United States v. Handler, Crim. No. K-74-0283.

• Citation: 383 F. Supp. 1267
• Decision Date: 24 October 1974
• Docket Number: Crim. No. K-74-0283.
• Parties: UNITED STATES of America v. Wilfred HANDLER.
• Court: U.S. District Court — District of Maryland

383 F. Supp. 1267

UNITED STATES of America v. Wilfred HANDLER.

Crim. No. K-74-0283.

United States District Court, D. Maryland.

October 24, 1974.

George Beall, U. S. Atty., D. Md., James M. Kramon, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

Wilfred Handler, defendant pro se.

FRANK A. KAUFMAN, District Judge.

Handler, the defendant in this case, is charged in a thirty-four count indictment with having violated 18 U.S.C. § 1718¹ by mailing between August 9, 1973 and September 26, 1973 twenty (20) post cards to Mortimer M. Caplin, Esq.² and a further fourteen (14) post cards to Arthur J. Goldberg, Esq. In each count, the post card attributed misconduct to the latter, a former member of the Supreme Court of the United States. For example, Count One of the indictment charges that upon one of the post cards mailed to Caplin was written:

Ex-Justice Arthur J. Goldberg (your "old and close" friend) is a despicable criminal — one of the most dangerous in the United States. I so advised you.

And,

Your motive, obviously, is to protect your friend, the now proved slimy dangerous criminal Arthur J. Goldberg.

Count Three charges that another post card addressed to Caplin contained writing stating that:

Arthur J. Goldberg (your recent television guest) is an habitual repugnant criminal — one of the most dangerous in the United States. So is his wife. Or else, to protect his own reputation for piety, Criminal Ex-Justice Goldberg makes it appear that his wife perpetrates certain of his despicable crimes.

(Emphasis in original.) Count Fourteen charges that a post card mailed to "Arthur J. Goldberg" carried the same writing, word for word, as appeared in the post card referred to in Count Three.³

Handler, acting pro se,⁴ has filed a number of motions, including a motion to dismiss the indictment, supported by copies of many papers and extensive memoranda addressed to a variety of factual and legal issues, and has raised pre-trial issues which appear to fall into three groups, two without, and one with, merit.

I.

Handler seeks to require this Court, before considering any other issue, to turn this case into a trial not only of the government officials prosecuting this case but also of the addressees of his post cards. Inter alia, Handler has filed a motion asking this Court to censure the United States Attorney's office, and further seeks to require prosecution under 18 U.S.C. § 241⁵ of those he alleges have violated the law by harassing him by instituting and prosecuting this case. Handler has also in the course of proceedings in this Court charged misconduct not only by one or more government prosecutors, but by one or more members of the office of the Clerk of this Court, by the court reporter, and by this Court. In that latter connection, the undersigned member of this Court has, prior hereto, declined to disqualify himself under 28 U.S.C. § 144.

The record in this case discloses that Handler is the same Handler who was once employed as a financial investigator in the Division of Financial Investigation of the United States Department of Labor and who unsuccessfully sought court relief after he was separated from the Department. Handler v. Secretary of Labor, 126 U.S.App.D.C. 311, 379 F. 2d 88 (1967).

The record in this case also discloses that, dating back to at least 1971, Handler made a number of mailings to and about Arthur J. Goldberg, who was Secretary of Labor before he became a Justice of the Supreme Court. After those mailings were reported to the Government and investigated by it, it appears that an Assistant United States Attorney for the District of Maryland advised Handler that no prosecution would be initiated if Handler ceased the mailings, that Handler so agreed, but thereafter once again made certain mailings. The Government states that it therefore determined to proceed against Handler under 18 U.S.C. § 1718. After a preliminary hearing before Magistrate Clarence E. Goetz of this Court on October 15, 1973, the Magistrate determined the existence of probable cause to believe Handler had violated 18 U.S.C. § 1718. The Government further asserts that Handler thereafter agreed to stop the allegedly objectionable mailings; that the Government in return moved to dismiss the complaint; that that motion was granted by Magistrate Goetz on February 22, 1974; that an Assistant United States Attorney, replying to an inquiry from Handler, informed Handler of that dismissal on April 22, 1974; that on April 23, 1974 Handler recommenced the alleged objectionable mailings; and that on April 30, 1974 Handler was arrested after Magistrate Paul M. Rosenberg of this Court issued an arrest warrant. The indictment in this case was handed down on May 7, 1974.

Handler seemingly does not contest any of those statements by the Government. But he does contend that not only were all mailings by him at any time legal, but that at the very least, all mailings made by him on and after April 23, 1974 were legal and that he is now being prosecuted for mailings before that date simply because he engaged in subsequent mailings. Handler also stresses the refusal of government prosecutors to prosecute those concerning whom he has supplied evidence of crime.

Improper prosecutorial tactics can in a given case rise to such a level as to require dismissal of the case. See Dixon v. District of Columbia, 129 U.S. App.D.C. 341, 394 F.2d 966 (1968); cf. McDonald v. Musick, 425 F.2d 373 (9th Cir. 1970). As long ago as 1886, dealing with a state prosecution, the Supreme Court wrote:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.

Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886). That doctrine has been applied against the federal government as well as against the states. See United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc); United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972). It is also true that "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). However, "* * * Oyler does not preclude the granting of relief against intentional or purposeful discrimination against an individual." United States v. Falk, 479 F.2d supra at 619. In Falk (at 621), the majority held that the defendant was entitled under the facts of that case to have the Government "* * * accept the burden of proving nondiscriminatory enforcement of the law * * *." In Falk, the defendant alleged that he was prosecuted for violation of the card-carrying requirements of the Selective Service Act "* * * to punish him for and stifle his and others' participation in protected First Amendment activities in opposition to the draft and the war in Vietnam" (at 619-620). Over a vigorous dissent, the majority of the en banc Court held that Falk had established his right to a pre-trial evidentiary hearing to determine the issue he posed, and vacated the judgment of conviction. In so doing, after discussing Oyler and other authorities including United States v. Crowthers, supra, Judge Sprecher noted (456 F.2d at 620-621):

* * * Certainly, the prospect of government prosecutors being called to the stand by every criminal defendant for cross-examination as to their motives in seeking an indictment is to be avoided. That does not mean that a criminal defendant is never to be afforded an opportunity to prove that the prosecution stems from an improper prosecutorial design or that he may never question a prosecutor under oath. The presumption is always that a prosecution for violation of a criminal law is undertaken in good faith and in nondiscriminatory fashion for the purpose of fulfilling a duty to bring violators to justice. However, when a defendant alleges intentional purposeful discrimination and presents facts sufficient to raise a reasonable doubt about the prosecutor's purpose, we think a different question is raised.

In United States v. Crowthers, supra, the Court reversed convictions because it held (456 F.2d supra at 1079) that the Government, in connection with the use of the concourse of the Pentagon —

may not permit public meetings in support of government policy and at the same time forbid public meetings that are opposed to that policy. It may not accomplish its selective objective by convenient labelling: good ones are religious services and bad ones are demonstrations.

Cases such as Dixon v. District of Columbia, supra, in which prosecutions have been dismissed because of improper prosecutorial conduct are of a different type than this case. In that case and in McDonald v. Musick, supra, the prosecution of charges was reinstituted because the defendants refused to agree not to press or assert contentions or claims of illegal police conduct. In both McDonald and Dixon, the prosecutors were candidly seeking to protect policemen against civil suits. In this case, Handler is complaining that he is being prosecuted for his pre-agreement mailings, which Handler asserts are legal, because he has made post-agreement mailings which Handler contends are unquestionably legal. Even assuming that Handler's said claims are true, those claims do not facially and conclusively rise to the level of the selective prosecutorial approach considered in Crowthers. Nor do they appear to rise to the level of the claims in Falk which caused the majority therein to vacate the judgment of conviction and remand the case for a factual determination — a determination which seemingly is the kind of a pre-trial determination which is to be made by the trial judge and not by the...