 111, Yorktown Avenue Jacksonville FL 32212 Signature: GW

Reviewed By (Initials): M G Date: 09112/2012

This report is the propertyofthe Office ofInspectorGeneral, and is ForOfficial Use Only. ft contains sensitive law enforcement infonnation, the use and dissemination ofwhich Is subJect to the PrivacyAct, 5 U.S.C. § 552a. This lnfonnatlon may not be copied ordisseminated without the wrtHen permission ofthe DIG, whichwill be granted only In accordance with the PrivacyAct and the Freedom ofInformation Act, 5 U.S.C. § 552. Any unauthorized orunofficial use or dissemination ofthis Information will be penallzed. Page 2 of 2 Office ofInspectorGeneral - Investigations U.S. DepartmentofTransportationUnited States DepartmentofTransportation- Office of Inspector General

Case Number: 112A0050401 Date ofActivity: 09/13/2012 Subject ofActivity: FRIDAY, ERIC 

# Memorandum ofActivity

ReportingOffice: JRI-4 Miami Date Report Drafted: 09/13/2012 ActivityConducted By (Name(s)): Glenda White Type ofActivity: Document Receipt Location ofActivity: US DOT/OIG JRI-4 Building 111, Yorktown Avenue Jacksonville FL 32212 Signature: GW On September 13, 2012, Special Agent (SA) Glenda L. White, United States Department ofTransportation (US DOT), Office of Inspector General (OIG), Jacksonville, FL, received a voice mail from Tyler Pennywitt's attorney, Eric Friday, Fletcher & Phillips, Jacksonville, FL. In the voice mail, Friday requested SA White provide him her email address, so Friday could forward SA White a letter he previously submitted to the Federal Aviation Administration (FAA) regarding the laser incident on behalfof Pennywitt. On September 13, 2012, SA White returned Friday's call. SA White advised she received a voice mail from Friday requesting her email address. Friday advised he wanted to forward SA White the letter he sentto the FAA on Pennywitt's behalf regarding the FAA administrative investigation. Friday also advised, ifthe USAO decided to pursue this matter, Pennywitt would be willing to turn himself in to the court, and the USAO did not needto send United States Marshals out to arrest him. SA White provided Friday with heremail address and advised she would provide the information to the USAO. A copy of the email Friday sent to SA White on September 13,2012, with the attached letter Friday wrote to the FAA dated July 6, 2012, is attached (AttachmentA). Identification: Name: Eric Friday Title: Attorney Agency: Fletcher & Phillips 541 East Monroe Street, Suite 1 Jacksonville, FL 32202-2838 Phone: (904) 353-7733 Reviewed By (Initials): M G Date: 09/18/2012

This report isthe property ofthe Office ofInspectorGeneral, and Is ForOfficial Use Only. Itcontains sensitive law enforcement information,the use and disseminationofwhich is subjectto the PrivacyAct, 5 U.S.C. § 552a. This Information may not be copied ordisseminated withoutthe written permission ofthe OIG, whichwill be granted only In accordancewiththe PrivacyAct and the Freedom ofInformationAct, 5 U.S.C. § 552. Any unauthorized orunofficial use or dissemination ofthis Informationwill be penalized. Page 1 of 1 Office ofInspectorGeneral
- Investigations U.S. DepartmentofTransportation

### White, Glenda 

### L. From: Sent: 

### To: Subject: Attachments:


### Ms. White, Eric

### J. Friday <efriday@ftetcherandphillips.com> Thursday, September 13,2012 12:36 PM White, Glenda L. Pennwitt, Tyler Laserdevice use case Resp to FAA letter.pdf

Please find attached a copy ofthe response letterto the FAA in the above case, foryour convenience. Also, I have discussed the situation with my client. Should the US Attorney decide to bring charges, Mr. Pennywitt is more than willing to turn himself in. Please feel free to contact me ifyou have any questions, or I can be offurther assistance. ERIC 

## J. FRIDAY FLETCHER & PHILLIPS 541 E. MONROE ST. JACKSONVILLE FL 32202 PH. 904.353.7733 FX. 904.353.8255 WWW.ERICFRIDAY.COM EFRIDAY@FLETCHERANDPHILLIPS.CDM

This e-mail message is from a law firm and is intended solely forthe use ofthe individual(s) orentity to whom it is addressed and may contain information that is privileged, confidential, and exemptfrom disdosure under applicable law. Ifyou believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from yourcomputer and do. not copy or disclose it to anyone else. Ifyou are not an existing client of this firm, do not construe anything in th'1s e-maH to make you a cl'lent unless it contains a specific statement to that effect and do not disclose anything to us in reply thatyou would expect us to hold in confidence. Ifyou properly received this e-mail as a client, co-counsel, or retained expert of ours, you should maintain its' contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

MOA -Doc Receipt- Eric Friday Attachment A- Page 1 of3

# Fletcher & 

# Phillips Lyman TFletcher Board Certified Marital and Family law American Academy of Matrimonial Lawyers

Florida Family Law Inn of Court. Master



### Via Facsimile and US Mail Mr. Joseph W. Gramzinski Counselors and Attorneys at Law 

## Er1c J 

## Fr1day Member Florida Bar Member Alabama Bar Florida Family Law Inn of Court, Associate 

### July 6, 2012

U.S. Department ofTransportation- FAA Orlando FSD0-15 Citadel International, STE 500 5950 Hazeltine National Drive Orlando, FL 32822-5023. Fax:407-812-7710 RE: File No: 201280150128 Dear Mr. Gramzinski: 

## Michael RPhillips Member Florida Bar Emphasis in Family Law Florida Family Law Inn of Court, Barrister



### I have the privilege of representing Mr. Tyler Pennywitt regarding the incident you are investigating. The incident in question occurred while Mr. Pennywitt was in his backyard at 4483 Hanover Park Dr. in Jacksonville Florida with his toddler son. As a check of Google Maps will show, this address is not immediately adjacent to any airfield. Direct overflights of Mr. Pennywitt's yard are not as routine an occurrence as they might be in other neighborhood that are on a direct approach or departure path to an airfield. Consequently, Mr. Pennywittwas not anticipating overflight by any aircraft during the use of his laser pointing device in a completely lawful manner. Mr. Pennywitt was engaged in stargazing with his young son and was utilizing a green laser pointerto point out stars to his young son. While using his laser pointer he inadvertentlyshined the laser in the direction ofthe helicopter. He did so with no knowledge that the lasercould either reach thatfar, nor did he realize that the intentional pointing ofa laser pointing device at an aircraft in flight was illegal or could cause any harm to the aircraft orthe flight crew. Mr. Pennywitt is an educated person with an accounting degree, and has a family with young children. Despite his education however, he was completely ignorant of the risks orthe law regarding his conduct. While ignorance ofthe law is no excuse, this law is not one the common person is aware ofand does not prohibit conduct that is clearly
541 East Monroe Street, Ste 1 Jacksonville, FL 32202-2838 lamilylaw@FletcherandPhillips.com MOA
- Doc Receipt - Eric Friday AttachmentA- Page 2 of3 phone: 904-353-7733 fax: 904-353-8255

### harmful to the average person. Only persons who have encountered this issue orthose with a specialized knowledge regarding aviation issues would have any reason to be aware ofthis law. I have purchased an exact duplicate ofthe device Mr. Pennywittwas using from RadioShack. A thorough review ofthe packaging and instructions contain numerous warnings, but not one mentions the law regarding aircraft or in any way hints atthe risk ordangers ofpointing the device at an aircraft. It seems this is an issue the FAA may wantto consider in its administrative rule making to require the addition ofsuch a warning in the instructions ofall laser devices sold in the US. This incident shows the need for an aggressive public awareness campaign regarding this issue, not a need for punishment of Mr. Pennywitt that would only harm his young family. Mr. Pennywitt has already drafted a letter ofapology to the pilot ofthe aircraft, which I am including with this letter. It is myhope that the FAA will realize the need for further education ofthe public, over punishment of Mr. Pennywitt. Mr. Pennywitt stands ready and willing to assist in anyway he can to make the public aware ofthe dangers of carelessly shined laser pointers and the possible penalties. If I can be offurther assistance or provide any additional information please do not hesitate to contact me.

541 East Monroe Street, Ste 1 Jacksonville, FL 32202-2838 

### Sincerely,

Eric J. 

### Friday

lamilylaw@FletcherandPhillips.com MOA -Doc Receipt- Eric Friday AttachmentA - Page 3 of3 phone: 904-353-7733 fax: 904-353-8255