The opinion of the court was delivered by: FLANNERY
This matter is before the court on cross-motions for summary judgment on the remaining issue in this case, the defendant's selective prosecution affirmative defense. This issue was specifically reserved in this court's earlier Order, see Memorandum Opinion, July 6, 1984. The government brought this action to require the defendant, a New York corporation that publishes The Irish People, a weekly newspaper, to register as the agent of a foreign principal under the Foreign Agents Registration Act of 1938 as amended ("FARA"), 22 U.S.C. § 611 et seq. The government claims that The Irish People is an agent of the Irish Northern Aid Committee ("INAC"), which in turn, is the registered agent of the Irish Republican Army ("IRA"). See Attorney General v. INAC, 530 F. Supp. 241 (S.D.N.Y. 1981), aff'd, 668 F.2d 159 (2d Cir. 1982).
In its Memorandum Opinion filed on July 6, 1984 this court disposed of all but one of the issues in this case, 595 F. Supp. 114 (D.D.C. 1984). In that opinion the court held that The Irish People was controlled by INAC, and that defendant has been published on behalf of INAC and the IRA. Further, the court refused to find that this prosecution violated defendant's first and fourteenth amendment rights. The court specifically reserved discussion of the remaining defense, selective prosecution, until such time as the court could make representative findings of fact with respect to assertedly privileged documents important to the defense of selective prosecution. On August 31, 1984, this court filed its Memorandum of Fact and Conclusions of Law with respect to those documents. In its Second Motion for Summary Judgment defendant has, in effect, reopened the "control" question decided in this court's July 6, 1984 Opinion. Further, defendant argues that the plaintiff's attempt to have it register under FARA constitutes selective prosecution.
A. New Facts on the Issue of Control
In its second motion for summary judgment, defendant claims that "recently learned facts regarding the organization and legal status of The Irish People, Inc. -- principally facts preceding this Court's July 6, 1984 opinion, but of which counsel was unaware -- demonstrate that the Court's conclusion that the defendant is a 'foreign agent' within [FARA] cannot stand." Defendant's Memorandum of Law in Support of its Second Motion for Summary Judgment at 1 [hereinafter cited as Def. Mem.]. First, defendant explains that The Irish People as a corporation was dissolved by operation of law on December 31, 1980. Second, INAC officers Michael Flannery, Jack McCarthy, and Robert McCann have not had signature power over The Irish People's checking accounts since May, 1984. Third, since May, 1984 only Anne Egan, Edward Brady, and Martin Galvin have had and exercised control over The Irish People's finances. In its opposition, the government points out that Mr. Galvin remains an official of INAC, its National Director of Publicity. Defendant concedes that Galvin maintains this position but submits a statement by Galvin that when he edits The Irish People he does not consider that he is, and he is not, acting for INAC. Defendant argues that these new facts undermine the court's decision of July 6, 1984 that The Irish People is controlled by INAC. In that opinion, the court relied on the signature power, and coincidence of directors between The Irish People and INAC. The court also relied on the subsidization through "advertising" of The Irish People by INAC. Defendant now argues that since the court found the advertising money objectionable only in conjunction with the coincidence of officers and financial control, see Memorandum Opinion of July 6, 1984 at 7, that the advertising factor is no longer sufficient to establish control. The court is not persuaded that these "new facts" should cause it to reconsider its earlier determination. As plaintiff points out, the fact remains that "Defendant is edited by the Irish Northern Aid Committee's National Director of Publicity, Martin Galvin, and that it continues to rely on the large financial subsidies from INAC for its survival." Plaintiff's Response to Defendant's Second Motion for Summary Judgment at 7. The court in its July 6, 1984 opinion also pointed to the fact that the two entities shared office space and a telephone number from February 23, 1975 to March 1, 1976. During that period The Irish People paid no rent to INAC. Correspondence signed by INAC officials describes The Irish People as "our weekly newspaper," Memorandum Opinion at 9, and a letter dated December 1, 1977 from INAC officials to the Boston Unit of INAC referred to the command of their sponsors in Ireland to keep the newspaper going. Id. The court will deny defendant's motion to reconsider its conclusions in its July Memorandum.
The Supreme Court has recently restated the familiar basis for a selective prosecution claim:
Wayte v. United States, 470 U.S. 598, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547 (1985).
As the Court of Appeals for the Ninth Circuit has explained:
In order to prevail in this allegation [of selective prosecution] 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.