DCCA: Barring notices cannot bar DCHA residents and household members from areas that their leases permit them to access.

Signspotting by K@ja, licensed under Creative Commons

Foster v. U.S., 17-CM-994 (decided November 7, 2019)

• Holding: Evidence that appellant violated a notice purporting to bar him from three out of six buildings in the DCHA development where he lived with his mother was insufficient to establish the crime of unlawful entry, where appellant’s mother’s lease apparently granted appellant access to the entire development, including all common areas and grounds associated with all buildings. Although special police officers testified that the development had been subdivided into three-building sections for purposes of issuing and enforcing barring notices, and that appellant had been barred from the section where he did not reside, the alleged subdivision was not reflected in appellant’s mother’s lease agreement, which listed appellant as a household member and which was further binding on DCHA. Accordingly, the government failed to prove that appellant was an “unauthorized person” subject to barring on the property listed in the notice, i.e., that he was not a “member of [a] resident’s household” on the property in question. 14 DCMR § 9600.2.

Read the full opinion here.

A copy of this post has been added to Elements/Sufficiency of the Evidence section of The (Early) Year in Review (Part 3).

- WCC

If you desire a jury trial, be sure the building itself is open to the public before trespassing.

Jacqueline Frey v. United States (decided May 5, 2016).

Players: Associate Judges Thompson and McLeese, and Senior Judge King. Opinion by McLeese. Trial Judge: Ann O’Regan Keary. Jeffrey Light for Ms. Frey. 

Facts: 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, which though open to the public during the day was closed at that time. Also, in order 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 she had entered the building at 3:30 p.m. the day before, when it was open, and fell asleep in the reading room. When she woke up, the building was closed and she began walking around until she made her way to the office where she was later arrested. After a bench trial, she was convicted of unlawful entry in violation of D.C. Code §22-3302. 

Issue:  Did the trial court err in deciding that Ms. Frey was not entitled to a jury trial? 

Holding: Yes. The unlawful entry statute is divided into two parts. Subsection (a) prohibits unlawful entry into “any private dwelling, building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than 180 days, or both. Subsection (b) prohibits unlawful entry into “any public building, or other property, or part of such building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than six months, or both. Thus, since someone charged with an offense punishable by more than 180 days’ imprisonment has a statutory right to a jury trial, anyone charged under subsection (b) has a right to a jury trial. 

In this case, the information filed did not specify which subsection Ms. Frey was accused of violating. The government conceded that the Adams Building of the Library of Congress is a public building, but argued Ms. Frey was subject to subsection (a) because she was found inside the building at a time when it was not open to the public and in a room that is never open to the public.

The Court disagreed with the government’s argument. The Court reasoned that “[i]n light of the United States’s acknowledgment 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).” The focus is on where the person entered, in this case a public building, and not specifically where inside that building or when the person was found. 

In 2009, the unlawful entry statute had been divided into two parts, as the D.C. Council wished to draw a distinction between private and public buildings, and buildings where someone would have First Amendment protections. The government claimed this meant the building must be considered “private” because the Council only wanted to give more protections to people who entered private buildings due to their First Amendment rights but that no one has a First Amendment right to be in a building when it is closed. The Court disagreed: “By preserving a jury-trial right in all prosecutions for unlawfully entering public buildings, the Council apparently chose instead to draw a more easily administrable line [than the one the government was asking the court to draw]. In such circumstances, we must adhere to the broader language the Council chose, and we may not artificially limit the statute to the particular circumstances that gave rise to the Council’s concern.” 

Also, the Court noted that legislative history indicated the Council understood the jury-trial right would be “tied to the public character of the building as a whole, not to specific areas within a building.” The Court concluded that a defendant charged with unlawful entry has a right to a jury trial if the building itself is a public building, even if the defendant is found at a time when the building is closed or in an area within the building not open to the public. BM

Read full opinion here.

You can burglarize a coal yard or a lumber yard, but not a construction site.

George Sydnor v. United States (decided January 14, 2016)

Players: Associate Judges Fisher and Easterly, Senior Judge Pryor. Opinion by Judge Fisher. PDS for Mr. Sydnor. Trial Judge: John McCabe.

Facts: Mr. Sydnor entered a fenced-in construction site owned by Nicholson Construction Company and took six steel pipes. He was arrested shortly thereafter, and was charged with and convicted of burglary.

Issue 1: Did Mr. Sydnor's actions constitute burglary, where a person who breaks and enters a "yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade" with the intent to commit an offense is guilty of burglary? More specifically, was the construction site a place where goods or chattels were kept "for the purpose of trade?"

Holding 1: The construction site was not a place where goods or chattels were kept "for the purpose of trade," and so Mr. Sydnor could not be guilty of burglary for his actions there. The Court, in its de novo analysis of the meaning of that clause of the burglary statute, held that "for the purpose of trade" means goods that will eventually be bought or sold. It rejected the interpretation that the government urged: that any goods used in business -- i.e., a trade -- were covered. Applying the principle of "ejusdem generis," the Court held that by naming lumber and coal, Congress indicated that the "goods or chattels" in such a yard had to be commercial objects, like lumber or coal, that would be bought and sold. In this case, none of the items in the construction site were intended for commercial sale; they were stored there to be used in the construction project. Mr. Sydnor's conviction for burglary therefore must be vacated.

Issue 2: Was Mr. Sydnor nevertheless guilty of unlawful entry?

Holding 2: The court seemed to doubt that unlawful entry was a lesser-included offense under the Blockburger test, but because Mr. Sydnor had requested an unlawful entry instruction at trial the Court found that Mr. Sydnor was precluded from raising that argument on appeal. The Court then analyzed the sufficiency of the evidence that Mr. Sydnor committed unlawful entry and found it sufficient. It remanded the case for the court to enter a judgment of guilty on unlawful entry. SN

Read full opinion here.