LEISS v. UNITED STATES, 364 A.2d 803 (1976)
Jack Kenneth LEISS, Appellant, v. UNITED STATES, Appellee.
No. 9734.
District of Columbia Court of Appeals.
Argued June 10, 1976.
Decided September 20, 1976.

  Appeal from the Superior Court of the District of Columbia,
Orman W. Ketcham, J.
Page 804

  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
Page 805
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.[fn1]

  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
offenders 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
Page 806
erroneous and effectively removed his only defense from the
jury's consideration.[fn2] 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.[fn3] 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
Page 807
  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 v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524
(1960). This principle is a necessary corollary of the rule
that decisions of constitutional dimension are made only as
specifically required by the facts of an actual controversy.
See United States v. Raines, supra.

  It is incontrovertible that appellant was aware that the
statute prohibited his particular conduct. He could have had
no doubt that his presence on the White House grounds past
the noon closing hour would be against the will of the
persons in lawful charge of the premises. That will was
expressed by the sign on the gate restricting visiting hours,
and by Captain Manthos' plain advice that appellant was
forbidden to remain upon the premises after the closing hour.
Appellant does not suggest that he did not see the sign or
that he failed to understand the officer's directive. See
Bowman v. United States, D.C.App., 212 A.2d 610, 611 (1965).
Nor does he contend that he was unaware of or doubted Captain
Manthos' lawful authority. See Whittlesey v. United States,
D.C.App., 221 A.2d 86, 89 (1966). Since appellant's conduct was
within the foreseeable and legitimate reach of the statute, it
would be inappropriate for us to consider its possible
application in remote and hypothetical circumstances.[fn4]

  We similarly reject appellant's last constitutional
challenge to his conviction. We perceive no way in which the
application of the unlawful entry statute can be said to have
interfered unduly with his rights of expression as secured by
the First Amendment. Our fundamental regard for First
Amendment liberties is not diminished by a recognition of the
established principle that the government may make reasonable
regulations, unrelated to the content of the message,
concerning the time, place, and manner of the exercise of
those liberties. See, e.g.,
Page 808
Grayned v. Rockford, supra; Cox v. Louisiana, supra.

  Within the acknowledged power to impose neutral regulations
upon activity otherwise protected by the First Amendment is a
state's ability to control the manner in which the general
public may use public property. As the Supreme Court has
stated:

    The State, no less than a private owner of
  property, has power to preserve the property
  under its control for the use to which it is
  lawfully dedicated. * * * The United States
  Constitution does not forbid a State to control
  the use of its own property for its own lawful
  nondiscriminatory purpose. [Adderley v. Florida,
  385 U.S. 39, 47-48, 87 S.Ct. 242, 247, 17 L.Ed.2d
  149 (1967).]

  The crucial question is whether the restrictions placed
upon access to the White House and its grounds, and the
utilization of the unlawful entry statute against individuals
who refuse to comply with those restrictions, amount to a
reasonable exercise of the government's power to regulate
activity. The issue is to be resolved by balancing factors
such as the nature of the particular public property, the
weight of the governmental interests involved, the
availability of alternative avenues of expression, and the
extent to which the regulation unnecessarily interferes with
First Amendment rights. We conclude that the limitations
imposed upon appellant's use of the White House grounds
constituted a considered and appropriate exercise of
regulatory power which was wholly consistent with the First
Amendment. See Grayned v. Rockford, supra; United States v.
O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed. 672
(1968).

  Unrestricted access to the White House obviously is
incompatible with its character and functions. The White
House fulfills significant governmental, public, and private
functions which make it far more than a symbol of the
executive branch of government toward which individual
grievances legitimately may be directed. It serves as an
office complex for the President and much of his staff,
requiring order and efficiency for the day-to-day performance
of vital and often sensitive administrative activities; as a
public museum, requiring the maintenance of the degree of
safekeeping and decorum to which our national heritage is
entitled; and as a home for the First Family, requiring the
provision of a private refuge from the rigors of public life
and an unfailing vigilance against the acts of potentially
violent individuals.

  Appellant argues that his presence did little to contravene
these governmental interests in that his activity was
passive, stationary, and easily observable. Moreover, he
contends that the President was not in the White House on the
day in question. We refuse to fashion a rule which would
complicate further the complex and elaborate security
precautions which already are necessary at the White House.
The Secret Service and the Executive Protective Service
should not be expected to formulate day-by-day changes in
their protective procedures to accommodate all those who wish
to make the White House their personal forum.

  On the other side of the equation, we do not think that
appellant's exercise of his First Amendment rights was
excessively circumscribed. He was permitted full opportunity
to express his purported grievances inside the White House
grounds; he recited his statement no less than ten times
during the period of his vigil. The record indicates that no
attempt would have been made to interfere with him after the
closing hour had he chosen simply to obey the order to depart
and continue his protest just outside the gate, some 15 feet
away. Given the alternative means available to appellant for
the continued exercise of his rights, and the incidental
manner in which compliance with the lawful order would have
limited his protest, we perceive no infringement
Page 809
of protected expression sufficient to countervail the
government's interests in limiting appellant's activity.
See Pell v. Procunier, 417 U.S. 817, 823-24, 94 S.Ct. 2800, 41
L.Ed.2d 495 (1974). To hold otherwise would be to accept the
universally discredited argument that persons petitioning or
expressing themselves on public property are authorized to do
so whenever and wherever they see fit. Cf. Adderly v. Florida,
supra.

  Finally, we consider appellant's assignment of error with
respect to the impact of the court's charge on his "bona fide
belief" defense. Appellant's argument that the unfavorable
juxtaposition of the instructions concerning his purportedly
bona fide belief in his right to remain and those regarding
the law as to the First Amendment amounted to prejudicial
error presupposes the threshold question of whether he was
entitled to any instruction on his alleged defense. Since we
conclude that he was not, we need not deal with this
contention in depth.

  While a bona fide belief in one's authority to enter or
remain upon premises may negate criminal intent, and thereby
exonerate behavior which otherwise contravenes the unlawful
entry statute, there must be sufficient evidence that the
belief had a reasonable basis before the issue properly may
be submitted to the jury. See Jackson v. United States,
D.C.App., 357 A.2d 409 (1976); Smith v. United States,
D.C.App., 281 A.2d 438 (1971).

  The asserted basis for appellant's belief in his right to
remain on the White House grounds was the notion that the
White House was a particularly appropriate site for his
protest and interpretation of "the whole history of the
United States". However, the record readily reveals that
appellant was directly informed that his right to be on the
White House grounds would lapse at noon, at which time he
would be subject to arrest for trespass. Appellant testified
that he knew he probably would be arrested if he refused to
leave, and he was aware that noon was the "closing hour". He
saw the gates close. The statute under which a continuation
of his conduct would be prosecuted was read aloud to him. On
these facts there was no basis upon which the jury could
determine that there was any justification for his claim of a
reasonable belief in his right to remain.

  Appellant's real defense seems to be not that he was
innocent of any intent to violate the law, but rather that
the self-ordained sincerity and substance of his convictions
placed him above the law. Whatever the source of the
inspiration for appellant's intentional transgression of a
valid statute, it does not immunize him from the consequences
of his act. Under our system of justice, the depth or
character of an individual's political beliefs can have no
bearing upon either his obligation to adhere to the law or
the courts' duty of impartial adjudication.

  Affirmed.

[fn1] It was not alleged that appellant's initial entry upon the
White House grounds was unlawful. Rather, he was charged under
that portion of the statute which proscribes remaining on
property without lawful authority after being ordered to depart
by a person lawfully in charge thereof. See D.C.Code 1973, §
22-3102.

[fn2] Appellant did not object to this aspect of the court's charge
at trial although trial counsel and the court discussed the
instructions at length. It is beyond dispute that unchallenged
instructions must constitute plain error to merit consideration
for the first time on appeal. Watts v. United States, D.C.App.,
362 A.2d 706 (1976) (en banc); Adams v. United States,
D.C.App., 302 A.2d 232 (1973). See Super.Ct.Cr.R. 30.

[fn3] D.C.Code 1973, § 22-3102, provides:

    Any person who, without lawful authority, shall enter, or
  attempt to enter, any public or private dwelling, building
  or other property, or part of such dwelling, building or
  other property, against the will of the lawful occupant or
  of the person lawfully in charge thereof, or being therein
  or thereon, without lawful authority to remain therein or
  thereon shall refuse to quit the same on the demand of the
  lawful occupant, or of the person lawfully in charge
  thereof, shall be deemed guilty of a misdemeanor . .
  ..

[fn4] In exceptional cases a court will consider the
constitutionality of a statute as applied to situations not
presently before it. Appellant contends that this is such a
case. We think that appellant misconstrues the authority upon
which he relies for that argument. It has been held that where
the statute at issue regulates expression protected by the
First Amendment, one to whom it is validly applied may
nevertheless attack its constitutionality. See Gooding v.
Wilson., 405 U.S. 518, 520-22, 92 S.Ct. 1103, 31 L.Ed.2d 408
(1972). How ever, that proposition is inapplicable here. Only
when the potential for improper application is such as would
tend to suppress protected activity will normal rules of
standing be relaxed and a statute invalidated irrespective of
the conduct of the party raising the claim. The unlawful entry
statute is not aimed at regulating speech (or other protected
activity) and cannot fall within such an exception. The
statute's potential for reaching beyond constitutional limits
is insubstantial and highly speculative at most.