USA vs Smith

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
UNITED STATES OF AMERICA,
Plaintiff,
vs. 	Case No. L:23-PO-00382-KHR
PETER A S SMITH,
Defendant.
AMENDED ORDER ON MOTION TO DISMISS
Before the Court is a Motion to Dismiss filed by the Defendant, Peter Smith, through
counsel. ECF No. 23. The Motion is requesting dismissal of violation notice 9127024, citing the
Defendant for “operating or using aircraft on lands or waters other than at locations designated
pursuant to special regulations.” ECF Nos. 1, 23; 36 CFR §2.17(a)(1). The government filed its
Response in opposition to the Motion. ECF No. 27. On March 13, 2024, a Motion Hearing was
held via Zoom and both parties made their oral arguments before the Court.
Based on the Court’s findings below, the Motion is hereby DENIED.
BACKGROUND
On June 24, 2023 at approximately 3:08 PM, Colter Bay Rangers were notified “of an
illegally landed helicopter at the base of Moran Creek in Moran Bay.” ECF No. 1. According to
the probable cause statement, Rangers G’Sell and Cardenas responded and found “a Eurocopter
Helicopter (N708SD) . . . [with] two individuals outside the helicopter.” Id. After contacting the
Defendant, the Rangers informed him that he had landed within Grand Teton National Park
4:11 pm, 4/3/24
FILED
Margaret Botkins
Clerk of Court
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[hereinafter, “Park”]. The Defendant informed officers he believed he had landed outside the Park
and did not “mention that his . . . landing was due to an emergency.” Id.
The Defendant was cited with two violation notices: 9127024—36 CFR §2.17(a)(1)
Operating aircraft on lands/waters other than designated areas; and 9127025—36 CFR §2.17(d)
Failure to comply with Federal Aviation Administration [FAA] regulations (i.e. having physical
possession of a pilot certificate or making it readily accessible in the aircraft). Id.; ECF No. 3.
M OTION PRESENTED
In the Motion, the Defendant asserts the weather conditions were adverse when his aircraft
landed within the Park. ECF No. 23 at 2-3. Relying on a lack of weather reports provided in
discovery by the government, he claims the landing of the helicopter was within his right as the
pilot; and therefore, he cannot be prosecuted under 36 CFR §2.17(a)(1). Id. at 4. The Defendant
further asserts there is no proof he was piloting the helicopter, nor is there proof that 36 CFR
§2.17(b) does not apply. Id. at 5-6. The argument then switches course and states the Defendant
cannot be prosecuted under 36 CFR §2.17(a)(1), because the FAA circumvents any criminal
prosecution since it promulgates the regulations for all pilots and gives “final authority as to, the
operation of that aircraft.” ECF No. 23 at 6. The Defendant claims that criminal prosecution cannot
not interfere with the FAA’s regulations or protections, and his charge under 36 CFR §2.17 is
improper. Furthermore, the Defendant argues the government is not able to challenge his judgment
(as the pilot) since the FAA is not challenging his decision to land due to weather—and therefore,
if the administrative agency is choosing not to pursue review of the Defendant’s decision, then the
government’s prosecution fails. Finally, the Defendant purports to provide a distinction between
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the verbiage “used” and “operated” for an aircraft and what violations were witnessed by the
rangers. ECF No. 23 at 6; ECF No. 27 at 2.
The Motion provides the Defendant’s own version of the facts, including an affidavit
purportedly 	written 	by 	the 	Defendant’s 	expert 	witness—using 	language 	describing 	the
Defendant’s experience as the pilot while in flight on June 24, 2023. It is important to note, the
expert witness was not with the Defendant when contacted by the Rangers, nor does the expert
claim to have flown with the Defendant on June 24, 2023. The Facts, Analysis, and sworn
statement in the Motion contradict most of the probable cause statement written by Ranger
Cardenas.
The government opposes the Motion, and points to U.S. v. Glas, L:23-po-00423, which
considered 36 CFR §2.17(b). The court in Glas determined 36 CFR §2.17(b) is an affirmative
defense and shall be treated as such at trial. See U.S. v. Glas, L:23-po-00423, Findings of Fact and
Conclusions of Law ECF No. 14, (D. Wyo. Nov. 21, 2023).
[T]he exception within the code the [d]efendant is relying on is an
affirmative defense and must be properly raised and proven by the
[d]efendant by a preponderance of the evidence because subsection
(b) does not negate the elements of the charge itself, rather it is a
justification or excuse for the conduct by the [d]efendant. See Smith
v. U.S., 568 U.S. 106, 110 (2013) (Where a defense excuses conduct
that would otherwise be punishable, but does not put into question
any of the elements of the offense itself, the burden is allocated to
the defendant (citations and quotations omitted)). If proven by the
defendant, the government may rebut.
The question of how to prove the exceptions within a statute falls
squarely on the [d]efendant [at trial]. See U.S. v. Basnett, 735 F.3d
1255, 1257 (10th Cir. 2013); Rosemond v. U.S., 572 U.S. 65, 91
(2014). “The usual rule that a defendant bears the burden of proving
affirmative defenses is justified by a compelling, commonsense
intuition: Where the facts with regard to an issue lie peculiarly in the
knowledge of a party, that party is best situated to bear the burden
of proof.” Id. (quoting Smith v. U.S., 568 U.S. 106, 112 (2013) and
Dixon v. U.S., 548 U.S. 1, 9 (2006)).
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Id. Findings of Fact and Conclusions of Law ECF No. 14, at 3. The government further argues the
FAA does not regulate credibility of a witness, nor does the FAA control the dictates of criminal
proceedings. Further, the prosecution maintains that the Motion is improper in how it presents the
facts, is procedurally improper for criminal matters, and dismissal of the charge is improper until
the government is given the opportunity to prove its case.
RULING OF THE C OURT
In U.S. v. Portillo-Madrid, 292 Fed. Appx 746 (10th Cir. 2008), the Tenth Circuit Court of
Appeals noted, “A defendant must carry his burden on each of the elements [of an affirmative
defense]; if the evidence is insufficient on even one element, the trial court [or] jury need not be
burdened with testimony supporting other elements of the defense.” Id. at 749 (emphasis added)
(quoting U.S. v. Portillo-Vega, 478 F.3d 1194, 1197-98 (10th Cir. 2007); and U.S. v. Bailey, 444
U.S. 394, 416 (1980)). The Defendant’s proof of his facts are his own words sworn to by his own
expert witness. The very essence of the Motion is a contradiction to the rule of law, who the fact
finder is in a criminal prosecution, and how criminal cases proceed. In misdemeanor cases, with
the trial court being the finder of fact, it is not appropriate for a dismissal to be based on facts
sworn to by an individual that was not even present at the time of the offense, nor is it appropriate
to argue the helicopter miraculously appeared in a National Park.
Proscribing the FAA as the authoritarian of all criminal and administrative transactions
regulating aircraft landing locations and criminal prosecutions of pilots contradicts the Supreme
Court’s ruling in Hudson v. U.S., 522 U.S. 93, 95-96 (1997) (holding administrative proceedings
are civil, not criminal in nature, and do not violate the Double Jeopardy Clause of the Fifth
Amendment). See also Gustafson v. City of Lake Angelus, 76 F.3d 778, 786 (6th Cir. 1996) (the
FAA, nor Congress, has ever expressed or implied that the FAA dictates and preempts regulations
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dealing with where aircrafts are allowed to land); and Cloyd v. McNeil, No. 07-22339-CIV, 2010
U.S. Dist. LEXIS 21700, at *13 (S.D. Fla. Jan. 21, 2010) (regulations promulgated by the FAA do
not preempt general criminal statutes).
It is within the government’s right to criminally prosecute an individual that violates federal
law. Wayte v. U.S., 470 U.S. 598 (1985) (“In our criminal justice system, the [g]overnment retains
‘broad discretion’ as to whom to prosecute.” (citing U.S. v. Goodwin, 457 U.S. 368, 380, n. 11
(1982); and Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980))). Any argument forcing the
government to drop criminal charges because an administrative agency has chosen not to pursue
review fails. The circumstances and facts surrounding this case shall be determined at the time of
trial and not before.
CONCLUSION
THEREFORE, based on the reasoning above, IT IS HEREBY ORDERED that the Motion
to Dismiss is hereby DENIED with prejudice.
Dated this 3rd day of April, 2024.
KELLY RANKIN
United States District Judge
KELL	L	L	L	L	L	L	L	L	L	LY RANKIN
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