FEDOROV v. U.S.

• Decision Date: 04 December 1991
• Docket Number: No. 88-531,No. 88-242,No. 88-240,88-240,88-242,88-531
• Citation: 600 A.2d 370
• Parties: Veronica FEDOROV, 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

600 A.2d 370

Veronica FEDOROV, Appellant, v. UNITED STATES, Appellee.Stephanie G. DONNE, Appellant, v. UNITED STATES, Appellee.Dana MELLECKER, Appellant, v. UNITED STATES, Appellee.

Nos. 88-240, 88-242, 88-531.

District of Columbia Court of Appeals.

Argued en banc May 30, 1991.

Decided December 4, 1991.

Appeal from the Superior Court, District of Columbia, Richard S. Salzman and Arthur L. Burnett, Sr., JJ.

Carol S. Steiker, Public Defender Service, Washington, D.C., argued for appellants. James Klein, Public Defender Service, Washington, D.C., also entered an appearance for appellants. Charlotte M. Connery-Aujla, Davidsonville, Md., Sharon Terry, and Grace M. Lopes, Supervising Atty., Washington, D.C., were on the brief, 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.

Jay B. Stephens, U.S. Atty., and John R. Fisher, John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the petition for rehearing en banc, for appellee.

David M. Becker, Andrew D. Roth, Arthur B. Spitzer, and Elizabeth Symonds, Washington, D.C., filed a brief for American Civil Liberties Union Fund of the National Capital Area, as amicus curiae.

Before ROGERS, Chief Judge, and FERREN, TERRY, STEADMAN, SCHWELB and WAGNER, Associate Judges, and BELSON, Senior Judge. ^*.

Judge BELSON was an Associate Judge of the court at the time of argument. He became a Senior Judge, effective July 24, 1991.

FERREN, Associate Judge:

ON REHEARING EN BANC

In mid-November 1987, appellants Fedorov¹ and Donne were arrested for refusing to leave the Farragut West Metro station after hours. They were engaged in a political demonstration protesting erection of a fence and locked gate to keep out the homeless at night. Appellant Mellecker was arrested in early December 1987 for refusing to leave the Farragut West station during a similar demonstration. Each appellant was charged with one count of unlawful entry for failing to quit the Metro station on demand of lawful authority. D.C.Code § 22-3102 (1989).² After their arrests, all three appellants — students at George Washington University — were denied admission to the United States Attorney's pretrial diversion program although each, as a first-time offender, was eligible for diversion.³ Fedorov and Donne argued unsuccessfully before Judge Salzman, and Mellecker argued fruitlessly to Judge Burnett, that the United States Attorney had a policy of denying diversion to political demonstrators and that this policy constituted both selective prosecution, in violation of the Fifth Amendment, and an impermissible penalty on speech, in violation of the First Amendment. This appeal presents the question whether appellants have proffered sufficient evidence to entitle them to discovery and to an evidentiary hearing on their constitutional claims. We conclude that appellants' proffers reflect a prima facie case of both alleged constitutional violations. Accordingly, we reverse and remand for further proceedings.

I.

A. Veronica Fedorov and Stephanie Donne

On the evening of November 18, 1987, appellants Fedorov and Donne arrived at the Farragut West Metro station to participatein a political demonstration against the Washington Metropolitan Area Transit Authority. The demonstrators opposed a relatively new Metro policy of barring homeless people from the station area after hours by enclosing the Metro station with a locked gate. At closing time, Metro police warned the demonstrators that they must move from the gate or suffer arrest. Fedorov and Donne remained in the area and were arrested, arraigned, and charged with unlawful entry under D.C.Code § 22-3102, supra note 2. Although defense counsel applied for pretrial diversion, see supra note 3, the requests were denied.

On December 22, 1987, Fedorov and Donne filed a motion to dismiss. First, they claimed selective prosecution, relying on the two-part test recognized in Wayte v. United States, 470 U.S. 598, 605-06, 105 S.Ct. 1524, 1529-30, 84 L.Ed.2d 547 (1985), and in (Elizabeth) Smith v. United States, 460 A.2d 576, 578 (D.C. 1983). They alleged that (1) others "similarly situated" — i.e., other eligible first-time offenders charged with unlawful entry — had been diverted from the criminal justice system, while they and all other charged political demonstrators had been prosecuted, and that (2) the government's refusal to divert political demonstrators was based on invidious discrimination against the exercise of First Amendment rights, resulting in a denial of equal protection under the Fifth Amendment. Fedorov and Donne also claimed a direct violation of their First Amendment rights, arguing that the government withheld a valuable benefit — pretrial diversion — because of their political speech. They requested an evidentiary hearing and, later, filed motions to compel discovery.

In their motions, Fedorov and Donne proffered that (1) they were first offenders who had no other pending charges or prior arrests and thus were eligible for diversion; (2) they were "similarly situated" with all persons charged with unlawful entry who were otherwise eligible for diversion; (3) preliminary results of an investigation into the approximately two thousand cases of unlawful entry over a three-year period (1985-87) had revealed that eight non-political violators had been granted diversion but that no political demonstrators had received that treatment; (4) student counsel for appellants had contacted Katherine Ellis, the Assistant United States Attorney handling the cases, and Ellis had informed counsel that the government had decided "to deny diversion to anyone arrested during the demonstrations at the Farragut West Metro Station;" (5) Debbie Jones, a staff member of the United States Attorney's Office, informed Fedorov without explanation that she need not attend her pretrial diversion conference because she would be denied diversion; and (6) Katherine Winfree, Chief of the Misdemeanor Trial Section in the United States Attorney's Office, had informed student counsel in another Farragut West Metro case that the government had denied diversion to a Farragut West defendant because "he had engaged in a political demonstration."

The government replied that Fedorov and Donne had failed to carry their heavy burden to establish a prima facie showing of selective prosecution because the appropriate group of "similarly situated" persons, for comparison purposes, was the group of all those arrested at Farragut West on the night of November 18, 1987, and all those demonstrators had been prosecuted. In short, the government contended that the prosecution of all the Farragut West demonstrators proved that the government had a policy of treating all similarly situated offenders alike.

As to appellants' second argument, the government focused on the conduct underlying the prosecutions, arguing that the First Amendment was not implicated because Fedorov and Donne had violated a content-neutral statute and the First Amendment did not protect their right to remain unlawfully on government property. The government added that these appellants had not offered any evidence suggesting a reason why the government would want to silence protesters on behalf of the homeless, rather than remain neutral in its enforcement of the unlawful entry statute.

During a status hearing on January 28, 1988, Judge Salzman denied appellants' motions,refusing even their request to make an offer of proof, and noting that appellant's position was "utterly without legal merit." In his written memorandum and order of February 4, 1988, the judge explicitly adopted the government's position. He concluded that Fedorov's and Donne's definition of "similarly situated" — essentially all charged first-time offenders under the statute — was too broad because "an individual prosecuted for failing to leave a department store after previously being barred in lieu of prosecution for shoplifting is not 'similarly situated' to these defendants, though charged with the identical statutory offense of unlawful entry." Memorandum and Order, Salzman, J. at 3 (Feb. 4, 1988). The judge accordingly determined that only Farragut West demonstrators on behalf of the homeless on the day in question were "similarly situated" with appellants. Because the government had denied all Farragut West demonstrators diversion, the judge then ruled that Fedorov and Donne had failed to show they had received disparate treatment. As a result, their selective prosecution claim failed.⁴

Judge Salzman also concluded that Fedorov and Donne had not made a colorable showing of a First Amendment violation because, at the time of their arrest, Metro closed the Farragut West station "for all purposes," not just to curtail Fedorov's and Donne's expressive activities. (Emphasis in original).

B. Dana Mellecker

Appellant Mellecker was charged with one count of unlawful entry, D.C.Code § 22-3102, supra note 2, for failing to quit the Farragut West Metro station during a demonstration on behalf of the homeless on December 5, 1987. When he, too, was denied diversion, see supra note 3, he filed a motion to dismiss for selective prosecution, requesting an evidentiary hearing and raising the same challenges that Fedorov and Donne had raised. The motion relied on the Wayte and (Elizabeth) Smith test for selective prosecution and contained proffers similar to those submitted in Fedorov's and Donne's motions: that (1) Mellecker was eligible for diversion; (2) he was "similarly situated" with all those charged with unlawful entry and eligible for diversion; (3) a paralegal at the United States Attorney's office had stated that that office had a policy against diverting the Farragut West demonstrators; (4) Mellecker's diversion interview had been perfunctory; and (5) Ms....