Harris v. United States, 6172.

• Decision Date: 11 February 1974
• Docket Number: No. 6172.,6172.
• Citation: 315 A.2d 569
• Parties: David Gary HARMS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 569

315 A.2d 569

David Gary HARMS, Appellant, v. UNITED STATES, Appellee.

No. 6172.

District of Columbia Court of Appeals.

Reargued en banc April 30, 1973.

Decided February 11, 1974.

Peter J. Levin, Washington, D. C., with whom Michael P. Goldenburg, Washington, D. C., was on the brief, for appellant. Robert A. W. Boraks, American Civil Liberties Union Fund, Washington, D. C., was also on the brief for appellant.

John C. Lenahan, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John F. Finnegan, Asst. U. S. Attys. were on the brief, for appellee.

Before REILLY, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER, NEBEKER, PAIR, YEAGLEY and HARRIS, Associate Judges, sitting en banc.

KERN, Associate Judge:

Appellant was charged by an information with keeping a bawdy on disorderly house, specifically, "a premises resorted to for homosexual activities," in violation of D.C.Code 1973, § 22-2722.¹ At trial,² appellant's counsel in his opening statement conceded that appellant "owns and runs" the Regency Health Club, but asserted that it was a "homosexual health club," not a disorderly house. The government presented the testimony of an undercover police office as to what he had observed upon the five occasions he had visited the Regency which is located in downtown Washington.

The officer testified that

there was "nothing unusual about it [the Club] . . . [no] garish liights or music",

the "windows are painted over" and admission was by way of a metal door operated by a buzzer from inside the building to "members or persons who had sponsoring cards",

members were required to pay an initial fee of $15 and thereafter a $4 fee on each visit,³

the Club contained a number of "small booths, approximately four foot wide, eight or ten feet deep," in which there was a mattress and where he had seen and heard enough to suggest that homosexual activity was in progress,

the Club also contained lockers, a steam room, a "coke room" and a "therapy" room in which he had seen movies depicting homosexual acts and observed adult males commit acts of sodomy, and

anywhere from 15 to 40 persons had been present in the Club on the occasions he had visited and he himself had been invited by others on these occasions to engage in sodomy.

The trial court, among its other instructions, charged the jury:

[I]n order for you to find Mr. Harris guilty . . you should, in accordance with the elements set forth by the D. C. Court of Appeals in the case of Payne v. United States find first:

That the acts . . . done on the premises are contrary to law and subversive to the public morals;

And secondly, that the premises are commonly resorted to for the commission of such acts. A single act violative of the law occurring on the premises does not make the premises a disorderly house;

And thirdly, that the proprietor . . . knows, or should in reason know that such acts are done and did not prevent them.

Those are the three elements of the crime charged of keeping a disorderly house. (Emphasis added.)

Appellant contends that our construction in Payne v. United States, D.C.Mun.App., 171 A.2d 509 (1961), of the disorderly house statute, viz., there must be proof that acts done on the premises are both contrary to law and subversive of the public morals, has opened that statute to constitutional attack for vagueness since it is unclear which unlawful acts also subvert the public morals⁴ and a defendant has a due process right to know beforehand what conduct of his is forbidden. Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

The government for its part questions our decision in Payne requiring it to prove in a disorderly house case that acts on the premises are not only unlawfully but also subversive of the public morals⁵ and suggests (Memorandum at 6) "that frequent unlawful acts without more render a place where they are committed a disorderly house." (Emphasis added.) Faced with such searching questions of our Payne decision from both defense and prosecution and recognizing the difficulty faced by conscientious trial judges in applying Payne, as exemplified by the record in the instant case where the court took the utmost pains to follow as best it could what it deemed the controlling law,⁶ we ordered this case reheard en banc to enable us to determine whether we should now modify or otherwise clarify Payne.

The crime of keeping a disorderly house was early recognized in this jurisdiction, United States v. Gray, 2 Cranch C.C. 675, 26 F.Cas. p. 17 (No. 15,251) (1826); United States v. Elder, 4 Cranch C.C. 507, 25 F. Cas. p. 996 (No. 15,039) (1835), and was expressly held by the Court of Appeals of the District of Columbia in Palmer v. Lenovitz 35 App.D.C. 303, 304 (1910), to be "a common-law offense" within the District of Columbia. Congress shortly thereafter enacted legislation similar in all substantive respects to the present statute intended to overcome the holding in Palmer (at 307), that the offense was "exclusively within the jurisdiction of the supreme court of the District". By such legislation the police court as well as the supreme court (the court of general trial jurisdiction at that time) was granted jurisdiction to hear and determine disorderly house cases. S.Rep. No. 430, 62d Cong., 2d Sess. (1912). Since Congress in enacting our disorderly house statute made no attempt to define what conduct it was seeking to proscribe we necessarily must resort to the common-law definition of the crime. United States v. Laffal, D.C.Mun.App., 83 A.2d 871, 872 (1951).

Our review of the treatises⁷ and the decisions⁸ persuades us that the common-law crime of keeping a disorderly house was the maintenance of premises upon which activity occurred that either created a public disturbance or, although concealed from the public, constituted a nuisance per se,⁹ such as a gambling house or bawdy house.¹⁰ Indeed, as early as 1898 the Court of Appeals held in De Forest v. United States, 11 App.D.C. 458, 463, that those kinds of houses, such as gambling or bawdy houses, which are "generally sought to be surrounded with an air of mystery and secrecy to keep the knowledge of them from the general public" might nevertheless constitute disorderly houses. The rationale for this common-law rule rested upon the potential in these "houses" for breach of the peace that is inherently present in numbers of persons frequenting such places for unlawful purposes. De Forest v. United States, supra; Thatcher v. State, 48 Ark. 60, 2 S.W. 343 (1886); 2 F. Wharton, Criminal Law and Procedure § 763 (1957).

Our prior decisions have construed Section 22-2722 to apply to premises where the activities have not disturbed the public but have constituted a nuisance per se: a place where prostitutes picked up men, United States v. Laffal, supra; an apartment where a house of prostitution operated, Bennett v. United States, D.C.Mun. App., 171 A.2d 252 (1961); Packard v. United States, D.C.Mun.App., 77 A.3d 19 (1950); a hotel or tourist home where large numbers of men and women registered without baggage and left not long thereafter, Wood v. United States, D.C. Mun.App., 183 A.2d 563 (1962), cert. denied, 371 U.S. 963, 83 S.Ct. 543, 9 L.Ed.2d 510 (1963); United States v. Basiliko, D.C Mun.App., 35 A.2d 185 (1943); and, a hotel frequented by prostitutes with their "dates", Collins v. United States, D.C.Mun.App., 41 A.2d 515 (1945).

In Payne, however, we departed from the mainstream of the common law that for a disorderly house to exist there must be a public disturbance or a nuisance per se consisting of a gambling house or bawdy house and upheld in that case a conviction upon evidence only that the defendant regularly and knowingly purchased stolen goods in her home. In Payne, we also appear to have concluded from a reading of certain language contained in De Forest¹¹ that a disorderly house prosecution lies where acts done on the premises are contrary to law and subversive of the public morals. We conclude upon a further review of De Forest and consideration of the common-law definition of the offense of keeping a disorderly house adopted and followed in most jurisdictions, including the District, that subversion of the public morals is not an element of proof of that crime. Rather, the concern for the public's morals (as well as its health and safety) was the reason at common law why an establishment constituting a nuisance, viz., a gambling house or bawdy house, although kept secret from the general public, nevertheless was deemed a disorderly house. See, e. g., Price v. State, 96 Ala. 1, 11 So. 128 (1892); Thatcher v. State, supra, and Cheek v. Commonwealth, supra. We conclude that the government in a disorderly house prosecution must prove that the activities on the premises either disturb the public or constitute a nuisance per se.¹² Accordingly, we find it unnecessary to reach the constitutional vagueness issue posed by appellant because of our conclusion that Payne was incorrect in requiring proof by the government that the defendant subverted the public morals.

We are then met with the issue of whether the Regency Health Club, a "homosexual health club" where acts of sodomy took place, is similar enough to a gambling house or a bawdy house so as to be a nuisance per se. Initially, we note, that Congress in D.C.Code 1973, § 22-2713, has expressly declared the maintenance of an establishment for the purpose of "lewdness, assignation or prostitution" to be a nuisance and has provided a series of measures for its abatement, D.C.Code 1973, §§ 22-2714 to 22-2719.¹³

This legislative declaration is sufficient to indicate that establishments other than bawdy houses may constitute a nuisance per se. We have recently interpreted the term "lewdness" used in a statute prohibiting solicitation as referring to unlawful sexual conduct, viz., sodomy. See Riley v. United States, D.C.App., 298 A.2d...