U.S. v. Eklund, 82-2505

• Decision Date: 04 May 1984
• Docket Number: No. 82-2505,82-2505
• Parties: UNITED STATES of America, Appellee, v. Gary John EKLUND, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1287

733 F.2d 1287

UNITED STATES of America, Appellee, v. Gary John EKLUND, Appellant.

No. 82-2505.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 2, 1983.

Decided May 4, 1984.

Richard C. Turner, U.S. Atty., Joseph S. Beck, Asst. U.S. Atty., S.D. Iowa, Des Moines, Iowa, Stephen L. Hiyama, Atty., Gen. Litigation and Legal Advice Section, Crim. Div., Dept. of Justice, Washington, D.C., for appellee.

Mark W. Bennett, Staff Counsel, Iowa Civil Liberties Union, Des Moines, Iowa, Charles S. Sims, American Civil Liberties Union Foundation, New York City, Peter M. Shane, Cooperating Atty., Iowa Civil Liberties Union, Iowa City, Iowa, David E. Landau, American Civil Liberties Union Foundation, Washington, D.C., for appellant.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges, en banc.

FAGG, Circuit Judge.

Gary John Eklund was convicted by a jury of willfully failing to register with the Selective Service System in violation of 50 U.S.C. app. Secs. 453(a) and 462(a) and sentenced to imprisonment for two years. On appeal Eklund contends that the district court committed error in holding that his failure to register was not a completed offense at the expiration of the six-day registration period specified by Presidential Proclamation 4771, 45 Fed.Reg. 45,247 (1980), and that his continued failure to register after that time constituted a continuing offense. Eklund also contends that he was the victim of impermissible selective prosecution. Finally, he alleges that Proclamation 4771 and its implementing regulations were promulgated without providing the required notice and comment period.

Male persons residing in the United States who are between the ages of eighteen and twenty-six (with certain exceptions not pertinent here) are required to register with the Selective Service as provided by the proclamation of the President and the Selective Service's rules and regulations. 50 U.S.C. app. Sec. 453(a). President Carter initiated registration by issuing Presidential Proclamation 4771 on July 2, 1980. Upon signing it, the President said that he was "deeply concerned about the unwarranted and vicious invasion of Afghanistan by the Soviet Union and occupation by them of this innocent and defenseless country * * *." 16 Weekly Compilation of Presidential Documents 1274, 1274 (1980). Then the President stated that by initiating registration with the Selective Service, "we are expediting the process by which, if our Nation enters a time of emergency or a threat to our national security or a time of war in the future, the marshaling of our defense mechanisms can be expedited. It's a precautionary measure: it's designed to make our country strong and to maintain peace." Id. at 1275.

Although Eklund raises several issues on appeal, we observe at the outset that at bottom this case arose because of Eklund's failure to comply with the registration provisions implemented to protect the national security interests cited by President Carter.

A. Selective Prosecution

On July 28, 1982, the Selective Service Director, testifying before a subcommittee of the House Judiciary Committee, estimated that approximately 674,000 young men had not registered with the Selective Service. Statement of Thomas K. Turnage, Director of Selective Service, Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice, Committee on the Judiciary, House of Representatives, 2 (July 28, 1982). Eklund asserts that as of September 1982 all of the 13 men indicted for failure to register, including himself, were vocal opponents of the registration program. Accordingly, he contends that he was subjected to selective prosecution motivated by his exercise of his First Amendment right of free speech.

Eklund's prosecution resulted from a "passive enforcement" system initially relied upon by the government to identify nonregistrants; under that system only those who were reported to the government by themselves or others were prosecuted. On January 3, 1981, some six months after Presidential Proclamation 4771 was issued, Eklund wrote to the Selective Service System expressing his opposition to registration. He stated that he did not register in July 1980 and would not register in the future. He volunteered to be the first person to be prosecuted for failure to register, and requested that the government inform him whether he would be prosecuted in order to end the uncertainty. On June 24, 1981, Eklund received a letter from Selective Service reminding him of his duty to register and informing him that if he failed to register his name would be referred to the Justice Department for investigation and possible prosecution. The letter was accompanied by a registration form. Eklund's case was eventually referred by the Justice Department to the office of the United States Attorney for the Southern District of Iowa. On October 5, 1981, an attorney in that office sent Eklund a letter similar to the earlier letter from Selective Service and enclosed a registration form. On January 7, 1982, President Reagan announced a grace period for non-registrants ending February 28, 1982. On August 24, 1982, an agent of the FBI personally delivered another letter from the office of the United States Attorney along with a registration form and additional information. All of these letters focused on securing Eklund's registration. The grand jury returned its indictment on August 31, 1982.

In assessing Eklund's claims of selective prosecution, the district court applied the two-part test set forth in United States v. Catlett, 584 F.2d 864, 866 (8th Cir.1978):

To establish the essential elements of a prima facie case of selective discrimination [sic], a defendant must first demonstrate that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted. Second, the defendant must demonstrate that the government's discriminatory selection of him for prosecution was based on an impermissible ground, such as race, religion, or his exercise of his first amendment right to free speech. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974).

"Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). Indeed, our legal system vests prosecuting authorities with broad discretion. See Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978). Accordingly, meeting the two requirements of the Catlett test in order to prevail on a defense of selective prosecution thus constitutes a "heavy burden." United States v. Jennings, 724 F.2d 436, 445 (5th Cir.1984). The Catlett standard requires a showing of "intentional and purposeful discrimination." Catlett, supra, 584 F.2d at 866. Eklund did not contest the validity of the Catlett standard in the district court, nor does he do so here. He argues as he must that his case fulfills the Catlett requirements.

The district court concluded that Eklund had been singled out for prosecution while others similarly situated had not been prosecuted. In making this determination, the district court defined the class of others similarly situated as "most other willful non-registrants who could be identified by an 'active' enforcement program." United States v. Eklund, 551 F.Supp. 964, 968 (S.D. Iowa 1982). The government contends that Eklund failed to meet the requirements of the first part of Catlett, and that the district court was in error on this point. In view of our disposition of the second part of the Catlett test, however, we need not decide in this case whether Eklund received treatment different from others similarly situated, but for purposes of discussion we will assume that the district court properly defined the group of persons similarly situated and that Eklund was singled out from this group for prosecution.

The district court then went on to determine that Eklund had failed to establish that his selection for prosecution was based on an impermissible ground. Id. The district court noted that the government's passive enforcement system would result in prosecution of some persons who exercised their First Amendment right of free speech by publicly speaking out against the draft registration law. Id. The court concluded, however, that

there is no showing that the selection of these people for prosecution was based upon their exercise of the First Amendment right to free speech. Defendant has not demonstrated that he is being prosecuted because he has expressed his opposition to the draft registration law. The undisputed evidence shows that defendant is being prosecuted because he purposely identified himself to the Selective Service System as a non-registrant and has persisted in refusing to register by rejecting repeated opportunities to register that were offered to him by the government.

Id. Eklund contends that at the least he made a threshold showing which entitled him to an evidentiary hearing. We disagree.

In United States v. Catlett, supra, 584 F.2d at 866, we noted that the following standards determine whether a hearing should be granted on a claim of selective prosecution:

A hearing is necessitated only when the motion alleges sufficient facts to take the question past the frivolous state, United States v. Erne, 576 F.2d 212 (9th Cir.1978); United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974), and raises a reasonable doubt as to the prosecutor's purpose. United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975); United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973) (en banc). Without such a showing the criminal prosecution is presumed to have been undertaken in good faith and in a nondiscriminatory manner pursuant to a duty to bring violators to...