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On August 25 2012, Rodriguez and his then-girlfriend repeatedly aimed a $8.00 green laser at a Fresno Police Department helicopter. On March 10 2014, Rodriguez was sentenced on two charges; one with a penalty of 5 years in prison and the other with a 14-year sentence. (According to an analysis by LaserPointerSafety.com, 8 of the 14 years were imposed for the laser violation, and an additional 6 years were due to Rodriguez’s prior criminal history of gang affiliation and numerous probation violations.)
Rodriguez received 5 years in prison on a charge of aiming the laser at an aircraft (18 U.S.C. § 39A). This sentence was upheld by the Ninth Circuit. Judge Barry Silverman, writing for the panel, said that “the evidence showed that [Rodriguez] was attempting to see how far his laser would go at night - a stupid thing to do, yes, but there is no evidence that he was trying to interfere with the pilot.” Silverman added that this conviction “is designed for knuckleheads like him.”
But the 14-year sentence was overturned on the charge of willfully attempting to interfere with the safe operation of an aircraft in reckless disregard for human safety (18 U.S.C. § 32). Silverman wrote that this conviction "is designed for both the Osama bin Ladens of the world - people trying to bring down a plane, intending to cause harm - and those who are aware that their actions are dangerous and could harm others, but just don't care…. The failure to recognize this distinction is to fail to appreciate that Congress saw fit to create two different crimes, one more serious than the other, for two different types of offenders.”
The judges referenced an April 30 2015 decision in United States v. Gardenhire. In this case, judges said that even if a person knows that a laser is dangerous when pointed directly at someone’s eyes, they may not know the “bright light” danger miles away to a pilot operating at nighttime.
Silverman noted that to uphold a reckless endangerment charge, prosecutors would have to show that “similarly situated defendants, or even average people, understand how laser beams operate.” Just aiming at a helicopter "is not, in and of itself, sufficient to allow a rational factfinder to conclude that Rodriguez acted with a reckless disregard for the safety of human life.”
From Courthouse News Service and Ars Technica. The full decision of the court is reprinted below, click on the “Read More…” link.
UPDATED November 4 2016: Rodriguez appealed the June 2015 5-year sentence. On October 17 2016, the U.S. Ninth Circuit Court of Appeals upheld the 5-year sentence. In an unpublished, unanimous opinion, a three-judge panel found the sentence was reasonable, even though advisory guidelines call for a sentence of only 21 to 27 months (1.75 to 2.25 years).
This was due to a number of factors: 1) “Rodriguez increased the dangerousness of the offense by striking the helicopter six or seven times,”, 2) minor children were involved, 3) he had a criminal history including gang involvement and 4) he was on probation when the laser illuminations occurred. From Ars Technica, Pasadena News Now and Courthouse News Service
Click to read more...
US: Appeals court says 30-month sentence for aiming laser at aircraft is too long; defendent did not know of laser risk
Gardenhire’s photo on Facebook, according to the blog LA Weekly.com
The judges sent the case back to the U.S. district court in Los Angeles for a new sentencing hearing under a new judge. Under the original sentencing guidelines, Gardenhire had been recommended for 27 to 33 months in prison taking into account the reckless endangerment charge, or 4 to 10 months in prison without the charge.
The appeals court noted that, prior to the March 2013 laser incident, a friend of Gardenhire said that shining a laser beam into another person’s eye could lead to blindness. The appeals court then went on to say that information was different from “knowing that a laser beam can be distracting to pilots who are both enclosed in a cockpit and at least 2,640 feet away. Nor did the government submit any evidence of what even an average person would know about the effects of aiming a laser beam at an aircraft…. That one knows that the laser is dangerous when pointed directly in a person’s eyes does not mean that one knows about the beam’s ability to expand and refract, rendering it particularly hazardous for pilots in an aircraft miles away, or that the danger is heightened at nighttime because the pilot’s eyes have adjusted to the dark.”
The court specifically referred to the lack of any notice, label or other information regarding the risk of aiming a laser pointer at an aircraft: “Gardenhire heeded the only warning he was given—not to shine the laser directly in anyone’s eyes—and he was not immediately alerted to any additional risks he was creating by aiming the beam at an aircraft.”
The sentencing came a little over one year after the July 11 2012 lasings in which Smith -- 29 at the time -- aimed a red laser pointer at a Southwest Airlines aircraft, and subsequently six or seven times at an Omaha police department helicopter that was trying to find the perpetrator. The conviction and sentence appear to be for the helicopter incident only.
In addition, Omaha.com reported that Smith had previously been fined $9,000 by the U.S. Federal Aviation Administration.
For the July 11 2012 incident, he could have received a five-year sentence and a fine of up to $250,000.
More information is in our stories on the original search for Smith and on his April 24 2013 conviction.
From KETV, WOWT News and Omaha.com. Thanks to Jack Dunn, Greg Makhov and John Neff for bringing this to our attention.
UPDATED June 27 2014 - A federal appeals court upheld the two-year sentence. The 8th U.S. Circuit Court of Appeals rejected Michael Smith’s assertion that he didn’t believe the laser would reach the aircraft. The court said the February 14 2012 federal law doesn’t require prosecutors to show that he intended to hit the aircraft. From The Republic.
The pilot was flashblinded so that he had to fly on instruments only. He called ground officers, and Nguyen was arrested within 30 minutes.
On November 24 2011 Nguyen pleaded guilty to interfering with an aircraft crew member, and to possessing and importing a prohibited weapon into Victoria. Prosecutors asked for a jail term of up to the maximum two years. Nguyen’s lawyer said his client was sorry: “You won’t get more genuine remorse … this was a spontaneous act of stupidity…”. The judge said Nguyen had good character and had not understood the consequences of his actions. He fined Nguyen AUD $2000 and he was ordered to donate another $1500 to charity.
Nguyen’s laser was said to be “60 times more powerful than the allowable limit.” (In Victoria, pointers over 1 mW are banned, so the laser must have been 60 mW.)
From the Herald Sun. The original story of Nguyen’s arrest in September was covered here by LaserPointerSafety.com.
UPDATED February 28 2012: Nguyen lost a February 27 appeal on the charge of interfering with the crew or the aircraft. At the hearing, his lawyer said Nguyen’s drunken actions were “spontaneous and stupid” and he had never intended to deliberately shine the laser into the cockpit. Two character witnesses testified on Nguyen’s behalf. However, the appeals judge was amazed that a “smart, talented and highly regarded person could commit acts with such potential for disaster.” The judge noted there were “unthinkable consequences” from the September 3 2011 lasing, and he was therefore obligated to convict Nguyen due to the seriousness of the incident. From The Age.
52-year-old Gerard Sasso aimed a Class 3B green laser, said to be “at least five to ten times more powerful than an ordinary laser pointer” [approximately 25 to 50 milliwatts], at a helicopter that was escorting a liquified natural gas tanker through Boston Harbor. The pilots took evasive action, but the cockpit was hit and filled with “an intense sparkling green light”. The pilots and Coast Guard were able to trace the source to Sasso’s apartment in Medford. He “falsely and repeatedly” told police he was not the perpetrator. However, officers saw a laser pointer and he then admitted lasing the aircraft. Eleven lasers were seized from his apartment.
News reports quoted prosecutors as saying that Sasso was the second person in the U.S. to be convicted of lasing an aircraft. They also pointed to the November 2009 sentence of a California man who received 2.5 years for shining a laser at two airplanes and temporarily blinding a pilot. [This may refer to federal prison sentences, since others in the U.S. have received jail time for laser/aircraft incidents. The Nov. 2009 reference is to Dana Christian Welch.]
From Island Crisis and the Boston Herald. Thanks to David Freihofer and Paul Berthot for bringing this to our attention.
UPDATE August 1 2012: Sasso’s case was appealed on grounds that the jury was given incorrect instructions at the January 2010 trial. The jury was told that it was sufficient for them to find that Sasso “willfully” aimed his laser at the helicopter. However Sasso’s public defender argued August 1 2012 in appeals court that Sasso had to willfully know that his actions would interfere with the aircraft operator. Thus, the jury should have been told to determine if Sasso knew the laser could interfere. An updated story is here at LaserPointerSafety.com.