U.S. v. Wayte, 82-1699

• Decision Date: 19 July 1983
• Docket Number: No. 82-1699,82-1699
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David Alan WAYTE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1385

710 F.2d 1385

UNITED STATES of America, Plaintiff-Appellant, v. David Alan WAYTE, Defendant-Appellee.

No. 82-1699.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1983.

Decided July 19, 1983.

Steven S. Trott, U.S. Atty., Los Angeles, Cal., John Fichter De Pue, Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Mark S. Pulliam, Sepulveda, Cal., for amicus Gulf & Great Plains.

Mark Rosenbaum, American Civil Liberties Union of Southern Cal., Los Angeles, Cal., for defendant-appellee.

Joseph Beeler, Miami, Fla., for amicus Nat. Ass'n of Crim. Defense Lawyers.

Melinda R. Bird, Los Angeles, Cal., for amicus Nat. Lawyers Guild.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT and SCHROEDER, Circuit Judges, and COUGHENOUR, District Judge. ^*

EUGENE A. WRIGHT, Circuit Judge:

Wayte was indicted for failure to register for the draft under section three of the Military Selective Service Act, 50 U.S.C.App. Sec. 453. The district court dismissed the indictment based on its finding of selective prosecution and its conclusion that the implementing Presidential Proclamation was issued invalidly. United States v. Wayte, 549 F.Supp. 1376 (C.D.Cal.1982).

BACKGROUND

On July 2, 1980, pursuant to statutory authority, President Carter issued Presidential Proclamation 4771, directing male citizens born during 1960 to register with the Selective Service System during the week of July 21, 1980. 45 Fed.Reg. 45,247 (1980). Appellee fell within that class, but did not register. On August 4th he wrote to Selective Service, declaring that he had not registered and did not plan to do so. He sent a similar letter to the President.

Six months later he wrote another letter to Selective Service, stating that he still had not registered. He noted that he would be "traveling the nation ..., encouraging resistance and spreading the word about peace and disarmament."

Selective Service established a passive enforcement system through which it began to process information it received that specific men had not registered. Two categories were involved: those who wrote to Selective Service stating that they refused to register and those who were reported by others as refusing to register.

Selective Service screened out those who actually had registered, who were not required to register, or for whom it had insufficient information to investigate further. It sent letters to the rest, including Wayte, explaining the registration requirement, requesting compliance, and warning of possible prosecution for noncompliance. Wayte did not respond.

In July 1981 Selective Service transmitted the files of 134 nonregistrants to the Department of Justice for possible prosecution. Those still eligible but noncomplying were referred to the FBI for investigation and to the United States Attorney of the district of their residence. The United States Attorneys notified the men referred that unless they registered within a specified time, prosecution was possible. Such a letter was sent to Wayte on October 15. He did not respond.

In December 1981 a moratorium on efforts to prosecute was imposed. Nonregistrants were afforded a grace period, until February 28, 1982, within which to register.

On July 22, 1982 Wayte was indicted for willfully failing and refusing to register, in violation of 50 U.S.C.App. Sec. 462.

After a hearing, the district court held that Wayte had made a showing of selective prosecution, which warranted an evidentiary hearing on the issue. Wayte sought discovery of government documents relating to the prosecution of nonregistrants, including documents of the Department of Justice, Selective Service, Presidential Military Manpower Task Force, White House staff, and Department of Defense.

He sought to subpoena several government officials, including Presidential Counsellor Edwin Meese III, Selective Service Director Thomas Turnage, Secretary of Defense Caspar Weinberger, and Assistant Attorney General D. Lowell Jensen.

The court ordered production of some documents and ordered that Meese be made available to testify. The government refused to comply fully.

The court dismissed the indictment. Wayte, 549 F.Supp. 1376. It held that the government had not rebutted Wayte's prima facie case of selective prosecution. Id. at 1380-85. It held also that the implementing Presidential Proclamation was not promulgated properly. Id. at 1389-91.

I. Selective Prosecution

To establish selective prosecution, a defendant must show that others similarly situated have not been prosecuted and that the prosecution is based on an impermissible motive. United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981).

The first element of that test has been established. The district court found that over 500,000 eligible men have failed to register for the draft. When this indictment was dismissed, only 12 others had been indicted for failure to register. All were vocal nonregistrants. The government does not dispute these facts. Many similarly situated men have not been prosecuted. See United States v. Taylor, 693 F.2d 919, 923 & n. 6 (9th Cir.1982).

However, Wayte has not shown that he was selected from the larger group because of his exercise of his constitutional rights. See id. at 923. Selectivity in prosecution is not impermissible. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). He must show that the selection was deliberately based on an unjustifiable standard. United States v. Steele, 461 F.2d 1148, 1151 (9th Cir.1972).

The government may not purposefully discriminate against persons who exercise their First Amendment rights. Id. Wayte contends that the government was aware that its passive enforcement system would result in the prosecution of vocal nonregistrants only. He argues that because the system was tainted, the government's ignorance of his First Amendment activity is irrelevant.

The evidence presented by Wayte does not demonstrate impermissible motivation. It demonstrates that the government was aware that the passive enforcement system would result in prosecutions of primarily two types of men: religious or moral objectors and vocal objectors. The government recognized that the latter probably would make claims of selective prosecution.

Wayte made no showing that the government focused its investigation on him because of his protest activities. See Ness, 652 F.2d at 892. He did not show that discriminatory policies underlay the selection of cases for prosecution. See id.

The circumstances here contrast sharply with those in United States v. Steele, 461 F.2d 1148 (9th Cir.1972), in which selective prosecution for noncooperation with the census was established. There census procedures would in the normal course identify noncooperators and furnish evidence of criminal intent. Id. at 1152. The government investigated only those who publicly attacked the census. Id. It offered no explanation for its selection except prosecutorial discretion. Id.

Unlike census procedures, Selective Service registration procedures do not automatically reveal the identities of nonregistrants. The government investigated all whose names were brought to its attention.

The government offers two explanations for its selection procedure: (1) the identities of other violators were not known, and (2) violators who expressed their refusal to register made clear their willful violation of the law.

The first explanation is logical and does not evidence impermissible motives. Moreover the government has made an effort to establish a system for identifying nonregistrants who are not otherwise brought to its attention.

The second justification is permissible also. The government may, in making prosecutorial decisions, "consider whether the potential defendants have, by their public statements or otherwise, made clear their actual or intended participation in the illegal activity." Taylor, 693 F.2d at 923 (footnote omitted).

Because Wayte presented no evidence that this prosecution was motivated by his First Amendment activities, the district court's finding of selective prosecution was clearly erroneous.

Because Wayte made no initial showing of selective prosecution, he was not entitled to discovery of government documents. See Ness, 652 F.2d at 892. That access to the documents might have been helpful to him does not in itself entitle him to discovery. Id. The government's refusal to comply with the discovery orders was justified.

II. Presidental Proclamation 4771

As an independent ground for dismissing the indictment, the district court held that Presidential Proclamation 4771, 45 Fed.Reg. 45,247 (1980), was void for noncompliance with the notice and comment requirement of 50 U.S.C.App. Sec. 463(b). Wayte, 549 F.Supp. at 1389-91. Absent the Proclamation, there is no basis for criminal prosecution for nonregistration. See United States v. Mersky, 361 U.S. 431, 437-38, 80 S.Ct. 459, 463-464, 4 L.Ed.2d 423 (1960).

Section 463(b) provides in part:

[N]o regulation issued under [the Selective Service] Act shall become effective until the expiration of thirty days following the date on which such regulation has been published in the Federal Register. After the publication of any regulation and prior to the date on which such regulation becomes effective, any person shall be given an opportunity to submit his views to the Director on such regulation, but no formal hearing shall be required on any such regulation.

50 U.S.C.App. Sec. 463(b). It does not mention presidential proclamations.

Wayte argues that Congress intended the term "regulation" in that section to refer to presidential proclamations as well as Selective Service regulations. The force of that argument is diluted by Congress' conjunctive use of the terms "regulation" and "proclamation" elsewhere in the Selective Service Act...