Leiss v. United States

• Decision Date: 20 September 1976
• Docket Number: No. 9734.,9734.
• Citation: 364 A.2d 803
• Parties: Jaok Kenneth LEISS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 803

364 A.2d 803

Jaok Kenneth LEISS, Appellant, v. UNITED STATES, Appellee.

No. 9734.

District of Columbia Court of Appeals.

Argued June 10, 1976.

Decided September 20, 1976.

Geoffrey McC. Johnson, law student counsel appointed by the court, with whom

Michael E. Geltner, Washington, D.C., also appointed by the court, was on the brief, for appellant.

Daniel A. DeRose, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry and Robert M. McNamara, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before FICKLING, HARRIS and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted in a jury trial of unlawful entry. D.C.Code 1973, § 22-3102. He challenges the validity of the statutory provision upon which his conviction is based, both on its face and as applied. Appellant also contends that the trial court erred in its charge to the jury concerning his "good faith" defense. We affirm.

At 10:45 a.m. on January 29, 1975, appellant, together with a codefendant who has not appealed, entered the White House grounds through the East Gate which was open to receive the public. Once inside the grounds the two men stationed themselves a short distance from the gate and began reading aloud a statement protesting United States' policy in Southeast Asia. The statement included selected provisions of the Paris Peace Accords which concerned the termination of hostilities in Vietnam. Appellant's conduct apparently was occasioned by the second anniversary of the signing of the Peace Accords, and by a belief that the American government was acting in violation thereof.

Shortly after appellant began to read his statement, he was approached by Captain Pete N. Manthos, the senior officer of the White House division of the Executive Protective Service. Appellant was asked whether it was his intention to join the tour group and whether he wanted to present a petition to, or speak with, any White House staff member. Appellant replied that he wished to remain where he was and continue to read his statement. He thereupon was informed that while he would be permitted to stand and read aloud until the noon closing hour, a refusal to leave the grounds at that time would subject him to arrest. Until noon, appellant did read his statement numerous times, peacefully and without incident.

When the public visiting hours were over, Captain Manthos again approached appellant and asked him to leave the White House grounds. Appellant refused to do so. The officer read the unlawful entry statute to him, and told him that continued refusal would result in his arrest. Appellant then sat down in defiance of the officer's request. Before ordering appellant's arrest, Captain Manthos offered him still another opportunity to depart. Appellant spurned this suggestion, and was arrested.¹

Appellant unsuccessfully sought pretrial dismissal of the information on various constitutional grounds. At trial, appellant's chief defense was that, despite the explicit order from Captain Manthos that he leave, he had a bona fide belief in his right to remain on White House property. This belief, he argued, negated the general criminal intent which is a necessary element of the offense of unlawful entry. The alleged basis for his feeling that he had a right to remain on the White House grounds was the fact that the White House, as the seat of the Executive, was the natural forum for the expression of his opposition to American foreign policy. The government contended that regardless of the asserted existence of appellant's subjective belief that he could lawfully remain, any such belief could have no reasonable basis in the face of both the conspicuously posted visiting hours and Captain Manthos' explicit explanations to the contrary. Thus, the government contended that appellant was not entitled to any instruction on the asserted "bona fide belief" defense, because no factual predicate existed therefor. Nonetheless, the trial court did instruct the jury to find appellant not guilty should they find that he had had a bona fide belief in his right to remain on the White House grounds. The jury found appellant guilty.

Appellant claims that the unlawful entry statute violates the guarantees of both the Fifth and the First Amendments of the Constitution. He argues initially that the statute is impermissibly vague, and therefore contravenes the principles of due process, in that it fails to prescribe ascertainable standards for enforcement, thereby vesting unfettered discretion in the appropriate law enforcement officials. Appellant further contends that the statute is void for vagueness in that it fails adequately to apprise potential of fenders of the precise nature of the conduct proscribed. Appellant's final constitutional claim is that the application of the unlawful entry statute, under the circumstances of this case, impermissibly infringed upon his right of expression as protected by the First Amendment. Additionally, with respect to his asserted defense of a "good faith" belief in his right to remain on the White House grounds, appellant contends that the charge to the jury was erroneous. While, as we have noted, the instructions did direct the jury's attention to the putative defense, the court also informed the jury that the unlawful entry statute was not unconstitutional, that appellant's conduct was not immunized by the First Amendment, and that lofty motivations would not excuse illegal activity. Appellant asserts that such a juxtaposition was erroneous and effectively removed his only defense from the jury's consideration.² We reject appellant's arguments in all respects.

A criminal statute is void on vagueness grounds when it provides no standards by which conduct falling within its scope may be ascertained. Such a statute infringes upon due process rights by failing to provide fair warning of what is prohibited and inviting capricious and arbitrary enforcement by public officials. See Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). A statute will be declared unconstitutional "on its face" when it is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, supra, at 614, 91 S.Ct. at 1688. See Parker v. Levy, 417 U.S. 733, 755, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).

The District of Columbia's unlawful entry statute is not vague on its face.³ It is, by its terms, aimed at certain limited conduct which is constitutionally subject to restraint. It prohibits the act of entering or remaining upon any property when such conduct is both without legal authority and against the expressed will of the person lawfully in charge of the premises. Thus, to be subject to the statute's sanctions, one must be without legal right to trespass upon the property in question. We find no resemblance between the instant provisions and those condemned in the cases upon which appellant relies. Under our statute, an individual's otherwise lawful presence is not conditioned upon the mere whim of a public official to whom the statutory language lends no guidance. See Shuttlesworth v. Birmingham, 383 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). Appellant has not alleged the existence of discriminatorily selective enforcement, nor does the record intimate any such abuse. The statute encourages no greater exercise of discretion and on-the-spot administrative judgment than is constitutionally permissible. See Grayned v. Rockford, 408 U.S. 104, 113-14, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Cox v. Louisiana, 379 U.S. 559, 568-69, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965).

Moreover, the statute is not subject to the criticism that its prohibitions are phrased in such imprecise language as to be beyond the comprehension of those seeking to conform their behavior to its mandate. The type of conduct subject to its sanctions is clearly identified in words of common understanding, with little room for misinterpretation or conjecture. With respect to this aspect of appellant's claim of vagueness, we note the Supreme Court's views as expressed in Colton v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972):

The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.

In his effort to establish the vagueness of the unlawful entry statute, appellant raises several hypothetical situations which, he argues, demonstrate the statute's fatal imprecision. For example, he contends that because the statute fails to require explicitly that the violator be aware that the person demanding his departure is "lawfully in charge", an individual either unaware or suspicious of the asserted authority would not know if his refusal to leave would violate the law. While we view appellant's reading of the statute as strained, we conclude that regardless of any possible ambiguity of its provisions as applied to a hypothetical situation, such speculative uncertainty cannot be asserted successfully by appellant to challenge his own conviction. It is a well-settled principle that one to whose conduct a statute clearly applies is not entitled to attack it on the ground that its language might be less likely to give fair warning in some other situation not before the court. See, e.g., Parker v. Levy, supra, 417 U.S. at 756, 94 S.Ct. 2547; Gooding v. Wilson, 405 U.S. 518, 530, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (Burger, C. J., dissenting); United States...