02/14/2012 15:14 4252271007 ANM7 

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FEDERAL AVIATION ADMINISTRATlON 

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ANM-7 

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RENTON, WASHINGTON 98057· 

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DATE: 

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RE: 

February 14, 2012 

Docket Clerk AGC-430 

202-493-5142 

FAA-2011~1286 

FAA Case No. 

2010NM720001 

J. Moesser 

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Re: Motion for Reconsideration and 2"' Motion for Decision 

including cover 

Jeffrey Harper 

425-227-1007 

425-227-2161 
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JEFFREYM. HARPER 

FAA OFFICE OF REGIONAL COUNSEl.. 

1601 LJNJ.J AVENUE SOUTHWEST 

RENTON,\VASHINGTON 98057 

TEIJ'WHONE: (425) 227-2161 

FACSIMILE: (425) 227"1007 

·UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

Joseph Moesser 

To: Judge Goodwin: 

FAACaseNo. 2010NM720001 

DMS No. FAA-2011-1286 

MOTION FOR RECONSIDERATION 

AND 

SECOND MOTION FOR .DECISION 

Judge Richard C. Goodwin 

MOTION FOR RECONSIDERATION AND 

SECOND MOTION FOR DECISION 

In accordance w:ith 14 Code of Federal Regulations (C.F.R.) Sections 13 .218(a) and (f)(5) 

(Rule l3.2.18(a) and (f)(5)), the Administrator (Complainant) brings this Motion for 

Reconsideration and Second MGtion for Decision. Respondent admits the factual matters alleged 

in the Complaint, both in his Answer and in his Response to the Order to Show Cause. There 

being no issue of material fact in dispute, the Complainant is entitled to a decision as a matter of 

law. 

Facts 

In April, 2011, Respondent pled guilty to violating 18 United States Code (U.S.C.) 

Section 1036(a)(4). Exhibit 1. An element ofthat offense, as charged, was that he "purposefully 

conceal[ ed] in checked baggage ... dangerous items he knew to be prohibited and which he 

expected to accompany him on the aircraft." Exhibit 2. 

Comptainanfs Motion fur Reco\lsidemtion at'ld Second Motion for Decision .Tr.:F:FRr;:Y M, HMP~ FAA ATTORNEY 

Joseph Moe"er ~ FAA-2011·1286 TEL; (425) 227-2161; !'AX; (4·25) 227-1007 

201 ONM72000 I 

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The Complaint in this case was filed on December 2, 2011 and was received by Respondent on 

December 5, 2011. Exhibit 3. The Complaint put Respondent on notice that he must file an 

Answer within thirty (30) days of service, absent good cause. 

On January 6, 2012, the Answer was due. 

On January 9, 2012, this Court entered a Procedural Order which reiterated the requirement to 

file an Answer within thirty (30) days of service of the complaint, and further stated that a party 

r<::questing ''an extension of time must file a written motion not less tl1an seven (7) days before 

tile .document is due, absent good cause shown." 

Complainant filed aMotion for Decision (Motion) on January 10,2012 on the grounds 

Respondent failed to file an Answer within the thirty (30) days provided by 14 C.P.R.§ 13.209(a) 

plus the five (5) additional days allowed by 14 C.F.R § 13.21l(e) for service by mail. The 

Motion was served on Respondent's counsel by facsimile and mail. 

On .T anuary 12, 2012, Respondent filed an. Answer. The Answer did not seek an extension of 

time to file. The Answer did not provide any cause for the late filing. 

On January 31,2012, this Court entered an Order to Show Cause (Order). 

On February 6, 2012, Respondent responded to the Order. Respondent's justification for the late 

filing was "a calendaring error" and the fact that Respondent's counsel have not handled a 

proceeding in this forum before. Response 'to Order, Paragraphs 2, 6, au.d 9. Respondent did not 

say who made the error. Respondent did not provide any explanation for why the error was 

made. Respondent further asserts he first became aware of his error upon receipt of 

Cowplainant's Motion for Decision. Response to Order, :Paragraph 2. 

The Response stated "Respondent's Answer does not dispute the basic facts alleged. Instead, he 

raises legal issues and consti.tutional challengers to the Petition." Response to Order, Paragraph 

8. 

Argument 

Standard for Decision 

"The administrative law judge shall grant a party's motion for decision if the pleadings, 

depositions, answers to interrogatories, admissions, matters that the administrative law judge has 

officially noticed ... show that there is no genuine issue of material fuct and that the party making 

the motion is entitled to a decision as a matter of law. Tile party making the motion ... has the 

Complainant's Motion for Rccon.sidcration and. Second Motion for Decision JEFFREY M, HARPER~ F A.A. ATTORNEY 

Joseph Mocsscr-FAA-201)-1286 TEL; (425) 227-2161; FAX: (425) ;2Z7·1007 

20 1 ONM72000 1 

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burden of showing that there is no genuine issue ofm.atedal fact disputed by the parties." 

14 C.F.R. § 13.218(£)(5). 

Merits 

a. Respondent failed to show good catise. 

An untimely filing rnay be excused only for good cause; law judges do not have authority to 

extend the deadline for filing an Answer absent a showing of good cause. Larry:~ Flying Service 

(citing In the Matter of Robinson, FAA Order No. 97-18 at 5 (May23, 1997) and In the Matter of 

Atlantic World Airways, FAA Order No. 95-28 at 3 (December 19, 1995)); In the Matter of Carl 

P. Langton, FAA Order No. 93-12 at 6 (March 25, 1993). In determining whether good cause 

exists, the reason for the document being filed late is examined. In the MaUer of Michael John 

Costello, FAA Order No. 92-l at 5 (Janumy 9, 1992); Langton at 7. Section 13.209 is not 

intended as a trap fo.r the unwary; the law does not favor defaults. Larry:~ Flying Service at 7. 

Procedural rules should be enforced in a non-arbitrary manner, even where the consequence may 

be severe. Larry :Y Flying Service at 4. Complainant is not requb:ed to show prejudice. Jd. Both 

parties risk default if they do not file timely pleadings; the Complainant is as susceptible to 

default if the Complaint is untimely as th.e Respondent is when the Answer is untimely. Jd; 

(cit\ng 14 C.F.R. § 13.208(b)(l) and§ 13.209(£)). 

Counsel, in particular, are expected to know the rules of procedure and meet procedural 

deadlines those ruJ.es impose. Sqfety Equipment and Sign Co. at 2 (cited in In the Matter of 

Alpine Aviation, FAA Docket No. CP05NM0026, Order served November 2, 2005 at 3). In 

Safety Equipment, counsel filed a responsive pleading thirty (30) days late. Counsel in that 

case stated the reason for the late filing was the failure of his paralegal to follow established 

procedures to prevent a default. Here, there is no indication that any of Respondent's counsel's 

instructions were not followed - counsel merely asserts that a "calendaring error" was made. 

No indica,tion is made of who made the error. No indication is made of why th.e error was 

made. 

While the Answer was. filed six (6) days late in this case, versus the thirty (30) days in 

Safety Equipment, that is only because the en:or was affirmatively brought to 

Respondent's attention by Complainant's Motion for Decision. Response to Order, 

Paragraph 2. Respondent should not be permitted to prejudice Complainant by allowing 

Respondent to file an untimely Answer- particularly when Respondent was only made 

aware of and attempted to cure the defect as a result of Complainant's Motion for 

Decision on those grounds. Having exercised his right to a hearing, Respondent must 

fulfill his duty to comply with the Rules of Practice to preserve that right In the Matter 

Complainant's Motion fer Reeonslderatlon rmd Second Motion for Deoi.ston JEFFREY M. HARPER, PM ATTORNEY" 

Joseph Mocsscr- FAA:tOll-1286 TEL: (425) 227-2161: FAX: (425) 227·1007 

20 lONM72000 1 

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of Eugene Joseph Haley, FAA Docket No. CP05EA00 15, Order served January 20, 2006 

at 1. The Administrator in Safety Equipment noted that the. showing of good cause iu that 

case was ''margioal." Respondent's failure to provide any basis or justification for the 

"calendaring enor" falls short of even the marginal showing in Safety Equipment. 

Respondent's counsel in this case has approximately thirty (30) years of experience. Exhibit 4. 

He has a duty to represent his client competently and diligently. Umh Rules of Professional 

Conduct, Rules 1.1 and 1.3. Counsel represented Respondent in a related criminal case that was 

thoroughly litigated. Exhibits 5, 6, and 7. Although Rule 13.209 is not meant to be a trap for the 

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14 · tinwary, Respondent is not represented by someone who can reasonably claim to be an "unwary" 

15 litigant who was "trapped" by the clear deadlines imposed by Rule 13.209. 

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This is not a case where the late filing was due to; 

• Mail delays, 1 

• Respondent's incapacity,2 

• A plausible misreading of the rule,3 

• The death of counsel, 

2 7 • Serious illness, 

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2 9 • An earthquake, avalanche, riot, or other disaster. 

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Instead, this is a case where experienced counsel or persons under his supervision made a 

"calendaring mistake." Negligence of counsel does not consti.tute good cause. In the Matter of 

USF Worldwide Inc., FAA Docket No. CP04EA0013, Order served on November 19,2004 at I; 

see also Cornish v. FAA, 429 F3d 806 at 808 (8th Cir. 2005) (upholding dismissal of appeal by 

N.T.S.B. where appeal brief was untimely due to calendaring e:o:orby counsel based on 

misreading of when the filing period commenced); Costello at 5 ("[M]is interpreting the Rules of 

Practice is not good cause."). Respondent was affmnatively put on notl,ce of the deadline twice 

- in the original complaint and in the Procedural Order- and, presumably, by his reading of 

the J:Ule itself. 

Respondent failed to file an Answer until January 12, 2012, after Complainant filed its Motion 

for Decision. Respondent failed to file a motion seeking an extension of time. Respondent 

failed to make llllY showing of good cause at that time. Respondent failed to f!le an Answer 

1 'flcnor v. Choices Hotels Intern., Inc. 275 F.3d 1 164 at 1165 (9th Cir. 2002). 

2 Pyles v. Mertt Systems Protection Board, 45 F.3d 41l at 4)4-16 (Fed. Cir. 1995). 

'Le>Pis v. Schopf Dist. #70, 523 F.3d 730 at 739-40 (7th C.ir. 2008). 

Complainanfs Motion for Reconsideration and Second Motion. for Decision 

Joseph Moesscr- FAA-2011-1286 

201 ONM72000 1 

Page4 of15 

JEFFREY M- HARPER, FAA ATTOltNEY 

TEL: (41..5) 227-216): FAX: (425) 227-1007 
02/14/2012 16:14 4252271007 ANM7 PAGE 05/47 

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within the time allotted, so the Answer should be stricken, all allegations in the complaint should 

be deemed admitted, as provided under 14 C.P.R.§ 13.209(£), and all a:ffinnative defenses 

dismissed. Finding good cause for the untimely filing of the Answer in tills case for the reasons 

stated by Respondent, thereby allowing the case to go forward, would moot rule 14 C.F.K 

§ 13.209(b). 

Complainant respectfully requests this court reconsider whether good cause has been shown, find 

that good cause has not been shown, and strike Respondent's late-filed Answer. 

b. Respondent is collaterally estopped from asserting that the material he offered for 

transportation was not prohibited hazardous material. 

There is no genuine issue of material fact that Respondent offered prohibited hazardous material 

for transportation on a passenger aircraft. Although Respondent denies in his Answer that the 

materials are hazardous (Answer paragraphs 11-14), he pled guilty to a criminal offense which 

had as an element his purposeful concealment of dangerous item.s he kn,ew to be prohibited in his 

2 2 · checked baggage. Exhi.bit 2. Respondent is collaterally estopped from attempting to claim that 

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the material offered was not hazardous or that is was permitted under any exception found in the 

Hazardous Materials R<;:gulations at 49 C.P.R. Part 171, et seq. (HMR). 

Collateral estoppel renders issues that have been necessarily determined by a court iu a previous 

case conclusive in a subsequent case. }.;fontana 11. U.S., 440 U.S. 147, 153 (1979). In cases 

arising und<~r federal Jaw, :federal principles of preclusion are applied. Heiser v. Woodruff, 

327 U.S. 726 (1946). In the Tenth Circuit, where Respondent's related criminal case was tried, 

collateral estoppel has four elements: 

1) The party against whom the doctrine was invoked was a party in the prior action, 

2) The issue previously decided is identical with the one presented in the pending action, 

3) The prior action has been finally adjudicated on the merits, 

4) The party against whom the doctrine is invoked had a full and fair opportunity to litigate 

the issue in the prior action. 

Murdockv. Ute Indian Tribe ofUintah and Ouray Reservation, 975 F.2d 683, 687 (lOth Cir. 

1992).4 Adjudication on the merits requires that th~ adjudication be necessary to the judgment. 

ld 

4 Cf, e.g., In the Matter of Compliance with Federal Obligations by the Naples Airport Authority, FAA Order 

No. 2003"1 at ll (August 25, 2003) (footnote citing CSX Transportation, Inc. v. Brotherhood of Mal~tenance of Way 

Employees, 327 F.3d 1309, 1317 (lith Cir. 2003)) (issues are identical, issue was actually litigated., issue was a 

Complainanfs Motion for Reconsideration and Second Motion for D6eisicn 

Joseph Moess<r- FAA,ZOII.-1 28~ 

201 ONM72000 1 

Page 5 o1J5 

JE11F'R.EY M. HARPER1 FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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Party in Prior Action: Respondent was a party in a prior action arising out ofthe facts and 

circumstances of this case -the case was captioned "United States v. Joseph Peter Moesser.'' In 

accordance with his plea, Respondent was convicted on the charge in that case in the United 

States District Court for the District Court of Utah on April20, 2011. Exhibit 1. 

Identical Issue: The conviction was for obtaining access to the secure area of an airport by fraud 

and false pretenses, a violation of 18 U.S.C. § l036(a)(4). The false pretenses charged were "the 

purposeful concealment in checked baggage of dangerous items he knew to be prohibited ... " 

Exhibit 2. Proof of the false pretenses element required proof that Respondent pU,tposefully 

concealed prohibited dangerous items, as that concealment was the "false pretense" at issue. The 

gravamen of the offenses at issue here is that Respondent offered dangerous (e.g., hazardous) 

materials which were prohibited for carriage in checked baggage (e.g., on passenger airc~aft). 

Final Adjudication on the Merits: Although Arizona v. California suggests that judgments 

entered by ''confession, consent, or default" do not constitute final adjudication on the merits, 

and such settlements ordinarily me not intended to preclude further litigation, that case is . 

distinguishable from this one. 530 U.S. 392, 414 (2000). In Arizona, the judgment in questi.on 

was based on alternative and mut'tmlly exclusive theories. !d. at 417. Here, the judgment was 

based on an express admission that prohibited hazardous material was offered for transportation; 

no alternative theory of guilt is present. Under Rule ll(b )(3) of the Federal Ru1es of Criminal 

Procedure, a court may not enter judgment on a guJI1y plea unless a factual basis for that plea has 

been established. Thus, in a criminal case tried in a Federal District Court, the entry of a 

judgment necessarily requires an adjudication of the merits of the case. The criminal conviction 

here constitutes a binding detern:iination on the merits that Respondent offered prohibited 

dangerous material for transportation in his checked baggage. 

Full Opportunity to Litigate: Respondent had full opportunity to litigate this issue. The 

original indictment in his case was filed on November 4, 2009. Exhibit 8. The Indictment 

charged Respondent with offering hazardous material for transportation in air commerce. 

Exhibit 8, Count 3. Respondent entered his plea to the superseding misdemeanor information 

in April 2011, nearly a year and half later, which, as discussed, necessarily admitted he offered 

necessary part of judgment, party had a full and fair opportunity to litigate the issue); U.S, v. Ruhbayan, 325 F.3d 

197, 202 (4th Cir. 2003) (issues are identical, i.ssue was actually litigated, issue was necessarily decided, judgment is 

final, parties had a full and fair opponunity to litig~te ); Am han v. Professional Air Traffic Controllers Organization, 

672 F.Zd 706,709 (8th Cir. 1 982) (issues must be identical; there is a finaljudgrnent on the rnerits, estopped party 

was party to prior adjudication; estopped parly had a fUll and fair opportunity to litigate); US. v. Arnett, 327 F.3d 

845, 848 (9th Cir. 2003) (issues are identical, issue was litigated, issue was decided); Matter of McWhorter, 887 F.2d 

J 564, 1566 (11th Cir. 1989) (issues arc identical, issue was litigated, issue was necessary part ofjud.gment, parly had 

full and fair opportunity to litigate). 

Complai.nanfs Motion for Roconsldcration and Second Motion :for Decision 

.Josepb Moesser- Fi\A-2011,1286 

20 l ONM72000 I 

Page 6 of 15 

JEFFREY M, li<RPER, FAA ATTORNEY 

TEL: (425)227-2161; FAX: (425) 227-1007 
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prohibited dangerous material. In the intervening time, the question of whether the material 

offered was prohibited was thoroughly contested, with Respondent making substantially the 

same arguments he makes here. Exhibit 6. Respondent had the opportunity to litigate the 

issue, and did so. 

Respondent's Answer denies that the materials in question were hazardous material. For the 

reasons discussed, Respondent is collaterally estopped :from making this argument. As a matter 

oflaw of the case, the materials at issue were hazardous and prohibited from transport on 

passenger aircraft. Respondent otherwise admits in his Answer all allegations necessary to prove 

the offenses- he offered the material, in a bag containing no identification markings or labels, 

without a Shipper's Certification or Declaration of Dangerous Goods, without appropriate 

shipping papers, wi.thout providing emergency response information, for transportation on Delta 

Airlines Flight 1512. Answer II.? and Il.15; Response to Order, Paragraph 8, 

c. Even assuming that the Answer was filed timely, and Respondent is not estopped from 

asserting his defenses, the material Respondent offe.-ed for transportation on a 

passenge.- ai.-c.-aft was bazardous material under the Hazardous Material Regulations 

(HMR) (49 C.F.R. Part 171, et seq.). 

The Answer claims the material offered by Respondent qualified for the small anns ammunition 

exemption found at 49 C.F.R. § 175.1 O(a)(8) and that the definition of small anns ammunition 

should be construed in pari materia with the defi.nition found in 27 C.F.R. § 555.11. 

Respondent's argument fails for three reasons. First, Respondent amnitted the material was 

prohibited when pleading guilty in a related criminal case, as an element of the offense was his 

concealment of prohibited material. Second, the defmitions ofthe materials in question are 

sufficiently clear to establish as a matter of law that the materials were hazardous material, and 

not exempted from the HMRby 49 C.F.R. § 175.10(a)(8). Third, even assuming the HMR 

definition is not clear, readJ,ng the HMR in pari materia with the regulations found at 27 C.F.R. 

results in a dcfrnition of small arm.s ammunition that would also exclude the material Respondent 

offered from qualifYing for the HMR § 175.1 O(a)(8) exception. 

Respondent :S previous plea establishes that he knew the materials were prohibited. 

As previously discilssed, Respondent entered a guilty plea to obtaining access to the 

secure area of an airport by fraud and false pretenses, a violation of 18 U.S.C. 

§ 1 036(a)( 4). The false pretenses charged and pled to were "the purposeful concealment 

in checked baggage Of dangerous items he knew to be prohibited ... " 

Even if a judgment based on a pka does not have preclusive effects under the collateral 

estoppel doctrine, that judgment may nonetheless be used as evidence that the facts 

contained therein are true. Restatement (Second) of Judgments, § 85, Comment b. 

Complainant's Motion for Reconsideration and Second Motion for Decision 

Joseph Moesser- F AA-20 11-I 286 

2010NM720001 

Page 7 of 15 

JEFFREY M, HARPER, I' AA Ano•NEv 

TEL: (425) 227,2161; FAX: (4Z5) 227·1 007 
02/14/2012 15:14 4252271007 ANM7 PAGE 09/47 

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Having previously acknowledged, by pleading guilty, that the materials at issue in this 

case were dangerous items were dangerous items -prohibited items, in the case of the 

Hodgdon Triple Seven Pellets -Respondent asks this Court to accept an argument that 

they were somehow permitted, rather than prohibited. Respondent cannot have it both 

ways. 

s The material offired by respondent does not qualify for the small arms exception found at 

~ . 49 C.RR. § 175.JO(a)(8). 

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Respondent claims that smokeless powder for small arms and primers are "ammunition for small 

arms." Answer II.2. Th.us, Respondent argues that the material be offered for trausportation 

qualified for the exception from the HMR found at 49 C.F.R. § 175.) O(a)(8): 

"lb.is subchapter [Subchapter C - Hru-.ardous Material Transportation] does not 

apply to the following hazardous materials when carried by aircraft passengers ... 

(8) Small arms ammunition. for personal use carried by a ... passenger in checked 

baggage only .. .'' 

Answer, ll.l. Respondent ignores the HMR definitibn of "Cartridges, smaH arms" in making his 

argument. 

The Hazardous Material Table, found at 49 C.F.R. § 172.101, contains an entry for "Ammunition, 

Small Ann.s." It reads: 

"[Ammunition, SA (small arms), see] 

Cartridges for weapons, [etc]" 

Under "Cartridges for weapons" the table lists fifteen (15) entries, all. of which are forbidden for 

transportation on passenger aircraft, with the exception of "Cartridges for weapons, blank [or] 

Cartridges, small arms, blank" and "Cartridges for weapons, i.uert projectile [or] Cartridges, 

small arms." All are classified as Class 1, which are explosives. 49 C.F.R § 1.72.101 and 

49 C.P.R. § 173.2. The two (2) entric::s which are not outright forbidden are cartridges with 

haz.ard class l.4S. 

Definitions of terms used for explosives are found in 49 C.F.R. § 173.59. It defines "Cartridges, 

small arms" as: 

"Ammunition consisting of a cartridge case fitted with a center or rim fire primer 

and containing both a propelling charge and solid projectile(s)." 

Applying the admitted facts of this case to this regulatory definition, the material offered by 

Respondent does not meet this definition. First, none of the casings at issue were "fitted" with 

unexpended primers. Answer U.l 0. Second, the two (2) shell casings containing twenty-five 

Complainant's ·Motion for Reconsideration and Second Motion for Decision 

Joseph Moesser- FM-20!1·1286 

20) ONM72000 I 

Page 8 of 15 

JEFFREYM. HARm<, FAA. ATTORNoY 

TEL: (425) 227-2!6!; FAX: (425)227-!007 
02/14/2012 15:14 4252271007 ANM7 PAGE 10/47 

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(25) primers did not contain a propelling charge. Answer il.l O.b. The material at question here 

more closely fits the definition of "Cartridges for weapons," definc::d as: 

"(1) Fixed (assembled) or semi-fixed (partially assembled) ammunition designed 

to be fired from weapons. Each cartridge includes all the components necessary to 

function the weapon once ... Separate loading ammun.itlon is included under this 

name and description when the propelling charge and projectile are packed 

together." 

14 C.F.R. § 173.59. This definition specifi.cally includes partially assembled anummition, such 

as that offered by Respondent. Materials meeting that definition, however, are forbidden from 

carriage on passenger aircraft. 14 C.F.R. § 172.101. 

Respondents in pari materia argument relies on an inapposite definition from the ATF 

regulations. 

Respondent asks this Court to consttue the tenn "small arms ammunition for personal use" in 

pari materia with Title 27, Code of Federal Regulations (ATF regulations). Answer, Affirmative 

Defense II.3. Respondent points the Court to the definition found at 27 C.F.R. § 555.11.5 

·Complainant contests that this defmition may be properly considered inpari materia with 

49 C.F.R. § 175.10(a)(8). Th.e in pari materia doctrine does not apply in this case.6 The 

regulations at issue were promulgated for djffere6t purposes- ATF regulations relate to 

possession of explosives in airports; 7 the HMR relate to the transportation of hazardous 

materials. 8 The regulations create the legal standard; they do not serve merely to. interpret and 

apply it. Even the text of the ATF regulations recognizes that they are of limited applicabilitySection 555.2 oftheATF regulations reads "TIJ.e provisions in this part are in addition to, and are 

not in lieu of, any other provision of law, or regulations, respecti.ng commerce in explosive 

' "Ammunition. Small arms ammu,uition or cartridge cases, primers, bul.lcts, or smokeless propellants designed for 

use in small a.rms ... " 

'Respondent's in pari materia argument was adjudicated in Respondent's related criminal case. Th.e judge found 

that the doctrine did n.ot apply. US v. Moesser, Case 2:09-cr-00842 (D. Utili), Memornndum Decision and Ot:der 

Denying in Part and Deferring Ruling on the Remaining Issues Raised in Defendant's Motion to Dismiss the 

Superseding Indictment, Docket Docum.ent No. 68, Page 19 ("'".the Court finds that the doctrine of in pari materia 

does not apply in the instant ca.,e.")- The doctrine of collateral estoppel precludes Respondent from re-litigating the 

issue here. See discussion at b. above. 7 E.g. I 8 U.S.C. § 842(j): "It shall be unlawful for any person to store any explosive material in a manner not in 

cO!!fon:oity with regulations promulgated by the Attorney General." . 8 49 U.S.C- § 5J03(a)-{b): "TI1e Secretary (of Transportation] shall designate materiaL., as hazardous when rl1e 

Secretary deterwines that transporting the material in commerce ... may pose an unreasonable risk to tlJe health and 

safety of property ... The Secretary shall prescribe regulations for the safe transportation, including security, of 

hazardous ma.terial iu intrastate, interstate, and foreign commerce.•! 

Complainant's .Motion for Reconsideration and Second Motion :for Decj!>ion 

Joseph Mo~""'- F AA-2011-1286 

20TONM72Q00l 

!'age 9 ofl5 

JEFFREY M. H.I..RPERj FAA ATTORNEY 

TEL: (425) 227,2161; FAX: (425) 227-1007 
02/14/2012 15:14 4252271007 ANH7 PAGE 11/47 

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materials ... " Thus, the HMR are in addition to the ATF regulations; the HMR can add additional 

restrictions above and beyond those imposed by the ATF regulations. 

Even if the in pari materia doctrine does apply, Respondent reUes on the wrong ddinition from 

Title 27. The definition advanced by Respondent is found in Part 555 of Title 27, Code of 

Federal Regulations, which is captioned "Commerce in Explosives" [Emphasis added]. 

Respondent, however, asks this court to find that the material he offered was not an explosive 

under the HMR, but instead qualified as ammunition. Respondent argues he was thus entitled to 

the benefit of the HMR exception found at 49 C.F.R. § 175.10(a)(8), which applies to small arms 

ammunition. Thus, if this Court were to read the BMR in pari materia with the ATF regulations, 

a far more appropriate defmition to look to for guidance would be the one found in Part 4 78 of 

Title 27, captioned "Commerce in Firearm.s and Ammunition" [Emphasis added]- after all, 

Respondent claims he is entitled to the benefit of the HMR exception applying to ammunition. 

That Part proscribes regulations relating to commerce in amm1.1nition. 27 C.P.R.§ 478.l(a). The 

Part 4 78 definition, found at 27 C.P.R. § 4 78.11, reads: 

Ammunition. Ammunition or cartridge cases, primers, bullets, or propellant 

powder designed for use in any firearm other than an antique fireartn~ The term 

shall not include (a) any shotgun shot or pellet not designed for use as a single, 

complete projectile load for one shotgun hull or casing, nor (b) any unloaded, nonmetallic shotgun hull or casing not having a primer. 

Respondent acknowledged that the material here was found in a shotgun casing, which 

did not ha:ve a primer. Answer II.! 0 (admitting the "40 remaining shells had expended 

primers ... "). The material offered by Respondent is excluded from the 27 C.F.R. 

§ 4 78.11 definition of ammunition as it does not have a functioning primer and thus is not 

a complete projectile load. Even if 49 C.P.R. § 175.10(a)(8) is construed in pari materia 

with Title 27, Code ofFederal Regulations, the definition of ammunition most applicable 

in thi,s case denies Respondent the benefit of the HMR exception. 

The proper classification for the material o.ffered by respondent is as alleged in the Complaint. 

Respondent admits he offered CCI 209M Shotshell primers for transportation on Delta Airlines 

FUght 151.2. Answer II.7 and II.IO.b. These primers are Classified as hazardous material under 

the I-IMR; the proper shipping name is "Primers, cap type, Class 1.4S, UN0044, PG II." 

Exhibits 9 and 10, 

Respondent admits he offered Hodgdon Triple Seven Pellets for transportation on Delta Airlines 

Flight 1512. An.swer II.7 and ILl O.a. Respondent's fmal destination was Johannesburg, South 

Africa. Answer TI.2. These primers are classified as hazardous material under the HMR; the 

proper shipping name is "Propellant, solid, Class 1.3C, UN0499, PG II." Exhibits 11 and 12. 

Complait-u:J.nt's Mot1on fur Reconsideration and S~cond Motlon for Dc~;;ision JEFFREY M, fu.Rf'BR, FAA ATTORNEY 

Joseph Moesser-FAA-2011-1286 TEL: (425) 227,2161; FAX: (425)227-1007 

20lONM720001 

P•ge 10ofl5 
02/14/2012 15:14 4252271007 ANM7 PAGE 12/47 

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Although Exhibits 11 and 12 indicate that Triple Seven Pellets may, under some circumstances, 

be classified as "Smokeless powder for small arms [1 00 pouods or less], Class 4.1, NA3178, PG 

JJ," that classification is not available in. this case. First, the packaging method used by 

Respondent is not approved- respondent packed the material in shotgun shells, which are not 

ammunition boxes (Packaging Method A as described in Exhibit 11 ), and while they are plastic 

tubes, they do not have plastic end caps secmely affixed (Packaging Method 8 as described in 

Exhibit ll). Answer II. I O.a. Second, this classification may only be used for domestic 

shipments; Respondent was traveling internationally. 14 C.F.R. § 172.101(b)(3), Answer II.2. 

Under either classification the material is forbidden onpassenger aircraft. 14 C.F.R. § 172.101. 

d. Conclusion- There are no genuine issues of material fact; Complainant is therefore 

entitled to a Decision as a matter of law. 

Complainant is entitled to a Motion for Decision as there are no genuine issues of material facts 

for the following reasons: 

• Respondent failed to show good cause for filing the Answer late, and has therefore 

admitted all allegations and waived all affirmative defenses. 

• Respondent is estopped from claiming that the powder and primers he offered for 

transport were not regulated or prohibited hazardous rnateri.al. 

• The powder and primers are not small arms ammunition, and therefore Respondent is not 

entitled to the small arms ammunition exception of 14 C.F.R. § 175.10(a)(8). · 

• The material is properly classified as ha7..ardous material as alleged in the Complaint. 

Respondent admits to all relevant factual allegations in his Answer and Response to Order to 

Show Cause. 

Sanction 

As discussed above, Respondent has admitted every allegation in the Complaint. The affirmative 

defenses raised by Respondent do not present any genuine issues of material fact. 

The sanction sought by Complainant is appropriate given the intentional. and deliberate efforts of 

Respondent to conceal prohibited and regulated hazardous material in his luggage offered for 

transportation- particularly where he had been speci.fically informed by federal agents of the 

prohibited and. regulated nature of the material. Respondent has admitted to that conduct. 

Complainant'Sl Motion for Reconsideration and SccoTid Motion for Decision l:r;.FFR.T;;"( M- HAR~, FAA ATTORNEY 

.Joseph Moesser- FJIA-2011-1286 TEL: (425) 227-2161; FAX: (425) 227"1007 

2010NM720001 

Page ll ofl5 
02/14/2012 15:14 4252271007 ANM7 PAGE 13/47 

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A person who knowingly violates the statute or regulations pertaining to the transportation of 

hazardous material is "liable to the United States Government for a civil penalty of at least $250 

but not more than $50,000 for each violation.'' 49 U.S.C. § 5123(a). In detennining the amount 

of a civil penalty, the following factors must be considered: 

a • the nature, circumstances, extent, and gravity of the violation; 

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• with respect to the violator, the degree of culpability, any history of prior violations, the 

ability to pay, and any effect on the ability to continue to do business; and 

• other matters that justice requires. 49 U.S.C. § 5123(c). 

In guiding the Federal Aviation Administration's (FAA) prosecutorial discretion, the Agency has 

developed penalty guidelines, which are found in FAA Order 2150.3B, Appendix C. Up to 

$50,000 may be assessed in cases involving intentional or deliberate violations. FAA Order 

2150.3B, Appendix C, Figure C-I(V). 

Respondent was stopped at the Salt Lake City airport, Utah, by agents from the FAA, 

Transportation Security Administration, and Federal Bureau of Investigation. Complaint 

Paragraph II.3, Answer Paragraph II.3. He was asked if his luggage contained an,y runmnuition. 

Complaiut Paragraph JI-3, Answer Paragraph Il3. In response, Respondent produced a box. from 

his luggage which contained material prohibited and regulated under the HMR found at 

49 C.P.R. Part 171. Complaint Paragraphs U.4, 5, and 11; Answer Paragraphs li.4 and 5. The 

box also contained what appeared to be two boxes of shotgun shells. Complaint Paragraphs 4.c 

and 10, Answer Paragraphs 4 and 10. Actual shotgun shells are pennitted as ORM-D materiaL 

49 C.P.R. § 173 .63(b )(i). He was infonned the Hodgdon Triple Seven Pellets were forbidden and 

the CCI 209M Shotshell primers were regulated. Complaint Paragraph 5, Answer Paragraph ll.5. 

He sturen.dered the prohibited aud regulated material he had revealed to the Agents. Complaint 

Paragraph II.5, Answer Paragraph JI.5. He was then asked if he had any other prohibited 

material; he stated he did not, although his bag in fact did still contain prohibited material 

Complaint Paragraphs 6 and 10-14, Answer Paragraph Il.6 and ll.lO. 

He then offered the bag, containing th,e boxes of shotgun shells, to Delta Airlines for 

transportation. Complaint Paragraph 117, Answer Paragraph Il.7. The bag bore no identification 

markings or labels indicating its contents, and it was not accompanied by a Shipper's 

Certification or Declaration ofDange~ous Goods. !d. The top row of shells in each box 

appeared to be new, Ull.expended shells with intact primers. Complaint Paragraph II.! 0, Answer 

Paragraph II.! 0. All shells Ullder this top row, however, were expended roUllds which contained 

prohibited and regulated hazardous material; Respondent did not tell the federal agents about this 

Comp)ai;nant's Motion for Reconsid~ration and Second Motion. fm De:cjsjolJ 

.Tosep~ Moesser-FAA-2011·1286 

20 IONM72000 I 

Page 12 of15 

.lE!'FREY M. HAR1'ER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
02/14/2012 15:14 4252271007 ANM7 PAGE 14/47 

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prohibited and regulated material, even after being asked. Complaint Paragraphs II.6 and Il.J0-

14, Answer Paragraphs II.6 and Ill 0. 

This case involves grave violations- the offering of explosives for transportation. Th.e 

circumstances under which the material was offered are aggravating: 

1. The Respondent was put on specific notice of the prohibitc:d and regulated nature of the 

offered ·materials by Federal Agents shortly before the luggage containing the material 

was offereq for transportation. 

2. The manner in which the materials were packed demonstrates an intentional and 

deliberate effort to conceal the materials from the authorities. 

These factors also show that Respondent has a high degree of culpability, which is further 

exacerbated by the fact that he lied to Federal Agents regarding the contents of his luggage. 

Under those circumstances, a civil penalty near the maximum permissible sanction is 

appropriate. 

Exhibits 

1. Judgment in a Criminal Case, Case 2:09-cr-00842, TS. 

2. Superseding Misdemeanor Information, Case 2:09-cr-00842-TS. 

3. Certified Mail Receipt and Return Receipt. 

34 4. Utah Bar Membership entry for Respondent's CounseL 

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40 

41 

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43 

44 

5. Attorneys of Record, United States District Conrt for the District of Utah Case 

No. 2:09-cr-00842-TS. 

6. Excerpts from Memoran.da in Support of Motions to Dismiss, Case 2:09-cr-00842-TS. 

7. Docum.ents List, United States District Court for the District of Utah Case 

No. 2:09-cr-00842-TS. 

45 8. Jndictr:neut, Case 2:09-cr-00842-TS. 

46 

47 9. Classification of Explosives (#209M Shotshel! Primers). 

48 

4 9 10. MSDS for Shots hell Primer- 209M, Excerpt.9 

50 

51 

52 

53 'Available online at http://gJarp.atk;,comJ2008/msds/Prl.mer_209.pdf, last visited January 26, 2012. 

Complainant's Motion for Reconsideration and Second Motion for Deciodon Jr.:r~~;.y M, HARPER; FAA ATTORNEY 

Joseph Moesser- FAA-2011-1286 TBL.: (42S) 227-2161; FAX: (425) 227-1007 

20 I ONM72000 J 

Page 13 of 15 
02/14/2012 16:14 4252271007 ANM7 PAGE 15/47 

1 I L Classification of Explosives (Triple Seven). 

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3 12. Hodgdon "Which UN Numbers Do l Use for Hodgdon Powders?" 

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Conclusion 

For the reasons stated above, the FAA respectfully requests that this court reconsider its Order 

Vacating Order to Show Cause and Accepting Answer, strike the Answer, and grant this Motion 

for Decision. Respondent has admitted all the allegations in the complaint and raised no 

affirmative defense that presents a genuine issue of material fact. The powder and primers 

offered by Respondent did not qualify for the small arms ammunitiou exception. They are 

properly classified as hazardous material as a matter of law. There are no genuine issues of 

material fact; the sanction sought is appropriate under the facts. 

DATED this 14th day of February, 2012. 

~~ FAA Attorney 

Complainanfls Motion for Reconsideration and Second .Motion for Decision 

.Josepll Moesser-FAA·2011·12SG 

20 l ONM72000 l 

Page 14 of ]5 

JEFFREY M. HARJ>OR, FAA A TTOONlCY 

TEL: (425) 227·2161; FAX: (425) 227-1007 
02/14/2012 15:14 

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4252271007 ANH7 PAGE 15/47 

CERTIFICATE OF SERVICE 

6 I hereby certi:f'y that the foregoing Complainant's Motion for Reconsideration and Second Motion 

7 for Decision has been served via facsinlile and Certified Mail- Return Receipt Requested this 

s date, to the following: 

9 

1.0 Honorable Richard C. Goodwin 

11 Office of Hearings, M-20 

12 1200 New Jersey Avenue, S.E. 

J.3 Washington, D.C. 20590 

14 FAX: (202) 366-7536 

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Attn: He~ring Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Federal Aviation Administr~tion 

800 Independence Avenue SW 

Washington, DC 20591 

FAX: (202) 493-5020 

Gregory G. Skordas 

Skordas, Caston & Hyde, LLC 

341 South Mai.n Street, Suite 303 

Salt Like City, UT 84111 

FAX: (801) 531-8885 

Dated this 14th day of February, 2012. 

/if CLv. 

Moifair Chin 

Office ofRegio~l Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, VVA 98057 

(425) 227-2160 

Cornplalnant1s Motion·for Reconsideration and Second Motion for Decision 

Joseph Moesser- FAA.-20] 1-1286 

JEFFREY M. l-!AR.eB~, P AI\. A.TTORNr.v 

TEL; (425) 227-2161; FAX: (425) 227-1007 

2010NM720001 

Page 15 of15 
02/14/2012 15:14 4252271007 ANM7 PAGE 17/47 

Case 2:09-cr-00842-TS Document 85 Filed 04/20/11 Page 1 of 1 

FILED 

U.S. DISTRICT COURT 

Wniteb ~tate~ 11Bt~tritt qCourt · ZOll APR 20 A l= 30 

UNITED STATES OF AMERICA 

vs. 

Joseph Peter Moesser 

Date oflmposition: April 15, 2011 

DEFENDANT: Joseph Peter Moess<:ir . 

@ pleaded guilty to count(s) 

iJB(%ttirt of Ql:ltab DISTRICT OF UTAH 

JUDGMENT IN A CRI~=C="'"A=S.,...E~,.,.,-­

DEPUTY CLERK 

Case Number: 2: 09-cr-000842-TS 

Plaintiff Attorney: Mike Kennedy 

Defendant Attorney: Rebecca Skordas 

Count 1 of th~ :Misdemeanor Information 

Title & Section 

!8:1036(a)(4) 

Nature of Offense 

Count 

Number<s) 

1 

Probation: 6 Months 

Entry by False Pretense to any 

Real Property IV essel/ Aircraft 

[!] Count(s) . All counts of the Indictment (is)(are) dismissed on the motion of the United. States. 

ll The defendant shall cooperate with the government by providing Public Service Announcements; and 

2) The defendant shall perform 50 hours of community service as approved by·usro. 

CRIMlNAL MONETARY PENALTIES 

TOTAL FINE: Count l: None ASSESSMENT: Count 1: $10.00 

TOTAL: $10.00 

Da.ted: 4/19!:20H 

Exhibit 1 
02/14/2012 15:14 4252271007 ANH7 PAGE 18/47 

Case 2:09"cr-00842-TS Document 80 Filed 04113/11 Pa.ge 1 of 2 

FILED 

CARLIE CHRISTENSEN, United States Attorney (#633) U.S. DISTRICT COURT 

MICHAEL KENNEDY, Assistant United States Attorney (#8759~0tl APR I 3 p 3: 4 \ 

JOHN W. HUBER, Assistant United States Attorney (#7226) · 

Attorneys for the United States of America. DISTRICT OF UTAH 

185 South State Street, Ste. 300 • Salt Lake City, Utah 84111 BY•~:=-~=-

Telephone: (801) 524-5682 • Facsimile: (801) 325-3387 OE.PUTY CLERK 

· e-mail: michael.kennedy@usdoj.gov • john.huber@usdoj.gov 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF UTAH, CENTRAL DIVISION 

UNITED STATES OF AMERICA, . 2:09 CR 842 TS 

Plaintiff, 

vs. 

JOSEPH PETER MOESSER, . 

. 

Defendant. 

The United States Attorney charges: 

COUNT! 

SUPERSEDING 

MISDEMEANOR 

INFORMATION 

vro. 18 u.s.c. § l036(a)(4) 

ENTRY BY FALSE 

PRETENSES TO THE 

SECURE AREA OF AN 

.AIRPORT 

On or about October 1, 2010, in the Central Division ofthe District ofUtah, 

JOSEPH PETER MOESSER, 

Exhibit 2 
02/14/2012 15:14 4252271007 ANM7 PAGE 1g/47 

Case 2:09-cr-00842-TS Document 80 Filed 04/13/11 Page 2 of 2 

the Defendant herein, by fraud and false pretenses, to wit, the purposeful 

concealment in checked baggage of dangerous items he knew to be prohibited and 

which he expected to accompany him on the aircraft, did enter and attempt to enter 

the secure area of the Salt Lake City International Airport, an airport within the 

meaningof49 U.S.C. § 47102, all in violation of IS U.S.C. § 1036(a)(4), and 

punishable under !8 U.S.C. § I 036(b )(2). 

CARLIE CHRISTENSEN 

United States Attorney 

MICHAEL KENNEDY 

Assistant United States Attorney 

-2-
02/14/2012 15:14 4252271007 ANM7 

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Gregory G. Skordas, Esq. 

341 South Main Stre~t. Suite 303 

Salt Lake City, UT 84111 

• • • 

II! Complete lten'lS 1, 21 and 3. Als~ complst€1 

item 4 if Re$·tricted D@!ivery l:!l dealMd. 

i!il Prlnt your n~~ .;,nd address on the rever.:::e 

- so that wa ca;h return tile card to you. 

l!!il Attach th!!: -c:ard to the back of ths.mailp!ece, 

or on th~ 1ront It space p~l1ilitS. 

Gregory G. Skordas, Esq . . 341 South Main Street, Suite 303 

. Salt Lake City, UT 84 Ill 

·---· ... 

2. Article Number 

(n"ar1sfer tram Sr:!IVIGe fabel) 

6. RElc~ivecl by ( Pn"ntO!d Name) C, O~ta of I:Jellvt~ry 

o. l~t!anvedl~PJ!.W~9-~Iff~ra~~1mm Item 1? t:l Y~ 

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D Retum Receipt fCir MerchanOis~ 

I:J C.O.D. 

4, ~e~rletr;~d O~llvttry1 (Sxtra Pse) 0 y~ 

7010 0290 oooo 7199 3352 

PS Form3811, Fobruary 2004 Domestl!l R~tum Fl.ec~lpt 

Exhibit 3 
02/14/2012 15:14 4252271007 ANM7 PAGE 21/47 

USPS - Track & Confirm Page 1 of 1 

;.;;:,;; UNinD STI.ITES i:1!>Ino 1 twu I 

Jl!'".illll POSTJJL SERVICE~· ~ 

Track & Confirm 

Search Results 

Labei/Reoeipt Number: 7010 0290 0000 7199 3352 

Servir:e(s): Certified Mallllll 

Sta:tus: Dellverad 

Your lt9m was de!lverad at-11 :43 am on December 05, 2011 in SALT 

LAKE CTTY, UT S411 1. 

Datafle-d Results: 

Truk & Confirm ~ 

E:t'lter LabG!/Racolot Number, 

• DellvoMd, Docomber 05,2011, 11:43 am, SALT LAK!: CITY, UT 84111 • Procosood through USPS Sort Faclllty, becember 04, 2011, 4:2S om, SALT I.AK~ CITY, UT 84199 

Cil;~lpmer $mvlge Gm.:'l Sr;rvicc'j 

CopyrlghtJil) 2010 USPS. All Rights Reserved, No PEAR AI;\ EW OCll<l FOIA 

http :lftrkcnfun 1 . smi. usps.com!PTS!ntemet W eb/lnterLabellnquiry ,do ?origTrackNum~?O 1 0... l/9/20 12 
02/14/2012 15:14 

PublicDirectory 

Portal Home 

4252271007 ANM7 

Submit S@arch I r Sho-w All 

Membership information 

Nome: SKORDAS, GREGORY G 

Member ID: 03865 

Member Type: A!torney 

Llcense-statLis: Active 

Ficr~: SKORDAS CASTON & HYDE, L.L.C. 

341 S MAIN ST STE 303 

Addross: Sa~ Lake City, Utah 84111 

U.S.A_ 

Phone: 801-531-7444 

Fax: 601·531·6865 

E~mail: gskordas@st::hhlaw.com 

Law School: UniverSity of Utah 

Graduated: 1982 

Bar Admlssio~: 10106/1982 

PAGE 22/47 

Page 1 of 1 

-

Exhibit 4 

http://www.myutahbar.org/PublicDirectory/PublicDircctory.aspx?s=skordas&m~03865 217/2012 
02/14/2012 15:14 4252271007 ANM7 PAGE 23/47 

CMIECF- U.S. District Court:utd-Query Attorneys Page 1 of2 

2:09-cr-00842-TS All Defendants USA v. Moesser 

Date filed: 11105/2009 

Date terminated: 04/20/2011 

Date of l'lst filing: 09/23/2011 

K. Scott H'lmilton 

DICKINSON WRIGHT PLLC 

500 WOODWARD STE 400 

DETROIT, MI 48226 

Attorneys 

(313)223-3041 representing 

khamilton@dickinsonwright.com · 

Assigned: 07/30/2010 . 

PRO HAC VICE 

ATTORNEY TO BE NOTICED 

John W. Huber 

US ATTORNEY'S OFFICE (UT) 

SALT LAKE CITY, UT 00000 

(80 1 )524-5682 ' 

jobn.huber@usdoj .gov 

Assigned: 03/09/2010 

ATTORNEY TO BE NOTICED 

Michael P. Kennedy 

US ATIORNEY'S OFFICE (UT) 

SALT LAKE CITY, UT 00000 

(801)524-5682 

ntichael.kennedy@usdoj .gov 

A.ssigned: 11 !0512009 

LEAD ATTORNEY 

ATTORNEY TO BE NOTICED 

Gregory G. Skordas . 

SKORDAS CASTON & HYDE 

341 S MAIN ST STE 303 

SALT LAKE CITY, UT 84111 

(801)531-7444 

representing . 

representing 

representing 

https://ecf_ntd.nscourts.gov/cgi-binlqryAttomeys.pl?72820 

.Joseph Peter Moesser (1) 

TERMINATED: 04/2012011 

(Defendanr) 

National Rifle Association 

(Amicus) 

USA 

(Piaimijj) 

USA 

(Plailltiff) 

Joseph Peter Moesser (!) 

TERMINATED: 04/2012011 

Exhibit 5 

217/2012 
02/14/2012 15:14 4252271007 ANI~7 PAGE 24/47 

CM/ECF - U.S. District Court:utd-Query Attorneys Page 2 of2 

gskordas@scbhlaw.com 

Assigned: 1111912009 

LEAD ATTORNEY 

ATTORNEY TO BE NOTICED 

Rebecca H. Skordas 

SKORDAS CASTON & HYDE . 

341 S MAIN ST STE 303 

SALT LAKE CITY, UT 84111 

(801)531-7444 

rskordas@schhlaw.com 

Assigned: 11/1912009 

LEAD ATTORNEY 

ATTORNEY TO BE NOTICED 

James D. Vilos 

PO BOX 1148 

CENTERVILLE, UT 840 14 

(801)295-3340 

mitchvilos@gro.aiJ.com 

Assigned: 08/271:2010 

ATTORNEY.TO BE NOTICED 

representing 

representing 

(Defendant) 

Joseph Peter Moesser (1) 

TERMINATED: 0412012011 

(Defendant) 

National Rifle Association 

(Amicus) 

I P AC.ER Service Center I 

I Transaction Recei~t I 

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02/14/2012 15:14 4252271007 ANM7 

Case 2:09-cr-00842-TS Document 31 Filed 05/12/10 Page 1 of 24 

Rebecca Hyde Skordas (#6409) 

SKORDAS, CASTON & HYDE, LLC 

341 So. Main Street, Suite 303 

Salt Lake City, UT 84 U l 

Telephone: (801) 531-7444 

Facsimile: (801) 531-8885 

Attorney for the Defendant 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF UTAH, CENTRAL DIVISION 

UNITED STATES OF AMERrCA, 

Plaintiff, 

v. 

JOSEPH PETER MOESSER, 

Defendant. 

MEMORANDUM IN SUPPORT OF 

MOTION TO DISMISS 

THE INDICTMENT 

Case No. 2:09-CR-00842 

Judge Ted Stewart 

The Defendant, Joseph Peter Moesser, by and through hls attorney of record, Rebecca 

Hyde Skordas, and pursuant to Rule J2(b) ofthe Federal Rules of Criminal Procedure, submits 

this Memorandum in Support of the Motion to Dismiss the Indictment. 

FACTS 

PAGE 25/47 

Mr. Moesser is an accompli$hed big-game and nati,onaJly-recogoized hunter having shot 

34 record-book animals. He has traveled worldwide to hunt, including traveling four times to 

Africa, five times to Argentina, to Mongolia, Chlna, Vietnam, New Zealand, Australia and 

numerous states within the United States. He is also a board member and past president of the 

Utah Chapter of the Safari Club International. 

1 

Exhibit 6 
02/14/2012 15:14 4252271007 ANM7 

Case 2:09-cr-00842-TS Document 31 Filed 05/12/10 Page 7 of 24 

b. This Court Should Dismiss Count 1 of the Indictment because Small Arms 

Ammunition is Not an Explosive or Incendiary Device under U.S.C. § 

465()5(b )(3). 

49 D.S.C. §46505(b)(3) states that "an individual shall be fmed uoder Title 18, 

imprisoned for not more than 10 years, or both, if the individual ... (3) has on or about the 

individual, or has placed, attempted to place, or attempted to have placed on that aircraft, an 

explosive or incendiary device." However, the DOT bas created an exception to the general 

requirements of 49 U.S.C. §46505(b)(3) for passengers carrying "small arms ammunition.'' 49 

C.F.R. § 175.10(a) states: 

This subchapter does not apply to .. ·. small arms ammunition for personal use 

carried by a crewmember or passenger in checked baggage only, if securely 

·packed in box.es or other packagings specifically designed to carry small 

amounts of ammunition. 

Like the ATF exception in 18 U.S.C. § 844(g)(2), the DOT created an exception to 

the general prohibition for small arm,s aoo.munitioo in 49 C.F.R. § 175.10(a). However, 

unlike the A. TF regulati.on in C.F.R. § 555.11, the DOT has not defined "ammunition," 

eith.er .in a regulation, statement or directive, Where two statutes or regulations use the same 

term and only one provides a definition, courts construe the statutes or regulation to be in 

pari materia and apply the explicit definition to both terms. This is because courts assume 

that "whenever Congress passes a new statute, it acts a:ware of all previous statutes on the 

same subject." Erlenbaugh v. United States, 409 U.S. 239, 244 (1972); See also United 

Stares v. Fillman, .162 F.3d 1055, !058 (lOth Cir. 1998) (construing 18 U.S.C. § 842(i) 

and 18 U.S.C, § 92Z(n) to be in pari materia since both statutes related to the same subject 

matter and both used the term "indictment," but only the latter statute defined the term); 

7 

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02/14/2012 15:14 4252271007 .ANM7 

Case 2:09-cr-00842-TS Document 31 Filed 05/12110 Page 8 of 24 

United Telecommunications, lnc. v. Commissioner, 589 F.2d 1383, 1390 (lOth Cir. 1978) 

(holding that the in pari materia doctrine applies to regulations as well as statutes). 

The in pari materia rule applies in this case. Both 49 U.S.C. §46505(b)(3) and 18 

U.S.C. § 844(g)(l) share the same subject matter: prohibiting hazardous· materi.al during 

airline travel. Both statutes have clarifying regulations that exempt small arms ammunition 

from the general prohibition against el'plosives. Cf 49 C.F.R. § 175.10(a); 27 C.P.R.§ 

555.11. The key difference between the two regulations is that the ATF defined 

"ammunition" to include "smokeless propellants designed for use in small arms" in 27 

C.P.R. § 555.11 and the DOT provided no definition of "small arms ammunition." Thus, the 

smokeless powder for small anns that form.s the basis of this in.di.ctwent is ''small a<ms 

ammunition" within the meaning of 49 C.P.R. § 175.10(a) and exempt from the prohibition 

i(l49 U.S.C. §46505(b)(3). For this reason, the Court should dismiss Count 1 of the 

Indictment. 

c. This Court Should Dismiss Count 3 of the Indictment because Small Arms 

Ammunition is Excluded from the Prohibition Against Delivering Property 

Containing Hazardous Material to an Air Carrier Under 49 U.S.C. § 46312. 

49 U.S.C. § 46312 states that: 

A person shall be fined under Title 18, imprisoned for not more than 5 years, or both, 

if the person, in violation of a regulation or requirement related to the transportation 

of hazardous material prescribed by the Secretary of Transportation ... (1) willfully 

delivers, or causes to be delivered, property containing hazardous material to an air 

cauier or to arJ operator of a civil aircraft for transportation in air comrnerce. 

The Indictment also alleges that Mr. Moesse.r vi.olated DOT regulations by carrying 

PAGE 27/47 

smokeless powder for small arms under 49 U.S.C. § 171.2(e) (establishing labeling air packaging 

8 
02/14/2012 15:14 4252271007 ANM7 PAGE 28/47 

Case 2:09'cr"00842,TS Document 31 Filed 05/12/10 Page 9 of 24 

requirements for hazardous material); 49 C.F.R. § 173.27(b)(l) (prohibiting the t:r:ansportatiou of 

any materia[ designated as "forbidden" in 49 C.F.R. § 172.101); and 49 C.F.R. § !75,3 

(prohibitiug air transport of hazardous material without following the requirements of subchapter 

C. 

However, none of these requirements criminalize Mr. Moesser' s conduct because 49 

C.F.R. § 175.1 0(a)(8) exempts "small arms ammunition for personal use',' from the 

requirements of subplirt C. See 49 C.F.R. § 175.1 0(~.) (swting that "this subchapter (i.e., §§ 

171-185) does not apply to the following hazardous materials when carried by aircraft 

passengers or crewmembers ... (8) small arms ammunition for personal use"). For the 

reasons mentioned above, 49 C.F.R. § 175.10(a)(8) provides an exception to the statutory 

requirements that form the basis of Count 3. None of the statutes the Government alleges 

Mr. Moesser violated encompass smokeless powder for small arms. Therefore, this Court 

should dismiss Count 3 of the Indictment. 

·In this case, the statutory and regulatory schemes forming the basis of Counts 1, 2, 

and 3 of the Indictment clearly provide an exception for the smokeless powder for small 

arms, both through their pl~n meaning, their legislative histo.ry, and the rule of in pari 

materia. For these reasons, the Court should dismiss Counts 1, 2, and 3 of the Indictment: 

II. THJS COURT SHOULD DISMISS COUNTS ONE, TWO, AND THREE 

:BECAUSE 49 U.S.C. § 46505(B)(3), 18 U.S.C. § 844(G)(l) AND 49 U.S.C. § 

46312 FAIL TO GIVE ADEQUATE NOTICE OF THE CONDUCT 

PROHIBITED. 

Due process requires that parties receive fair notice before the Government deprives them 

of liberty or property. See Mullane v. Central Hanover Bank & 'l:rus! Co., 339 U.S. 306, 314 

9 
02/14/2012 15:14 4252271007 ANM7 

Case 2:09-cr-00842-TS Document 43 Filed 08/10/10 Page 1 of 26 

Rebecca Hyde Skordas (#6409) 

SKORDAS, CASTON & HYDE, LLC 

341 So. Main Street, Suite 303. 

Salt Lake City, UT 841 1 1 

Telephone: (801) 53)-7444 

Facsimile: (801) 531-8885 

Attorney for the Defendant 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF UTAH, CENTRAL DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

JOSEPH PETER MOESSER, 

Defendant. 

MEMORANDUM IN SUPPORT OF 

MOTION TO DISMISS 

THE SUPERSEDING INDICTMENT 

Case No. 2:09-CR-00842 

Judge Ted Stewart 

The Defendant, Joseph Peter Moesser, by and through his attorney of record, 

Rebecca Hyde Skordas, hereby submits this memorandum of law in support of his motion 

to dismiss the Superseding Indictment. 

FACTS 

Mr. Moesser is an internationaJJy-recognized big gawe hunter, having tllken 34 

record-book animals. He has traveled worldwide to hunt, including traveling four times 

to Africa, five times to Argentina as well as to Mongolia, China, Vietnam, New Zealand, 

Australia and numerous states within the United States. He is also a board member and 

past president of the Utah Chapter of the Safari Club International. 

lv{r_ Moesser had planned a :muzzleloader hunting trip to Africa on October 1; 

2009. To shoot a muzzleloadcr rifle, a hunter first loads a primer and a propellant into 

2 

PAGE 29/47 

! 

I 

r 

I 

i 
02/14/2012 15:14 4252271007 ANM7 

Case 2:09-cr-00842-TS Document 43 Filed 08/10/10 Page 13 of 26 

the Indictment should be dismissed. 

d, Count 4 of the Superseding Indictment should be dismissed because 

49 C.F.R §175.10(a)(8) creates an exception to tbe pacbging, 

Description, Marking and Labeling requirements of 49 C.F.R § 17l· 

185 which fl)rm the basis of Count 4. 

Count 4 of the Superseding lndictrit.ent should be dismissed because 49 C.F:R. § 

. 175.1 O(a)(S) cremes an cx.ccption to the packaging, description, marking and labeling 

requirements Of 49 C.F.R. §~ 171"185 which form the basis of Count 4. The Government 

alleges that Mr. Moesser violated numerous regulations relating to packaging and 

labeling hazardous material when he removed the primers from their commercial 

packaging, placed them in shotgun shells and loaded into his checked baggage. 

· The regulations the Government cites in Col!Dt 4 mirror Count 3: 49 C.F.R. § 

172.101, § l12.200etseq, § 172.300etseq., § 172AOOetseq., § 173.62,§ 175.l(b)(2) 

and § 175.3. By failing to comply with these regulations and placing the primers in 

shotgun shells, the Govemmcnt asserts that Mr. Moesser violated 49 U.S.C. § 5124 au.d § 

Sl04(b) by unlawfu.Jly tampering w.ith the packaging of the primers. 

However, Count 4 of' the Superseding Indictment should be dismissed for the 

same reasons as Count 3: 4'! C.F.R. § 175.10(a)(8) creates an exception to all of the 

requirements of 49 C.F.R. §~ 171-185 for "small arms ammuriition for personal use 

carried by a ... passenger i tj dwckcd baggage only, if securely packed in box.es or other 

packaging specifically designed l<t carry small amounts of amro.unition." 

As mentioned above, primers (\l"e ammunition within the meanJng of §175.10(a)(8). 

Supra Section l(b ). None of I he regulations the Government cites apply to this case, 

. because the reqtlireml!nts for .labeling, pack~ging <md shipping hazardous materials foWld 

in subpart C (49 C.P.R. §§ 171-1 ~5). The facts as the Government alleges do not 

14 

PAGE 3~/47 

1: 
02/14/2012 15:14 4252271007 ANM7 

Case 2:09-cr-00842-TS Document 43 Filed 08/10/10 Page 14 of 26 

constitute a violation of the law, and Count 4 of the Superseding Indictment should be 

dismissed es well. 

II. IN TilE ALTERNATIVE, TillS COURT SHOULD DISMISS COUNJ:S 

1, 2, 3, AND 4 BECAUSE TB:E GOVERNMENT HAS FAILED TO 

COMl'LY WITH THE DUE PROCESS REQUIREMENT OF NOTICE 

FOR THE ALLEGED OFFENSES. 

Due process requires that individuals receive fair notice before the Government 

deprives them ofliberty or property. See Mullane v. Central Hanover Bank & Trust Co., 

339 U.S. 306, 314 (1950). In order to provide notice, a statute, regulation or agency 

interpretation must be "reasonably comprehensible to people of good faith". General 

Elec. Co. v. U11itedStatesE.P.A., 53 F.3d 1324, 1330-1331 (D.C. Cir. 1995). The due 

process clause prevents courts from deferring to an agency interpretation that does not 

meet this standard, See United States v. National Dairy Corp., 372 U.S. 29,32-33 (1963) 

(holding that "criminal responsibility should not attach where one could not reasonably 

understand that his contemplated conduct is proscribed."); General Elec., Co., 53 F.3d at 

1328-29 (noting that "[i]n the absence of notice-for example, wher~ the regulation is not 

sufficiently clear to warn a party about what is expected of it-an agency may not deprive 

a party of property by imposing civil or criminal liability.'~; Gates & Fo:x Co. v, OSHRC, 

790 F.2d 1 54, 156 (D.C.Cir. 1986) (holding that the due process clause ~prevents ... 

deference from validating the application of a regulation that fails to give fair warning of 

the conduct it prohibits or requires"). 

There are three aspects of the fair warning requirement: (1) the vagueness doctrine; 

(2) the ban against novel construction of a criminal statute to conduct that neither the 

statute nor any prior judicial decision has fairly disclosed to be within its scope; and (3) 

the rule of lenity. United States v. Lanier, 520 U.S. 259,266 (1997). In each of these 

15 

PAGE 31/47 
02/14/2012 15:14 4252271007 AN1~7 

CMJECF -U.S. District Court:utd-Bistory/Docwnents Query 

Doc. · 

No. 

1 Filed: 

Entered:. 

2:09-cr-00842-TS All Defendants USA v. Moesser 

Date filed: 11105/2009 

Date terminated: 04/20/2011 

Date oflast filing: 09/23/2011 

Documents 

Dates Description 

11/04/2009 \:) Indictment 

11/05/2009 

2, Filed & Entered: · 11/05/2009 ~:. Sunnnons Issued 

l Filed: 11/05/2009 (}· Summons Returned Executed 

Entered: . 11110/2009 

4 Filed & Entered: ll/19/2009 ..:.l Notice of Attorney Appearance- Defendant 

2 Filed & Entered: 11/19/2009 ~} Notice ·of Attomey Appearance- Defendant 

Q Filed & Entered: 11/23/2009 \~ Statew.ent of Discovery Policy 

7 Filed & Entered: 11/23/2009 ll· Certificate of Compliance 

lQ Filed & Entered: 12/04/2009 ~l Arraigwnent 

li Filed & En.tered: 12/04/2009 \l Order Setting Conditions of Release 

13 Filed & Entered: 12/28/2009 -,l Certi.ficatc of Compliance 

ll Filed & Entered: 01/14/2010 .,:) Motion to Continue 

Terminated: 01115/2010 

15 Filed & Entered: 01/15/2010 -.~ Certificate of Compliance 

lQ Filed: 01/15/2010 il Order to Co.ntinne - EJ:Jds of Justice 

Entered: 01/19/2010 

11 Filed & Entered: 02/04/2010 \l Motion to Travel 

Terminated: 02/17/2010 

1§. Filed & Entered: 02/{)5/2010 (I Response to Motion 

20 Filed & Entered: 02/17/2010 ~~· Order on Motion to Travel 

22 Filed & Entered: 03/04/2010 i.) Trial Order 

23 Filed & Entered: 03/09/2010 ;,J Notice of Attorney Appearance- USA 

25 Filed & Entered: 05/04/2010 \;J, Motion for Admissi,on Pro Hac Vice 

TermiMted: 07/30/2010 

26 Filed & Entered: 05/05/2010 \J Motion for Protective Order 

Terminated: 05/06/2010 . 

27 Filed & Entered: 05/06/2010 \l Order on Motion for Protective Order 

28 Filed & Entered: 05/07/2010 ()Motion for Leave. to File 

Terminated· 05/J2/2010 

30 Filed & Entered: . 05/12/2010 ~) Motion to Dismiss Indictment/Information 

Terminated: 12/16/2010 

31 Filed & Entered: 05/12/2010 Q MEMORANDUM in Support 

https://ecf.utd.uscourts.gov/cgi-bin/HistDocQry .pl?4216994 782 86867 -L _1_ 0-1 

PAGE 32/47 

Page 1 of3 

Exhibit 7 

1125/2012 
02/14/2012 15:14 4252271007 ANM7 PAGE 33/47 

CM/ECF- U.S. District Court:utd-History/Documents Query Page 2 of3 

32 Filed & Entered: 05/25/2010 u Motion for Extension of Time to File Response/Reply 

Terminated: 05/26/2010 

33 F'iled & Entered: 05/25/2010 l<l· Cet1ificate of Compliance 

34 Filed & Entered: 05/26/2010 \} Ordex au Motion for Extension of Time to File Response/Reply 

35 Filed & Entered: 06/15/2010 i.l Certificate of Compliance 

36 Filed: 06/30/2010 \)• Indictment 

Entered: 07/01/2010 

37 Filed & Entered: 07/01/2010 Q Swnmons Issued 

38 Filed & Entered: 07/15/2010 C~· Motion for Extension of Time 

Terminated: 09/08/2010 

l2. Filed: 07116/2010 \,) Summons Returned Executed 

Entered: . 07/19/2010 

41 Filed & Entered: 07/30/2010 \;J· Order on Motion for Admi.ssiou Pro Hac Vice 

42 Filed & Entered: 08/10/20!0 ,] Motion. to Dismiss 

Terminated: 04/20/2011 

43 Filed & Entered: 08/10/2010 ~.)· MEMORANDUM in Support 

44 Filed & Entered: 08/23/:!010 \J Respo!J.se to Motion. 

45 Filed & Entered: 08/23/2010 ') Motion for Leave to File 

Terminated: 08/25/2010 

46 Filed & Entered." 08/25/2010 ~) Order on Motion for Leave to File 

.±1 Filed & Entered: 08/27/2010 \,) Motion to file Ami.cus Brief 

Terminated: 09/09/2010 

48 · Filed & Entered: 08/27/2010 \:t MEMORANDUM in Support 

~ Filed & Entered: 08/Z7/20l0 ') Motion for Admission Pro Hac Vice 

Terminated: 08/30/2010 

50 Filed & Entered: 08/30/2010 <.l Order on Motion. for Admission. Pro Hac Vice 

11 Filed & Entered: 08/30/2010 \l Notice (Other) 

52 Filed & Entered: 08/31/2010 \J Motion to Travel 

Terminated: 09/03/2010 

54 Filed & Entered: 09/02/2010 \J Response to Motion 

56 Filed & Entered: 09/03/2010 \) MEMORANDUM in Opposition 

58 Filed & Entered: 09/08/2010 u Order on Motion for Extension of Time 

2.2 Filed & Entered: 09/08/2010 IJ· Motion. for Extension of Time to File Response/Reply 

Terminated: 09/09/2010 

.2Q Filed & Entered: 09/09/2010 \l Order on Motion for Extension of Time to File Response/Reply 

62 Filed & Entered: 09/17/2010 ~l Reply to Response 

63 Filed & Enlered: 09/2!/2010 ~l Brief 

65 Filed & Entered: 10/18/2010 ~J Brief 

.§£ Filed & Entered: 10/18/2010 (} MEMORANDVM in Support 

68 Filed & Entered: 11/19/2010 (t Ordex on Motion. to Dismiss 

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CM/ECF ·U.S. District Court:utd-History/Documents Query Page 3 of3 

71 Filed & Entered: 121!5/2010 C~ Order to Continue • Er~ds of Justice 

73 Filed & Entered: 03/28/2011 -.l Motion to Continue 

Terminated: 03/29/2011 

74 Filed & Entered: 03/29/2011 -.l Order on Motion to Continue 

75 Filed & Entered.· 03/29/2011 \3 Motion to Continue 

Terminated: 03/30/2011 

77 Filed & Entered: 03/30/2011 iJ Order to Continue -Ends of Justice 

~ Filed: 04/13/2011 i,J Information • Petty 

Entered: 04/14/2011 

.ill Filed & Emered: 04/15/2011 ;;) Notice of Filing Dismissal 

~ Filed & Entered: 04/15/2011 \) Statement i11 Advance of Plea 

85 Filed & Entered: 04/20/2011 ~j Judgment 

86 Filed & Entered: 04/25/2011 •l Order 

E1 Filed:. 09/23/2011 \.~Order 

Entered: 09/28/2011 

'" ,., . ·-· ········-· ····-···· -·--···· .......... - . . . ·- , __ ............ - "" ' .......... . . -· '• -···· 

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02/14/2012 15:14 4252271007 ANM7 PAGE 35/47 

C,ase 2:09"cr"00842-TS Document 1 Filed 11/04/2009 Page 1 of 4 

FILED 

tJ.S. DiSHdCT COURT 

BRETT L. TOLMAN, United States Attorney (#8821) lUllliJlOV -Li p 4: 3l 

MICHAEL P. KENNEDY, Assistant United States Attorney (#8'1YJ) · 

Attorneys for the United States of America iJJciRICT CF U'fAH 

185 South State Street, Ste, 300 • Salt Lake City, Utah 84 I 11 ~rY.'~--- Telephone: (801) 524-5682 • Facsimile: (801) 325-3387 . n:PUTY CLERK 

·e-mail: michael.kennedy@usdoj.gov 

IN Tiffi UNITED STATES DISTRICTCOURT 

DISTRICT OF UTAH, CENTRAL DIVISION 

UNITED STATES OF AMERlCA, 

Plaintiff, 

vs. 

JOSEPH PETER MOESSER, 

Defendant. 

INDICTMENT 

VIO. 49 U.S.C. § 46505(b)(3) 

(Attempted Placement of 

Explosive on Aircraft) 

18 u.s.c. § 844(g)(l) 

(Possession of Explosive at 

Airport) 

49 u.s.c. § 46312 

(Unlawful Transportation of 

Har.ardous Materi.al in Air 

Commerce) 

18 U.S.C. § 1001 (False 

Statement) 

-------------------=:-=-=-=-c:::-=====-==-..... ·-.... The Grand Jury charges: Case: 2:09-cr-00842 

1\:s:si;r>ed ";ro : Stewart, Ted 

Assign. Date : ll/0412009 

Description: USJ\ v (Indi~tm~nt) 

Exhibit 8 
02/14/2012 15:14 4252271007 ANM7 PAGE 35/47 

Case 2:09-cr-00842-TS Documer.t ·, F1ied 11104/2009 Page 2 of 4 

COUNT 1 

On or about October I; 2009, in the Central Division of the District of Utah, 

JOSEPH PETER MOESSER, 

the Defendant herein, knowingly attempted to place, and attempted to have placed,. 

an explosive,. to wit, inorganic nitrate-based explosive smokeless powder for small 

arms (commonly referred to as black powder) on an aircraft in a.nd intended for 

operation in air transportation, to wit, Delta Airlines Flight Number 1512, service 

from Salt Lake City, Utah to Atiauta, Georgia, and Delta AirlinesF!ight Number 

0200, service from Atlanta, Georgia, to Johannes):JUrg, South Africa, all in 

violation of and punishable under 49 U.S.C. § 46505(b)(3). 

COUNT2 

On or about October l, 2009, in the Central Division of the District of Utah, 

JOSEPH PETER MOESSER, 

the Defendant herein, knowingly possessed an explosive within the meaning of 18 

U.S.C. § 8440), to wit, inorganic nitrate-based explosive smokeless powder for 

·small a.nns (commonly referred to as black powder), in Salt Lake International 

Airport, an airport that is subJect to the regulatory authority of the Federal 

-2-
02/14/2012 15:14 4252271007 ANM7 PAGE 37/47 

Case 2:09-cr-00842-TS Document 1 Filed 11/04/2009 Page 3 of 4 

Aviation Administration, all in violation of and punishable under 18 U.S.C. § 

844(g)(l). 

COUNT3 

On or about October 1, 2009, in the Central Division of the District of Utah, 

JOSEPH PETER MOESSER, 

the Defendant herein, in violation of a regulation or requirement related to the 

transportation of hazardous materil:\1 prescribed by the Secretary of Transportation 

tmder 49C.F.R. §§ 171.2(e), 173.27(b)(l), and 175.3, did willfully deliver, and 

cause to be delivered, property containing hazardous rnatedal, to wit, inorganic 

nitrate-based explosive smokeless powder for small arms (commonly referred to as 

black powder), to an air carrier far transporta:tion in air commerce, alt in violation 

of and punishable under 49 U.S.C. § 46312. 

QQlJNT4 

On or about October .I, 2009, in the Central Division of the District of Utah, 

JOSEPH PETER MOESSER, 

the Defendant herein, in a matter within the jwisdi.ction of the executive branch of 

the United States government, to wit, the Federal Bureau of Investigation (FBl), 

-3-
02/14/2012 15:14 4252271007 ANM7 PAGE 38/47 

Case 2;09--cr-00842-TS Document 1 Filed I i i04i2009 Page 4 of 4 

United States Department of Justice, the Transportation Security Administration 

(TSA), United States Department ofTransportation, and the Federal Aviation 

Administration (FAA), United States Department ofTransportation; did 

knowingly and willfully make a materially false, fictitious, and fraudulent 

statement and representation, in that he, inan interview with Special Agents of the 

FB! an.d FAA, did state that he did not have undeclared black powder or othe.r 

prohibited hazardous materials concealed in his baggage intended for airline 

transport as checked baggage, which statement was false as he well knew; all in 

violation of Title 18 U.S.C. §I 00 l(a)(2) and punishable thereunder. 

A TRUE BILL: 

FOREPERSON OF THE GRAND JURY 

ITL. TOLMAN 

i~il]llLQ MICHAEL P. KENNEDY 

Assistant United Statvs Attorney 
02/14/2012 15:14 4252271007 

U.S. Department 

of Transportation 

Research and 

Special Programs 

Administration 

ANM7 

The US .Department of Transportation 

Competent Authority for lhe United States 

CLASSIFICATION OF EXPLOSIVES 

400 Se'-'enlh Srr-Mt, s.w 

WS3hi/'I~MI, D.C. ~0500 

Based upon a request by Ammuni.tion Accessories Inc, CCI"Speer Operations (formerly 

Federal Cartridge Company), P.O. Box 856, 2299 Snake River Avenue, Lewiston, ID, the 

following items are classed in accordance with Section 173.56, Title 49, Code of Federal 

Regulations, (49 CFR). A copy of your application, all supporting documentation and a 

copy of this approval must be retained and made available to DOT upon request. 

U.N. PROPER SHIPPlNG NAME AND NUMBER: 

Charges, shaped, [without detonator], UN0440 

U.N. CLASSIFICATION CODE: 1.40 

REFERENCE NUMBER 

EXl995080018C 

PRODUCT DESIGNATION/PAR! NUMBER 

Primer No. 250, Large Rifle, Magnum 

. U.N. PROPER SIDPPING NAME AND NUMBER: 

Primers, cap type, UN0044 

U.N. CLASSIFICATION CODE: !.4S 

REFERENCE NUM:SER 

EX1990030255 

EXI995110l31J 

EX1990030256 

EXI990030254 

EX1990030257 

EX19951l0131I 

EXI990030258 

EX1995080018B 

PRODUCT .OESIGNATJON!PART NUMBER 

#200 Large Rifle . 

Primer No. 200, Large Rifle 

#250 Large Rifle Magnum 

#200 Large Rifle Centerfue Primer 

BR-2 Large Rifle Benchrest 

Primer, BR -2, Large Rifle Bench Rest 

M-34 Large Rifle Military 

Primer No. 34, Large Rifle, Military 

PAGE 39/47 

Tracking No: 2003070001 Page I of5 

Exhibit 9 
02/14/2012 15:14 4252271007 

EX1990030259 

EX19951l 0 131H 

EXI990030260 

EX1995080018E 

EX! 990030261 

EX1995Il013!G 

EX! 990030262 

EX1995080018D 

EX1990030263 

EX1995110131F 

EX1990030264 

EXI995080018A 

EX1995!10l31B 

EXI990030265 

EX19951 10131C 

EX! 990030266 

EX1995Il0!3lE 

EX1990030267 

EX199501!001& 

EXJ989!20167 

EX1995! 1013IA 

EXI989120168 

EXI995110!3 I 

Tracking No: 2003070001 

ANH7 

#300 Large Pistol 

Primer No. 300, Large Pistol 

#350 Large Pistol Magnum 

Primer No. 350, Large Pistol, Magmun 

#400 Small Rifle 

Primer No. 400, Small Rifle 

#450 Small Rifle Magnum 

Primer No. 450, Small Rifle, Magnum 

BR-4 Small Rifle Benchrest 

Primer BR-4, Small Rifle, Bench Rest 

#41 Small Rifle Military 

Primer No. 41, Small Rifle, Military 

Primer No. 5000EM 

#500 Small Pistol . 

Primer No. 500, Small Pistol. 

#55 0 Small Pistol Magimm 

Primer No. 550, Small Pistol, Magnum 

#35 50 Cal. BMG 

Primer No. 35 

#209 Shotshell Primer 

Primer No. 209, Shotshell 

#209 M Shotsb.ell Primer 

Primer No. 209M, Shotshcll 

PAGE 40/47 

Page 2 of5 
02/14/2012. 15:14 4252271007 

EX.\9950800 !SF 

E:X;I 993030001 

EX1993030002 

EX\993030003 

EX1993030004 

EX1989120144 

EXI995080019 

EX1996110053 

EXI996110053A 

ANM7 

Primer No. 209 S.C. 

Primers, Percussion, M I 15 (tested) 

Primer, Percussion, M36A2 

Anvil, Primer, Percussion, M\15, MOD A 

Anvil, Primer, Percussion, Mll5, MOD B 

Percussion Caps: # ll Caps 

Primer No. I 1, Percussion Cap 

Percussion Cap. No. 1 I Magnum 

Primer, Percussion Cap, No. I 0 CCI 

U.N. PROPER SHIPPING NAME AND NUMBER: 

Primers, cap type, UN03 78 

U.N. CLASSIFICATION CODE; !.4B 

REFERENCE NUMBER 

EX1997090062 

EX 1994080066 

EX1994080067 

EX 1994120072 

EX\994120073 

EX1994120074 

EX1994120075 

EX1994J20076 

EX1994120077 

EX1990030267A 

Tracking No: 2003070001 

PRODUCT l>ESIGNA TIQNJ!'AR! NUMBER 

Musket Cap, Six Wing 

300BCF Berdan Clean Fire Primers 

M34 Clean Fire Primers 

300CF Large Pistol Clean Fire 

41 CF Small Rifle Military 

SOOCF Small Pistol Clean Fire 

82CF Small Pistol Clean Fire 

SOOBCF Berdan Clean Fire 

550BCF Berdan Cl.ean Fire 

No. 82 Small Pistol Primer 

Page 3 of 5 

PAGE 41/47 
02/14/2012 15:14 4252271007 ANM7 

U.N. PROPER SHIPPING NAME AND NUMBER: 

Primers, cap type, UN0044 

U.N. CLASSIFICATION CODE: 1.48 

REFERENCE NUMBER 

EX 199511 0131 D 

EX1995120110 

PRODUCT DESIGNATION/PART NUMBER 

Primer No. 82, Small Pistol 

Primer, 500LF, Small Pistol, Lead Free 

U.N. PROPER SHIPPING NAME AND NUMBER: 

Primers, cap type, UN0378 

U.N. CLASSIFICATION CODE: 1.4B 

REFERENCE NUMBER 

EX1985110030 

PRODUCT DESJGNA TION/P ART NUMBER 

Cascade Primers 

U.N. PROPER SHIPPING NAME AND NUMBER: 

Primers, cap type, UN0044 

U.N. CLASSIFICATION CODE: 1.48 

REFERENCE NUMBER 

EX1995!20l U 

EX1995120111A 

EX1995120111B 

EX19951201ll C 

EX1995120111D 

EXI995120111E 

EX1995120!11F 

EX1995120ll!G 

EX! 995120112 

Tracking No: 2003070001 

PRODUCT DESIGNATION/PART NUMBER 

Primer No. 200, Large Rifle, in Ulti-Primer Strips · 

Primer BR-2, Large Rifle Bench Rest, in 

Ulti·Primer Strips 

Primer No. 300, Large Pistol, in D!ti-Prirner Strips 

Primer No. 400, Small Rifle, in Ulti-Primer Strips 

Primer BRA, Small Rifle, Bench Rest, in 

Ultri-Primer Strips 

Primer No. 500, Small Pistol, in Ulti-Primer Strips 

Primer No. 550, Small Pistol, Magnll1l~, in 

Ulti-Primer Strips 

:Prim.er No. 82, Small Pistol, in Ulti-Primer Strips 

Primer No. 350, Large Pistol Magnum, in 

Ulti-Primer Strips 

Page 4 of5 

PAGE 42/47 
02/14/2012 15:14 4252271007 

EXl995120112A 

EX1995120112B 

EX1995120112C 

EX1995120112D 

DATED: July 16, 2003 

Approved by: 

~.,., 

~~~- Robert A. McGuire · 

Associate Administrator for 

Hazardous Materials Safety 

Tracking No: 2003070001 

ANM7 

Primer No. 250, Large Rifle Magnum, in 

UltH'rimer Strips 

Primer No. 450, Small Rifle Magnum, in 

VIti-Primer Strips 

Pri1,:ner No. 41, Small Rifle, Military, in Ulti-Primer 

Strips 

Primer No. 34, Large Rifle, Military, in Ulti-Primer 

Strips 

Page 5 of5 

PAGE 43/47 
02/14/2012 15:14 4252271007 ANH7 PAGE 44/47 

·eel/ SPEER 

MATERIAL SAFETY DATA SHEET 

MANUFACTURED BY: 

ADDRESS: 

TELEPHONE #: 

EMERGENCY CONTACT: 

SECTION 1. MANUFACTURER INFORMATION 

CCI/SPEER 

2299 Snake River Avenue 

Lewiston, Idaho 83501 

(208) 746-2351 (24 HOURS) 

Chief Chemist or Safety Department 

TRANSPORTATION EMERGeNCY CONTACT: CHEMTREC 1-800-424-9300 

MSDSDATE: 03/01190 REVIEW DATE 10106104 REVISION DATE 

SECTION 2. PRODUCT INFORMATION 

PRODUCT NAME: Shots hell Primer~ 209M 

SYNONYMS: 

FORMULA NA C.A.S.# NA 

DOT PROPER SHIPPING NAME: Primers, Cap Type 

06/13105 

UNITED NATIONS (UN) PESJGNAfiON: 0044 HAZARD CLASSIFICATION: 1.4S 

NFPA: HeALTH: IJJ FLAMMABILITY: [I) REACTIVITY: [QJ SPECIAL: I"'XPLOSIVE 

HAZARDOUS INGREDIENTS CAS NUMBER UE!.!LEL EXPDSURE LIMITS 

Lead Styphnate • 12403-82-6 NE · .05 mq/m, 

Barium Nitrate • 10022-31-8 NE .5 mg/m 

Antimony Sulflde 7440-36-0 NE .5 mg/m' 

Aluminum 7429-90-5 NE 15 mg/m 

Tetrncene 109-27-3 NE NE 

Copper (Primer Cup/Battery Cup 7440-50-8 NE 1 mglm, 

Components)' 

Nickel (Riatina components) 7440-02-2 NE 1 mg/m, 

Zinc (as Zinc Oxide) 1314-13-2 NE .2 molm, 

Zinc Compounds (Primer Cup 7440-66-6 NE 5 mg!m" (ACGIH) 

Component)' 

NA"' NOT AVAILABLE NE =NOT ESTABLISHED MGIM3 =MILLIGRAMS PER CUBIC METER OF AIR 

PPM= PARTS PER MILLION REFERENCE OSHA 29 CFR 1910.1000 TABLE Z-1 

(") INDICATES TOXIC CHEMJCAL(S) SUBJECT TO THE REPORTING REQUIREMENTS OF SECTION 313 Of THE 

SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT (SARA) OF 1986 AND 40 CFR 372. 

(+) CERTAIN COMPONENTS LISTED IN THE INGREDIENTS SECTION INCLUDE CASE MATERIAL, PROJECTILE 

OR OTHER INERT COMPONENTS AND ARE NOT EXPECTED TO BE AN EXPOSURE HAZARD UNDER 

Exhibit 10 
02/14/2012 15:14 4252271007 

U.S. Department 

of Transportation 

Research and 

Special Programs 

Administration 

ANM7 

The US Dcpsrtment ofTr-anspartation 

Competent Aut~ority fur t~e United States 

CLASSIFICATWN OF EXPLOSIVES 

<lOO S!VI!!nth Street, S.W. 

_w~;~~h]ngl.on, C.C. :2(]590 

Based upon a request by Hodgdon Powder Company, Inc., 6231 Robinson, Shawnee 

Mission, KS, th.:: following items are classed in accordance with Section 173.56, Title 49, 

Code of Federal Regulations, (49 CFR). A copy of your application, all suppocting 

documentation and a copy of this approval must be retained and made available to DOT 

upon request 

U.N. PROPER SHIPPING NAME AND NUMBER: 

Propellant, solid, UN0499 

U.N. CLASSIFICATION CODE: L3C. 

REFERENCE NUMBER 

EX20021 00 l 05 

PRODUCT DESIGNATIO NIP ART NUMBER 

Triple Seven Pellets 

NOTES: 

None. 

U.N. PROPER SHIPPING NAME AND NUMBER: 

Smokeless powde:r for small arms [1 00 pounds or less], NA3178 

!I:N, CLASSIFICATION CODE: 4.1 

REFERENCE NUMBER 

EX2002100192 

PRODUCT DESlGNATIQNIPART NUMBER 

Triple Seven Pellets 

NOTES: 

This classification is limited to shipments of I 00 pmmds or less of Smokeless powder for 

smaJJ arms as authorized in 49 C.FR Section 173.171. The following packagi:ng methods 

are approved: 

Packaging Method A: 

Inner Packaging " Ammunition boxes, plasticwith inner partitions, each containing not 

more than eight {8) pellets per cell and not more than four huncl!ed ( 400) pellets or 260 

grams net explosive weight per package. 

Outer Packaging- Specification 4G fiberboard box, each containing not .more thlm twelve 

( 12) inner packagings. 

Packaging Method B: 

Tracking No: 2002100107 Page 1 of2 

Exhibit 11 

PAGE 45/47 
02/14/2012 15:14 4252271007 ANM7 

CONTINUING NOTE- EX20021 00192: 

Inner Packaging - Tubes, plastic with plastic end caps secmely affixed, each containing 

not more than twenty-five (25) pellets or !6,2 grams net '<'Xplosive weight 

Intermediate Packaging- "Blister package", plastic, each captaining not more thari four 

(4) inner packagings. _ 

Outer Packaging · Specification 40 fiberboard box, each containing not more than 

twenty-four (24) intennediate packagings. 

DATED: October 25, 2002 

Approved by; 

--~~~ 

~.,. Robert A McG-u.ire 

As~ociate Administrator for 

_Hazardous Materials Safety 

Tracking No: 2002100107 Page 2 of2 

PAGE 45/47 
02/14/2012 15:14 4252271007 ANM7 PAGE 47/47 

·- ...•.. ·~ 

r

u irl.l· ';' 

l 

HODGDON@ 

THE BRAND THi\T'S TRUE 

Which UNNmnbe.rs Da I Use For Hodgdon Powders? 

For UPS and FedEx shipping as a flammable solid (1 00 pounds or less), 

Hodgdon smokeless, Pyrodex® and Triple Seven all have the sarm:!shipping 

infonnation. For large. 1.3C Explosi.ve shipments, smokeless powrur varies 

from Pyrodex and Triple Seven. The shipping information follows: i 

Powder Type Proper Hazard 

Shipping Class or 

Name Division 

Flammable Solid 1 Smokeless 4.1 

shipments of Hodgdon :powder 

smokelesS, Pyrode:;;,:® 1 for small 

~1'1:\P.!~ Se~---- anns 

Hodgdon Smokeless Powdei. lJC 

· (!.3C Explosive) ...... _§.lllokeless .. •... ~·~f'yrode;;:® or TripJe . ' Prope Uant, l l , 3C 

·. ,.Sey~::P.Jl .. ~,c .Exoiosiv:e) solid · i · 

Identification · 

Numbers 

NA3178 

UN 0161 

UN0499 

racking I 

Group 1 I . . . 

' i ' :PO I 

I 

I 

I 

I 

.ron 

I 

I f'G II 

I 

• 

\ 

~ Powder shipmentsshou1d only be mnde by persons who have had I:~OT 

training and comply wit11 all DOT regulations set forth in Title 49 of the 

Code ofFedera1 Regulations. 1 

I 

~ .G,-.If·<.rtfz1f;'· ~~·-· .. 

t12..il RotJhti;On • P.O. Dc'l:t #29.3·l ~ Sba~·nee Mission, ~m.u 6€i2Q1 l 

(9L3) ~52-9455 Vo/.co • (913) 362-1301 Yo.~ 

'7' .. y Exhibit 12