denied, 379 U.S. 880, 85 S.Ct. §§ 7, 13 and N.Y.Penal Law § 140.20.

yr=d.getFullYear(); The Texas statute provided that "[a] person commits an offense if he intentionally or knowingly desecrates . Decided June 11, 1990. We decline the Government's invitation to reassess this conclusion in light of Congress' recent recognition of a purported "national consensus" favoring a prohibition on flag-burning.
In response, the government maintains that it could have sought indictment on the charge of attempted arson, which carries a higher penalty than burglary, but did not do so because it thought that the burglary charge better fit the defendants' conduct. Thus the defendant was guilty of attempted burglary because he tried to gain entrance to the vestibule.

Johnson, supra, at 491 U. S. 418, quoting West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 640 (1943). Atty., S.D.N.Y., William B. Pollard, III, Nelson W. Cunningham, Asst.

1319, inserted the words "fire or" immediately before the word "explosive" in the original statute. 1123 (D.D.C.

§§ 1361 and 1362. However, the Penal Law does not define the breadth of the concept of entering in a building.

1123 (1990), following Johnson, supra, held the Act unconstitutional as applied to appellees and dismissed the charges. In People v. Bright, 162 A.D.2d 212, 556 N.Y.S.2d 585, 586 (1990), the defendant's conviction for burglary was upheld where he was apprehended inside the vestibule area of a store, which was within the area encompassed by the four walls of the building. This case therefore comes down to a question of judgment. The impact is purely symbolic, and it is apparent that some thoughtful persons believe that impact, far from depreciating the value of the symbol, will actually enhance its meaning. 89-1433, 731 F.Supp.

Amicus does not, and cannot, explain how a statute that penalizes anyone who knowingly burns, mutilates, or defiles any American flag is designed to advance this asserted interest in maintaining the association between the flag and the Nation. Argued Nov. 13, 1991.Decided Feb. 13, 1992. Presumably a gigantic fireworks display or a parade of nude models in a public park might draw even more attention to a controversial message, but such methods of expression are nevertheless subject to regulation. We next considered and rejected the State's contention that, under 391 U. S. 377. Outbuildings within the curtilage were deemed to be part of the dwelling house, such that an unlawful entry into the outbuilding was burglary.

After this Court held, in Texas v. Johnson, 491 U. S. 397, that a Texas statute criminalizing desecration of the United States flag in a way that the actor knew would seriously offend onlookers was unconstitutional as applied to an individual who had burned a flag during a political protest, Congress passed the Flag Protection Act of 1989. So long as the indictment sets forth the elements of the offense in sufficient detail to provide the defendant with notice of the charges against him and does not present double jeopardy problems, it is impervious to attack on a motion to dismiss.

See King, 61 N.Y.2d at 555, 463 N.E.2d at 603, 475 N.Y.S.2d at 262 (entry requirement in burglary statute adopts common law definition). A flag burner might intend various messages. We reasoned that the State's asserted interest "in preserving the flag as a symbol of nationhood and national unity" was an interest "related `to the suppression of free expression' within the meaning of O'Brien" because the State's concern with protecting the flag's symbolic meaning is implicated "only when a person's treatment of the flag communicates some message." Halter v. Nebraska, 205 U. S. 34 (1907). Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is "related to the suppression of free expression,'" 491 U.S. at 491 U. S. 410, and concerned with the content of such expression. United States District Court, S.D. 415 (1990), and the United States District Court for the District of Columbia, 731 F.Supp. Government's Memorandum of Law at 7.

Defendants argue that while the third count may plead all the elements of burglary, it should be dismissed nonetheless because the government's statements in the Bill of Particulars demonstrate that the government will not be able to prove the element of "entry" at trial. The underlying issue raised by defendants' motions is whether the defendants can be convicted of burglary under New York law if the government does not attempt to prove that they ever entered within the four walls or beneath the roof of the recruiting station. v.

United States District Court for the Western District of Washington, 731 F.Supp.

For purposes of evaluating a motion to dismiss an indictment, all well-pleaded allegations are taken as true. UNITED STATES of America

Darrell B. The scope of common law burglary was expanded somewhat through the concept of curtilage. Consequently, even if the defendants are correct that the statements in the Bill of Particulars show that the government will have insufficient evidence to prove the crime of burglary, the indictment is not subject to challenge on that ground. Such a charge may be made even if the flag burner loves the country and zealously pursues the ideals that the country claims to honor. The Court rejected this contention, holding that because the Penal Law does not define "enter" the term retains its common law meaning, which is that entry is accomplished when a person "intrudes within a building, no matter how slightly."

Appellant's amicus asserts that the Government has a legitimate non-speech-related interest in safeguarding this "eminently practical legal aspect of the flag, as an incident of sovereignty."

89-1433, 89-1434. 496 U.S. 310. Under New York law, a person must "enter or remain unlawfully in a building" in order to be guilty of burglary in the third degree.

2404, 110 L.Ed.2d 287 (1990), in Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct.

denied, 470 U.S. 1029, 105 S.Ct. The judgments of the district court are affirmed.

at 5 (noting "flag's historic function' for such sovereign purposes as marking `our national presence in schools, public buildings, battleships and airplanes'") (citation omitted). United States v. South Florida Asphalt Co., 329 F.2d 860, 865 (5th Cir. The Legal Aid Soc., New York City (Ian S. Weinstein, of counsel), for defendant Shawn D. Eichman.

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