Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Prosecution of Perrow

Court of Appeals of The District of Columbia

November 9, 2017

In re Prosecution of Clinton Perrow.

          Argued February 28, 2017

         On Certification from the Superior Court of the District of Columbia (CMD-4380-16) (Hon. Wendell P. Gardner, Jr., Trial Judge)

          Leonard L. Long, Jr. for Clinton Perrow.

          John D. Martorana, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for the District of Columbia.

          Nicholas P. Coleman, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman and Nicole McClain, Assistant United States Attorneys, were on the brief, for the United States.

          Before Blackburne-Rigsby, Chief Judge [*] and Glickman and Thompson, Associate Judges.

          Blackburne-Rigsby, Chief Judge.

         In 2006, the Council of the District of Columbia ("D.C. Council") enacted the Omnibus Public Safety Amendment Act of 2006, which expressly criminalized and defined the crime of "voyeurism" in the District of Columbia, codified as D.C. Code § 22-3531 (2013 Supp.).[1] Section (g) of the statute designated the "Attorney General for the District of Columbia" as the prosecuting authority for this offense. This matter has been certified to this court by a judge from the Superior Court of the District of Columbia, pursuant to D.C. Code § 23-101 (f) (2012 Repl.), [2] for this court to consider whether the D.C. Council's assignment of prosecutorial authority for this new offense to the Office of the Attorney General is valid.

         The D.C. Council's authority to designate the Office of the Attorney General as the prosecuting authority for new criminal offenses is limited by the District of Columbia Court Reform and Criminal Procedure Act of 1970 ("Court Reform Act") and the District of Columbia Home Rule Act ("Home Rule Act"). Together, these congressional acts clarify that the D.C. Council may only assign the Office of the Attorney General as the prosecutorial authority for certain, designated offenses, specifically: (1) "violations of all police or municipal ordinances or regulations, " (2) "violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, " and (3) prosecutions of "disorderly conduct" or "lewd, indecent, or obscene acts." D.C. Code § 23-101 (a)-(b) (2012 Repl.). The offense of "voyeurism" is a relatively new general offense with elements different from those of "disorderly conduct" or "lewd, indecent, or obscene acts." It also cannot be categorized as either an offense violative of a police or municipal ordinance or regulation, or of a penal statute in the nature of a regulation. Thus, we hold that section (g) of the District's voyeurism statute infringes on "the duties or powers of the United States Attorney, " in violation of the Home Rule Act. D.C. Code § 1-206.02 (a)(8) (2012 Repl.). Pursuant to D.C. Code § 23-101 (c), prosecutorial authority for this new offense vests in the Office of the United States Attorney for the District of Columbia, as required by Congress.

         I. Factual Background

         The United States Attorney's Office ("USAO") charged Mr. Clinton Perrow by information with one count of misdemeanor voyeurism in violation of D.C. Code § 22-3531 (d).[3] The government alleged that Mr. Perrow used his cell phone to record a woman's "private area"[4] underneath her dress without her knowledge or permission. Mr. Perrow, through counsel, filed a motion to dismiss the information on the ground that USAO was not the proper prosecuting authority because prosecution of the offense of voyeurism rests "exclusively" with the Office of the Attorney General ("OAG"), as stated in section (g) of the voyeurism statute. See D.C. Code § 22-3531 (g). USAO opposed the motion, arguing that the D.C. Council may not designate OAG as the prosecuting authority for new offenses that fall outside those offenses specifically assigned by Congress for OAG to prosecute under D.C. Code § 23-101. The trial judge subsequently certified to this court the question of whether D.C. Code § 22-3531 (g) designating OAG as the proper prosecuting authority for voyeurism is valid.

         II. Discussion

         Prosecutions of criminal offenses in the District of Columbia are "bifurcated" between the federal Office of the United States Attorney for the District of Columbia and the local Office of the Attorney General of the District of Columbia. United States v. Bailey, 495 A.2d 756, 760 n.10 (D.C. 1985). This bifurcation of prosecuting authority was delineated by Congress pursuant to its enactment of the District of Columbia's Court Reform Act and codified under D.C. Code § 23-101. "Neither the Council nor the electors of the District of Columbia can overrule acts of Congress." Hessey v. District of Columbia Bd. of Election and Ethics, 601 A.2d 3, 16 (D.C. 1991).

         Specifically, Congress designated OAG to prosecute violations of "police or municipal ordinances or regulations" in the District of Columbia. D.C. Code § 23-101 (a).[5] Consequently, the D.C. Council may designate OAG as the prosecuting authority for new or revised police or municipal ordinances or regulations "irrespective of the fact that violation of these provisions [may carry] a maximum penalty of both a fine and imprisonment." In re Hall, 31 A.3d 453, 456 (D.C. 2011). Congress also designated OAG to prosecute "all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only or imprisonment not exceeding one year . . . ." D.C. Code § 23-101 (a) (emphasis added). We have clarified that this limitation on punishment (fine only or imprisonment of not more than one year) pertains only to OAG's authority to prosecute penal statutes in the nature of police or municipal regulations. District of Columbia v. Smith, 329 A.2d 128, 130 (D.C. 1974). OAG retains "prosecutorial jurisdiction over all police [or municipal] regulation violations, regardless of potential penalty . . . ." Id.

         Additionally, Congress designated OAG as the prosecuting authority for violations of D.C. Code § 22-1321 (2012 Repl.), "relating to disorderly conduct, " and violations of D.C. Code § 22-1312 (2012 Repl.), "relating to lewd, indecent, or obscene acts[.]" D.C. Code § 23-101 (b). However, Congress reserved "[a]ll other criminal prosecutions" in the District of Columbia to be "conducted in the name of the United States by the United States [A]ttorney for the District of Columbia or his assistants, except as otherwise provided by law." Id. § (c).

         In In re Crawley, 978 A.2d 608, 609 (D.C. 2009), this court clarified that the language "except as otherwise provided by law" under D.C. Code § 23-101 (c) does not give the D.C. Council authority to bypass Congress and designate OAG as the prosecuting authority for new crimes outside of sections (a) and (b) that did not exist at the time Congress passed the Court Reform Act. Id. at 614, 617. We further explained that while, pursuant to the Home Rule Act, Congress authorized the D.C. Council to enact new criminal statutes, "subject to a sixty-day period when Congress can nullify such legislation, " Congress expressly precluded the D.C. Council from enacting any legislation that affects the "duties or powers of the United States Attorney . . . for the District of Columbia." Id. at 611 (quoting D.C. Code § 1-206.02 (a)(8) & (9)). Because allowing the D.C. Council to designate OAG as the prosecuting authority for new or revised offenses that would otherwise be the responsibility of USAO would affect the duties and powers of USAO, we held that the D.C. Council "lacks the authority to designate the OAG as the prosecutor of offenses that are not specified in Section 23-101 (c)." Id. at 614; see also id. at 620.

         In short, while the Home Rule Act authorizes the D.C. Council to enact new criminal statutes, the D.C. Council's authority to designate OAG as the prosecuting authority for those new criminal offenses is limited by Congress through both the Home Rule Act and the Court Reform Act. The D.C. Council may not designate OAG as the prosecuting authority for an offense outside of those specified by Congress under D.C. Code § 23-101 (a)-(b).[6] Any offenses that fall outside of those two categories are reserved for USAO, and the D.C. Council's designation of OAG violates the Home Rule Act because it infringes on the "duties or powers of the United States Attorney . . . for the District of Columbia." D.C. Code § 1-206.02 (a)(8).

         With that legislative background in mind, we turn to the voyeurism statute at issue, which was enacted by the D.C. Council in 2006. The relevant section of the voyeurism statute that relates to Mr. Perrow's prosecution is D.C. Code § 22-3531 (d), which states that "it is unlawful for a person to intentionally capture an image of a private area of an individual, under circumstances in which the individual has a reasonable expectation of privacy, without the individual's express and informed consent." Prosecutorial authority can properly be vested in OAG pursuant to section (g) of the voyeurism statute if our analysis determines that the crime of voyeurism constitutes a police or municipal ordinance or regulation, a penal statute "in the nature" of a police or municipal regulation, or a violation of either the "disorderly conduct" statute or the "lewd, indecent, or obscene acts" statute. See In re Crawley, supra, 978 A.2d at 620 ("[O]nly Congress can alter the prosecutorial authority [of OAG], be it for felonies, misdemeanors, or other crimes . . . .").

         We conclude that the offense of voyeurism is fundamentally different from both "lewd, indecent, or obscene acts" or "disorderly conduct" because those crimes have different elements and were intended to criminalize different behavior. In determining whether OAG is authorized to prosecute voyeurism, we must determine whether the crime of voyeurism has essentially the same criminal elements as either "disorderly conduct" or "lewd, indecent, or obscene acts" as defined by their respective statutes.[7]

         Under the District's "lewd, indecent, or obscene acts, " statute, "[i]t is unlawful for a person, in public, to make an obscene or indecent exposure of his or her genitalia or anus, to engage in masturbation, or to engage in a sexual act . . . . It is [also] unlawful for a person to make an obscene or indecent sexual proposal to a minor." D.C. Code § 22-1312 (emphasis added). The District's voyeurism statute criminalizes the viewing, recording, or capturing of an image of another individual's private area or private acts.[8]See, e.g., Bell v. United States, 950 A.2d 56, 73 (D.C. 2008) (crimes are not the same if the elements are "clearly distinct"); see infra appendix. This court has noted that, in the case of the crime of "lewd, indecent, or obscene acts, " it is "the indecent exposure of the comparable portions of the male and female anatomy that constitutes the crime. In other words, the indecent exposure of human genitalia is the offense." Parnigoni v. District of Columbia, 933 A.2d 823, 829 (D.C. 2007) (citation and internal quotation marks omitted). The critical element for voyeurism, however, is not the exposure of one's own genitalia, but rather the act of secretly viewing, recording, or photographing another individual's genitalia or private acts, in which that individual has a reasonable expectation of privacy. The voyeurism statute "by its terms is directed at protecting individual privacy." Freundel v. United States, 146 A.3d 375, 379 (D.C. 2016). The intent behind the voyeurism statute and the intent behind the "lewd, indecent, or obscene acts" statute are thus different and the acts the statutes proscribe cannot be considered the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.