The Sixth Circuit recently found no plain error where a jury was not instructed on the regulations underlying an element of an offense. In United States v. Lechner, the Government charged that the defendant failed to appropriately store explosives. The third element of that offense is that the explosives were stored “in a manner not in conformity with regulations promulgated by the Attorney General.” 18 U.S.C. § 842(j). The case demonstrates, once again, the need for contemporaneous objections at the district courts.
In the case, the district court failed to instruct the jury in regard to the regulations. The Government successfully argued on appeal that such instructions were unnecessary (and certainly not plain error) when the meaning of the regulations was offered to the jury through expert testimony. In Lechner’s trial, the Government introduced uncontroverted expert testimony regarding Lochner’s non-compliant storage practices. Although Lochner argued that such testimony amounted only to a government agent’s interpretation of the regulations (as opposed to an authoritative judicial pronouncement), the Sixth Circuit found that if there was any substantive dispute regarding the meaning of the regulations, then such dispute could have been uncovered through cross-examination (“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.”). Hence, the Court found no plain error.
In a curious aside, the case is also interesting for its citation to the Tenth Amendment, which has essentially become "meaningless rhetoric" since the administration of Franklin Roosevelt. See Garcia v. San Antonio Transit Authority, 469 U.S. 528 (1985) (Powell, J., dissenting). The Sixth Circuit cites the Amendment (the one most widely called for in the state ratifying conventions and once described by Jefferson as the “foundation of the Constitution”), then demonstrates how the modern construction of (for example) the Commerce Clause has destroyed the intent of the Amendment.