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September 6, 1990


Appeals from the Superior Court of the District of Columbia; Hon. Richard S. Salzman, Trial Judge, Nos. 88-240,-242 Hon. Arthur L. Burnett, Trial Judge, No. 88-531

Rogers, Chief Judge, and Ferren and Schwelb, Associate Judges. Schwelb, Associate Judge, Dissents.

The opinion of the court was delivered by: Per Curiam

This case presents the question whether appellants, who demonstrated in support of more humane treatment of homeless persons by unlawfully refusing to leave a Metro station when ordered to do so, have proffered sufficient evidence to entitle them to discovery and to an evidentiary hearing on their claim of unconstitutional selective prosecution. They claimed they were deemed ineligible for diversion from prosecution as first offenders solely because they exercised their rights protected by the First Amendment. We agree that appellants have proffered sufficient evidence to support their allegation. We therefore reverse and remand for further proceedings.


A. Procedural History

These consolidated appeals arise out of a series of demonstrations at the Farragut West Metro station in November and December of 1987. The demonstrations were held to protest the installation by the Washington Metropolitan Area Transit Authority (Metro or WMATA) of a locked gate designed to bar homeless persons from taking shelter in the station after closing time. The demonstrators positioned themselves in an area near the gate in order to prevent the gate from being closed at closing time. The three appellants, each of whom was a student at George Washington University at the time, participated in one of these demonstrations. Shortly after closing time, the demonstrators were warned that they would be arrested if they remained in the area near the gate. Each appellant refused to leave when so directed, and each was arrested and charged with unlawful entry, in violation of D.C. Code § 22-3102 (1989).

All of the appellants requested admission to the United States Attorney's pretrial diversion program, which provides an alternative to prosecution for first offenders charged with certain misdemeanors. When an eligible offender is so "diverted," the United States Attorney dismisses the charges, usually in exchange for the successful completion by the offender of a specified number of hours of community service. The offender must also refrain from the commission of an offense during the diversion period. If the offender successfully completes the diversion program, the stigma of a criminal conviction is avoided.

All of the appellants were eligible for the diversion program. Each was a first offender, and it is undisputed that unlawful entry is a divertable misdemeanor offense. Nevertheless, all three were denied admission into the program. Reserving their appellate rights with respect to the denial of diversion, appellants entered pleas of guilty, and each received a suspended sentence and a term of probation. These appeals followed.

B. Ms. Federov and Ms. Donne

The earlier of the cases addressed in these appeals involved Veronica Federov and Stephanie Donne. In proceedings before Judge Salzman, these appellants filed a motion to dismiss the charges against them or, in the alternative, to order the government to admit them to the pretrial diversion program. They argued, among other things, that the prosecutor's decision not to divert them constituted selective prosecution, denying them liberty without due process of law, in violation of the Fifth Amendment, and punishing them for the exercise of their right to free speech, in violation of the First Amendment. Ms. Federov and Ms. Donne asserted that the United States Attorney had a policy of denying diversion to otherwise eligible persons charged with unlawful entry whose conduct occurred in the context of a political demonstration. They claimed that similarly situated individuals, charged with unlawful entry, whose activities did not arise in the context of the exercise of First Amendment rights had been admitted to the diversion program. In support of their motion, appellants recited the following specific facts: (1) At a pretrial diversion conference, Ms. Deborah Jones of the United States Attorney's office informed Ms. Donne and her student counsel that diversion had been denied. Ms. Jones provided no explanation but stated that the decision had been made by her supervisor, Ms. Katherine Winfree, Chief of the Misdemeanor Trial Section of the United States Attorney's office. (2) Ms. Katherine Ellis of the United States Attorney's office subsequently informed Ms. Donne's student counsel that a decision had been made not to grant diversion to anyone who had participated in the Farragut West demonstrations. (3) Ms. Jones told the same student counsel that it would be futile to bring Ms. Federov in for a diversion conference because diversion would be denied. (4) Finally, Ms. Winfree informed student counsel for Gregory Kandt, a Farragut West demonstrator who had been charged in a related case which is not before us on this appeal, that her client had been denied diversion because he had engaged in a political demonstration.

Ms. Federov and Ms. Donne also made an extensive discovery request. When the government declined to provide the material sought, their counsel filed a motion to compel discovery. In support of that motion, these appellants alleged that the United States Attorney had singled them out for prosecution because their conduct was related to expressive activity protected by the First Amendment. They based this contention in part on the preliminary results of an investigation, by D.C. Law Students in Court, into the United States Attorney's Disposition of all unlawful entry cases in the District of Columbia in 1985, 1986, and 1987. Counsel represented that the investigation had identified eight persons charged with unlawful entry who had been diverted. None of these eight had been arrested in the context of a political demonstration.

At a hearing on January 28, 1988, Judge Salzman announced in open court that he would deny appellants' motions to dismiss and to compel discovery, finding them to be "utterly without legal merit." Counsel for Ms. Federov and Ms. Donne requested permission to make an offer of proof, but Judge Salzman denied their request. On February 4, 1988, Judge Salzman followed up his oral decision with a written opinion in which he formally denied appellants' motions. He held that, in order to make out a claim of selective prosecution, appellants were required to demonstrate (1) that others "similarly situated" were not prosecuted and (2) that appellants were singled out for prosecution as a result of some improper motivation on the part of the United States Attorney. See (Elizabeth) Smith v. United States, 460 A.2d 576, 578 (D.C. 1983) (per curiam). He concluded that they had failed to meet their burden in relation to both of these issues.

With respect to the first prong, Judge Salzman construed appellants' motion as suggesting that they should be considered similarly situated to "all other persons charged with the offense of unlawful entry." *fn1 He found that this proposed class of similarly situated persons was "painted with too broad a brush." In Judge Salzman's view, the appropriate class of persons with whom appellants should have been compared for selective prosecution purposes consisted of "all demonstrators on the homeless' behalf at the Farragut Metrorail station." He reasoned that an individual prosecuted for failing to leave a department store after previously being barred, in lieu of prosecution for shoplifting, was not 'similarly situated' with these defendants, even though that individual, too, was charged with unlawful entry. Because appellants had not alleged that they were treated differently from other Farragut West demonstrators, Judge Salzman held that their selective prosecution claims must fail.

Judge Salzman also held that appellants had failed to satisfy the second prong of the test in (Elizabeth) Smith, supra, because they had not shown that the decision to prosecute them was improperly motivated. Citing Adderley v. Florida, 385 U.S. 39, 47-48, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966), and Leiss v. United States, 364 A.2d 803, 807-09 (D.C. 1976), cert. denied, 430 U.S. 970, 52 L. Ed. 2d 362, 97 S. Ct. 1654 (1977), the Judge concluded that appellants had made "no colorable showing that the government violated their First Amendment rights by removing them from the closed Metro station." Acknowledging that appellants' conduct had involved expressive activity, Judge Salzman found that the government had a legitimate interest in closing the Metro at midnight "for all purposes," including the conducting of a demonstration. (Emphasis in original.) He concluded that appellants had been arrested and prosecuted for their "willful and intentional refusal to vacate WMATA property" after closing hours and not for their expressive activity. *fn2

Judge Salzman also stated that the United States Attorney's diversion program was reserved for persons who genuinely regretted their illegal conduct and who were willing to comply with an educational program intended to instill respect for the law. He found that appellants were accused of "knowingly violating the law," that they had intended to be arrested in order to draw attention to their views on the needs of the homeless, and that they had given no indication that they would refrain from such conduct in the future "if they believe it necessary to make another such 'statement.'" He held that "in light of [appellants'] deliberate conduct and their apparent unwillingness to agree not to trespass similarly on Metro property in the future," it could not be said that the prosecutor's refusal to admit them to the diversion program was arbitrary or malicious.

Finally, Judge Salzman denied appellants' motion to compel discovery. He found that they were not entitled to any discovery because they had failed to make out a colorable claim of selective prosecution.

C. Mr. Mellecker

The case of the other demonstrator whose appeal is before us, Dana Mellecker, was assigned to Judge Burnett. Like Ms. Donne and Ms. Federov, Mr. Mellecker alleged that the decision to prosecute him was made pursuant to a policy of denying diversion to all persons charged with unlawful entry whose conduct occurred in the context of the exercise of First Amendment rights. Like his co-appellants, he asked the trial Judge to dismiss the charges against him or, in the alternative, to order the government to admit him to the diversion program. Judge Burnett held a hearing on the motion on March 29, 1988, approximately two months after the decision by Judge Salzman. *fn3

At the hearing on the motion, counsel for Mr. Mellecker proffered the testimony of two witnesses whom he proposed to present in support of his allegation that the United States Attorney had a policy of not considering for diversion otherwise eligible first offenders who were charged with unlawful entry in the context of a political demonstration. The first witness, the student attorney for Gregory Kandt, was said to be prepared to testify that she had been told by the Chief of the Misdemeanor Trial Section that such a policy was in effect. Counsel further represented that this witness was prepared to describe an investigation by D.C. Law Students in Court into the United States Attorney's Disposition of unlawful entry cases in the District of Columbia from January 1, 1985 through January 1, 1988. *fn4 Counsel explained that the students who conducted the investigation had examined the court jacket in "every" unlawful entry case which was not immediately "no-papered" (i.e., dismissed) by the government, in an effort to determine whether first offenders charged with unlawful entry had been treated less favorably where it appeared that their conduct was politically motivated.

The second witness proffered by Mr. Mellecker's counsel, a professor of statistics at Howard University, was said to be prepared to present the result of his analysis of the data collected by D.C. Law Students in Court. Counsel represented that over a three-year period, not a single political demonstrator charged with unlawful entry had been granted diversion. In contrast, approximately 27% of the persons charged with unlawful entry who were not political demonstrators and who did not have prior records or other pending cases in the District of Columbia were admitted to diversion.

Counsel also represented that the diversion interviews given to her clients were "extremely perfunctory." Counsel stated, "My clients were never asked a single question. We were told absolutely not. When I asked what is the reason, I was advised to speak with Ms. Winfree, the head of the Misdemeanor Trial section of the United States Attorney's office. . . ." Counsel said that she subsequently spoke to Ms. Winfree, who advised her that Mr. Mellecker would not be granted diversion because of the nature of the offense with which he was charged.

The government opposed Mr. Mellecker's request for an evidentiary hearing on his motion. In response to repeated inquiries from Judge Burnett, the prosecutor would not categorically confirm or deny that the government's policy was as represented by Mr. Mellecker, although he did claim that diversion decisions were made on an individual basis. Judge Burnett declined to hold an evidentiary hearing, but said he would assume for purposes of ruling on the motion to dismiss that the United States Attorney had a policy against diverting political demonstrators, as Mr. Mellecker alleged. The Judge stated that he would consider the "pure legal issue" whether such a policy was constitutional.

On April 14, 1988, Judge Burnett issued a memorandum opinion denying the motion to dismiss. With respect to the selective prosecution claims, he essentially adopted the reasoning of Judge Salzman. He found that appellant's proposed class -- those charged with unlawful entry who were otherwise eligible for pretrial diversion -- was too broad. He agreed with Judge Salzman's finding that the appropriate comparison group for Mr. Mellecker's selective prosecution claim consisted of persons who, like Mr. Mellecker, had refused to leave the Farragut West Metro station as directed. Since the other members of that group did not receive more favorable treatment than Mr. Mellecker did, Judge Burnett held that the decision to deny diversion to Mr. Mellecker was not based on invidious discrimination. He agreed with Judge Salzman's analysis and concluded that Mr. Mellecker had been arrested and prosecuted for refusing to leave the Farragut West Metro station after closing time, and not because he had exercised rights protected by the Constitution.

Judge Burnett went on to reject Mr. Mellecker's separate First Amendment claims on similar grounds. He held that appellant had been prosecuted "because of" his failure to leave the station after closing time and not "because of" his protest activities. (Emphasis in original.) He also thought that Mr. Mellecker had made no showing that the United States Attorney's policy with regard to diversion "is intended to keep the defendants from protesting on behalf of the homeless or that it is in any way based on the content or nature of the message communicated in the demonstration."


Appellants frankly acknowledge that they have violated a criminal statute. They seek reversal of their convictions not on the basis of a claim of innocence but rather because, they say, other persons who have committed similar crimes have been diverted rather than prosecuted. The burden they must carry to prevail on such a claim is, and should be, a heavy one.

A. Prosecutorial discretion and its limits

Although not limitless, the boundaries of prosecutorial discretion are quite wide. See Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). Conversely, the scope of judicial review of a decision whether to prosecute is narrow. "The power to decide when to investigate, and when to prosecute, lies at the core of the Executive's duty to see to the faithful execution of the laws; when reviewing the exercise of that power, the judicial authority is, therefore, at its most limited." Community for Creative Non-Violence v. Pierce, 252 U.S. App. D.C. 37, 39, 786 F.2d 1199, 1201 (1986). As the Supreme Court explained in Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985):

This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motive and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.

Because the discretion conferred upon the prosecutor is broad, a defendant who alleges discriminatory enforcement of a valid statute "carries a heavy burden of proof." (Elizabeth) Smith, supra, 460 A.2d at 578. The defendant is obliged to make an initial showing that he or she has been singled out for prosecution among others similarly situated, and that his or her prosecution was improperly motivated, i.e., that it was based upon an impermissible consideration, such as race, religion, or the exercise of constitutional rights. Id.; Davis v. United States, 390 A.2d 976, 980 (D.C. 1978); see also United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). To support a defense of selective prosecution, both of these propositions must be clearly and separately established. Attorney General of the United States v. The Irish People, Inc., 221 U.S. App. D.C. 406, 410, 684 F.2d 928, 932 (1982), cert. denied, 459 U.S. 1172, 103 S. Ct. 817, 74 L. Ed. 2d 1015 (1983). This test is a "rigorous" one, United States v. Mangieri, 224 U.S. App. D.C. 295, 298, 694 F.2d 1270, 1273 (1982), for "he presumption is always that a prosecution for violation of a is undertaken in good faith and in a nondiscriminatory fashion for the purpose of fulfilling a duty to bring violators to Justice." United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973) (en bane).

The United States Attorney's broad discretion as to who should be prosecuted and who should not applies with full force to management of the pretrial diversion program. See Chavez v. United States, 499 A.2d 813, 814 (D.C. 1985); Baxter v. United States, 483 A.2d 1170, 1172 (D.C. 1984). Nevertheless, there are limits to prosecutorial discretion. As the Supreme Court aptly put it many years ago, the law may not be enforced "with an evil eye and an unequal hand." Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). The prosecutor's decision whether to grant diversion is subject to judicial review for conformity with equal protection principles, and a denial of diversion may not be upheld if it "has been based upon some form of invidious or otherwise impermissible form of discrimination, or is arbitrary and capricious." Irby v. United States, 464 A.2d 136, 141 (D.C. 1983) (citing United States v. (James) Smith, 354 A.2d 510, 512-13 (D.C. 1976)); see also Chavez, supra; Baxter, supra.

We think it is indisputable that it would not be a proper exercise of discretion for the United States Attorney to prosecute all black participants in a demonstration while admitting their white counterparts to diversion; nor could the United States Attorney lawfully draw such a distinction between men and women. Similarly, although the point is perhaps less obvious, the government may not draw invidious distinctions between those who exercise rights protected by the First Amendment and those who do not; specifically, it may not treat the former more harshly than the latter. See Falk, supra, 479 F.2d at 619-20. This court has held that "' policy which results in the closing of the Rotunda when people exercise rights protected by the First Amendment, but [which results] in the Rotunda remaining open when such rights are not being exercised, penalizes and chills constitutionally protected activity. . . .'" Wheelock v. United States, 552 A.2d 503, 509-10 (D.C. 1988) (quoting United States v. Murphy, 114 Daily Wash. L. Rptr. 2149, 2158 (October 20, 1986)); accord United States v. Nicholson, 97 Daily Wash. L. Rptr. 1213 (July 17, ...

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