The opinion of the court was delivered by: FLANNERY
This case comes before the court on the defendant's motion to dismiss. This is a civil enforcement action brought pursuant to the Foreign Agents Registration Act (FARA), 22 U.S.C. §§ 611-618. The Attorney General seeks an injunction compelling the defendant, a New York corporation that publishes a weekly newspaper entitled The Irish People, to register as the agent of a foreign principal and otherwise to comply with FARA.
In its answer to the complaint the defendant raised several defenses, one of which is that the defendant was unlawfully singled out for prosecution under FARA because of governmental hostility to its editorial policies. The defendant then sought discovery of government materials relevant to this defense, and the government resisted this discovery, asserting its state secrets privilege. After in camera examination of the documents, this court by order of July 13, 1979, upheld the government's claim of privilege. The defendant now moves to dismiss, contending that the government must choose between prosecuting its case and withholding materials critical to a dispositive defense.
The court rejects the defendant's motion under Fed.R.Civ.P. 37: the plaintiff's single reference to some 250 pages is an inadequate basis for assuming that it is unlawfully concealing materials relevant to the case. With respect to the defendant's forced choice theory, however, the court rules in favor of the defendant: the government must turn over the documents sought or have its case dismissed.
Under the due process clause of the fifth amendment, federal defendants enjoy protection against discriminatory prosecution. Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954); Washington v. United States, 130 U.S. App. D.C. 374, 401 F.2d 915 (D.C.Cir. 1968). See also Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886) (under the fourteenth amendment state defendants enjoy protection against discriminatory prosecution). Prosecution is not unlawful simply by virtue of selectivity, however. Oyler v. Boles, 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501, 506 (1962) ("(T)he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation"). Rather, to be unlawful the selectivity must be predicated on some unjustifiable standard, id., and a person's exercise of first amendment rights is precisely such an unjustifiable standard. United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) (the defendant is "entitled to an acquittal if his evidence proved that the authorities purposefully discriminated against those who chose to exercise their First Amendment rights").
Prosecutions being presumptively legal, Comment, The Right to Nondiscriminatory Enforcement of State Penal Laws, 61 Colum.L.Rev. 1103, 1119-20 (1961), bare assertion of discriminatory prosecution is not enough to entitle a party to discovery regarding that defense. Rather the party seeking to raise that defense must make some preliminary showing of entitlement to raise it.
The nature of the required showing is unsettled. Some cases speak in terms of a two-part "prima facie case." See e.g., United States v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975) (involving alleged failure to file income tax forms):
In order to prevail in this allegation appellant must bear the burden of proving at least a prima facie case. This requires that appellant first demonstrate that others similarly situated generally have not been prosecuted for conduct similar to that for which he was prosecuted. Secondly, appellant must show that his selection was based on an impermissible ground such as race, religion, or his exercise of his first amendment right to free speech.
The present case does not lend itself easily to such analysis, however, because of the manifest difficulty of finding others "similarly situated" in the sense of voicing strong and regular opposition to the foreign policy (regarding Ireland) of a major United States ally (Great Britain).
Other cases present general analysis more suitable for the situation at hand. Some speak in terms of "reasonable doubt" regarding the legitimacy of the prosecution. See, e.g., United States v. Falk, 479 F.2d 616, 620-21 (7th Cir. 1973) (en banc), in which the court stated that the burden shifts to the government to justify singling out a given party for prosecution when that party "alleges intentional purposeful discrimination and presents facts sufficient to raise a reasonable doubt about the prosecutor's purpose...." Other cases speak in terms of the establishment of a "colorable basis" for the defense of discriminatory prosecution. See, e.g., United States v. Berrigan, 482 F.2d 171 (3rd Cir. 1973), in which the court stated that the defendant must make "some initial showing that there is a colorable basis for the contention...." Accord, United States v. Peskin, 527 F.2d 71, 85-86 (7th Cir. 1975), in which the court stated that what is necessary for "prima facie entitlement to a hearing" on the issue of discriminatory prosecution are facts alleged which colorably showed that the prosecution was undertaken with the motive to suppress" protected expression. Still other cases inquire into whether "enough facts are alleged to take the question past the frivolous stage," United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974). And in a case similar to the one at hand the United States Court of Appeals for the Second Circuit stated that before a defendant may obtain mandatory discovery of documentary evidence related to the selective prosecution defense, "we would first require some evidence tending to show the existence of the essential elements of the defense and that the documents in the government's possession would indeed be probative of these elements." United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir. 1974).
These tests might vary in their stringency, but in this case the court is satisfied that regardless of the test applied-reasonable doubt, colorable basis, beyond frivolous, evidence tending to show essential elements-the defendant has carried his burden. Particularly significant is the January 30, 1980 deposition of Mr. Dennis Dickson, a former F.B.I. Legal Attache stationed with the American Embassy in London. Dickson indicated that the United States Department was at one time "getting various requests from the Government of Ireland as to what the U.S. was doing to prosecute individuals that were shipping guns, ammunition, that was in violation of the Registration Act...." Dickson Deposition at 50. He confirmed that at a meeting convened by the State Department, id., apparently on September 26, 1973, id. at 47, there was discussion of means of alleviating political as ...