03/01/2012 13:31 4252271007 ANM7
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### FACSIMILE MESSAGE

FEDERAL AVJATION ADMINISTRATION OFFICE OF REGIONAL COUNSEL ANM-7 1601 LIND AVENUE S.W. RENTON, W

### ASHINGl'ON 98057 PAGE 01/05



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### in error, please immediately notifY us by telephone at 425-227-2007.

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### DATE: 

### TO: FAX NO.: PHONE NO.: RE:. March 1, 2012 Docket ClerkAGC-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 DECISION03/01/2012 13:31 4252271007 ANM7 PAGE 02/05

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### r'· 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 JEFFREYM. HARPER FAAOFFICE OF REGIONAL COUNSEL 160 1LIND AVENUE SOUTHWEST RENTON, WASHING1DN 98057 TELEPHONE: {425) 227-2161 FACSIMILE: (425) 227·1007

### UNITED STATES OFAMERICA DEPARTMENT OF TRANSPORTATION

. OFFICE OF HEARINGS

Inthe :Matter of: Joseph Moesser 

### WASHINGTON, D.C.

FAACaseNo. 2010NM72000l DMS Nq. FAA-201H286
REPLY TO RESPONDENT'S RESPONSE TO SECOND MOTION FORDECISION Judge Richard C. Goodwin

To: Judge Goodwin: 

### REPLY 'tO RESPONDENT'S RESPONSE 'tO SECOND MOTION FOR DECISION Complainant flied a Second Motion for Decision onFebruaty 14, 20 12; Respondent filed his response on February 27, 2012. 

### Argument

Collateral estoppel is a result ofRespondent's guiltyplea, not the U.S. District CourtJudge'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 Motionto 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'sjudgment convicting Respondent of 18 U.S.C. § 

### I**03~(a)(**

### 4), For the reasons discussed in Complainant's Motion for Decision, Pages 5-7, thatjudgmentprecludes Respondent from claiming that the Triple Seven Powder was anything otherthan prohibited from carriage in checkedbaggage.

Even 

### ifissue 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). SecondMotion for Decision, Page 7-8, line**4~**

Reply to Respondcnes Response: to 2nd Motion for Decision Joseph Moesser-'FAA-2011- 1286 201 ONM72000 1 .Page I of5 JEFFREYM. HARPER, FAAArrORNoY TEL: (425) 227-2161; FAX: (425) 227-100703/01/2012 13:31 4252271007**ANI~7** PAGE 03/05

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### e 9 10 ll 12 13 H lS J.6 17 18 lS 20 21 22 23 24 25 26 27 28 29 30 3l 32 ' 33 34 35 36 37 38**3~ ~0**  1J. 42 43 H 45 46 47 48 49 

### so 51 52 53 Contrary to Respondent's repeated assertions, the Department of Transportation has defined "small arms ammunition;" that definition does not encompass the items Respondent offeredfor transportation. Ignorance ofthe 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 

### HMRfails to provide relevant definitions does not bootstrap 

### a constitutional vagueness claim into being. While "laws [must] give the person ofordinary intelligence a reasonable opportunity to knowwhat 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 ofBlongXiong, FAA Docket No. CP05NE0004, Order served April 7, 2006 at 2; 

### In the Matter of OffshoreAir, FAA Order No. 2001-4, 7 (May 15, 2001).

In making hisvagueness claim, Respondent claims that DOT has not defined "small arms ammunition for personal use." While the District Courtjudgeruled that way, Complainant was not a party to that case, and, unlike Respondent, is notprecluded 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 ofcases discussing vagueness claims, all ofwhich are irrelevant here because, contrary to Respondent's assertions, the relevant tenus are defined.
Respondent concedesthat one (1) ofthe materials he secreted 

### in his luggage is smokeless powder for small arms (Response to Complainant's Motion for Decision, Pages 4, 6, and 10) -butfails to address 49 C.P.R. 

### § 172.101, (table entry for "Smokelesspowder for small arms, which prohibits carriage on passenger aircraft) and 

### § 173.171 (discussingthe 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 oftransportation). Whetherthe powder was carried in a container designed for the purposes ofcarrying smokelesspowder 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, withth.e caveat th_at that deflnition should not be used for purposes ofclassification 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) 227-100703/01/2012 13:31 4252271007 ANM7 PAGE 04/05

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### a 9 10 11 :1.2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32- 33 34 35 36 37 J6 39 40 41 42 43 44 45 46 47 48 49 

### so 51 52 53 Respondent's vagueness argrunent must fail, as it is based onthe 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 prohibitedand regulated material for transportation. Respondent's "vagueness" arguments should be recognized for what they are- a posthoc: e·ffort tojustify his knowing, willful, and deliberate violations oftheHazardous Materials Regulations. Respondent's conduct on October 1, 2009 demonstrated that the Hazardous Materials Regulations wr:-re not in any way vague and thatRespondent was aware theyprohibited his efforts to ship the primers and powder. Respondent offered a bag containing two (2) boxes ofshotgun shells to DeltaAirlines for transportation. Complaint Paragraph II.7,Answer Paragraph II.7. The top row ofshells in each box appeared to be new, unexpended shells with intactprimers. ComplaintParagraph U.l0, Answer ParagraphJI.l0. All shells under this top row, however, were expended rounds which contained eitherprohibited smokeless powder orregulated primers. The manner ofpackaging demonstrated a deliberate effort by the Respondent to conceal the true nature ofhis ammunition. The reloaded shells weren't onthe top row, where they couldbe easily observed ifinspected; they were instead disguised by thetop row offactory newammunition.
Respondent had a "second chance" to abide by the Hazardous Materials Regulations. He had been stopped earlier at the SaltLake City airport, Utah, byfederal agents. Complaint Paragraph 

### IL3, Answer Paragraph 

### II.3. He was asked ifhis luggage contained any ammunition. Complaint Paragraph TI.3, AnswerParagraph II.3. Inresponse, Respondent produced a boJ< from his luggage which contained a container ofHodgdonTriple Seven Pellets and a container ofCCI 209M Shotshell primers. Complaint Paragraph 

### 11.4; Answer Paragraph II.4. He was specifically informed the Hodgdon Triple SevenPellets 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 andthe primers regulated, he was asked if he had any otherprohibited material. ComplaintParagraphs 6, AnswerParagraph

### TL6. He indicated he did not. Complaint Paragraph 5, Answer Paragraph

### II.S. Considering Respondent's luggage also includedpowder and primers 

### in their original containers, his packaging ofthose

same substances 

### inthe 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) 22H00703/01/2012 13:31 4252271007 ANM7 PAGE 05/05

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### As applied to this case, Respondent by 

### his actions demonstrated thatthe Hazardous Materials Regulations are notvague -Respondenttook affirmative steps to disguise his violations fTom the authorities, indicatingheknew his conduct was prohibited.



### Conclusion
Forthe 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 ofmaterialfact; the sanction sought 

### is appropriate under the facts.
DATED 

### this lst day ofMarch, 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

l 2 3 4 5 4252271007 ANM7



### CERTIFICATE OF SERVICE

6 I hereby certifythat the foregoingComplainant's Reply to Respondent's Response to Second
7 Motion for Decision has been served via facsimile and CertifiedMail- 

### Return Receipt a Requested this date, to the following: 9 10 Honorable Richard C. Goodwin l1 Office ofHearings, M-20 J.> 1200New JerseyAvenue, S.E. l3 Washington, D.C. 20590 14 PAX: (202) 366-7536 15 lG l? 18**l~ ~0**  21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 35 37 38 39 40**~:I.** 42 43 44 45 46 47 4S 49 50 51 52 53 Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000 Federal AviationAdministration 800 IndependenceAvenue SW Washington, DC 20591 FAX: (202) 493-5020 Gregory G. Skordas Skordas, Caston" & Hyde,

### LLC 341 SouthMain 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'EYM. l-IA»ER, FAA ATIORNEY TEL: (425) 227-2161; FAX: (425) 2Z7-l007 Page 5 ofS