United States of America v. Elizabeth Ann Lentsch (02-6192); Timothy Joseph Mellen (02-6193)

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0135P (6th Cir.)
File Name: 04a0135p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELIZABETH ANN LENTSCH
(02-6192); TIMOTHY JOSEPH
MELLEN (02-6193),
Defendants-Appellants.
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Nos. 02-6192/6193
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 02-00047—C. Clifford Shirley, Jr., Magistrate Judge.
Argued: March 19, 2004
Decided and Filed: May 12, 2004
Before: KENNEDY, ROGERS, and COOK, Circuit
Judges.
_________________
COUNSEL
ARGUED: John E. Eldridge, ELDRIDGE, IRVINE &
GAINES, Knoxville, Tennessee, Mike Whalen, Knoxville,
Tennesse, for Appellants. Harry S. Mattice, Jr., UNITED
2 United States v. Lentsch, et al. Nos. 02-6192/6193
142 U.S.C. § 2 278 a pro vides the statutory authority for the
regulations enforced in this case. The statute provides:
(a) The [Atomic Energy] Commission is authorized to issue
regulations relating to the entry upon . . . any facility,
installation, or real property subject to the jurisdiction,
adm inistration, or in the custody of the Comm ission. . . .
(b) W hoever shall willfully violate any regulation of the
Commission issued pursuant to subsection (a) of this section
shall, upon conviction thereof, be punishable by a fine of not
more than $1,000.
(c) W hoever shall willfully violate any regulation of the
Commission issued pursuant to subsection (a) of this section
with respect to any installation or other property which is
enclosed b y a fence, wall, floor, ro of, or other structural barrier
shall be guilty of a misdemeanor and upon conviction thereof
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.
The functions of the Atomic Energy Commission have been transferred
to the Administrator of the Energy Research and D evelopment
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
STATES ATTORNEY, Chattanooga, Tennessee, for
Appellee. ON BRIEF: John E. Eldridge, ELDRIDGE,
IRVINE & GAINES, Knoxville, Tennessee, Mike Whalen,
Knoxville, Tennesse, for Appellants. Harry S. Mattice, Jr.,
UNITED STATES ATTORNEY, Chattanooga, Tennessee,
for Appellee.
_________________
OPINION
_________________
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
C.F.R. §§ 860.3 and 860.5.1 They appeal their convictions,

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Nos. 02-6192/6193 United States v. Lentsch, et al. 3
to the agency’s imp lementing regulation rather than to the statute. The
regulation follows the statute’s penalty provision precisely, with the
exception of the amounts of maximum fines:
10 C .F.R. § 86 0.3 -- Tresp ass.
Unauthorized entry upon any facility, installation or real
property subject to this part is prohibited.
10 C .F.R. § 86 0.5 -- Violations and penalties.
(a) W hoever willfully violates . . . § 860.3 . . . shall, upon
conviction, be guilty of an infraction punishable by a fine of not
more than $ 5,000.
(b) Whoever willfully violates . . . § 86 0.3 . . . with respect to
any facility, installation or real property enclosed by a fence,
wall, floor, roof, or other structural barrier shall upon conviction,
be guilty of a C lass A m isdem eano r punishable by a fine not to
exceed $ 100,000 or imprisonment for not more than one year,
or both.
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 Criminal Fine Im provements Act of 1987.” 58 Fed . Reg.
47984 (Sept. 14, 1993). The amount of the maximum fines makes no
difference to the instant case. For convenience we therefore refer, like the
parties, to the reg ulation rather than to the statute in discussing the
requirements for imprisonm ent. We recognize, however, that those
requirements are actually prescribed by statute.
arguing that they were deprived of due process because the
information failed to allege an essential element of 10 C.F.R.
§ 860.5— that the property they entered upon was “enclosed.”
The defendants also argue that there was insufficient evidence
to support their convictions and that the trial court erred in
refusing their request for a jury instruction defining
“enclosed.” We affirm, as the information provided
constitutionally adequate notice of the charges against the
defendants, the evidence was sufficient to permit a rational
trier of fact to find beyond a reasonable doubt the elements of
4 United States v. Lentsch, et al. Nos. 02-6192/6193
2The Y-12 Complex is owned and operated by the National Nuclear
Security Adm inistration, a compone nt of the United States Department of
Energy. The demonstration was in protest against the United States’
production of nuclear weapons.
the offense, and the jury instructions fairly and adequately
submitted the issue of enclosure to the jury.
On April 14, 2002, the defendants took part in a
demonstration at the Y-12 National Security Complex (“Y-12
Complex”) in Oak Ridge, Tennessee.2 The Y-12 Complex is
protected by three rings of security, arranged like a target.
The central area — the bull’s-eye — is protected by a ring of
six to eight foot chainlink fences, topped with barbed wire.
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,
which consists of posts strung with three barbed wires. “No
Trespassing” signs are posted at specified intervals, as well as
at all entrances. For obvious reasons, the barbed wire fencing
does not extend over the complex’s access roads. Instead, a
blue line is painted across the pavement, demarcating the
boundary of the outer ring. On the day of the demonstration,
the Y-12 Complex officials erected steel barriers on the blue
line. The barriers served the dual purposes of clearly marking
the boundaries of the Y-12 Complex and providing additional
security against unauthorized entry.
During the demonstration, four individuals — including the
defendants — entered the outer ring of the Y-12 Complex
without permission. In doing so, the individuals defied
warnings not to cross the barriers and ignored security guards’
instructions to retreat. The individuals were arrested and
charged with trespassing on Department of Energy property
in violation of 10 C.F.R. §§ 860.3 and 860.5. 10 C.F.R.
§ 860.3 prohibits unauthorized entry upon certain properties,

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

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3This court reviews de novo whether an indictment (or information)
adequately charges an offense. United States v. Cor-Bon Custom Bullet
Co., 287 F.3d 57 6, 578-79 (6th Cir. 2002).
4The Fifth Amendment’s Grand Jury Clause is not implicated here,
as the defendants were charged with misdemeanor trespassing.
5W e reject the parties’ contention that the alleged deficiency in the
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
comment incidentally that any fact—o ther than a prior conviction— must
be charged in an indictment, id. at 476, it specifically cautioned that
Apprendi had not claimed a constitutional violation based on the
indictm ent’s failure to specify a fact that could subject him to an increased
sentence. Id. at 477 n.3. Instead , Appren di clarified that, “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury and
proved beyo nd a reaso nab le doubt.” Id. at 490 (emp hasis added). Indeed,
the principles applied in evaluating alleged Appren di errors are unhelpful
in this case. For example, in United States v. Stew art, 306 F.3d 295 (6th
Cir. 2002), we concluded that the sentences impo sed o n two d efendants
aggravated trespass.3 An information “adequately charges an
offense if it (1) includes the elements of the offense intended
to be charged, (2) notifies the defendant of ‘what he must be
prepared to meet,’ and (3) allows the defendant to invoke a
former conviction or acquittal in the event of a subsequent
prosecution.” United States v. Cor-Bon Custom Bullet Co.,
287 F.3d 576, 579 (6th Cir. 2002). These requirements are
rooted in the Fifth Amendment’s Due Process and Double
Jeopardy Clauses and the Sixth Amendment’s Notice Clause,
and are designed to ensure that defendants have sufficient
notice of the charges against them to permit them to prepare
a defense. Id. at 580.4 In reviewing the sufficiency of an
information, we must determine whether the omission
complained of deprived the defendant of the protections the
information was meant to ensure. See United States v.
Superior Growers Supply, Inc., 982 F.2d 173, 176-77 (6th
Cir. 1992).5
8 United States v. Lentsch, et al. Nos. 02-6192/6193
violated Appren di because a judge, rather than a jury, determined the drug
quantities for which the defendants were sentenced . Id. at 314 -15. W e
further held that such violations were subject to harmless error review,
and that the reviewing court should consider whether the omitted fact was
supported by uncontroverted evidence, or whether the evidence was so
overwhelming that a jury would have found the fact beyond a reasonable
doub t. Id. at 324 . An inquiry into what a jury would have found is
inapp ropriate in this case, however, as a jury did find that the Y-12
complex was enclosed. Accord ingly, we find it appropriate to review the
information’s alleged deficiency under principles developed for that
purpo se rather than to try and shoehorn the defendants’ claim into the
Appren di analysis.
There is no merit to the defendants’ contention that the
information’s failure to track exactly the language of
10 C.F.R. § 860.5(b) deprived them of due process. The
information charged that the defendants “did wilfully and
without authorization enter upon the Y-12 National Security
Complex . . . by crossing a structural barrier of the Y-12
National Security Complex. [10 C.F.R. §§ 860.3 and
860.5(b)] [42 U.S.C. § 2278a(c)]” (brackets in original). The
defendants claim that, because the information did not include
the phrase “enclosed by a fence, wall, roof or other structural
barrier,” it failed to charge them with the elements of
aggravated trespass under 10 C.F.R § 860.5(b). But due
process does not require a recitation of the statute; it requires
only that the information as a whole set forth the critical
details of the offense charged. For instance, in United States
v. Martinez, 981 F.2d 867 (6th Cir. 1992), we found that a
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.
Id. at 871-72. And in United States v. Forbes, 16 F.3d 1294
(1st Cir. 1994), the court held that even though “statutory
citation, standing alone, cannot substitute for setting forth the
elements of a crime, it may reinforce other references in the
indictment so as to render it valid.” Id. at 1297.
Here, the information’s reference to a structural barrier
clearly indicates aggravated trespass as defined by 10 C.F.R.

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Nos. 02-6192/6193 United States v. Lentsch, et al. 9
§ 860.5(b) rather than simple trespass under 10 C.F.R.
§ 860.5(a), because the presence of a structural barrier is not
relevant to simple trespass. As the magistrate judge correctly
held, the information satisfied the requirements of due process
because
the wording of the information, its use of the unique
“structural barrier,” plus its clear reference to the specific
charging regulation of 10 C.F.R. 860.5(b), which
established the specific condition and increased penalty,
sufficiently reinforced the information references and put
the defendants on notice of the charges and allowed
defendants to prepare a strong defense on this very issue
and was sufficiently specific so as to enable the
defendants to plead double jeopardy in any subsequent
proceeding if charged with the same crime on the same
facts.
Even assuming that the information was technically
deficient, however, the error was harmless, because the
defendants had actual notice of the charges against them and
have not demonstrated that they were prejudiced by the
omission. The jury was actually instructed on the elements of
aggravated trespass and specifically found those elements
beyond a reasonable doubt. The historic “drift of the law
away from the rules of technical and formalized pleading”
culminated in Federal Rule of Criminal Procedure 52(a),
which provides that “[a]ny error, defect, irregularity, or
variance which does not affect substantial rights shall be
disregarded.” Russell v. United States, 369 U.S. 749, 762
(1962). Accordingly, “convictions are no longer reversed
because of minor and technical deficiencies which d[o] not
prejudice the accused.” Id. at 763. Harmless error analysis
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
10 United States v. Lentsch, et al. Nos. 02-6192/6193
charges so as to prepare a defense, nor has any failure
prevented the Defendants from preparing an excellent
and well orchestrated defense, including probing and
virtually continual cross-examination of the
Government’s witnesses on whether this facility was
enclosed.
In fact the Defendants’ whole trial defense has
virtually been with regard to that issue, therefore, the
Defendants have not proven prejudice nor even alleged
it, and the record indicates full knowledge of and
preparation for this charge.
The defendants’ other allegations of error do not warrant
extensive consideration. First, the magistrate did not err in
failing to give a definition of the term “enclosed” because
there is no indication that 10 C.F.R. § 860.5(b) uses the term
“enclosed” in a technical rather than commonsense manner.
During the charge conference, the parties submitted
competing instructions defining the term “enclosed.” The
magistrate properly concluded that jurors were capable of
determining what “enclosed” means and rejected both
proposed instructions. As we stated in United States v. Mack,
159 F.3d 208 (6th Cir. 1998), a trial court “need not define
familiar English words when the jury can appreciate their
meaning without special knowledge.” Id. at 217. Second,
viewing the facts in the light most favorable to the
prosecution, a rational jury could have found the essential
elements of aggravated trespass beyond a reasonable doubt.
See United States v. Kelly, 204 F.3d 652, 656 (6th Cir. 2000).
For the foregoing reasons, we AFFIRM the judgment of the
district court.

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