United States v. Mellen

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 12, 2004
• Docket: 02-6193
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Lentsch, et al. Nos. 02-6192/6193 ELECTRONIC CITATION: 2004 FED App. 0135P (6th Cir.) File Name: 04a0135p.06 STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. ON BRIEF: John E. Eldridge, ELDRIDGE, IRVINE & GAINES, Knoxville, Tennessee, Mike Whalen, UNITED STATES COURT OF APPEALS Knoxville, Tennesse, for Appellants. Harry S. Mattice, Jr., UNITED STATES ATTORNEY, Chattanooga, Tennessee, FOR THE SIXTH CIRCUIT for Appellee. _________________ _________________ UNITED STATES OF AMERICA , X Plaintiff-Appellee, - OPINION - _________________ - Nos. 02-6192/6193 v. - ROGERS, Circuit Judge. Timothy Mellen and Elizabeth > Lentsch were convicted of trespassing on Department of , Energy property in violation of 42 U.S.C. § 2278a(c) and 10 ELIZABETH ANN LENTSCH - (02-6192); TIMOTHY JOSEPH C.F.R. §§ 860.3 and 860.5.1 They appeal their convictions, - MELLEN (02-6193), - Defendants-Appellants. - 1 - 42 U.S.C. § 2 278 a pro vides the statutory authority for the N regulations enforce d in this case. The statute provides:

Appeal from the United States District Court (a) The [Atomic Energy] Commission is authorized to issue for the Eastern District of Tennessee at Knoxville. regulations relating to the entry upon . . . any facility, installation, or real property subject to the jurisdiction, No. 02-00047—C. Clifford Shirley, Jr., Magistrate Judge. adm inistration, or in the custody of the C omm ission. . . .

Argued: March 19, 2004 (b) W hoever shall willfully violate any regulation of the Commission issued pursuant to subsection (a) of this section Decided and Filed: May 12, 2004 shall, upon conviction thereof, be punishable by a fine of not more than $1,000. Before: KENNEDY, ROGERS, and COOK, Circuit (c) W hoever shall willfully violate any regulation of the Judges. Commission issued pursuant to subsection (a) of this section with respect to any installation or other property which is _________________ enclo sed b y a fence, wall, floor, ro of, or other structural barrier shall be guilty of a misdemeanor and upon conviction thereof COUNSEL shall be punished by a fine of not to exceed $5,0 00 o r to imprisonment for not more than one year, or both. ARGUED: John E. Eldridge, ELDRIDGE, IRVINE & The functions of the Atomic Energy Commission have been transferred GAINES, Knoxville, Tennessee, Mike Whalen, Knoxville, to the Administrator of the Energy Research and D evelopment Tennesse, for Appellants. Harry S. Mattice, Jr., UNITED Administration, see 42 U.S.C. § 5814(c), and thence to the Secretary of Energy, see 42 U.S.C. § 71 51(a). The parties on appeal in this case refer

1 Nos. 02-6192/6193 United States v. Lentsch, et al. 3 4 United States v. Lentsch, et al. Nos. 02-6192/6193

arguing that they were deprived of due process because the the offense, and the jury instructions fairly and adequately information failed to allege an essential element of 10 C.F.R. submitted the issue of enclosure to the jury. § 860.5— that the property they entered upon was “enclosed.” The defendants also argue that there was insufficient evidence On April 14, 2002, the defendants took part in a to support their convictions and that the trial court erred in demonstration at the Y-12 National Security Complex (“Y-12 refusing their request for a jury instruction defining Complex”) in Oak Ridge, Tennessee.2 The Y-12 Complex is “enclosed.” We affirm, as the information provided protected by three rings of security, arranged like a target. constitutionally adequate notice of the charges against the The central area — the bull’s-eye — is protected by a ring of defendants, the evidence was sufficient to permit a rational six to eight foot chainlink fences, topped with barbed wire. trier of fact to find beyond a reasonable doubt the elements of This area is accessible only through controlled access turnstiles or roads manned by armed guards. This bull’s-eye is surrounded by a second ring of fencing, and access into that ring is similarly controlled. The outer ring of the target (“the blue line fence”), however, is bounded by a simpler fence, to the agency’s imp lementing regulation rather than to the statute. The which consists of posts strung with three barbed wires. “No regulation follows the statute’s penalty provision precisely, with the Trespassing” signs are posted at specified intervals, as well as exception of the amounts of maximum fines: at all entrances. For obvious reasons, the barbed wire fencing 10 C .F.R. § 86 0.3 -- Tresp ass. does not extend over the complex’s access roads. Instead, a blue line is painted across the pavement, demarcating the Unauthorized entry upon any facility, installation or real boundary of the outer ring. On the day of the demonstration, property subject to this part is prohibited. the Y-12 Complex officials erected steel barriers on the blue line. The barriers served the dual purposes of clearly marking 10 C .F.R. § 86 0.5 -- Violations and pena lties. the boundaries of the Y-12 Complex and providing additional (a) W hoever willfully vio lates . . . § 860.3 . . . shall, upon security against unauthorized entry. conviction, be guilty of an infraction punishable by a fine of not more than $ 5,000. During the demonstration, four individuals — including the defendants — entered the outer ring of the Y-12 Complex (b) Whoever willfully vio lates . . . § 86 0.3 . . . with re spect to without permission. In doing so, the individuals defied any facility, installation or real property enclosed by a fence, wall, floor, roof, or other structural barrier shall upon conviction, warnings not to cross the barriers and ignored security guards’ be guilty of a C lass A m isdem eano r punishable by a fine not to instructions to retreat. The individuals were arrested and exceed $ 100,000 or imprisonment for not more than one year, charged with trespassing on Department of Energy property or both. in violation of 10 C.F.R. §§ 860.3 and 860.5. 10 C.F.R. § 860.3 prohibits unauthorized entry upon certain properties, The regulation was amended in 1993 to increase the fine amounts from $1000/$5000 to $5000/$100,000 “to recognize the effect by operation of law of the C riminal Fine Im provements Act of 1987.” 58 Fed . Reg. 47984 (Sept. 14, 1993). The amount of the maximum fines makes no 2 difference to the instant case. For convenience we therefore refer, like the The Y-12 Complex is owned and operated by the National Nuclear parties, to the reg ulation rather than to the statute in discussing the Security Adm inistration, a compone nt of the United States Department of requirements for imprisonm ent. We recognize, however, that those Energy. The demonstration was in protest against the United States’ requirements are actually prescribed by statute. prod uction of nuclear weapons. Nos. 02-6192/6193 United States v. Lentsch, et al. 5 6 United States v. Lentsch, et al. Nos. 02-6192/6193

including the Y-12 Complex, that are subject to the walked the twelve mile perimeter of the blue line fence, and jurisdiction or administration of the Department of Energy. that he could not testify that no part of the fence was down or Id. See also 10 C.F.R. § 860.2. The potential penalties for broken. He also stated, however, that the fence was patrolled violating 10 C.F.R. § 860.3 are set forth in 10 C.F.R. § 860.5, monthly, and that if portions of the fence were down without which provides: a legitimate reason (such as construction), the fence would be repaired. (a) Whoever willfully violates . . . § 860.3 . . . shall, upon conviction, be guilty of an infraction punishable by a fine At the close of the Government’s case, the defendants of not more than $5,000. moved for a judgment of acquittal pursuant to Federal Rule of (b) Whoever willfully violates . . . § 860.3 . . . with Criminal Procedure 29. The defendants contended that the respect to any facility, installation or real property information did not sufficiently charge them with trespassing enclosed by a fence, wall, floor, roof, or other structural on an enclosed facility as required for a violation of 10 C.F.R barrier shall upon conviction, be guilty of a Class A § 860.5 and that, in any event, the Government had failed to misdemeanor punishable by a fine not to exceed establish that the Y-12 Complex was “enclosed.” The trial $100,000 or imprisonment for not more than one year, or court denied the motion, finding that the information was both. constitutionally sufficient and that even if it had been technically insufficient, any error was harmless. The defendants proceeded to a jury trial before a magistrate judge. At trial, the defendants did not dispute the fact that The magistrate declined requests by both parties for they entered onto the Y-12 Complex. Instead, they attempted instructions on the meaning of the term “enclosed,” stating “I to establish that the Y-12 Complex was not “enclosed” by a think the jury can determine and know what ‘enclosed’ means structural barrier. Whether the complex was so enclosed was in this particular instance, and since the statute does not pertinent because the potential penalty for a trespass upon a define it, I don’t believe Webster’s should.” The jury was facility that is “enclosed by a fence, wall, floor, roof, or other charged to consider both “trespass on enclosed property” and structural barrier” is greater than the potential penalty for the lesser offense of “simple trespass.” The jury also received trespass on a facility that is not so enclosed. See 10 C.F.R. a two-part verdict form which required them to consider the § 860.5. two offenses separately. Id. William J. Brumley, the manager of the Y-12 Complex, The jury found the defendants guilty of the offense of testified concerning the physical security measures in place at “trespass on enclosed property.” Each defendant was the complex. According to Brumley, security was greatest at sentenced to a term of imprisonment for two months followed the innermost circle of fencing, with the sophistication of the by a one year term of supervised release. The defendants barriers decreasing with their distance from the complex timely filed their notices of appeal. center. Bromley testified that the blue line fence, which was the least sophisticated of the three sets of fences, was not The magistrate judge correctly concluded that the designed to provide an impenetrable barrier. Instead, the blue information sufficiently charged the defendants with line fence was designed to provide notice of the existence of the boundary and the legal consequence of crossing it. Brumley conceded on cross-examination that he had not Nos. 02-6192/6193 United States v. Lentsch, et al. 7 8 United States v. Lentsch, et al. Nos. 02-6192/6193

aggravated trespass.3 An information “adequately charges an There is no merit to the defendants’ contention that the offense if it (1) includes the elements of the offense intended information’s failure to track exactly the language of to be charged, (2) notifies the defendant of ‘what he must be 10 C.F.R. § 860.5(b) deprived them of due process. The prepared to meet,’ and (3) allows the defendant to invoke a information charged that the defendants “did wilfully and former conviction or acquittal in the event of a subsequent without authorization enter upon the Y-12 National Security prosecution.” United States v. Cor-Bon Custom Bullet Co., Complex . . . by crossing a structural barrier of the Y-12 287 F.3d 576, 579 (6th Cir. 2002). These requirements are National Security Complex. [10 C.F.R. §§ 860.3 and rooted in the Fifth Amendment’s Due Process and Double 860.5(b)] [42 U.S.C. § 2278a(c)]” (brackets in original). The Jeopardy Clauses and the Sixth Amendment’s Notice Clause, defendants claim that, because the information did not include and are designed to ensure that defendants have sufficient the phrase “enclosed by a fence, wall, roof or other structural notice of the charges against them to permit them to prepare barrier,” it failed to charge them with the elements of a defense. Id. at 580.4 In reviewing the sufficiency of an aggravated trespass under 10 C.F.R § 860.5(b). But due information, we must determine whether the omission process does not require a recitation of the statute; it requires complained of deprived the defendant of the protections the only that the information as a whole set forth the critical information was meant to ensure. See United States v. details of the offense charged. For instance, in United States Superior Growers Supply, Inc., 982 F.2d 173, 176-77 (6th v. Martinez, 981 F.2d 867 (6th Cir. 1992), we found that a Cir. 1992).5 citation to the relevant statute provided sufficient notice of the elements of the charged offense, even though the indictment did not explicitly state the willfulness element of the crime. 3 Id. at 871-72. And in United States v. Forbes, 16 F.3d 1294 This court reviews de novo whether an indictment (or information) adequately charges an offense. United States v. Cor-Bon Custom Bullet (1st Cir. 1994), the court held that even though “statutory Co., 287 F.3d 57 6, 578-79 (6th Cir. 2002). citation, standing alone, cannot substitute for setting forth the 4 elements of a crime, it may reinforce other references in the The Fifth Amendment’s Grand Jury Clause is not implicated here, indictment so as to render it valid.” Id. at 1297. as the defendants were charged with misdemeanor trespassing.

5 Here, the information’s reference to a structural barrier W e reject the parties’ contention that the alleged deficiency in the clearly indicates aggravated trespass as defined by 10 C.F.R. information should be analyzed under the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, inasmuch as the issue of whether the Y-12 complex was enclosed was submitted to the jury and determined beyond a reaso nable doubt. Although the Supreme Court in Appren di did violated Appren di because a judge, rather than a jury, determined the drug comment incidentally that any fact—o ther than a prior conviction— must quantities for which the defendants were sentenced . Id. at 314 -15. W e be charged in an indictment, id. at 476, it specifically cautioned that further held that such violations were subject to harmless error review, Apprendi had not claimed a constitutional violation based on the and that the reviewing court should consider whether the omitted fact was indictm ent’s failure to specify a fact that could subject him to an increased supported by uncontroverted evidence, or whether the evidence was so sentence. Id. at 477 n.3. Instead , Appren di clarified that, “[o]ther than the overwhelming that a jury would have found the fact beyond a reasonable fact of a prior conviction, any fact that increases the penalty for a crime doub t. Id. at 324 . An inq uiry into what a jury would have found is beyond the prescribed statutory maximum must be submitted to a jury and inapp ropriate in this case, howe ver, as a jury did find that the Y-12 proved beyo nd a reaso nab le doubt.” Id. at 490 (emp hasis added). Indeed, complex was enclosed. Accord ingly, we find it appropriate to review the the principles applied in evaluating alleged Appren di errors are unhelpful information’s alleged deficiency under princip les developed for that in this case. For example, in United States v. Stew art, 306 F.3d 295 (6th purpo se rather than to try and shoehorn the defendants’ claim into the Cir. 2002), we concluded that the sentences impo sed o n two d efendants Appren di analysis. Nos. 02-6192/6193 United States v. Lentsch, et al. 9 10 United States v. Lentsch, et al. Nos. 02-6192/6193

§ 860.5(b) rather than simple trespass under 10 C.F.R. charges so as to prepare a defense, nor has any failure § 860.5(a), because the presence of a structural barrier is not prevented the Defendants from preparing an excellent relevant to simple trespass. As the magistrate judge correctly and well orchestrated defense, including probing and held, the information satisfied the requirements of due process virtually continual cross-examination of the because Government’s witnesses on whether this facility was enclosed. the wording of the information, its use of the unique “structural barrier,” plus its clear reference to the specific In fact the Defendants’ whole trial defense has charging regulation of 10 C.F.R. 860.5(b), which virtually been with regard to that issue, therefore, the established the specific condition and increased penalty, Defendants have not proven prejudice nor even alleged sufficiently reinforced the information references and put it, and the record indicates full knowledge of and the defendants on notice of the charges and allowed preparation for this charge. defendants to prepare a strong defense on this very issue and was sufficiently specific so as to enable the The defendants’ other allegations of error do not warrant defendants to plead double jeopardy in any subsequent extensive consideration. First, the magistrate did not err in proceeding if charged with the same crime on the same failing to give a definition of the term “enclosed” because facts. there is no indication that 10 C.F.R. § 860.5(b) uses the term “enclosed” in a technical rather than commonsense manner. Even assuming that the information was technically During the charge conference, the parties submitted deficient, however, the error was harmless, because the competing instructions defining the term “enclosed.” The defendants had actual notice of the charges against them and magistrate properly concluded that jurors were capable of have not demonstrated that they were prejudiced by the determining what “enclosed” means and rejected both omission. The jury was actually instructed on the elements of proposed instructions. As we stated in United States v. Mack, aggravated trespass and specifically found those elements 159 F.3d 208 (6th Cir. 1998), a trial court “need not define beyond a reasonable doubt. The historic “drift of the law familiar English words when the jury can appreciate their away from the rules of technical and formalized pleading” meaning without special knowledge.” Id. at 217. Second, culminated in Federal Rule of Criminal Procedure 52(a), viewing the facts in the light most favorable to the which provides that “[a]ny error, defect, irregularity, or prosecution, a rational jury could have found the essential variance which does not affect substantial rights shall be elements of aggravated trespass beyond a reasonable doubt. disregarded.” Russell v. United States, 369 U.S. 749, 762 See United States v. Kelly, 204 F.3d 652, 656 (6th Cir. 2000). (1962). Accordingly, “convictions are no longer reversed because of minor and technical deficiencies which d[o] not For the foregoing reasons, we AFFIRM the judgment of the prejudice the accused.” Id. at 763. Harmless error analysis district court. clearly applies to the alleged insufficiency of an indictment. Id.; Cor-Bon Custom Bullet, 287 F.3d at 580. As noted by the magistrate judge, There has been no claim of prejudice, there has been no claim that the Defendants were not informed of the