United States v. David Alan Wayte

710 F.2d 1385 UNITED STATES of America, Plaintiff-Appellant, v. David Alan WAYTE, Defendant-Appellee. No. 82-1699. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 2, 1983. Decided July 19, 1983. Steven S. Trott, U.S. Atty., Los Angeles, Cal., John Fichter De Pue, Dept. of Justice, Washington, D.C., for plaintiff-appellant. Mark S. Pulliam, Sepulveda, Cal., for amicus Gulf & Great Plains. Mark Rosenbaum, American Civil Liberties Union of Southern Cal., Los Angeles, Cal., for defendant-appellee. Joseph Beeler, Miami, Fla., for amicus Nat. Ass'n of Crim. Defense Lawyers. Melinda R. Bird, Los Angeles, Cal., for amicus Nat. Lawyers Guild. Appeal from the United States District Court for the Central District of California. Before WRIGHT and SCHROEDER, Circuit Judges, and COUGHENOUR, District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 Wayte was indicted for failure to register for the draft under section three of the Military Selective Service Act, 50 U.S.C.App. Sec. 453. The district court dismissed the indictment based on its finding of selective prosecution and its conclusion that the implementing Presidential Proclamation was issued invalidly. United…

Wayte was indicted for failure to register for the draft under section three of the Military Selective Service Act, 50 U.S.C. App. § 453. The district court dismissed the indictment based on its finding of selective prosecution and its conclusion that the implementing Presidential Proclamation was issued invalidly. United States v. Wayte, 549 F.Supp. 1376 (C.D.Cal.1982).

BACKGROUND

On July 2, 1980, pursuant to statutory authority, President Carter issued Presidential Proclamation 4771, directing male citizens born during 1960 to register with the Selective Service System during the week of July 21,1980. 45 Fed.Reg. 45,247 (1980). Appellee fell within that class, but did not register. On August 4th he wrote to Selective Service, declaring that he had not registered and did not plan to do so. He sent a similar letter to the'President.

Six months later he wrote another letter to Selective Service, stating that he still had not registered. He noted that he would be “traveling the nation ..., encouraging resistance and spreading the word about peace and disarmament.”

Selective Service established a passive enforcement system through which it began to process information it received…

dissenting.

I respectfully dissent from the majority’s holding that Wayte failed to establish that he was selected for prosecution because of his exercise of first amendment rights.

The initiation of Wayte’s prosecution was a part of the government’s deliberate policy to prosecute only men who wrote to the government to report their failure to register for the draft, or men whom third parties reported as having disobeyed the registration requirement. This enforcement policy was directed toward persons whom the government viewed as “vocal” non-registrants as opposed to “quiet” non-registrants. 549 F.Supp. at 1379, 1384. The policy thus was designed to punish only those who had communicated their violation of the law to others.

The policy was successful because, as the record here shows, only vocal non-registrants had been indicted at the time this prosecution began. Thousands of others who also violated the law were not prosecuted. There thus is no question, as the majority recognizes, that Wayte made the required showing that similarly situated violators were not prosecuted. Nor, in my view, is there any doubt that Wayte established that the prosecution was impermissi-bly based…