In an unlawful entry case based on the violation of a barring notice, the government has to prove the barring notice is valid

Darius Winston v. United States, Nos. 13-CM-1463 & 13-CM-1464 (January 22, 2015)

Players:  Associate Judges Thompson & Beckwith, Senior Judge Nebeker.  Opinion by Judge Thompson.  Rahkel Bouchet for Mr. Winston.  Trial Judge:  Marisa Demeo

Facts:   A D.C. Housing Authority (DCHA) officer observed Mr. Winston sitting on a stoop in a public housing complex.  After determining Mr. Winston was not a resident of the housing complex, the officer issued a notice barring Mr. Winston from the complex for one year.  The officer made no attempt to determine if Mr. Winston was there as a resident’s guest, but merely assumed he was not a guest.  In fact, Mr. Winston’s mother lived in the complex and testified that he visited her there regularly and also had friends who resided there.  When Mr. Winston was seen in the complex on two separate occasions after the bar notice was issued, he was arrested both times and charged with unlawful entry.

Issue:  In an unlawful entry case premised on the violation of a DCHA barring order, is the validity of the barring order an element of the offense and, if so, was that element satisfied?

Held:  Yes, it is an element, and no, that element was not satisfied.  The government must prove that the barring order was issued for a reason described in DCHA regulations and must offer evidence that the DCHA official who issued the notice had an objectively reasonable basis for believing that the criteria identified in the relevant regulation were satisfied.  Here, the officer made no attempt to verify whether Mr. Winston was a guest or if he was otherwise an “unauthorized” person under the DCHA regulations and thus lacked authority to bar him from the complex.  Because the barring notice was not valid, Mr. Winston could not be convicted of unlawful entry for violating it. DG.

Read full opinion here.