Opinion
Case No. 2:96-CR-0052 B.
May 26, 2000.
MEMORANDUM OPINION ORDER
INTRODUCTION
On September 15, 1994, Paul Thompson pursued an activity known as BASE, jumping at Lake Powell in Southeastern Utah. He jumped from a cliff into the water below. On the descent, he struck a cliff and was killed. Defendants, Dennis McGlynn and Gravity Sports, Ltd., were charged with aiding and abetting Paul Thompson to violate National Park Service Regulation 36 C.F.R. § 2.17(a)(3), a class B misdemeanor, by delivering a person or object to the surface of Lake Powell in the Glen Canyon National Recreation Area, Utah side, by a parachute without a permit. Following a bench trial to Magistrate Judge Samuel Alba, both defendants were found guilty of the offense and now appeal their conviction to this Court pursuant to Federal Rule of Criminal Procedure 58(g)(2)(3). This Court has original jurisdiction under 18 U.S.C. § 3231. Having reviewed the memoranda submitted by the parties, the Court issues this Memorandum Opinion and Order.
BASE is an acronym for buildings, antennae, spans and earth forms.
BACKGROUND
In the spring of 1994, Gravity Sports circulated a flyer advertising "Cliff Camp 94." For a fee of $1,000, Gravity Sports offered prospective attendees of Cliff Camp 94 "the chance to learn, while you experience first hand, every aspect of slider-down "cliffin," Cliff Camp 94 was touted in The advertisement as "an accelerated course in fixed object jumping, allowing you to do and learn in one week what might take years by traditional methods." Participants were told that they would make ten to fifteen jumps at up to seven different sites.
During September, 1994, a group of approximately ten to twelve persons, including McGlynn and Thompson, traveled from California to Lake Powell to participate in Cliff Camp 94. The group traveled to approximately seven different cliff sites. On September 15, 1994, Thompson jumped from a cliff located on the Utah side of Lake Powell in the Glen Canyon National Recreation Area. Upon jumping from the cliff, Thompson deployed a rectangular shaped parachute, or as the defendant asserts, "a rectangular "RAM-air' aeroelastic wing inflatable canopy" (RAM canopy), which appeared to malfunction and throw him into the side of the cliff wall. Thompson sustained injuries causing his death.
Following their trial and convictions, the defendants were sentenced by the Magistrate Judge on August 27, 1999. Defendant McGlynn was sentenced to three months incarceration, sixty months probation, and required to pay $2,225 in restitution. Defendant Gravity Sports, Ltd. was ordered to pay a $5,000 fine.
Defendants now appeal the Magistrate Judge's ruling, arguing that their convictions should be reversed. As stated by the defendants, they advance the following arguments: (1) The defendants are not bound by the United States Court of Appeals for the Tenth Circuit's decision in United States v. Oxx, 127 F.3d 1277 (10th Cir. 1997); (2) the government failed to meet its burden of proving beyond a reasonable doubt that a person of ordinary intelligence will understand what conduct is prohibited, and the defendants could reasonably have believed that the RAM canopy qualified as an aircraft capable of powerless flight; (3) the Federal Aviation Administration has exclusive jurisdiction of aeronautical activity on Lake Powell rather than the National Park Service; and (4) defendant Gravity Sports was a dissolved partnership not capable of committing a crime as a separate entity.
On November 12, 1999, after the appeal was fully briefed, defendants filed a motion to add additional argument, contending that the fine imposed on defendant Gravity Sports is an additional punishment on McGlynn as the remaining proprietor of Gravity Sports, which constitutes double punishment in violation of the Fifth Amendment. The government opposes the motion as untimely. The Court agrees. Furthermore, there is also no evidence that this argument was raised below to the Magistrate Judge. Moreover, even if the Court were to consider defendants' argument, defendants have provided virtually no legal support for their proposition. The motion to add this additional argument is denied.
DISCUSSION
All issues presented in this appeal are issues of law, and the Court accordingly reviews them de novo. See United States v. Wood, 6 F.3d 692, 694 (10th Cir. 1993).United States v. Oxx
Count II of the indictment charges the defendants with aiding and abetting delivery of Paul Thompson by parachute to the surface of Lake Powell without a permit in violation of National Park Service Regulation 36 C.F.R. § 2.17(a)(3). The instant appeal hinges on the interpretation of section 2.17(a)(3) and in that regard whether the Tenth Circuit Court of Appeal's opinion in United States v. Oxx, 127 F.3d 1277 (10t Cir. 1997) is controlling here.
Defendants contend that the Magistrate Judge erroneously followed Oxx as controlling precedent, arguing that the only issue before the Tenth Circuit in Oxx was whether a RAM canopy was more than a parachute for purposes of a motion to dismiss. Defendants argue that in the instant case the government must have proved beyond a reasonable doubt that a RAM canopy was not an aircraft. Regardless whether the Court is reviewing a motion to dismiss or, as in the case at bar, a conviction from a bench trial, the Court must interpret section 2.17, and the Tenth Circuit's decision in Oxx provides clear guidance as to the proper interpretation.
Section 2.17(a)(1) states:
§ 2.17 aircraft and air delivery. (a) The following are prohibited: (1) operating or using aircraft on lands or waters other than at locations designated pursuant to special regulations. . . . (3) delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss or pursuant to the terms and conditions of a permit.36 C.F.R. § 2.17(a)(1) and (a)(3).
Defendants assert that section 2.17 is ambiguous when considering the definitions contained in other National Park Service Regulations, specifically 36 C.F.R. § 7.70(a)(6) and 1.4(a), as well as 40 Fed. Reg. 36,378 (1975). Section 770 provides:
§ 770 Glen Canyon National Recreation Area. (a) designated airstrips . . . (6) the entire surface of Lake Powell subject to the restrictions contained in § 2.17 of this chapter.36 C.F.R. § 7.70(a)(6). Section 1.4 defines aircraft as including powerless flight. See 36 C.F.R. § 1.4(a). According to a statement by the director of the National Park Service, powerless flight includes parachutes. See 40 Fed. Reg. 36,378 (1975) (stating under the heading of "Powerless Flight," that "launching or landing of recreational gliders, sailplanes, parachutes, body kites, hang gliders, and other devices designed to carry persons or objects through the air in powerless flight is prohibited").
Based on the above definitions, defendants argue That the regulations provide for the use of aircraft in designated areas (section 2.17(a)(1)), that Lake Powell is a designated airstrip (section 7.70(a)(6)), that aircraft includes powerless flight (section 1.4(a)), and that according to a statement by the director of the National Park Service in the Federal Register parachutes are within the definition of powerless flight ( 40 Fed. Reg. 36,378). In contrast to defendants' argument, section 2.17(a)(3) plainly prohibits delivering a person by parachute.
Defendants attempt to overcome section 2.17(a)(3) by arguing that Thompson's RAM canopy was more like a powerless aircraft than a parachute. If Oxx is controlling precedent, this argument must fail. Both sides acknowledge that the parachutes used by the defendants are the same as those at issue in Oxx. As stated in Oxx, "the term "parachute' in § 2.17(a)(3) unambiguously applies to the parachutes used by defendants in BASE jumping." See Oxx, 127 F.3d at 1279. The Tenth Circuit further stated, "[a] parachute by any other name is still a parachute, and delivering a person by parachute is prohibited" and "[t]echnological improvement in the shape, maneuverability, and control of modem parachutes, including those used here, do not make them cease to be parachutes." Id. at 1279-80. Even Thompson's own device was labeled "Quark 7 cell RAM air parachute. . . . Caution: high performance parachute."
Defendants filed a motion to cite additional authority on February 8, 2000. The Court grants that motion and have considered the authority presented therein, which include a number of insurance cases that stand for the proposition That rectangular-shaped parachutes, hang kites, and water ski kites may be considered aircraft for insurance purposes due to the operator's control of the devices. See Deschler v. Fireman's Fund Life Insurance Co., 663 P.2d 97 (Utah 1983); Clark v. Lonestar Life Insurance Co., 347 S.W.2d 290 (Tex.App. 1961); Wilson v. Insurance Co. of N. Am., 453 F. Supp. 732 (N.D. Cal. 1978). While these cases may be interesting, they are not on point and fail to address the regulation here in issue and the clear interpretation thereof in Oxx.
Defendants went to extensive efforts at trial, through the use of expert testimony and other exhibits, to demonstrate that the RAM canopy in question was capable of traveling significant horizontal distances, making it a powerless flight vehicle. However, there is no question the indicted conduct consisted of jumping off a cliff and attempting to land in the water below. Thompson was clearly using what the regulations define as a parachute: "a device used or intended to be used to retard the fall of a body or object through the air." 14 C.F.R. § 1.1.
The Magistrate Judge correctly followed Oxx as binding precedent. He based his verdicts of guilty on the facts presented at trial, from which it was reasonable to conclude that the device in question was a parachute.
Understanding of Prohibited Conduct
Defendants cite Kolender v. Lawson, 461 U.S. 352 (1983), for the proposition that criminal statutes are to be strictly construed and must clearly define the proscribed conduct so that all persons of ordinary intelligence can understand what conduct is prohibited. See id. at 357. Defendants contend that the Magistrate Judge's ruling was based on an improper construction of the relevant statute, and that the proscribed conduct was not sufficiently clear.
Defendants argue that reasonable people could believe that section 217(a)(1) permits powerless flight to land on the surface of Lake Powell and that defendants' RAM canopy qualifies as powerless flight. However, a person of ordinary intelligence should understand that section 2.17(a)(3) plainly prohibits delivery of a person by parachute, and that the device at issue in this case was a parachute. Such clarity cannot be replaced by convoluting some other alternative to create ambiguity. See Albernaz v. United States, 450 U.S. 333,342 (1981)
("Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent."). The Tenth Circuit has spoken: "As The intent of the regulation is abundantly clear, "nothing is left to construction." Id. at 1280 (quoting United States v. Fisher, 6 U.S. (2 Cranch) 214,230 (1805)). Here again, Oxx is controlling precedent. There, the Tenth Circuit in addressing this same issue, stated that "the regulation made it reasonably clear at the relevant time that the defendant's conduct was criminal." Oxx, 127 F.3d at 1279 (quoting United States v. Lanier, 520 U.S. 259 (1997)).
Federal Aviation Administration and National Park Service Jurisdiction
Defendants argue that the National Park Service is not authorized to regulate aeronautical activity and that the Federal Aviation Administration (FAA) has exclusive jurisdiction over aeronautical activity at Lake Powell. Thus, defendants contend that the Magistrate Judge convicted the defendants under an improper statute because the National Park Service is precluded from enforcing section 2.17(a)(3).
Defendants base their argument on the assertion That when the National Park Service designated the surface of Lake Powell as an airstrip pursuant to section 7.70 the National Park Service relinquished and transferred whatever control it had the FAA. Defendants also assert that parachute jumping is an aeronautical activity under FAA Airport Compliance Order 5190.6A (1989). Defendants' argument is without merit. Lake Powell is not an FAA certified airport and its designation as an airstrip cannot be viewed as the same. The government, in its opposition to defendants' motion to dismiss, submitted position papers by both the National Park Service and the FAA, each supporting the government's position that the National Park Service has jurisdiction to regulate BASE jumping at Lake Powell, rather than the FAA.
Moreover, jumping off the cliffs at Lake Powell and landing in the water below — regardless of what vehicle slows the descent — falls within the National Park Service's jurisdiction. The National Park Service is charged with promoting and regulating the use of park lands so as "to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 16 U.S.C. § 1. The national parks fall under the jurisdiction and management of the National Park Service, and the Secretary of the United States Department of the Interior is charged with making and publishing "such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations" under the National Park Service's jurisdiction. 16 U.S.C. § 3. See also Lesoeur v. United States, 21 F, 3d 965, 968 (9th Cir. 1994) (noting tat "the Secretary has a great deal of discretion in promulgating and enforcing regulations for use of the national parks under 16 U.S.C. § 3 "); Wilkenson v. Department of Interior, 634 F. Supp. 1265 (D. Cob. 1986) (noting that the congressional grant of authority to the Secretary to manage the national park system is "very broad").
The National Park Service's enforcement of section 2.17(a)(3) against BASE jumping at Lake Powell is not preempted or precluded by the FAA's assertion of jurisdiction over parachute and FAA-certified airport activities. The Magistrate Judge's rejection of defendants' argument, and his application of section 2.17(a)(3) to defendants' conduct was appropriate.
Dissolution of Gravity Sports, Ltd. and Its Liability
Defendants assert that defendant Gravity Sports cannot be convicted of a crime because it is a dissolved partnership. There is no evidence that this issue was raised below. This Court sits in review of the matters addressed by the Magistrate Judge in the trial and related proceedings of the defendants' underlying class B misdemeanor convictions. See Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (holding that appellate review "is limited to the issues. . . properly preserve[d] in the [trial] court and adequately present[ed] on appeal"); Walker v. Mather, 959 F.2d 894, 896 (10th Cir. 1992) (holding that as a "general rule. . . "a federal appellate court does not consider an issue not passed upon below" (quoting Singleton v. Wulff 428 U.S. 106, 120 (1976))). Defendants waived this argument by not raising it below.
CONCLUSION
For the foregoing reasons, the convictions and sentences imposed by the Magistrate Judge are AFFIRMED.