United States v. Donald Eddie Moody, United States of America v. Howard George Hollenbeck

ORDER AMENDING OPINION

The opinion, 778 F.2d 1380 (9th Cir.1985), is amended at 1385 to add the following footnote 1, with a signal after the citation to United States v. Gann.

1. Trenouth v. United States, 764 F.2d 1305 (9th Cir.1985) (Trenouth), which was decided between Gann and Stewart, is not to the contrary. De novo review may be appropriate where, as in Trenouth , the issue is whether or not the alleged motivation for prosecution was legally permissible. The claims in Trenouth involved first amendment issues relating to the scope of the public forum doctrine and the right to picket on military reservations. We concluded that de novo review was appropriate for these “public forum and selection prosecution questions.” Trenouth , for these “public forum and selective prosecution in such cases requires us “to consider legal concepts” — such as the scope of constitutional rights— and, thus, “to exercise judgment about the values that animate legal principles.” McConney, 728 F.2d at 1202. In other cases, such as this one, however, the existence or exercise of the constitutional right that allegedly motivated prosecution is undisputed. The question here is one of motivation…