Attorney General of U.S. v. Irish People, Inc.

Decision Date30 January 1980
Docket NumberNo. 81-1035,No. 76-01518,81-1035,76-01518
Parties, 221 U.S.App.D.C. 406 ATTORNEY GENERAL OF the UNITED STATES of America, Appellant, v. The IRISH PEOPLE, INC., Appellee. . Argued 21 Oct. 1981. Decided 2 July 1982. Appeal from the United States District Court for the District of Columbia (D.C. Civil Action). Brian K. Ahearn, Atty., Dept. of Justice, Washington, D. C., with whom John C. Keeney, Acting Asst. Atty. Gen., John L. Martin and Joseph E. Clarkson, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellant. Charles S. Sims, New York City, with whom Helene M. Freeman, New York City, and Mark Lynch, Washington, D. C., were on the brief for appellee. Before BAZELON, Senior Circuit Judge, and WILKEY and WALD, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Separate opinion for the Court filed by Circuit Judge WALD. Concurring opinion filed by Senior Circuit Judge BAZELON. PER CURIAM: Judge Wilkey files an opinion in which Judge Wald and Senior Judge Bazelon concur, except with respect to Part II, A (entitled "Lack of Improper Motivation"). Judge Wald files a separate opinion in which Senior Judge Bazelon concurs. Judge Wald's opinion, and Judge Wilkey's opinion, except for Part II, A, together constitute the opinion of the court. The district court's order is reversed and the case remanded for further proceedings consistent with the opinion of the court. So Ordered. WILKEY, Circuit Judge: The Attorney General of the United States, plaintiff/appellant, initiated this suit under the Foreign Agents Registration Act 1 ("FARA" or "the Act") to compel defendant/appellee, publisher of the newspaper The Irish People, to register under the Act. The district court ruled that certain documents requested by the defense from plaintiff were state secrets, as the Attorney General claimed, but that defendant had established a need for discovery of the documents in order to pursue the selective prosecution defense it had raised. The court therefore concluded that since the Attorney General
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 76-01518).

Brian K. Ahearn, Atty., Dept. of Justice, Washington, D. C., with whom John C. Keeney, Acting Asst. Atty. Gen., John L. Martin and Joseph E. Clarkson, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellant.

Charles S. Sims, New York City, with whom Helene M. Freeman, New York City, and Mark Lynch, Washington, D. C., were on the brief for appellee.

Before BAZELON, Senior Circuit Judge, and WILKEY and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Separate opinion for the Court filed by Circuit Judge WALD.

Concurring opinion filed by Senior Circuit Judge BAZELON.

PER CURIAM:

Judge Wilkey files an opinion in which Judge Wald and Senior Judge Bazelon concur, except with respect to Part II, A (entitled "Lack of Improper Motivation"). Judge Wald files a separate opinion in which Senior Judge Bazelon concurs. Judge Wald's opinion, and Judge Wilkey's opinion, except for Part II, A, together constitute the opinion of the court. The district court's order is reversed and the case remanded for further proceedings consistent with the opinion of the court.

So Ordered.

WILKEY, Circuit Judge:

The Attorney General of the United States, plaintiff/appellant, initiated this suit under the Foreign Agents Registration We reverse because we find that neither element necessary for a selective prosecution defense was sufficiently demonstrated by the district court's opinion, 502 F.Supp. 63, for the defendant to be entitled to discovery on the issue. We also caution that on remand, even if a colorable selective prosecution claim is ultimately demonstrated to exist, outright dismissal may be too extreme a measure to invoke for plaintiff's inability to comply with defendant's discovery request.

Act 1 ("FARA" or "the Act") to compel defendant/appellee, publisher of the newspaper The Irish People, to register under the Act. The district court ruled that certain documents requested by the defense from plaintiff were state secrets, as the Attorney General claimed, but that defendant had established a need for discovery of the documents in order to pursue the selective prosecution defense it had raised. The court therefore concluded that since the Attorney General chose not to surrender the material to the defendant the action had to be dismissed.

I. Background

On 16 August 1976 the Attorney General filed this complaint seeking a mandatory injunction requiring defendant, a New York corporation and publisher of the weekly newspaper The Irish People, to register with his office as required by FARA. The Act requires that, with certain exceptions, anyone acting as an agent of a foreign principal register with and make certain disclosures to the Attorney General. The main allegations of the suit are that the defendant is controlled and partially financed by the Irish Northern Aid Committee (INAC), an admitted agent of a foreign principal, and that the defendant in turn is a means to garner support for INAC and its principal, the Irish Republican Army (IRA). 2 The defendant has denied these allegations and has raised a series of affirmative defenses including selective prosecution. Specifically, the defendant claims that it was improperly singled out for registration under FARA, not as a matter of legitimate discretion, but rather "because of hostility to the editorial policy of defendant, and the (Irish Republican) cause it espouses," 3 and as a result of pressure from the British and perhaps the Irish governments.

Beginning in January 1978 The Irish People engaged in extensive efforts to secure production and discovery of information and documents it claimed to be relevant to its factual exculpation and legal defenses. Eventually, after various interim orders and extensive briefing by the parties, the parties joined issue over the documents which the Attorney General sought to shield from discovery as state secrets. In the meantime the Attorney General had furnished a large number of other documents.

By a memorandum opinion of 13 July 1979 4 the district court held that the state secrets privilege did apply, and denied defendant access to the privileged material.

On the basis of this denial, the defendant next moved for the dismissal of the Attorney General's cause of action, asserting that without access to the privileged material the defendant could not adequately pursue its defense of selective prosecution and that the Attorney General, by successfully invoking the privilege, was now precluded from seeking a mandatory injunction requiring defendant to comply with FARA. Defendant argued that "fair adjudication ... has been rendered impossible by the After considering the arguments of the parties, the district court found that the defendant had established a need for the privileged material in order to pursue the selective prosecution defense and that the plaintiff had to surrender the material to the defendant or the action would be dismissed. 6 The plaintiff moved for reconsideration, arguing that neither the circumstances nor the applicable law warranted such a dismissal. The district court denied the motion for reconsideration and granted defendant's motion to dismiss. 7

government's assertion of a claim of state secrets privilege to withhold relevant evidence necessary for the defense." 5

We reverse. The opinion by the district court adequately demonstrated neither of the two elements necessary for a selective prosecution-improper motivation and selection by the Government. 8 Moreover, in any event outright dismissal may have been too extreme a measure for the district court to invoke. We discuss these two findings in turn. 9

II. The Selective Prosecution Claim

As we held in United States v. Diggs, 10 a defendant alleging or invoking the selective prosecution defense, even at the discovery stage, must offer at least a colorable claim both that the prosecution was improperly motivated and that it was selective in the first place. 11 In the case at

hand, however, the district court's opinion does not indicate that defendant has done either.

A. Lack of Improper Motivation
1. Overview

The district court found, first, that defendant had established "entitlement to discovery relating to the defense of selective prosecution" and, second, that "the particular documents that the defendant seeks to discover are sufficiently related to that defense to justify compelling the government to release them." 12

All three judges on this panel are agreed that the district court must reconsider both findings. We are agreed that the evidence cited by the district court did not entitle defendant to discovery since it did not demonstrate a colorable showing of improper motivation, and that-even if such a showing were made-the documents in question may not be sufficiently relevant to the defense to justify their discovery. 13

The district court listed the reasons for its conclusion that the defendant had established entitlement to discovery on the selective prosecution issue as follows:

(T)he court is satisfied that regardless of the test applied-reasonable doubt, colorable basis, beyond frivolous, evidence tending to show essential elements-the defendant has carried his burden. Particularly significant is the January 30, 1980 deposition of Mr. Dennis Dickson, a former F.B.I. Legal Attache stationed with the American Embassy in London. Dickson indicated that the United States Department was at one time "getting various requests from the Government of Ireland as to what the U.S. was doing to prosecute individuals that were shipping guns, ammunition, that was in violation of the Registration Act...." Dickson Deposition at 50. He confirmed that at a meeting convened by the State Department, id., apparently on September 26, 1973, id. at 47, there was discussion of means of alleviating political as well as financial and military support furnished by (sic) Irish militants by U.S. citizens, id. at 52-53. In view of these and other statements in the Dennis Deposition, it would be unreasonable to deny the requested discovery. 14

The district court then turned to whether the documents defendant sought, which the court had earlier ruled to be state secrets, would bear on whether the Attorney General was improperly motivated. The court quoted United States v. Reynolds 15 in concluding that dismissal would be proper if the Government had "invoke(d) its governmental privileges to deprive the accused of anything which might be material to his defense." 16

Having examined each of the documents in camera, Judge Flannery then concluded:

There is a manifest likelihood that documents reflecting communications between The district court apparently concluded that something which "might be material" to defendant's defense had been shown if the documents demonstrated that "the British or Irish governments had communications or discussions with American agencies, or officers, which might have resulted in, stimulated, or led to the intensification of the investigation by American agencies" 18 of The Irish People.

agencies of the Irish and British governments and agencies of the United States would shed considerable light on the existence vel non of at least one unlawful basis for the present prosecution. Indeed, as this court stated earlier in this case, "The defendant in the case sub judice has argued persuasively that proof of the existence of communications between agencies of the British or Irish governments and American agencies is crucial to its defense of selective prosecution...." 17

However, it is clear that Con...

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