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Ortberg v. United States

Court of Appeals of Columbia District

December 17, 2013

Adam Jaramillo ORTBERG, Appellant
v.
UNITED STATES, Appellee.

Argued Oct. 16, 2013.

Page 304

William Francis Xavier Becker, Rockville, MD, for appellant.

Sharon Sprague, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Brandon Long and Ephraim (Fry) Wernick, Assistant United States Attorneys, were on the brief for appellee.

Jeffrey L. Light, Washington, DC, for amicus curiae Defending Animal Rights Today & Tomorrow, in support of appellant.

Page 305

Before BECKWITH and EASTERLY, Associate Judges, and PRYOR, Senior Judge.

EASTERLY, Associate Judge.

Adam Jaramillo Ortberg challenges the sufficiency of the evidence to sustain his conviction under D.C.Code § 22-3302(a) (2012 Repl.) for unlawful entry of " any private dwelling, building, or other property" or part thereof. Mr. Ortberg admits he entered a room at the W Hotel, " Studio One," that was being used for an invitation-only fundraiser for a member of the United States House of Representatives, and he admits that he did so to engage in protest activity. But, Mr. Ortberg asserts, his entry was at most " opportunistic" and was not " clearly ‘ unlawful,’ " because Studio One was not clearly closed off to members of the public who might be in the lobby of the W Hotel. Thus, he appears to argue that the government failed either to prove that he had the requisite mental state to commit unlawful entry or to disprove his bona fide belief in the lawfulness of his actions.

The District's crime of unlawful entry, D.C.Code § 22-3302(a)(1), " 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." Leiss v. United States, 364 A.2d 803, 806 (D.C.1976). For the crime of unlawful entry based on the entry (as distinct from the refusal to leave), we have repeatedly said that only general intent is required. Instead of looking to our case law, however, the trial court looked to the current jury instruction to frame the elements and to determine that the government had met its burden of proof. See Criminal Jury Instructions for the District of Columbia, No. 5.401 (5th ed. rev.2013). This instruction does not include any reference to " general intent." Instead it more precisely identifies the culpable mental states for the elements that comprise unlawful entry: With respect to the element of entry, the government must prove that a defendant purposefully and voluntarily entered the property or private space. But with respect to the element that the entry be against the will of the lawful occupant, the government need only prove that the defendant " knew or should have known" that his entry was unwanted. In other words, the government need not, as Mr. Ortberg suggests, prove that a defendant purposefully sought to defy the will of the lawful occupant or to violate the law. With this opinion, we endorse this jury instruction, and applying its framework in this case, we hold that there was ample evidence to support Mr. Ortberg's guilt.

I. Facts

The relevant facts are quickly summarized. On March 2, 2011, appellant Adam Jaramillo Ortberg walked into a fundraising event for a United States Congressman which was being held inside of an event space at the W Hotel called " Studio One." Mr. Ortberg entered Studio One through an exit or service door, having " walked right by" a registration desk manned by as many as three people handing out badges for the event.[1] A sign outside of Studio One identified the event. Once inside the reception, Mr. Ortberg was approached by Kyung Quinn, a banquet server at the W Hotel, who noticed

Page 306

that Mr. Ortberg was not wearing a name tag. Ms. Quinn asked Mr. Ortberg whether he had a badge. Mr. Ortberg, who testified in his own defense, admitted that he told an untruth in response and that he represented to Ms. Quinn that he did have a badge " somewhere," but he " needed to look for it." Mr. Ortberg also asked Ms. Quinn whether he was in the correct room for the fundraiser. Ms. Quinn ultimately requested that Mr. Ortberg sign in at the registration desk or, as Mr. Ortberg characterized it in his testimony, " [s]he asked me to go talk to the badge checker." Mr. Ortberg then began his planned protest. He held up a sign that he had hidden under his suit jacket, tried to distribute ...


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