496 U.S. 310 (1990)
On September 11, 1990, defendants Shawn Eichman and Joseph Urgo went to the Armed Forces Recruiting Station at Times Square in New York City and climbed onto the roof of the one-story structure using a ladder.1
Once on the roof the defendants poured motor oil over the surface of the roof and onto the exterior signs of the building.2 The defendants then lowered the American flag flying over the building, doused it with lighter fluid and set it on fire, claiming their activities were acts of political protest symbolizing their objection to American policy in the Persian Gulf.3
Shortly after they ignited the flag, defendants were arrested on the roof by New York City police officers.4 The next day they were arraigned on a complaint charging attempted arson of the recruiting station.5 The government subsequently decided not to pursue the arson charge.6
Instead, the indictment returned by the grand jury charged defendants with three other crimes: injuring and committing depredations against property of the United States in violation of 18 U.S.C. §§ 1361, 1362; reckless endangerment in violation of 18 U.S.C. §§ 7, 13 and N.Y. Penal Law § 120.20; and burglary in the third degree in violation of 18 U.S.C. §§ 7, 13 and N.Y. Penal Law § 140.20.7
On November 16, 1990, defendants made a request for a Bill of Particulars.8 The government responded the same day with a letter which states, in part, that the Government does not contend that the defendants entered within the four walls and beneath the roof of the Recruiting Station.9 Rather, the Government contends that the defendants unlawfully entered upon the roof of the Recruiting Station.10
On December 17, 1990, defendants moved to dismiss the burglary count of the indictment on the ground that absent an allegation that defendants entered within the four walls of the recruiting station, the government would be unable to prove the entry element of the burglary count at trial.11 Defendants moved in the alternative to inspect the minutes of the grand jury proceedings.12 The government argues that the defendants' motions should be denied because the indictment pleads all the necessary elements of burglary under New York law, but nonetheless asks the court to reach the merits of the argument regarding the entry element in the form of a ruling on how the jury will be charged at trial.13
Whether defendants who climbed onto the roof of a one-story building, poured motor oil on the roof and signs, and burned the flag can be convicted of burglary in the third degree under N.Y. Penal Law § 140.20 without proof that they entered within the four walls or beneath the roof?14
Under New York Penal Law § 140.20, a person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.15 The term enter retains its common law meaning, requiring intrusion within the building by penetrating the exterior boundaries such as the four walls or beneath the roof.16
No. The established facts show that defendants Shawn Eichman and Joseph Urgo climbed onto the roof using a ladder, poured motor oil over the roof and exterior signs, lowered the American flag, doused it with lighter fluid, and set it on fire, all while remaining on the roof.17 The government stated in its Bill of Particulars that it does not contend the defendants entered within the four walls and beneath the roof.18 Common law burglary requires some movement across the external boundaries of the structure, and activity outside those boundaries does not satisfy the entry element.19
Defendants cannot be convicted of burglary in the third degree without proof that they entered within the four walls or beneath the roof.20
Related opinions on this issue
Joined by The Chief Justice, Justice White, And Justice O’connor
Justice Stevens, joined by the Chief Justice, Justice White, and Justice O’Connor, dissented from the broader flag burning holding.21 He argued that the government's interest in preserving the symbolic value of the flag is unrelated to suppression of the ideas that flag burners are trying to express.22 The prohibition does not entail any interference with the speaker's freedom to express those ideas by other means.23
He explained that the flag uniquely symbolizes the ideas of liberty, equality, and tolerance.24 Stevens concluded that the societal interest in preserving the flag's value outweighs the individual interest in choosing the method of expression.25 He remained persuaded that the considerations identified in his opinion in Texas v. Johnson are of controlling importance in these cases as well.26
Whether an indictment charging burglary in the third degree should be dismissed when the Bill of Particulars states that the government does not contend the defendants entered within the four walls of the recruiting station?27
An indictment that sets forth the elements of the offense in sufficient detail to provide notice is facially valid and not subject to dismissal even if statements in a Bill of Particulars suggest potential evidentiary shortcomings, because those statements do not modify the indictment.
No. Count three of the indictment tracks the statutory language of N.Y. Penal Law § 140.20 by charging that the defendants knowingly entered and remained in the recruiting station with intent to commit one or more crimes therein.28 The court takes all well-pleaded allegations as true on a motion to dismiss, and the Bill of Particulars response does not alter the indictment's facial sufficiency.29
The indictment charging burglary in the third degree should not be dismissed based on the statements in the Bill of Particulars.
Whether defendants are entitled to inspect the grand jury minutes on the ground that the government's position on the entry element of burglary is frivolous?30
A defendant seeking inspection of grand jury minutes must demonstrate a particularized need or a gross and prejudicial irregularity influencing the grand jury proceedings.31
No. The defendants presented no evidence of any critical contested issues of fact or gross irregularity in the grand jury process.32 The government's position on the entry element does not constitute the type of compelling reason that overcomes the presumption of regularity in grand jury proceedings.33
Defendants are not entitled to inspect the grand jury minutes.34
Whether the court should issue a pretrial ruling on the jury charge regarding the entry element of burglary in response to the government's request?35
The court may address the substantive issue of the entry element by ruling on the jury charge in advance of trial when doing so is likely to advance the resolution of the case.36
Yes. The government requested a ruling on how the jury would be charged with respect to the entry element, and the court treated the request as a motion in limine.37 Clarifying that the jury must find an actual entry within the four walls or beneath the roof before conviction promotes efficient resolution of the burglary count at trial.38
The court should issue a pretrial ruling on the jury charge regarding the entry element of burglary.39