United States v. Wade, Charles Edward

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 15, 1998 Decided August 21, 1998

No. 97-3135

United States of America,

Appellee

v.

Charles Edward Wade, a/k/a Buck,

Appellant

Consolidated with

Nos. 97-3140, 97-3141, 97-3170, 97-3171

Appeals from the United States District Court

for the District of Columbia

(Nos. 96cr00472, 472-01, -03, -06)

Andrew P. McGuire, with whom Mitchell M. Seltzer (both
appointed by the court) was on the briefs for appellants
Shelton Wade, et al., argued the cause for all appellants.

David B. Smith and Thomas Lumbard (both appointed by
the court) were on the briefs for appellants Charles and
Eugene Wade.

Thomas S. Rees, Assistant United States Attorney, with
whom Wilma A. Lewis, United States Attorney, and John R.
Fisher and William B. Wiegand, Assistant United States
Attorneys, were on the brief, argued the cause for appellee.
John L. Brownlee, Assistant United States Attorney, entered
an appearance for appellee.

Craig D. Margolis and William E. Lawler III were on the
brief for amicus curiae Operation Crackdown.

Before Sentelle and Randolph, Circuit Judges, and
Buckley, Senior Circuit Judge.

Opinion for the court filed by Senior Judge Buckley.

Buckley, Senior Judge: The defendants, who were convict-
ed of keeping a "disorderly house" used in connection with
their drug-related activities, challenge the district court's
authority to enter an order of abatement against the house.
Because such orders may be issued only to abate nuisances
arising out of the use of premises for purposes of lewdness,
assignation, or prostitution, we vacate the order.

I. Background

On May 28, 1997, Charles Wade and his brother Eugene
Wade pleaded guilty to a three-count information alleging
(1) conspiracy to distribute cocaine base and to possess the
drug with intent to distribute in violation of 18 U.S.C. s 371,
(2) unlawful distribution of cocaine base in violation of D.C.
Code s 33-541, and (3) maintenance of a disorderly house in
the District of Columbia in violation of D.C. Code s 22-2722
("section 2722").

According to the Government, the Wades sold drugs from
and in the vicinity of a residence at 647 G Street, S.E., in
Washington, D.C. Although neither Charles nor Eugene
lived at that address, their parents and various other family
members lived there at the time and continue to do so today.

On the basis of their pleas, the district court assessed fines
against Charles and Eugene, sentenced them both to terms of
imprisonment, and entered an order of abatement against 647
G Street. See Order of Abatement, Crim. No. 96-472
(Sept. 25, 1997); see also D.C. Code s 22-2717 ("section
2717") (requiring abatement of nuisance in certain circum-
stances). The order of abatement commanded that the Unit-
ed States Marshal close the house for one year and that,
during the period of abatement, the Marshal remove all
fixtures and personalty "used in conducting the nuisance...."
See Order of Abatement at 2-3.

Both Charles and Eugene objected to the order, and
Charles moved the district court to reconsider it. Various
family members who either resided at or had an interest in
647 G Street intervened seeking reconsideration of the order.
The court permitted the family members to intervene but
refused to reconsider its decision, holding that an order of
abatement is a mandatory sanction upon conviction of keeping
a disorderly house under section 2722. See Memorandum
Opinion at 6-9, 15, Dec. 10, 1997, No. 96-0472 ("Mem. Op.").

Charles and Eugene, joined by members of their family,
appeal the order of abatement, which was stayed pending our
resolution of this case.

II. Analysis

Federal district courts in the District of Columbia have
jurisdiction over offenses "under any law applicable exclusive-
ly to the District of Columbia which offense is joined in the
same information or indictment with any Federal offense."
D.C. Code s 11-502(3). Thus, where an indictment or infor-
mation couples District of Columbia and federal charges, the
district court may adjudicate the entire case. See United
States v. Greene, 834 F.2d 1067, 1069 n.2 (D.C. Cir. 1987). In
this instance, the Wades pleaded guilty to various offenses
under both federal and D.C. law, including keeping a disor-
derly house in violation of section 2722 (providing criminal
penalties for anyone convicted of keeping "a bawdy or disor-
derly house" in the District of Columbia).

On the basis of the Wades' admission that they kept a
disorderly house, the district court entered an order of abate-
ment against the property pursuant to section 2717, which
specifies, in relevant part, that where "the existence of the
nuisance be established ... in a criminal proceeding, an order
of abatement shall be entered as a part of the judgment in
the case...." D.C. Code s 22-2717.

The Wades challenge the district court's order on three
grounds: (1) the court lacked jurisdiction to enter the order;
(2) section 2717's abatement provision does not apply to the
kind of disorderly house they were convicted of keeping; and
(3) the district court did not afford them due process prior to
entering its order. Because we hold the statutory argument
dispositive, we do not address the constitutional question.
See Ashwander v. Tennessee Valley Authority, 297 U.S. 288,
347-48 (1936) (Brandeis, J., concurring) ("The Court will not
pass upon a constitutional question ... if there is also present
some other ground upon which the case may be disposed
of."). We review the district court's order pursuant to 28
U.S.C. s 1291.

A. District Court's Jurisdiction to Enter an Order of Abate-
ment

The Wades cite D.C. Code s 11-921(a)(3) and (5) for the
proposition that an order of abatement is a form of equitable
relief that falls within the exclusive jurisdiction of the District
of Columbia Superior Court and contend that the district
court therefore lacked jurisdiction to enter it. Thus, the
Wades' complaint appears to be that any connection between
their conviction and the order of abatement is too attenuated
to permit the district court to enter the order. That argu-
ment, however, ignores the mandatory nature of the penalty
imposed by section 2717, which states that "an order of
abatement shall be entered as part of the judgment" in any
criminal proceeding that establishes the existence of the
predicate nuisance. D.C. Code s 22-2717 (emphasis added).
Because the order was entered "as a part of the [criminal]
judgment," it was within the court's jurisdiction--assuming,
of course, that section 2717 was properly invoked. See D.C.

Code s 11-502(3) (district court has jurisdiction over any
offense under any law applicable exclusively within D.C. when
joined with any federal offense); see also United States v.
Jones, 527 F.2d 817, 820-21 (D.C. Cir. 1975) (permitting
imposition of either D.C. or federal sentence, but not both,
where defendant was convicted of conduct that violated both
federal and local laws).

B. Keeping a Disorderly House and D.C. Code s 22-2717

The Wades next claim that section 2717 does not apply to a
disorderly house other than one used for the purpose of
"lewdness, assignation, or prostitution."

1. Statutory Structure

The Government implicitly relies upon the proximity of
sections 2717 and 2722 in Title 22 of the D.C. Code to support
its claim that conviction of keeping any disorderly house
under section 2722 requires application of the remedy speci-
fied in section 2717. The two sections, however, were enacted
by Congress at different times as part of different bills.
Thus their juxtaposition in the D.C. Code is without rele-
vance.

Section 2722 was originally part of the Act of July 16, 1912,
in which Congress granted jurisdiction over cases concerning
"the keeping of a bawdy or disorderly house" to the trial
courts of the District of Columbia. See Act of July 16, 1912,
P.L. 62-226, s 1, 37 Stat. 192 (1912). Section 1 of the Act
specified that the keeping of a bawdy or disorderly house was
punishable by a fine of $500, one year imprisonment, or both.
Id. That provision has since been amended to read: "Whoev-
er is convicted of keeping a bawdy or disorderly house in the
District shall be fined not more than $1,000 or imprisoned not
more than 180 days or both." Id. as amended by 1994 D.C.
Stat. 10-151, s 107.

Section 2717, on the other hand, was passed into law as
part of the Act of February 7, 1914, Ch. 16, 38 Stat. 280
(1914), which is codified at D.C. Code ss 22-2713 through

22-2720. The introductory section of the 1914 Act provides
that

whoever shall erect, establish, continue, maintain, use,
own, occupy, or re-lease any building ... used for the
purpose of lewdness, assignation, or prostitution ... is
guilty of a nuisance, and the building ... in or upon
which such lewdness, assignation, or prostitution is con-
ducted ... and the furniture, fixtures, musical instru-
ments, and contents are also declared a nuisance, and
shall be enjoined and abated as hereinafter provided.

Id. (codified at D.C. Code s 22-2713) ("section 2713"). Nui-
sance is not otherwise defined in the statute. Section 2 of the
Act authorizes the Government or any citizen to bring an
equitable action to enjoin "a nuisance ... as defined in this
Act." Id. s 2 (emphasis added) (codified at D.C. Code s 22-
2714). Section 5, which is codified at D.C. Code s 22-2717
and is the provision at issue here, then commands that

[i]f the existence of the nuisance be established in an
action as provided in [this Act, i.e., an equitable action
under section 2], or in a criminal proceeding, an order of
abatement shall be entered as a part of the judgment in
the case....

Id., sec. 5 (emphasis added).

2. Discussion

The Government contends that section 5 of the 1914 Act,
D.C. Code s 22-2717, requires entrance of an order of abate-
ment upon conviction of any crime whose prosecution entails
proof that the defendant engaged in conduct constituting a
common law nuisance per se. The Wades, on the other hand,
claim that the 1914 Act is exclusively concerned with the kind
of nuisance described in section 2713, namely the use of a
building for purposes of lewdness, assignation, or prostitution;
as a consequence, the abatement orders authorized by section
2717 may apply only to buildings that have been used for such
purposes. We review this legal question de novo. United
States v. Abdul-Saboor, 85 F.3d 664, 667 (D.C. Cir. 1996).

The Government notes that the Wades, who have pleaded
guilty of maintaining a disorderly house, were engaged in
illegal drug dealing on a regular basis at 647 G Street. It
then refers us to a host of hoary cases showing that a
disorderly house is a nuisance per se and that the term
"disorderly house" applies to any house, including but not
limited to houses of prostitution, in which activities occur that
disrupt the general public peace, health, or morals. The
Government asserts that the repeated selling of illicit sub-
stances in the vicinity of 647 G Street satisfies the common
law definition of keeping a disorderly house and that because
the building is a nuisance per se, the issuance of the section
2717 abatement order was proper.

Regardless whether the Government's description of these
cases is accurate, they are irrelevant. This case is governed
by statute, not by the common law. Cf. Day v. United States,
682 A.2d 1125, 1129 (D.C. 1996) (noting that "D.C. statutory
law and D.C. case law agree that a relevant statute super-
sedes the common law"). The 1914 Act is plain: section 2717
concerns only those nuisances defined in section 2713. Sec-
tion 2713 specifies that one who uses a building for "the
purpose of lewdness, assignation, or prostitution ... is guilty
of a nuisance," D.C. Code s 22-2713; and section 2717 speci-
fies that an order of abatement shall be entered upon proof of
"the nuisance." (The district court incorrectly read this
passage to require that it enter an order of abatement upon
proof of "a nuisance." See Mem. Op. at 23 (emphasis added).)
Thus, the nuisance to which section 5 of the 1914 Act refers is
one of the nuisances described at the opening of the Act, now
codified at section 2713. Indeed, neither the Government's
nor our own review of case law discloses a single instance
where the predicate for invoking the section 2717 abatement
remedy involved a conviction for keeping a disorderly house
other than one "used for the purpose of lewdness, assignation,
or prostitution." Furthermore, as the Government's silence
on this question implicitly concedes, the Wade brothers have
not been convicted of a crime involving lewdness, assignation,
or prostitution; nor is there any evidence that 647 G Street
was ever used for such purposes.

Section 2722 criminalizes keeping a "bawdy or disorderly
house[ ]." While conviction for keeping a bawdy house, which
is commonly defined as a "house of prostitution[ ] ... [or as
a] house ... maintained for the convenience and resort of
persons desiring unlawful sexual connection," Black's Law
Dictionary 153 (6th ed. 1990), would clearly entail the type of
nuisance described in section 2713, the keeping of a disorder-
ly house might or might not, depending on the nature of the
activity conducted in it. See Harris v. United States, 315
A.2d 569, 573 (D.C. 1974) (holding that in prosecution for
maintenance of disorderly house under section 2722, Govern-
ment "must prove that the activities on the premises either
disturb the public or [as in the case of a bawdy house]
constitute a nuisance per se.") (footnote omitted). Because
the Government failed to show that 647 G Street was "used
for the purpose of lewdness, assignation, or prostitution," the
Wades' plea of guilty to keeping a disorderly house is insuffi-
cient to permit the application of section 2717.

The structure of the 1912 and 1914 Acts confirms our
reading of sections 2713 and 2722. Whereas the remedies for
maintaining a nuisance under section 2713 are laid out in
subsequent statutory provisions, see D.C. Code ss 22-2714
(injunctions) & 22-2717 (abatement), section 2722 includes its
own penalty provisions and is therefore self-enforcing. Thus,
conviction under section 2722's prohibition on the keeping of a
house found to be disorderly for reasons unrelated to the
exploitation of sex will subject the defendant to fines and
imprisonment but not to a section 2717 abatement order.

The Government nevertheless cites dicta in the D.C. Court
of Appeals' decision in Raleigh v. United States, 351 A.2d 510,
514 (D.C. 1976), as "unassailable authority" for the proposi-
tion that an abatement order must issue upon any conviction
for keeping a disorderly house. The Government overstates
its case. In Raleigh, the prosecutor proved that the defen-
dant ran a house of prostitution. The trial court nevertheless
declined to hold that the property was a nuisance subject to
abatement under section 2717. See id. at 513-14. In revers-
ing the trial court, the Court of Appeals stated:

The government contends before us that when a defen-
dant has been found guilty of maintaining a bawdy or
disorderly house in violation of s 22-2722, the house in
question must be deemed to be a nuisance per se which
the trial court is compelled to abate. We agree.

Id. at 514 (footnote omitted). In the accompanying footnote,
the court characterized the house of prostitution "as a typical
'disorderly house,' " id. at 514 n.5, which, of course, it was.
As we have pointed out, however, that a bawdy house is a
disorderly house does not imply that the reverse is necessari-
ly true. Because there is no doubt that the property in
Raleigh was used for "lewdness, assignation, or prostitution,"
D.C. Code s 22-2713, there is no question that it fell within
the ambit of sections 2713 and 2717.

The Raleigh court did not have before it the question
whether a disorderly house not used for such purposes is the
kind of nuisance referred to in section 2717. Nevertheless,
even if its discussion of disorderly houses purported to decide
that section 2717 applies to a disorderly house of any kind, we
would still not be bound by it. Because that issue was not
before the court, its overly broad language would be obiter
dicta and not entitled to deference. See Kendall v. Pladson
(In re Pladson), 35 F.3d 462, 466 (9th Cir. 1994) ("We give no
effect to the California court's criticism of Cole [a bankruptcy
appellate panel decision] because it was pure dicta.... Fed-
eral courts are not bound by dicta of state appellate courts.");
McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 (3d Cir.
1980) ("a federal court should be circumspect in surrendering
its own judgment concerning what the state law is on account
of dicta"); Walker v. Felmont Oil Corp., 240 F.2d 912, 916-17
(6th Cir. 1957) (holding that dictum of state's highest court is
not binding and that its precedential value should be prem-
ised upon the respect it enjoys). Although we respect the
Court of Appeals' "considered dict[a]" when predicting how
the D.C. courts will address a novel question of law, see
Gasch v. Britton, 202 F.2d 356, 359 (D.C. Cir. 1953), we will
not defer to what appears to be no more than an unintention-
al blurring of the important distinction between houses that
are used for sexual purposes and those that are not. Cf.

Kendall, 35 F.3d at 466. Accordingly, we conclude that, if
confronted with this question, the D.C. Court of Appeals
would hold that conviction for keeping a disorderly house
under section 2722 will require an abatement order pursuant
to section 2717 only if that house was used, at least in part,
for the purposes described in section 2713.

III. Conclusion

Because the district court lacked statutory authority to
enter its order of abatement, we vacate the order.

So ordered.