Frey v. United States

• Decision Date: 05 May 2016
• Docket Number: No. 15–CM–353.,15–CM–353.
• Citation: 137 A.3d 1000
• Parties: Jacqueline FREY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

137 A.3d 1000

Jacqueline FREY, Appellant

v.UNITED STATES, Appellee.

No. 15–CM–353.

District of Columbia Court of Appeals.

Argued Feb. 9, 2016.

Decided May 5, 2016.

Jeffrey L. Light, Washington, DC, for appellant.

Daniel J. Lenerz, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman and John P. Mannarino, Assistant United States Attorneys, were on the brief, for appellee.

Before THOMPSON and McLEESE, Associate Judges, and KING, Senior Judge.

McLEESE

, Associate Judge:

After a bench trial, appellant Jacqueline Frey was convicted of unlawful entry, in violation of D.C.Code § 22–3302 (2015 Supp.)

. Ms. Frey argues that she was entitled to a jury trial. We agree, and we therefore vacate Ms. Frey's conviction and remand for further proceedings.

I.

In pertinent part, the evidence at trial was as follows. At about 6:30 a.m. on June 24, 2014, Ms. Frey was found asleep at an employee's desk in a restricted area of the Library of Congress's Adams Building. The Adams Building is generally open to the public from 8:30 a.m. to 4:30 p.m. To get to the desk where she was sleeping, Ms. Frey had to pass through areas that are not at any time open to the public.

Ms. Frey testified that she entered the Adams Building at about 3:30 p.m. on June 23, 2014. She went to the reading room and read for a couple of hours, but then she fell asleep. When she woke up, the building was closed and the lights were out. Ms. Frey started walking around the building, at one point walking through an underground tunnel to another Library of Congress building, the Jefferson Building. Eventually, Ms. Frey made her way to the office in which she was later arrested.

The trial judge found Ms. Frey guilty. Specifically, the trial judge found that Ms. Frey was in an area of the Library of Congress that was not open to the public at any time and that Ms. Frey knew that her presence there was against the will of the Library of Congress. The trial judge did not credit Ms. Frey's denial of an intent to remain in the building.

II.

In 2009, the unlawful-entry statute was divided into two parts. Omnibus Public Safety and Justice Amendment Act of 2009, D.C. Law 18–88, § 215, 56 D.C.Reg. 7413 (Dec. 10, 2009)

. Subsection (a) prohibits unlawful entry into “any private dwelling, building, or other property, or part of such dwelling, building, or other property.” D.C.Code § 22–3302(a)(1). Violations of subsection (a) are punishable by a fine, imprisonment for not more than 180 days, or both. Id. Subsection (b) prohibits unlawful entry into “any public building, or other property, or part of such building, or other property.” D.C.Code § 22–3302(b). Violations of subsection (b) are punishable by a fine, imprisonment for not more than six months, or both. Id. A defendant charged with an offense punishable by more than 180 days' imprisonment has a statutory right to a jury trial. D.C.Code § 16–705(b)(1)(A) (2012 Repl.). Thus, a defendant charged under subsection (a) has no statutory jury-trial right, but a defendant charged under subsection (b) has a statutory jury-trial right. See generally

Turner v. Bayly, 673 A.2d 596, 597–602 (D.C.1996) (defendants charged with offenses punishable by up to six months' imprisonment have statutory right to jury trial).

For reasons that are unclear, the information and amended information filed in this case do not specify which subsection Ms. Frey is accused of violating. Moreover, neither information contains an explicit allegation as to the public or private character of the building or area that Ms. Frey entered. Rather, the informations in pertinent part simply allege that Ms. Frey entered or attempted to enter the Adams Building of the Library of Congress. Ms. Frey demanded a jury trial, arguing that the Adams Building was a public building and that she therefore had been charged with violating subsection (b). The United States contended, however, that Ms. Frey was charged with violating subsection (a), because she entered a private area of the Adams Building and did so at a time when the building was entirely closed to the public. Agreeing with the United States, the motions judge concluded that Ms. Frey did not have a right to a jury trial.

III.

Ms. Frey does not challenge the adequacy of the charging documents or the sufficiency of the evidence. Rather, she argues only that she has a right to a jury trial because she was charged with unlawfully entering the Adams Building, which is a public building. The United States does not dispute that, generally speaking, the Adams Building is a public building. Rather, the United States argues that Ms. Frey's conduct nevertheless falls under subsection (a), because (1) Ms. Frey entered an area of the Adams Building that was not open to the public, and (2) Ms. Frey did so at a time when the Adams Building was entirely closed to the public. We conclude that Ms. Frey has the better of the argument.

The terms “public” and “private” are not defined for purposes of the unlawful-entry statute. The question whether a given building is public or private can be difficult and can depend heavily on the context in which the question arises. See generally Annotation, What [are] “Public Buildings”, 19 A.L.R. 543 (Westlaw database updated May 2016)

(“The construction of the term ‘public building’ depends almost entirely on the context in which it is used, and as this varies in practically every case, no general rule as to the meaning of the term can be formulated.”). The parties in this case, however, do not dispute that, generally speaking, the Adams Building is a public building for purposes of the unlawful-entry statute. We accept that premise without deciding the question. Cf., e.g.,

District of Columbia v. Washington Home Ownership Council, 415 A.2d 1349, 1353 & n. 11 (D.C.1980) (en banc) (declining to decide issue that parties did not dispute). Rather, we decide the question the parties do dispute: Does a defendant who unlawfully enters a private area of a public building, or a public building at a time when the building is closed to the public, violate subsection (a) or subsection (b)? We decide that question of law de novo. Zalmeron v. United States, 125 A.3d 341, 346 n. 5 (D.C.2015).

We begin by looking to the language of subsection (a) and subsection (b). See, e.g., Rodriguez v. District of Columbia, 124 A.3d 134, 146 (D.C.2015)

( “We first look at the language of the statute by itself to see if the language is plain and admits of no more than one meaning.”) (internal quotation marks omitted). As previously noted, subsection (a) prohibits unlawful entry into “any private dwelling, building, or other property, or part of such dwelling, building, or other property.” Subsection (b) prohibits unlawful entry into “any public building, or other property, or part of such building, or other property.” The parties have treated this case as involving a building. Moreover, the parties do not appear to dispute that the term “private” in subsection (a) modifies at least the first use of the term “building.” Accepting these premises, our inquiry reduces to the following question: Did Ms. Frey enter a “public building” or a part of “such” a building, or did she instead enter a “private building” or a part of “such” a building?

To answer that question, we must first construe the word “such” in the phrase “such building.” Principles of ordinary language suggest that “such” refers to the public or private character of the building as previously indicated in the applicable subsection. See Nieves v. United States, 82 U.S.App.D.C. 4, 5, 160 F.2d 11, 12 (1947)

(“The word ‘such’ is restrictive in its effect and obviously relates to an antecedent. In its context here, it refers to a specific kind of service [—] not just any active service [—] previously mentioned in the statute.”); United States v. Ashurov, 726 F.3d 395, 398 (3d Cir.2013) (“ ‘[S]uch’ means of the character, quality, or extent previously indicated or implied.”) (internal quotation marks omitted). So understood, subsection (a) prohibits unlawful entry into a private building or a part of a private building, and subsection (b) prohibits unlawful entry into a public building or a part of a public building. In light of the United States's acknowledgement that the Adams Building is a public building rather than a private building, it seems to follow that Ms. Frey entered a public building, as well as various parts of a public building, and did not enter a private building or any part of a private building. Ms. Frey's conduct therefore appears to have violated subsection (b), rather than subsection (a).

A.

The United States contends, however, that Ms. Frey's conduct falls under subsection (a) because Ms. Frey entered a private area of a public building. In support of that contention, the United States reasons as follows: (1) the District of Columbia Council subdivided the unlawful-entry statute in 2009 in order to preserve a jury-trial right in unlawful-entry prosecutions that raise potential First Amendment issues; (2) although this court's unlawful-entry cases protect First Amendment interests by requiring a heightened showing in prosecutions for entry into public areas of public buildings, no such showing is required in prosecutions for entry into private areas of public buildings; and (3) the amended unlawful-entry statute thus should not be understood to require a jury trial in prosecutions for entry into private areas of public buildings. Our principal difficulty is with the last step in this reasoning. If the Council had intended to tailor the jury-trial right precisely to prosecutions implicating First Amendment concerns, the legislature presumably would have chosen language reflecting that intent. Cf., e.g., Riggs Nat'l Bank of Washington, D.C. v. District of Columbia, 581 A.2d 1229, 1237 (D.C.1990)

(“[I]f the Council had meant what the [appellants] now say it...