U.S.A v. Moesser, Case No. 2:09-CR-842 TS

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
Writing for the CourtTED STEWART
Docket NumberCase No. 2:09-CR-842 TS
Decision Date19 November 2010


Case No. 2:09-CR-842 TS


Date: November 19, 2010



This matter is before the Court on Defendant's Motion to Dismiss the Superseding Indictment.1 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 arms ammunition for personal use" which is an exception in the DOT regulations at 49 C.F.R. § 175.10(a)(8). To provide a definition,

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Defendant argues that the Court should interpret 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. § 555.11. 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 after trial when the facts of the case are more clear.2The Court may request additional briefing on the matter at that time.

For purposes of this Order, the Court considers all of the allegations of the Superseding Indictment3 as true. In considering a motion to 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.4 The government objects to consideration of facts outside of the Superseding Indictment. Consequently, the Court may only consider the facts as described within the four corners of the Superseding Indictment.5


On October 1, 2009, Defendant entered Salt Lake International Airport en route to South Africa. Inside a duffle bag, Defendant carried a metal box that contained (1) an "unopened,

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commercially packaged container of 'Hodgdon Triple Seven Pellets, '" which are pellets of smokeless powder used in muzzleloader rifles; (2) an opened, partially empty package of Hodgdon Triple Seven Pellets; (3) an opened, partially empty commercially packaged container of "CCI 209M Shotshell Primers"; and (4) two full boxes of "25-count Winchester XX 12 gauge shotgun shells."6 In both boxes of shotgun shells, the top row of shells appeared to be commercially produced, new, unexpended shells with their primers intact. However, the remaining forty shells had expended primers and had been refilled with other materials thirty-eight contained Hodgdon Triple Seven Pellets and the other two shell casings contained multiple CCI 209M Shotshell Primers.7

Prior to checking his luggage, Defendant was approached by law enforcement agents from the FBI, 8 TSA, 9 and FAA10 and asked if he had any ammunition in his checked or carry-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 permitted 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

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new shells, the agents did not seize 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."11 Defendant then placed the shotgun shells back in the metal box, returned the box to his luggage, proceeded to the check-in counter, and checked his luggage containing the metal box which contained the shotgun shells.12 Later, the luggage triggered an alarm that prompted a TSA officer to manually 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 Shotshell 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 government filed a Superseding Indictment containing five counts of criminal activity. Defendant is charged with one count of delivering, for purposes of transportation in air commerce, the hazardous material Hogdgon Triple Seven Pellets in violation of 49 C.F.R. §§ 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 Shotshell Primers in violation of 49 C.F.R. §§ 172.101, 172.200 et seq., 172.300 et seq., 172.400 et seq., 173.27(b), 173.62, 175.1(b)(2), and 175.3, and 49 U.S.C. § 46312; one count of offering for carriage in checked baggage the hazardous material Hogdgon Triple Seven Pellets in violation of 49 C.F.R. §§ 172.101, 173.27(b), and 175.1(b)(2), and 49 U.S.C. § 5124; one count of offering for carriage in checked baggage improperly packaged CCI 209M Shotshell Primers in

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vioaltion of 49 C.F.R. §§ 172.101, 172.200 et seq., 172.300 et seq., 172.400 et seq., 173.27(b), 173.62, 175.1(b)(2), and 175.3, and 49 U.S.C. § 5124; and one count of knowingly and willfully making false statements to special agents of the FBI, TSA, and FAA, in violation of 18 U.S.C. § 1001(a)(2), by stating he had no other forbidden items.


The issue before the Court is whether the smokeless powder and primers packaged in the shotgun shells fall under an exception in the regulations for "small arms ammunition for personal use" and are consequently exempted from the Department of Transportation ("DOT") regulations governing hazardous materials. Defendant argues the DOT regulations fail to define "small arms ammunition for personal use" and that the Court should (1) interpret the DOT small arms ammunition exception to have the same meaning as the ATF13 ammunition exception, which does 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 are more clear.

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A party may move to dismiss an indictment under Fed. R. Crim. P 12(b)(2).14 A challenge to an indictment generally does not open the door to questioning the strength of the government'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 are to be taken as true."15 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."16

The Court may grant the motion if the motion only addresses a pure question of law.17However, such dismissals "are the 'rare exception.'"18 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."19 "If contested facts surrounding 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."20 The Tenth Circuit has explained the two key justifications for this rule. First, the rule "respect[s] the role of the jury"; and second, in

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some instances, "evidence adduced at trial can provide a 'more certain framework' for its analysis."21


The United States Code requires that the Secretary of Transportation designate which materials are hazardous and requires that the Secretary create regulations governing the "safety aspects, including security, of the transportation" of these materials.22 The statute states that neither the statute (codified at 49 U.S.C. §§ 5101-5126) nor its corresponding regulations prohibit "or regulate the transportation of a firearm (as defined in section 232 of title 18), or ammunition for a firearm, by an individual for personal use...."23 The corresponding DOT regulations governing the transportation of hazardous materials are found in the Code of Federal Regulations ("C.F.R.") Title 49, Parts 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.

1. 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. § 172.101, provides an extensive list with classifications and other information on all of the...

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