United States v. Lechner

• Decision Date: 20 November 2015
• Docket Number: No. 13–1072.,13–1072.
• Citation: 806 F.3d 869
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John Francis LECHNER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

806 F.3d 869

UNITED STATES of America, Plaintiff–Appellee,

v.John Francis LECHNER, Defendant–Appellant.

No. 13–1072.

United States Court of Appeals, Sixth Circuit.

Argued: July 29, 2015.

Decided and Filed: Nov. 20, 2015.

ARGUED:Lauren S. Kuley, Squire Patton Boggs (US) LLP, Cincinnati, Ohio, for Appellant. Jennifer L. McManus, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Lauren S. Kuley, Colter L. Paulson, Squire Patton Boggs (US) LLP, Cincinnati, Ohio, for Appellant. Jennifer L. McManus, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

OPINION

SILER, Circuit Judge.

A jury convicted John Lechner of two counts each of transporting explosives without a permit and improper storage of explosives, and one count each of possessing explosives while under indictment and making a materially false statement to government officials. Lechner appeals his convictions. He raises several arguments regarding the constitutionality and proper interpretation of the explosives statutes under which he was convicted and avers that his false statement to government agents was not material. We AFFIRM.

BACKGROUND

In 2002, Congress passed the Safe Explosives Act. Homeland Security Act of 2002, Pub.L. No. 107–296, 116 Stat 2135 (2002).This law required everyone who possessed, sold, or manufactured explosives to obtain a license or permit through the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). It also required licensees and permittees to pass a background check and demonstrate to the ATF that their explosives were stored in buildings or containers (known as “magazines”) that complied with ATF regulations. See generally18 U.S.C. § 842; 27 C.F.R. §§ 555.1–555.224.

In 2003, Lechner, a Michigan farmer and quarry owner, received a three-year explosives permit even though the ATF had not approved his storage facilities. He then bought two tons of ammonium nitrate/fuel oil (“ANFO”), a highly explosive chemical mixture frequently used for blasting rock quarries.

In 2010, Lechner rented out a house on part of his farm. The renter soon discovered two pallets loaded with 80 bags of ANFO in a nearby barn, and was concerned it was not being stored safely. In November 2010, Lechner moved this ANFO to a detached garage at another residence he owned on Blalock Row. The renter photographed Lechner loading the ANFO onto a truck and reported him to the Michigan State Police.

In an unrelated incident in July 2011, Lechner got into a confrontation with police that stemmed from a property dispute with his former wife. The county prosecutor charged Lechner with three felonies. Lechner attended a preliminary hearing on September 13, 2011, and the charges were bound over for trial.

Meanwhile, on another occasion in September 2011, Lechner appeared in state court concerning a ticket his son had received. An incident in the courtroom led to Lechner's being held in contempt and sentenced to thirty days in jail.

While Lechner was in jail, two ATF agents interviewed him. They asked Lechner about some ANFO they knew he had purchased. He told them he had used it all up. As he later testified, Lechner was trying to prevent the agents from finding and destroying the ANFO because it had cost him a lot of money.

When he got out of jail, Lechner contacted his friend and sometimes-employee, Billy Jo Verette. Lechner asked Verette to help him move the ANFO from the Blalock Row residence to Verette's mother's shed. Verette called the local authorities. They gave Verette a hidden recording device and contacted the ATF. Then, as the recording device ran, Verette helped Lechner move the 80 bags of ANFO.

At one point as they loaded the ANFO onto a horse trailer, Lechner told Verette the ANFO had to be stored “according to federal regulations.” Lechner said he didn't “know what the f* *k those [regulations] are,” but that “just because you don't know, doesn't mean that you don't have to store it that way.”

As they unloaded the ANFO, Verette asked Lechner if he had any “big plans for this stuff.” Lechner responded, “Yeah ... When there's a revolution here.... When the people decide to take the government back ... me and you will be ... mercenaries.” Although Lechner later testified that this was a joke, Verette testified that Lechner was not laughing. After Lechner left, agents seized the ANFO. The next day, agents searched the attics of two houses associated with Lechner and found blasting caps in one attic and blasting caps, boosters, and detonating cord in the other.

A federal grand jury indicted Lechner and Kenneth Kassab, Lechner's employee, on nine counts of explosives-related crimes. They were tried in 2012. The jury heard Verette's secret recordings and testimony from several witnesses, including the agents who interviewed Lechner in jail and the agents who searched the attics. The government called two expert witnesses to discuss the requirements for obtaining an explosives permit and the regulations governing the storage and transportation of explosives. The jury found Lechner guilty of six counts and acquitted Kassab.

Lechner moved for a new trial. He asserted he had “newly discovered evidence,” by which he meant copies of ATF regulations that were not available to him while he was in jail awaiting trial. But Lechner's counsel told the court he had “thoroughly reviewed all of the significant regulations” and discussed them with Lechner before trial. The district court denied the motion.

I. ALLEGED CONFLICT BETWEEN 18 U.S.C. § 842(a)(3)(A)and 27 C.F.R. § 555.205(d)

Two of Lechner's convictions were for transporting explosives without a permit in violation of 18 U.S.C. § 842(a)(3)(A). This statute makes it “unlawful for any person ... other than a licensee or permittee” to knowingly “transport, ship, cause to be transported, or receive any explosive materials.” See also27 C.F.R. § 555.26(a). First, Lechner transported his ANFO from his farm to the Blalock Row residence in 2010. Second, in 2011, after ATF agents interviewed him in jail, he moved the explosives from Blalock Row to Verette's shed.

Lechner insists that 27 C.F.R. § 555.205authorized him to move his ANFO. This regulation, found in the subpart of the Code pertaining to “storage,” provides that:

All explosive materials must be kept in locked magazines meeting the standards in this subpart unless they are:

(a) In the process of manufacture;(b) Being physically handled in the operating process of a licensee or user;

(c) Being used; or

(d) Being transported to a place of storage or use by a licensee or permittee or by a person who has lawfully acquired explosive materials under § 555.106.

Lechner claims he is “a person who has lawfully acquired explosive materials under § 555.106.” Section 555.106prohibits licensees and permittees from distributing explosives to anyone who is not a licensee, a user permittee, or “[a] holder of a limited permit who is a resident of the State where distribution is made and in which the premises of the transferor are located.” 27 C.F.R. § 555.106(a).

Lechner claims he lawfully acquired his ANFO under a valid permit¹in 2005. When he later moved the ANFO in 2010 and 2011, he was “a person who [had] lawfully acquired” the explosive materials and was therefore authorized to transport them “to a place of storage” under § 555.205(d). He claims this regulation facially contradicts 18 U.S.C. § 842(a)(3)(A). Accordingly, he proffers three theories based on this alleged contradiction between the statute and the regulation: (1) the regulation renders the statute void for vagueness; (2) the contradiction creates an ambiguity that invokes the rule of lenity; and (3) his reliance on the regulation constituted entrapment by estoppel.

A. Standards of Review

Lechner did not clearly raise any of these three issues in the district court. The government argues each issue should be reviewed for plain error. SeeFed.R.Crim.P. 52(b). However, whether review is de novo or plain error, Lechner's arguments under his theories of vagueness, lenity, and entrapment-by-estoppel fail in either event for the reasons below.

B. Vagueness and Lenity

A criminal statute is void for vagueness when it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss,347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); see also Johnson v. United States,–––U.S. ––––, 135 S.Ct. 2551, 2556–57, 192 L.Ed.2d 569 (2015).

The related rule of statutory construction—the rule of lenity—prescribes that “where there is ambiguity in a criminal statute,” courts should resolve the ambiguity in favor of the defendant.United States v. Bass,404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). When we evaluate whether a statute is ambiguous under the rule of lenity, it is not enough for the language to be unclear. We apply the rule “only when the plain language, structure, and legislative history provide no guidance.” United States v. King,516 F.3d 425, 432 (6th Cir.2008)(quoting United States v. Wagner,382 F.3d 598, 610 (6th Cir.2004)). A statute is not ambiguous merely because it is “possibleto articulate a construction more narrow than that urged by the Government.” Moskal v. United States,

498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990).

Even assuming that a regulationcan trigger the rule of lenity or the void-for-vagueness doctrine, Lechner can find no solace in § 555.205. First, this regulation inhabits the subpart pertaining to storage (Subpart K). Another regulation, found in Subpart C (which contains “Administrative and Miscellaneous Provisions”), tracks the language of the statute. This regulation specifically addresses “[p]rohibited ... transportation ... of explosive materials.” It states that “[n]o person, other than a licensee or permittee...