U.S. v. Oxx

• Decision Date: 15 July 1999
• Docket Number: No. 2:96-CR-77 J.,2:96-CR-77 J.
• Citation: 56 F.Supp.2d 1214
• Parties: UNITED STATES of America, Plaintiff, v. William OXX, Jonathan Oxx, Martin Tilly, Christopher Berke, David Katz, Steve Mulholland, John M. Henderson, Aaron M. Brennan, and Michael Kvale, Defendants.
• Court: U.S. District Court — District of Utah

56 F.Supp.2d 1214

UNITED STATES of America, Plaintiff, v. William OXX, Jonathan Oxx, Martin Tilly, Christopher Berke, David Katz, Steve Mulholland, John M. Henderson, Aaron M. Brennan, and Michael Kvale, Defendants.

No. 2:96-CR-77 J.

United States District Court, D. Utah, Central Division.

July 15, 1999.

Mark Y. Hirata, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff.

Fred Morelli, Aurora, IL, for Defendants.

MEMORANDUM OPINION AND DECISION

JENKINS, Senior District Judge.

Background

On April 18, 1996, the United States filed a petty offense Information charging each of the named defendants in separate counts as to each but joined for convenience with violating 36 C.F.R. § 2.17(a)(3) (1995) by "deliver[ing] persons by parachute within the Glen Canyon National Recreation Area without a permit and when not required by an emergency." Investigations by the National Park Service resulted in warrants issued for each defendant. A joint bench trial for all of the defendants was scheduled for September 12, 1996. At the time of pre-trial motion hearings, the Government asserted that during the week of April 28, 1995, through May 3, 1995, each of the named defendants engaged in the activity commonly known as BASE¹ jumping by leaping off the cliffs of Glen Canyon National Recreation Area and then, shortly after leaping, deploying a parachute or similar device to glide to a landing on Lake Powell.

On August 29, 1996, the defendants filed a joint Motion to Dismiss the counts pending against them, asserting, among other things, that the Information was defective. The defendants contended that the Information should be dismissed because section 2.17(a) (3) of the Park Service regulations does not clearly prohibit BASE jumping, and, as applied to the facts of this case, section 2.17(a) (3) is ambiguous.

After hearing argument, considering proffered facts and testimony, and reviewing the papers submitted on the motion, the court found that the regulations were not intended to prohibit BASE jumping. The court also concluded that the regulation, as applied to the purported conduct of the defendants, suffered from an incurable ambiguity. The court then dismissed the Information as to each defendant. See United States v. Oxx, 980 F.Supp. 405, 408-09 (D.Utah 1997).

The Government appealed and the Court of Appeals for the Tenth Circuit reversed. See United States v. Oxx, 127 F.3d 1277 (10th Cir.1997). In doing so, the Tenth Circuit held that the defendants unambiguously used a "parachute" as that term is defined under the regulations. See id. at 1279. The court also concluded that section 2.17(a)(3) was not ambiguous when applied to the defendants' BASE jumping activities because delivery by "parachute" was clearly prohibited.

Following reversal, this court held extensive pretrial hearings concerning the defendants' motion to suppress and motion to dismiss on pre-emption grounds. Both motions were denied. A bench trial was then held on October 6 and 7, 1999. At the trial's conclusion, and for reasons stated on the record, the court found defendants John M. Henderson and Michael Kvale not guilty of the petty offense charged, respectively, in Counts 8 and 10 of the Information.² As to the remaining defendants, the court reserved its decision. Now, for reasons stated below, the court finds defendants William Oxx, Jonathan Oxx, Martin Tilly, Christopher Berke, David Katz and Aaron M. Brennan not guilty of the petty offenses charged in the Information.

Discussion

The defendants have been charged with violating 36 C.F.R. § 2.17(a)(3), which reads in part:

(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)(3) (1995). In part, the defendants assert that their alleged conduct does not violate this regulation because BASE jumping cannot be considered as "delivering ... a person by parachute," within the meaning of section 2.17(a)(3). Although BASE jumping does involve the use of a parachute, the defendants contend that the types of parachutes used in BASE jumping, and the type of parachutes they allegedly used, permit the jumper to control the parachute and engage in horizontal flight. The defendants argue that this element of flight control makes BASE jumping similar to hang gliding and other forms of powerless flight, and distinguishes the parachutes or "airfoils" allegedly used by the defendants from the parachutes prohibited under the regulations.

The United States, on the other hand, argues that the Tenth Circuit has already answered, in the affirmative, the question of whether BASE jumping parachutes are "parachutes" under section 2.17(a)(3). Thus, so long as the United States demonstrates, beyond a reasonable doubt, that each defendant, without a permit, used a parachute to deliver himself to a place within the Glen Canyon National Recreation Area, then each defendant is guilty of violating section 2.17(a)(3).³

Analysis

At the outset the court begins its analysis by commenting on the question of whether the devices the defendants used in BASE jumping are "parachutes" as that term is understood under section 2.17(a) (3).

The United States is correct when it argues that the Tenth Circuit's decision in United States v. Oxx resolves this issue. There, the Court of Appeals concluded that because these devices "`retard the fall of a body or object through the air'" they are unambiguously "parachutes" as that term is used in section 2.17(a)(3). Oxx, 127 F.3d at 1279 (quoting 14 C.F.R. § 1.1). Therefore, despite the uncontroverted evidence now offered by the defendants that the devices they used were capable of extended flight and control — a control that makes these devices more like powered aircraft than simple parachutes — this court is bound to apply the dictates of the Tenth Circuit when it says, in summary, a parachute is a parachute is a parachute.

In all fairness, however, the defendants actual use of these devices suggests that, in this narrow factual circumstance, the Court of Appeals may not have been so far off the mark as alleged by defendants. According to the evidence presented to the court, the more experienced BASE jumpers among the defendants would run to the edge of the cliff and leap off. These jumpers would not immediately deploy their parachutes. Instead, they enjoyed an extended "free-fall" for as long as possible, only deploying their parachute when the prospect of meeting the Earth with the full force of gravity overcame the thrill of free-fall. The less-experienced BASE jumping defendants would also leap off the cliff, but instead of waiting to deploy their parachutes they would immediately deploy their chutes as soon as they began their free-fall. In each instance, it appears that the oft-talked about "rush" one "enjoys" from BASE jumping comes from a combination of the thrill of the free-fall and the danger of the activity. Thus it appears that it is the jump and free-fall, rather than the descent and glide under a parachute, that gives BASE jumping its special appeal.⁴

Moreover, given the limited time it took to complete these BASE jumps, and the relative short heights from which these BASE jumps were made, any flight attributes the parachutes or airfoils may have are, for the most part, secondary to the role the parachutes plays in controlling the jumper's descent and avoiding a gravity-induced re-acquaintance with terra firma. In such a circumstance, the Tenth Circuit's conclusion that the devices used by the defendants are "parachutes," because they were intended to retard the fall of the defendants' bodies through the air, is a fair one.

The conclusion that the devices the defendants allegedly used were parachutes as that term is understood under section 2.17(a) (3), however, does not alone demonstrate their guilt. As mentioned previously, the defendants are charged with violating 36 C.F.R. § 2.17(a)(3), which, in relevant part, makes it unlawful to deliver or retrieve a person or object by parachute, "except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit." (emphasis added). Counts 1 through 9 of the Information charge the defendants with "deliver[ing] persons by parachute within the Glen Canyon National Recreation Area (Utah side) without permit and when not required by emergency." (Petty Offense Information, file dkt. no. 1.) (emphasis added).⁵

A close reading of the regulation and the charge in the Information makes the following clear: in order to violate section 2.17(a)(3), as charged in this case, a person must deliver him or herself by a parachute without a permit or the existence of an emergency. See 36 C.F.R. § 2.17(a)(3). The United States apparently agrees with this construction. In its opening statement it emphasized that by the close of evidence "it will prove and establish beyond a reasonable doubt Your Honor that these named defendants ... delivered themselves by parachute within the Glen Canyon National Recreation area and they did so without a permit and not in an emergency situation all in violation of 36 C.F.R. Section 2.17 Sub. a., Sub 3." (Tr. vol. I, at 5.) (emphasis added). Thus, as understood by the court and the United States, there are three elements to the section 2.17(a)(3) offense charged in this case: (1) delivery; (2) by parachute; (3) and without a permit or some emergency situation.

Under our Constitution the Fifth Amendment requires, and all parties here would acknowledge, that the United States bears the burden of proving beyond a reasonable doubt that the defendant is guilty of all the elements of a crime....