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."
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).
In order to selectively prosecute on the basis of religion, the government must have knowledge or at least suspect that an individual belongs to a particular sect.
Defendant claims that "there are indications that the Israeli government sought and obtained the cooperation of the United States government in stemming Black Hebrew immigration into Israel and that the United States government, in concert with the Israeli government, is actively participating in a course of conduct designed to keep American Black Hebrews from even attempting to visit Israel." Defendant's Memorandum at p. 10. This conclusion is unsupported by the facts before this Court.
According to the Knesset Report, Israel and the United States negotiated an agreement to assist any Black Hebrew who seeks to return to the United States. Knesset Report at p. 60. The report also indicates that federal agents have been engaged in extensive investigations of suspected fraud, theft and embezzlement offenses allegedly committed by Black Hebrews. Id. at 50, 86; accord Napper, 553 F. Supp. at 233. These facts do not reveal the active participation of United States authorities in immigration curtailment which could lead to an inference of impermissible motive for prosecution.
Under the standard set forth in the D.C. Circuit decision in Attorney General v. Irish People, Inc., if either prong of the selective prosecution test is failed, the whole defense fails. 684 F.2d 966. The Court has concluded that the defendant failed to meet either prong of the test. As such, defendant's motion to dismiss the indictment must be denied.
III. MOTION FOR DISCOVERY
Defendant has asked this Court to enter an order directing the government to produce two sets of documents: (1) documents reflecting the number of detected passport violations and prosecutions involving persons known, or thought by the government to be, Black Hebrews; and (2) communications between the Israeli government and United States officials that might have resulted in intensified United States investigation or prosecution of Black Hebrews or their sympathizers. The standard for reviewing such a request is now clear and set forth in Attorney General v. Irish People, Inc., 221 U.S. App. D.C. 406, 684 F.2d 928 (D.C. Cir. 1982).
A defendant alleging the selective prosecution defense, even at the discovery stage, must offer "at least a colorable claim both that the prosecution was improperly motivated and that it was selective in the first place." Id. at 932. The Second Circuit has defined the term "colorable basis" to mean the existence of "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 (2d Cir. 1974).
Upon consideration of this standard and the evidence presented in the parties' memoranda, the Court concludes that defendant's discovery request should not be granted.
In United States v. Washington, No. 81-375, slip op. at 7 (D.D.C. February 23, 1982) and United States v. Napper, 553 F. Supp. 231, 234 (E.D.N.Y. 1982), the respective trial judges granted limited discovery on Black Hebrew selective prosecution claims. Neither court, however, specifically addressed whether a "colorable basis" existed for the "selectivity" prong of the test. In addition, neither opinion set forth any facts which, in this Court's view, would have constituted a "colorable basis" for selectivity. As such, this Court is not persuaded by the reasoning in these opinions.
As previously noted, the statistics submitted by defendant concerning passport fraud prosecution, did not make out a prima facie claim of selectivity. Additionally, the Court concludes that the statistics do not show a "colorable basis" for "selectivity". At best, they show a low and declining prosecution rate in passport fraud cases. The mere fact that only a small number of individuals have been prosecuted for passport fraud and that one or two of these individuals happened to be Black Hebrews, does not show selectivity from among others similarly situated to the defendant in this case. As reported in a recent Washington Post article, law enforcement authorities have found many Black Hebrew sect members to be involved in illegal or fraudulent activities. "Some Black Hebrews' Identities Pose Problem to Authorities", The Washington Post, November 14, 1983 at p. D-1. The Court cannot conclude that the defendant has come forth with enough evidence to raise an inference of selectivity in prosecution. Defendant's prosecution appears to be the result of her own illegal activities. See Government's Memorandum at p. 2-7 (outlining Defendant's activities that led to the indictment in this case).
Given these conclusions, the Court determines that the defendant has not presented a "colorable" basis for her selective prosecution claim, and thus cannot order the government to produce either the statistics on Black Hebrew prosecutions
or the communications between Israel and the United States
as requested by the defendant.
After full consideration of the parties' memoranda and the exhibits submitted for review, the Court determines that the defendant has failed to establish a prima facie case for selective prosecution and thus declines to dismiss the complaint. Moreover, the Court concludes that defendant has not presented a "colorable" showing of the defense and is therefore not entitled to limited discovery for her claim. The Court will enter an order in accordance with the foregoing of even date herewith.
Upon consideration of the defendant's Motion to Dismiss, the government's opposition thereto, and the entire record herein, and for the reasons set forth in the accompanying Opinion, of even date herewith, it is by this Court this 16th day of November, 1983,
ORDERED that defendant's Motion to Dismiss the Indictment on Selective Prosecution grounds is denied, and it is further
ORDERED that defendant's Motion for Discovery is denied and it is further
ORDERED that if statistics concerning the prosecution of Black Hebrews are found to exist in the Government's possession and those statistics are produced in the companion case to the case at bar in the Eastern District of New York, the Court will consider again whether discovery is warranted or proper under the circumstances of this case and the possible prudential considerations involving the doctrine of separation of powers and the cases holding that courts should not allow parties to interject themselves into matters involving sensitive foreign policy deliberations and communications with other nations.