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12/04/91 VERONICA FEDOROV v. UNITED STATES

December 4, 1991

VERONICA FEDOROV, APPELLANT
v.
UNITED STATES, APPELLEE; STEPHANIE G. DONNE, APPELLANT V. UNITED STATES, APPELLEE; DANA MELLECKER, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia. (Hon. Richard S. Salzman, Trial Judge, Nos. 88-240, -242); (Hon. Arthur L. Burnett, Sr., Trial Judge, No. 88-531). Original Opinion of April 16, 1991,

Before Roger, Chief Judge, and Ferren, Terry, Steadman, Schwelb, and Wagner, Associate Judges, and Belson,* Senior Judge.

Opinion for the court by Associate Judge Ferren.

IN Agreement opinion by Associate Judge Terry.

Minority OPINION(S)ing opinion by Associate Judge Schwelb, in which Associate Judges Steadman and Wagner join..

The opinion of the court was delivered by: Ferren

On Rehearing En Banc

FERREN, Associate Judge: In mid-November 1987, appellants Fedorov *fn1 and Donne were arrested for refusing to leave the Farragut West Metro station after hours. They were engaged in a political demonstration protesting erection of a fence and locked gate to keep out the homeless at night. Appellant Mellecker was arrested in early December 1987 for refusing to leave the Farragut West station during a similar demonstration. Each appellant was charged with one count of unlawful entry for failing to quit the Metro station on demand of lawful authority. D.C. Code § 22-3102 (1989). *fn2 After their arrests, all three appellants -- students at George Washington University -- were denied admission to the United States Attorney's pretrial diversion program although each, as a first-time offender, was eligible for diversion. *fn3 Fedorov and Donne argued unsuccessfully before Judge Salzman, and Mellecker argued fruitlessly to Judge Burnett, that the United States Attorney had a policy of denying diversion to political demonstrators and that this policy constituted both selective prosecution, in violation of the Fifth Amendment, and an impermissible penalty on speech, in violation of the First Amendment. This appeal presents the question whether appellants have proffered sufficient evidence to entitle them to discovery and to an evidentiary hearing on their constitutional claims. We conclude that appellants' proffers reflect a prima facie case of both alleged constitutional violations. Accordingly, we reverse and remand for further proceedings.

I.

A Veronica Fedorov and Stephanie Donne

On the evening of November 18, 1987, appellants Fedorov and Donne arrived at the Farragut West Metro station to participate in a political demonstration against the Washington Metropolitan Area Transit Authority. The demonstrators opposed a relatively new Metro policy of barring homeless people from the station area after hours by enclosing the Metro station with a locked gate. At closing time, Metro police warned the demonstrators that they must move from the gate or suffer arrest. Fedorov and Donne remained in the area and were arrested, arraigned, and charged with unlawful entry under D.C. Code § 22-3102, (supra) note 2. Although defense counsel applied for pretrial diversion, see (supra) note 3, the requests were denied.

On December 22, 1987, Fedorov and Donne filed a motion to dismiss. First, they claimed selective prosecution, relying on the two-part test recognized in Wayte v. United States, 470 U.S. 598, 605-06, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), and in (Elizabeth) Smith v. United States, 460 A.2d 576, 578 (D.C. 1983). They alleged that (1) others "similarly situated" -- i.e., other eligible first-time offenders charged with unlawful entry -- had been diverted from the criminal Justice system, while they and all other charged political demonstrators had been prosecuted, and that (2) the government's refusal to divert political demonstrators was based on invidious discrimination against the exercise of First Amendment rights, resulting in a denial of equal protection under the Fifth Amendment. Fedorov and Donne also claimed a direct violation of their First Amendment rights, arguing that the government withheld a valuable benefit -- pretrial diversion -- because of their political speech. They requested an evidentiary hearing and, later, filed motions to compel discovery.

In their motions, Fedorov and Donne proffered that (1) they were first offenders who had no other pending charges or prior arrests and thus were eligible for diversion; (2) they were "similarly situated" with all persons charged with unlawful entry who were otherwise eligible for diversion; (3) preliminary results of an investigation into the approximately two thousand cases of unlawful entry over a three-year period (1985-87) had revealed that eight non-political violators had been granted diversion but that no political demonstrators had received that treatment; (4) student counsel for appellants had contacted Katherine Ellis, the Assistant United States Attorney handling the cases, and Ellis had informed counsel that the government had decided "to deny diversion to anyone arrested during the demonstrations at the Farragut West Metro Station;" (5) Debbie Jones, a staff member of the United States Attorney's Office, informed Fedorov without explanation that she need not attend her pretrial diversion conference because she would be denied diversion; and (6) Katherine Winfree, Chief of the Misdemeanor Trial Section in the United States Attorney's Office, had informed student counsel in another Farragut West Metro case that the government had denied diversion to a Farragut West defendant because "he had engaged in a political demonstration."

The government replied that Fedorov and Donne had failed to carry their heavy burden to establish a prima facie showing of selective prosecution because the appropriate group of "similarly situated" persons, for comparison purposes, was the group of all those arrested at Farragut West on the night of November 18, 1987, and all those demonstrators had been prosecuted. In short, the government contended that the prosecution of all the Farragut West demonstrators proved that the government had a policy of treating all similarly situated offenders alike.

As to appellants' second argument, the government focused on the conduct underlying the prosecutions, arguing that the First Amendment was not implicated because Fedorov and Donne had violated a content-neutral statute and the First Amendment did not protect their right to remain unlawfully on government property. The government added that these appellants had not offered any evidence suggesting a reason why the government would want to silence protesters on behalf of the homeless, rather than remain neutral in its enforcement of the unlawful entry statute.

During a status hearing on January 28, 1988, Judge Salzman denied appellants' motions, refusing even their request to make an offer of proof, and noting that appellant's position was "utterly without legal merit." In his written memorandum and order of February 4, 1988, the Judge explicitly adopted the government's position. He concluded that Fedorov's and Donne's definition of "similarly situated" -- essentially all charged first-time offenders under the statute -- was too broad because "an individual prosecuted for failing to leave a department store after previously being barred in lieu of prosecution for shoplifting is not 'similarly situated' to these defendants, though charged with the identical statutory offense of unlawful entry." Memorandum and Order, Salzman, J. at 3 (Feb. 4, 1988). The Judge accordingly determined that only Farragut West demonstrators on behalf of the homeless on the day in question were "similarly situated" with appellants. Because the government had denied all Farragut West demonstrators diversion, the Judge then ruled that Fedorov and Donne had failed to show they had received disparate treatment. As a result, their selective prosecution claim failed. *fn4

Judge Salzman also concluded that Fedorov and Donne had not made a colorable showing of a First Amendment violation because, at the time of their arrest, Metro closed the Farragut West station "for all purposes," not just to curtail Fedorov's and Donne's expressive activities. (Emphasis in original).

B. Dana Mellecker

Appellant Mellecker was charged with one count of unlawful entry, D.C. Code § 22-3102, (supra) note 2, for failing to quit the Farragut West Metro station during a demonstration on behalf of the homeless on December 5, 1987. When he, too, was denied diversion, see (supra) note 3, he filed a motion to dismiss for selective prosecution, requesting an evidentiary hearing and raising the same challenges that Fedorov and Donne had raised. The motion relied on the Wayte and (Elizabeth) Smith test for selective prosecution and contained proffers similar to those submitted in Fedorov's and Donne's motions: that (1) Mellecker was eligible for diversion; (2) he was "similarly situated" with all those charged with unlawful entry and eligible for diversion; (3) a paralegal at the United States Attorney's office had stated that that office had a policy against diverting the Farragut West demonstrators; (4) Mellecker's diversion interview had been perfunctory; and (5) Ms. Winfree, Chief of the Misdemeanor Trial Section of the United States Attorney's Office, had informed student counsel in another Farragut West case that the United States Attorney had "a policy against diverting individuals who engage in political demonstration."

Mellecker also filed supplemental information which more fully described the study of unlawful entry cases that Fedorov and Donne had cited. According to this information, the D.C. Law Students in Court program had examined the court jacket in every unlawful entry case in the District of Columbia from January 1, 1985 to January 1, 1988. During that period, approximately 2,000 persons had been arrested for unlawful entry. Forty percent were "no-papered" or dismissed while others were papered on other charges. The remaining sample of 953 cases consisted of 275 persons classified as political demonstrators, 648 classified as non-demonstrators, and 30 who could not be classified. Of the 275 political demonstrators, none (0%) was admitted to diversion; of the 648 non-demonstrators, at least 27% were granted diversion. *fn5

At a March 29, 1988 hearing, Mellecker's counsel proffered her own statement in support of the allegation that the United States Attorney had a policy of not diverting otherwise eligible unlawful entrants if they were political demonstrators:

The effort was made by me, as counsel for Mr. Mellecker . . . , to get Defendant, who, as I say, has no prior record, no other pending charges, and who charged with unlawful entry, a normally divertable offense, into the diversion program. However, I was advised by an employee of the United States attorney's office that it would be a waste of time, essentially, to bring Mr. Mellecker . . . in for diversion interview, because I was told over the telephone, the United States attorney's office has a policy of not diverting protest cases. She also proffered the testimony of two witnesses. The first, a student attorney representing another Farragut West demonstrator, was prepared to testify that Ms. Winfree, the Chief of the United States Attorney's Misdemeanor Trial Section, had informed the student attorney that the government has "a policy of not diverting protest cases." This witness would also testify about the methodology the D.C. Law Students in Court program had used in its statistical study of the government's diversion practices and about the reliability of this method. The second witness, a statistics professor from Howard University who had assisted in the development of the study and had analyzed the results, would testify about the statistical significance of the finding that not a single political demonstrator charged with unlawful entry had been granted diversion while at least 27% of charged non-demonstrators had been admitted to diversion.

At the hearing, the government opposed Mellecker's request for an evidentiary hearing. In response to repeated inquiries from Judge Burnett, the prosecutor would not categorically confirm or deny that the government had a policy of denying diversion to political demonstrators. *fn6 When the Judge directly asked the government whether any political demonstrator in the last three years had been admitted to pretrial diversion, the government responded that the office does not maintain statistics and "we don't think that it matters whether there has been [a diverted political demonstrator] or not." The government maintained, rather, that Mellecker had failed to show he was a victim of disparate treatment because those with whom he was similarly situated -- those "arrested the same day that [he was] arrested," -- had also been denied diversion. *fn7

On April 14, 1988, Judge Burnett issued a memorandum opinion denying the motion to dismiss. Explicitly adopting Judge Salzman's analysis in Fedorov's and Donne's cases, Judge Burnett rejected Mellecker's selective prosecution argument, concluding that his proposed class of those "similarly situated" -- those charged with unlawful entry who were technically eligible for diversion -- "was far too broad." Rather, the Judge agreed with the government that the appropriate comparison group was "those who attempted to bar the closing of the Farragut West Metrorail station." Memorandum, Opinion and Order, Burnett, J. at 3 (Apr. 14, 1988). The Judge also concluded that, even if the appropriate comparison group should have been broader, Mellecker had failed to show that the government's decision to prosecute was based on invidious ...


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