United States v. Jeffrey Stuart Falk

1, 1959, beginning is how- appellee as June stipulated parties that the the un- inappropriate the cost was as ever fuel approximately of its total lost 50% years. those initial 3 initially certain in acquired from the oil deliveries following May period year list in a six we situation Faced with this unusual 31, 1962, year the contract ap- the adopt method of amortization the Upon price this evi- determined. Patentees, Inc., was plied in Associated dence, determined Associated, the Tax the T.C. by appellee acquired the list the purchased patent. The taxpayer reasonably life that life was limited the indeterminable as total cost was in accordance This was ascertainable. pay percentage the buyer regulations provide that with the produced rental from the income subject intangible be the asset patent fixed number of for a depreciation it allowance clearly years. Court, so as to This experience or other factors taxpayer known permitted income, reflect the business to be of use in depreciation the amount to deduct as length period, of which can limited year paid the cost in each toward accuracy. reasonable be estimated with Treas.Reg. theory Applying patent. 1.167(a)-3. petitioner may § de- the instant deduction 75 duct an amortization Although the record contains paid percent to Gulf amount support year life little if for the 15 May during years ended the fiscal Court, period determined Tax fiscal 1962. For the 1961 and appellant should this stated that year May and thereaft- ended the lists Court conclude that cost of having er, price the total contract dispute amortizable, he determined, petitioner must re- been appellant year Finally, life. de- traditional method of turn to the the method of amortiza contends amortizing percent preciation, im the Tax Court is tion allowed proper remaining unpaid cost of the list upon because was based remaining 12-year over life. Patentees, applied in Associated method judgment of the Tax Court (1945), appellant 4 T.C. 979 which the affirmed. present applicable contends is percentage pay case because annual present

ments in the upon case were based percentage of income derived from the lists over their entire lives, price, useful and because the upon while based busi volume America, UNITED STATES year, generated during ness one fiscal Plaintiff-Appellee, way dependent upon in generated by the lists in later come Jeffrey FALK, Defendant- Stuart years. Appellant. disagree, and affirm the rea- We 71-1213. No. Tax sons stated Court: Appeals, States Court initiated However contract which Circuit. Seventh the sale of list was effective En Banc Jan. 1973. Reheard [appellee] June Petitioner acquired customers from the serviced April Decided during 3-year period. list It is therefore manifest the list had during 3-year pe- value initial prior

riod to the determination of the price. total sales Amortization 15-year period cost of the list over a Fairchild, Judge, Circuit concurred opinion. and -filed

Cummings, Judge Circuit dissented opinion Hastings, and filed in which Judgе, Pell, Senior Circuit Circuit Judge, concurred.

Pell, Judge, Circuit dissented and opinion. filed Chicago, 111., Stevens,

William J. defendant-appellant. Atty., Gor- Thompson, S. R. U. James Huyck, Nash, Jr., T. and William don B. 111., plain- Chicago, Attys., U.

Asst. S. tiff-appellee. Judge, SWYGERT, -Chief Before Judge, HASTINGS, KIL- Circuit Senior CUMMINGS, PELL, FAIRCHILD, EY, Judges. SPRECHER, Circuit

Judge. SPRECHER, Circuit requires en banc appeal reheard This dividing ‍​​‌​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌‌​​‌​‌‌‌‌​​​​​‌​​​​​​‌​​‍upon closely line us to focus regularity in the presumptive

between imper- penal laws enforcement selectivity. prosecutorial missible charged in four- Jeffrey refusing to sub- indictment with count Armed Forces induction into the mit to registra- possess with failure clas- 1969 I-A or his 1968 and tion card legislation, necessarily cards, inall violation of 50 U. tial extends sifieation application filed App. defendant of these laws. The S.C. § long ago principle counts pretrial those basic was stated motion dismiss charging Hopkins, with Yick 373- Wo of the indictment 1064, 1073, proper L.Ed. possess the cards failure sought (1886): ground improper indictment for “Though fair on itself be law guaran- rights chilling the exercise of yet, impartial appearance, and face and to teed punish First Amendment applied administered if it is and participation draft in a eye public authority evil with an counseling organization. trial The unequal practically hand, so as an holding judge denied the motion without illegal unjust discrimina- make evidentiary hearing. trial, of- an an At persons in similar cir- tions between fer of based on conten- the same rights, cumstances, to their material jury similarly rejected. A tion was justice equal still the denial counts, guilty found on four all prohibition the Constitu- within granted post-trial the district court tion.” acquittal on one on motion count city violation The ordinance for which ground there no basis had been it unlawful made Yick Wo convicted denying Falk as a fact for classification laundry any person maintain objector. conscientious He received city first of San Francisco without year three one on consecutive sentences obtaining permission the board of card-carrying counts. laundry supervisors were lo- unless the panel appeal, a court af- On of this building of brick in a constructed cated conviction, judge dis- firmed Falk’s one Although was, on or stone. the statute senting. Falk, United F.2d States v. 472 face, exercise a fair and reasonable its (7th 1972). petition for 1101 Cir. A police power, the facts showed of the rehearing granted, en banc was in which principally refused were Chinese principal issue dis- was the using permission wooden fa- to continue criminatory prosecutorial purpose in held that The cilities. seeking the con- indictment. We have of the law was enforcement criminal hearing cluded that Falk is entitled to illegal. therefore charge purpose. improper of an an abuse Yick Wo was concerned with accordingly We reverse. of discretion public administration city licensing ordinance The Fourteenth Amendment prohibits board, any taking not with the activities law state from action presumably “deny any person enforcement officials who prosecuted which would within jurisdiction all violated equal Chinese who protection licensing board. applica commands underlying principle the laws.” This admonition is government through nevertheless ble tо the federal properly apply to the ac Bolling held to the Fifth v. been Amendment. prosecutors police officials. Sharpe, 693, 497, tions of 98 Harrison-Allentown, Guys (1954); Washington L.Ed. 884 Two Unit v. Attorney, McGinley, States, 366 374, ed District U.S.App.D.C. F. Inc. v. 130 401 1135, 582, 588, L.Ed.2d 915, 81 6 promise 2d equal 922 Steele, (1961); protection v. limit 551 laws is 1 1972); 1148, (9th impar- ed to the enactment F.2d Cir. of fair and 461 1151 2 “appellant’s employees defend 1. In that the Court held that cause a lower refusing against proceeding ac- such federal court did not err injunctive ground powers tually against un- on the exercise its Id. employees state violat constitutional discrimination.” Sunday closing law, despite allega Contra, Wing Jung Dear v. United 1962) (9th discriminatory enforcement, States, F.2d Cir. tions of be- 312 75

619 g., Falk, supra, Crowthers, v. 472 F. 456 F.2d United States v. 1106-1108; Court, “Supreme 1972); 1961 (4th 2d at Shock v. 1080 Cir. Term,” (8th 54; Tester, 120-121 Harv.L.Rev. 405 855 Cir. 76 F.2d (1962).4 agree Judge Lumbard 1969); Washington We 130 v. United Hornig, supra, U.S.App.D.C. 374, in Moss 314 F.2d F.2d 924 v. 401 Oyler preclude Hornig, does not (1968); 314 Moss F.2d v. against granting (2d 1963); Walker, intentional or People of relief v. 92-93 Cir. against purposeful in discrimination N. 14 N.Y.2d 252 N.Y.S.2d 200 (1964); People Gray, No intentional discrimination E.2d 254 dividual. petitioner as individual Cal.App.2d 256, Cal.Rptr. (1967); Oyler alleged by merely at Cal.App.2d Supp. was and he People Harris, evidence, tempted show, by 837, Cal.Rptr. (1960). Cf., statistical Little multiple Berbling, offenders than all ton v. F.2d 389 at fewer sentences; given 1972). (7th heavier Cir. present intentional discrimination Despite ap- seemingly undeniable alleged. Georgia, Cf., Furman 408 is v. plication discriminatory of Yick Wo to 293-295, 2726, 238, 257, 92 S.Ct. prosecutions,3 questions trou- have two 2736, (Brennan, J., con 346 33 L.Ed.2d appear bled various courts and to be 309-310, curring), 306, 92 238, 408 U.S. disagreement source of the between 2760, (1972) 2726, 346 S.Ct. 33 L.Ed.2d .majority and on court. dissenters concurring); (Stewart, J., v. Snowden I The first of from the deci- these arises 8, 397, Hughes, 1, 88 64 321 U.S. S.Ct. Oyler Boles, sion in 368 U.S. v. Powell, Weisberg (1944); L.Ed. 497 501, 506, (1962), 446 82 7 L.Ed.2d S.Ct. (7th 1969). Cir. F.2d in which the noted that the “con- selectivity in en- scious exercise of some allegations that Falk’s indicate forcement is in itself a federal con- singled dis he was out selective and violation,” to stitutional and went on criminatory on treatment the basis state that not been since it had unjustifiable activities form an which deliberately “that selection was prosecution. selectivity in standard for upon unjustifiable based standard draft was an active member arbitrary race, religion, such as or other counseling organization as known grounds no to classification” there were Chicago Draft Resisters. Area support finding equal protec- that again pretrial offer in his motion tion clause violated. From had been proof that asserted argued attempt- person this it is that a against the card- violation of him for against discriminatory to defend brought carrying requirements enforcement of must show a law had violated the statute because he against punish is member of a which oth class his and to him for and stifle protected participation being See, selectively ers’ is enforced. e. law Nondiseriminatory (no authority merely Enforcement cited and case states Laws,” proof properly 61 Colum.L.Rev. State Penal lower refused court (1961). 1106-1107 discrimination in without dis enforcement Wo). tinguishing noting or Yiek that “[i]n 4. The went on note author appear improper principle, deny ap lim- it would 3. There are decisions which protection equal plicability allegedly clause to class of Yick dis Wo сriminatory prosecutions. alone since it condemns discrimination Those courts ‘any against person’. denying applicability (generally discrimination in ear emphasis cases) given reasons, on class discrimina- lier various traditional have recognition right often tion seems but as that such there no commit crime, prosecute other means of there all vio failure to penal governmental nullify an individual action toward lators should a valid law discriminate an intent results and that a distinction between there is prohibitum relation to Id. him in others.” acts which are malum Comment, Eight malum in se. “The See opposition Convictions were also reversed activities Amendment Crowthers, United States v. F.2d the war Vietnam. the draft and (4th finding 1972), the ex on a no doubt but that Cir. There can be opposing discriminatory pression this coun unlawful of views precipitated regard foreign the indictments. The try’s to Viet ar- protected First Amend rests in that violations of nam is disorderly regulation conduct 398 U. ment. v. United Schacht prohibited loud and unusual noise and L.Ed.2d S.Ct. S. regu- passageways Floyd, 87 obstruction of and a (1970); Bond v. And, forbidding lation the distribution 17 L.Ed.2d 235 prior permission just re handbills without the basis of on as discrimination agency space ligion the federal ir/ whose race forbidden Con stitution, the ba material was to be distributed.5 so is discrimination protected First of the exercise of sis disagree The second source activities, Amendment whether done among ment some courts and within this or, in this as a an individual problem proof. court concerns group unpopular with the member of a government Certainly, prospect government. prosecutors being called to the stand every criminal defendant cross-ex results Similar have been reached seeking recent, amination as to their two motives recent cases. most Steele, an indictment 461 F.2d 1148 be avoided. That (9th 1972), does not mean that a criminal defendant Cir. involved a conviction refusing questions opportunity is never to be afforded an for to in a answer prove prosecution to report that the in of stems from census violation 13 U.S.C. § design argued improper prosecutorial 221(a). an or that The defendant that may question deliberately prose- prosecutor never un had been selected for always participation presumption der in oath. The cution because of his prosecution that a census resistance movement. The Court for violation of a agreed Appeals good criminal in of for the Ninth law is undertaken faith Circuit nondiscriminatory and in there had for the that was evidence that Steele fashion singled fulfilling bring purpose duty prosecution for on the of to been out vio justice. However, lators basis of a de his exercise First Amend- when alleges rights purposeful fendant ment and that his con- intentional concluded Oyler presents viction not stand under and discrimination and facts suffi could cient to Yick Wo. raise a reasonable doubt about panel opinion speech regard in 5. The in the instant case without to how people attempted distinguish terfere with the activities of other Growthers on the ground in that the activities involved there their businesses or homes. See Cam protected Johnson, speech 611, eron v. 390 88 S.Ct. First Amendment U.S. (1968) ; constitutionally 1335, and thus could not have 20 L.Ed.2d 182 Kovacs prohibited Cooper, 448, any in in 69 L. been event. Evidence S.Ct. 93 regulation (1949) ; Louisiana, that case did show “that the Ed. 513 Cox v. 379 subterfuge 554-555, prohibiting L.Ed. was used as for U.S. ; Hampshire, expression (1965) Cox v. New of ideas with which 2d 471 disagreed.” Faulk, supra, authorities L.Ed. 1049 U.S. panel opinion attempted here, F.2d at 1109. The also No more than how- ever, punished present were the case from actual activities to differentiate protected by govern the First Amendment. on the basis that Growthers using found, in the statute in lower court Growthers ment was Growthers unpopular Appeals agreed, subterfuge suppress Court ample there was speech. Again, however, evidence that “creat- see no dis defendants we govern ed loud and unusual noise and obstructed Falk tinction. entrances, corridors, bringing in indictment the usual use of etc.” ment’s voicing suppress 456 F.2d at is no 1078. There constitu- was to right passage at tional to obstruct to those which were of views similar engage suppressed tempted in manner of in Growthers. others to be However, non-prosecution. policy purpose, dif- prosecutor’s think a its we policy not its in view of admitted question is ferent raised. prior prosecute we decision be- attempt in this twice Defendant particular in circum- lieve present have evidence which would ed to it was incum- instant case stances prosecutorial impermissible shown government upon the to come for- bent pretrial dis purpose. motion for In it had with evidence that fact ward indictment of those counts of the missal generally changed policy or otherwisе posses charging violations the card singled being explain why Falk was requirements, ex the defendant sion out in contravention for pressed 25,000 Selec his belief over government’s procedures^ own dispossessed tive Service without of their draft cards themselves particular circumstances sanction, sought an eviden criminal compelled the we this case which believe hearing tiary submit at which he would government accept the burden of allegations. evidence of his nondiscriminatory proving enforcement acquittal close of his motion was, are Falk of the law several. government’s again at earlier, actively involved advis noted government tempted to show that legally avoid on methods of others many and that was aware of violations protesting ing military service citing being prosecuted, others were Similar American actions in Vietnam. Lt. General statement circumstances, vocal dissenter which a Hershey, Director, B. Louis singled out appeared to have been Legal System, Aspects of Selec Service prosecution, led United the court (January tive Steele, supra, F.2d at Printing Office), which Government proce to hold that enforcement “[a]n part: states relevant upon offend dure that focuses the vocal "The escalationof the State inherently suspect, it is vul er since s in involvement in Vietnam charge chosen those nerable to calls, creased the draft there being punished are upsurge public demonstrations ideas, expression a constitution their protest. protests in Some these of right.” present аlly protected In the turning cards took the form of ‘draft’ indications that there are several case public in the to various of officials pros exactly purpose of the this was the Department Justice, or of the State trial Falk’s At the ecution. close Headquarters National of Selective attorney Assistant United asked the that System, directly Service to local or case Attorney the tried who States agreement By boards. the De prove witness, to offered called as a partment Justice, of who Attor States the Assistant that (as turned in cards contrasted attorney ney meet at a told Falk’s cards) those who were not burned December, ing knew of he that prosecuted 12(a) the under Section activities, of counseling draft defendant’s Military Selective Law of good in en deal of their trouble a processed but were administra people forcing from the draft came laws tively by (Empha the local boards.” Falk, indictments such as few added.) sis brought non-possession of draft for Hershey draft-counseling The say goes cards, statement on to that defendant’s many protesters why activity of these were clas- the was one of the reasons I-A, sified draft non-possession which of for unacceptable govern found brought, Gutknecht cards was v. United card-carry ment would dismiss 506, 24 is, L.Ed.2d It of even of indictment counts course, possible following agreed though carry the Gut- the cards in Falk decision, government changed knecht the offer the future. The refused court reducing processing, thereby of did allow Assistant service but reply. Attorney to make a number of cases that reach the reply giving registrant, We the unsolicited is itself courts think and also singled being prosecuted, opportuni- was out that Falk before some evidence special prosecution. Apparently report ty for in the service armed partici- purpose that his effort to show own forces. Since law pation deciding process provide military of in the is to for the men es- prosecute inconsequential, peni- the As- rather for the tablishment than tentiaries, the indictment it seem that sistant noted that when him, registrant approved willing inducted, is to be also the Chief of Criminal Divi- should not be minor of- Attorney’s during process- sion Of- of the United committed fenses fice, ing. procedure the First Assistant United States of The result this Attorney Attorney, great majority prosecu- the United States Department report Justice Wash- tions involve failure ington. It difficult to believe that to induction or refusal to submit assigned Legal proceedings usual draft course in a civilian work.” As- requires Service, supra, pects ease such careful consideration 46- distinguished added.) (Emphasis of- such a succession of 47. prior pros- formal ficials to a decision to Although this statement would seem ecute. provide valid, and even in some cas- particular circumstances of this benevolent, explanation delay es pre- overcome initial bringing up years to three indict- legal sumption regularity in enforce- weight ment, it forceful to de- also adds penal ment also includes laws that the fendant’s contention bringing lengthy delay in the indict- pun- this case was for registration returned his ment. Falk ishing Falk for his exercise Department card on Justice According rights. Amendment 4, 1967, December mailed I-A classi- statement, government policy to Judge notice to District fication Federal prosecute only portion of those who October, Hubert 1968 and sent Will rules;” commit “minor infractions of later his draft notice of classification to prose- whether a is one of those violator government May, board in depends upon accepts cuted whether therefore had notice of his violations of may assume, or refuses We induction. regulations December, purposes at least for of this that a charging Yet the indictment violations general prosecute those decision requirements possession of the card grounds refuse which will induction years three returned until almost support a to the exclusion of conviction passed, in October of follow- agree cooperate with the those who to ing refusal to submit to Falk’s induction is within in the future Selective Service May year. explanation in of that Some prob- prosecutor’s discretion. delay prosecution for the in for the ear- case, however, that Falk lem in this is may lier found in state- offenses justified in re- found been to have by policy ment of the Director fusing entitled that he was induction System: Selective Service objec- conscientious to as a classification Regulations three he faces “Selective are result is that Service tor. designed imprisonment delay years’ his local to because arbitrarily and without he board violator of the law until after draft grounds claim report to as a failed to to so act refused refused sub- assigned objector forced and was mit to induction or civilian conscientious to prevent, in order assert work. This is to wherever to induction refuse incurring pros- claim, possible, prosecutions thereby for minor valid also during infractions.” prior “minor of rules ecution fractions his selective against police excuses compel misconduct to be The ling that, would seem conclusion do not.” policy of the those in the admitted apart government Similarly, officials and to not free Selective Service counseling ac acquiesce draft Falk’s to punish from whether who refuse those to in the decision to tivities were involved irrational refusal a local draft board’s prose prosecute, give objector proper indicted and he was a conscientious posses who, the card for violation those cuted while excuses classification only exer requirements may because con- sion much their decision however privilege to agree principles, Amendment to cised his First sub- flict with moral right statutory conscien as a claim mit induction. clearly un objector. But “[i]t tious summarize, in this To the combination public official enable a constitutional government policy published expressions of view to determine which prosecute card violators of the not to not or permitted which will and' will be ‍​​‌​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌‌​​‌​‌‌‌‌​​​​​‌​​​​​​‌​​‍regulations, possession Falk’s status as discrimination engage in invidious an active and vocal dissenter United groups among ... persons or regard policy to the draft States extremely an enforcement selective War, the Assistant and the Vietnam v. Lou prohibitory statute.” Cox broad Attorney’s statement United States 557-558, isiana, ranging At- from Assistant an officials torney (1965); United States Department of Justice supra, Crowthers, F.2d at 1080. See Washington participated in the decision States, supra. United also Schacht v. untimely Falk, delay prosecute Falk, however valid govern- Punishment bringing the and the indictment otherwise, only he chose as because prosecute ment’s stated objec right a conscientious sert his refuse induction while absolv- those who city very tor, to the conduct similar ing to the will of the those who submit charges who reinstated criminal officials authorities, lead us to conclude that following alleged traffic violations refusing district court erred a hear- filing offi action in defendant’s ing proof. offer of The unrebut- . charging police complaint miscon including cial court, ted evidence before Columbia, in Dixon v. District duct the admission of the Assistant U.S.App.D.C. 394 F.2d Attorney published and the two Judge Bazelon, in revers Chief offi- statements conviction on those the defendant’s propriety of cials which contradict charges, stated: case, out made the action taken may prosecute improper prima “The Government case of at least a facie deterring people enforcing for the We law. discrimination right exercising protest their dif- to a therefore remand will petition hearing judge, official misconduct and at which for a ferent Moreover, grievances. question Assistant redress time Falk Attorney under circumstances to the content such equal protec- to defend- previous would be barred statements of his clause, present em- tion ploys since the Government addition- ant’s counsel6 and impermissible classification on the is'sue he wishes al evidence govern- complain punishes when it those who violators Contrary panel opinion’s assertion, Hawaii). Further- in of the census head reported more, the there are in in which instances not a case this attorney prosecutor complaining prosecuting are a or other a motives of being questioned simply regarding probed. being asked official has been He is prior alleged See, g., actions. e. of a Dixon v. District of the content to relate pur- Columbia, (Corporation government’s supra, regarding 394 F.2d at 968 the admission prosecution. sel) ; bringing pose v. the States in United Coun Steele, supra, (regional F.2d general always responsibility In of enforcement. borne basic lack ment’s holding pri- protecting against unconsti- with our individuals accordance present- rights by already of all been tutional invasions their ma case has facie agreement ed, United branches Government.” and in with however, Crowthers, supra, the bur- v. finally We note v. going proof of non- den of forward with O’Brien, 88 S.Ct. gov- rest on will then discrimination (1968), L.Ed.2d 672 v. Gutknecht regard Particularly to with ernment. States, supra, way not in do seemingly discrimination inherent holding in this case. conflict with our prosecuting him in- Falk Supreme held that Court O’Brien sisting a conscientious on his claim as not inter- the First Amendment could be government objector, will we think posed for wil- as a barrier conviction present compelling required evi- The is- ful destruction of draft card. contrary if its burden is dence tо the burn- sue in that ing was whether case be met. If the court finds district pro- of draft card was within not the result “speech” whether tection accorded exercising punish The issue conduct also an element. rights as a draft First Amendment discriminatory prosecutions for viola- protestor and Vietnam counselor regulations was tion of Service Selective government has satisfied that also Furthermore, not before the Court. an invidious discrimination be- made separate O’Brien was concerned with the acquiesce tween violators who prohibition on wilful destruction power System Service Selective But the Service draft cards. System Selective who to assert their and those continue always apparently taken a has rights to be classified as conscientious public mutila- different attitude toward objectors, the will If conviction stand. excerpt tion of In these cards. finds the court that Falk would not have quoted ear- the Selective Service manual prosecuted been for violation the card opinion, lier in Director possession requirements except System stated Selective Service objector assertion conscientious “registrants cards turned counseling or his draft claim lawful (as who burned contrasted those protest activities, the indictment must cards) . .” . . be dismissed. In' the Gutknecht conclusion, our wish to we note frequent, Military Court held that disapproval apparently permit Act of 1967 did not easy, practice simply and often too dismissing deprive Selective Service officials registrants illegal allegations all dis of call of their normal order crimination enforcement of crimi for violation of card retaliation Oyler reference v. stating nal laws possession requirements, Boles, supra, and its statement that the were the sole sanction criminal sanctions permitted selectivity in conscious exercise of some Congress. Again, legali- the enforcement of laws does violate not concerned with principle the Constitution. That correct resulting ty of criminal sanctions even many ques not in answer the does cases unjustifiable discrimina- from selective tion enforcement in a whether selective tion enforcement the law. given is invidious discrimination Judgment of conviction vacated and with the which cannot be reconciled cause remanded. Judge principles equal protection. As Cummings reminded us Stamler Judge (concur- FAIRCHILD, Circuit (7th Willis, F.2d 1369-1370 ring). 1969), denied, Cir. cert. Ichord Stam agree suffi- ler, there has been L. showing judicial (1970), judiciary to warrant Ed.2d cient “[t]he prosecutor. quiry tive dispossessed' into motives Service had exceptional area of na- themselves is indeed an of their This draft cards and that opposi- supposed life where conscientious tional violators had not been in- government policy alleged in- prose- has been dicted. then tion to He that his brought of the laws cution tertwined with violations had been “not to enforce policy. implement law, Selective Service but for the un- purpose punishing constitutional point, with I add one further would expressing Defendant his beliefs imposed. respect De- to the sentence wrong, the draft is that war is aggregate given three fendant was wrong, lawfully pаrticipating and for violations, year sentence for his card organization ‘Chicago known as the probably or more than he would much as (CADRE) Draft Area Resisters’ induction order have received if his * * * for the of chill- [and] judge apparently con- been lawful. The ing right the exercise of secured to the re- and offensive sidered an ill-advised Defendant * * the First Amendment In to his Board. mark defendant made requested Defendant an evi- grossly any event, appears sentence dentiary hearing prove so that he could disproportionate to the circumstances alleged purpose.” “unlawful The readily I concede the offenses. would district court denied defendant an evi- knowingly an of- one commits dentiary hearing, although at the end of deliberately protest fense as a means testimony permitted trial defendant expo- penalty. In a sense his risks the proof. to make an offer of making to sacrifice is a means of sure meaningful. protest his hand, On holds that on the can not be the card offenses here strength allegations pre- in the serious, nor to have threat- considered dismiss, trial motion to defendant was gov- ened, circumstances, the under the hearing. evidentiary entitled to an If requir- legitimate objective in ernment’s so, Judge Campbell’s this be Senior ob- ing possession of cards. servation that in criminal cases “[w]e were deemed Even eight orig- replace now have trials aggre- remand, lawful believe inal one!”1 is In this Circuit outdated. substantially gate re- sentence must be there are nine! For are now there few duced. criminal who will defendants be unablе unspecif-

to make assertions as bald and defendant’s, Judge, naturally CUMMINGS, ic as there is Circuit with HASTINGS, now incentive to make them. If Senior Circuit whom magic allegations join Judge, PELL, in defendant’s Judge, Circuit thought lie in (dissenting). the assertion that de- fendant exercised his First Amendment moved to Prior to his trial defendant imagine rights, is hard criminal II, Counts III and IV of dismiss past who cannot search his to find that charging him indictment with failure right he too has of free exercised registration possess his speech. Since defendant’s draft-counsel- I-A classifi- card and his 1968 and 1969 place work after took his commis- cation of his motion basis cards. crimes, sion of the a criminal need by seeking these counts of the was that speak out after he has broken law. denied indictment Government magic alleged Perhaps the defendant’s “equal protection of the law as espousal viewpoints unpopular right process guaranteed the due incumbent Thus if Administration. Fifth Amendment clause of the they already so, have not done criminals support Federal Constitution.” advised to criticize some be well merely in- that on his claim he 25,000 of the Government which over Selec- formation and belief Cases, Delays Campbell, 55 F.R.D. Criminal Hon. J. William 626 rights those who did Finally, Amendment and the mere assertion

diet them. 25,000 not in- not. violators were that over support to an whatever no dieted lends allege contend at did not or Defendant discriminatory invidiously allegation of during pro- of these time course selectivity, dem- prosecutorial as will be regis- 25,000 ceedings supposed Any could defendant below. onstrated prosecuted not did trants who were allega- meaningless comparably make a protected engage First Amend- also stating during unspec- some tion allege they he Nor did ment activities. that, in period he believed of time ified similarly Specifically he situated. were large terms, apparently an absolute non-prose- these when failed state to be violators, not stated

number supposed to have were cuted prosecuted. similarly situated, were and draft cards whether turned in their delinquencies were handled not their or I. elementary administratively. This is alleged he be- prior Supreme both that Defendant importance because reg- 25,000 lieved over Selective v. Service decision Court’s States, Gutknecht dispossessed 506, 295, themselves istrants 396 U.S. 1970, in- had not been January their draft and 19, cards L.Ed.2d decided been indictment had delinquencies dicted and non-possession card brought purpose punishing routinely administratively for the handled chilling registrants’ accelerating him him the exercise punitively rights. He or, cases, Amendment re- induction dates in some allegations sup- classifying would claims that these them.3 also Breen See finding port 16, unequal protection under an Local No. Selective Service Bd. v. 456, Oyler Boles, 448, 82 S. 661, 368 U.S. L.Ed. 90 January S.Ct. 446,2 26, 1970; that with- com- Ct. L.Ed.2d 2d 653 decided hearing on out he is pare more entitled a Oestereich difficulty with this con- his claim. Local Bd. No. were to tention is obvious. If defendant 402. Defendant 21 L.Ed.2d S.Ct. concerning alleged prove exactly he what his induction date accelerat- himself had registrants, 25,000 registration he would over other when turned in his ed he anything probative certificate, demonstrate date was advanced drawn 1970, shortly а line has been April value show that after canceled their First between who exercised those no down. And was handed Gutknecht him, actually In that case the Court stated: drawn between been “Moreover, characteristic, possesses the conscious exercise a certain selectivity pos- similarly is not some in enforcement do not situated who others constitutional viola- itself federal There is dis- sess that characteristic. though majority suggests, agreement, in this tion. Even the statistics ante might imply proposition of selective case enforcement, on the at it not stated that was be the victim of invidious dividual can deliberately upon (Even person selection based “a discrimination. * * * unjustifiable race, standard such must show that he is member arbitrary religion, being or classifica- class which the law grounds supporting selectively enforced,” 619, nothing tion. Therefore ante at finding equal protection precludes one, provided denial of a class of the class alleged.” were not objectively discernible.) 368 U.S. at The essential point disagreement is that argues Defendant support finding because sufficient hold equal others were not protection aof denial of that de- and that badly of his fendant’s motivated unconstitutional, allege others, sometime, did and that somewhere grounds supporting equal pro- prosecuted. a denial of however situated were not agree. explained tection. cannot As infra, text pursuant is essential facial 3. This §§ was done to 32 C.F.R. sufficiency allege that defendant a line 1642.12 and 1642.13. governmental posed poliсy, war and the allegation with reference was made regis- majority require 25,000 plus does not to do so. not the whether Rather, wants, actually induction. defendant and now re- submitted trants hearing assump- ceives, a to determine whether majority in its is correct If particular prose- policy his case the decision to not to that there was tion prosecute oc- was made for violations an invidious minor cute punish during for and chill curring processing unless their —to 622), (ante him in the Amend- exercise of First at they induction refused rights. ment Let there no mistake importance.4 this too is basic hearing is to determine about this: prosecuted persons not If the class of motive of the actual the Government at- similarly to defendant not situated was torneys responsible for defendant’s protec- respects, equal in these basic through principally their own dictment Likewise fail. claim must tion violation testimony.5 prosecuted persons not if the class similarly to defendant but situated was on Cases relied do not opposition the war and voiced also draft, support the conclusion that defendant’s any etc., was that defendant claim allegations, proved, motion dismissal disadvantaged comparatively on ba- prima equal pro- would make out a facie protected engagement in of his sis Hopkins, tection denial. In Yick v.Wo unsus- would be Amendment activities 6 L.Ed. 220 S.Ct. allega- these crucial Without tainable. alleged peti- it was the uncontradicted that he claim at best tions defendant’s supervisors tions that consent of the prosecuted for a crime which buildings operate lаundries wooden administratively routinely until handled was withheld from all Chinese but prior be- to his indictment months ten granted (save one) to all Caucasians possessed certain characteris- cause he 359, 361, 374, similarly situated. Id. at large of men number and that a tic found ordi- S.Ct. 1064. “the possessed (who may may not have or operation, nances in actual and the facts characteristic) were not that di- shown establish an administration past. unspecified If time in the some at exclusively particular rected so allegation misleading unspecific and * * * persons to amount class hearing to determine whether deserved practical to a denial the state equal prosecution violated a defendant’s * * -x- equal protection of the laws inescapable protection, ” then it * ** at 1073. Id. at precipitate practically defendant can Crowthers, F.2d hearing. such a alleged (4th 1972), Cir. defendants although they were arrested Perhaps be tolerable this result would participating demon- required in various anti-war at the outset if defendant were reg- disorderly 25,000 persons under a conduct strations to show that prohibited respect ulation which “conduct different from him property alleged impermissible which creates loud and unusual fac- selection noise, or the usual use apparent defendant which obstructs tor. But ** entrances, foyers, *,” on the ef- [etc.] intended to establish never prior prosecutive sixteen the Government of the Government’s occasions fect card-dispos- non-offensive prosecute allowed similar activities vocally op- sеssing registrant only to it even if he where the level noise was allege page 631, Furthermore, 5. Defendant lias never defendant failed See infra. prove alleged prosecutors he could were aware contended whether the interrogating purpose” supposed- 25,000 “unlawful without violators existence of prosecutorial ly defendant, Oyler decided to officials who known allega- seek his indictment. of such seem to hold absence fatal. at tion to be equal pro- greater stuff of an that of lacks essential than defendants’. and con- tection violation. that to be a fact court found was “made cluded the selection case, then, to this: Defendant’s comes measuring of obstruction the amount making any to establish without effort governmental disa- noise but because the effect of the Government’s expressed by greement ideas prosecution is to differentiate between States 1972), 1079. In United accused.” Id. impermissible him and others on an ba- (9th Steele, Cir. F.2d 1148 sis, inquire into would have a court au- the census the defendant the actual motivation behind the Govern- unjustifiable applied stand- thorities prosecu- rule indictment and his ment’s selecting prosecution. persons ard solely tion on the basis unconstitutional thereof, alleged support he wrongful prosecutorial purpose. only persons selected for executive, “purpose” as But who had and three others were himself term, for de- is not a basis Falk uses participated vociferously, re- in a census claring this otherwise valid many movement, and sistance unconstitutional. provided persons census offi- had who O’Brien, States v. 391 U.S. In United than cials with no more information 672, 1673, 20 L.Ed.2d 88 S.Ct. prosecuted, had were not but these had import majority under- of which the public taken cen- stand argued standably sidestepped, O’Brien partially He suc- us. Id. at 1151. was amendment to the Univer- the 1965 allegation. proving his cessful in Military Training Act of Service sal running through The common thread knowing 1948, prohibiting the destruc- allegation an these decisions was tion or mutilation of Selective showing of the adminis that the effect registration certifi- and classification prosecutive was divi or trative cates, applied to as was unconstitutional similarly persons otherwise sion between “what unconstitutional because according or not to whether Congress situated ‘purpose’ calls ” they possessed characteristic.6 a certain speech.’ suppress Id. at ‘to freedom of again, or defendant never But 1678. The at S.Ct. during prove, or time offered to at Court, assuming draft-card- O’Brien’s proceedings these course of took burning sufficiently communica- position those bring Amend- tive the First contest and were turned in their draft cards prosecuted argu- rejected play, his ment into first similarly to de situated sub- had a ment because Government they except fendant had not en ensuring smooth interest in stantial gaged protected Amendment ac Sys- functioning of the Selective Service impact tivities. or Unless effect tem, the 1965 amendment because challenged governmental action is actual pro- appropriately narrow means ly persons discriminate between tecting and condemned this interest according impermissible classes impact the con- the noncommunicative selection, equal pro basis of denial reach, the non- because in its duct tection made out. Palmer can be See draft- impact of O’Brien’s communicative 217, 225-226, Thompson, 403 U.S. 91 S. burning the Govern- card frustrated 1940, 29 L.Ed.2d 438. Thus al Ct. 376-382, 88 S.Ct. ment’s interest. Id. though prosecu defendant contends important for this 1673. What (due equal protection proc tion violated Supreme Court is that the unanimous ess, Bolling argument. Sharpe, rejected see 347 also O’Brien’s second 884), look at wanted the 98 L.Ed. claim O’Brien Berbling, Littleton v. 468 F.2d See also S.Ct. 36 L.Ed.2d (7th 1972), granted, Cir. certiorari by legislators histor- 49 L.Ed. whose undimin- and the statements vitality the in which the statute was ished Court reaffirmed in ical context “purpose” O’Brien: enacted in order divine Congress passing or “motive” “Whilst, as a result of our written more The Court could not have law. constitution, it is axiomatic that firmly refused invitation ‍​​‌​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌‌​​‌​‌‌‌‌​​​​​‌​​​​​​‌​​‍to O’Brien’s judicial department government inquiry and use it basis make charged duty with the solemn of en- declaring Act .unconstitutional. forcing Constitution, and there- writing Warren, for the Chief Justice fore, properly presented, in eases Court, stated: given determining whether a manifes- “ authority tation of * exceeded the * ':f Congress, instrument, power conferred term, O’Brien uses [the] no instance is afforded from the foun- legislation declaring un basis government dation of the where an constitutional. power act which within a con- principle “It is a familiar consti- ferred, repugnant was declared tutional law that this Court will not Constitution, ap- because down an otherwise strike constitution- peared judicial mind that the al statute on the of an il- basis particular оf exertion constitutional legislative licit the Court motive. As power unjust. was either unwise or long ago stated: principle To such announce would “ ‘The of declaring that, decisions this court amount to con- our beginning support system from the lend no judiciary stitutional the assumption charged duty whatever to the judiciary may that the up- not with the of holding Constitution, restrain the exercise the but also with assumption power correcting of responsibility every lawful on the the possible of wrongful purpose arising or motive abuse the exer- power by departments has caused the to be exerted.’ cise the other of their McCray States, authority. v. United 195 U.S. to conceded So hold would 27, 56, 24 S.Ct. 49 L.Ed. 78 be to overthrow entire the distinction (1904).” legislative, judicial, Id. at 88 S.Ct. at between the and govern- departments the executive of ment, system upon which our now to asks Court look at founded, and would be a mere act of attorneys statements of Government and judicial usurpation. surrounding the circumstances in order purpose to argued divine the is, however, or motive for “It if a lawful indictment. We should ly power may even more firm- be exerted for an unlawful abusing decline this purpose, thus, by invitation. Since the rea- sons power, accomplish behind the O’Brien refusal Court’s it be made Congressional purpose to use by or motive result not intended the Constitu- as a sufficient vehicle tion, power to strike down an tall must dis- limitations of grave lodged otherwise grounded constitutional statute appear, are function judiciary’s in the judiciary, institutional in the partments to confine all the de- competence separa- authority and the doctrine of con- within powers, they apply tion equal, of by Constitution, with if ferred will be of greater, ju- This, force close the door to when reduced to its avail. inquisition dicial analysis, that, purpose into the last comes this: be- seeking department motive of particular executive of the cause government may otherwise valid pow- indictment. This could exert its lawful explicit have been object made more than ers or motive reach- following passage in the justified, from Justice end therefore it Douglass opinion Edward duty judiciary White’s becomes McCray United pow- restrain the exercise a lawful judicial functioning Sys- er it wherever seems to power legislator. any mind It that such lawful has been tem in the mind of very risky would, therefore, But abused. this reduces itself to the have been a that, business, indeed, contention under our constitu- to strike down the 1965 by system, tional partment de- the abuse one amendment in on the basis O’Brien government by legislators of its the cir- statements by powers surrounding and, debate, lawful corrected cumstances powers by put it, de- abuse another “the stakes partment. high sufficiently are to eschew 384, us guesswork.” S. Id. 391 U.S. at sustained, proposition, “The bar, Falk’s Ct. at 1683. the case at destroy would all distinction between indictment drafted someone powers respective depart- Attorney’s Office United States government, put ments of the Chicago, approved the Chief of its respect an end to that confidence and Division, by Criminal the First Assist- pur- for each other pose Attorney, by ant Unit- uphold, Constitution to Attorney, Depart- ed States danger and would thus be full of Wаshington. ment of Justice Whose permanence of our institutions. supposed motivation is be decisive prosecuting purpose the Government’s is, course, true, suggested, “It purpose And Falk? doubtless evil authority if there be no in the purpose will be coincident with to en- judiciary to restrain a lawful exercise Indeed, force the law. in his offer of power by department another of proof expected defense counsel stated he wrong the government, where a mo- Attorney an Assistant impelled tive or to the ex- testify that “one of the reasons” defend- power, ertion of the abuses ant was was his draft-coun- power may temporarily conferred be seling later, explained activities. As remedy this, effectual. The how- impermissi- do not believe that to be an ever, lies, ju- not in the abuse reason, ble but a court feels other- if authority functions, dicial of its but wise, engage guesswork is it upon people, whom, all, after trying pur- to determine the “dominant” institutions, under our reliance must pose? emphatic O’Brien’s answer is an placed be for the correction of abuses Thompson, “no.” See also Palmer v. committed in the exercise of a lawful 217, 225, U.S. 91 S.Ct. 29 L.Ed.2d power.” judge 438. a Unless has made an inde- McCray States, supra v. United at priori determination, type fensible this 53-55, 775; at S.Ct. see also judicial inquiry only must lead to an Peck, (6 Cranch) Fletcher v. 10 U.S. assumption. simply And it is not the 87, 130, (Chief 3 L.Ed. 162 Justice judiciary function of the within our con- Marshall). stitutional scheme to void otherwise val- type inquiry The governmental solely which O’Brien id acts on the basis asked the Court to assumption. make and of such an The faсt that proposes which Falk now proposes can lead to to call the re- officials only assumption governmental sponsible of bad for his indictment to the wit- purpose. only Not it problem true that what ness stand does not alleviate the legislators motivates some will not be but rather exacerbates It is the ulti- it. purposes legislators transgression judicial authority in mate have (O’Brien, mind supra, 391 at to haul U.S. executive to the witness 1673), 88 S.Ct. also but a motive to stifle stand for examination a criminal de- type expression, example, why co- fendant as to it has chosen to indict purpose exist with a smooth him.7 ensure the U.S.App.D.c. 263, 7. Judge See Newman v. (then (1967) 382 F.2d Burger). Furthermore, acceptable cedure a court dismisses an when the defendant allegations perfunctory it decides a mo makes indictment because base inspired it, presumably “presents to raise a rea- tive the Gov facts sufficient has prosecutor’s reindict de sonable will be doubt about ernment able * * and survive the court’s motive Ante Natu- fendant scrutiny by making at 620. rally majority precedent for a “wiser” statement cites no supra, proposition. O’Brien, at this I have been unable it. about 384, U.S. single Palmer, supra, 1673; 403 find a case where a United States Attorney superiors Depart- If in the at 91 S.Ct. 1940. the court or his reindictment, explain accept required in ment of would not Justice were bar, seeking their indictment at reverse convic motives for the case assumption, part aat defendant’s behest and as a tion because of motive circumstances, his case under violated law with criminal will have majority mа- complete impunity cited obtained an im the jority employs none.9 munity most the term “reasonable bestowed on the uncertain doubt,” grounds. finally, court if the “facts” which ma- what a And doing doubt, jority then would, essence, such is invalidat marshals raise operate juries, prosecution, the executive criminal which under which routinely initiate, undoubtedly power free the standard, same must had the ground guilty. unwise.” “on the O’Brien, supra, at all, only de- “fact” judiciary’s This be the cannot at to dis- presented in motion fendant .

proper function 25,000 over miss was belief that turned Selective Service II. gone unindicted. in their draft cards but allega- Recognizing prob- supra practical 626-627, shown, As being meaningless. majority “government de- prosecutors tion is lems wrong by every in not criminal de- to the stand cides granting district court was called hearing requested in de- fendant cross-examination seeking But since an indictment their motives motion dismiss. fendant’s * * pro- hardly could, *,”8 majority not, finds this deem it does questionable purpose. But as whether demonstrated It ment’s practical lip pays infra, to the amounts than service to this standard more the text allowing problems virtually is not defendants all. It involved in limitation at prosecutors put government picture the will on wit- the chaos to difficult to prosecutorial Hoffman, probe reign. Goldberg in order to ness stand See 1955). 463, (7th defendant’s this case F.2d Cir. motivation. approved by echelons several dictment including attorneys only government majority officials v. District 9. The cites Dixon of Department. U.S.App.D.C. 341, Columbia, If the Govern- in the Justice of seeking (1968), in to indict de- ment’s F.2d 966 really discerned, (9th 1972). Steele, all of fеndant to be 461 F.2d 1148 Cir. testify since these officials would have to Ante n. The latter referred at 623 especial- testimony them, Regional testimony by of the one of Technician to the prosecutor’s, ly Hawaii, the lowest level federal in not a the census hardly pur- prosecutor. Judge opinion establish the Government’s Bazelon’s joined pose, testimony by if indeed of all of the them in in the former the panel, could. See notes 12 and 13 Pre- two members of the referred infra. sumably by testimony the defendant the well understood to a former of Chief persons this since he have all moved to Law the Dis Enforcement Division of Corporation authorized “who or considered the ad- trict Counsel. of Columbia’s visability indicting produced. However, opinion of Mr. Falk” in in neither nor attempts anything to narrow the what the decision is there Steele unique circumstances under which this soever to indicate the official procedure stating by by will occur defend called the witness stand present part defendant must ant facts sufficient as a of case. raise a reasonable doubt about the Govern- allegation 25,000” escalation of the United States “The sufficient of the “over military prosecutors Nam in- calling involvement Viet to warrant calls, there was stand, defendant, the draft creased even he upsurge public granted hearing, of demonstrations not have could been protests protest. prosecutors of these put stand. Some simply on the turning disagree- my of ‘draft’ cards previously took the form I have indicated public of the De- officials into various ment with the that defendant’s assertion Justice, partment Na- or of State skeletal motion to dismiss deserved Assuming, Headquarters hearing. however, Serv- tional directly System, hearing to local boards. granted, ice been should have agreement Department By with the record, as well as defendant’s briefs registrants Justice, arguments Court, per- turned who makes (as who contrasted to those fectly real- cards clear that all defense counsel cards) prosecuted un- ly putting prosecutors burned were had in mind was Military 12(a) Immediately der after Section the witness stand. 1967, denied, but de- Selective Service Law of the motion to dismiss was by administratively processed produce the were fendant filed motion “to following agents employees the local boards.” * * * Stephen Kadi- Government son, January The statement as Attorney, Assistant United States refers to a situation its terms exist employee officer or Justice [e]ach ing prior “[b]y to that date wherein Department of the United States agreement Department of with the Jus America who authorized or considered (as tice, who turned cards indicting advisability Mr. cards) to those burned contrasted who nonpossession cards.” draft 12(a) were not under Section given opportu- defendant was When nity Military Law of Selective Service offer of on his make an processed administrative contention, only proceeded to As- call ly by (Emphasis the local boards.” Attorney sistant United States Kadison hearsay supplied.) statement, How that and, judge stand when district begin Department policy Justice implications aware of this became with, Falk, any applicability short, tack and cut it defense counsel 1970, escapes was indicted October completed proof merely his offer of Furthermore, comprehension. prior to stating prosecutor expected what Court’s decision Gut say. But it would be circular reason- knecht v. United justify- to use as one the “facts” decided Janu L.Ed.2d ing calling prosecutor to the stand ary Sys the Selective Service prosecutor what the said when he was routinely non-posses tem deal with card on the stand and what defense counsel delinquencies punitively sion acceler say. expected stated he him to ating registrants’ induction dates or reclassifying them. outlawed Gutknecht presented The other “fact” accelerating punitive in measure of record is the Louis statement General together Breen duction dates and with Hershey, Director, B. Selective Service 16, Bd. No. Selective Service Local Legal System, Aspects of Selective 653, 460, 661, 24 L.Ed.2d U.S. (January 1, 1969, Service 47 U. S. Gov finally punitive put to rest the reclassi Printing Office), ernment which defend procedure. fication See Oestereich v. acquittal. ant included in motion for Selective Service Local No. Bd. This statement follows: is as L.Ed.2d 402. U.S. 89 S.Ct. dealing delinquent registrants 10. For was outlawed Oestereich Selective statutory exemptions, held Bd. No. Service Local System’s Selective Service decided administrative L.Ed.2d procedure revoking exemptions those December he nonpros- stated ex- fendant. Defense counsel d’etre for the raison Hence the prosecutor prove handling pected that this ecutive —administrative as a activities of defendant’s aware removed. by the local boards—was Kadison and that Mr. suspicious draft counselor majority that finds previously the Gov- told him: that blinking Government, at crimi- instead prove un- ernment would be unable conduct, the law enforce nal should counseling urging evasion or lawful the administrative when they against Falk, be- Mr. only draft enforcement—the means of good their trouble deal of impunity lieved that a alternative to crime with —was enforcing law Service appears the Selective Respectfully, it foreclosed. suspicion him, coming people like had been product predisposition. is a bring unusual that it was sometimes support sum, not is there non-possession an indictment newly “rea- majority’s for the fashioned counseling cards, activi- Falk’s Mr. cross-exam- sonable doubt” standard ining why the of the reasons ties were one prosecutors motives as to their nonpossession draft seeking indictment, but also brought, that he was cards was so presented defendant are “facts” on Count case sure Government’s they raising such a doubt far from counsel defendant. Defense fail to amount to a scintilla. court that Mr. Kadison told the district majority concludes, examin- after to him had made these statements evidence” before the “unrebutted 8, 1970, counsel when defense December court, “made out at that defendant trial request prosecutor’s office to II, visited improper prima dis- least a case facie and IV of Counts III dismissal Initially, crimination.” Ante at 623. agreement to car- return for defendant’s indefensibly usurped ry the court Kadison told his cards. Mr. determining function of the trial court’s already indictment had that defendant’s reaching More this conclusion. fact joined the United been drafted when nothing importantly, al- since defendant ap- Attorney’s Office, it was States leged prove or offered to went proved of the Office’s the Chief persons prosecuted, de- status of the Division, the First Assistant Criminal establishing went not to fendant’s ease Attorney, the United States establishing discrimination but rather Department Attorney, prosecution. purpose bad behind very little and that he had had Justice everything assuming But truth of say whether about the actual decision prove— or offered defendant prosecute. not to properly us11— all before making did not come close majority’s defendant earlier, explained As prima out of the unconstitu- prosecutor’s use of the statements facie alleged. “purpose” tional supposed infer uncon- statements to governmental motive for stitutional already demonstrated, As dicting pos- Mr. Falk the best serves as allegation 25,000 bare why sible consideration illustration in their who turned open ba- motive or draft cards were not is mean- gov- voiding valid sis an otherwise ingless. previously, Likewise, as shown majority’s Moreover, the ernmental act. Hershey probative. statement is not unexplained assumption Kadison’s When called a witness on defendant’s testimony prove would be admissible proof, offer of Assistant bringing purpose in the Government’s Attorney did not Kadison stated that he 6, prosecution, n. at 623 and ante draft indictment but be- defendant’s very evidentiary matter. making dubious as lieved he the de- was involved ‍​​‌​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌‌​​‌​‌‌‌‌​​​​​‌​​​​​​‌​​‍prosecute de- cision whether or not to to defense His out-of-court statements Hornig, (2d 1963). 11. See Moss 314 F.2d 93-94 Cir.

634 majority on the statement relies defend- counsel are introducible in indict- that defendant’s of Mr. Kadison ant’s admissions of the case as Govern- ment,12 approved testify several echelons the ment was nor could he prosecuting prosecutorial “some evi- officials Government’s motives spe- singled out for only speak him- that Falk was could dence Falk.13 He prosecution.” at 622. cial Ante self. simply all, assumed putting But to one in- side these basic non-possession counts was card majority’s unprecedented firmities of the subject of indictment that approach, if indeed Falk’s counsel- draft review, there the multi-leveled ing activity why was one of reasons nothing in the record to substantiate prosecution brought, was operating on as- that. even But hardly impermissible pros- reason for sumption, majority’s seem- inference Quite contrary. ecution. stated As ingly prepossession. smacks of panel decision, in the enforce- “select expect Certainly Federal no one would posi- ment of a law someone in a prosecutors expend re- their limited tion unquestiona-. to influence others is indicting trying all sources on and Selec- bly legitimate prosecutorial scheme registrants vio- tive Service who have general compliance secure with the law.” requirements. possession lated card 472 F.2d at 1108. the ma- Nowhere does In the fall of when Falk jority dispute proposition. choose dicted, recourse to usual administra- quotes Instead it from United States deаling procedure for draft tive Steele, (9th F.2d 461 1152 Cir. longer open, delinquencies card 1972), to the effect that enforce- “[a]n means and procedure upon ment focuses enforcing regulations. available for inherently suspect, vocal offender Attorney’s Of- That the States United charge since it is vulnerable carefully to consider fice would want being those chosen for punished are proposals indicting or- expression ideas, for their prosecutions had der insure that the right.” constitutionally protected aAs potential effecting deter- sufficient general proposition, certainly and under general securing compliance to rence circumstances of this I cannot expenditure justify re- of limited Though subscribe to that view. such approach indeed. sources is reasonable procedure may be vulnerable to that And, before, unquestiona- as I have said charge, this, least in cases such as bly technique it is a sound enforcement expect prosecu- where it is ridiculous to prosecute the notorious violator violators, tion of all it is con- likewise look, counselor, in order to whom others sistent with the sensible enforcement promote to deter violators would-be general securing compliance scheme of general Furthermore, all compliance. through prosecution of de- those who prosecuted, the Unit- violators cannot fiantly eye. public violate law in the Attorney’s inter- has an ed Office prosecu- It is well within the realm of reviewing carefully proposals to est prosecute torial discretion to into take account decisional in order to insure personal characteristics the defend- uniformity fairness as matter ant, among visibility those registrants.14 may quite properly influence over others weigh heavily Department, time at a the decision whether Justice prosecute. responsibility large prosecutorial a when Santos, denied See United States v. F.2d (2d 1967); 180-181 Cir. L.Ed.2d 178. Keogh, F.Supp. 1002, 1008, States v. Rabin, Agency Referrals Criminal 14. Cf. (S.D.N.Y.1967). n. 22 Study System: Empirical An the Federal Discretion, Powers, See Stan.L. United States v. F.2d of Prosecutorial (7th 1972), Cir. certiorari Rev. argu- just vanced as result Su- defendant. had been created a This decisions, preme had ment leads to the conclusion must have that defend- prosecuted obtaining maximum ant was “indicted and for vi- in similar concerns expendi- possession olation of require- the card needless enforcement without only elsewhere, spent ments he his because exercised ture of resources better insuring privilege possible, in a na- First Amendment a to claim and also statutory right uniformity among objec- a the various tionwide conscientious argument’s tor.” Ante at Attorneys’ deci- cu- The United Offices’ 623. prosecute Con- rious follows: to these violators. dialectic is as The sions Gov- approval sequently, ernment had notice of if the multileveled defendant’s first procedure possession regula- it ease, in is violation of Falk’s the card was used regis- point tions when it not the usual defendant mailed beside the is his Department proceedings in tration card to the course the universe of Jus- hardly 621, ante cases, 4, tice on all and but did not in- draft December singled out dict until after was October follows that defendant according impermissible had to refused to to an selection submit approv- induction.15 for Finally, Falk was indicted both factor. the multileveled refusing any report violating procedure to and for al inconsistent with possession governmental punish requirements. purpose defend- card to op- System being policy ant for draft counselor that, registrant willing possible, posing to unless wherever the war one is Depart- prosecuted assume should be minor of- that even Justice during petty approve processing in- ment fenses committed his was so as to willing if he be Al- dictment of a small-minded animus inducted.16 out though against Jeffrey policy generally sound, one Falk. Stuart approvals acquitted this ease re- would the several Falk was view against report charge prophylactic ar- volved fusal because the dis- here as a part court on the level trict concluded he was entitled bitrariness low prosecutor objector. non-uni- classification as a well as conscientious Therefore, form “the conclusion seem treatment and wastefulness. * * * compelling to be he was cognizant support for Apparently indicted violation argument defendant’s about card, possession requirements lacking, ma- of his was jority argument, his Amend- not ad- because he exercised devised another delay delinquency majority suspicious board rewarded Ms with 15. finds date November accelerated induction between in his the dates defendant turned Although (December defendant’s induction draft cards October postponed May 1969) was while was allowed his date the date classification, to seek it was Ante at another indictment October 1970. that, pursuant April posits Gut until 621-622. It then that “some ex- delay planation” knecht v. be found policy 24 L.Ed.2d Selec of the Director statement System System mea tive Service abandoned its the effect Selective Service administratively dealing prosecutions de sure of for minor oc- violations curring dispossession during processing fendant’s card accelerat their should ing foregone willing date. At that time de his induction if the are However, for induction fendant rescheduled be inducted. Id. call, regular sequence neglects during and when mention that almost May report period, delinquency entire he refused defendant’s following being administratively indicted October. then handled under prevailing practice. de- June Although implausible, delinquent is noth- there fendant was declared dispossession, indicate this was the record to December and after Department completion pending of the Justice administra- Attorney’s appeal classification, Office. tive his draft of his right statutory impermissibly brought, privilege claim a much less that meat protection. objector.” equal Ante at he was denied as conscientious hardly Finally, I could take issue with proposition judiciary the that has “[t]he argument valid, it is follows If this always responsibility the for borne basic acquitted that defendant is whenever a against protecting unconsti- individuals charge report his aof failure to because rights invasions of their all tutional erred in not award- local somehow board of branches the Government.” Stamler requested classification (7th Willis, 415 F.2d 1369-1370 automatically I-A, than acquit the court must 1969), denied, Cir. 929, certiorari 399 U.S. accompanying of the defendant 2331, 26 L.Ed.2d 796. charges of which he “minor” infraction However, judiciary the can exercise proved guilty. of the ar- is gument But course responsibility that the confines within logical no is invalid. There is competence of in its institutional our acquittal way on the refusal the court’s system. it is constitutional Even if con- retroactively charge of can induction lawlessly the ceded that executive acted prosecutor’s indict decision to taint the prosecuting out of an the defendant for as the other violations well. Unless animus, evil this Court likewise acts prosecutor expected possess clair- is right lawlessly when it undertakes hardly voyance, for he faulted can be wrong right. competence it has no seeking for all to indict the defendant suggests pur- the Court Unless poses that have com- believed to violations may inquired be into or motives the card violated mitted. defendant nobility and their the balanced gain possession requirements and cannot executive’s, of the I fail to baseness see immunity simply prosecution be- how the Court’s less action can be doing not indicted for so cause he was lawless than the previously, As noted executive’s. His until induction. after he refused stated rights freely ex- Amendment were McCray v. United status. No ercised when he claimed CO 49 L.Ed. 78: rights implicated First Amendment were transpired is, course, true, suggested, anything thereafter. “It as authority there be summarize, points principal To judiciary to exercise restrain lawful disagreement my majority are with the power department another First, follows: bare-boned wrong government, mo- where a conclusionary allegations defendant’s impelled tive to the ex- motion to dismiss did deserve a power, ertion of that abuses hearing. allegations Second, defendant’s power temporarily conferred facially insufficient to sustain a this, remedy effectual. The ever, for how- protec- equal claim denied judi- lies not in the abuse Third, “purpose” tion of the laws. functions, peo- ciary of its but in prosecution, of term, uses the his as defendant ple, upon whom, all, after under our declaring not a basis institutions, placed must be reliance Fourth, it unconstitutional. for the correction of committed abuses permissible for a call defendant power.” in the exercise of a lawful prosecuting attorney respectfully I dissent. superiors to the witness States or interrogation stand for Gov- Judge (dissenting). PELL, Circuit prosecuting him. ernment’s motive assuming propriety Fifth, dissenting opinion ma- concur jority’s approach every- Judge Cummings. acute truth anal- While thing ysis particular opinion offered to defendant pri- prove, scarcely out a needs defendant make case plification, nevertheless, am- did before court of the ma because facie implications majority opin- quarrel. question no one here, however, the administration of criminal ion on whether the occasional compelled enforcement, to add I feel malmotivation should be thte opening law basis regularity these words dissent. with considerable new line defense or whether judges of this While properly matter should not left to the be joined Sprecher’s Judge have in court “people, upon whom, all, our after under respectfully opinion, I, well-written institutions, placed reliance be must good judgment I am aware which of in correction committed abuses possess, opinion they that in- am of the 2 power.” the exercise of a lawful given has been sufficient consideration far-reaching impact improper of law That the claim of motiva- dragnet tion, magnitude by majority opinion. in a of now established infinite scope assertion, per- ripples opinion will its not ad- The that will be regularity ap- beyond of vanced meate far the factual reaches with considerable permitted pears ignoring is me to the realities this case for once be erosion implicit easily present sophisticated That the in defense tactics. contained. opinion opinion may safely I think a minuscular I can venture constitute gate violat- in does not mean a number of law crack the sluice substantial feeling prin- prosecution ors as a react to with a that Falk has not established ciple they being singled sweep public The the motivation are out. ranging recipient prosecutor broad, is from the individual defendant as parking right may ticket who resents the fact be scrutinized. Once established, large fireplug scrutiny is has been the meth- black Cadillac odology range scrutiny Capone A1 un- unmolested to the who will prosecuted right. doubtedly the income with the for violation of be coextensive inquiry perforсe tax a new necessitate Each will now have That will laws. weapon, prove not to did another trial within a trial which prosecutorial commit with the crime which involved testimony will their staff charged penalty go attempt forward but defeat with legislature for his placed which has decreed on them the the majority, burden showing aberrant that of nondiscrimi- behavior. natory motivation. court particular The case before Judge has arisen from a situation apologies for, approba- I offer nor properly as Fairchild characterized prosecutor may of, the im- tion exceptional life.” “an area national involving properly motivated in country’s involvement fact that this particular individual.' Such conduct in the Asia has conflict dignity pur- Southeast beneath both the and the generated emotionalism and divisiveness

pose of the office to which is entrusted citizenry within has been such as enforcement on of our criminal laws experienced justify the objective prosecutors seldom does not Because basis. along public rule can establishment of a only of law which with rest of officials frailities, may prop- subject on a have a deleterious effect are human justice. er on occasion those characteristics administration of criminal let my not, propriety, us as cause override opinion, justify it does claims well singled case-by-case de- ad hoc feel that he out individuals to question. termination of Mr. other than Jus- reasons sys- tice Frankfurter that our sur- observed he had violated the This law. necessarily my justice not, however, tem of criminal de- face allure does pends circumspection opinion, on justify conscience our intervention prosecuting gainsay judiciary and with that officers nor does Dotterweich, McCray United States v. U.S. U.S. 277, 285, (1904). 88 L.Ed. 48 24 S.Ct. charged with, they wealthy fact he and convicted because are and can afford of, top-notch aphor- lawyers, rap; a crime. The triteness of the who can beat singled ism that make law does I was hard cases out for bad be- destroy my ethnically cause truthfulness. name is unorthodox community; got charged in this be- disagrees No one on this court prosecutor my father, cause the disliked holding Hopkins, Yick Wo grants guy immunity so he the other L.Ed. 220 pin rap me; people on and the tax (1886), that there has a denial been have never thing that sort protection equal when that law they’re they after me because law its administration is discrimina- got by easily years think I too torily particular directed at class which the statute has run.” people, nationality as in Yick Wo on a principles purport basis. I The same seem do not conceive all of the ways applicable irrespective improper to be what motivation generic might might by ingenious basis for be differentiation discovered de- persons. merely be point between classes of fense counsel. out that disagreement, however, court is in in the the road is there and will be utilized. many summarily of the claim of an individual who No doubt will be dis- being prosecuted asserts that he is be- missed as frivolous but the dismissal ground cause of appeal an ulterior motive toward him will itself another part prosecutor. plus on the the fact that those not dismissed summarily prosecutor will entail This is not a situation such as the de- being put purity of moti- insanity society fense of where de- has vation. person termined that a re- should be sum, society I do not believe needs penal responsibility lieved from in the guilty. remedy this additional for the requisite mentality. absence of the No Those who are innocent it. will not need any prosecu- doubt defense makes respectfully I therefore dissent. tor’s task more onerous than attendance guilty plea. urge in court on a I do prosecu- protecting rationale of performance tor from the full of his duty prosecuting guilty. doI rec- ognize, urge, necessity however, curtailing prosecutorial

for not selectivi- ty discharge duty. in the of that In the America, UNITED STATES for the use everyone nature of human affairs not Erectors, Inc., of Coastal Steel pros- who has committed a crime will be Appellant, ecuted, Judge Cummings but as pointed out, there is merit in a “sensible BLAIR, INCORPORATED, ALGERNON securing general enforcement scheme of Fidelity and United States and Guar compliance ‍​​‌​‌​‌​​‌‌​​​​​‌​‌‌​‌‌‌‌​​‌​‌‌‌‌​​​​​‌​​​​​​‌​​‍through prosecution of those anty Company, Appellees. defiantly pub- violate law the No. 72-2443. eye.” lic Appeals, United States Court of subject prosecutor’s To determina- Fourth Circuit. scrutiny tion to propriety May Argued 9, 1973. motivation qua toward the defendant Decided June dividual pry is indeed to the lid mythological examples cask. A few will picked pros- suffice: “I out for

ecution poor because I too am to hire an attorney although many people charged they have pot, smoked are not

Case Details

Case Name: United States v. Jeffrey Stuart Falk

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 19, 1973

Citation: 479 F.2d 616

Docket Number: 71-1213

Court Abbreviation: 7th Cir.