John Holly v. United States of America, Michael C. McClough v. United States of America, Calvin Jones v. United States

464 F.2d 796, 150 U.S. App. D.C. 287, 1972 U.S. App. LEXIS 9107

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 9, 1972
• Docket: 24142, 24144, 24145 and 71-1024
• Status: Published

Opinions

PER CURIAM:

The constitutionality of 22 D.C. Code § 1515(a) (1967) is challenged on these appeals by persons convicted thereunder.¹ That statute provides in pertinent part as follows:

Whoever is found in ... an establishment where . . . any narcotic drug is sold, administered, or dispensed without a license shall, if he knew it was such an establishment and if he is unable to give a good account of his presence in the establishment, be imprisoned. . . .

We now hold, on the basis of our prior decision in Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097 (Ricks I) and Ricks v. United States, 134 U.S.App.D.C. 215, 414 F.2d 1111 (1968) (Ricks II), that § 1515(a), which makes criminal liability turn upon a defendant’s ability to give a “good account” of himself, is unconstitutionally vague.

It is unnecessary here to retrace the thorough analysis of Judge Robinson in Ricks I, which found the concept of “good account” to be “much too loose to satisfy constitutional requirements.” 134 U.S.App.D.C. at 208, 414 F.2d at 1104. See generally 134 U.S.App.D.C. at 204-209, 211-214, 218-223, 414 F.2d 1100-1105, 1107-1110, 1114-1119. Although formulated in the context of a separate but related statute, the analysis applies equally here.² In the light of this conclusion, it is also unnecessary to reach appellants’ additional claims that the statute is overbroad, and that it infringes First Amendment rights of association and the Fifth Amendment privilege against self-incrimination.

In United States v. McClough, note 2 supra, the DCCA thought to make § 1515(a) constitutionally invulnerable by construing “good account” as providing an affirmative defense rather than as constituting an element of the offense. However, we are unable to perceive how this transformation, which merely shifts the burden of proof from the Government to the criminal defendant, in any way makes the statutory offense more precise. Whatever constitutional significance such a construction may have with respect to a defendant’s claim of privilege against self-incrimination, the constitutional requirement that statutes be written with sufficient precision that men do not have to “guess at their meaning” is unrelated to the technicalities of burden of proof. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). While a construction that would have narrowed “good account” to require proof merely that the defendant was not trespassing or had no intent to participate in the illegal narcotics activity might conceivably have rendered the statute sufficiently precise, the DCCA has expressly rejected these alternatives. Wells v. United States, 281 A.2d 226 (1971).³

The Government has made no real effort to justify the manifest infirmities of the phrase “good account,” but rather urges this court, despite our conceded jurisdiction to resolve these appeals on their merits, to defer to the decisions of the DCCA upholding the statute. If the DCCA had not yet had the opportunity to rule on the issues here, or if the question involved only the construction of a statute unrelated to constitutional considerations, sound policy might support this request. Here, however, the position of that court on the constitutional question is clear. Appellants Holly and Jones have been convicted under the statute, and appellant Mc-Clough faces trial under it. Thus we are not persuaded to reject their appeals in the teeth of our own views as to the merits of their constitutional claim— views which were shaped and made known as long ago as 1968 in Ricks.

The judgments appealed from are reversed, and the cases are remanded for disposition consistent herewith.

It is so ordered.

1 . Although appellants Holly and McClough were also charged under 33 D.C.Code § 416(2) (1967), both appellants have conceded in their reply brief that the issue as to that statute is moot.

2 . This was the conclusion reached by the Superior Court, in the case of appellant McClough, in granting a pretrial motion to dismiss the criminal charge. On appeal the DCCA reversed. United States v. McClough, 263 A.2d 48 (1970).

Ricks I and II involved, respectively, the District of Columbia “general vagrancy” and “narcotics vagrancy” laws, which punished those defined by the statute as “vagrants.” The “general vagrancy” statute, 22 D.C.Code §§ 3302-3306 (1969), defined as a vagrant

(1) Any person known to be a pickpocket, thief, burglar, confidence operator, or felon, either by his own confession or by his having been convicted in the District of Columbia or elsewhere of any one of such offenses or of any felony, . . . and having no lawful means of support realized from a lawful occupation or source, and not giving a good account of himself when found loitering around in any park, highway, public building, or other public place, store, shop, or reservation, or at any public gathering or assembly. * * * (emphasis added)

(8) Any person who wanders about the streets at late or unusual hours of the night without any visible or lawful business and not giving a good account of himself, (emphasis added)

The “narcotics vagrancy” statute, 33 D.O. Code § 416a, provided that

(b) For the purpose of this section—

(1) the term ‘vagrant’ shall mean any person who is a narcotic drug user or who has been convicted of a narcotic offense in the District of Columbia or elsewhere and who—

(A) having no lawful employment or visible means of support realized from a lawful occupation or source, is found mingling with others in public or loitering in any park or other public place and fails to give a good account of himself-, * * * (emphasis added)

In invalidating these statutes, Judge Robinson went on to observe

“We are also aware that our ruling, as a matter of stare decisis, undercuts the validity of other sections of both the general vagrancy statute and narcotic vagrancy legislation. Our silence as to the validity of these sections does not indicate any reservation about extending our holding to cover them in appropriate cases.” 134 U.S.App.D.C. at 214, 414 F.2d at 1110.

3 . We deferred our decision in the appeals now before us pending action by the Supreme Court on a pending petition for certiorari in Wells, which involves the same statute. The Supreme Court declined review on March 21, 1972. 405 U.S. 995, 92 S.Ct. 1271, 31 L.Ed.2d 464.