Reheard En Banc January 23, 1973.
SPRECHER, Circuit Judge.
This appeal reheard en banc requires us to focus closely upon the dividing line between presumptive regularity in the enforcement of penal laws and impermissible prosecutorial selectivity.
Jeffrey Falk was charged in a four-count indictment with refusing to submit to induction into the Armed Forces and with failure to possess a registration card or his 1968 and 1969 I-A classification
On appeal, a panel of this court affirmed Falk's conviction, one judge dissenting. United States v. Falk, 472 F.2d 1101 (7th Cir. 1972). A petition for rehearing en banc was granted, in which the principal issue was the alleged discriminatory prosecutorial purpose in seeking the indictment. We have concluded that Falk is entitled to a hearing on his charge of an improper purpose. We accordingly reverse.
The Fourteenth Amendment prohibits any state from taking action which would "deny to any person within its jurisdiction the equal protection of the laws." This admonition is applicable to the federal government through the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915, 922 (1968). The promise of equal protection of the laws is not limited to the enactment of fair and impartial legislation, but necessarily extends to the application of these laws. The basic principle was stated long ago in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886):
The city ordinance for which violation Yick Wo was convicted made it unlawful for any person to maintain a laundry in the city of San Francisco without first obtaining the permission of the board of supervisors unless the laundry were located in a building constructed of brick or stone. Although the statute was, on its face, a fair and reasonable exercise of the police power, the facts showed that principally Chinese were refused permission to continue using wooden facilities. The Supreme Court held that criminal enforcement of the law was therefore illegal.
Yick Wo was concerned with an abuse of discretion in the administration of a public ordinance by a city licensing board, and not with the activities of law enforcement officials who presumably prosecuted all Chinese who violated the commands of the licensing board. The underlying principle has nevertheless been properly held to apply to the actions of prosecutors and police officials. Two Guys from Harrison-Allentown, Inc. v. McGinley, District Attorney, 366 U.S. 582, 588, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961);
Despite the seemingly undeniable application of Yick Wo to discriminatory prosecutions,
Falk's allegations indicate that he was singled out for selective and discriminatory treatment on the basis of activities which form an unjustifiable standard for selectivity in prosecution. Falk was an active member of a draft counseling organization known as the Chicago Area Draft Resisters. In his pretrial motion and again in his offer of proof he asserted that the prosecution against him for violation of the card-carrying requirements was brought not because he had violated the statute but to punish him for and stifle his and others' participation in protected First
Similar results have been reached in two recent cases. The most recent, United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), involved a conviction for refusing to answer questions in a census report in violation of 13 U.S.C. § 221(a). The defendant argued that he had been deliberately selected for prosecution because of his participation in a census resistance movement. The Court of Appeals for the Ninth Circuit agreed that there was evidence that Steele had been singled out for prosecution on the basis of his exercise of First Amendment rights and concluded that his conviction could not stand under Oyler and Yick Wo.
Convictions were also reversed in United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972), on a finding that an unlawful and discriminatory purpose precipitated the indictments. The arrests in that case were for violations of a disorderly conduct regulation which prohibited loud and unusual noise and obstruction of passageways and a regulation forbidding the distribution of handbills without prior permission of the federal agency in whose space the material was to be distributed.
The second source of disagreement among some courts and within this court concerns the problem of proof. Certainly, the prospect of government prosecutors being called to the stand by every criminal defendant for cross-examination as to their motives in seeking an indictment is to be avoided. That does not mean that a criminal defendant is never to be afforded an opportunity to prove that the prosecution stems from an improper prosecutorial design or that he may never question a prosecutor under oath. The presumption is always that a prosecution for violation of a criminal law is undertaken in good faith and in nondiscriminatory fashion for the purpose of fulfilling a duty to bring violators to justice. However, when a defendant alleges intentional purposeful discrimination and presents facts sufficient to raise a reasonable doubt about
Defendant in this case twice attempted to present evidence which would have shown an impermissible prosecutorial purpose. In his pretrial motion for dismissal of those counts of the indictment charging violations of the card possession requirements, the defendant expressed his belief that over 25,000 Selective Service registrants had dispossessed themselves of their draft cards without criminal sanction, and sought an evidentiary hearing at which he would submit evidence in proof of his allegations. In his motion for acquittal at the close of the government's case, Falk again attempted to show that the government was aware of many violations and that others were not being prosecuted, citing the policy statement of Lt. General Louis B. Hershey, Director, Selective Service System, Legal Aspects of Selective Service 47 (January 1, 1969, U.S. Government Printing Office), which states in relevant part:
The Hershey statement goes on to say that many of these protesters were classified I-A, a policy which the Supreme Court found unacceptable in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). It is, of course, possible that following the Gutknecht decision, the government changed its policy on non-prosecution. However, in view of its admitted policy not to prosecute prior to that decision we believe that in the particular circumstances of the instant case it was incumbent upon the government to come forward with evidence that it had in fact changed its policy generally or otherwise to explain why Falk was being singled out for prosecution in contravention of the government's own procedures.
The particular circumstances of this case which we believe compelled the government to accept the burden of proving nondiscriminatory enforcement of the law are several. Falk was, as noted earlier, actively involved in advising others on methods of legally avoiding military service and in protesting American actions in Vietnam. Similar circumstances, in which a vocal dissenter appeared to have been singled out for prosecution, led the court in United States v. Steele, supra, 461 F.2d at 1152, to hold that "[a]n enforcement procedure that focuses upon the vocal offender is inherently suspect, since it is vulnerable to the charge that those chosen for prosecution are being punished for their expression of ideas, a constitutionally protected right." In the present case there are several indications that this was exactly the purpose of the prosecution. At the close of the trial Falk's attorney asked that the Assistant United States Attorney who tried the case be called as a witness, and offered to prove that the Assistant United States Attorney had told Falk's attorney at a meeting in December, 1970, that he knew of defendant's draft counseling activities, that a good deal of their trouble in enforcing the draft laws came from people such as Falk, that few indictments were brought for non-possession of draft cards, that defendant's draft-counseling activity was one of the reasons why the prosecution for non-possession of draft cards was brought, and that the government would not dismiss the card-carrying counts of the indictment even though Falk agreed to carry the cards in the future. The court refused the offer
The particular circumstances of this case which overcome the initial presumption of legal regularity in enforcement of penal laws also includes the lengthy delay in bringing the indictment. Falk returned his registration card to the Department of Justice on December 4, 1967, mailed his I-A classification notice to Federal District Judge Hubert Will in October, 1968 and sent a later notice of classification to his draft board in May, 1969. The government therefore had notice of his violations of the regulations from December, 1967. Yet the indictment charging violations of the card possession requirements was not returned until almost three years had passed, in October of 1970, following Falk's refusal to submit to induction in May of that year. Some explanation for the delay in prosecution for the earlier offenses may be found in a statement of policy by the Director of the Selective Service System:
Although this statement would seem to provide a valid, and even in some cases benevolent, explanation for a delay of up to three years in bringing the indictment, it also adds forceful weight to defendant's contention that the prosecution in this case was for the purpose of punishing Falk for his exercise of First Amendment rights. According to this statement, it is government policy to prosecute only a portion of those who commit "minor infractions of rules;" whether a violator is one of those prosecuted depends upon whether he accepts or refuses induction. We may assume, at least for purposes of this case, that a general decision to prosecute those who refuse induction on grounds which will support a conviction to the exclusion of those who agree to cooperate with the Selective Service in the future is within the prosecutor's discretion. The problem in this case, however, is that Falk was found to have been justified in refusing induction in that he was entitled to classification as a conscientious objector. The result is that he faces three years' imprisonment because his local draft board arbitrarily and without grounds to so act refused his claim as a conscientious objector and he was forced to refuse induction in order to assert a valid claim, thereby also incurring prosecution for prior "minor infractions."
Punishment of Falk, however valid otherwise, only because he chose to assert his right as a conscientious objector, is very similar to the conduct of city officials who reinstated criminal charges for alleged traffic violations following the defendant's action in filing an official complaint charging police misconduct in Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966, 968 (1968). Chief Judge Bazelon, in reversing the defendant's conviction on those charges, stated:
Similarly, the government is not free to punish those who refuse to acquiesce in a local draft board's irrational refusal to give a conscientious objector his proper classification while it excuses those who, however much their decision may conflict with moral principles, agree to submit to induction.
To summarize, the combination in this case of the published government policy not to prosecute violators of the card possession regulations, Falk's status as an active and vocal dissenter to United States policy with regard to the draft and the Vietnam War, the Assistant United States Attorney's statement that officials ranging from an Assistant Attorney to the Department of Justice in Washington participated in the decision to prosecute Falk, the untimely delay in bringing the indictment and the government's stated policy to prosecute only those who refuse induction while absolving those who submit to the will of the authorities, lead us to conclude that the district court erred in refusing a hearing on the offer of proof. The unrebutted evidence before the court, including the admission of the Assistant United States Attorney and the two published statements by the Selective Service officials which contradict the propriety of the action taken in this case, made out at least a prima facie case of improper discrimination in enforcing the law. We will therefore remand the case, to a different judge, for a hearing at which time Falk may question the Assistant United States Attorney as to the content of his previous statements to defendant's counsel
In conclusion, we wish to note our disapproval of the apparently frequent, and often too easy, practice of simply dismissing all allegations of illegal discrimination in the enforcement of criminal laws with a reference to Oyler v. Boles, supra, and its statement that the conscious exercise of some selectivity in the enforcement of laws does not violate the Constitution. That correct principle does not in many cases answer the question whether selective enforcement in a given case is invidious discrimination which cannot be reconciled with the principles of equal protection. As Judge Cummings reminded us in Stamler v. Willis, 415 F.2d 1365, 1369-1370 (7th Cir. 1969), cert. denied, Ichord v. Stamler, 399 U.S. 929, 90 S.Ct. 2231, 26 L.Ed.2d 796 (1970), "[t]he judiciary has always borne the basic responsibility for protecting individuals against unconstitutional invasions of their rights by all branches of the Government."
We note finally that United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and Gutknecht v. United States, supra, do not in any way conflict with our holding in this case. The Supreme Court in O'Brien held that the First Amendment could not be interposed as a barrier to conviction for wilful destruction of a draft card. The issue in that case was whether the burning of a draft card was within the protection accorded "speech" or whether conduct was also an element. The issue of discriminatory prosecutions for violation of Selective Service regulations was not before the Court. Furthermore, O'Brien was concerned with the separate prohibition on wilful destruction of draft cards. But the Selective Service System has apparently always taken a different attitude toward public mutilation of these cards. In the excerpt from the Selective Service manual quoted earlier in this opinion, the Director of the Selective Service System stated only that "registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted . . . ."
In the Gutknecht case, the Supreme Court held that the Military Selective Service Act of 1967 did not permit Selective Service officials to deprive registrants of their normal order of call in retaliation for violation of the card possession requirements, stating that criminal sanctions were the sole sanction permitted by Congress. Again, the Court was not concerned with the legality of even criminal sanctions resulting from selective unjustifiable discrimination in enforcement of the law.
Judgment of conviction vacated and cause remanded.
FAIRCHILD, Circuit Judge (concurring).
I agree that there has been a sufficient showing to warrant judicial inquiry
I would add one further point, with respect to the sentence imposed. Defendant was given an aggregate three year sentence for his card violations, as much as or more than he would probably have received if his induction order had been lawful. The judge apparently considered an ill-advised and offensive remark defendant made to his Board. In any event, the sentence appears grossly disproportionate to the circumstances of the offenses. I would readily concede that one who knowingly commits an offense as a means of protest deliberately risks the penalty. In a sense his exposure to sacrifice is a means of making his protest meaningful. On the other hand, the card offenses here can not be considered serious, nor to have threatened, under the circumstances, the government's legitimate objective in requiring the possession of cards.
Even if the prosecution were deemed lawful on remand, I believe the aggregate sentence must be substantially reduced.
CUMMINGS, Circuit Judge, with whom HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge, join (dissenting).
Prior to his trial defendant moved to dismiss Counts II, III and IV of the indictment charging him with failure to possess his Selective Service registration card and his 1968 and 1969 I-A classification cards. The basis of his motion was that by seeking these counts of the indictment the Government denied him "equal protection of the law as that right is guaranteed in the due process clause of the Fifth Amendment to the Federal Constitution." In support of his claim he merely alleged that on information and belief over 25,000 Selective Service registrants had dispossessed themselves of their draft cards and that the supposed violators had not been indicted. He then alleged that his prosecution had been brought "not to enforce the Selective Service law, but for the unconstitutional purpose of punishing the Defendant for expressing his beliefs that the draft is wrong, that war is wrong, and for lawfully participating in an organization known as the `Chicago Area Draft Resisters' (CADRE) * * * [and] for the purpose of chilling the exercise of right secured to the Defendant by the First Amendment * * *." Defendant requested an evidentiary hearing so that he could prove the alleged "unlawful purpose." The district court denied defendant an evidentiary hearing, although at the end of trial testimony he permitted defendant to make an offer of proof.
The majority holds that on the strength of the allegations in the pretrial motion to dismiss, defendant was entitled to an evidentiary hearing. If this be so, Senior Judge Campbell's observation that in criminal cases "[w]e now have eight trials to replace the original one!"
Defendant alleged both that he believed over 25,000 Selective Service registrants had dispossessed themselves of their draft cards and had not been indicted and that his indictment had been brought for the purpose of punishing him for and chilling him in the exercise of his First Amendment rights. He claims that these allegations would support an unequal protection finding under Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446,
Defendant did not allege or contend at any time during the course of these proceedings that the supposed 25,000 registrants who were not prosecuted did not also engage in protected First Amendment activities. Nor did he allege they were similarly situated. Specifically he failed to state when these non-prosecuted registrants were supposed to have turned in their draft cards and whether or not their delinquencies were handled administratively. This is of elementary importance because prior to the Supreme Court's decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 decided January 19, 1970, card non-possession delinquencies were routinely handled administratively by punitively accelerating the registrants' induction dates or, in some cases, by reclassifying them.
If the class of persons not prosecuted was not situated similarly to defendant in these basic respects, his equal protection violation claim must fail. Likewise if the class of persons not prosecuted was situated similarly to defendant but also voiced opposition to the war and the draft, etc., any claim that defendant was comparatively disadvantaged on the basis of his engagement in protected First Amendment activities would be unsustainable. Without these crucial allegations defendant's claim at best is that he was prosecuted for a crime which was routinely handled administratively until ten months prior to his indictment because he possessed a certain characteristic and that a large number of men (who may or may not have possessed that characteristic) were not prosecuted at some unspecified time in the past. If this unspecific and misleading allegation deserved a hearing to determine whether a defendant's prosecution violated equal protection, then it is inescapable that practically any defendant can precipitate such a hearing.
Perhaps this result would be tolerable if defendant were required at the outset to show that the 25,000 persons were different from him only in respect to the alleged impermissible selection factor. But it is apparent that defendant never intended to establish that the effect of the Government's prosecutive policy was to prosecute a card-dispossessing registrant only if he vocally opposed governmental war policy, and the majority does not require him to do so. Rather, defendant wants, and now receives, a hearing to determine whether in his particular case the decision to prosecute was made for an invidious purpose—to punish him for and chill him in the exercise of his First Amendment rights. Let there be no mistake about this: the hearing is to determine the actual motive of the Government attorneys responsible for defendant's indictment principally through their own testimony.
Cases relied on by the majority do not support the conclusion that defendant's dismissal motion allegations, if proved, would make out a prima facie equal protection denial. In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 it was alleged in the uncontradicted petitions that consent of the supervisors to operate laundries in wooden buildings was withheld from all Chinese but granted to all Caucasians (save one) similarly situated. Id. at 359, 361, 374, 6 S.Ct. 1064. The Court found "the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons * * * as to amount to a practical denial by the state of * * * equal protection of the laws * * *." Id. at 373, 6 S.Ct. at 1073. In United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972), defendants alleged that although they were arrested for participating in various anti-war demonstrations under a disorderly conduct regulation which prohibited "conduct on property which creates loud and unusual noise, or which obstructs the usual use of entrances, foyers, [etc.] * * *," on sixteen prior occasions the Government allowed similar activities non-offensive to it where the level of noise was even
The common thread running through these decisions was an allegation and a showing that the effect of the administrative or prosecutive policy was a division between persons otherwise similarly situated according to whether or not they possessed a certain characteristic.
Defendant's case, then, comes to this: without making any effort to establish that the effect of the Government's prosecution is to differentiate between him and others on an impermissible basis, he would have a court inquire into the actual motivation behind the Government's indictment and rule his prosecution unconstitutional solely on the basis of a wrongful prosecutorial purpose. But the "purpose" of the executive, as Falk uses the term, is not a basis for declaring this otherwise valid prosecution unconstitutional.
In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, the import of which the majority understandably sidestepped, O'Brien argued that the 1965 amendment to the Universal Military Training and Service Act of 1948, prohibiting the knowing destruction or mutilation of Selective Service registration and classification certificates, was unconstitutional as applied to him and unconstitutional because "what he calls the `purpose' of Congress was `to suppress freedom of speech.'" Id. at 376, 88 S.Ct. at 1678. The Supreme Court, assuming O'Brien's draft-card-burning had a sufficiently communicative contest to bring the First Amendment into play, rejected his first argument because the Government had a substantial interest in ensuring the smooth functioning of the Selective Service System, because the 1965 amendment was an appropriately narrow means of protecting this interest and condemned only the noncommunicative impact of the conduct in its reach, and because the noncommunicative impact of O'Brien's draft-card burning frustrated the Government's interest. Id. at 376-382, 88 S.Ct. 1673. What is important for this case is that the unanimous Supreme Court also rejected O'Brien's second argument. O'Brien wanted the Court to look at
Falk now asks this Court to look at statements of Government attorneys and the surrounding circumstances in order to divine the purpose or motive for his indictment. We should even more firmly decline this invitation. Since the reasons behind the O'Brien Court's refusal to use Congressional purpose or motive as a sufficient vehicle to strike down an otherwise constitutional statute are grounded in the judiciary's institutional competence and the doctrine of separation of powers, they apply with equal, if not greater, force to close the door to judicial inquisition into the purpose or motive of the executive in seeking an otherwise valid indictment. This could not have been made more explicit than in the following passage from Justice Edward Douglass White's opinion in McCray v. United States, 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78, whose undiminished vitality the Court reaffirmed in O'Brien:
The type of inquiry which O'Brien asked the Supreme Court to make and which Falk now proposes can lead to only an assumption of bad governmental purpose. Not only is it true that what motivates some legislators will not be the purposes other legislators have in mind (O'Brien, supra, 391 U.S. at 384, 88 S.Ct. 1673), but also a motive to stifle a type of expression, for example, may coexist with a purpose to ensure the smooth functioning of the Selective Service System in the mind of any legislator. It would, therefore, have been a very risky business, indeed, to strike down the 1965 amendment in O'Brien on the basis of statements by legislators and the circumstances surrounding debate, and, as the Supreme Court put it, "the stakes are sufficiently high for us to eschew guesswork." Id. 391 U.S. at 384, 88 S.Ct. at 1683. In the case at bar, Falk's indictment was drafted by someone in the United States Attorney's Office in Chicago, approved by the Chief of its Criminal Division, by the First Assistant United States Attorney, by the United States Attorney, and by the Department of Justice in Washington. Whose motivation is supposed to be decisive of the Government's purpose in prosecuting Falk? And doubtless any evil purpose will be coincident with a purpose to enforce the law. Indeed, in his offer of proof defense counsel stated he expected an Assistant United States Attorney to testify that "one of the reasons" defendant was prosecuted was his draft-counseling activities. As explained later, I do not believe that to be an impermissible reason, but if a court feels otherwise, is it to engage in the guesswork of trying to determine the "dominant" purpose? O'Brien's answer is an emphatic "no." See also Palmer v. Thompson, 403 U.S. 217, 225, 91 S.Ct. 1940, 29 L.Ed.2d 438. Unless a judge has made an indefensible a priori determination, this type of judicial inquiry must only lead to an assumption. And it is simply not the function of the judiciary within our constitutional scheme to void otherwise valid governmental acts solely on the basis of such an assumption. The fact that Falk proposes to call the officials responsible for his indictment to the witness stand does not alleviate the problem but rather exacerbates it. It is the ultimate transgression of judicial authority to haul the executive to the witness stand for examination by a criminal defendant as to why it has chosen to indict him.
Recognizing only the practical problems of "government prosecutors being called to the stand by every criminal defendant for cross-examination as to their motives in seeking an indictment * * *,"
First of all, the only "fact" which defendant presented in his motion to dismiss was his belief that over 25,000 Selective Service registrants had turned in their draft cards but gone unindicted. As shown, supra at 626-627, this allegation is meaningless. The majority decides the district court was wrong in not granting the hearing requested in defendant's motion to dismiss. But since it does not, and hardly could, deem proof
The only other "fact" presented in the record is the statement of General Louis B. Hershey, Director, Selective Service System, in Legal Aspects of Selective Service 47 (January 1, 1969, U. S. Government Printing Office), which defendant included in his motion for acquittal. This statement is as follows:
The statement as of January 1, 1969, by its terms refers to a situation existing prior to that date wherein "[b]y agreement with the Department of Justice, registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted under Section 12(a) of the Military Selective Service Law of 1967, but were processed administratively by the local boards."
In sum, not only is there no support for the majority's newly fashioned "reasonable doubt" standard for cross-examining prosecutors as to their motives in seeking an indictment, but also the "facts" presented by defendant are so far from raising such a doubt that they fail to amount to a scintilla.
The majority concludes, after examining the "unrebutted evidence" before the trial court, that defendant "made out at least a prima facie case of improper discrimination." Ante at 623. Initially, the majority has indefensibly usurped the trial court's function of determining fact in reaching this conclusion. More importantly, since nothing defendant alleged or offered to prove went to the status of the persons not prosecuted, defendant's case went not to establishing discrimination but rather to establishing a bad purpose behind his prosecution. But assuming the truth of everything defendant alleged or offered to prove—all that is properly before us
As already demonstrated, proof of the bare allegation that 25,000 Selective Service registrants who turned in their draft cards were not prosecuted is meaningless. Likewise, as shown previously, the Hershey statement is not probative. When called as a witness on defendant's offer of proof, Assistant United States Attorney Kadison stated that he did not draft defendant's indictment but believed he was involved in making the decision whether or not to prosecute defendant. Defense counsel stated he expected to prove that this prosecutor was aware of defendant's activities as a draft counselor and that Mr. Kadison had previously told him: that the Government would be unable to prove unlawful counseling or urging evasion of the draft against Mr. Falk, but they believed that a good deal of their trouble in enforcing the Selective Service law had been coming from people like him, that it was sometimes unusual to bring an indictment for non-possession of cards, that Mr. Falk's counseling activities were one of the reasons why the prosecution for nonpossession of draft cards was brought, and that he was not sure of the Government's case on Count I against defendant. Defense counsel told the district court that Mr. Kadison had made these statements to him on December 8, 1970, when defense counsel visited the prosecutor's office to request the dismissal of Counts II, III and IV in return for defendant's agreement to carry his cards. Mr. Kadison told the court that defendant's indictment had already been drafted when he joined the United States Attorney's Office, that it was approved by the Chief of the Office's Criminal Division, the First Assistant United States Attorney, the United States Attorney, and the Department of Justice and that he had had very little to say about the actual decision whether or not to prosecute.
As explained earlier, the majority's use of the prosecutor's statements and supposed statements to infer an unconstitutional governmental motive for indicting Mr. Falk serves as the best possible illustration why consideration of motive or purpose is not open as the basis for voiding an otherwise valid governmental act. Moreover, the majority's unexplained assumption that Kadison's testimony would be admissible to prove the Government's purpose in bringing the prosecution, ante at 623 and n. 6, is very dubious as an evidentiary matter. His out-of-court statements to defense
But putting to one side these basic infirmities of the majority's unprecedented approach, if indeed Falk's draft counseling activity was one of the reasons why the prosecution was brought, that is hardly an impermissible reason for prosecution. Quite the contrary. As stated in the panel decision, "select enforcement of a law against someone in a position to influence others is unquestionably a legitimate prosecutorial scheme to secure general compliance with the law." 472 F.2d at 1108. Nowhere does the majority choose to dispute that proposition. Instead it quotes from United States v. Steele, 461 F.2d 1148, 1152 (9th Cir. 1972), to the effect that "[a]n enforcement procedure that focuses upon the vocal offender is inherently suspect, since it is vulnerable to the charge that those chosen for prosecution are being punished for their expression of ideas, a constitutionally protected right." As a general proposition, and certainly under the circumstances of this case, I cannot subscribe to that view. Though such a procedure may be vulnerable to that charge, at least in cases such as this, where it is ridiculous to expect prosecution of all violators, it is likewise consistent with the sensible enforcement scheme of securing general compliance through prosecution of those who defiantly violate the law in the public eye. It is well within the realm of prosecutorial discretion to take into account the personal characteristics of the defendant, and among those his visibility and influence over others may quite properly weigh heavily in the decision whether to prosecute.
The majority relies on the statement of Mr. Kadison that defendant's indictment was approved by several echelons of prosecutorial officials as "some evidence that Falk was singled out for special prosecution." Ante at 622. First of all, the majority has simply assumed it was the card non-possession counts of the indictment that were the subject of the multi-leveled review, but there is nothing in the record to substantiate that. But even operating on that assumption, the majority's inference seemingly smacks of prepossession.
Certainly no one would expect Federal prosecutors to expend their limited resources on indicting and trying all Selective Service registrants who have violated the card possession requirements. In the fall of 1970, when Falk was indicted, recourse to the usual administrative procedure for dealing with draft card delinquencies was no longer open, and prosecution was the only means available for enforcing the regulations. That the United States Attorney's Office would want carefully to consider proposals for indicting registrants in order to insure that the prosecutions had sufficient potential for effecting deterrence and securing general compliance to justify the expenditure of limited resources is a reasonable approach indeed. And, as I have said before, unquestionably it is a sound enforcement technique to prosecute the notorious violator or counselor, to whom others look, in order to deter would-be violators and promote general compliance. Furthermore, if all violators cannot be prosecuted, the United States Attorney's Office has an interest in carefully reviewing proposals to prosecute in order to insure decisional uniformity as a matter of fairness to the registrants.
The Justice Department, at a time when a large prosecutorial responsibility
Apparently cognizant that support for defendant's argument about the purpose of his prosecution was lacking, the majority devised another argument, not advanced by the defendant. This argument leads to the conclusion that defendant was "indicted and prosecuted for violation of the card possession requirements only because he exercised his First Amendment privilege to claim a statutory right as a conscientious objector." Ante at 623. The argument's curious dialectic is as follows: The Government had notice of defendant's first violation of the card possession regulations when defendant mailed his registration card to the Department of Justice on December 4, 1967, but did not indict him until October of 1970, after Falk had refused to submit to induction.
If this argument is valid, it follows that whenever a defendant is acquitted of a failure to report charge because his local board somehow erred in not awarding him a requested classification other than I-A, the court must automatically acquit the defendant of accompanying "minor" infraction charges of which he is proved guilty. But of course the argument is invalid. There is no logical way the court's acquittal on the refusal of induction charge can retroactively taint the prosecutor's decision to indict for other violations as well. Unless the prosecutor is expected to possess clairvoyance, he can hardly be faulted for seeking to indict the defendant for all violations he was believed to have committed. The defendant violated the card possession requirements and cannot gain immunity from prosecution simply because he was not indicted for so doing until after he refused induction. His First Amendment rights were freely exercised when he claimed CO status. No First Amendment rights were implicated in anything that transpired thereafter.
To summarize, the principal points of my disagreement with the majority are as follows: First, the bare-boned and conclusionary allegations in defendant's motion to dismiss did not deserve a hearing. Second, defendant's allegations were facially insufficient to sustain a claim that he was denied equal protection of the laws. Third, the "purpose" of his prosecution, as defendant uses the term, is not a basis for declaring that prosecution unconstitutional. Fourth, it is not permissible for a defendant to call a prosecuting attorney for the United States or his superiors to the witness stand for interrogation as to the Government's motive for prosecuting him. Fifth, assuming the propriety of the majority's approach and the truth of everything defendant alleged and offered to prove, defendant did not make out a prima facie case that his prosecution was impermissibly brought, much less that he was denied equal protection.
Finally, I could hardly take issue with the proposition that "[t]he judiciary has always borne the basic responsibility for protecting individuals against unconstitutional invasions of their rights by all branches of the Government." Stamler v. Willis, 415 F.2d 1365, 1369-1370 (7th Cir. 1969), certiorari denied, 399 U.S. 929, 90 S.Ct. 2331, 26 L.Ed.2d 796. However, the judiciary can only exercise that responsibility within the confines of its institutional competence in our constitutional system. Even if it is conceded that the executive acted lawlessly in prosecuting the defendant out of an evil animus, this Court likewise acts lawlessly when it undertakes to right a wrong it has no competence to right. Unless the Court suggests that its purposes or motives may be inquired into and their nobility balanced against the baseness of the executive's, I fail to see how the Court's action can be any less lawless than the executive's. As noted previously, the Supreme Court stated in McCray v. United States, 195 U.S. 27, 55, 24 S.Ct. 769, 776, 49 L.Ed. 78:
PELL, Circuit Judge (dissenting).
I concur in the dissenting opinion of Judge Cummings. While the acute analysis in that opinion of the particular case before the court scarcely needs amplification, nevertheless, because of the
While a majority of the judges of this court have joined in Judge Sprecher's well-written opinion, I, respectfully to the good judgment which I am aware they possess, am of the opinion that insufficient consideration has been given to the far-reaching impact of the law now established by the majority opinion. The ripples of that opinion will permeate far beyond the factual reaches of this case for erosion once permitted is not easily contained. That the present opinion may constitute a minuscular crack in the sluice gate does not mean that Falk has not established as a principle that the motivation of the public prosecutor as to an individual defendant may be scrutinized. Once the right of scrutiny has been established, the methodology and range of scrutiny will undoubtedly be coextensive with the right. That inquiry will perforce necessitate another trial within a trial in which the involved prosecutorial staff will by their testimony attempt to go forward with the proof burden placed on them by the majority, that of showing nondiscriminatory motivation.
I offer no apologies for, nor approbation of, the prosecutor who may be improperly motivated in a case involving a particular individual. Such conduct is beneath both the dignity and the purpose of the office to which is entrusted the enforcement of our criminal laws on an objective basis. Because prosecutors along with the rest of public officials are subject to human frailities, and may on occasion let those characteristics override propriety, it does not, in my opinion, justify a case-by-case ad hoc determination of the question. Mr. Justice Frankfurter observed that our system of criminal justice necessarily depends on conscience and circumspection in prosecuting officers
That the claim of improper motivation, a dragnet of infinite magnitude in its scope of assertion, will not be advanced with considerable regularity appears to me to be ignoring the realities implicit in sophisticated defense tactics. I think I can safely venture the opinion that a substantial number of law violators react to prosecution with a feeling they are being singled out. The sweep is broad, ranging from the recipient of a parking ticket who resents the fact that the large black Cadillac by a fireplug is unmolested to the Al Capone who is prosecuted for violation of the income tax laws. Each will now have a new weapon, not to prove that he did not commit the crime with which he is charged but only to defeat the penalty which the legislature has decreed for his aberrant behavior.
The particular case before the court has arisen from a situation which Judge Fairchild has properly characterized as "an exceptional area of national life." The fact that this country's involvement in the conflict in Southeast Asia has generated emotionalism and divisiveness within the citizenry such as has been seldom experienced does not justify the establishment of a rule of law which can only have a deleterious effect on a proper administration of criminal justice. The claims of Falk may well cause us as individuals to feel that he was singled out for prosecution for reasons other than that he had violated the law. This surface allure does not, however, in my opinion, justify our intervention as the judiciary nor does it gainsay that in
No one on this court disagrees with the holding of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), that there has been a denial of equal protection of the law when that law in its administration is discriminatorily directed at a particular class of people, as in Yick Wo on a nationality basis. The same principles would seem to be applicable irrespective of what the generic basis for differentiation might be between classes of persons. The court is in disagreement, however, in the case of the claim of an individual who asserts that he is being prosecuted because of an ulterior motive toward him on the part of the prosecutor.
This is not a situation such as the defense of insanity where society has determined that a person should be relieved from penal responsibility in the absence of the requisite mentality. No doubt any defense makes the prosecutor's task more onerous than attendance in court on a guilty plea. I do not urge any rationale of protecting the prosecutor from the full performance of his duty of prosecuting the guilty. I do recognize, and urge, however, the necessity for not curtailing prosecutorial selectivity in the discharge of that duty. In the nature of human affairs not everyone who has committed a crime will be prosecuted, but as Judge Cummings has pointed out, there is merit in a "sensible enforcement scheme of securing general compliance through prosecution of those who defiantly violate the law in the public eye."
To subject the prosecutor's determination to the scrutiny of propriety of the motivation toward the defendant qua individual is indeed to pry the lid from the mythological cask. A few examples will suffice: "I was picked out for prosecution because I am too poor to hire an attorney and although many other people have smoked pot, they are not charged because they are wealthy and can afford top-notch lawyers, who can beat the rap; I was singled out for prosecution because my name is ethnically unorthodox in this community; I got charged because the prosecutor disliked my father, so he grants the other guy immunity to pin the rap on me; and the tax people have never prosecuted for that sort of a thing but they're after me because they think I got by too easily as to years on which the statute has run."
I do not purport to conceive all of the ways in which improper motivation might be discovered by ingenious defense counsel. I merely point out that the road is there and it will be utilized. No doubt many will be summarily dismissed as frivolous but the dismissal will itself be another ground for appeal plus the fact that those not dismissed summarily will entail the prosecutor being put to the proof of purity of motivation.
In sum, I do not believe society needs this additional remedy for the guilty. Those who are innocent will not need it. I therefore respectfully dissent.