concurring:
I join in the opinion of the court. I add these few words to emphasize an issue which — as I read footnote 16 of the court’s opinion — we are not deciding.
The government has argued that in identifying other defendants who are “similarly situated,” we should take into account that the unlawful entry statute can be violated in two different ways: first, by entering a dwelling, building, or other property, and second, by remaining on the invaded premises after being directed to leave by “the lawful occupant [or] the person lawfully in charge thereof.” D.C.Code § 22-3102 (1989). To me that argument has some persuasive force. In this case, however, it was never made to the trial court but was raised for the first time on appeal. For that reason, following well-established appellate practice,1 I decline to entertain that argument in this case, but I would not foreclose it in some future case if it is appropriately presented to the trial court and preserved for appellate review.
While I have the floor, I would like to make one further observation. Much has been made here of a statement allegedly made by the Deputy Chief of the Misdemeanor Trial Section, Katherine Winfree, about what may or may not be the policy of the United States Attorney’s Office regarding “political demonstrators,” however that term may be defined. Inferences have been drawn by both sides from what she supposedly said to someone else’s attorney in some other case. Winfree herself, however, has never testified or made any representation to the court (nor was she ever asked to do so, as far as I can tell from the record) about what she did or did not say, and to whom. It is obvious to me, and it should be obvious to the parties, that on remand it would be most appropriate to call Katherine Winfree to testify, or at least to ask her to submit an affidavit, about her alleged conversation with whoever it was. The court should not be left to speculate about office policy when the details of that policy can be proven by readily available evidence.
SCHWELB, Associate Judge, with whom STEADMAN and WAGNER, Associate Judges, join:
Substantially for the reasons stated in my opinion in Federov I, 580 A.2d at 614-22, I respectfully dissent.