03/01/2012 13:31 4252271007 ANM7 

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FACSIMILE MESSAGE 

FEDERAL A VJATION ADMINISTRATION 

OFFICE OF REGIONAL COUNSEL 

ANM-7 

1601 LIND AVENUE S.W. 

RENTON, W ASHINGl'ON 98057 

PAGE 01/05 

The information contained in this facsimile message is legally privileged and confidential 

information and is intended only for the use of the individual named on this cover sheet. 

If the reader of this message is not the i,ntended recipient, you are hereby notified that any 

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have received this facsimile in error, please immediately notifY us by telephone at 

425-227-2007. . 

DATE: 

TO: 

FAX NO.: 

PHONE NO.: 

RE:. 

March 1, 2012 

Docket Clerk AGC-430 

202-493-5142 

F AA-2011-1286 

FAA Case No. 

2010NM720001 

J. Moesser 

NO. PAGES: 

FROM: 

FAX NO.: 

PHONE NO.: 

EMAIL: 

including cover 

Jeffrey Harper 

425-227-1007 

425-227-2161 

Re: REPLY TO RESPONDENT'S RESPONSE TO SECOND MOTION FOR 

DECISION 
03/01/2012 13:31 4252271007 ANM7 PAGE 02/05 

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JEFFREYM. HARPER 

FAA OFFICE OF REGIONAL COUNSEL 

160 1 LIND AVENUE SOUTHWEST 

RENTON, WASHING1DN 98057 

TELEPHONE: {425) 227-2161 

FACSIMILE: (425) 227·1007 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION . OFFICE OF HEARINGS 

In the :Matter of: 

Joseph Moesser 

WASHINGTON, D.C. 

FAACaseNo. 2010NM72000l 

DMS Nq. FAA-201H286 

REPLY TO RESPONDENT'S RESPONSE 

TO SECOND MOTION FOR DECISION 

Judge Richard C. Goodwin 

To: Judge Goodwin: 

REPLY 'tO RESPONDENT'S RESPONSE 'tO 

SECOND MOTION FOR DECISION 

Complainant flied a Second Motion for Decision on F ebruaty 14, 20 12; Respondent filed his 

response on February 27, 2012. 

Argument 

Collateral estoppel is a result of Respondent's guilty plea, not the U.S. District 

Court Judge's ruling on Respondent's Motion to Dismiss in the related criminal 

case. 

Respondent asserts that issue prech,1sion does not apply, because. the trial court's ruling on 

Respondent's Motion to Dismiss was not essential to the Judgment. That is true. What is also 

true is that Respondent's guilty plea, and the factual basis for that plea, w~re essential to the 

District Court's judgment convicting Respondent of 18 U.S.C. § I 03~(a)( 4), For the reasons 

discussed in Complainant's Motion for Decision, Pages 5-7, that judgment precludes Respondent 

from claiming that the Triple Seven Powder was anything other than prohibited from carriage in 

checked baggage. 

Even if issue preclusion does not attach, Respondent has conceded that the underlying facts of 

that claim. are admitted. Response to Complainant's Second Motion for Decision, Page 2, last 

two (2) lines. Those facts establish that Respondent violated the Hazardous Material Regulations 

(HMR). Second Motion for Decision, Page 7-8, line 4~ 

Reply to Respondcnes Response: to 2nd Motion for Decision 

Joseph Moesser-' F AA-2011- 1286 

201 ONM72000 1 

.Page I of5 

JEFFREY M. HARPER, FAA ArrORNoY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
03/01/2012 13:31 4252271007 ANI~7 PAGE 03/05 

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Contrary to Respondent's repeated assertions, the Department of Transportation 

has defined "small arms ammunition;" that definition does not encompass the 

items Respondent offered for transportation. 

Ignorance of the law is no defense. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 

130 S.Ct. 1605, 1611 (2010) (citing Barlow v. US., 32 U.S. 404,411 (1833)). Respondent's 

persistence in making a counter-factual argument that the HMR fails to provide relevant 

definitions does not bootstrap a constitutional vagueness claim into being. While "laws [must] 

give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, b 

all persons are assumed to know the law. E.g., Sykes v. US., 131 S.Ct. 2267, 2277 (20ll); 

Gilmore v. Taylor, 508 U.S. 333,359 (1993); Jacobson v. US., 503 U.S. 540, 550 (1992); 

Traynor v. Turnage, 485 U.S. 535, 546 (1988); lrz the Matter ofBlong Xiong, FAA Docket 

No. CP05NE0004, Order served April 7, 2006 at 2; In the Matter of Offshore Air, FAA Order 

No. 2001-4, 7 (May 15, 2001). 

In making his vagueness claim, Respondent claims that DOT has not defined "small arms 

ammunition for personal use." While the District Court judge ruled that way, Complainant was 

not a party to that case, and, unlike Respondent, is not precluded from arguing otherwise. As 

Complainant has previously discussed, the Hazardous Materials Regulations do provide a 

definition. Second Motion for Decision, Page 8-9, line 8. Respondent cites to a number of cases 

discussing vagueness claims, all of which are irrelevant here because, contrary to Respondent's 

assertions, the relevant tenus are defined. 

Respondent concedes that one (1) of the materials he secreted in his luggage is smokeless powder 

for small arms (Response to Complainant's Motion for Decision, Pages 4, 6, and 10) -but fails 

to address 49 C.P.R. § 172.101, (table entry for "Smokeless powder for small arms, which 

prohibits carriage on passenger aircraft) and § 173.171 (discussing the reclassification of 

smok.eless powder for small arms for small arms from Division 1.3 to Division 1.4, omitting 

passenger aircraft as an acceptable mode of transportation). Whether the powder was carried in a 

container designed for the purposes of carrying smokeless powder for small arms, as Respondent 

claims he was doing, is irrelevant (Response to Complainant's Motion for Decision, Page 6)-

smokeless powder is prohibited onboard passenger aircraft, no matter how Jt is packaged! 

Contrary to Respondent's assertions, even the term "Ammunition," standing alone, is defined, 

with th.e caveat th_at that deflnition should not be used for purposes of classification or to replace 

proper shipping names. 49 C.F.R. § 173.59. 

1 Gra:ynedv_ Roc/iford, 408 U.S. 104, 108 (1972). 2 49 CFR. § \72.101. 

Reply to Respondent's Response to 2nd Motion :for :Decision 

Jose~h Mocsser- FAA-2011-1286 

ZOIONM72000l 

Page 2 of5 

JEFYREYM. HARJ'IlR, PAAATTORNEY 

TEL: (425) 227-2161; PAX: (425) 227-1007 
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Respondent's vagueness argrunent must fail, as it is based on the incorrect premise that the 

Hazardous Materials Regulations do not define "small arms ammunition." 

Respondent's acts, as admitted in this case, demonstrate that the Ha:zardous 

Materials Regulations are not vague, as Respondent was aware he was offering 

prohibited and regulated material for transportation. 

Respondent's "vagueness" arguments should be recognized for what they are- a post hoc: e·ffort 

to justify his knowing, willful, and deliberate violations of the Hazardous Materials Regulations. 

Respondent's conduct on October 1, 2009 demonstrated that the Hazardous Materials 

Regulations wr:-re not in any way vague and that Respondent was aware they prohibited his 

efforts to ship the primers and powder. 

Respondent offered a bag containing two (2) boxes of shotgun shells to Delta Airlines for 

transportation. Complaint Paragraph II. 7, Answer Paragraph II. 7. The top row of shells in each 

box appeared to be new, unexpended shells with intact primers. Complaint Paragraph U.l 0, 

Answer Paragraph JI.l 0. All shells under this top row, however, were expended rounds which 

contained either prohibited smokeless powder or regulated primers. The manner of packaging 

demonstrated a deliberate effort by the Respondent to conceal the true nature of his ammunition. 

The reloaded shells weren't on the top row, where they could be easily observed if inspected; 

they were instead disguised by the top row of factory new ammunition. 

Respondent had a "second chance" to abide by the Hazardous Materials Regulations. He had 

been stopped earlier at the Salt Lake City airport, Utah, by federal agents. Complaint Paragraph 

IL3, Answer Paragraph II.3. He was asked if his luggage contained any ammunition. Complaint 

Paragraph TI.3, Answer Paragraph II.3. In response, Respondent produced a boJ< from his 

luggage which contained a container of Hodgdon Triple Seven Pellets and a container of CCI 

209M Shotshell primers. Complaint Paragraph 11.4; Answer Paragraph II.4. He was specifically 

informed the Hodgdon Triple Seven Pellets were forbidden and the CCI 209M Shotshell primers 

were regulated, which he surrendered. Complaint Paragraph 5, Answer Paragraph II.S. 

Having been informed that the powder was prohibited and the primers regulated, he was asked if 

he had any other prohibited material. Complaint Paragraphs 6, Answer Paragraph TL6. He 

indicated he did not. Complaint Paragraph 5, Answer Paragraph II.S. Considering Respondent's 

luggage also included powder and primers in their original containers, his packaging of those 

same substances in the shotshells can only be characterized as an effort to conceal those materials 

from the authorities. 

Roply to Respondent's: Response to 2nd Motion for Decision 

Joseph Moess•r-FAA-2011-1286 

20 1 ONM72000 1 

Page3 of5 

JEFFRRYM. liARPER,FAAATTORNBY 

TEL: (4~5) n7-2l6l: FAX: (425) 22H007 
03/01/2012 13:31 4252271007 ANM7 PAGE 05/05 

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As applied to this case, Respondent by his actions demonstrated that the Hazardous Materials 

Regulations are not vague -Respondent took affirmative steps to disguise his violations fTom 

the authorities, indicating he knew his conduct was prohibited. 

Conclusion 

For the reasons stated above, Complainant respectfully requests that this court grant its Second 

Motion for Decision. Respondent has admitted all the allegations in the Complaint and contests 

no facts. There are no genuine issues of material fact; the sanction sought is appropriate under 

the facts. 

DATED this lst day of March, 2012. 

Reply to Respondent's Response to 2nd Motion fbt Decision 

Joseph Moesscr- FAA-201 H286 

20lONM72000l. 

Page 4 of5 

JEPPREYM. HARPER, l'AAATTORNTlY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
"03/01/2012 13:31 

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4252271007 ANM7 

CERTIFICATE OF SERVICE 

6 I hereby certify that the foregoing Complainant's Reply to Respondent's Response to Second 

7 Motion for Decision has been served via facsimile and Certified Mail- Return Receipt 

a Requested this date, to the following: 

9 

10 Honorable Richard C. Goodwin 

l1 Office of Hearings, M-20 

J.> 1200 New Jersey Avenue, S.E. 

l3 Washington, D.C. 20590 

14 PAX: (202) 366-7536 

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Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

FAX: (202) 493-5020 

Gregory G. Skordas 

Skordas, Caston" & Hyde, LLC 

341 South Main Street, Suite 303 

Salt Lake City, UT 84111 

FAX: (801) 531-8885 

Dated this 1st day ofMarch, 2012. 

PAGE 05/05 

Reply to Respondent's Response to 2nd Motion for Decision 

Joseph Moesser- FAA-2011-1286 

2010NM720001 

}lf.FflR'EY M. l-IA»ER, FAA ATIORNEY 

TEL: (425) 227-2161; FAX: (425) 2Z7-l007 

Page 5 ofS