United States v. Falk

• Decision Date: 19 April 1973
• Docket Number: No. 71-1213.,71-1213.
• Citation: 479 F.2d 616
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Stuart FALK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

479 F.2d 616 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Stuart FALK, Defendant-Appellant.

No. 71-1213.

United States Court of Appeals, Seventh Circuit.

Reheard January 23, 1973.

Decided April 19, 1973.

William J. Stevens, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Gordon B. Nash, Jr., and William T. Huyck, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, KILEY, FAIRCHILD, CUMMINGS, PELL, and SPRECHER, Circuit Judges.

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 cards, all in violation of 50 U.S.C. App. § 462. The defendant filed a pretrial motion to dismiss those counts of the indictment charging him with failure to possess the proper cards on the ground that the prosecution sought the indictment for the improper purpose of chilling the exercise of rights guaranteed by the First Amendment and to punish him for participation in a draft counseling organization. The trial judge denied the motion without holding an evidentiary hearing. At trial, an offer of proof based on the same contention was similarly rejected. A jury found Falk guilty on all four counts, but the district court granted a post-trial motion for acquittal on count one on the ground that there had been no basis in fact for denying Falk classification as a conscientious objector. He received three consecutive one year sentences on the card-carrying counts.

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):

"Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

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);¹ United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972);² United States v. Crowthers, 456 F.2d 1074, 1080 (4th Cir. 1972); Shock v. Tester, 405 F.2d 852, 855 (8th Cir. 1969); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915, 924 (1968); Moss v. Hornig, 314 F.2d 89, 92-93 (2d Cir. 1963); People v. Walker, 14 N.Y.2d 901, 252 N.Y.S.2d 96, 200 N.E.2d 779 (1964); People v. Gray, 254 Cal.App.2d 256, 63 Cal.Rptr. 211 (1967); People v. Harris, 182 Cal.App.2d Supp. 837, 5 Cal.Rptr. 852 (1960). Cf., Littleton v. Berbling, 468 F.2d 389 at 410 (7th Cir. 1972).

Despite the seemingly undeniable application of Yick Wo to discriminatory prosecutions,³ two questions have troubled various courts and appear to be the source of the disagreement between the majority and dissenters on this court. The first of these arises from the decision in Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962), in which the Court noted that the "conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation," and went on to state that since it had not been alleged "that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification" there were no grounds to support a finding that the equal protection clause had been violated. From this it is argued that a person attempting to defend against the discriminatory enforcement of a law must show that he is a member of a class against which the law is being selectively enforced. See, e. g., United States v. Falk, supra, 472 F.2d at 1106-1108; "Supreme Court, 1961 Term," 76 Harv.L.Rev. 54, 120-121 (1962).⁴ We agree with Judge Lumbard in Moss v. Hornig, supra, 314 F.2d at 93, that Oyler does not preclude the granting of relief against intentional or purposeful discrimination against an individual. No intentional discrimination against the petitioner as an individual was alleged by Oyler and he merely attempted to show, by statistical evidence, that fewer than all multiple offenders were given heavier sentences. In the present case intentional discrimination is alleged. Cf., Furman v. Georgia, 408 U.S. 238, 257, 293-295, 92 S.Ct. 2726, 2736, 33 L.Ed.2d 346 (Brennan, J., concurring), 408 U.S. 238, 306, 309-310, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring); Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Weisberg v. Powell, 417 F.2d 388, 392 (7th Cir. 1969).

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 Amendment activities in opposition to the draft and the war in Vietnam. There can be no doubt but that the expression of views opposing this country's foreign policy with regard to Vietnam is protected by the First Amendment. Schacht v. United States, 398 U. S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). And, just as discrimination on the basis of religion or race is forbidden by the Constitution, so is discrimination on the basis of the exercise of protected First Amendment activities, whether done as an individual or, as in this case, as a member of a group unpopular with the government.

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.⁵

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....