1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0280p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

J OHN F RANCIS L ECHNER , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 13-1072

Appeal from the United St ates District Court for the Western District of Michigan at Marquette. No. 2:11-cr-00049—R. Allan Edgar, District Judge. Argued: July 29, 2015 Decided and Filed: November 20, 2015 Before: SILER, ROGERS, and STRANCH, Circuit Judges.

_________________ COUNSEL

ARGUED: Lauren S. Kuley, SQUIRE PATTON B OGGS (US) LLP, Cincinnati, Ohio, for Appellant. Jennifer L. McManus, UNITED ST ATES ATTORNEY’S O FFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Lauren S. Kuley, Colter L. Paulson, SQUIRE PATTON BOGGS (US) LLP, Cincinnati, Ohio, for Appe llant. Jennifer L. McManus, UNITED STATES ATTORNEY’S OFFICE, Grand Rapi ds, Michigan, for Appellee.

_________________ OPINION

_________________ SILER, Circuit Judge. A jury convicted John Lechner of two counts each of transporting explosives without a permit and improper stor age of explosives, a nd one count each of possessing explosives while under indictment a nd making a materially false statement to 

### >No. 13-1072 United States v. Lechner Page 2

government officials. Lechner appeals his convic tions. He raises several arguments regarding the constitutionality and proper interpretation of the explosives statutes under which he was convicted and avers that his false statemen t 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 la w required everyone who possessed, sold, or manufactured explosives to obtain a license or permit through the Fede ral Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). It also required licensees and permitees to pass a background check and demonstrate to the ATF that th eir explosives were st ored in buildings or containers (known as “magazines”) th at complied with ATF regulations. See generally 18 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 stor age facilities. He th en bought two tons of ammonium nitrate/fuel oil (“ANFO”), a highly e xplosive 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 wa s 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 rent er photographed Lechne r loading the ANFO onto a truck and reported him to the Michigan State Police.
In an unrelated incident in July 2011, Lechne r got into a confrontation with police that stemmed from a property dispute with his former wife. The county pros ecutor 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 Septem ber 2011, Lechner appeared in state court concerning a ticket his son had rece ived. An incident in the c ourtroom led to Lechner’s being held in contempt and sentenced to thirty days in jail.No. 13-1072 United States v. Lechner Page 3

While Lechner was in jail, tw o 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, L echner contacted his friend and sometimes-employee, Billy Jo Verette. Lechner asked Verette to help him mo ve 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 “j ust 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 L echner if he had any “big plans for this stuff.” Lechner responded, “Yeah . . . When th ere’s a revolution here . . . . When the people decide to take the government back . . . me a nd you will be . . . mercenaries.” Although Lechner later testified that this was a joke, Verette testified that Lech ner was not laughing. After Lechner left, agents seized the ANFO. The next day, agen ts searched the attics of two houses associated with Lechner and found blasting caps in one attic and blasting caps, boos ters, 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 se veral witnesses, including the ag ents who interviewed Lechner in jail and the agents who search ed the attics. The government called two expert witnesses to discuss the requirements for obt aining an explosives permit and the regulations governing the storage and transportation of explosives. Th e jury found Lechner guilty of six counts and acquitted Kassab.No. 13-1072 United States v. Lechner Page 4

Lechner moved for a new trial. He assert ed he had “newly discovered evidence,” by which he meant copies of ATF re gulations that were not availabl e 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 discusse d 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 stat ute makes it “unlawful for any person . . . other than a licensee or permittee” to knowingly “transpor t, ship, cause to be transported, or receive any explosive materials.” See also 27 C.F.R. § 555.26(a). First, Lechner transported his ANFO from his farm to the Blalock Row reside nce in 2010. Second, in 2011, after ATF agents interviewed him in jail, he moved the explosiv es from Blalock Row to Verette’s shed.
Lechner insists that 27 C.F.R. § 555.205 au thorized him to move his ANFO. This regulation, found in the subpart of the Code pertaining to “stora ge,” 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 op erating process of a licensee or user; (c) Being used; or (d) Being transported to a place of storag e or use by a licensee or permittee or by a person who has lawfully acquire d explosive materials under § 555.106. Lechner claims he is “a person who has lawfu lly acquired explosive materials under § 555.106.” Section 555.106 prohibits 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 premis es of the transferor are located.” 27 C.F.R. § 555.106(a).No. 13-1072 United States v. Lechner Page 5

Lechner claims he lawfully acq uired his ANFO under a valid permit 1 in 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 facial ly contradicts 18 U.S.C. § 842(a)(3)(A). Accordingly, he proffers three theories based on this alleged contradict ion between the statute and the regulation: (1) the regulation renders th e statute void for vaguene ss; (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 th ree issues in the district court. The government argues each issue should be reviewed for plain error. See Fed. 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 fa il 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 c ontemplated conduct is forbidde n 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 (1954); see also Johnson v. United States , 135 S. Ct. 2551, 2556-57 (2015).
The related rule of statutory construction—t he 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 (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, structur e, 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 “ possible to

1 Even though the ATF witnesses testified that Lechner’s permit was never officially approved, Lechner did possess two physical permits. We assume without decidi ng that Lechner’s facially valid permits enabled him to lawfully acquire explosives from 2003 to 2006. The government does not concede this point.No. 13-1072 United States v. Lechner Page 6

articulate a construction more narrow th an that urged by the Government.” Moskal v. United
States , 498 U.S. 103, 108 (1990).
Even assuming that a regulation can trigger the rule of leni ty 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 addr esses “[p]rohibited . . . tran sportation . . . of explosive materials.” It states that “[n]o person, ot her than a licensee or permittee knowingly may transport, ship, cause to be transported, or recei ve any explosive materials . . . .” 27 C.F.R. § 555.26. When read in context, the storage regulation upon which Lechner relies does not abrogate the statute and regulation that expl icitly prohibit non-licensees like Lechner from transporting explosives.
Second, Lechner cannot rely on § 555.205 when he was in clear violation of its main directive. The regulation commands that “[a]ll explosive materials mustbe kept in locked magazines meeting the standards in [Subpart K] unle ss they are . . . [b]eing transported to a place of storage or use by [an approved person].” 27 C.F.R. § 555.205(d). And “a place of storage” must itself be a regulation-compliant locked magazine. See generally 27 C.F.R. §§ 555.201-220. Section 555.205 cannot condone Lechner’s trans portation of ANFO becau se neither of the buildings where he stored the ANFO met ATF standa rds. Regardless of whether he was a person who “lawfully acquired” the explosives, at no time in 2010 or 2011 was Lechner in compliance with the regulation he cites.
Third, the evidence establis hes that Lechner was subject ively not relying on § 555.205 when he moved his ANFO in 2011. First, he told Verette in the record ed conversation that, although ANFO was strictly regulat ed, he didn’t “know what the f**k those [regulations] are.” Second, the fact that Lechner lied to the agents that the ANFO was “used up” and then surreptitiously moved the ANFO to someone else ’s property shows that he knew his possession and storage of ANFO were i llegal. As we explained in United States v. Kernell , 667 F.3d 746, 750 (6th Cir. 2012), a void-for-vagueness challenge requires the defendant to prove the statuteNo. 13-1072 United States v. Lechner Page 7

was misleading “as applied to his particular case.” The fact that Lechner lied to federal agents about his ANFO and then tried to hide it shows he had fair notice he was violating the law.
For each of these reasons, Lechner has not s hown that the statute was vague or that this court should invoke the ru le of lenity. Section 842(a)(3)(A) of the criminal code is perfectly clear. A person without a license or permit is forbidden from tran sporting explosives. A storage regulation that creates a common-se nse exception to the rule that explosives must be kept in locked, regulation-compliant magazines does not rende r the statute so vague as to not give fair notice. And, because the statute is clear, ther e is no reason to invoke the rule of lenity.
C. Entrapment by Estoppel
The entrapment-by-estoppel defense is available when (1) the government announces that the charged criminal act was lega l; (2) the defendant relies on the announcement; (3) the reliance is reasonable; and, (4) “giventhe defendant’s reliance, the prosecution would be unfair.” United
States v. Levin , 973 F.2d 463, 468 (6th Cir. 1992). The governmental announcement upon which Lechner says he relied is the ATF regulati on, 27 C.F.R. § 555.205(d), discussed above.

Lechner cannot establish any error. First, as we just explained, a proper reading of the regulations does not amount to an announcement th at Lechner’s transportations of ANFO were legal. Second, the evid ence does not suggest Lechner relied on the alleged announcement (the regulation) because the way he stored his explosiv es was already in violation of the regulations. Lechner told Verette he did not even know what the regulations were. Third, Lechner’s alleged reliance would not have been reasonable becaus e he knew before he moved the ANFO in 2011 that the ATF was interested in the ANFO and susp ected the agents planned to seize and destroy it. Fourth, under these circumstances, prosecu ting Lechner for deliberately attempting to hide large quantities of high explosives from the ATF would not be unfair. In sum, under any standard of review, Lechner fails to meet the elements of entrapment by estoppel.

II. COMMERCE CLAUSE
Under the principles of American constitu tional federalism, Congress possesses only the powers that are “delegated” to it by the text of the Constitution. See U.S. Const. amend. X. Congressional authority for the regulation of explosives derive s from the Commerce Clause.No. 13-1072 United States v. Lechner Page 8

U.S. Const. art. I, § 8, cl. 3 (“Congress shall have the power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes .”). The power to regulate commerce among the states extends to three s pheres: the channe ls of interstate commerce; the instrumentalities of interstate commerce and persons or things traveling in interstate commerce; and activities that have a substantial effect on interstate commerce. Gonzales v. Raich , 545 U.S. 1, 16-17 (2005).
Lechner argues that because his possession, storage, and transpor tation of explosives happened wholly within the state of Michigan, his crimes lack a nexus to interstate commerce. He does not contest the jury’s fi nding that his explosives were manufactured outside Michigan.
Lechner’s Commerce Clause challenge is a c onstitutional attack that implicates the court’s jurisdiction to apply the statute. See Slone , 411 F.3d at 646. Even though Lechner failed to raise the argument in the distri ct court, we review it de novo.
Courts have consistently held that Congress may regulate the sale, st orage, transportation, and possession of explosives—just as Congress heavily regulates drugs and firearms. In Barrett v. United States , 423 U.S. 212, 225 (1976), the Supreme Cour t held that the fe deral Gun Control Act covers the intrastate receipt of “a firear m that previously had moved in interstate commerce.” This was so because the “very stru cture” of the Act “demonstrates that Congress did not intend merely to restrict interstate sales but sought broadl y to keep firearms away from the persons Congress classified as poten tially irresponsible and dangerous.” Id . at 218. The same rationale applies to the fe deral regulation of explosives. See United States v. Holloway , 744 F.2d 527, 529-30 (6th Cir. 1984) (citing United States v. Freed , 401 U.S. 601, 609 (1971)); United States v. Dawson , 467 F.2d 668, 673 (8th Cir. 1972) (“ There being a rational basis upon which Congress properly could have determined th at the misuse of explosive materials is one activity which, as a class, affects commerce, the Government need not specifically allege and prove a connection between interstate commerce and the conduct made criminal by § 842(h).”). Congress’s comprehensive regulatio n of explosives—like its regul ation of firearms and drugs— is permissible because the misuse of such material, especially wh en transported on highways, has a substantial effect on interstate commerce.No. 13-1072 United States v. Lechner Page 9

III. POSSESSING EXPLOSIVES WHILE UNDER INDICTMENT
Under 18 U.S.C. § 842(i), it is unlawful for any person “who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport any explosive in or affecting interstate or foreign commerce or to receive or possess any explosive which has been shipped or transported in or affecting interstate or foreign commerce.” For pur poses of this statute, a charge by information is equivalent to a ch arge by indictment. See 27 C.F.R. § 555.142(e).
Lechner argues that the court plainly erred wh en it failed to instruct the jurors that they had to find that Lechner knew he was indicted. He also protests that the law is unconstitutional because it is impossible for a lawful possessor of explosives to comp ly: when an authority issues an indictment, this automatically causes the ow ner of explosives to violate the statute.

A. Standard of Review
Lechner’s argument that the court was requi red to supply an additional mental-state element is not a jurisdictional issue. The remedy w ould be to read a mental state into the statute, not to hold the statute unconstitutional. See Staples v. United States , 511 U.S. 600, 604-07 (1994). Similarly, Lechner’s “impossible comp liance” issue could be avoided by reading a mens

rea into the statute or by applying the rule of lenity. Because we could remedy each of these alleged defects by applying canons of statutory cons truction, they are not jurisdictional. Because Lechner failed to present these theories to th e district court, we re view for plain error.
B. Background
In July 2011, a county pr osecutor charged Lechner by in formation with three state felonies. This prosecutor testified at Lechner’s trial. He describe d the charges, stated that they were still pending, and explained that Lechner a ttended the preliminary hearing on those charges in August 2011 and was bound over for trial. During his testimony, Lechner also recalled attending the preliminary hearing. The following exchange occurred: Q You went to a preliminary examination, correct? A Yes. Q You were bound over?No. 13-1072 United States v. Lechner Page 10

A I really disagree that I was bound over, but I—but I guess I was. Q You understand that somebody that’s under indictment can’t have explosives? A Well, I know that there is a law that says [so.] This is the funny situation. Because the second that you get bound over, that means you gotta go to prison for ten years because you have got explosives. Well, that’s not what they meant by that law. And even in the law it says you have got 30 days to dispose of it . . . . Say I have got 150 ton of explosives, and then . . . as soon as you do get [indicted or convicted], then automatically you go to prison for ten years because you got explosives. The law wants you to be able to get rid of it. There is a compliance law or . . . something in there that says you have got 30 days to dispose of the explosives before you have to go to prison for ten years. Q These are within the regulations— A Well, it is a law. It is ATF ru les and laws, regulations and laws. In closing, Lechner’s counsel stated that although Lechne r had charges “filed against him” after he had “issues w ith the police,” Lec hner “didn’t believe that he was under indictment.” Lechner’s counsel told the jury it was his unde rstanding that Lechner “also believed that, according to the regul ations, that whoever was in ch arge of the ANFO had a period of time, if you were under indictme nt, to get rid of those items.”

The district court instructed the jury that it ha d to find five elements beyond a reasonable doubt: (1) that Lechner possessed ANFO, blasting caps, detonators, or detonation cord; (2) that Lechner possessed the materials kn owingly; (3) that at least one of the listed items was an explosive; (4) “that at the time that the defendant possessed the explosive . . . [he was] under indictment for a crime punishable by imprisonmen t for a term exceeding one year”; and (5) “that the explosive had been shipped or transported in interstate commerce prior to the defendant’s possession of it.” The court specified that th e government “need not prove the defendant knew that he was prohibited from possessing explosives.”
C. Actual Knowledge of Indictment
The traditional rule of substantive criminal law is that every crime must contain an element of “scienter,” a level of mental culpability. Staples , 511 U.S. at 605 (citing United States v. Balint , 258 U.S. 250, 251 (1922)). But “public welfare” or “regulatory” offenses sometimes present an exception to this background principle. United States v. X-Citement Video,
Inc. , 513 U.S. 64, 71 (1994); Freed , 401 U.S. at 609.No. 13-1072 United States v. Lechner Page 11

Lechner’s argument that the government must prove actual knowledge of the indictment under § 842(i)(1) fails under plain error review. First, Lechner cannot demonstrate that the alleged error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See Henderson v. United States , 133 S. Ct. 1121, 1126-27 (2013) (reciting the elements of a plain error claim). Any error w ould be harmless because there was uncontroverted proof Lechner knew he was under indictment. Th e state charges were filed against Lechner months before he was interviewed by ATF agents . Lechner admitted he attended the hearing on these charges and he “guess[ed]” he had been “bound over.”
Second, any error would not be “plain” becau se we have held that—when it comes to a “while under indictment” regulato ry crime—proving knowledge of the indictment is necessary in only one limited circumstance. The Kentucky defendant in United States v. Renner , 496 F.2d 922 (6th Cir. 1974), illegally bought a gun while he was under indictment. But at the time he literally did not know he was unde r indictment. Renner had previ ously been indicted for armed assault with intent to rob, was arrested, and then appeared in state court. Renner testified at his federal trial that the prosecuting witness in the state case told him “he was going to drop the charges,” and that Renner t hought the case was “thrown out of court” at th at point. Id . at 923. The state court did not tell him to appear again, so Renner t hought the indictment “had been dismissed.” Id . What actually happened was that the court had “filed away” the indictment “with leave to reinstate” on the reco mmendation of the prosecuting witness. Id . The indictment was not formally dismissed for over three years. Id . We reversed his convictions for knowingly possessing firearms while under indictment. Id . at 926-27.
Subsequent cases have limited Renner to its facts. See Stanley v. Turner , 6 F.3d 399, 405 (6th Cir. 1993) (highlighting Renner ’s “unusual facts,” i.e., that the defendant “was possibly misled by the apparent dismissal of an indictment against him”); United States v. Minnick , 949 F.2d 8, 10 n.1 (1st Cir. 1991) (observing that Renner is the only federal case to have imposed a scienter requirement on a gun-control law); Holloway , 744 F.2d at 530 & n.4 (explaining that Renner ’s “narrow holding . . . should be limited to its facts”); United States v. Williams , 588 F.2d 92, 93 (4th Cir. 1978) (per curiam) (explaining that Renner confronted “the manifest unfairness of convicti ng a defendant when the indictment may be unserved or when,No. 13-1072 United States v. Lechner Page 12

under the practice in some states, it may have been dismissed, but with leave to reinstate it”); United States v. Barrett , 504 F.2d 629, 634 (6th Cir. 1974) (“The rule of [ Renner ] should be confined to the facts of that case.”), aff’d , 423 U.S. 212 (1976); United States v. Cowper , 503 F.2d 130, 132 (6th Cir. 1974) (“ Renner applied specifically only to the requirement of knowledge applicable to 18 U.S. C. § 922(h)(1).”). Because Renner is an outlier that is distinguishable from this case, the law was not plain that Lechner had to know he was indicted.

To the extent that Lechner’s mens rea argument attacks the jury instructions, any error would be “invited error” because the instructio n at issue was jointly submitted by Lechner and the government. In re Bavelis , 773 F.3d 148, 157 (6th Ci r. 2014) (defining th e invited-error rule as the principle that a party ma y not complain on appeal of erro rs that he himself invited or provoked the court to commit).
D. Impossible Compliance
Lechner’s other theory rega rding his possession-while-und er-indictment conviction is that the law is facially unconsti tutional under the Due Process Clau se. Section 842(i) “renders compliance impossible,” he argues, when people who lawfully possess explosives “are then indicted for a crime.”
Lechner has produced no case law suggesting that 18 U.S.C. § 842(i) is unconstitutional, which means the error cannot be plain. See Jackson , 549 F.3d at 977. Nor would any error on this issue have seriously affected the fairne ss, integrity, or public reputation of judicial proceedings. See Henderson , 133 S. Ct. at 1127. Lechner’s impossible compliance argument is conceptually similar to his scienter argument and fails for similar reasons. Like drug possession and firearm possession, this is a regulatory crime i nvolving materials that thre aten public safety. The congressional intent is to keep explosives out of the hands of dangerous people. Ample evidence at Lechner’s trial demons trated his insouciance toward the handling of explosions and his recalcitrance toward the regulations. Ev en though a well-meaning person could conceivably violate the law, such is not the case before us.
Lechner points out that the ATF “has attemp ted to moderate the harsh consequences of the statute through a grace period for licensees.” Indeed, 27 C.F.R. § 555.142(e)(1) provides aNo. 13-1072 United States v. Lechner Page 13

permittee or licensee with a thir ty-day grace period following the date of indictment or information. Even so, this regul ation would not apply to Lechner because he had no valid permit or license when he came under indictment. Furt hermore, Lechner made no attempt to capitalize on this grace period. He was charged by information in July 2011, but still possessed the ANFO in September. Instead of cooperating with ATF wh en they approached him, he tried to squirrel away his ANFO on someone else’s property.

IV. JURY INSTRUCTIONS ON ATF REGULATIONS
Under 18 U.S.C. § 842(j), it is unlawful “for any person to st ore any explosive material in a manner not in conformity with regulations promulgated by the Attorney General.” The jury convicted Lechner of improperly storing his explosive materials—which included ANFO, blasting caps, detonating cord, and detonato rs—“during November 2010” and “on or about September 20th, 2011.”
The district court instructed the jury th at to find Lechner guilt y on these counts, the government had to prove that: (1) Lechner stored the explosives; (2) L echner did so knowingly; (3) the explosives “were stored in a manner not in conformity with regulations promulgated by the Attorney General”; and (4) at least one of th e items at issue was an “explosive material.” The court specified that the government “need not prove the defendant knew how the explosive materials were supposed to be stored.” In add ition, the government did not have to prove that Lechner “knew that he was stor ing explosive materials in a manner not in conformity with regulations promulgated by the Attorney General.” The jury instructions did not elaborate on the ATF regulations’ requirements.
Lechner argues on appeal that, because the regulations themselves are embedded within the third element of the crime, the court should have instructed the jury on the content of the regulations. The jury instructions on § 842(j) were jointly submitted by Lechner and the government. The argument is therefore waived under the invited error rule, In re Bavelis , 773 F.3d at 157, unless the interests of justice demand otherwise, United States v. Savoires , 430 F.3d 376, 381 (6th Cir. 2005). Even if the inte rests of justice demanded that we consider this invited error, it would fa il under plain error review.No. 13-1072 United States v. Lechner Page 14

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship , 397 U.S. 358, 364 (1970). However, even when a court erroneously omits an element of the crime, when the om itted element “is suppor ted by uncontroverted evidence,” the error may be harmless. Neder v. United States , 527 U.S. 1, 18 (1999).
Lechner argues that “[i]t cannot be discerned from the trial record precisely which of the regulations Mr. Lechner was alleged to have vi olated, much less which of the regulations the jury found he was guilty of vi olating beyond a reasonable doubt. ” The record belies this assertion. The jury was informed about the re gulations. But the information came from an expert witness rather than from the court.
In its opening statement, the government explained the “improper storage” charges: There [are] only two counts but there is a number of diffe rent locations where the stuff is stored. None of these locations ar e adequate. Some of these things are in houses. Some of them are adjacent to houses . None of those storage locations are adequate, acceptable, and so that’s going to be the basis for the conviction on improper storage. To prove these counts, the government called ATF “senior industry operations investigator” Margaret Carvill as an expert witn ess. Carvill explained that she “enforce[s] the federal rules and regulations de aling with firearms and expl osive industry members,” which includes conducting “application inspections” for entities seeking a license and “compliance inspections” of licensees. Carvill said she “bro ught a copy” of the regulations to the witness stand, and told the jury anyone could read the regulations on the ATF’s website.
During her direct examination, the government showed Carvill pictures of Lechner’s “magazines” and asked her “whether they meet th e storage requirements.” In response, Carvill testified that the regulations contain a chart that establishes how far a magazine must be from an inhabited building. She said Lechner’s storage bu ildings failed to comply. For example, one of the storage buildings was only 150 feet from a hous e when the regulations required a distance of 1,370 feet. Carvill testified that the storage sh ed at the Blalock Row residence was also “completely unlawful” because it had the wron g kind of door, lacked an adequate lock, andNo. 13-1072 United States v. Lechner Page 15

contained “rubbish.” Her assessment of Verette’s shed was similar: “We would never approve that.”
Regarding the blasting caps found in the at tic of a house, Carvill explained that “[e]xplosive material is never a llowed to be stored in a reside nce.” Concerning the house that contained blasting caps, boosters, and detonating cord in the attic , Carvill said the storage was also unlawful because blasting caps and boosters “cannot be stored together.”
The government read to Carvill fr om Lechner’s permit application: Section 842(i) 18 USC provides, quote, “I t shall be unlawful for any person to store any explosive material in a manne r not in conformity with regulations promulgated by the secretary,” end quote. [“]Before applying for a license or permit, the applicant must read and be familiar with the requirements as set forth in 27 CFR, part 55, subpart K, storage.[”] Carvill agreed that this language on the applicat ion would “put the applic ant on notice that they have to have a proper storage facility.” Du ring cross-examination, Lechner’s counsel asked Carvill whether “[t]he storage regulations ar e found at CFR 555.201,” and she agreed. At the end of cross-examination, Lec hner’s attorney also asked: Q And there are rules also related to re moving explosives from the magazines, in order to clean the magazines? A That’s correct. Q They can be moved temporarily to ot her locations away from the magazine? A Yes. Q And once there, you get the opportuni ty to clean the magazine and then presumably everything gets put back? A Yes. Lechner did not object to Carvill’s testim ony. And Lechner later admitted in his own testimony that the lock was missing from the shed at the Blalock residence.
Accordingly, the jury heard evidence that Lechner’s storage of explosive materials was noncompliant with ATF regulations in a number of ways:

 The ANFO sheds lacked locks.

 The ANFO sheds had the wrong kinds of doors.

 The ANFO sheds contained other materials that were not permitted.

 The ANFO sheds were too close to inhabited buildings.No. 13-1072 United States v. Lechner Page 16

 The blasting caps, boosters, a nd detonator cord were unlawfu lly stored in a residence.

 The blasting caps and boosters in one at tic were unlawfully stored together.
Additionally, the jury heard that the source of these regulations was “27 CFR, part 55, subpart K,” and “CFR 555.201.” The only remain ing question, then, is whether plain error occurred because the court itself did not identif y or discuss the content of the regulations—even though Lechner never asked the court to do this.
There was no “plain error” in these instru ctions because, as the government points out, “Lechner cites no case requi ring jury instructions to set out the text of regulatory requirements that are otherwise established in the record before the jury.” See Jackson , 549 F.3d at 977. Also, when the jury has been told by an expert witness—without object ion—the precise ways in which Lechner’s storage of explosives violated the re gulations, the alleged er ror would not seriously affect the fairness, integrity, or public reputation of judicial proceedings. See Henderson , 133 S. Ct. at 1127. Even if it was error for the court to omit the content of the regulations from the jury instructions, Lechner’s failure to comply with the regulations was “supported by uncontroverted evidence.” So any error would have been harmless. Neder , 527 U.S. at 18.
Lechner argues that Carvill “never establis hed what the regulations actually say,” but instead foisted her own “thoroughly biased . . . midrash on the regulations.” But, if Carvill’s testimony was inaccurate, Lechner’s counsel could ha ve cross-examined her regarding her biases and asked her to read and interpre t the regulations more thoroughly. See United States v. Gold , 743 F.2d 800, 820 (11th Cir. 1984). Lechner’s counsel may have been reticent to do so because drawing the jury’s attention to the text of the regulations would not have worked in Lechner’s favor.
In this case, (1) Lechner ha d the opportunity to cross-examine the regulations expert; (2) Lechner commented on the regulations in hi s own testimony; and (3 ) Lechner’s attorney recounted Lechner’s interpretati on of the regulations during closing argume nts. The expert identified six ways Lechner violated the regul ations, and Lechner presented no evidence or argument that he was in compliance. He was ther efore not prejudiced by the jury instructions, and there was no plain error.No. 13-1072 United States v. Lechner Page 17

V. MATERIALITY OF FALSE STATEMENT
Under 18 U.S.C. § 1001(a)(2), it is a cr ime when anyone, “in any matter within the jurisdiction of the executive, legislative, or judi cial branch of the Government of the United States, knowingly and willfully . . . makes any materi ally false, fictitious, or fraudulent statement or representation.” At Lechner’s trial, agents testified that wh en they visited him in jail and asked him what he had done with his ANFO, he said he “used it all up.”
When Lechner testified, he said the agents had “tricked” him into saying the ANFO was used up. Lechner claimed what he actually meant was that he had sold his company to his son, so the ANFO no longer belonged to him. On cr oss-examination, the prosecutor asked Lechner, “you lied to [the ATF agents], didn’t you?” Lechner responded that he told “a white lie.” Later, the prosecutor asked Lechner “how many white lie s” he had told in court. “One,” Lechner responded, “and it wasn’t a lie.” “I just didn’t want that stuff dest royed,” he said. “[A]nd I told them that I used it because, in my mind, I used what was mine and ever ything else was sold to [my son]. So if that was a white lie, and I told you, it was whatever, a white lie.”
In closing arguments, the government explained that to be found guilty, Lechner’s statement “has to be material, and of course , it would appear to be the case. They are investigating an explosives case and their main suspect is saying, no, I don’t have any. That’s a material statement.” Lechner’s counsel argued, “I don’t know . . . if a wh ite lie is considered a false statement under the law or not. That’s for you to decide.” The district court then instructed the jury that “[a] material statement or representation is one that has a natural tendency to influence or is capable of influencing a decisi on or function of, in this case, the Bureau of Alcohol, Tobacco, Firearms, and Explosives.” See United States v. Gaudin , 515 U.S. 506, 509 (1995) (reciting this mate riality standard).
Lechner now challenges only the sufficiency of the evidence. Although this entails a form of de novo review, the defendant bears a heavy burden. United States v. Napier , 787 F.3d 333, 345 (6th Cir. 2015). The ch allenge fails if, “viewing th e evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id . (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We may not independently weigh the evidence or make our own judgments about theNo. 13-1072 United States v. Lechner Page 18

credibility of the witnesses. Id . We must draw every reasonable inference from the evidence in the government’s favor. United States v. Cecil , 615 F.3d 678, 691 (6th Cir. 2010).

Lechner cannot surmount this standard. If the agents had believed Lechner’s assertion that the ANFO had been “used up,” this lie w ould have been capable of influencing the investigation. Lechner even admitt ed that he lied to the agents to prevent the ANFO from being destroyed. Lechner’s lie, no matte r its color, was calcu lated to influence th e investigation, and was “capable” of doing so. Gaudin , 515 U.S. at 509. The evidence was sufficient to convict.
Lechner points to one of the district court’ s statements at sentencing. In considering whether to apply a sentencing enhancement for obstruction under USSG § 3C1.1, the court stated: “Of course whatever he told the agent didn’t impede th e investigation, because obviously they proceeded right ahead and found the storage ba rn.” But this discussion of whether Lechner deserved a sentencing enhancement for “si gnificantly obstruct[ing] or imped[ing]” the investigation or prosecution, USSG § 3C1.1, cmt. 4 (G), has no b earing on the jury’s previous finding that Lechner’s false statement was material.

AFFIRMED.