United States v. Oxx

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 31 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
vs. No. 96-4173

WILLIAM OXX, JONATHAN OXX,
MARTIN TILLY, CHRISTOPHER
BERKE, DAVID KATZ, STEVE
MULHOLLAND, JOHN M.
HENDERSON, AARON M.
BRENNAN, AND MICHAEL
KVALE,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 96-CR-077 J)

Lisa E. Jones, Department of Justice, Washington, D.C. (Lois Schiffer, Assistant
Attorney General, Washington, D.C., Scott M. Matheson, Jr., United States
Attorney, Wayne Dance, Assistant United States Attorney, Salt Lake City, Utah,
and M. Alice Thurston, Department of Justice, Washington, D.C. with her on the
brief, and Kevin Jones, Department of the Interior, Salt Lake City, Utah, of
counsel), for Plaintiff-Appellant.

Fred M. Morelli, Jr., Aurora, Illinois, for Defendants-Appellees.

Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.
KELLY, Circuit Judge.

The government appeals from an order dismissing a petty offense

information charging Defendants-Appellees with the delivery of persons by

parachute in a national park without a permit and not in an emergency, in

violation of 36 C.F.R. § 2.17(a)(3) (1996). Our jurisdiction arises under 28

U.S.C. § 1291 and 18 U.S.C. § 3731. We reverse.

Background

Defendants are BASE jumpers. “BASE” is an acronym for buildings,

antennae, spans, and earth forms; when a person has completed a jump from each

structure he can be certified as a BASE jumper. Defendants’ charges stem from

jumps during the week of April 28 to May 3, 1995, when they jumped from cliffs

on the Utah side of the Glen Canyon National Recreation Area. After a brief

free-fall they deployed parachutes, and all but one landed safely on the surface of

Lake Powell.

The district court dismissed the information because of what it considered

incurable ambiguity in the governing regulations. Its rationale was that

defendants’ BASE-jumping parachutes were somewhat similar to non-powered

aircraft, which are allowed on Lake Powell under 36 C.F.R. § 2.17(a)(1) and

§ 7.70(a)(6) (1996). The court ruled that these provisions conflicted with a

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phrase in §2.17(a)(3) which prohibits delivery of a person by “other airborne

means” without a permit. That phrase, the court said, clearly prohibits landing a

plane on Lake Powell, in contradiction of the provisions allowing it. Under these

circumstances the district court held the regulations did not adequately notify the

average person what conduct was prohibited, and the rule of lenity required the

incurably ambiguous regulations to be construed in favor of the defendants. On

appeal the government argues that the applicable regulation suffers from no

ambiguity and is clear enough on its face to give defendants notice that their

conduct was prohibited.

Discussion

Although we generally review the dismissal of an indictment or information

for abuse of discretion, we review de novo a dismissal based on the district

court’s interpretation of the governing law. See United States v. Wood, 6 F.3d

692, 694 (10th Cir. 1993).

As with any question of interpretation, we begin with the plain language of

the regulation, which “must ordinarily be regarded as conclusive.” Consumer

Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

Section 2.17(a)(3) provides: “(a) The following are prohibited: . . . (3) Delivering

or retrieving a person or object by parachute, helicopter, or other airborne means,

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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) (1996).

Defendants argue, first, that their conduct cannot be regulated under

§ 2.17(a)(3) because their parachutes provided the kind of control characteristic

of non-powered aircraft, which are permitted under § 2.17(a)(1). The district

court, although not finding that defendants’ parachutes were “aircraft,” agreed

that BASE-jumping parachutes “provide a BASE jumper with control akin to

horizontal flight that enables the jumper effectively to steer clear of the structure

leapt from and to guide the parachute to a safe landing area.” Aplt. App. at 22.

Thus defendants argue that their activity is covered by § 2.17(a)(1), which

prohibits operation of aircraft except at places designated by special regulations.

The surface of Lake Powell is such a designated landing area. See 36 C.F.R.

§ 7.70(a)(6) (1996). Accordingly the defendants assert that because their BASE-

jumping parachutes are really non-powered aircraft, and such aircraft are

permitted on Lake Powell, they have not violated the regulation. This argument,

of course, turns on whether the defendants’ BASE-jumping devices are non-

powered aircraft or are parachutes within the meaning of § 2.17(a)(3).

Second, defendants argue that the regulatory prohibition of “delivering” a

person is too ambiguous to cover their conduct.

Third, they argue that even if “delivery” unambiguously applies to their

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conduct, a conflict exists between § 2.17(a)(3), which prohibits delivery of a

person by “other airborne means” without a permit, and §§ 2.17(a)(1) and

7.70(a)(6), which allow aircraft on Lake Powell. This ambiguity, they argue,

deprived them of adequate notice that their conduct was prohibited.

We turn first to the primary issue on appeal: are defendants’ BASE-

jumping parachutes included within the meaning of “parachute” in § 2.17(a)(3)?

Federal regulations define a parachute as “a device used or intended to be used to

retard the fall of a body or object through the air.” 14 C.F.R. § 1.1 (1997). The

parachutes at issue here do exactly that. Technological improvements in the

shape, maneuverability, and control of modern parachutes, including those used

here, do not make them cease to be parachutes. Defendants uniformly referred to

their BASE-jumping apparatus as a “parachute” even while protesting it was

something else, see Aplees. Brief at 4, 6, 7, 8, until oral argument, when they

began calling the parachute an airfoil. The district court noted in its

memorandum opinion that “BASE jumping does involve the use of a parachute.”

Aplt. App. at 19. We conclude that the term “parachute” in § 2.17(a)(3)

unambiguously applies to the parachutes used by defendants in BASE jumping.

Defendants assert that the word “delivering,” in the phrase “delivering . . .

a person . . . by parachute,” is too ambiguous to cover BASE jumping. 36 C.F.R.

§ 2.17(a)(3) (1996). “Delivering” is not defined in the regulations, but we believe

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it is apparent that moving oneself from one area to another, as defendants did,

constitutes delivery. As applied to their conduct, then, “delivering” is

unambiguous.

Defendants also argue that a facial conflict exists between § 2.17(a)(3),

which prohibits delivery by “other airborne means” without a permit, and

§§ 2.17(a)(1) and 7.70(a)(6), which permit operation of powerless aircraft on

Lake Powell. We need not address this supposed ambiguity because the

information charged delivery by parachute, not by “other airborne means.” See

Aplt. App. at 1-2. And it charged a violation only of § 2.17(a)(3), neither

mentioning nor charging a violation of any other statute or regulation. Because

we have held that the term “parachute” in § 2.17(a)(3) unambiguously applied to

defendant’s conduct, any ambiguity in the regulation of powerless flight is

irrelevant. Nevertheless, to answer the contention that what is forbidden in

§ 2.17(a)(3) is simultaneously allowed elsewhere, we note that § 2.17(a)(3) only

prohibits airborne delivery without a permit. When read together, so that each

provision has meaning, there is no more conflict between the regulations than

there is between one rule that allows a person to drive a car on the roads and

another that requires her to have a permit to do so. The rule of lenity may not be

invoked to manufacture ambiguity. See Albernaz v. United States, 450 U.S. 333,

342 (1981) (“Where Congress has manifested its intention, we may not

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manufacture ambiguity in order to defeat that intent.”) (quoting Bifulco v. United

States, 447 U.S. 381, 387 (1980).

Because there is no ambiguity in the language of the regulation, defendants

had adequate notice of the illegality of their conduct. Since “parachute” and

“delivering” clearly applied to the defendants’ activity, we conclude the

regulation “made it reasonably clear at the relevant time that the defendant’s

conduct was criminal.” United States v. Lanier, 117 S. Ct. 1219, 1225 (1997).

In the absence of ambiguity, the rule of lenity—or strict construction—may

not be applied. See Moskal v. United States, 498 U.S. 103, 108 (1990) (stating

that the rule of lenity should be applied only if, “[a]fter ‘seiz[ing] everything from

which aid can be derived,’” the statute is still ambiguous) (quoting United States

v. Bass, 404 U.S. 336, 347 (1971) (quoting United States v. Fisher, 6 U.S. (2

Cranch) 214, 230 (1805) (Marshall, C.J.))); Albernaz, 450 U.S. at 342-43; see

also United States v. Wilson, 10 F.3d 734, 736 (10th Cir. 1993) (holding that the

rule of lenity “is not applicable unless ‘there is a grievous ambiguity or

uncertainty in the language’”) (quoting Chapman v. United States, 500 U.S. 453,

463 (1991)).

As a last resort, Defendants attempted at oral argument to bring their

conduct within the regulatory exception for emergencies. They suggested that

whenever a person jumps off a cliff he is in an emergency and may deliver

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himself by parachute without a permit. That argument, of course, will not fly. A

parachute by any other name is still a parachute, and delivering a person by

parachute is prohibited. As the intent of the regulation is abundantly clear,

“nothing is left to construction.” United States v. Fisher, 6 U.S. (2 Cranch) at

230.

REVERSED.

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