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UNITED STATES v. NAPPER

November 16, 1983

UNITED STATES OF AMERICA
v.
HYACINTHE T. NAPPER



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 I. BACKGROIND

 This matter is before the Court on defendant's Motion to Dismiss the Indictment and the government's opposition thereto. Defendant has been charged with supplying false information in a passport application in violation of 18 U.S.C. § 1542 (1976). She contends that her prosecution is part of a concerted government effort to suppress the activities of the Original Hebrew Israelite Nation of Jerusalem, a religious organization commonly referred to as the Black Hebrews. *fn1" Specifically, Ms. Napper claims that "she is being prosecuted solely because the government believes that she either belongs to or sympathizes with the [Black Hebrews]". Defendant's Memorandum at p. 1. She seeks dismissal of the indictment pursuant to Fed. R. Crim. P. 12(b)(1) or alternatively an order from this Court directing the government to provide discovery to further establish the claim of selective prosecution.

 II. MOTION TO DISMISS

 For almost one hundred years, the federal courts have recognized that it is unconstitutional to administer the law "with an evil eye and an unequal hand so as practically to make unjust and illegal discrimination between persons in similar circumstances . . . ." Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). Since Yick Wo, it has become clear that a defendant may not be selectively prosecuted on the basis of such considerations as religion, race or the desire to deter the proper exercise of constitutional rights. See e.g., Oyler v. Boles, 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1967); Dixon v. District of Columbia, 129 U.S. App. D.C. 341, 394 F.2d 966 (D.C. Cir. 1968).

 In the recent case of United States v. Washington, 227 U.S. App. D.C. 184, 705 F.2d 489 (D.C. Cir. 1983), the D.C. Circuit had the opportunity to review another § 1542 case involving alleged selective prosecution of a Black Hebrew. The Court noted that in order to establish a claim of selective prosecution, the moving party "had to prove that (1) she was singled out for prosecution from among others similarly situated and (2) that her prosecution was improperly motivated, i.e., based on race, religion or another arbitrary classification. Id. at 494; accord Attorney General v. Irish People, Inc., 221 U.S. App. D.C. 406, 684 F.2d 928, 932 (D.C. Cir. 1982), cert. denied, Irish People, Inc. v. Smith, 459 U.S. 1172, 103 S. Ct. 817, 74 L. Ed. 2d 1015 (1983), rehearing denied, 460 U.S. 1056, 103 S. Ct. 1509, 75 L. Ed. 2d 937 (1983).

 The standard for proving selective prosecution is a "rigorous" one. United States v. Mangieri, 224 U.S. App. D.C. 295, 694 F.2d 1270, 1273 (1982). "The conscious exercise of some selectivity is not in itself a federal constitutional violation." Oyler, 368 U.S. at 456. "Selectivity in prosecutorial decisions in general is permissible and even necessary." Id.; United States v. Napper, 553 F. Supp. 231, 232 (E.D.N.Y. 1982). In addition, the Government enjoys a presumption of having undertaken action in good faith and in a non-discriminatory fashion. Attorney General, 684 F.2d at 947; accord United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973).

 In support of her selective prosecution claim, defendant Napper has brought four items to the Court's attention: a report by the Israeli Committee of Inquiry Into the Problem of the Black Hebrews (hereinafter referred to as the "Knesset Report"), an editorial by William Rasberry that appeared in The Washington Post on November 21, 1980, statistical information previously produced by the government in United States v. Washington, and a Washington Post article concerning a "raid" of a Black Hebrew meeting by federal agents. There is no significant difference between this evidence and the documentary evidence submitted to the trial court in United States v. Washington.2 After reviewing the submitted documentation, and after taking testimony for several days, the trial court declined to dismiss the indictment and concluded that the defendant had not proven a prima facie case of selective prosecution. United States v. Washington, No. 81-375, Transcript of Proceedings at 649 (March 26, 1982). Similarly, this Court concludes that defendant's claim does not support dismissal of the indictment at this time.

 As to the first prong of the selective prosecution test, namely selectivity, defendant claims that the statistics on passport fraud prosecutions submitted to the court in United States v. Washington, "by any reasonable measure" show a prima facie case of selectivity. Defendant's Memorandum at p. 7. This Court cannot reach that conclusion.

 The statistics facially indicate that 4.5% of passport frauds known to the government between 1976-81 resulted in arrest warrants being issued or criminal prosecutions being started. See Defendant's Memorandum at pp. 4-6. Additionally, they facially indicate that in 1981, the year of defendant Napper's alleged offense, only 2.8% resulted in arrests or prosecutions. Id. at 6. While these numbers do reflect some selectivity in prosecution, they do not assist the defendant in showing that she was selectively prosecuted from "among others similarly situated." *fn3" The Court agrees with the Government's statement submitted in its memorandum as part of Attachment K:

 
Everyone who makes a misstatement in a passport application is not in the same category . . .

 Prosecution may be declined for a variety of reasons including the existence of related pending drug charges against an individual, or other legitimate governmental policy reasons. Defendant Napper has not shown that others in her position, have not been prosecuted.

 Even if this Court were to find that the defendant had successfully proven the "selectivity" prong of the D.C. Circuit standard, it would be unable to grant the motion to dismiss because the defendant has not shown that the government based its decision to prosecute her on impermissible considerations. Defendant Napper has neither claimed to be a member of the Black Hebrews nor shown why the government would believe that she is a Black Hebrew. See United States v. Napper, 553 F. Supp. 231, 233 (E.D.N.Y. 1982). *fn4" In order to selectively prosecute on the basis of religion, the ...


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