FEDEROV v. U.S.
| Decision Date | 06 September 1990 |
| Docket Number | No. 88-531,No. 88-242,No. 88-240,88-240,88-242,88-531 |
| Citation | 580 A.2d 600 |
| Parties | Veronica FEDEROV, Appellant, v. UNITED STATES, Appellee. Stephanie G. DONNE, Appellant, v. UNITED STATES, Appellee. Dana MELLECKER, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Appeal from the District of Columbia Richard S. Salzman and Arthur L. Burnett, JJ.
THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.
Grace M. Lopes, Washington, D.C., appointed by this court, for appellants.
R. Craig Lawrence, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, were on the brief, for appellee.
David M. Becker, with whom Andrew D. Roth, Arthur B. Spitzer, and Elizabeth Symonds, Washington, D.C., were on the brief, for amicus curiae, the American Civil Liberties Union Fund of the Nat. Capital Area.
Before ROGERS, Chief Judge, and FERREN and SCHWELB, Associate Judges.
This case presents the question whether appellants, who demonstrated in support of more humane treatment of homeless persons by unlawfully refusing to leave a Metro station when ordered to do so, have proffered sufficient evidence to entitle them to discovery and to an evidentiary hearing on their claim of unconstitutional selective prosecution. They claimed they were deemed ineligible for diversion from prosecution as first offenders solely because they exercised their rights protected by the First Amendment. We agree that appellants have proffered sufficient evidence to support their allegation. We therefore reverse and remand for further proceedings.
These consolidated appeals arise out of a series of demonstrations at the Farragut West Metro station in November and December of 1987. The demonstrations were held to protest the installation by the Washington Metropolitan Area Transit Authority (Metro or WMATA) of a locked gate designed to bar homeless persons from taking shelter in the station after closing time. The demonstrators positioned themselves in an area near the gate in order to prevent the gate from being closed at closing time. The three appellants, each of whom was a student at George Washington University at the time, participated in one of these demonstrations. Shortly after closing time, the demonstrators were warned that they would be arrested if they remained in the area near the gate. Each appellant refused to leave when so directed, and each was arrested and charged with unlawful entry, in violation of D.C.Code § 22-3102 (1989).
All of the appellants requested admission to the United States Attorney's pretrial diversion program, which provides an alternative to prosecution for first offenders charged with certain misdemeanors. When an eligible offender is so "diverted," the United States Attorney dismisses the charges, usually in exchange for the successful completion by the offender of a specified number of hours of community service. The offender must also refrain from the commission of an offense during the diversion period. If the offender successfully completes the diversion program, the stigma of a criminal conviction is avoided.
All of the appellants were eligible for the diversion program. Each was a first offender, and it is undisputed that unlawful entry is a divertable misdemeanor offense.Nevertheless, all three were denied admission into the program. Reserving their appellate rights with respect to the denial of diversion, appellants entered pleas of guilty, and each received a suspended sentence and a term of probation. These appeals followed.
The earlier of the cases addressed in these appeals involved Veronica Federov and Stephanie Donne. In proceedings before Judge Salzman, these appellants filed a motion to dismiss the charges against them or, in the alternative, to order the government to admit them to the pretrial diversion program. They argued, among other things, that the prosecutor's decision not to divert them constituted selective prosecution, denying them liberty without due process of law, in violation of the Fifth Amendment, and punishing them for the exercise of their right to free speech, in violation of the First Amendment. Ms. Federov and Ms. Donne asserted that the United States Attorney had a policy of denying diversion to otherwise eligible persons charged with unlawful entry whose conduct occurred in the context of a political demonstration. They claimed that similarly situated individuals, charged with unlawful entry, whose activities did not arise in the context of the exercise of First Amendment rights had been admitted to the diversion program. In support of their motion, appellants recited the following specific facts: (1) At a pretrial diversion conference, Ms. Deborah Jones of the United States Attorney's office informed Ms. Donne and her student counsel that diversion had been denied. Ms. Jones provided no explanation but stated that the decision had been made by her supervisor, Ms. Katherine Winfree, Chief of the Misdemeanor Trial Section of the United States Attorney's office. (2) Ms. Katherine Ellis of the United States Attorney's office subsequently informed Ms. Donne's student counsel that a decision had been made not to grant diversion to anyone who had participated in the Farragut West demonstrations. (3) Ms. Jones told the same student counsel that it would be futile to bring Ms. Federov in for a diversion conference because diversion would be denied. (4) Finally, Ms. Winfree informed student counsel for Gregory Kandt, a Farragut West demonstrator who had been charged in a related case which is not before us on this appeal, that her client had been denied diversion because he had engaged in a political demonstration.
Ms. Federov and Ms. Donne also made an extensive discovery request. When the government declined to provide the material sought, their counsel filed a motion to compel discovery. In support of that motion, these appellants alleged that the United States Attorney had singled them out for prosecution because their conduct was related to expressive activity protected by the First Amendment. They based this contention in part on the preliminary results of an investigation, by D.C. Law Students in Court, into the United States Attorney's disposition of all unlawful entry cases in the District of Columbia in 1985, 1986, and 1987. Counsel represented that the investigation had identified eight persons charged with unlawful entry who had been diverted. None of these eight had been arrested in the context of a political demonstration.
At a hearing on January 28, 1988, Judge Salzman announced in open court that he would deny appellants' motions to dismiss and to compel discovery, finding them to be "utterly without legal merit." Counsel for Ms. Federov and Ms. Donne requested permission to make an offer of proof, but Judge Salzman denied their request. On February 4, 1988, Judge Salzman followed up his oral decision with a written opinion in which he formally denied appellants' motions. He held that, in order to make out a claim of selective prosecution, appellants were required to demonstrate (1) that others "similarly situated" were not prosecuted and (2) that appellants were singled out for prosecution as a result of some improper motivation on the part of the United States Attorney. See (Elizabeth) Smith v. United States, 460 A.2d 576, 578 (D.C. 1983) (per curiam). He concludedthat they had failed to meet their burden in relation to both of these issues.
With respect to the first prong, Judge Salzman construed appellants' motion as suggesting that they should be considered similarly situated to "all other persons charged with the offense of unlawful entry."1 He found that this proposed class of similarly situated persons was "painted with too broad a brush." In Judge Salzman's view, the appropriate class of persons with whom appellants should have been compared for selective prosecution purposes consisted of "all demonstrators on the homeless' behalf at the Farragut Metrorail station." He reasoned that an individual prosecuted for failing to leave a department store after previously being barred, in lieu of prosecution for shoplifting, was not 'similarly situated' with these defendants, even though that individual, too, was charged with unlawful entry. Because appellants had not alleged that they were treated differently from other Farragut West demonstrators, Judge Salzman held that their selective prosecution claims must fail.
Judge Salzman also held that appellants had failed to satisfy the second prong of the test in (Elizabeth) Smith, supra, because they had not shown that the decision to prosecute them was improperly motivated. Citing Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247-48, 17 L.Ed.2d 149 (1966), and Leiss v. United States, 364 A.2d 803, 807-09 (D.C. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977), the judge concluded that appellants had made "no colorable showing that the government violated their First Amendment rights by removing them from the closed Metro station." Acknowledging that appellants' conduct had involved expressive activity, Judge Salzman found that the government had a legitimate interest in closing the Metro at midnight "for all purposes," including the conducting of a demonstration. (Emphasis in original.) He concluded that appellants had been arrested and prosecuted for their "willful and intentional refusal to vacate WMATA property" after closing hours and not for their expressive activity.2
Judge Salzman also stated that the United States Attorney's diversion program was reserved for persons who genuinely regretted their illegal conduct and who were willing to comply with an educational program intended to instill respect for...
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FEDOROV v. U.S.
...Associate Judge, with whom STEADMAN and WAGNER, Associate Judges, join: Substantially for the reasons stated in my opinion in Federov I, 580 A.2d at 614-22, I respectfully 1. The record contains several spellings of appellant Fedorov's last name. We adopt the spelling reflected in the notic......