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UNITED STATES v. BUITRAGO GUTIERREZ

November 6, 1985

UNITED STATES OF AMERICA, Plaintiff,
v.
ROSITA BUITRAGO GUTIERREZ, Defendant



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

PLATT, D. J.

 FACTS AND BACKGROUND

 This enforcement action was brought by the government upon defendant's failure to pay a penalty assessed against her for violating a Federal Aviation Administration ("FAA") safety regulation.

 The case arises out of events that transpired six years ago. On October 29, 1979 the defendant, Rosita Gutierrez, was en route to visit family and friends in her native Colombia. When she attempted to proceed through the passenger screening checkpoint at John F. Kennedy International Airport, a .380 caliber Kurz automatic pistol and five live rounds of ammunition were discovered concealed in a portable phonograph in the defendant's possession.

 Mrs. Gutierrez testified that the phonograph was delivered to her earlier that day by an acquaintance, Dario Diaz, who had asked if she would bring it to his son in Colombia. (Pl.'s Dep. at 13.) Earlier that year, Mr. Diaz had delivered a housecoat to Mrs. Gutierrez's mother in Colombia, and so the defendant consented to return the favor.

 When the defendant received the phonograph on the afternoon of her departure day, it was wrapped and screwed shut. She gave it to her son to carry and proceeded directly to the airport. When the weapon was discovered, defendant was arrested for Criminal Possession of a Weapon, a violation of the New York State Penal Law. The matter was subsequently presented to a Grand Jury in the Supreme Court of Queens County, who found "no true bill" against the defendant. Thereafter, in November 1979 the FAA notified Mrs. Gutierrez of its decision to investigate whether she had violated 14 C.F.R. § 107.21(a). Pursuant to its investigation the FAA determined that defendant had violated the regulation and was liable for a penalty of $1,000.00. When the defendant failed to pay the fine, the government commenced this enforcement proceeding in April 1982.

 Jurisdiction is conferred upon the Court by section 1007(b) of the Federal Aviation Act, codified at 49 U.S.C. § 1487(b), and 28 U.S.C. § 1345. The case is presently before the Court on cross summary judgment motions.

 DISCUSSION

 Pursuant to the statutory authority of the Federal Aviation Act of 1958, the FAA is authorized to issue rules, regulations, and minimum standards designed to enhance the safety of civil aeronautics. 49 U.S.C. § 1345 (1982). Section 1471(a) of Title 49 establishes a mechanism to enforce these regulations, providing in relevant part that "[a]ny person who violates (A) any provision of . . . this title or any rule, regulation or order issued thereunder . . . shall be subject to a civil penalty of not to exceed $1,000."

 At issue in this case is an alleged violation of FAA regulation 14 C.F.R. § 107.21(a). That regulation reads:

 
(a) Except as provided in paragraph (b) of this section, no person may have a firearm . . . on or about the individual's person or accessible property -
 
(1) when performance has begun of the inspection of the individual's person or accessible property before entering a sterile area; . . .

 The defendant opposes the assessment of the penalty claiming that she did not violate the provisions of the regulation for two reasons. First and foremost, in an affidavit in support of her motion for summary judgment, defendant states, "I never knew that the package contained any gun. . . . Certainly the intent of this statute is not to punish, either criminally or civilly, a person with no knowledge of violating it." (Def.'s Aff. at [P]5.) Second, defendant argues ...


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