Smith v. United States, No. 81-1442.

• Docket Nº: Bo. 81-1586.
• Citation: 460 A.2d 576
• Case Date: April 28, 1983
• Court: Court of Appeals of Columbia District

460 A.2d 576 Elizabeth A. SMITH, Maureen I. Angelas, Tacie S. Dejanikus, Karen A. Zimmerman, Sarah M. Shulman and Stephanie L Roth, Appellants,
v.
UNITED STATES, Appellee. No. 81-1442. Bo. 81-1585. Bo. 81-1586. Bo. 81-1587. Bo. 81-1588. Bo. 81-1589. District of Columbia Court of Appeals. Argued January 13, 1983. Decided April 28, 1983.

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Kimberly Berger, law student counsel, with whom Lois Yankowski, Washington, D.C., was on brief, for appellants.

Joseph Michael Hannon, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell and Bruce A. Peterson, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before NEWMAN, Chief Judge, and NEBEKER and PRYOR, Associate Judges.

PER CURIAM:

Appellants' primary assertions on this appeal are that they were selectively prosecuted after causing a disturbance at a Senate subcommittee hearing and that the trial court committed error by denying both their requests for an instruction and their motion for judgment of acquittal.¹ Finding the trial court committed no error in either of these areas, we affirm.

This case stems from two incidents that occurred on April 23, 1981, during a Senate Subcommittee hearing on the "Human Life" Bill. The hearing was before the Subcommittee on Separation of Powers of the Senate Judiciary Committee and was chaired by Senator East. In the first incident three of the appellants stood up on their chairs, took out signs, and chanted, among other things, "stop this committee." Senator East gaveled and the Capitol Police escorted the appellants out of the hearing room. They were subsequently arrested. About 20 minutes later the other three appellants took almost identical actions with the same consequences. Appellants were

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charged with violating D.C.Code § 9-112(b)(4) (1981).² Before trial appellants moved to dismiss charges alleging selective prosecution and sought discovery in support of their motion to dismiss. Both motions were denied by the trial court after an evidentiary hearing held on July 6, 1981. Trial began on September 24, 1981. At the close of the government's case, the defense moved for a judgment of acquittal. This motion was denied. Prior to jury instructions defense counsel requested a special instruction with respect to the terms "willingly" and "knowingly" based on an instruction given in Arshack v. United States, 321 A.2d 845 (D.C.1974). The trial court declined to give the instruction. On September 29, 1981, the jury found all appellants guilty as charged.

The government cannot discriminate between similarly situated persons when deciding whom to prosecute. If a law is not applied evenhandedly, a violation of equal protection of the laws as established by the fourteenth amendment to the Constitution, occurs. Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886).³ But a party who charges discriminatory enforcement of a valid statute carries a heavy burden of proof. Davis v. United States, 390 A.2d 976, 980 (D.C. App.1978). The appellant must make a prima facie showing that: (1) others similarly situated were not prosecuted, and (2) the selective prosecution being complained of was improperly motivated, i.e., it was based on an impermissible consideration such as race or on a desire to prevent the exercise of constitutional rights. David, supra, 390 A.2d at 980; Attorney General of the United States v. Irish People Inc., 221 U.S.App. D.C. 406, 410, 684 F.2d 928, 932 (D.C.Cir. 1982); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir.1974).

At the hearing the appellants claimed that they were prosecuted when others similarly situated were not. They sought to show that the improper motivation behind the prosecution was a desire to prevent them from expressing pro-abortion views. In support thereof they resorted to an analysis of the Capitol Police arrest and incident reports. There were 30 reports covering incidents and arrests under D.C. Code § 9-112(b)(4) involving 56 persons from the years 1973-1981. The trial court concluded that the reports did not establish a prima facie case of selective prosecution. The court summed up the reports by saying that of the 56 persons involved, 40 were arrested and of those arrested, 18 were females like appellants, 34 were shouters like appellants, and 11 others were sign-holders like appellants. Between 14 and 39 of those persons arrested were actually prosecuted.⁴

The trial court also rejected appellants' argument that the only incidents which provided any meaningful comparison to their own were those that occurred in hearings and not in the Congressional gallery. The

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trial judge called this the "classic distinction without a difference" since a Captain of the Capitol Police testified that they used the same operating procedures in both settings and because D.C.Code § 9-112(b)(4) covers both places. But the court also noted that...