United States v. Wayte, No. CR 82-630 TJH.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtHATTER
Citation549 F. Supp. 1376
PartiesUNITED STATES of America, Plaintiff, v. David Alan WAYTE, Defendant.
Decision Date15 November 1982
Docket NumberNo. CR 82-630 TJH.

549 F. Supp. 1376

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

No. CR 82-630 TJH.

United States District Court, C.D. California.

November 15, 1982.


549 F. Supp. 1377
COPYRIGHT MATERIAL OMITTED
549 F. Supp. 1378
Stephen S. Trott, U.S. Atty., Alexander H. Williams, III, Chief Asst. U.S. Atty., Richard R. Romero, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff

William G. Smith, Terry Amdur, Dan Stormer, ACLU Foundation of So. California, Mark D. Rosenbaum, ACLU, Los Angeles, Cal., for defendant.

ORDER AND OPINION

HATTER, District Judge.

Background

Defendant David Alan Wayte was indicted on July 22, 1982 for failure to register for the draft under section three of the Military Selective Service Act ("Act"), as amended, 50 U.S.C.App. § 453. Wayte had previously written two letters to the President expressing his opposition to draft registration and his intention not to register.

Defendant moves this court to dismiss the indictment on several bases. First, defendant urges this court to dismiss the indictment on the ground that the Government has refused to comply with this court's Order of October 29, 1982.1

Second, the court ordered Edwin Meese III, Counselor to the President, to appear as a witness in an evidentiary hearing on selective prosecution. Mr. Meese has refused to comply with the court's order. Therefore, defendant moves the court for dismissal of the indictment as the appropriate sanction for the Government's recalcitrance.

Third, defendant asserts that the Government has not rebutted the court's prima facie finding of discriminatory prosecution.

Finally, defendant seeks dismissal of the indictment on the basis that the Selective Service System's draft registration regulations and Presidential Proclamation 4771 ("the Proclamation") were illegally promulgated and, therefore, invalid.

Each of defendant's asserted bases for dismissal of the indictment will be addressed.

I. Appeal Under 18 U.S.C. § 3731 In Relation To A Claim Of Executive Privilege

As an initial matter, this court is compelled to question the Government's conduct with regard to its defiance of this court's Order of October 29, 1982. The Government contends that it is entitled to invoke the doctrine of executive privilege over both the documents this court has ordered it to make available to defendant and any subject matter that would be the basis of Mr. Meese's testimony.

549 F. Supp. 1379

This court offered to the Government the opportunity to seek the resolution of the impasse between it and the court by way of certification of the Government's claim of executive privilege for appellate review by the Ninth Circuit. The court stated that it would stay this proceeding in an attempt to encourage the Government to seek an appeal.

The Government has refused to appeal the issue of executive privilege and instead has asserted that the court does not have the authority to provide the Government with an opportunity to appeal the court's Order. Rather, the Government argues, the only way to achieve appellate review of the Government's assertion of executive privilege is for the court to dismiss the indictment against defendant. This court disagrees with the Government's position.

In Nixon v. Sirica, 487 F.2d 700 (D.C.Cir. 1973), the court addressed the issue of whether or not 28 U.S.C. § 1291 and 18 U.S.C. § 3731 allowed the district court to grant a former President an opportunity to appeal in light of a potential claim of executive privilege. Id. at 721, n. 100. The court decided that the "District Court's rulings on particularized claims of privilege would be appealable by the ... Special Prosecutor under 18 U.S.C. § 3731" (citations omitted).2

In light of Sirica, it appears well settled that the Government, in the present case, could have pursued an avenue of appeal which would have fallen far short of calling for the dismissal of the indictment. The fact that this is a criminal proceeding does not alter the situation.

II. Prima Facie Finding of Selective Prosecution

On September 30, 1982, this court conducted a hearing to determine whether the defendant was entitled to an evidentiary hearing on his claim of selective prosecution. To be granted an evidentiary hearing, the defendant must allege enough facts to take the question beyond the frivolous stage. United States v. Erne, 576 F.2d 212, 216 (9th Cir.1978).

The defendant has clearly met this standard. During the September 30, 1982 hearing, evidence was presented that hundreds of thousands of young men have failed to register for the draft. A conservative figure would be over 500,000 men. Further, it was established that the Government has a "passive" enforcement policy, which has resulted in the indictments and prosecutions of only vocal non-registrants. The definition of vocal as used by both the Government and the defendant includes non-registrants who were reported by third parties, as well as those who were self-reported. At the time of the hearing, eleven men, including the defendant, had been indicted for failure to register.3 These facts

549 F. Supp. 1380
both demonstrated that the question was not frivolous and, further, helped to establish the prima facie case of selective prosecution

Mere selectivity in prosecution, standing alone, creates no constitutional problem. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). The courts have established a two-prong test for establishing a prima facie case. The defendant must show (1) that others similarly situated generally have not been prosecuted for conduct similar to that for which the defendant was prosecuted, and (2) that the Government's discriminatory selection of defendant for prosecution was based on impermissible grounds such as race, religion or exercise of the defendant's first amendment right of free speech. United States v. Scott, 521 F.2d 1188, 1195 (9th Cir.), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1975); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974).

Equal protection of the laws is not limited to enacting fair and impartial legislation, but necessarily extends to the application of these laws. United States v. Falk, 479 F.2d 616, 618 (7th Cir.1973). This basic principle was recognized by the Supreme Court long ago in Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886).

In Yick Wo, the city of San Francisco made it illegal to maintain a laundry without permission of the board of supervisors unless the laundry was located in a brick or stone building. Although the law appeared fair on its face, the facts showed that principally Chinese laundry operators were denied permission to continue using wooden facilities. The Supreme Court held that criminal enforcement of the law was therefore illegal. As the Falk court pointed out,

Yick Wo was concerned with an abuse of discretion in the administration of a public ordinance by a city licensing board, and not with the activities of law enforcement officials who presumably prosecuted all Chinese who violated the commands of the licensing board. The underlying principle has nevertheless been properly held to apply to the actions of prosecutors and police officials.

479 F.2d at 618 (emphasis added).

More recently, in United States v. Steele, 461 F.2d 1148 (9th Cir.1972), the defendant was convicted of violating 13 U.S.C. § 221(a) by refusing to answer questions on the Department of Commerce Census Form of 1970. Steele and six other unrelated people resided in a private house in Honolulu, Hawaii. He refused to answer the census questions because it might have disclosed a violation of the Honolulu Zoning Code.

Steele raised the selective prosecution defense at his trial. Only four persons in Hawaii had been prosecuted for violating § 221(a). All four had been vocal opponents of the census and had urged the public not to comply with census requirements. Id. at 1150-51.

Steele attempted to prove that there were others similarly situated who had not been prosecuted. The United States Attorney's office stated that this information was not available. However, Steele located six persons who had not completed the census form and had not been prosecuted. None of these people had taken a public stand against the census. Id. at 1151.

A census official testified that, to the best of his recollection, the four people prosecuted were the only ones who refused to cooperate. Steele's evidence regarding the other six showed that, at the very least, the official's memory was faulty.

The Ninth Circuit reversed Steele's conviction based on selective prosecution. The census bureau had an information gathering system that should have compiled the names of all those who refused to cooperate. While the census official recollected only four people who refused to comply, the evidence suggested a minimum of ten. The court stated that this fact alone strongly suggested a questionable emphasis on census resisters. Id. at 1152.

The facts in Steele are similar to those in the instant case. Defendant has shown that the Government has the ability to locate

549 F. Supp. 1381
more than one-tenth of one percent of at least 500,000 non-registrants. On July 9, 1982, a memorandum entitled "Prosecution of Selective Service Non-Registrants" was sent to United States Attorneys (Mid-Sized Offices) from D. Lowell Jensen, Assistant Attorney General, Criminal Division.4

In the memorandum, Mr. Jensen pointed out that the Selective Service System now has access to all Social Security records5 and has "nearly implemented an `active' enforcement policy," based on the use of those records to identify non-registrants. If an active system were implemented, the memorandum anticipated that Selective Service would refer massive numbers of non-registrants to the Justice Department. In that case, an appropriate selection system, probably based on "randomness," would be implemented....

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5 practice notes
  • Wayte v. United States, No. 83-1292
    • United States
    • United States Supreme Court
    • March 19, 1985
    ...Government's discriminatory selection was based on impermissible grounds such as race, religion, or exercise of First Amendment rights. 549 F.Supp. 1376, 1380 (Cal.1982). Petitioner satisfied the first requirement, the District Court held, because he had shown that all those prosecuted were......
  • U.S. v. Eklund, No. 82-2505
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 4, 1984
    ...C. Puscheck, Associate Director, Plans and Operations, Selective Service System (March 2, 1982), quoted in United States v. Wayte, 549 F.Supp. 1376, 1384 (C.D.Cal.1982). Eklund points to the government's failure to implement a broader enforcement policy to support an inference of selective ......
  • United States v. Martin, No. CR 82-2005.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • November 23, 1982
    ...force and effect of law and cannot be enforced by the court. Only the President can enforce such an order. See, United States v. Wayte, 549 F.Supp. 1376 The regulations were published in accordance with the thirty day notice and comment period required by statute. 50 U.S.C. App. § 463(b). T......
  • Environmental Defense Fund, Inc. v. Massey, Civ. A. No. 91-1068.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 1, 1991
    ...right of action exists under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. Plaintiff relying on United States v. Wayte, 549 F.Supp. 1376, 1387 (C.D.Cal.1982), rev'd on other grounds, 710 F.2d 1385 (9th Cir.1983), aff'd, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), argues......
  • Request a trial to view additional results
5 cases
  • Wayte v. United States, No. 83-1292
    • United States
    • United States Supreme Court
    • March 19, 1985
    ...Government's discriminatory selection was based on impermissible grounds such as race, religion, or exercise of First Amendment rights. 549 F.Supp. 1376, 1380 (Cal.1982). Petitioner satisfied the first requirement, the District Court held, because he had shown that all those prosecuted were......
  • U.S. v. Eklund, No. 82-2505
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 4, 1984
    ...C. Puscheck, Associate Director, Plans and Operations, Selective Service System (March 2, 1982), quoted in United States v. Wayte, 549 F.Supp. 1376, 1384 (C.D.Cal.1982). Eklund points to the government's failure to implement a broader enforcement policy to support an inference of selective ......
  • United States v. Martin, No. CR 82-2005.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • November 23, 1982
    ...force and effect of law and cannot be enforced by the court. Only the President can enforce such an order. See, United States v. Wayte, 549 F.Supp. 1376 The regulations were published in accordance with the thirty day notice and comment period required by statute. 50 U.S.C. App. § 463(b). T......
  • Environmental Defense Fund, Inc. v. Massey, Civ. A. No. 91-1068.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 1, 1991
    ...right of action exists under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. Plaintiff relying on United States v. Wayte, 549 F.Supp. 1376, 1387 (C.D.Cal.1982), rev'd on other grounds, 710 F.2d 1385 (9th Cir.1983), aff'd, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), argues......
  • Request a trial to view additional results

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