Statutes were unconstitutional and impermissibly burdened free speech. The restraint defendant asserts in the instant case is no less conjecturable.
Finally, defendant alleges that plaintiff instigated this action in an attempt to punish him for speaking out against the Postal Service. A selective prosecution claim is a legal issue entirely independent of defendant's guilt or innocence. United States v. Washington, 227 U.S. App. D.C. 184, 705 F.2d 489 (D.C. Cir 1983).
The courts are in agreement that at a preliminary stage, selective prosecution claims must be "colorable". United States v. Diggs, 198 U.S. App. D.C. 255, 613 F.2d 988, 1003 (D.C. Cir.), cert. denied, 446 U.S. 982, 64 L. Ed. 2d 838, 100 S. Ct. 2961 (1980); Attorney General v. Irish People, Inc., 221 U.S. App. D.C. 406, 684 F.2d 928, 932 (D.C.Cir), cert. denied, 459 U.S. 1172, 74 L. Ed. 2d 1015, 103 S. Ct. 817 (1983). A defendant invoking a selective prosecution defense, even at the discovery stage must offer at least a colorable claim that (1) the prosecution was improperly motivated and, (2) that it was selective. Irish People at 932. Defendant asserts that he has demonstrated a basis for such a claim. The Court cannot agree.
Defendant's evidence does not raise an inference that the claim is more than frivolous. Portia Franklin, employed by Capitol Legal Foundation, simply states that she has never stamped an envelope, sent by courier, extremely urgent nor has she received a letter by messenger marked in such a manner. Florence Powers, also employed by the same foundation, defendant's counsel's workplace, conducted research at the request of defendant's counsel. She called twelve private mail couriers never identified to the Court and inquired about the restrictions on their services. Based on the "results" of this investigation defendant urges the Court to conclude that other violators exist but are not being prosecuted. Plaintiff's investigator, Ronald Downs, investigated thirty named delivery services and subsequently encouraged those violating the statutes to conform their practices accordingly. It is difficult to postulate "selectivity" from the evidence submitted. Nor do the statements by Franklin and Powers raise genuine factual issues.
As to the "impermissible motive" prong, defendant cites only to his public statements against the Postal Service. Since it is defendant's burden to raise a "colorable" claim beyond the frivolous stage; based on the paucity of evidence on this issue, Court concludes that the claim is not tenable. Concluding that even one part of the two element test for selective prosecution fails, ends the inquiry.
Based upon the reasoning briefly set forth, the Court concludes that the challenged statutes are constitutional, generally, and specifically, as applied to the defendant. Furthermore, the Court concludes that defendant has violated the Private Express Statutes and the United States Postal Service regulations by delivering materials which are not "extremely urgent", as that term is defined in the regulations. Accordingly, defendant's motion for summary judgment will be denied, and plaintiff's motion for summary judgment and motion to dismiss defendant's counterclaim will be granted.
An appropriate order has been entered.
This comes before the Court on the plaintiff's motions for summary judgment and to dismiss the counterclaim filed by the defendant, and the defendant's motion for summary judgment. After giving careful consideration to the motions, the oppositions thereto, and the record in this case, the Court concludes, for the reasons set forth in the accompanying memorandum, that the defendant's motion should be denied and the plaintiff's motions should be granted. The Court further concludes that the defendant should be enjoined from continuing his delivery service in such a manner that violates the postal laws.
In view of the above, it is hereby
ORDERED that defendant's motion for summary judgment is denied, and it is further
ORDERED that the plaintiff's motions for summary judgment and to dismiss the defendant's counterclaim are granted, and it is further
ORDERED that the defendant's counterclaim is dismissed with prejudice, and it is further
ORDERED that the defendant, his agents, employees, and others acting in concert with him are permanently enjoined operating from acting in violation of the Private Express Statutes, and related regulations, specifically, 39 C.F.R. § 320.6, as is more fully set forth in the accompanying memorandum.
JOHN GARRETT PENN United States District Judge