United States v. Miqueli

349 A.2d 472, 1975 D.C. App. LEXIS 290

• Court: District of Columbia Court of Appeals
• Decided: December 18, 1975
• Docket: 8909, 9006
• Status: Published

Opinions

NEBEKER, Associate Judge:

In these government appeals from dismissals of informations charging solicitation (sexual), D.C.Code 1973, § 22-2701, this court is asked to overturn the trial court’s ruling that the informations¹ failed to meet the requirements of Rule 7(c) of the Superior Court Rules of Criminal Procedure, and to perform the office of. a document charging a criminal offense in relation to subsequent ability to plead former jeopardy. The orders of dismissal are reversed.

From a reading of the informations it is apparent that each alleged’as ultimate facts all the elements neccessary to constitute the offense. They were based on the language of the statute, and included the date of the solicitation and the name of the one solicited.

The offense of soliciting for lewd and immoral purposes under § 22-2701 has been limited, by construction of this court, to solicitations for acts of sodomy. Riley v. United States, D.C.App., 298 A.2d 228, 232 (1972). With that construction of the statute appellees “were on clear notice” that a charge of soliciting for lewd and immoral purposes charges a solicitation for sodomy under that portion of the statute. Wainwright v. Stone, 414 U.S. 21, 23, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).

Hawkins v. United States, D.C.Mun.App., 105 A.2d 250, 252 (1954), held as to soliciting for prostitution that “we are completely satisfied that this statute is clear in language and purpose, free of ambiguity, and that it lays down a definite and easily understandable standard of criminal liability. . . .” Therefore, to the extent that solicitation for prostitution may be proved as to Ballard and Bishop, the informations properly charged that offense and our case law places them on notice as to the reach of that proscription. Wainwright v. Stone, supra.

The informations were, therefore, sufficiently definite to apprise the defendants of the nature of the accusations against them and thus to enable them to prepare their defense and to plead an acquittal or conviction in bar of future prosecutions for the same offense. Nothing more by way of pleading evidentiary facts was necessary. See Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L. Ed. 92 (1953); Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Bush v. United States, D.C.App., 215 A.2d 853, 856 (1966); United States v. Henderson, 73 App.D.C. 369, 372, 121 F.2d 75, 78 (1941); 8 J. Moore, Federal Practice ¶ 7.04 (2d ed. 1975).

Our decision in Horowitz v. District of Columbia, D.C.App., 291 A.2d 202 (1972), does not dictate a contrary result. Theré the defendant was charged with obstruction of a public thoroughfare. The offense there, unlike those charged here, was not adequately described by use of the statute’s language or court construction. Wainwright v. Stone, supra. This was apparent because the information form was left blank where it provided “for additional allegations describing the particular acts constituting the offense.” Horowitz v. District of Columbia, supra at 203. Neither are we confronted with an allegation respecting whether property “belonged to someone other than the accused.” United States v. Pendergrast, D.C.App., 313 A.2d 103, 105 (1973).

The trial judge seems to have confused the purpose of an information with a desire to have more factual particularity supplied to the defense. He would have done well to have used a bill of particulars (see Super.Ct.Cr.R. 7(f)) instead of burdening the system and the defendants with dismissals, and the resultant appeals and delay. When other avenues for granting relief deemed appropriate are available, short of case termination, they should be used.

Additionally, the trial court erred in ruling that before trial the government must elect between the conjunctively charged solicitation for prostitution and solicitation for lewd and immoral purposes. Congress has defined two types of sexual solicitation in the disjunctive by specifying two ways in which § 22-2701 can be violated. The government may in a single information (as the grand jury may in an indictment) charge all of the prohibited acts in the conjunctive and under such charge proceed to prove any one or more of the acts. Wilson v. District of Columbia, D.C.Mun.App., 65 A.2d 214, 216 (1949); Joyce v. United States, 147 U.S.App.D.C. 128, 133-34, 454 F.2d 971, 976-77 (1971); Morrison v. United States, 124 U.S.App.D.C. 330, 331-32, 365 F.2d 521, 522-23 (1966); Joyner v. United States, 116 U.S.App.D.C. 76, 77, 320 F.2d 798, 799 (1963); and District of Columbia v. Hunt, 82 U.S.App.D.C. 159, 163-64, 163 F.2d 833, 837-38 (1947). Accordingly, the trial court erred in requiring an election by the government.

The trial court orally granted defendant Miqueli’s motion to dismiss on August 16, 1974. On August 26, 1974, at the request of the government, the order was entered on the criminal docket so as to have of record an appealable order. Richards v. United States, 89 U.S.App.D.C. 354, 355-56, 192 F.2d 602, 603-04 (1951). The government filed its timely notice of appeal on September 5, 1974. See D.C.App. R. 4 11(b)(1). See also United States v. Fraser, D.C.App., 330 A.2d 761, 762 (1975), which states:

Rule 4 11(b)(1) of the General Rules of this court prescribes a ten-day period for filing a notice of appeal in criminal cases. The period begins to run “after entry of the . . . order from which the appeal is taken”. Rule 4 11(b)(4) provides that an order “is deemed to be entered within the meaning of this subdivision when it is entered in the criminal docket by the Clerk.” .

The Fraser holding is not to the contrary. Unlike this case, the government in Fraser sought to use a written order which it later submitted as a device to extend the ten-day period beyond the date of entry on the docket. The extra time was used “to determine if appellate relief [would] be sought.” Id. at 762. In the instant case, no docket entry was made until August 26, 1974.

The orders of dismissal are reversed with directions that the informations be reinstated.

So ordered.

1 . The informations were identical and contained the following allegations: “The United States Attorney for the District of Columbia informs the Court that within the District of Columbia: [name of person charged] did on or about [date of the incident] commit the crime or crimes herein identified . . . SEXUAL SOLICITATION—in that he unlawfully invited, enticed, persuaded and addressed for the purpose of inviting, enticing and persuading for the purpose of prostitution and an immoral and lewd purpose, [name of solicitee], a person who had previously attained the age of sixteen years, in violation of Section 22-2701, District of Columbia Code.”