Opinion
Case No. 19-cr-00286-SVK-1
02-14-2020
UNITED STATES OF AMERICA, Plaintiff, v. TRACY MICHAEL MAPES, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS; GRANTING GOVERNMENT'S MOTION TO FILE SUR-REPLY OUT OF TIME
Re: Dkt. No. 18, 24
Defendant Tracy Mapes is charged with two misdemeanor counts of violating national defense airspace by flying a drone over Levi's Stadium and the Oakland-Alameda County Coliseum during National Football League games. Dkt. 8. Now before the Court is Defendant's motion to dismiss, which argues that the Information (1) fails to provide adequate information about the charges against Defendant, and (2) fails to state an offense even if additional information is added. Dkt. 18, 20. The Court held a hearing on February 11, 2020. Defense counsel advised the Court that Defendant waived appearance; Defendant listened to the hearing by telephone.
Based on a review of the parties' filings, the case file, and applicable law, the Court DENIES the motion to dismiss for the reasons discussed below.
I. BACKGROUND
On May 14, 2019, the government filed a Criminal Complaint charging Defendant with violating national defense airspace, in violation of 49 U.S.C. § 46307. Dkt. 1. The Complaint is accompanied by an affidavit from a Special Agent with the United States Department of Transportation Office of Inspector General regarding the legal and factual basis for the government's complaint against Defendant. Id. The affidavit explains that pursuant to 49 U.S.C. § 40103(b)(3), on July 20, 2017, the FAA issued a temporary flight restriction that "prohibits all aircraft—including small unmanned aircraft—from operating within a three nautical mile radius of any stadium with a seating capacity of 30,000 or more people during, among other events, regular or post season National Football League (NFL) ... games" during certain times (the "stadium TFR"). Dkt. 1, Affidavit at ¶ 6. The affidavit in support of the Complaint further states that the "[p]ursuant to § 40103(b)(3), the FAA classifies the airspace defined in the stadium TFR as 'National Defense Airspace.'" Id.
On June 26, 2019, the government filed an Information charging Defendant with two counts of Violation of National Defense Airspace, in violation of 49 U.S.C. §§ 46307 and 40103(b). Dkt. 8. The Information alleges that on or about November 26, 2017, Defendant "while piloting an Unmanned Aircraft System, did knowingly, and without lawful authority, conduct aircraft operations in restricted airspace" above Levi's Stadium and the Oakland-Alameda County Coliseum, which are "stadium[s] having a seating capacity of 30,000 or more where a National Football League game was occurring, in violation of Title 14, Code of Federal Regulations, Section 99.7, a regulation prescribed under Title 49, United States Code, Section 40103(b)(3)." Id.
Defendant's motion to dismiss argues that the Information fails to fairly inform Defendant of the charges against which he must defend and does not enable him to plead an acquittal or conviction in bar of future prosecution. Dkt. 18. The government's opposition argues that the charging documents are sufficient and that even if they were not, amendment or a bill of particulars, not dismissal, would be the appropriate remedy. Dkt. 19. In his reply, Defendant offers the additional argument that even if the Information was amended to explain the charges against him, it would nevertheless fail to state an offense. Dkt. 20. Defendant's reply states that he does not oppose the government filing a sur-reply to address this argument. Id. at 3 n.2. The Court ordered the government to file a sur-reply by noon on February 10, 2020. Dkt. 22. The government filed the requested sur-reply at 3:47 p.m. on the date it was due, along with a motion for leave to file its sur-reply late. Dkt. 23, 24.
In light of Defendant's agreement that a sur-reply is appropriate and the Court's request that the government file a sur-reply, the Court finds there is no prejudice as a result of the government's filing of its sur-reply approximately four hours after the deadline and therefore GRANTS the government's motion to file its sur-reply out of time.
II. DISCUSSION
A. Sufficiency of Charging Document
An indictment or information "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. Proc. 7(c)(1). The charging document must (1) contain the elements of the offense charged and fairly inform a defendant of the charge against which he must defend, and (2) enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007). Defendant argues that the Information is deficient in both respects. Dkt. 18.
1. Fair information of charge
First, Defendant argues that the Information is insufficient because the document states that his conduct violated 14 C.F.R. § 99.7, but [t]here is no way to tell from the wording of § 99.7 itself how Mr. Mapes is alleged to have violated the regulation." Dkt. 18 at 4. Section 99.7 provides:
Each person operating an aircraft in an ADIZ or Defense Area must, in addition to the applicable rules of this part, comply with special security instructions issued by the Administrator in the interest of national security, pursuant to an agreement between the FAA and the Department of Defense, or between the FAA and a U.S. Federal security or intelligence agency.14 C.F.R. § 99.7. As Defendant notes (Dkt. 18 at 4), this section does not describe, specify, or cross-reference the "special security instructions" to which it refers. Similarly, the Information does not contain these specifics.
However, the government argues that taken together, the Complaint, Information, and discovery materials provide sufficient notice of the offense charged. Dkt. 19 at 3-4. The Complaint describes the terms of the stadium TFR. Dkt. 1, Affidavit at ¶ 6. The Complaint further states that the "[p]ursuant to § 40103(b)(3), the FAA classifies the airspace defined in the stadium TFR as 'National Defense Airspace.'" Id. According to the government, the stadium TFR is also referenced multiple times in discovery produced by the government on June 27, 2019. Dkt. 19 at 3. The government argues that "[e]ach count in the Information alleges precisely what the illegal conduct was: that the defendant piloted a drone 'in restricted airspace above [a football] stadium having a seating capacity of 30,000 or more where a National Football League game was occurring." Dkt. 19 at 3 (citing Information at 1-2).
Defendant is correct that although it is sometimes sufficient for a charging document to "set forth the offense in the words of the statute itself," this is true only if "those words of themselves fully, directly, and expressly, without any uncertainty and ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." Hamling v. United States, 418 U.S. 87, 117-18 (1974) (citation omitted). If the charging documents in this case mentioned only 14 C.F.R. § 99.7, that might not be sufficient because, as discussed above, that regulation does not describe in detail the "special security instructions" to which it refers. However, in determining whether a defendant has been advised adequately of the charges against him, a court may consider "the indictment and all other disclosures made by the government." United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). These materials include discovery, affidavits, and other charging documents. See, e.g., United States v. Taylor, No. 17-CR-00191-JST-1, 2018 WL 4961608, at *3-5 (N.D. Cal. Oct. 12, 2018) (holding that a bill of particulars was not warranted where indictment and search warrant affidavits provided sufficient detail); United States v. Vargas, No. 15-CR-00530-BLF-2, 2016 WL 1446773, at *1-4 (N.D. Cal. Apr. 13, 2016) (assessing adequacy of indictment, complaint, and discovery materials). Here, the Complaint and Information, taken together, contain the necessary level of detail.
It is particularly appropriate to look at both the Complaint and the Information in this misdemeanor case because Federal Rule of Criminal Procedure 58(b)(1), entitled "Charging Document," states that "[t]he trial of a misdemeanor may proceed on an indictment, information, or complaint." Indeed, Defendant's reply states that "[t]o the extent [he] is charged with violating 14 C.F.R. § 99.7 by failing to comply with the Temporary Flight Restriction (TFR) issued on July 20, 2017 pursuant to § 40203(b)(3), [he] agrees that the combination of these materials are sufficient to fairly inform him of the charges against him." Dkt. 20 at 2.
In light of (1) the contents of the Complaint and the Information, (2) the provisions of Rule 58(b), and (3) Defendant's agreement in his reply that the combination of the Complaint, the Information, and the discovery in this case fairly inform him that he charged with violating 14 C.F.R. § 99.7 by failing to comply with the July 20, 2017 TFR, the Court concludes that the Complaint and Information contain sufficient information to fairly inform Defendant of the charges against him, and therefore Defendant's motion to dismiss on that basis is DENIED. The Court further finds that because Rule 58(b) permits trial of a misdemeanor such as the one charged in this case on either an information or complaint, it is unnecessary for the government to amend the Information to contain the additional information contained in the Complaint concerning Defendant's alleged violation of the stadium TFR.
2. Ability to plead double jeopardy
Defendant argues that even if the charging documents give him adequate notice of the charges against him, the Information fails to satisfy the second constitutional requirement of protecting him against future prosecution for the same offense. Dkt. 18 at 6; Dkt. 20 at 2. Defendant argues that the "charging document"—which he construes to mean the "indictment or information"—must enable the defendant to plead double jeopardy. Dkt. 20 at 2 (citing United States v. Martin, 783 F.2d 1449, 1452 (9th Cir. 1986) and Fed. R. Crim. Proc. 7(c)).
Again, Rule 58(b)(1) undermines Defendant's argument. That rule specifically states, under the heading "Charging Document," that a misdemeanor may be tried on an information or complaint. Fed. R. Crim. Proc. 58(b)(1). Thus, the Complaint in this misdemeanor case is a "charging document" and contains the information regarding Defendant's alleged violation of the TFR that Defendant contends is necessary to protect against double jeopardy. Id.; Murrell v. Gov't of Virgin Islands, No. D.C. Crim. App. 2005-66, 2009 WL 1884373, at *4, *10 (D.V.I. June 26, 2009) (in misdemeanor case, stating that complaint is "charging document" and assessing sufficiency of complaint to notify defendant of offense and enable him to raise double jeopardy claims); see generally United States v. Rojo, 727 F.2d 1415, 1418 (9th Cir. 1983) (assessing adequacy of charging document in a petty offense case, which under precursor to Rule 58 could proceed on a citation or violation notice, by examining citation).
Moreover, a court considering a hypothetical future second charge against Defendant would not be limited to the contents of the charging documents in this case. "When determining the preclusive effect of a jury verdict, we must 'examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" See Sivak v. Hardison, 658 F.3d 898, 918-19 (9th Cir. 2011) (quoting Ashe v. Swenson, 397 U.S. 436, 444 (1970)).
Accordingly, the Court concludes that Defendant is adequately protected against future prosecution for the same offense, and therefore Defendant's motion to dismiss on that basis is DENIED.
B. Adequacy of Stated Offense
In his reply, Defendant argues that even if the charging documents adequately specify that he violated 14 C.F.R. § 99.7 by failing to comply with the stadium TFR, dismissal is nevertheless required because such an allegation fails to state an offense. Dkt. 20 at 3-4. Defendant argues that the FAA Modernization and Reform Act of 2012 "codified the FAA's longstanding hands-off approach to the regulation of model aircraft" by "provid[ing] that the FAA 'may not promulgate any rule or regulation regarding a model aircraft.'" Id. at 3 (quoting Taylor v. Huerta, 856 F.3d 1089, 1091 (D.C. Cir. 2017)). According to Defendant, Congress's subsequent expansion of the FAA's authority, at least as it applied to the promulgation of registration requirements for model aircraft, did not occur until December 17, 2017. Dkt. 20 at 4 (citing Taylor v. Fed. Aviation Admin., 351 F. Supp. 3d 97, 100 (D.D.C. 2018)). This was after the date of the alleged offenses in this case—November 26, 2017.
The government offers two arguments in opposition to Defendant's contention that the charging documents fail to state an offense. First, the government argues that the D.C. Circuit in Taylor v. Huerta made clear that its decision did not extend to the FAA's authority to regulate the safety of national airspace, even as applied to model aircraft. Dkt. 23 at 2. Second, the government argues that Defendant's drone does not qualify as a model aircraft and that he was not operating it as a model aircraft. Id. at 2-3. Specifically, the government argues that Defendant's drone does not satisfy the definition of a model aircraft in 14 C.F.R. § 101.1(a)(5) because it was not flown within visual line of sight, and it was not flown for hobby or recreational purposes. Id . at 3. In addition, the government argues that Defendant was not operating the drone as a model aircraft because he did not comply with requirements in Section 336 of the FAA Modernization and Reform Act that require model aircraft to be flown strictly for hobby or recreational purposes, operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization, and flown within five miles of an airport only with prior notice. Id. at 3.
Defendant's characterization of the statutory scheme applicable to model aircraft during the relevant time period is incorrect. The D.C. Circuit examined that scheme in Taylor v. Fed. Aviation Admin., 895 F.3d 56 (D.C. Cir. 2018). As that court explained, in the FAA Modernization and Reform Act of 2012, Congress tasked the Secretary of Transportation with developing "a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system." Id. at 58 (quoting Pub. L. 112-95, § 332(a)(1), 126 Stat. 11, 73). Section 336 of the Modernization Act provides that notwithstanding any other provision of law regarding incorporation of unmanned aircraft systems into FAA plans and policies, the FAA "may not promulgate any rule or regulation regarding a model aircraft" that satisfies five operational criteria (including the hobby/recreational use, community-based safety guidelines, and airport restrictions that the government claims Defendant did not satisfy). Id. (quoting § 336(a)). However, Section 336(b) provides that nothing in it "shall be construed to limit the authority of the [FAA] Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system." Id. (quoting § 336(b)). Thus, the Section 336(a) "safe harbor" for model aircraft "itself has an exception [in Section 336(b))] for dangerous model aircraft operations." Id. at 59-60.
As discussed above, Defendant is charged with violating 14 C.F.R. § 99.7 by failing to comply with the stadium TFR. Defendant does not dispute that the TFR is a safety regulation. As such, the stadium TFR is authorized under Section 336(b) of the Modernization Act. Therefore, because the stadium TFR falls within the safety exception to the model aircraft safe harbor in the Modernization Act, the allegations against Defendant are sufficient, regardless of whether Defendant's drone meets the definition of a "model aircraft" in 14 C.F.R. §101.1(a)(5) or whether he was operating his drone within the safe harbor provided in Section 336(a) of the Modernization Act.
Accordingly, Court DENIES Defendant's motion to dismiss on the basis of failure to state an offense.
III. CONCLUSION
For the reasons discussed above, the Court DENIES Defendant's motion to dismiss.
SO ORDERED. Dated: February 14, 2020
/s/_________
SUSAN VAN KEULEN
United States Magistrate Judge