U.S. v. Emerson

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before CYR, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH; COFFIN
• Citation: U.S. v. Emerson, 107 F.3d 77 (1st Cir. 1997)
• Decision Date: 07 January 1997
• Docket Number: No. 96-1627,96-1627
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Alan EMERSON, Individually, and d/b/a Emerson Aviation, Defendant, Appellant. . Heard

Page 77

107 F.3d 77

UNITED STATES of America, Plaintiff, Appellee, v. Alan EMERSON, Individually, and d/b/a Emerson Aviation Defendant, Appellant.

No. 96-1627.

United States Court of Appeals First Circuit.

Heard Jan. 7, 1997.

Decided Feb. 26, 1997.

John P. Kalled, Ossipee, NH, for defendant, appellant.

Patrick M. Walsh, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief, Concord, NH, for plaintiff, appellee.

Before CYR, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellant Alan D. Emerson has been ordered to pay a civil penalty of $185,000 for numerous violations of federal aviation law. ¹ He claims that the assessment violates both the Excessive Fines Clause of the Eighth Amendment and the Double Jeopardy Clause of the Fifth Amendment. We find no constitutional error, and therefore affirm.

I. Factual and Procedural Background

On February 15, 1994, the administrator of the Federal Aviation Administration (FAA) issued an emergency order revoking Emerson's commercial pilot certificate. The action was based on allegations that Emerson was responsible for more than thirty unlawful flights. About a month later, on March 29, 1994, the United States filed the complaint that underlies this appeal, seeking civil penalties based on the same conduct that triggered the FAA order, namely, the operation of charter flights after FAA authorization to conduct such flights had been revoked. ² The complaint sought a $10,000 penalty for each alleged violation. An amended complaint later increased the number of asserted violations to fifty-three.

Emerson filed several motions seeking to dismiss the complaint, arguing, inter alia, that requiring him to defend the same allegations in both the administrative and civil proceedings constituted a violation of the Double Jeopardy Clause of the Fifth Amendment. He also claimed that the monetary penalties sought were in violation of the Excessive Fines Clause. The district court denied the motions, finding that the FAA's administrative action was remedial in nature, rather than punitive, and that double jeopardy principles therefore were not implicated. The court made no explicit ruling on the excessive fines issue.

In March 1996, Emerson and the United States stipulated to the district court that twenty-six of the flights alleged to be unlawful were operated in violation of applicable federal aviation law and regulations. Eleven of those were round-trip flights, and thus were counted as two separate violations, bringing the total number of admitted violations to thirty-seven. ³ The stipulation left for trial only the issue of the appropriate penalty.

A two-day bench trial was held in April 1996. The court rejected Emerson's claim that he held a good-faith belief that the flights were lawful, and imposed a civil penalty of $5,000 per violation, for a total of $185,000, 927 F.Supp. 23. In reducing the penalty from that requested by the government (at that point, $8,500 per violation, or $314,500), the court noted Emerson's limited financial ability to pay the higher amount. It also found, however, that a significant civil penalty was appropriate in light of the nature, circumstances, extent and gravity of Emerson's violations, his knowledge or reckless disregard of the law, his extensive enforcement history, and the effect of a large penalty in deterring future violators and fostering respect for and compliance with the law. ⁴

This appeal followed. Emerson again asserts that imposition of the civil penalty subsequent to the FAA administrative action violates the Double Jeopardy Clause, and contends that the amount of that penalty transgresses the Excessive Fines Clause.

II. Excessive Fines Issue ⁵

The Excessive Fines Clause protects individuals against abusive penalties imposed by the government. See generally Austin v. United States, 509 U.S. 602, 606-12, 113 S.Ct. 2801, 2803-07, 125 L.Ed.2d 488 (1993); id. at 627, 113 S.Ct. at 2814-15 (Scalia, J., concurring in part and concurring in the judgment); Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 266-68, 109 S.Ct. 2909, 2915-17, 106 L.Ed.2d 219 (1989). Although precedent provides no precise guideposts for evaluating a fine's "excessiveness," Justice Scalia has observed that "the touchstone is value of the fine in relation to the offense," Austin, 509 U.S. at 627, 113 S.Ct. at 2815 (Scalia, J., concurring). See also Harmelin v. Michigan, 501 U.S. 957, 978 n. 9, 111 S.Ct. 2680, 2693 n. 9, 115 L.Ed.2d 836 (1991) (opinion of Scalia, J.) (assuming for the sake of argument that "excessive fines" means "disproportionate fines").

Here, the court imposed a fine one-half the size of that permitted by the relevant statute, assessing $5,000 for each of Emerson's thirty-seven admitted violations rather than the statutory maximum of $10,000 per violation. See 49 U.S.C. § 46301(a)(2). ⁶ We are persuaded that this penalty, though substantial, is constitutionally permissible. Cf. United States v. Pilgrim Market Corp., 944 F.2d 14, 22 (1st Cir.1991) (upholding penalty against Eighth Amendment challenge where fine was less than half the statutory maximum and one-half of the government's recommendation).

We note initially that the district court thoroughly explored Emerson's explanation for the underlying violations, as well as his enforcement history, and found a pattern of persistent disregard of government regulation. The court was unimpressed with Emerson's evidence that he held a good-faith belief that the flights were lawful, ⁷ and found "particularly unpersuasive" evidence of reliance on advice from counsel. It further rejected Emerson's contention that the large number of admitted violations and the record of his past regulatory problems overstated the severity of his actual conduct:

It is of no moment that many of the violations involved record-keeping or other technical functions and that none resulted in serious personal injury. The federal aviation laws safeguard public safety as a collective whole and compliance with the entire regulatory scheme, and not just the rules governing matters that have an immediate and direct effect on life and limb, is presumed. The maintenance of proper records and like tasks is a crucial component in the prevention of accidents and, as such, the failure to comply cannot be viewed as a benign violation simply because of the clerical or technical nature of the violated regulations.

927 F.Supp. at 28-29.

We detect no flaw in the court's reasoning that even technical air safety rules are important, and no clear error in its finding that Emerson did, in fact, engage in repeated, highly culpable conduct. See Sullivan v. Young Bros. & Co., 91 F.3d 242, 246-47 (1st Cir.1996). With this supportable foundation, the conclusion the court drew--that the latest series of violations warranted a significant penalty--is equally unassailable. Moreover, the court recognized that a substantial penalty would be important as a deterrent to potential violators, since "aviation safety rests in large part on voluntary compliance by those who, in all probability, will never face the regulatory scrutiny encountered by the defendants." 927 F.Supp. at 29 .

Despite these conclusions inclining it toward a penalty at or near the magnitude requested by the government, the court did not order such a fine. It gave offsetting effect to Emerson's limited financial resources. Although he continues to earn income from an aviation business and has ownership interests in various real estate and airplanes, the evidence indicated that the properties are heavily mortgaged and that Emerson also owes a substantial tax debt. Based on his economic circumstances alone, the court reduced the penalty from the government's proposed $8,500 per violation to $5,000 per violation, producing the total fine of $185,000.

We are hardpressed to see the "excessiveness" in this thoughtfully levied fine. First, as noted earlier, the "touchstone" is the value of the fine in relation to the particular offense, not the defendant's means. Moreover, though Emerson appears at present not to have the resources to pay the entire penalty, he is employed and, still in his early 50s, should have longterm future earning potential. ⁸ In addition, the continuing nature of the obligation has significance beyond the amount; the fact that the debt will remain with Emerson for some time to come is a sobering reality that should discourage him (and deter others) from committing future violations. Additionally, if Emerson's future prospects become more clearly limited, and the fine consequently becomes more clearly onerous, no barrier apparently exists to his seeking an amelioration from the district court.

In short, the district court's judgment reflects a careful balance between Emerson's means and the justifiable punishment for these latest violations. Thus, the fine bears a reasonable relationship not only to the offense but also to the offender. Consequently, it does not offend the Constitution. ⁹

III. Double Jeopardy Issue

Emerson alternatively seeks to invalidate the fine under the Double Jeopardy Clause, claiming that it constituted double punishment in light of the earlier administrative sanction of decertification. There is no contention that the civil fine is not punitive; the issue is the nature of the FAA penalty that preceded it. If the certificate revocation is remedial, rather than punitive, the later fine is permissible.

We recently have established that, in determining whether an administrative action constitutes punishment for double jeopardy purposes, a court must consider

the totality of the circumstances, including the source of the authority under which the debarment is imposable, the goals underpinning the authorizing statute, the order itself, the purposes it serves, and the circumstances attendant to its promulgation.

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