United States v. Steele, No. 71-2580.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBROWNING, WRIGHT and CHOY, Circuit
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William STEELE, Defendant-Appellant.
Docket NumberNo. 71-2580.
Decision Date09 August 1972

461 F.2d 1148 (1972)

UNITED STATES of America, Plaintiff-Appellee,
v.
William STEELE, Defendant-Appellant.

No. 71-2580.

United States Court of Appeals, Ninth Circuit.

June 16, 1972.

Rehearing Denied August 9, 1972.


461 F.2d 1149

John A. Hoskins (argued), of Anthony, Waddoups, Hoddick, & Brown, Honolulu, Hawaii, for defendant-appellant.

Robert K. Fukuda, U. S. Atty. (argued), Honolulu, Hawaii, Carl W.

461 F.2d 1150
Belcher, Peter J. McGovern, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee

Before BROWNING, WRIGHT and CHOY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

After a trial to the court, appellant was convicted of violating 13 U.S.C. § 221(a)1 by refusing to answer questions on the Department of Commerce census form of 1970. The court sentenced him to pay a $50 fine. We reverse.

Steele raises several points, only two of which require discussion: (1) answering the census questions would have required him to incriminate himself, and (2) the authorities singled him out for prosecution because he had publicly advocated noncompliance with census requirements.

SELF-INCRIMINATION

Appellant and six other unrelated young adults resided in a private home in Honolulu. When a census enumerator called for his questionnaire, Steele refused to answer all questions on the form2 and returned it to the enumerator with two pages removed. Next, a supervisor called and was similarly rebuffed. Finally, after a regional officer had tried and failed to interview Steele, the effort was abandoned. Steele testified at trial that he had refused to answer on constitutional grounds.3

Steele argues that he may have been in violation of the Honolulu Zoning Code because more than five unrelated people lived in his single-family dwelling. Answering the questionnaire would have disclosed this fact, and might have subjected him to criminal prosecution by municipal authorities.

The argument calls into question the impact of the use immunity provisions of the census statutes. It is provided in 13 U.S.C. § 8(c): "In no case shall information furnished under the authority of this section be used to the detriment of the persons to whom such information relates." And 13 U.S.C. § 9(a) provides: "Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual . . . concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding."

The government argues that these provisions shield Steele from any substantial risk of self-incrimination. Steele disagrees. We need not resolve that conflict, because we have determined that Steele's second point has merit and requires reversal of his conviction.

DISCRIMINATORY PROSECUTION

Steele claims the census authorities deliberately applied an unjustifiable standard in selecting offenders for prosecution under 13 U.S.C. § 221(a). Only four people in Hawaii were chosen for prosecution. All had participated in a census resistance movement, publicizing a dissident view of the census as an unconstitutional invasion of privacy and

461 F.2d 1151
urging the public to avoid compliance with census requirements

Steele held a press conference, led a protest march, and distributed pamphlets entitled "Big Brother is Snooping." David Watamull was the owner of radio station KTRG, which broadcast editorials on the census. Census authorities had complained to the Federal Communications Commission about them because they "were calculated to incite people to subvert the census law." Donald Dickinson spoke against the census as an announcer on station KTRG. William Danks headed the state chapter of a group called Census Resistance '70; he distributed pamphlets and publicly criticized the census.

Leland Gray, the Regional Technician for the census in Hawaii, described the four as "hard core resisters." He ordered his staff to compile special background dossiers on them, a discretionary procedure not followed with any other offenders. Gray testified that his organization had been very concerned about the census resistance movement.

Steele attempted to prove that many others in Hawaii had provided census officials with no more information than he had. In a motion for a bill of particulars, he asked the government how many others in Hawaii had committed the same offense. The United...

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130 practice notes
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...of the Fifth Amendment is violated when federal officials enforce a valid statute in a discriminatory way. United States v. Steele, 461 F.2d 1148 (9th Cir. 1972); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915 (U.S.App.D.C.1968); Cf., Bolling v. Sharpe, 347 U.S. 497, 74 S.C......
  • Murguia v. Municipal Court for Bakersfield Judicial District of Kern County
    • United States
    • California Court of Appeals
    • November 20, 1974
    ...the enforcement of a penal statute. (See United States v. Falk (7th Cir. 1973) 479 F.2d 616; United States v. Steele (9th Cir. 1972) 461 F.2d 1148; United States v. Crowthers (4th Cir. 1972) 456 F.2d 1074; Shock v. Tester (8th Cir. 1969) 405 F.2d 852, cert. den. 394 U.S. 1020, 89 S.Ct. 1941......
  • Murgia v. Municipal Court
    • United States
    • United States State Supreme Court (California)
    • September 24, 1975
    ...with the government.' (United States v. Falk, supra, 479 F.2d 616, 620; see, e.g., United States v. Steele, [15 Cal.3d 303] supra, 461 F.2d 1148, 1151; United States v. Crowthers, supra, 456 F.2d 1074, 1079. Accordingly, defendants' allegations of an intentional, purposeful selective enforc......
  • United States v. DeMarco, No. CR 75-1188-F.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 25, 1975
    ...United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); United States v. Falk, 479 F.2d 616 (7th Cir. 1973); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972); Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1968); MacDonald v. Musick, 425 F.2d 373 (9th Cir.), cert. ......
  • Request a trial to view additional results
130 cases
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...of the Fifth Amendment is violated when federal officials enforce a valid statute in a discriminatory way. United States v. Steele, 461 F.2d 1148 (9th Cir. 1972); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915 (U.S.App.D.C.1968); Cf., Bolling v. Sharpe, 347 U.S. 497, 74 S.C......
  • Murguia v. Municipal Court for Bakersfield Judicial District of Kern County
    • United States
    • California Court of Appeals
    • November 20, 1974
    ...the enforcement of a penal statute. (See United States v. Falk (7th Cir. 1973) 479 F.2d 616; United States v. Steele (9th Cir. 1972) 461 F.2d 1148; United States v. Crowthers (4th Cir. 1972) 456 F.2d 1074; Shock v. Tester (8th Cir. 1969) 405 F.2d 852, cert. den. 394 U.S. 1020, 89 S.Ct. 1941......
  • Murgia v. Municipal Court
    • United States
    • United States State Supreme Court (California)
    • September 24, 1975
    ...with the government.' (United States v. Falk, supra, 479 F.2d 616, 620; see, e.g., United States v. Steele, [15 Cal.3d 303] supra, 461 F.2d 1148, 1151; United States v. Crowthers, supra, 456 F.2d 1074, 1079. Accordingly, defendants' allegations of an intentional, purposeful selective enforc......
  • United States v. DeMarco, No. CR 75-1188-F.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 25, 1975
    ...United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); United States v. Falk, 479 F.2d 616 (7th Cir. 1973); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972); Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1968); MacDonald v. Musick, 425 F.2d 373 (9th Cir.), cert. ......
  • Request a trial to view additional results

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