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McNeely v. United States


May 12, 2005


Appeal from the Superior Court of the District of Columbia. Hon. Mildred M. Edwards, Motions Judge, Hon. William M. Jackson, Trial Judge.

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued June 18, 2001

Before SCHWELB, RUIZ and GLICKMAN, Associate Judges.

Robert McNeely appeals convictions on two counts of violating the Pit Bull and Rottweiler Dangerous Dog Designation Emergency Amendment Act of 1996 (the "Pit Bull Act" or "Act"). See D.C. Act 11-257, 43 D.C. Reg. 2156 (Apr. 16, 1996), amending D.C. Code § 6-1021.6 (b) (1995), re-codified at D.C. Code § 8-1906 (b) (2001). He argues that his convictions should be reversed because the Pit Bull Act denies due process of law and because the prosecutor engaged in improper closing and rebuttal arguments. In support of the former claim, McNeely contends, first, that the Pit Bull Act does not give "fair warning" of the criminally proscribed conduct and, second, that the Act constitutes an impermissible strict liability felony. We affirm.


At approximately 1:00 a.m. on May 13, 1996, Helen Avery carried a bag of spoiled food to the trash can behind her home. As she replaced the can's lid, Avery saw two dogs appear from under the steps of her back porch. The dogs charged towards her, forcing Avery to seek an escape by scaling a fence to her neighbor's yard. Unfortunately, she did not evade the dogs quickly enough: one of then seized Avery by the back of her leg and pulled her off the fence, while the other dog jumped on top of her as she fell backwards. During the ensuing attack, skin, muscle, and nerve tissues were bitten off from various parts of her body, including her leg and both arms; one of her toes was nearly bitten off; and she lost a large amount of blood. The attack finally ended when Avery's son, Jerrel Bryant, and two other men successfully chased the dogs off by beating them with an ax and baseball bat.

Officer Patrick Keller of the Metropolitan Police Department responded to an emergency phone call placed by Carey Smith, one of Avery's neighbors who had witnessed the attack. The dogs had since departed from the scene, but Officer Keller was able to follow a trail of blood he found in the alley which led several hundred feet to a badly wounded dog collapsed in the backyard of McNeely's home at 79 Q Street, S.W. Another dog was also present. Having recently returned home from a wedding earlier that day, McNeely spoke with Officer Keller and admitted that he owned both dogs.*fn1 Officer Keller inspected McNeely's dog kennel and backyard, noting that, while the kennel was closed, secured, and had no openings in it from which the dogs could escape, the backyard fence was dilapidated and had been dug out in various places.*fn2

On May 29, 1996, McNeely was indicted on two counts of violating the Pit Bull Act by allegedly owning the two pit bulls that unprovokedly attacked Avery. See D.C. Act 11-257, 43 D.C. Reg. 2156, amending D.C. Code § 6-1021.6 (b). Under the Act, each violation exposed McNeely to a potential fine not to exceed $20,000 and two years of imprisonment. See id. Defense counsel filed a pre-trial motion seeking dismissal of the indictment on various grounds, including that the Act contravened due process of law because it was impermissibly vague and because it imposed felony liability in the absence of fault. The government opposed the motion, arguing that the Pit Bull Act was not vague because it was not standardless, and although it did not expressly require a mental state reflecting some sort of malice or fault, it could properly be construed as requiring proof that the accused knowingly owned a pit bull. Applying United States v. Staples, 511 U.S. 600, 606 (1994), the court reasoned that, because the express language of the Act was silent in regard to criminal mens rea, and because the Council of the District of Columbia did not otherwise expressly or impliedly indicate that it intended to impose strict criminal liability, the court must impute to the Pit Bull Act a basic scienter requirement. The judge accordingly interpreted the law as requiring the prosecution to prove not only that the pit bulls attacked without provocation, but also that McNeely knew that the dogs he owned were pit bulls.

McNeely did not dispute at trial, nor does he now on appeal, that he knew that his dogs were pit bulls. His defense at trial centered largely on the absence of evidence establishing beyond a reasonable doubt that the attack upon Avery was unprovoked. Lending general support to McNeely, Susan Simms testified that they both lived at 79 Q Street, S.W., and that, on the day preceding the attack, she and McNeely left the house around noon for a wedding reception in Maryland and did not return until 2:00 a.m. the next morning, after the attack had occurred. She stated that she had fed the dogs the previous morning at 10:00 a.m. and that the dogs had been locked in the kennel.

During the government's closing argument, the prosecutor reminded the jury that McNeely's knowing ownership of the pit bulls was established by his own admission. Apparently attempting to summarize the evidence of the unprovoked nature of the attack, the prosecutor also reminded the jury that Bryant had testified that he recalled seeing the dogs running loose in front of his mother's home earlier in the evening, and that there was no other person or animal in the vicinity when the dogs attacked her.*fn3 The circumstances of the dogs' escape from the backyard was also discussed during closing argument. Drawing on Officer Keller's testimony, the prosecutor argued without objection that since the police found the kennel secured while at the same time the dogs were running loose, the jury could conclude that "through negligence, recklessness[, or] . . . an omission by the defendant" the dogs were allowed to run loose and attack Avery. During rebuttal argument, the prosecutor's argument evolved into an assertion that McNeely likely allowed his dogs to run free after he returned from the wedding reception: "What happened that night, ladies and gentlemen[?] The defendant came home with his girlfriend. They put the dogs in the back yard . . . ." Defense counsel objected that there was no evidence to support such an argument. The court sustained the objection, ruling that there was no evidence that upon returning with Simms, McNeely let the dogs out of the kennel thinking that the dogs would remain in the yard. No curative jury instruction was requested or given. Later in rebuttal, the prosecutor said:

Should the defendant be criminally responsible? The District Council government has already determined the answer to be "yes." If you find that he did know he owned pit bulls and they got out and they hurt somebody without provocation, the answer is "yes." You only need to read the newspaper and use your common sense to know why.

The Court interjected sua sponte: "You cannot read the newspaper. You cannot read the newspaper . . . . Disregard the comment you only need to read the newspaper." The trial court denied McNeely's ensuing motion for a mistrial, preferring instead to give an immediate curative instruction and to remind the jury later during final instructions that they could not rely on what they read in the newspapers to decide the case.

After the jury reached its verdicts of guilt, the trial court asked counsel to brief the issue of improper argument by the prosecutor in closing so that the court could revisit the matter at sentencing. After taking the issue under advisement, the judge denied at sentencing defense counsel's motion for a new trial. The court agreed that the prosecutor's newspaper comment was "grossly improper," but it also determined that its sua sponte interjection required harmless error analysis. Given the "low standard of proof" and the strength of the government's case, the court ruled that the prosecutor's unwarranted comment was harmless. After listening to the parties sentencing requests,*fn4 the trial court sentenced McNeely to: (1) eight to twenty-four months concurrent terms of imprisonment, with execution of the sentence suspended; (2) three years of supervised probation; (3) 150 hours of community service; and (4) a fine of $5,000 payable in monthly installments of $100. This appeal timely followed.


The Council enacted the first legislation in this jurisdiction to regulate dangerous dogs in 1988. See generally D.C. Act 7-190, D.C. Reg. 35-4787, codified at D.C. Code §§ 6-1021.1 -- 6-1021.8 (1995). This law continues to apply today.*fn5 Any dog that "[h]as bitten or attacked a person or domestic animal without provocation," or "[i]n a menacing manner, approaches without provocation any person or domestic animal as if to attack, or has demonstrated a propensity to attack without provocation or otherwise to endanger the safety of human beings or domestic animals," is a "dangerous dog" within the meaning of the statute. D.C. Code § 6-1021.1 (1)(A)(i) & (ii). Once a dog has been classified as "dangerous" after a hearing conducted before the Mayor, see D.C. Code § 6-1021.2,*fn6 the owner must, in addition to complying with universally applicable licensing obligations, see D.C. Code § 6-1004 (1995), specially register his or her dog as a dangerous dog, see D.C. Code § 6-1021.4,*fn7 and fulfill special responsibilities that apply only to owners of dangerous dogs. See D.C. Code § 6-1021.5.*fn8 Violation of any of these heightened duties may result in a fine not to exceed $300 for a first offense and $500 for a second offense. See D.C. Code § 1021.6 (a). In addition, "[a]n owner of a dangerous dog that causes serious injury to or kills a human being or a domestic animal without provocation shall be fined up to $10,000." D.C. Code § 6-1021.6 (b).

This statutory framework was temporarily amended on an emergency basis in 1996 by the Pit Bull Act, pursuant to which McNeely was convicted.*fn9 In relevant part, the Act added the pit bull breed -- as defined by either the American Kennel Club or the United Kennel Club -- to thedefinition of a dangerous dog.*fn10 See sec. 2 (a), 43 D.C. Reg. at 2156. It further excepted all pit bulls from the provisions of D.C. Code §§ 6-1021.2 and 6-1021.3, thus removing the need for an administrative hearing in order to classify any particular pit bull as a dangerous dog. See sec. 2 (b), 43 D.C. Reg. at 2156. A new provision was added to allow the Mayor to impound and humanely destroy any pit bull found within the District which had not been licensed and specially registered under D.C. Code § 6-1021.4, unless the owner provided sufficient evidence to prove in an administrative hearing either that the dog was in fact not a pit bull, or that the pit bull would be permanently removed from the District of Columbia. See sec. 2 (c), 43 D.C. Reg. at 2157. Most pivotal to this case is the Act's amendment of the penalty provisions of D.C. Code § 6-1021.6. While excepting all owners of pit bulls from civil fines arising from technical violations of the special registration provisions,*fn11 see sec. 2 (f)(1), 43 D.C. Reg. at 2158, the Pit Bull Act substantially augmented the penalty imposed upon an owner when a pit bull causes injury to another person or domestic animal:

[a] pit bull or a Rottweiler that causes injury to or kills a human being or a domestic animal without provocation shall be humanly [sic] destroyed and the owner of such dog shall be fined up to $20,000 and may be sentenced to not more than 2 years of imprisonment.

43 D.C. Reg. at 2158. It was under this particular provision that McNeely was convicted and sentenced.


McNeely asserts that the Pit Bull Act denies due process of law because it fails to provide "fair warning" of the conduct it proscribes and because it constitutes an impermissible strict liability felony. The government disagrees with the former claim because the Act's penalty provision expressly provides constitutionally adequate notice of the conditions under which criminal liability may attach. The government responds to the second claim by arguing that strict liability statutes imposing criminal sanctions are, as a constitutional matter, permissible, and, that as a matter of statutory interpretation, the common law presumption in favor of imposing a mens rea requirement where a statute is otherwise silent does not permit the court to read into the statute an intent requirement that cannot be reconciled with the Council's obvious purpose. Mindful that the "definition of the elements of a criminal offense is entrusted to the legislature," Liparota v. United States, 471 U.S. 419, 424 (1985), and that "a strong presumption of constitutionality inheres in legislative enactments" not easily overborne by a challenging party, In re W.T.L., 656 A.2d 1123, 1131 (D.C. 1995) (citing Cobb v. Bynum, 387 A.2d 1095, 1097 (D.C.1978)), we conclude that the Pit Bull Act is sufficiently definite to comport with the demands of the Constitution's Due Process Clause and that the Council created through the Act a constitutional strict liability felony, without requiring a culpable state of mind, so long as it is proved that the defendant knew he or she owned a pit bull.*fn12

A. Standing

McNeely presses his "fair warning"claim on appeal in general terms without reference to any of the particular circumstances of his case. We therefore assume that he raises a facial challenge to the Pit Bull Act's constitutionality. A "facial" challenge to a statute alleges that the law is "invalid in toto -- and therefore incapable of any valid application . . . ." Steffel v. Thompson, 415 U.S. 452, 474 (1974); see also City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (explaining that a party mounting a facial challenge "seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question"). Because this form of objection to an assertedly vague legislative enactment implicates the rights of third parties not present before the court, we address a threshold matter of prudential third party standing, which depends upon the substantive doctrine undergirding the claim of error. Although McNeely's constitutional challenge is cast in general terms, the Supreme Court has recognized at least two bases for a facial challenge to a statute.

"First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when 'judged in relation to the statute's plainly legitimate sweep.'" Morales, 527 U.S. at 52 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973)). We have accordingly held that, in order for a party challenging a statute as overly-broad to have prudential standing, the statute must implicate First Amendment concerns. See German v. United States, 525 A.2d 596, 605 (D.C. 1987) (citing New York v. Ferber, 458 U.S. 747, 767-68 (1982); Broadrick, 413 U.S. at 613). McNeely asserts that the Act does not give fair warning because it too broadly criminalizes pit bull ownership, the evidence of which is a series of unrelated hypothetical situations detailed in his brief in which application of the Pit Bull Act would have "surprisingly" untoward results. Because dog ownership is a form of property interest not protected by the First Amendment, see Nicchia v. New York, 254 U.S. 228, 230 (1920) ("Property in dogs is of an imperfect or qualified nature and they may be subjected to peculiar and drastic police regulations by the State without depriving their owners of any federal right."); cf. State v. Peters, 534 So. 2d 760, 763-64 (Fla. Dist. Ct. App. 1988) ("Where there is no fundamental right or suspect class at issue -- as here, where the classification concerns animals -- courts will usually uphold the constitutionality of the law."), McNeely lacks prudential standing to raise an overbreadth challenge.

The vagueness doctrine forms a second potential basis for a facial challenge to a statute where, "even if [the] enactment does not reach a substantial amount of constitutionally protected conduct, . . . it [nonetheless] fails to establish standards for the police . . . that are sufficient to guard against the arbitrary deprivation of liberty interests," Morales, 527 U.S. at 52, or it "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits." Id. at 56. McNeely's fair warning claim falls within the latter category. Whereas the absence of First Amendment concerns renders an overbreadth claim non-justiciable under notions of prudential third party standing, a vagueness claim not implicating the First Amendment remains cognizable, but only as applied to the facts of the case presented. See Chapman v. United States, 500 U.S. 453, 467 (1991) (citing United States v. Powell, 423 U.S. 87, 92 (1975) ("[i]t is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand") (quoting United States v. Mazurie, 419 U.S. 544, 550 (1975))). We therefore turn to the merits of McNeely's fair warning argument as an applied challenge to the constitutional vagueness of the Pit Bull Act.

B. Vagueness Challenge

The Due Process Clauses of the Fifth and Fourteenth Amendments of the Constitution have been construed as requiring that notice be given of the conduct proscribed by criminal statutes.*fn13 See, e.g., Colten v. Kentucky, 407 U.S. 104, 110 (1972). To enforce this guarantee, courts have adopted a "void-for-vagueness" doctrine, which "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited . . . ."*fn14 Kolender v. Lawson, 461 U.S. 352, 357 (1983); accord United States v. Smith, 685 A.2d 380, 384 (D.C. 1996); Chemalali v. District of Columbia, 655 A.2d 1226, 1230 (D.C. 1995). "Sufficient definiteness" is an elastic concept. Where criminal penalties are at stake, the constitutionally tolerable limits of statutory imprecision contract and a relatively strict vagueness test is appropriate. See Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982) (explaining the Constitution permits a greater degree of imprecision in a civil statute than in a criminal statute) (citing Barenblatt v. United States, 360 U.S. 109, 137 (1959) (Black, J., with whom Warren, C. J., and Douglas, J., joined, dissenting)); Winters v. New York, 333 U.S. 507, 515 (1948)). Whatever the level of scrutiny, however, a statute is not unconstitutionally vague even if it requires that a person's conduct conform to a somewhat amorphous -- yet comprehensible -- standard; it is unconstitutionally vague only if "no standard of conduct is specified at all." Tuck v. United States, 467 A.2d 727, 731 (D.C. 1983) (internal quotation marks omitted) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)). Therefore, it is well established that "a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . ."*fn15 Morales, 527 U.S. at 56 (citing Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966)).

McNeely fails to identify any imprecision in the express language of the Pit Bull Act that deprives him of fair warning of the proscribed conduct. Examining it ourselves, we observe that the Pit Bull Act specifically and unambiguously imposes liability on the owner of a pit bull or Rottweiler that attacks and causes injury without provocation. By focusing on (1) the ownership of (2) two specific breeds, (3) unprovoked attacks, and (4) injury in fact, the Act criminalizes a narrow range of conduct that is easily understood. McNeely complains that the Act subjects owners of pit bulls to criminal liability "without regard to any behavior that they could take to avoid violating the law." We do not agree because the plain, non-technical language of the Act's penalty provision clearly indicates that ownership of pit bulls is highly disfavored in the District of Columbia and that desisting in such ownership is the most immediately available and effective recourse to avoiding criminal liability. The wording of the Act is thus not lacking in fair warning such "that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . ." Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).

McNeely nonetheless asserts that the Pit Bull Act is unconstitutionally vague because it imposes criminal liability without regard to fault. Although the absence of a scienter requirement may be a factor considered when testing a statute for constitutional vagueness, see, e.g., Colautti v. Franklin, 439 U.S. 379, 395 (1979) ("This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.") (citing, inter alia, United States v. Ragen, 314 U.S. 513, 524 (1942) (stating that in the absence of a scienter requirement, a statute may become little more than "a trap for those who act in good faith")), the absence of a scienter requirement is not a sufficient basis to strike a legislative enactment as unconstitutionally vague. Rather, the absence of a scienter requirement may be weighed in determining that the express language of a statute is void for vagueness, while the presence of a scienter requirement may save a statute from invalidation despite the apparent vagueness of its wording. See Hoffman, 455 U.S. at 499 ("a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed") (citing Screws v. United States, 325 U.S. 91, 101-03 (1945) (plurality opinion) ("[the] requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid . . . . The requirement that the act must be willful or purposeful may . . . relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware")). We find no support for McNeely's assertion that the strict liability nature of the Pit Bull Act renders it inherently void for vagueness -- a proposition made plainly untenable by the fact that strict liability offenses are constitutionally enforced in the laws of this jurisdiction and across the nation. See section III. C, infra.

Finally, McNeely draws our attention to Lambert v. California, 355 U.S. 225 (1957), where the Court considered the validity, under the Due Process Clause of the Fourteenth Amendment, of an ordinance that made it a criminal offense for a convicted felon to remain in the city of Los Angeles for five days without registering with the chief of police. The Court invalidated the statute as it applied to Lambert, holding that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.

As Holmes wrote in THE COMMON LAW, "A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear."

Id. at 229. The Court drew this conclusion for two reasons. First, the ordinance punished wholly passive conduct, that is to say, "[v]violation of its provisions [was] unaccompanied by any activity whatever, mere presence in the city being the test." Id. Second, "circumstances which might move one to inquire as to the necessity of registration [were] completely lacking." Id. Because physical presence within a city is presumptively innocent, the Court reasoned that there was no "commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed." Id. at 228. Lambert is thus a rare instance in which the Supreme Court has held that, contrary to the well-established tenet that ignorance of the law is not a defense to criminal prosecution, see Cheek v. United States, 498 U.S. 192, 199 (1991), actual knowledge of the law is a prerequisite to criminal liability.

McNeely contends that the Pit Bull Act is similar to the ordinance in Lambert because it subjects to criminal prosecution an individual engaged in otherwise innocent conduct -- ownership of pit bulls. But, as we have already discussed, the Pit Bull Act more limitedly criminalizes ownership of pit bulls that cause serious injury or death to a human being or another domestic animal. The temperament of pit bulls, particularly their volatile capacity for hostility and violent behavior, is sufficiently well-known that these dogs are "proper subject[s] of regulatory measures adopted in the exercise of a state's 'police power . . . .'"*fn16

McIntosh v. Washington, 395 A.2d 744, 756 (D.C. 1978) (citing United States v. Inter'l Minerals & Chems. Corp., 402 U.S. 558 (1971) (corrosive liquids); United States v. Freed, 401 U.S. 601 (1971) (grenades); United States v. Balint, 258 U.S. 250 (1922) (narcotics); United States v. Dotterweich, 320 U.S. 277 (1943) (adulterated and misbranded drugs)). Moreover, unlike in Lambert, McNeely's undisputed knowledge that his dogs were pit bulls should have moved him to inquire into his heightened obligations under the Act. See Lambert, 355 U.S. at 229. Where such characteristically dangerous dogs are knowingly owned, "the probability of regulation is so great that anyone who is aware that he is either in possession of or dealing with them must be presumed to be aware of the regulation." McIntosh, 395 A.2d at 756 (citing Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 64-65 (1910)). Moreover, it appears that McNeely had previous experience with the dangerous propensities of his dogs that had brought him in contact with the Washington Humane Society and the police. See supra note 4. McNeely was thus, at least, on inquiry notice of his obligations under the Pit Bull Act and he cannot avail himself of Lambert.

We have also taken into account that the Pit Bull Act which was enacted as emergency legislation, greatly augmented the liability attaching to McNeely's existing ownership of pit bulls, and might have come as an "unfair surprise." Specifically, the immediately effective emergency enactment of the Pit Bull Act on April 16, 1996, and the occurrence of the May 13 attack on Avery afforded McNeely twenty-seven days to familiarize himself with the penalty provision and to decide whether he would accept the risk of criminal liability by continuing to own two pit bulls housed in the District of Columbia. Barring disapproval by Congress, Council legislation creating criminal offenses under Title 22 of the D.C. Code ordinarily takes effect sixty days after the Chair of the Council transmits the act to the Speaker of the U.S. House of Representatives and the President of the U.S. Senate. See D.C. Code § 1-233 (c)(2) (1999). McNeely thus had thirty-three fewer days than in the case of non-emergency legislation to take note of the amendment to the dangerous dog statute. The Supreme Court has stated that the presumption charging citizens with knowledge of the law arguably "may be overcome in cases in which the statute does not allow a sufficient 'grace period' to provide the persons affected by a change in the law with an adequate opportunity to become familiar with their obligations under it." Atkins v. Parker, 472 U.S. 115, 130 (1985); see also United States v. Locke, 471 U.S. 84, 108 (1985) ("[A] legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements."). In this case, even though the usual legislative grace period was reduced by half, the amendment to the statute had been in effect almost four weeks before its sanction fell on McNeely. We take note that the longer grace period usually afforded by the legislative process in the District of Columbia is unusual due to the unique feature of a Congressional layover period. McNeely's fair warning argument is presented in the most general manner, and does not reveal whether he was personally prejudiced by the rapid development in the District's dangerous dog law.*fn17 On this record, we cannot say that McNeely has carried his burden in challenging that the period provided by enactment of the Pit bull Act on an emergency basis did not, in his case, comport with due process of law.

C. The Constitutionality of a Strict Liability Felony

McNeely asserts that, separate and apart from vagueness, the Pit Bull Act violates the Due Process Clause because it is a strict liability felony.*fn18 A great weight of case law rejects the notion that there is a constitutional bar to strict liability crimes or a prohibition against imprisonment for conviction on a strict liability basis.*fn19 Strict liability criminal offenses -- including felonies -- are not unprecedented in the District of Columbia; the Council has enacted several such statutes in the past.*fn20 Moreover, this court has upheld the Council's constitutional authority to do so. See, e.g., Harris v. United States, 162 A.2d 503, 505 (D.C. 1960) (stating that "it is now too settled to doubt that the legislature may dispense with intent as an element of criminal liability when the regulation is in the exercise of the police power for the benefit of the people"); accord Commonwealth v. Koczwara, 146 A.2d 306, 308 (Pa. Super. Ct. 1958); Kirkham v. City of North Little Rock, 301 S.W.2d 559, 563-64 (Ark. 1957); People v. Darby, 250 P.2d 743, 754 (Cal. Dist. Ct. App. 1952); People v. Cramer, 225 N.W. 595, 598 (Mich. 1929); State v. Striggles, 210 N.W. 137, 138 (Iowa 1926).

These precedents, moreover, are consistent with the Supreme Court's acknowledgment that "conduct alone without regard to the intent of the doer is often sufficient" to constitute a crime because lawmakers have "wide latitude . . . to declare an offense and to exclude elements of knowledge and diligence from its definition." Lambert, 355 U.S. at 228. This latitude is justified in the interest of the "larger good . . . [which] puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." Morissette v. United States, 342 U.S. 246, 260 (1952) (quoting Dotterweich, 320 U.S. at 281); see also United States v. Park, 421 U.S. 658, 674 (1975).

Thus, a statute defining an offense malum prohibitum may impose a fine and/or imprisonment on a strict liability basis without offending due process of law. Our conclusion is supported by the accepted proposition that "[t]he accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities."*fn21 Morissette, 342 U.S. at 256.

D. Statutory Interpretation

As a corollary to his contention that, as a strict liability felony the Pit Bull Act is unconstitutional, McNeely argues that the trial court could not interpret the Pit Bull Act as including a scienter requirement in order to ameliorate what he contends is its illicit strict liability character.*fn22 The court imputed two elements of scienter to the statute: (1) whether the accused knew he owned the dog, and (2) whether the accused knew the dog he owned was a pit bull. We hold that the trial court's interpretation preserves the Act's strict liability nature, see note 12, supra, and thus comports with the legislature's intent.

We review de novo issues of statutory interpretation. See Porter v. United States, 769 A.2d 143, 148 (D.C. 2001); District of Columbia v. Jerry M., 717 A.2d 866, 868 (D.C. 1998). "A cornerstone of statutory interpretation is the rule that a court 'will not look beyond the plain meaning of a statute when the language is unambiguous and does not produce an absurd result.'" J. Frog, Ltd. v. Fleming, 598 A.2d 735, 738 (D.C. 1991) (quoting Gibson v. Johnson, 492 A.2d 574, 577 (D.C. 1985)); see also Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc). "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms . . . . Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise." United States v. Young, 376 A.2d 809, 813 (D.C. 1977) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).

The language of the statute before us is plain and direct. As its full title indicates, the Pit Bull and Rottweiler Dangerous Dog Designation Emergency Amendment Actof 1996 specifically identifies both pit bulls and Rottweilers as dangerous dogs. The unique treatment of these dogs is made clear from their designation as dangerous per se, which is quite distinct from the way in which other dogs are treated under the statute. See supra note 6. The meaning of the statute is unambiguous, setting forth a criminal penalty for specifically proscribed conduct, i.e., ownership of a pit bull or Rottweiler that unprovokedly attacks: "A pit bull or a Rottweiler that causes injury to or kills a human being or a domestic animal without provocation shall be humanly [sic] destroyed and the owner of such dog shall be fined up to $20,000 and may be sentenced to not more than 2 years of imprisonment." 43 D.C. Reg. 2158. This result is not only not absurd, but reflects a legitimate legislative judgment that owners of certain dogs -- well known to be potentially dangerous animals -- should be held criminally accountable for serious injury caused by dogs over which they voluntarily assumed ownership and control. See Morissette, 342 U.S. at 256; see also Model Penal Code (U.L.A.) § 2.06 (2)(b) (2001) (stating that an individual is legally accountable for the conduct of another person when the code or the law defining the offense so provides).

The required element of ownership -- and, by implication, control -- are weighty considerations in our decision. Whether one conceives of the owner's liability under the Pit Bull Act as springing from the fact of ownership or as a variation on traditional vicarious liability, the underlying premise remains the same -- an owner is responsible for that which he owns. In Park, 421 U.S. at 673, the Court upheld the conviction of a corporation president who stood in responsible relation to those engaged in criminal corporate conduct and who did not show he was "powerless" to prevent it. As the Court noted, "[t]he duty imposed by Congress on responsible corporate agents is, we emphasize, one that requires the highest standard of foresight and vigilance, but the Act, in its criminal aspect, does not require that which is objectively impossible." Id. The same is true in the case before us. The liability imposed by the Council upon dog owners is not, on its face, objectively impossible to avoid.*fn23

McNeely argues that the Act should be interpreted applying the common law presumption in favor of requiring a culpable state of mind scienter requirement when the express language of a statute is silent on the matter. See Staples, 511 U.S. at 606, 625. The presumption is based on the common understanding of malum in se offenses, which traditionally are "generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand." Morisette, 342 U.S. at 251. Silence, however, is not always dispositive, and where the legislature is acting in its capacity to regulate public welfare, silence can be construed as a legislative choice to dispense with the mens rea requirement.*fn24 See id. at 262; Staples, 511 U.S. at 607.

It is worth noting that the interpretative presumption favoring an element of mens rea -- a concept comprising not just specific intent, but general intent as well -- "requires knowledge only of the facts that make the defendant's conduct illegal . . . ." Staples, 511 U.S. at 627 n.3 (Ginsburg, J., concurring) (quoting Cheek v. United States, 498 U.S. 192, 199 (1991)); see supra note 12. This is the presumption that the trial court applied in requiring that the defendant know that he owned pit bulls. McNeely, however, considers it insufficient because the common law presumption commends that a culpable mental state be proved.

In Staples, the Court identified several considerations, beyond mere statutory silence, which bear upon legislative intent to impose strict liability, including: (1) the contextual rules of the common law; (2) whether the crime can be characterized as a "public welfare offense" created by the legislature;*fn25 (3) the extent to which a strict liability reading of the statute would seemingly encompass entirely innocent conduct; and (4) the harshness of the penalty. See Staples, 511 U.S. at 605-18. Consideration of these factors leads us to conclude that the Pit Bull Actshould be enforced according to the plain meaning of its terms, without imposing a mens rea requirement of culpable intent, but with a requirement that the accused know he or she owns a pit bull.

As to the first factor, it is inappropriate to construe the Pit Bull Act in the light of background rules of the common law where such rules no longer apply to the particular offense.

While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it . . . , there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court.

See also Balint, 258 U.S. at 251-52; accord Patton v. United States, 326 A.2d 818, 820 (D.C. 1974); see also Hutchison Bros., 278 A.2d at 321 (stating that "[w]here the peculiar nature of the legislation requires an effective means of regulation, such legislation may dispense with the conventional requirement for criminal conduct, i.e., awareness of some wrongdoing") (citations omitted). We think that the Pit Bull Act falls within that class of statutes the purpose of which would be obstructed by a requirement of proof of culpable intent. Once the legislature has determined that a particular breed poses a heightened danger that justifies a special regime, to require proof that a dog owner purposefully, recklessly, or negligently set his dog upon another would undermine the balance struck by the legislature in the statute. See Patton, 326 A.2d at 820.

As to the second factor, the Pit Bull Act is primarily a public welfare offense that regulates potentially harmful or injurious items, not merely a codification of a common law crime.*fn26

In such situations, [the courts] have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him "in responsible relation to a public danger," he should be alerted to the probability of strict regulation, and we have assumed that in such cases [the legislature] intended to place the burden on the defendant to "ascertain at his peril whether [his conduct] comes within the inhibition of the statute."

Staples, 511 U.S. at 607 (internal citations omitted); see also Holmes v. District of Columbia, 354 A.2d 858, 860 (D.C. 1976) ("Where, as here, reasonable regulations establish public welfare offenses for the purpose of maintaining the health and safety of those ill equipped to protect themselves, the defenses of good faith or lack of mens rea are unavailable.") (citations omitted). The known potential of pit bulls for dangerous behavior -- declared by the legislature in the Act -- places an owner in responsible relation to the public danger which his dog may pose. Thus, a pit bull owner is on inquiry notice of a host of regulations pertaining to his dog, including those governing licensing, registration, and general conduct in public. In fact, McNeely's prior interactions with WHS led him to confirm the design specifications of his kennel with the organization's law enforcement program.

The third factor, whether the statute "criminalize[s] a broad range of apparently innocent conduct," we have touched on already in the context of McNeely's constitutional challenges. Dogs in general are not "deleterious devices or products or obnoxious waste materials that put their owners on notice that they stand in responsible relation to a public danger." Staples, 511 U.S. at 610-11 (internal quotations omitted). The Act, however, does not outlaw ownership of all dogs, nor does it generally criminalize the ownership of pit bulls. It specifically criminalizes a narrow range of intelligible and grievous conduct, i.e., ownership of a pit bull that causes injury without provocation. Cf. id. (criminalizing mere possession of an unregistered gun).

Lastly, the relative severity of the punishment, a fine of up to $20,000 and imprisonment of up to two years, favors the imposition of a mens rea requirement. Although the Court has expressed reluctance in interpreting felonies as strict liability offenses, see Staples, 511 U.S. at 618, it has not created a bright line rule against it, and, in fact, it has expressly so interpreted felony statutes when the statutory language has required it. See id. (citing Balint, 258 U.S. at 250). The message of the Pit Bull Act's sanction is inescapable; it clearly articulates a legislative judgment on the gravity of the public harm by the very level of punishment exacted, which exceeds that imposed on owners of other dogs that cause injury, even though such owners are subject to a lesser standard. Compare 43 D.C. Reg. at 2158 (imposing up to two years of imprisonment and up to $20,000 as fine for death or injury caused by pit bulls) with D.C. Code § 6-1021.6 (b) (imposing fine of up to $10,000 for death or injury caused by other "dangerous dogs"). Although there is no legislative history available, it is apparent from the discrepancy in sanction that the severity of potential liability may well have been intended as a disincentive to ownership of pit bulls because of the Council's understanding that they pose a greater risk of serious injury than do other dogs.

Having considered the factors set out in Staples for applying the interpretative presumption in favor of imposing a mens rea requirement, we read the elements of the offense constrained by the clear language of the statute, which does not indicate a culpable mental state for the offense. Nor do we think such a requirement consistent with the Act's purpose as a public welfare offense based on the dangerous potential of these particular breeds. In view of the importance of the breed of the dog to criminal liability under the Act and the likely deterrent to their ownership built into the statute, however, we also think it clear that, for a conviction to stand, it must be shown that the defendant knew that he or she owned a pit bull, and to this limited extent, we read in a mens rea element, not of culpable intent, but of knowledge of the facts that make the conduct illegal. See Staples, 511 U.S. at 619 (requiring under the National Firearms Act that the defendant know that the gun was an automatic weapon).


Finally, we turn to McNeely's claim that the prosecutor's closing and rebuttal arguments were improper. When reviewing an allegation of improper prosecutorial argument, this court first determines whether any of the challenged comments were, in fact, improper. See Freeman v. United States, 689 A.2d 575, 584 (D.C. 1997). If so, the court must, "viewing the remarks in context, 'consider the gravity of the [impropriety], its relationship to the issue of guilt, the effect of any corrective action by the trial judge, and the strength of the government's case.'" Id. (quoting McGrier v. United States, 597 A.2d 36, 41 (D.C. 1991)). Where an objection was lodged at trial to a comment that was indeed improper, and where the trial court thus erred in overruling the objection, we will reverse the conviction unless the defendant was not substantially prejudiced by the court's error. See McGrier, 597 A.2d at 41. On the other hand, where there was no objection at trial to the prosecutor's comments, the court may reverse only if the trial court's failure, sua sponte, to intervene and to prevent the misconduct "so clearly prejudiced" the appellant's substantial rights "as to jeopardize the fairness and integrity of his trial." Irick v. United States, 565 A.2d 26, 32 (D.C. 1989). Reversal in such cases is confined to "particularly egregious situations" where a miscarriage of justice would result if this court were to stand idly by. See id. (citations omitted).

The prosecutor stated in closing argument, without objection, that McNeely negligently or recklessly released his dogs:

What you can believe, ladies and gentlemen, is that through negligence, recklessness and after the defendant -- an omission by the defendant, those dogs were let loose on the people of southwest D.C. and they found their prey in Miss Helen Avery, and they chewed on her, and they chewed on her.

Assuming that the prosecutor's remark implying negligence was unfounded, the trial court's failure, sua sponte, to strike it did not result in a miscarriage of justice. The brief reference to McNeely's negligence was not emphasized as a primary argument nor urged as a legal theory of the case. See Hunter v. United States, 606 A.2d 139, 146 (D.C. 1992) ("[V]iewing the offending remarks in the context of the case as a whole, . . . it is most unlikely that a few lines of impermissible comment, to which neither counsel nor the judge again alluded, compromised the fairness or integrity of the entire trial or threatened such a clear miscarriage of justice that the plain error doctrine may properly be invoked.").

The prosecutor also made a more pointed remark, this time over objection, that McNeely intentionally released his dogs: "What happened that night, ladies and gentlemen, the defendant came home with his girlfriend. They put the dogs in the backyard and then let me point out something." While the trial court sustained defense counsel's objection, no curative jury instruction was requested or given. The prosecutor's remark that McNeely purposely released the dogs from the pen may have introduced the issue of fault, but the statements bore little relationship to the issue of guilt which, as we have discussed, was properly based on strict liability. The prosecutor emphasized in his opening statement and the court reemphasized in its instructions to the jury that the only matters which pertained to a determination of guilt were knowing ownership of pit bulls and whether the attack was unprovoked. To the extent the prosecutor's comments suggested that McNeely's fault was at issue, it increased the government's burden and could have redounded to McNeely's benefit. At worst, the prosecutor's statements may have distracted the jury's attention from the sole disputed issue of provocation, but on this record we do not believe that the prosecutor's statements prejudiced the defendant in any meaningful way.

Lastly, the prosecutor stated in rebuttal argument: "Should the defendant be held criminally responsible? The District council government has already determined that answer to be yes. You only need to read the newspaper and use your common sense to know why." The trial court interrupted sua sponte, declaring to the jury that "[y]ou cannot read the newspaper. You cannot read the newspaper . . . . Disregard the comment that you only need to read the newspaper." While the trial court deemed the prosecutor's statement "grossly improper," an assessment with which we agree, we conclude that the prosecutor's remark was rendered harmless by the trial court's two clear and strongly worded curative instructions. The first occurred immediately after the prosecutor's comment*fn27 and the second occurred in the context of final instructions later that day.*fn28 The jury is presumed to follow instructions, see Clark v. United States, 593 A.2d 186, 193 (D.C. 1991) (citations omitted), and we "will not 'upset the verdict by assuming that the jury declined to do so.'" Harris v. United States, 602 A.2d 154, 165 (D.C. 1992) (en banc) (quoting Gray v. United States, 589 A.2d 912, 918 (D.C. 1991)). There is little reason to doubt the ameliorative effect of these instructions given their forcefulness and timing. Moreover, after being fully briefed on the issue prior to sentencing, the trial court remained confident that the prosecutor's remarks had not prejudiced the defendant in light of the government's overwhelming case; we see no reason to question this determination.

Because we detect no reversible error in the trial proceedings, the judgments of conviction are


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