UNITED STATES COURT OF APPEALS
Filed 7/10/96
FOR THE TENTH CIRCUIT
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MICHAEL A. BEAUCHEMIN, )
)
Petitioner, )
)
v. ) No.95-9534
) FAA No. SE-13814
NATIONAL TRANSPORTATION SAFETY )
BOARD, FEDERAL AVIATION )
ADMINISTRATION, )
)
Respondents. )
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ORDER AND JUDGMENT*
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Before SEYMOUR, BARRETT, and LIVELY*, Circuit Judges.
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BARRETT, Senior Circuit Judge.
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*The Honorable Pierce Lively, Senior Judge, United States Circuit
Court of Appeals for the Sixth Circuit, sitting by designation.
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Michael A. Beauchemin (Beauchemin) appeals from an order of
the National Transportation Safety Board (NTSB) affirming an order
of the Federal Aviation Administration (FAA) revoking his private
pilot certificate.
Facts
On April 12, 1991, Beauchemin was convicted upon his plea of
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
guilty of engaging in a continuing criminal enterprise, in
violation of 21 U.S.C. § 848. In his plea, Beauchemin admitted
that between 1983 and 1988 he served as an organizer, supervisor,
or manager of at least five other people involved in the
importation, possession with intent to distribute, and distribution
of 24,000 pounds of marijuana. Based on his conduct, he was
sentenced to imprisonment for seven years followed by five years of
supervised release.
On September 23, 1994, the FAA issued an order revoking
Beauchemin’s private pilot certificate, No. 2392742, pursuant to 49
U.S.C. § 44709(b), based on Beauchemin’s conviction. The FAA
concluded that Beauchemin’s conviction demonstrated that he lacked
the degree of care, judgment, and responsibility required of a
certificate holder under 14 C.F.R. § 61.15(a)(2); therefore, he
lacked the qualifications to hold a pilot certificate.
Beauchemin appealed the FAA’s revocation order to the NTSB.
In his answer, Beauchemin admitted the factual allegations in the
FAA’s complaint, including that he was convicted of engaging in a
continuing criminal enterprise.
On January 13, 1995, the Administrative Law Judge (ALJ)
granted the FAA’s November 22, 1995, motion for summary judgment
and affirmed the FAA’s revocation of Beauchemin’s pilot
certificate. On January 19, 1995, the NTSB denied Beauchemin’s
appeal and affirmed the ALJ’s initial decision affirming the FAA’s
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revocation order. Administrator v. Beauchemin, N.T.S.B. Order No.
EA-4371 (1995).
Discussion
On appeal, Beauchemin contends that revocation of his pilot
certificate based on his prior conviction is punitive and, thus,
constitutes multiple punishments for the same crime in violation of
the Double Jeopardy Clause of the Fifth Amendment. We derive our
authority to consider Beauchemin’s constitutional arguments from 5
U.S.C. § 706(2)(B), and we review the NTSB’s interpretation of
constitutional or statutory provisions de novo. Bennett v.
N.T.S.B., 66 F.3d 1130, 1136 (10th Cir. 1995).
“[T]he Double Jeopardy Clause protects against three distinct
abuses: a second prosecution for the same offense after acquittal;
a second prosecution for the same offense after conviction; and
multiple punishments for the same offense.” United States v.
Halper, 490 U.S. 435, 440 (1989). In Halper, the Court noted that
in making a double jeopardy assessment, “the labels ‘criminal’ and
‘civil’ are not of paramount importance.” Id. at 447. The test of
“whether a civil sanction constitutes punishment in the relevant
sense requires a particularized assessment of the penalty imposed
and the purposes that the penalty may fairly be said to serve.”
Id. at 448.
The FAA revoked Beauchemin’s pilot certificate pursuant to 14
C.F.R. § 61.15(a)(2), FAR § 61.15(a)(2). Section 61.15(a)(2)
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provides that a pilot’s certificate may be revoked or suspended if
the certificate holder has been convicted of a federal or state
crime involving a controlled substance. Beauchemin does not
dispute that he was convicted of engaging in a continuing criminal
enterprise with the intent to possess and distribute 24,000 pounds
of marijuana.1 Beauchemin’s sole challenge is that revocation of
his pilot certificate after he has been convicted and sentenced for
the criminal offense is a second punishment which constitutes
double jeopardy.
In Pinney v. N.T.S.B., 993 F.2d 201, 203 (10th Cir. 1993), we
concluded that “it is reasonable to conclude that a pilot who has
violated a drug trafficking statute is also likely to violate
regulations concerning air safety.” See 38 Fed. Reg. 17,491 (1973)
(conviction for violating drug law clearly demonstrates a “tendency
to act without inhibition in an unstable manner without regard to
the rights of others”). Therefore, the civil penalty assessed
against Beauchemin bears a reasonable relationship to the
government’s interest in promoting air safety.
Revocation of a pilot certificate “is a remedy imposed to
enhance air safety and to promote the public interests.” Kolek v.
1
It is undisputed that Beauchemin did not “use” his
pilot certificate in the commission of his offense. However, §
61.15(a)(2) does not contain a “use” requirement, Hernandez v.
N.T.S.B., 15 F.3d 157, 159 (10th Cir. 1994); therefore, use is
irrelevant to the issue of whether the regulation is remedial or
punitive for double jeopardy analysis.
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Engen, 869 F.2d 1281, 1288 (9th Cir. 1989). We agree. Therefore,
Beauchemin’s double jeopardy argument fails.
The order of the NTSB affirming the revocation of Beauchemin’s
pilot certificate is AFFIRMED.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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