>ts 

Gre-ory G. Skonlas (#3865) 

SKORDAS, CASTON & HYDE, LLC ^^EB 2 8 2012 

341 So. Main Street, Suite 303 HEARfN G DOCKP T /^SHiAR-S P 2M 1. 

SaltLakeCiW, UT84I]| - *.^-^ixuTIV3 UV/WPVE I 

Telephone: (801)531-7444 

Facsimile: {801)531-8885 

Attoniev for Defendant 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

roms ^c^i - ii8<o 

In the Matter of: 

Joseph Moesscr 

RESPONSE TO 

COMPLAINANT'S SECOND 

MOTION FOR DECISION 

FAA DOCKET CP Unassigncd 

FAA Case No. 2010NM720001 

Judge Richard C. Goodwin 

The Respondent, Joseph Moesser, by and through his attorney, Gregory G. Skordas, 

hereby submits the following Response to Complainant's Second Motion for Decision. 

(. Coniplninaiit Misundcrstiiiids The Nature Of The Criminal 

Procccdiii<»s And Misapplies The Doctiinc Of Issue Preclusion. 

Rcspondenrs plea of guilty to a misdcmcnnor information as a resuh of pica negotiations 

with t!ie government is akin to a consent agreement and was not intended to preclude any further 

litigation. Moreover, not all of the issues raised by Respondent in the criminal case were decided 

by the court. The District Court deferred ruling on Respondent's vagueness claim. 

A. The 'frial Court's Parlial Ruliim On Respondent's Motion To Dismiss Was Not Essential To The Judgment. 

1 
"In most circumstances, it is recognized that consent agreements ordinarily are intended 

to preclude any ftirther litigation on the claim presented but are not intendetl to preclude further 

litigation on any of the issues presented. Thus consent judgments ordinarily support claim 

preclusion but not issue preclusion." IS Charles Alan IVrighi Arthur R. Miller, ct Eilwanl //. 

Cooper. Federal Fradice and Procedure § 4443. pp. 3S4-3S5 (1981). This differentiation is 

grounded in basic res judicata doctrine. It is the general njlcthat issue jircclusion attaches only 

"[\v]hen an issue of fact or law is actually litigated and determined by a valid and (inal 

judgment, and the determination is essential to the judgment." Restatement (Second) of 

Judgments i? 27, p. 250 (1982). See also Arizona v. California, 530 U.S. at 414, 120 S.Ct. 

2304. ("an issue of fact or law is actually litigated and detcmiined by a valid and final 

judgment, and thedetennination is essential to thejtidgnient.") 

In the criniin^il case, Respondent Hied a motion to dismiss the original felony charges. He 

raised the same legal arguments asserted in this proceeding. The trial court ruled on all but one 

of the defenses raised by the Respondent. However, that ruling was not essential to the final 

judgment. The court's ruh'ng did not lake (he place of a judgment, which can only be had either 

by a plea of guilty or an adjudication of guilt by the trier of fact. The court's ruling simply 

declined to dismiss the charges prior to trial as a matter of law. The luling shaped how the jury 

would be instructed as to the law in the event of a trial. But at that juncture, the Respondent still 

had the right to put the government to its proof at trial. Respondent's pica is more properly 

understood as an admission of facts and a waiver of any legal issues that had been raised in 
previous hearings. By waiving his right to trial, he also waived his right to appeal the trial 

court's ruling on his motion to dismiss before (he Tenth Circuit. Suited anolher way. 

Respondent agreed to a compromise with the government, he waived his right to seek a ilnal 

determination of the legal and factual issues by the finder of fact and his appeal of right in 

exchange for a dismissal of the felony Indictment. 

Rt^spondent's plea of guilty is in essence a stipulation to the facts and the 

application of those facts to the law. "A stipulation or admission may he binding 

in later stages of a continuing proceeding. But issue preclusion ordinarily does not 

attach unless it is clearly shown that the parties intended that the issue be 

foreclosed in other litigation. " ^.S'. v. Boiefuhr, 309 F.3d 1263 (lO"' Cir. 2002) 

(internal quotations omitted.) 

B. The Trial Court Did Not Rule On Respondent's Vagueness Claim. 

Even if this Court dctemiines that Respondent is precluded ft-oni litigating the 

issue of whether the material he offered for transportation was prohibited hazardous 

material, liis claim that the applicable regulations are unconstitutionally vague still 

remains. The District Court judge ruled that DOT's regulations do not provide a 

definition of the exemption for small anns ammunition for personal use. (see pg. 10 

Attachment A). The court noted that most other exceptions, for example curling irons, 

are well defined. Though the court declined to rely upon in pari materia to define the 

tenii consistent with the ATF regulations, it reser\'cd ruling on the question of whether 

the lack of a DOT definition of small arms ammunition makes the regulations 

unconstitutionally vague, (see pg. 29 Attachment A) 
II. The Materials Respondent Possessed Fall Under the Exemption 

for Small Arms Amnnnition. 

The DOT has jurisdiction to enact rules and regulations under of 49 U.S.C. ij 46505(b)(3) 

and 49 U.S.C. § 46312. The ATF has jurisdiction to enact rules and regulations under IS U.S.C. 

v? 844. See 1S U.S.C. ^^ 847. However, the DOT and ATF prohibitions against travel with 

hazardous materials have specific exceptions for small arms ammunition. 

Under 1S U.S.C. vi; 844(g)(2), Congress included an exception for ammunition to the 

prohibition against possessing an explosive in an airport under vi; S44(g)(!), cxplaim'ng that: 

"[t]he provisions of this subsection shall not be applicable to . . . the possession of ammunition 

(as that term is defined in regulations issued pursuant to this chapter [i.e., chapter 40]) in an 

aii7X>rt . . . if such ammunition is either in checked baggage or in a closed container." The ATF 

has defined "ammunition" under chapter 40 as "small arms ammunition or cartridge cases, 

primers, bullets, and smokeless propellauts designed for use in small arms, including percussion 

caps, and 3/32 inch and other external burning pyrotechnic hobby fuses. The term does not 

include black powder." 27C.F.R. § 555.11 (emphasis added). 

The DOT has included a similar exception for ammunition to its prohibitions. C.F.R. § 

175.10(a)(8) explains that "small arms ammunition" is exempt from the restrictions of subpart C 

(49 C.F.R. § § I7MS5): -'This subchapter does not apply to the following hazardous materials 

when carried by aircraft passengers .. . (8) small arms ammunition fur personal use carried hv a 

. . . passenger in checked baggage only if packed in boxes or other packaging specifically 

designed to cany small amounts of ammunition." 
Like the ATF exception in 18 U.S.C. ^^ S44(gj(2), the DOT created an exception to 

the general prohibition for small amis ammunition in 49 C.F.R. § 175.10(a). However, 

unlike the ATF regulation in C.F.R. § 555.1 I, the DOT has not defined "ammunition," either 

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 aware of a/I previous statutes on tiie same 

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

Fillnuuu 162 F.3d 1055, 1058 (10th Cir. 1998) (construing 18 U.S.C. § 842(i) and 18 U.S.C. 

§ 922(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 tenii); United 

Felecommunications, Inc. v. Commi.ssioner, 589 F.2d 1383. 1390 (10th Cir. 1978) (holding 

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

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

U.S.C. vj 844(g)(r) share the same subject matter: prohibiting hazardous material during 

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

from the general prohibition against explosives. Cf 49 C.F.R. § 175.10(a); 27 C.F.R. vj 

555.11. The key difference between the two regulations is that the .'\TF defined 

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

C.F.R. § 555.11 and the DOT provided no definition of "small arms ammunition." Thus, the 
smokeless powder for small arfns is "small arms ammunition" within the meaning of 49 

C.F.R. ij 175.10(a) and exempt fi-om the prohibition in 49 U.S.C. i?46505(b)(3). 

In this ease, both the plain meaning and the legislative histoiy behind § S44(g)(2) 

demonstrate that the lenn "smokeless propellanl designed for use in small amis" includes the 

smokeless powder Respondent canied for use in his muzzle loader. See iiingham. Ltd. v. United 

Slates, 5^S F. Supp. 987, 990 (D.C. Ga. 1982) (noting that the legislative histoiy behind §844 

and § 845 suggests Congress intended to exempt conventional sporting ammunition from 

prohibition). Because Respondent was allegedly eanying smokeless powder for small amis in 

his checked baggage, and in a container designed for that puq)ose, his actions do not come within 

prohibitions under IS U.S.C. ? 844(g)(1). 

HI. DOT'S failure to provide a definition fur small arms animuniHon renders 

it's regulations too vague to provide adequate notice that the law 

prohibits placinj; smokeless powder for small arms in checked luggage. 

Courts have consistently refused to impose civil or criminal liability when the underiying 

statute or regulation either "forbids or requires the doing of an act in tertns so vague that men of 

common intelligence must necessarily guess at its meaning and differ as to its application." 

Lanier, 520 U.S. at 266-267 (1997); United States v. Councilman, 41 8 F.3d 67, 84 (1 st Cir. 

2005). The U.S. Supreme Court held that, because people are "free to steer between lawful and 

unlawful conduct," courts "insist that laws give the person of ordinarx' intelligence a reasonable 

opportunity to know what is prohibited, so that he may act accordingly." Groyned \'. Rockford, 

408 U.S. 104, 108(1972). To dctertiiine whether a statute is vague, "a court must consider both 

6 
whether it provides notice to the public and whether it adequately curtails arbitrary enforcement." 

United States v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003). 

In General Flee. Co. v. United States Fnv't i'rot. Agcney, the D.C. Circuit Court of 

Appeals found that the Environme/ital Protection Agency could not fine General Electric for 

distilling a solvent because the regulation was too vague to provide adequate notice that 

distillation was an unapproved means of disposal. 53 F.3d 1324, 1334 (D.C, Cir. 1995). Because 

"the regulations and other policy slalemenls were unclear, . . . the petitioner's inteiprctation was 

reasonable, and . . . the agency itself struggle[d] to provide a definitive readingof the rcgulatoiy 

requirements," the agency had not provided the notice that the due process clause required. Id. 

SJmilariy, the Si.xth Circuit Court of Appeals held in Springpehi Armo/y. Inc. v. Ci/v of 

Columbus that the wording of a city ordinance banning 46 specific firearms and "other models by 

the same manufacturer with the same action design that have slight modifications or 

enhancements'" was unconstitutionally vague. 29 F.3d 250, 251 (6th Cir. 1994). "Nothing in the 

ordinance provides sufficient infomiation to enable a person of average intelligence to dctemiine 

whether a weapon they wish to purchase has a design histoiy of the sort which would bring it 

within this ordinance's coverage.'" Id. at 253. 

DOT and ATF regulations contain exceptions for smokeless powder for small arms in 

cheeked baggage. For this Court to find that these exceptions do not apply to Respondent, it 

must first constme the statutes and regulations in a way that inverts their plain and obvious 

meaning. If, for example, the Coin't decides that the undefined lemi "small arms ammunition" in 

7 
the DOT regulations is somehow different from the definition of "ammunition" as used in the 

ATF regulations (which includes smokeless powder for use in small anns), then the term 

becomes vague to such a degree that it cannot be enforced. As with the ordinance at issue in 

Springfield Armory, nothing in tlic statutes or regulations provides sufficient information to 

enable a person of reasonable intelligence to detcnnine wlictlier placing smokeless powder for 

small arms in checked baggage violates the law. In fact, a literal reading of the two statutes leads 

to the conclusion that an airiine passenger can legally carry smokeless powder for small amis in 

checked baggage at an airport, but be held criminally liable for attempting to place that checked 

baggage onto an airplane. 

As with the challenged regulations in General Elec, neither the regulations nor any 

policy statements indicate that the law prohibits the "smokeless powder for small amis" at issue 

in this ease. For this ica.son, they have not provided the notice that the due process clause 

requires. 

Fhe second clement of a court's review of a vagueness challenge is whether the statute or 

regulation adequately curtails arbitrary enforcement. The guidelines under Title I S and 49 do not 

give "reasonably clear guidelines'" to follow because the DOT has not defined small arms 

ammunition even though it, along with the ATF, has created exceptions for ammunition from the 

general ban on explosives in an airport or on an airplane. 

The fair warning doctrine "bars courts from applying a novel eonstrtiction of a criminal 

Jitatute to conduct that neither the statute nor any prior judicial decision has fairiy disclosed to be 
wiUiin its scope." iMuier. 520 U.S. at 266. This doctrine "bars unforeseeable and retroactive 

judicial expansion of narrow and prcci.se statutory laiiguage." United States v. I-Jnssein. 351 F.3d 

9, 14 (citation omitted); accord United Stales v. ikdi}il. 201 F.3d 928, 935 (doctrine only applies 

if judicial intcr]3retations "amoimt to an unpredictable shift in the law"). 

in Fabi Construction Co. v. Sec. of Labor, the D.C. Circuit Court of Appeals vacated the 

fines that the Occupational Safely and Health Review Commission had imposed based on a novel 

definition of "formwork." 508 F.3d 1077 (D.C. Cir. 2007). The agency announced the definition 

for the first lime in the context of the ease. Id. at 1088. Because the agency had not provided 

any prior notice that the law prohibited ihc defendant's conduct, the Cotul found that the 

defendant could not have ascertained the standards the agency expected them to meet, even after 

searching through the regulations in good faith. Id. at 1089. The Fourth Circuit Court of 

Appeals reached a similar conclusion in United States v. Iloeclisi-Cehinese Corp. 12S F.3d 216, 

226 (4th Cir. 1997). In that ease, the court addressed a challenge to the EPA's line levied against 

General Electric for an alleged emissions violation. During that ease, the EPA attempted to 

clarify, for the first time, that "'use'' of ben/cne included recycling as well as consumption. Id. at 

220. The court held thai "in view of the absence of any explicit directives .. . or any instmctions 

in any other portion of the rcgidalions" of the EPA's interpretation, the Government had not 

provided the notice that the due process clause requires. Id. 

Like the regulation at issue in Fabi Construction, the Goveniment has not provided the 

notice required to support the conviction it seeks. A search of the statutes, regulations, agency 
statements, and the published adjudications lacks any indication that the exception for 

•'ammunition" in the ATF regulations and the exception for "small arms ammunition"' in the 

DOT regulations do not include smokeless powder for small arms. Nor is there any indication 

that the definition of "small arms ammunition'" under the DOT rcgulalions somehow does not 

include smokeless propellants designed for use in small anns. as do the ATF regulations. 

DATED this ^ _ day of Febmary, 2012. 

SKORDAS, CASTON .S: HYDE, LLC 

/ ; 

y , ^ . "7 f 

Gregory G. Skordas ^ 

10 
CERTIFfCATE OF SERV ICE 

I hereby certify that on the " ^ ' day of Februaiy. 2012,1 served a true and correct copy 

of the foregoing RESPONSE TO COMPLAINANT'S SECOND MOTION FOR DECISION, via 

facsimile and by United States first class mail, postage pre-paid, to the following: 

Federal Aviation .Administration (Original & one copy) 

800 Independence Ave. SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

Facsimile 202.493.5142 

Jeffrey M Harper 

FAA Office of Regional Counsel 

1601 Lind Ave., SW 

Ronton, WA 98057 

Facsimile: 425.227.1007 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Dept. of Tr:insporta(ion 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

Facsimile 202.366.7536 

Qy^^ o:^^^.^^^^ 

Skordas, Caston 8c Hyde, LLC 

11 
Attachment A 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 1 of 29 

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH 

CENTRAL DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

vs. 

JOSEPH PETER MOESSER, 

Defendant. 

MEMORANDUM DECISION AND 

ORDER DENYING IN PART AND 

DEFERRING RULING ON THE 

REMAINING ISSUES RAISED IN 

DEFENDANT'S MOTION TO 

DISMISS THE SUPERSEDING 

INDICTMENT 

CascNo. 2:09-CR-842TS 

I. INTRODUCTION 

This matter is before the Court on Defendant's Motion to Dismiss the Superseding 

Indictment.' Defendant argues that dismissal of the Superseding Indictment is appropriate 

because the hazardous materials regulations governing the transportation of smokeless powder 

and primers on passenger aircraft fail to define "small amis ammunition for personal use"' which 

is an exception in the DOT regulations at 49 C.F.R. ij 175.10(a)(S). To provide a definition. 

'Docket No. 42. 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 2 of 29 

Defendant argues that the Court should inteiprct the small arms ammunition exception in pari 

materia with the ammunition exception to the ATF regulations regarding possessing explosives 

in airports found at 27 C.F.R. § 555.1 I. Additionally, Defendant argues for dismissal on grounds 

of facial vagueness, as-applied vagueness, and lenity. 

As explained below, the Court denies the Motion regarding the in pari materia and facial 

vagueness arguments. The Court finds there is good cause to defer ruling on the vagueness as 

applied and lenity arguments until during or afier trial when the facts of the case are more clear.' 

The Court may request additional briefing on the matter at that time. 

For purposes of this Order", the Cour1 considers all of the allegations of the Superseding 

hidictmenr' as true. In considering a motion lo dismiss an indictment it is only proper to consider 

facts not contained in the indictment where those additional facts are undisputed and the 

government does not object to their consideration.^ The government objects to considciation of 

facts outside of the Superseding Indictment. Consequently, the Court may only consider the facts 

as described within the four comers of the Superseding Indictment.^ 

II. B.^CICGROUND 

On October 1, 2009, Defendant entered Salt Lake Inteniational Airport en route to South 

Africa. Inside a duffie bag. Defendant carried a metal box that contained (1) an "unopened. 

-FED. R. CRIM.P. 12(d). 

'Docket No. 36. 

'UnitedStales v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994). 

'UnitedStales v. Welch, 327 F.3d 1081. 1090 (10th Cir. 2003). 

1 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 3 of 29 

commercially packaged container of'Hodgdon friplc Seven Pellets,"" which are pellets of 

smokeless powder used in muzzleloader rifies; (2) an opened, partially empty package of 

Hodgdon Triple Seven Pellets; (3) an opened, partially empty commercially packaged container 

of "CCI 209M Shotshcll Primers'^ and (4) two full boxes of "25-count Winchester XX 12 gauge 

shotgun shells."" In both boxes of shotgun shells, the top row of shells appeared to be 

commercially produced, new. unexpended shells with their primers intact. Flowcver. the 

remaining forty shells had expended primers and had been refilled with other materials—thirtyeight contained Hodgdon Triple Seven Pellets and the other two shell casings contained multiple 

CCI 209M Shotshcll Primers.' 

Prior to checking his luggage, Defendant was approached by law enforcement agents 

from the FBI." TSA.'' and FAA'" and asked if he had any ammunition in his checked or carr^-on 

luggage. Defendant agreed to a search of his luggage. In the course of this initial search, the 

agents informed Defendant that Triple Seven Pellets were not peniiitted on passenger aircraft. 

They further stated that the primers were a hazardous material and were not properly prepared for 

transportation. Defendant surrendered the pellets and primers. The officers next opened the 

boxes of shotgun shells and visually inspected the top row of shells. Upon seeing the shells were 

^•Docket No. 36, at 2. 

'Id. at 4. 

^U.S. Department of Justice, Federal Bureair of Investigation. 

"U.S. Department of Justice, Tiansportatioii Security Administration. 

'"U.S. Department of Homeland Security, Federal Aviation Administration. 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 4 of 29 

new shells, the agents did not scrzc the shotgun shells. They asked Defendant if he had any other 

"prohibited items or "black powder' to declare or disclose, and [Defendant] stated that he did 

not."" Defendant then placed the shotgun shells back in the metal box, returned the box lo his 

luggage, proceeded to the check-in counter, and checked his luggage containing the metal box 

which contained the shotgun shells.'" Latcr,.thc luggage triggered an alarm that prompted a TSA 

officer to manirally inspect the container and its contents. At that time it was discovered that the 

lower levels of shells had been previously fired and refilled with either Hodgdon Triple Seven 

Pellets or CCI 209M Shotshcll Primers. 

Defendant was indicted on November 4, 2009. On May 12, 2010, Defendant filed a 

Motion to Dismiss the Indictment, and on June 30. 2010, the goveniment filed a Superseding 

Indictment containing five coirnts of criminal activity. Defendant is charged with one count of 

delivering, for purposes of transportation in air commerce, the hazardorrs material Hogdgon 

Triple Seven Pellets in violation of 49 C.F.R. iji^ 172.101. 173.27(b). and 175.1(b)(2), and 49 

U.S.C. § 46312; one count of delivering, for carriage on passenger aircraft, improperly packaged 

CCI 209 Shotshcll Primers in violation of 49 C.F.R. §§ 172.101, \72.20() et se(/., 172.300 etsec/., 

m.AOOet.Kec/., 173.27(b). 173.62. 175.1(b)(2), and 175.3, and 49 U.S.C. § 463 I 2; one count of 

offering for carriage in checked baggage the hazardous material Hogdgon Triple Seven Pellets in 

violation of 49 C.F.R. i;i; 172.101, 173.27(b), and 175.1(b)(2), and 49 U.S.C. s^ 5124; one count 

of offering for eaniage in checked baggage improperly packaged CCI 209M Shotshcll Primers in 

"Docket No. 36. at 3. 

'-/i/. at 2-3. 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 5 of 29 

vioaltionof49C.F.R. ^§ 172.101, \12.200 et sa/., \12.?>00 et seq.. 172.400 el sec/., 173.27(b), 

173.62. 175.1(b)(2), and 175.3. and 49 U.S.C. ii 5124; and one count of knowingly and willfully 

making false statements to special agents of the FBI. TSA, and F.AA. in violation of 18 U.S.C. -ij 

1001(a)(2). by stating he had no other forbidden items. 

111. DISCUSSION 

The issue before ihe Court is whether the smokeless powder and primers packaged in the 

shotgun shells fall under an exception in the regulations for ""small arms ammunition tor personal 

use" and aie conscqircntly exempted from ihe Department of Transportation ("DOT") rcgirlations 

governing hazardous materials. Defendant argues the DOT legnlations fail to define "small arms 

ammunition for personal use" and that the Court should {I) interpret the DOT small arms 

ammunition exception to have the same meaning as the ATF'' ammunition exception, which 

docs exempt smokeless powder and primers for personal use from the regulations governing 

possession of explosives in airports; (2) find the regulations unconstitutionally vague both on 

their face and as applied; and (3) dismiss the Superseding Indictment due to the rule of lenity. 

As discussed below, the Court denies Defendant's Motion in regards to the adoption of 

the ATF language and the facial vagueness arguments. It defers ruling on the vagueness as 

applied and lenity arguments until the facts of the case arc more clear. 

'U.S. Department of Justice. Bureau of Alcohol, Tobacco, Fircaniis and Explosives. 

5 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 6 of 29 

A. LLGAL STANDARD 

A party may move lo dismiss an indictment under FFD. R. GRIM. P I 2(b)(2).'^ A 

challenge to an indictment generally does not open the door to questioning the strength of the 

govcniment's case or its evidence because the "indictment should be tested .solely on the basis of 

the allegations made on its face, and such allegations arc to be taken as trire."'''^ When reviewing 

a motion to dismiss an indictment, the question is only "whether the allegations in the 

indictment, if true, are sufficient to establish a violation of the charged offense.""^' 

The Court may grant the motion if the motion only addresses a pure question of law.'^ 

However, such dismissals "are the "rare exception.'"'^ This is because dismissal of an indictment 

is only proper when "'undisputed evidence shows that, as a matter of law. the Defendant could 

not have committed the offense for which he was indicted."''' "If contested tacts sunounding the 

commission of the offense would be of any assistance in determining the validity of the motion, 

Rule 12 doesn't authorize its disposition before trial."'" The Tenth Circuit has explained the two 

key justifications for this rule. First, the rule "r"espect[s] the lole of the Jury"; and second, in 

"//(7//, 20 F.3d at 10S6-87. 

'•Id. at 10S7 (citing Russell v. United States, 369 U.S. 749, 763-64 (1962)). 

''hi. 

''See United States v. Pope.6\?> F.3d 1255. 1260 (10th Cir. 2010). 

"A/, (quoting HalL 20 F.3d at 1088; citing United States v. Todd, 446 F.3d 1062, 106S 

(10th Cir. 2006)). 

'Vd. (quoting Todd, 446 F.3d at 1068). 

'"/(/. at 1259 (emphasis in original). 

6 
Case 2;09-cr-00842-TS Document 68 Filed 11/19/10 Page 7 of 29 

some instances, "evidence adduced at trial can provide a "more certain framework' for its 

analysis.'*"' 

B. DEFINITION OF SMALL ARMS AMMUNITION FOR PERSONAL USE 

The United States Code requires that the Secrctaiy of Transportation designate which 

materials arc hazardous and requires that the Secretary create regulations governing the "safety 

aspects, inelirding security, of the transportation" of these materials." The statute stales that 

neither the statute (codified at 49 U.S.C. §§ 5101-5126) nor its corresponding regulations 

prohibit "or regulate the transportation of a fireanii (as defined in section 232 of title 18), or 

ammunition for a firearto, by an individual for personal use . . . ."-' The corresponding DOT 

regulations governing the transportation of hazardous materials are found in the Code oi Federal 

Rcgulalions ("C.F.R.") Title 49. Paris 171 through 180. The issue before the Court is not 

whether smokeless powder and primers are covered by the DOT regulations, but rather if they are 

included in the regulations' small arms ammunition exception. 

/. Pertinent Sections of the DOT Regulations 

The Table of Hazardous Materials and Special Provisions ("Table of Hazardous 

Materials"' or "Table""), located at 49 C.F.R. § 172. lOl. provides an extensive list with 

classifications and other information on all of the hazardous materials covered under the 

regirlations. The Table prohibits the transportation of smokeless powder on passenger aircraft. It 

-'A/. 

--49 U.S.C. §5I03(a)-(b)(l). 

-7^/. i? 51 17(d)(2). 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 8 of 29 

provides four categories, or "shipping names," of smokeless powder and bans thcrn all from 

passenger aircraft."'^ The Table also lists primers as a hazardous material. It provides three 

categories, or "shipping names,"' of cap type primers and another potential shipping name 

applicable in this case, "Cases, cartridges, empty with primer."'-^ Bccau.se primers are listed in 

the Flazardous Materials Table, they may only be offered for transportation in commerce if 

"properly classed, described, packaged, marked, labeled, and in condition for shipment as 

required or authorized by applicable requirements" of the regulations unless an exception 

applies."'^' 

Section 175.10 provides exceptions to the hazardous materials regulations tor aircraft 

passengers.'^ The section states in part: 

(a) This subchapter does not apply to the following hazardous materials when 

carried by aircraft passengers . . . : 

8) Small arms ammunition for personal use carried hy a crewnieniber 

or passenger in checked baggage only, if secirrcly packed in boxes or other 

packagings specifically designed to carry small amounts of ammunition. 

Ammunition clips and magazines must also be securely boxed. This paragraph 

does not apply lo persons traveling under the provisions of 49 CFR 1544.219."'' 

Another section that is relevant to this matter is Jj 173.59. Description of terms for explosives, 

which states in part: 

-'49 C.F.R. $ 172.101. 

''Id. 

~"Id ^ 171.2(e) 

-7r/. § 175.10. 

~'ld. § I 75.10(a)(S) (emphasis added). 

8 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 9 of 29 

For the purpose of this subchapter, a description of the following terms is 

provided for inforination only. They must not be used for purposes of 

classification or to replace proper shipping names prescribed in See. 172.101 of 

this subchapter. 

Ammunition. Generic term related mainly lo articles of military 

application consisting of all types of bombs, grenades, rockets, mines, projectiles 

and other similar devices or contrivances. 

Ammunition, incendiary. .A.mmunition containing an incendiary substance 

which may be a solid, liquid or gel including white phosphorus. Except when the 

composition is an explosive per se. it also contains one or more of ihc following: a 

propelling charge with primer and igniter charge, or a fuze with burster or 

expelling charge. The term inclirdes: Ammunition, incendiary, liquid or gel, with 

burster, expelling charge or propelling charge; Ammunition, incendiary with or 

without birrster, expelling charge or propelling charge; and Ammunition, 

inccndiar)', white phosphorus, with burster, expelling charge or propelling charge. 

Cartridges, small amis. Ammunition consisting of a cartridge case fitted 

with a center or rim fire primer and containing both a propelling charge and solid 

projcctilc(s). They arc designed to be fired in weapons of caliber not larger than 

19.1 mm. Shotgun cartridges of any caliber are included in this description. The 

icrtn excludes: Cartridges, small amis, blank, and some military small arms 

cartridges listed under Cartridges for weapons, inert projectile. 

Powder", smokeless. Substance based on nitrocellulose used as propcllant. 

The tenn includes propellants with a single base (nitrocellulose (NC) alone), those 

with a double base (such as NC and nitroglycerin (NG)) and those with a triple 

base (such as NC/NG/nilroguanidinc). Cast pressed or bag-charges of smokeless 

powder are listed under charges, propelling and charges, propelling for cannon. 

Primers, cap t>pc. Articles consisting of a metal or plastic cap containing 

a small amount of primary explosive mixture that is readily ignited by impact. 

They serve as igniting elements in small anus cartridges and in percussion primers 

for propelling charges.'" 

Neither this section of descriptions, nor any other section of the regulations provide a description 

of small aims ammunition. 

'Id. ^ 173.59. 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 10 of 29 

2. Whether the DOT Regulations Define Small Arms Anunnnition For Personal Use 

As the above regulations show, it is hot clear what the small arms ammunition for 

personal use exception founding; 175.10(a)(8) exempts. Section 175.10(a) provides exceptions 

for numerous items thai may other'U'ise be prohibited on passenger aircraft. Generally, these 

exceptions are well defined. For example, regarding hair curlers the DOT exception stales: 

(6) Hair curlers (cirrling irons) containing a hydrocarbon gas such as 

butane, no more than one per person, in carry-on or checked baggage, 'fhe safely 

cover must be securely fitted over the healing element. Gas refills for such curlers 

are not peiinitted in carry-on or checked baggage.'" 

In contrast, § 175.lO{a)(S) fails to provide a description of small arms ammunition for personal 

use or contextual clues thai would prove helpful in determining if smokeless powder and primers 

for use in muzzleloading rifies arc inclirdcd within the exception. 

The goveniment argues that the DOT regulations, when considered as a whole, do not 

include smokeless powder or primers in the small arms ammunition exception. The Hazardous 

Material Table, irnder "Ammunition, S.A (small amis)," refers the reader lo the tcrtii in the tabic 

"Cartridges for weapons, etc.""'' One of ncariy thirty subcategories of Cartridges for weapons is 

"Cartridges, small arms.'" While the table does not provide a cross reference, the regulations 

provide a description of "Cartridge, small arms'" at v^ I 73.59. which stales: 

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

and containing both a propelling charge and solid projectile(s). They are designed 

to be fired in weapons of caliber not larger than 19.1 mm. Shotgun cartridges of 

any caliber arc included in this description. The tcmi excludes: Cartridges, small 

"7^/. § 175.10(a)(6). 

•''Id. § 175.10. 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 11 of 29 

ariiis, blank, and some military small arms cartridges listed under Cartridges for 

weapons, inert projcclilc.'" 

The goveniment argues that, after reaching ihis point in an analysis of the DOT regulations, a 

reader shoirld know that smokeless powder and primers are not included in the small arms 

ammunition for personal use exception. 

The Coirrt disagrees with the covcmment's argument and finds that the rei^ulations lack a 

definition of small anns ammunition. The Court agrees with Defendant that the specific 

regulations goveriiing the transportation of ammunition do not speak to the exception for small 

anns ammunition for personal use. Furthermore, the language the government relics on does not 

define small arms ammunition for personal use. 

The Court also disagrees with the government's alternative argument that, regardless of 

the lack of a clear definition, smokeless powder for use in nuizzleloading rifies is clearly banned 

from passenger airerafi by the Hazardous Materials Table. This argument fails because there is 

no way to reconcile this clear ban with the small ar'ms ammunition exception unless the 

exception provides a definition. Consequently, the Court must address the arguments raised by 

Defendant, namely whether the Court should apply a definition from another agency's regulation 

or whether the Superseding Indictment should be dismissed on vagueness or lenity grounds. 

'-/d. 1^ 173.59. 
Case 2;09-cr-00842-TS Document 68 Filed 11/19/10 Page 12 of 29 

C. IN PARI MATERIA 

In 1970, Congress passed the Organized Crime Control Acl of 1970/^ which is still in 

effect."'^ Part of this law regulated explosives in airporls. The purpose of the statute is to 

protect interstate and foreign commerce against interference and intenuplion by 

reducing the hazard lo persons and property arising from misuse and unsafe or 

insecure storage of explosive materials. It is not the puiposc of [the statute] to 

place any undue or unnecessary Federal restrictions or burdens on law-abiding 

citizens with respect lo the acquisition, possession, storage, or use of explosive 

materials for industrial, mining, agricultural, or other lawful puqioscs, or to 

provide for the imposition by Federal regulations of any procedures or 

rcqirircments other than those reasonably necessary to implement and effectuate 

the provisions of [the slatirte].'^ 

The Organized Crime Control Act specifically slates that possessing ammunition in checked 

baggage in airports was not punishable under the law: 

(1) Except as provided in paragraph (2), whoever possesses an explosive 

in an airport that is subject to the regulatory authority of the Federal Aviation 

Adniinislration . . . shall be imprisoned for not more than five years, or fined 

under this title, or boili. 

(2) The provisions of this subsection shall not be applicable to—(A) the 

possession of amnurnition (as that temi is defined in rcgulalions issued pursuant 

lo this chapter) in an airport that is subject lo the regulatory authority of the 

Federal Aviation Administration if such ammunition is cither in checked baggage 

or in a closed container. . . .'^' 

^•M»ub. L. 91-452. 

^•*18 U.S.C. § 841 et. seq. 

''Pub. L. 91-452 § 1101. 

^'18 U.S.C. § 844(g)(2). 

12 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 13 of 29 

1 he A'fF created regulations, as authorized in the Organized Crime Control Act, to 

supplement and clarify the Acl regarding possession of explosives in air|)or1s.'' The regulations 

include the following definition of ammunition: "Small arms ammunition or cartridge cases. 

primers, bullets, ov smokeless propellants designed for use in small aims, including percussion 

caps, and 3/32 inch and other external burning pyrotechnic hobby frrscs. The term does not 

include black powder."^^ Thirs, inidcr the ATF regulation and its governing statute, an individual 

may enter an airport with smokeless powder and primers as long as these items are located in' 

"checked baggage.'' 

Defendant and Amicus''' aigue that the Court should use the canon of construction in pari 

materia to apply the ATF definition of excepted ammunition to the DOT exception for small 

anns ammunition. 

//; pari materia, meaning in the same matter, is a legal concept that encourages courts, 

when interpreting a vague statute, to look to another statute on the same subicct.^" This canon of 

construction stands for the proposition that '"courts do not interpret slalules in isolation, but in the 

context of the corpus juris of which they arc a part, inchrding later-enacted statutes.""" In Branch 

V. Smith, the U.S. Supreme Court plurality further explained: 

'^18 U.S.C. ^ 842. The statute authorizes the U.S. .Attorney General to create the 

rcgulalions. The ATF is a division under the direction of the Attorney Geneial. 

''27 C.F.R. ;j 555.11 (emphasis added). 

'''The National Rifie Association. 

''BL.ACK'S LAW DICTIONARY 794 (7th ed. 1999). 

"Branch v. Smith. 538 U.S. 254, 281 (2003) (Scalia, J., plurality). 

13 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 14 of 29 

The correct rule of inteiprctation is, that if diverse statutes relate to the same 

thing, they ought all to be taken into consideration in construing any one of 

them. . . . If a thing contained in a subsequent statute, be within the reason of a 

former statute, it shall be taken lo be within the meaning of that statirte . . . ; and if 

it can be gathered from a subsequent statute in pari materia., what meaning the 

legislature attached to the words of a former statute, they will amount to a 

legislative declaration of its meaning, and will govern the construction of the first 

statute.'^' 

The policy supporting in pari materia is that "a legislature does not deliberately enact 

inconsistent provisions, when it is cognizant of them both, without expressly recognizing the 

inconsistency.•"•'•' In other words, the canon is based on the idea that a lawmaking body will not 

pass a law that confiicls with a prior law it has passed without recognizing that contradiction. 

As noted, it is Defendant's and Amicus' position that, in the absence of a definition in the 

DOT regulations for "small arms ammunition,"' the Court should rely on in pari materia to define 

that term consistent with the ATF regulation. The Court is concenied with the reasonabless of 

relying on /// /)ari materia to construe regulations from separate and distinct federal regulatory 

bodies. At the hearing on the Motion to Dismiss, the Court gave the parties the opportunity to 

submit additional briefing on the narrow question of whether there is case law to support 

construing regulations trom different agencies /// pari materia.'^' Defendant and Amicus 

submitted briefs. The government did not, which is unfortunate as it may have proved helpful to 

the Court. 

"""7<y. (quoting United Slates v. Freeman, 3 How. 556, 564-65 (1845)). 

' 7 B Sutherland Slatirtory Consti-irelion 51:1 (7th ed. 2010 (WL updated)). 

•"Docket No. 64. 

14 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 15 of 29 

While the briefs of Defendant and Amicus make excellent arguments, there are only two 

cases provided that directly support construing the regulations in pari materia: United Stales v. 

Bioeie, a 1990 case from a district court in Maryland,"'^ and United States v. Olesen, a 1961 case 

from a district court in California.""^' 

In Bioeie, the defendant was charged with violating 50 C.F.R. § 27.83—a regulation 

promulgated by the Fish and Wildlife Service, a bureau in the Department of the Interior—which 

prohibits '""any act of indecency or disorderly conduct as defined by State or local laws"" on a 

national wildlife refuge.^' The local county had outlawed nudity in public, and Biocic was 

charged under 50 C.F.R. § 27.83 for sunbathing partially mrde. Biocic argued that the regulation 

did "not comprehend prrblic nudity as defined" by the local ordinance."*^ In an extremely brief 

opinion the couil rejected this argument and held: 

Certainly, nudity in public is comprehended within the common meaning of the 

term "indecency," and the nudity need not involve an accompanying act of 

obscenity to be indecent. Rather, it has been held that intentional nudity in a public 

area of a federal reservation falls within the definition of "indecency"" in a 

regulation that is in pari materia with the one at issue hcic.'^" 

•"•730 F. Supp. 1364 (D.Md. 1990). 

•"•196F. Supp. 688 (S.D.Cal. 1961). 

''Biocic, 730 F. Supp. at 1365 (quoting 50 C.F.R. § 27.83 (1988)). 

''Id 

"'Id. (citing United Stales v. Hymans, 463 F.2d 615 (10th Cir. 1972)). 

15 
Cas e 2:09-cr-00842-TS Documen t 68 Filed 11/19/10 Page 16 of 29 

The court then cited the case o f United Stales v. Hymans.^'* It did not analyze Hymans or provide 

a citation to the regulation that it found to be in pari materia, 36 C.F.R. § 251.93. 

In Hymans, the defendants were charged with violating the Department of Agriculture 

regulation prohibiting ''indecent conduct" after sunbathing nude in a national forest.^' The area 

was posted with signs prohibiting public nudity and was near a pirblic campground.^' The 

defendants challenged whether their actions constituted "indecent conduct" under the Agriculture 

regulation.' ' The court held that it was "abundantly clear. . . that the type o f public nudity with 

which we are lier'c conccr'ned is indeed a for'm o f indecent conduct and comes well within the 

definition of such.""''^ 

These cases differ from the matter before the Court because neither regulation in Biocic 

nor Hymans provided a definition of indecency. Hymas held that public nudity was included in 

the definition o f indecent conduct, and Biocic adopted that definition. Still, the Biocic court's 

use of the term //) pari materia shows that it was applying what it understood to be the current 

definition of the regulation, even if it was derived judicially. Defendant likewise asks this Court 

to apply the current definition of the AT F regulation to the DOT regulation. 

''Hymans, 463 F.2d615. 

'7r/. at6l6 . 

''Id . at 616,619. 

*Vf/. at 618. 

'••/,:/. at 619. 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 17 of 29 

The second case that supports Defendant's argument is Olesen. hi thrs case the 

government charged Olesen with violating a federal regulation that prohibited hunting migratory 

birds in places where feed for the birds was commonly pirt out—the proper term for hunting in 

such areas is baiting.^-^ The federal regulation failed to identify the size of the feeding area from 

which Ocl.scn was forbidden to hunt. Olesen argued that he did not violate the regulation 

because he was more than 200 feel away from the area where feed was commonly put out. and a 

state regulation governing baiting established a standard that no hunting could occur within 200 

feet of where the feed was located. 

The court reasoned that the federal government had failed to define "area" and that the 

state "regulations are reasonable for the protection of game."^'^' It cited a Supreme Court case for 

the proposition that the "Constitution presupposes the continued existence of the states 

functioning in coordination with the national government.""' The court held that the federal 

regulation was //; pari materia lo the state regulation and explained "[wjherc 'area' is defined by 

the Slate legirlation it must be held to have been adopted by the Secretary of Interior where he 

has continued the federal regulation with knowledge of the existence of the slate regulation.""^ 

Thus, the Olesen court used in pari materia to apply a definition from a slate regtrlation 

to a federal regulation. While this is not what Defendant seeks, it docs support his argument that 

'M95 F. Supp. at 689. 

'"Id. at 690. 

•Id. at 691 (quoting Penn Dairies. Inc. v. Milk Control Comm n,3\H U.S. 261 (1943)) 

(intcr"nal quotation marks omitted). 

''Id at 690-91. 

17 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 18 of 29 

there is precedent for courts intcr|ireiing rcgirlations //; pari materia even if created by different 

rulemaking bodies. 

The Cour1 finds that the other cases cited by Defendant arc not on point. In several of the 

cases cited by Defendant and Amicus the issue was statutory interpretation—not r'cgulator-y 

interpictation after Congress had delegated authority for ihc promulgation of the regulations. In 

the matter before the Court. Congress delegated to both the ATF (Attorney General) and the 

DOT (Secretary of Transportation) authority to create regulatory schemes governing the 

possession of explosives in airports"'' and transportation of hazardoirs materials respectively."" 

The regulations, thus, create the legal standard, rather than merely aim to interpret and apply 

statutor>' law. 

Defendant and Amicus make a strong argument that it is absurd for the ATF regulations 

to allow a person to enter an airport with smokeless powder and primers secured in luggage the 

individual intends to check to only then have the DOT regulations classify the powder and 

primers as an unlawful explosive when the luggage is actually checked.^'' However". Defendant 

has failed to show that //; pari materia is an appropriate means to avoid this absurdity. 

''^E.g. 18 U.S.C. § 842(j) ("It shall be unlawful for any person to store any explosive 

material in a manner not in conformity with regulations promulgated by the Attorney General."). 

''""The Secretary [ofTransportation] shall designate material .. . as hazardoirs when the 

Secretar>' determines that transporting the material in commerce . . . may pose an unreasonable 

risk to the health and safety or proper'ty. . . . The Secretary shall prescribe regulations for the safe 

transportation, including security, of hazardous material in intrastate, interstate, and foreign 

commerce." 49 U.S.C. § 5l03(a)-(b). 

^''Docket No. 66, at 4-5; Docket No. 65, at 11. 

18 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 19 of 29 

'I'hcrc are two key differences between the creation of the DO'f and ATF rcgulalions. 

First, the regulations come from two different rule-making bodies, the DOT and ATF. These 

agencies have different spheres of responsibility. Second, the .ATF created its regulations to 

govern possession of explosives in airports while the DOT created its regulations lo govern 

iran.sporlalion of hazardous materials. 

It seems incongruous to apply an ATF definition to a DOT regulation bccairse there is no 

reason to assume the DOT rule-makers were cognizant of the ATF regirlations or that they 

wanted to create a regulatory system fully in line with the ATF regulations. Further, even if 

cognizant of the ATF regulations, it is logical that the DOT could have believed that existing 

ATF regulations on possession of certain items in airports were insufficient to meet the DOT's 

separate responsibility regulating the safe transportation of the same items. Dire to this and the 

sparse case law on point, die Court finds that the doctrine of in pari materia does not apply in the 

instant case. 

D. FACIAL VAGUENESS 

Bccairse the Court has detcmiined thai the DOT regulations do not contain a definition of 

small arms ammunition, it must address whether the lack of this definition makes the regulations 

unconstitutionally vague. Defendant argues that it would be proper for the Court to rule that the 

DOT regulations are vague on their face. However, as discussed below, the rule in the Tenth 

Circuit is that facial vagueness challenges are only proper regarding First Amendment claims. 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 20 of 29 

For a facial vagueness challenge to succeed, a court must find a statiUc would be vague in 

all or nearly all of its applications.*'' If a statute is facially vague, then it is void on its face.""' 

Statutory challenges of vagueness are based on due process pr'inciples.''^ The Tenth Circuit has 

quoted the Supreme Court in slating: 

"It is a basic principle of due process that an enaclnicni is void for vagueness if its 

prohibitions arc not clearly defined. Vague laws offend several important valires. 

First, because we assume that man is free lo steer between lawful and unlawful 

conduct, we insist that laws give the person of ordinary' intelligence a reasonable 

opportunity to know what is prohibited, so that he may acl accordingly. Vague 

laws may trap the innocent by not providing fair warning. Second, if arbitrary and 

discriminatory enforcement is to be prevented, laws must provide explicit 

standards for those who apply ihcm. A vague law irnpeniiissibly delegates basic 

policy matters to policemen, judges, and jirrics t"or resolution on an ad hoc and 

subjective basis, with the attendant dangers of arbitrary and discriminatory 

application.""^'^ 

Thus, vagueness challenges protect the public from unintelligible laws and from arbitrary 

enforcement."'^' Regarding public protection, the Tenth Circuit standard is that " a potential 

'-United Stales v. Stevens, 130 S.Ct. 1577, 1587 (2010); Gonzales v. Carhart, 550 U.S. 

124, 167(2007). 

"-UnitedStates v. Gaudreau, 860 F.2d 357. 361 (lOth Cir. 1989). 

'"UnitedStales v. Reed, 1 14 F.3d 1067. 1069 (lOtli Cir. 1997). 

'•'Id. at 1069-70 (quoting Grayned v. City ofRockJord, 408 U.S. 104, 108-09 (1972)). 

"^'Gonzales, 550 U.S. at 148 ('"As generally stated, the void-for-vagueness doctrine 

requires that a penal statute define the criminal offense with sufieicnt definitencss that ordinary' 

people can understand what conduct is prohibited and in a manner that does not encourage 

arbitrary and discriminatory enforcement.'"' (quoting Kolender v. Lawson, 461 U.S. 352, 357 

(1983); Po.sters W Things. Ltd. v. United States, 511 U.S. 513, 525 (1994))). 

20 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 21 of 29 

defendant must have ."^ome notice or fair warning that the conduct contcmplaied is forbidden by 

the criminal law.'"'" 

The parties dispirte whether the Court may consider a challenge of facial vagueness levied 

against the DOT hazardous materials regulations. The govcr'nment argues that facial vagueness 

challenges may only be raised if the First Amendment is implicated. Defendant argues that facial 

vagueness challenges may be brought if the statute or regulation at issue "threatens to chill 

constitutionally protected conduct" and that his facial challenge is proper because this case deals 

with the Second Amendment right to bear amis.'^'^ Defendant cites two cases to support his 

argument: Lanzetta v. New Jersev, a gang member classification case,*'^ and Colaulti v. Franklin, 

an abortion ease.^" However, neither of these cases provide an accurate siatemenl of the current 

law regarding when facial vagueness challenges arc appropriate. 

Rather than analyze Lanzetta, a 1939 case addressing the vagueness of a New Jersey law 

that classified individuals as gangsters based on prior criminal history and current associations," 

the Court looks to the more recent and somewhat similar case of Chicago v. Morales.'- In 

Morales the Supreme Court held that a Chicago ordinance targeting gang activity made it a crime 

'•''United Stales v. Michel, 446 F.3d I 122. 1135 (10th Cir. 2006) (quoting United States v. 

Protex Indus.. Inc., 874 F.2d 740, 743 (lOth Cir. 1989)). 

'''Docket No. 62. at 5-6. 

""306 U.S. 451 (1939). 

'"439 U.S. 379 (1979). 

"Id. at 452. 

''527 U.S. 41 (1999). 

21 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 22 of 29 

to continue loitering in a group after being ordered by a police officer lo disperse." The decision 

offered no clear rule on the application of facial vagueness claims because the members of the 

Court disagreed as to how to apply a facial vagueness challenge lo the Chicago ordinance. The 

plurality argued for permitting facial vagueness challenges. The concurring opinions limited the 

plurality, birt in different ways. Justice Scalia's dissent challenged the appropriateness of a facial 

vaiiueness challenge.'"' 

The second case Defendant cites is the 1979 case of Colautti v. Franklin.'' Colaulti is 

one of several abortion cases where the Supreme Court allowed a facial vagueness challenge to a 

state law regulating abortions.'" 

While facial vagueness challenges were allowed in cariy abortion cases, two recent cases 

demonstrate a shill in the law. It now appears that the Supreme Court disfavors facial vagueness 

challenges to abortion stalutcs." In Ayotte v. Planned Parenthood of Northern New England,'^ a 

unanimoirs Court reversed a First Circuit decision striking down a New Hampshire statute 

requiring parental notification prior to performing an abortion on a minor. The lower coirrls 

found the law uneonslilulional bccairse it lacked a provision which would pennit abortions 

'•Id. at 47. 

"Id. at 73-98 (Scalia, J., dissenting). 

'-439 U.S. 379(1979). 

'"E.g Doev. Bolton, 4[0\J.S. 179(1973); United Slates v. K(//Vc/;, 402 U.S. 62 (1971). 

"See Gonzales, 550 U.S. at 168 ("Respondents have not demonstrated that the Act, as a 

facial matter, is void for vagueness . . . .'"). 

"546 U.S. 320 (2006). 

77 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 23 of 29 

without notification if a woman's life was endangered." fhe law was challenged by doctors 

seeking a declaratory judgment, so as-applied analysis was not possible. The Court frowned on 

finding a statute unconslitutional on its face because voiding an entire statute is "the most blunt"" 

remedy available regarding constitutional challenges.''" Even though the Court had previously 

declared a similar law unconstitutional,'" it stated that it had not contemplated utilizing a lesser 

remedy.*'" It remanded the case for a detertiiination of whether a mere injunction ordering the 

statute to be enforced only in a constitutional manner'—by not requiring notification if the 

woman's life was in danger—would resolve the issue."" 

Ayotte stands for the proposition that a Court should prefer iirdicial remedies that are less 

intrusive into the lawmaking roles of state and federal legislators over more exlierne remedies.^'' 

It also highlights the Court's shifi away from allowing facial vagueness challenges in abortion 

cases. 

The Supreme Court further demonstrated its disfavor toward facial challenges in abortion 

cases in Gonzales v. Carharl.^^ Carhart involved a facial challeniic asainst the federal Partial 

'Vd. at 324-26. 

•^'7^/. at 330. 

'^Stenberg v. Carhart. 530 U.S. 914 (2000). 

^-Ayotte, 546 U.S. at 330. 

"/f/. at 331-32. 

''Id. at 328-29. 

'-550U.S. 124(2007). 

23 
Case 2;09-cr-00842-TS Document 68 Filed 11/19/10 Page 24 of 29 

Birth Abortion Ban Act of 2003. Af\cr initially holding that the statute was not 

unconstitutionally vague,^'' the Court diseirssed at length whether a facial vagueness challenge 

was appropriate.''' While it is not clear whether this section of the Coirrt's opinion is either an 

alternative holding or merely dicta, it docs offer guidance to lower courts and demonstrates the 

trend of disfavoring facial vagueness challenges outside of a First Amendment context. Justice 

Kennedy, writing for the Court, stated: 

The considerations we have discussed support our further determination 

that these l"acial attacks should not have been entertained in the first instance. In 

these circumstances the proper means to consider' exceptions is by as-applied 

challenge. . . . 

The latitude given facial challenges in the First Amendment context is 

inapplicable here. Broad challenges of this type impose "a heavy burden"' upon 

the parties maintaining the suit. . . . 

As the previous sections of this opinion explain, respondents have not 

demonstrated that the Act would be unconstitutional in a large fraction of relevant 

cases. .. . It is neither our obligation nor within our traditional institutional role to 

resolve questions of constitutionality with respect to each potential situation that 

might develop. '"[IJt would indeed be undesirable for this Courl to consider every 

conceivable situation which might possibly arise in the application of complex 

and comprehensive legislation." For this reason, '"[ajs-applicd challenges are the 

basic building blocks of constitutional adjudication."^'' 

In sum. while the Sirpicrnc Court has not expressly overturned its prior rule permitting 

facial vagueness claims outside of a First Amendment context, it is clear that since Justice 

Scalia's in-depth discussion of the issue in his Morales dissent, the Courl has shified away from 

"•Id at 147. 

"W. at 167-68. 

Id. (citations omitted) (alterations in original). 

24 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 25 of 29 

allowing such challenges and now favors only peniiitting facial vagueness challenges when First 

Amcndmenl protections are involved."'^ 

This shifi in the law is also evident in the Tenth Circuit case law. In United States v. 

Gaudreau^'^' the defendants challenged a Colorado commercial bribery statute as vague on its 

face. The court stated the rirle that "a statirte may be challenged on its face when it threatens to 

chill constitutionally protected conduct, especially conduct protected by the First Amendment."'" 

The court found that the statute challenged by defendants did not threaten lo chill constitutionally 

protected conduct. Thus, the court held that facial analysis was not proper and analyzed the 

statute as ai)plicd.''" 

Nearly a decade later, in United States v. Reed, the Tenth Circuit addressed whether the 

district coirrt had correctly rejected a facial vagueness challenge regarding a statute that forbade 

dnrg users from being in possession of a fireanii.''^ The court held: 

Notwithstanding the important valrrcs protected by the vagueness docirinc. as the 

district judge correctly recognized the doctrine's application is limited when 

'"See al.s'o United Slates v. WUIiams, 553 U.S. 285 (2008) ("Although ordinarily '[a] 

piaintifi" who engages in some conduct that is clearly proscribed cannot complain of the 

vagueness of the law as applied to the conduct of others.' we have relaxed that requirement in the 

First Amendment context . . . ." (qiroting Hoffman Estates v. Flipside. Ilojfman Estates. Inc., 455 

U.S. 489. 494-95 & n.6, 7 (1982)). 

"'S60F.2d357(lOlhCir. 1989). 

"'/r/. at 360. The coirrt cited in a footnote the same two cases Defendant cites as examples 

of constitutionally protected conduct, namely Colaulti v. Franklin, 439 U.S. 379 (1979) (abortion 

case) and Lanzetta v. New Jersey, 306 U.S. 451 (1939) (gangster by association case). 

'''Id. at 361. 

"M 14 F.3d 1067. 1069 (I Oih Cir. 1997). 

25 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 26 of 29 

invoked in a context such as this which docs not implicate First Amendment 

values. .-/ vagueness challenge in this context cannot be aimed at the statute on its 

face but must be limited to the application of the statute lo the particular conduct 

charged.'" 

Thus, in Reed the Circuit shifted from allowing facial vagueness challenges/;/'//»rt/'//v in First 

Amendment cases lo allowing ihcm only in First Amendment cases. The Reed rule has recently 

been reiterated in United States v. Michel, where the defendant challenged a sentencing 

enhancement statute as vague as applied to him. There the court stated: "Where a vagueness 

challenge does not implicate First Amendment freedoms, oirr review is limited to the 'application 

of the slaiulc to the particular conduct charged.""'' 

These most recent cases from both the Supreme Court and the particularly the Tenth 

Circuit have been clear: facial vagueness challenges arc only proper in the First Amendment 

context."" The eases cited by Defendant do not provide an accurate statement of the current law. 

Thus, the Court denies Defendant's Motion to Dismiss the Superseding Indictment insofar as it 

asks this Court lo declare the regulation void for facial vauucncss. 

'"Id. at 1070 (emphasis added) (citing United States v. Powell, 423 U.S. 87. 92 (1975): 

United States v. Mazurie, 4\9 U.S. 544, 550 (1975); United States v. Oeegueda, 564 F.2d 1362, 

1365 (9th Cir. 1977)). 

'"United States v. Michel, 446 F.3d 1 122, I 135 (10th Cir. 2006) (quoting y?e67/, 114 F.3d 

at 1070). 

^'Thcre is an arszurncnt to be made that the Second Amendment's individual right to bear 

arms is more akin to the First Amendment individual liberties than to privacy rights and abortion 

in particular', and therefore, individuals should be able to bring facial vagueness challenges in 

Second Amendment cases. However, there is cunently no case law to support allowing facial 

vagueness challenges in Second Amendment cases. 

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Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 27 of 29 

E. AS-APPLIED VAGUENESS 

As the charges against Defendant do not implicate the First Amendment, the Court is 

limited to considering his vagueness challenge as challenging the regulations as applied in light 

of the particular conduct charged." Such delcrtiiinalions are fact based and arc not generally 

proper in a pre-trial order, "fhis Coirrt may only make determinations on pre-trial motions in 

criminal matters if it can do so "'without a irial of the general issue.'"''^ "In a criminal ease, the 

'general issue' is 'defined as evidence relevant lo the question of guilt or innocence.""'^'^ Thus, "il 

contested facts surrounding the commission of the offense would be of any assistance in 

detcniiining the validity of the molion, [FRIJ. R. CRIM. P.] Rule 12 doesn't authorize its 

disposition before trial."'"" In United States v. Pope, the Tenth Circuit recently described the 

policy supporting this rule: "Even when the court is ultimately responsible for deciding the 

merits of a legal defense, it is sometimes said evidence adduced at trial can provide a 'more 

certain framework' for its analysis . . . .""" Pope reiterated that district courts arc extremely 

limited in their power to detennine pre-trial motions in criminal matters. 

United .Stales i'. Reed is a Tenth Circuit ease on point. It involved pre-trial dismissal on 

grounds of vagueness as applied. The district court had relied on evidence proffered by the 

%V//W/e/, 446 F.3d at 1135. 

'"FEU. R. CRIM. P. 12(b)(2). 

'"United States v. Pope, 613 F.3d 1255, 1259 (10th Cir. 2010) (quoting United States v. 

Yakou, 428 F.3d 241, 246 (D.C. Cir. 2005)). 

'""/(•/. (emphasis in original) 

'"'Id (citing/?cfJ, ll4F.3dat 1070). 

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Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 28 of 29 

goveniment and not objected to by the defendant. The Tenth Circuit reversed and held that the 

district coirrt erred in ruling on an as-applied vagueness challenge prior to trial because such a 

deteniiination "should be based only on the facts as they emerge at trial."'"" 

In applying Reed and Pope to this mailer', it is clear that the Court may not r'ulc on an asapplied vagueness challenge until afier factual dcler"minalions are made at trial if such 

dctemiinations may be of any use to the Court's decision-making process. The Court finds that 

such a determination of the facts would be useful in this matter. Conscqirenily, the Court will 

defer its I'uling on the as-applied vagueness challenge. 

F. THE RULE OF LENITY 

Defendant argues for dismissal due lo the rule of lenity. "The rule of lenity is a principle 

of slatuloi'y construction" that insti'ucts courts to interpret ambiguous criminal statutes in favor of 

the defendant.'"^ It applies only in instances where there is a ""grievous ambiguity or uncertainty 

in the statute'"'""* and ihc ambiguity still exists after examining the text and history of the 

statute.'"* 

''''Reed. \ 14 F.3d at 1070 (quoted in Pope, 613 F.3d at 1259). 

'''^ United States v. Meizener, 584 F.3d 928, 934-35 (10th Cir. 2009). 

""Barber v. Thomas, 130 S.Ct. 2499, 2509 (2010) (quoting Musearello \>. United States, 

524 U.S. 125, 139(1998)). 

""Id.; Metzener, 584 F.3d at 935 (quoting United States v. Bo<nh, 551 F.3d 535, 541 (6th 

Cir. 2009)). 
Case 2:09-cr-00842-TS Document 68 Filed 11/19/10 Page 29 of 29 

The rule from Pope, as described above, applies to all pre-trial motions in crin"iinal 

matters. Thus, if any factual deteniiinations would aid the Court in determining whether lenity is 

proper, the decision shoirld be made post-trial. 

The Court finds that factual deicrtiiinations may be useful in deciding whether the nrle oflenity applies in this case. The Court conscqircntly defers ruling on the issue until afier trial. 

IV. CONCLUSION 

Based on the discussion above, the Court DENIES the Motion to Dismiss the 

Superseding Indictment (Docket No. 42) as to Defendant's in pari materia and facial vagueness 

arguments and DEFERS RULING ON the Motion as lo Defendant's arguments regarding a.sapplied vagueness and lenity until after trial. 

The Court orders thai ihc parties appear for a status and scheduling conference on 

December 10. 2010, at 9:00 a.m., at which time a trial dale for this matter will be set. The Coirrt 

further orders the lime from May 24, 2010, until the trial dale of this Order shall constitute 

excludable time under the Speedy Trial Act.'"^' 

DATED November 19. 2010. 

I3Y THE COURT: 

TEEjXfEWART 

Unilc(l-STalcs District Judge 

""1 S U.S.C. vj 3 I6l(h)( I )(D) (delay resulting from a pretrial motion) & (h)(1)(H) (delay 

under thirty days which matter was under advisement of the Courl). 

29