        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
