Federov v. United States

SCHWELB, Associate Judge,

dissenting:

There are times when jurisprudence, like politics, makes strange bedfellows. Largely for the reasons stated by my colleagues, I find myself in respectful but emphatic disagreement with the two trial judges with regard to the appropriate analysis of the principal issues in the case. I also agree with much — perhaps most — of the legal discussion in the majority opinion. Nevertheless, I am persuaded that the judgments below should be affirmed. In my opinion, appellants have not made an adequate initial showing either that they are similarly situated to those persons charged with unlawful entry who are said to have received diversion, or that the prosecutor was motivated by discriminatory animus in denying diversion to appellants. Accordingly, I respectfully dissent.

I

“SIMILARLY SITUATED”

As the majority opinion recognizes, a defendant claiming selective prosecution must show that others “similarly situated” were not prosecuted and that the decision to single out the defendant for prosecution was improperly motivated. Op. at 607. With respect to the first prong, my colleagues have adopted the definition of “similarly situated” suggested in the ami-cus brief of the American Civil Liberties Union Fund of the National Capital Area (ACLU brief):

nonprosecuted offenders will generally be regarded as similarly situated where (1) they have engaged in essentially the same conduct [as the defendant]; (2) as a result of which they have been accused of violating the same statutes; and (3) the magnitude of the nonprosecuted offenders’ conduct was not “materially different” from that of the defendant.

Id. at 608-09 (emphasis in original).¹ I have no problem with this formulation; indeed, its adoption by the ACLU surely militates against any notion that it tilts in any way in the government’s favor. In my opinion, however, appellants have satisfied only the second of the three requirements enumerated in the foregoing passage.

To whom were appellants similarly situated? I agree with my colleagues that the trial judges were fatally under-inclusive when they defined the appropriate group, for purposes of comparison, as consisting solely of participants in the demonstrations at the Farragut West Metro station. To compare the experiences of those claiming selective prosecution only with those of other alleged victims of the same alleged discrimination cannot be productive. Suppose that there were simultaneous and identical rallies by pro-peace and pro-war forces and that both groups engaged in identical unlawful conduct, but that the pro-peace demonstrators were prosecuted while their pro-war counterparts were spared that humiliation and travail. It would, in my view, be incongruous, in determining whether this constituted selective prosecution, to compare what happened to the complaining pro-peace demonstrators only with the experiences of other members of their own group. That all the pro-peace demonstrators received similar treatment would not alter the decisive fact that they were treated less favorably than their pro-war counterparts.

But if the trial courts’ definition of “similarly situated” was too narrow, I am afraid that my colleagues’ approach to the concept is too broad. To be sure, appellants were charged under the unlawful entry statute, as were those individuals who, according to the study by District of Columbia Law Students in Court (DCLSIC), received diversion, so that the second prong of the majority’s test has to that extent been substantially satisfied.² A showing that the alleged violation was of the same statute, however, is obviously insufficient;³ appellants must meet all three parts of the Reiss-ACLU test adopted by the majority. I do not think they have carried their burden.

Not all unlawful entrants engage in “essentially the same conduct.” I note at the outset that our unlawful entry statute proscribes two discrete kinds of trespass. The first is entry without authority. The second consists of remaining on the premises without authority, or refusal to leave. See D.C.Code § 22-3302 (1989); Criminal Jury Instructions of the District of Columbia No. 4.44 (3d ed.1978). It is questionable whether the first category — entry without authority — is comparable at all to these appellants’ conduct. Cases of both kinds, however, were apparently included in the DCLSIC study; there is certainly no indication to the contrary.

Moreover, a cursory review of this court’s decisions in unlawful entry cases reveals more variety than similarity between them. See, e.g., Hemmati v. United States, 564 A.2d 739 (D.C.1989) (defendant refused direction to leave office of United States Senator); Grogan v. United States, 435 A.2d 1069 (D.C.1981) (anti-abortion protesters refused to leave clinic); Jackson v. United States, 357 A.2d 409 (D.C.1976) (spurned lover entered estranged girlfriend’s apartment, broke glassware, thereafter refused to leave); Kelly v. United States, 348 A.2d 884 (D.C.1975) (prostitute returned to hotel after having been warned not to do so); Feldt v. Marriott Corp., 322 A.2d 913 (D.C.1974) (barefoot woman refused manager’s direction to leave restaurant); Keith v. United States, 232 A.2d 92 (D.C.1967) (per curiam) (narcotics users entered abandoned “vacant and condemned” building); Bowman v. United States, 212 A.2d 610 (D.C.1965) (defendants entered area of Union Station restricted to ticket-holders proposing to board train). Obviously, the violations illustrated by these decisions are of differing character and gravity, and a reasonable prosecutor would not necessarily regard them as warranting identical or even similar treatment.

In the present cases, the record does not reveal the precise conduct with which those individuals in the DCLSIC study who received diversion were charged. There is no reason to believe, however, that the conduct of many of them bore any greater similarity to that of Farragut West demonstrators than did, say, the barefoot restaurant customer’s insistence in Feldt on an “after the party” snack at the Junior Hot Shoppe. If variety is the spice of life, it is of the essence in compendia of unlawful entry cases.

It is true that appellants’ conduct differed from most “non-demonstrator” cases in that they were exercising rights protected by the First Amendment, whereas the persons in the DCLSIC study who received diversion were not doing so. But contrary to appellants’ contention, this was not the only difference between the two groups. Aside from the striking diversity of unlawful entry cases, which makes the search for the requisite similarity elusive at best, these appellants were engaged in concerted action with many other demonstrators and were obviously attempting to publicize their defiance of the law. These features make this case strikingly different, in ways having no connection with the exercise of First Amendment rights, from cases like those of individual defendants such as the jilted Romeo (Jackson), the persistent prostitute (Kelly), the narcotics users in the “shooting gallery” (Keith), or the barefoot would-be diner (Feldt ),⁴ and no doubt at least as different from the persons who received diversion during the period studied by DCLSIC.

Greater numbers of police officers are needed to control group activities, such as the demonstrations here, than to deal with individual trespassers. Law enforcement resources must therefore be diverted from other tasks. Concerted activities obviously present a far more challenging problem for law enforcement generally. Moreover, demonstrations are often designed to be covered by the media — that is how the demonstrators’ message is communicated to the public — and the disposition of demonstrators by the criminal justice system receives far more publicity than does the typical prosecution for unlawful entry. “It makes good sense to prosecute those who will receive the media’s attention.” United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). “Publication of the proceedings may enhance the deterrent effect of the prosecution.” Id. Newsworthiness is not an impermissible basis for selection, State v. Holloway, 460 A.2d 976, 979 (Del.Super.1983) and, as the court stated in White v. Elrod, 816 F.2d 1172, 1176 (7th Cir.), cert. denied, 484 U.S. 924, 108 S.Ct. 286, 98 L.Ed.2d 246 (1987),

[t]he government is allowed to get a bigger bang for its buck by concentrating its limited resources on those who flaunt their offenses, since proceedings against them are apt to generate more publicity and therefore communicate a more effective deterrent than proceedings against the obscure and denying violator.

Moreover, the “bigger bang for its buck” which the government can reasonably expect to secure if it prosecutes appellants and others similarly situated rather than diverting them is but one side of the coin; although the world would not end, there might be only a whimper of deterrence, instead of a bang, if there were no prosecutions in such cases.⁵ To grant diversion here would potentially convey a highly publicized message of leniency towards concerted activities which divert law enforcement officers from their conventional duties and which, to put it in the vernacular, cause a lot of ruckus. This is surely a signal which the United States Attorney may not wish to send; he may legitimately prefer to be able to focus his resources on violent crime and the narcotics activity that breeds it, and to avoid anything that would be likely to augment the number of undeterred unlawful- entrants who trespass on public or private property and inconvenience the citizenry while communicating views to the public. These considerations are unrelated to the exercise of First Amendment rights, and simply do not arise in garden variety unlawful entry prosecutions in which there was no publicized concerted activity. They militate against any finding that appellants’ conduct was “essentially the same as,” and not “materially different in magnitude” from, the conduct of those unlawful entrants who were granted diversion.

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According to the majority, its approach to the definition of “similarly situated” follows from the Supreme Court’s decision in Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). My colleagues say that in that case the Court treated all persons who had failed to register for selective service as similarly situated, and “eschewed sub-classification predicated on [their] dissimilarities,” even though they were “anything but a homogeneous group.”⁶ At first blush, this contention appears beguilingly plausible. I do not believe, however, that it can withstand critical scrutiny.

There is no indication in Wayte that the question of possible sub-classification of the nonregistrants was ever raised, or that the Supreme Court decided it or gave it any consideration. My colleagues cite no language from Justice Powell’s opinion for the Court that purports to address any such issue. The reason for their failure to do so is that no such language exists. As in Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925),

[t]he most that can be said is that the point was in the [case] if anyone had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.

Accord, Thompson v. United States, 546 A.2d 414, 423 n. 14 (D.C.1988). Wayte is thus no precedent for the proposition for which my colleagues seek to invoke it.

Even if the question of sub-classification had been raised and decided in Wayte, which it was not, the present case is readily distinguishable in a critical respect. I have previously remarked that unlawful entry prosecutions are a varied lot. People can do all sorts of different things to violate the unlawful entry statute. The conduct of a drug user in a condemned “shooting gallery” has little in common with a group demonstration at Farragut West. Those who fail to register for the draft, on the other hand, all engage in precisely the same unlawful act (or, more accurately, the same omission). There is only one way in which the statute can be violated — you do nothing when you are supposed to perform the mandatory act of registering. The individual circumstances surrounding the failure may vary, but the offense in each case is identical.

Neither Wayte nor any other authority supports the proposition that the conduct of all unlawful entrants otherwise eligible for diversion is “essentially the same.” Reliance on the DCLSIC study presupposes an essential identity between acts that are basically dissimilar. At least in my view, appellants therefore do not get past the first and third requirements of the majority’s three-part test.

I recognize that it may be difficult or impossible for appellants to find persons “similarly situated” to themselves, as I understand that term, with whom they can properly be compared in relation to the government’s refusal to grant them diversion. In most cases, unlawful entrants who act in concert with one another in a publicized manner are likely to be demonstrators too. As I have noted at page 615, supra, it is altogether futile, where discrimination against demonstrators qua demonstrators is alleged, to compare the treatment of appellants with that accorded to other demonstrators, and especially to participants in the same series of demonstrations. Under these circumstances, the reality may well be that no “similarly situated” group exists because no nondemons-trator engaged in “essentially the same conduct as appellants.” If that is so, then appellants’ selective prosecution claim must fail, because they will be unable to establish its basic elements.

I do not believe, however, that appellants have any cause for complaint on that account. They acknowledge, as they must, that they committed the crime with which they were charged. They do not deny that the punishment meted out — a short probationary term with modest amounts of community service — was authorized by law for the offense in question. Ordinarily, defendants so situated have no basis for challenging their prosecution or punishment. When they allege selective prosecution, “the burden they must carry to prevail on such a claim is, and should be, a heavy one.” Op. at 606. If the appellants cannot establish that similarly situated unlawful entrants received more lenient treatment, their claim must necessarily fail, even if the reason for their inability to prove their case is that no such similarly situated persons can be shown to exist. As this court stated in (Elizabeth) Smith v. United States, 460 A.2d 576, 579 (D.C.1983) (per curiam) (quoting, with footnotes omitted, Attorney Gen. of the United States v. Irish People, Inc., 221 U.S.App.D.C. 406, 424, 684 F.2d 928, 946 (1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983)):

If, as the district court found, there was no one to whom defendant could be compared in order to resolve the question of selection, then it follows that defendant has failed to make out one of the elements of its ease. Discrimination cannot exist in a vacuum; it can be found only in the unequal treatment of people in similar circumstances. Where defendant cannot show anyone in a similar situation who was not prosecuted, it has been held that he has not met even the threshold point of the Yick Wo [⁷] doctrine — “official discrimination ... between persons in similar circumstances, material to their rights.... ” Thus, if we accept the district court’s conclusion that few are “similarly situated” with defendants — a tenuous assertion, in light of our discussion below of past registrations — we would not find for defendant.

II

DISCRIMINATORY PURPOSE

Appellants’ claim of selective prosecution must also fail because, in my view, they have presented no evidence tending to show that the prosecutor was animated by a discriminatory purpose.⁸

In Wayte, the Supreme Court held that a defendant alleging selective prosecution must show “both that the passive enforcement system had a discriminatory effect and that it was motivated by a discriminatory purpose.” 470 U.S. at 608, 105 S.Ct. at 1531. The Court made it clear that discriminatory purpose may not be inferred from discriminatory consequences alone:

As we have noted, however: “ ‘Discriminatory purpose’ ... implies more than ... intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, [442 U.S. 256], 279 [99 S.Ct. 2282, 2296, 60 L.Ed.2d 870] [ (1979) ] (footnotes and citations omitted). In the present case, petitioner has not shown that the Government prosecuted him because of his protest activities. Absent such a showing, his claim of selective prosecution fails.

Id. at 610, 105 S.Ct. at 1532 (emphasis in original).

Contrary to the government’s apparent position, I am satisfied that Ms. Winfree’s alleged admissions to student counsel, together with the DCLSIC statistics, make out a prima facie case that demonstrators are not considered for diversion simply because they are demonstrators. By contrast, a quarter of the eligible unlawful entrants who were not demonstrators received diversion. Demonstrators are, more or less by definition, persons with a message, and the communication of messages is protected by the First Amendment. What I find lacking in this record, however, is any basis for concluding that appellants were denied diversion because they had a message. Ms. Winfree is not' alleged to have said that this was so, and I discern nothing in appellants’ statistical presentation that is relevant to the question. The only possible basis for inferring prosecuto-rial animus based on exercise of First Amendment rights is that the effect of the denial of diversion to demonstrators may be to deter the exercise of those rights, and that the prosecutors “must be held to have intended the natural result which flowed from their conduct.” Rabinowitz v. United States, 366 F.2d 34, 56 (5th Cir.1966) (en banc). This, however, is the very kind of evidence of discriminatory purpose that the Supreme Court expressly held to be insufficient in Wayte. That the prosecutors knew or should have known that protected activity might well be chilled does not mean, under Wayte, that their purpose was to chill it.

It is important to note here that appellants do not contend that the denial of diversion was motivated by the content of their message, namely, advocacy of more humane treatment for the homeless. The policy which they attribute to the government is, essentially, content-neutral.⁹ Appellants allege that the prosecutors were motivated by hostility to the expression by demonstrators of any viewpoint when they denied appellants consideration for diversion.

Not only is there no record evidence that the prosecutors were so motivated, but the notion on which the charge is based seems to me to be manifestly at odds with common sense and experience — commodities which serve us well, and which we are not required to leave behind when we don our robes. See Barnes v. United States, 412 U.S. 837, 845, 93 S.Ct. 2357, 2362-63, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 417, 90 S.Ct. 642, 652-53, 24 L.Ed.2d 610 (1970).¹⁰ Why would the government want to suppress political messages — all political messages— no matter what their content may be? Even tyrannical regimes which stamp out the expression of opposing viewpoints as a matter of policy usually trot out supporters, real or coerced, to demonstrate their supposed love and admiration for the top banana. “The presumption is always that a prosecution for violation of a criminal law 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 banc). Given that presumption — happily a reasonable one in our democracy — is it not more consistent with common sense to suppose that demonstrators are treated differently from those non-demonstrating unlawful entrants who do receive diversion because they generally act in concert and cause more problems for law enforcement authorities, and because the publicity accorded them enables the government to get a “bigger bang for its buck” if it elects to prosecute rather than to divert?

My colleagues rely on Wheelock v. United States, 552 A.2d 503 (D.C.1988), for the proposition that the government “may not prosecute unlawful entry cases in a manner which discriminates between speakers and nonspeakers.” Op. at 613. In Wheelock, we held, quoting United States v. Murphy, 114 Daily Wash.L.Rptr. 2149, 2158 (Super. Ct.D.C.1986), that “[a] policy which results in the closing of the Rotunda when people exercise rights protected by the First Amendment, but in the Rotunda remaining open when such rights are not being exercised, penalizes and chills constitutionally protected activity.” 552 A.2d at 509. But Wheelock concerned the propriety, in light of First Amendment concerns, of the convictions of persons who were demonstrating at the Rotunda. Selective prosecution was not alleged, nor was that issue discussed by the court. The “discriminatory purpose” requirement of Wayte — namely, that demonstrators must have been prosecuted “because of [their] protest activities,” 470 U.S. at 610, 105 S.Ct. at 1532—was therefore inapplicable. Indeed, the court’s use in Wheelock of the words “results in the closing of the Rotunda” reveals that its concern was with the consequences of the government’s conduct, not with its motivation.

Moreover, the basis of the decision in Wheelock was that the Rotunda was closed when persons exercising First Amendment rights were on the scene but not when ordinary tourists were present, and that this was true even when the former were no more numerous or disruptive than the latter. By contrast, appellants have made no showing here that they caused no more commotion or trouble than did their diverted purported counterparts.

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Appellants’ contentions are not devoid of appeal. If the effect of the United States Attorney’s policy of denying diversion to demonstrators is to chill the exercise of the right to free expression, the harm is done no matter how benign the motivation behind that policy may be. As an earlier Supreme Court observed nearly thirty years ago, “[i]t is of no consolation to an individual denied the equal protection of the laws that it was done in good faith.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961). To require persons in the situation of these appellants, or persons alleging civil rights violations generally, to prove that their adversaries acted with discriminatory motives means, in effect, that they must denounce those on the other side as evildoers. At least in the racial discrimination context, I cannot think of anything that is more likely to poison the atmosphere and reduce the prospect for an amicable settlement than the introduction of the issue of bad intent. Perhaps in reduced measure, the same holds true in the kind of case we have before us. Wayte has, however, settled what is meant by discriminatory purpose in selective prosecution cases, and appellants have failed to make any plausible showing here of that kind of reprehensible animus against the expression of ideas.

Ill

AFFIRMANCE OR REMAND

My colleagues acknowledge, Op. at 609, that prosecutions of demonstrators may receive more publicity than those of other unlawful entrants. They likewise concede that demonstrations often involve concerted action, and may require a greater police presence, and be more disruptive, than a garden variety unlawful entry by a single individual. Id. Indeed, they do not exclude the possibility that it was these aspects of demonstrators’ activities, rather than their expressive character, which led the United States Attorney to treat demonstrators differently and routinely deny them diversion. Id. According to the majority, however,

[establishment of these alternative explanations for the government’s administration of its diversion policy is a matter for discovery and an evidentiary hearing, not for resolution on appeal. The mere mention of such possibilities arguably not in derogation of the First Amendment is not enough to defeat appellant’s right to discovery and to a hearing.

Id. I am unable to agree.

As my colleagues acknowledge, id. at 606, judicial supervision of the government’s enforcement practices is not a task which courts are competent to undertake. Such supervision entails systemic costs which are of particular concern. Moreover,

[ejxamining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motive and decisionmak-ing to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.

Id at 606 (quoting Wayte, supra, 470 U.S. at 607; 105 S.Ct. at 1530).

The doctrine of separation of powers requires that the prosecutor, as an arm of the executive, be permitted to operate free from judicial fetters. United States v. (James) Smith, 354 A.2d 510, 513 (D.C.1976). The selection of participants in the diversion program is confided to the discretion of the prosecutor, and no court has any jurisdiction to inquire into or review his decision, unless the objecting defendant has first made a strong initial showing of invidious discrimination. Irby v. United States, 464 A.2d 136, 141 (D.C.1983). “[T]he prospect of government prosecutors being called to the stand by every criminal defendant for cross-examination as to their motives in seeking an indictment[¹¹] is to be avoided.” Falk, supra, 479 F.2d at 620. To put it more bluntly, members of the United States Attorney’s office are ordinarily supposed to spend their time prosecuting alleged offenders, rather than being required to explain to trial and appellate courts and to defense lawyers why they have undertaken the prosecutions in question. Accordingly, an appropriate affirmative showing of each element of a selective prosecution claim must be made before a court will order discovery or an evidentiary hearing. See Op. at 606 and authorities there cited. To hold otherwise would be to require prosecutors to engage routinely in litigation over whether particular defendants should have been prosecuted, instead of getting on with the job of prosecuting them so that a judge or jury can determine their innocence or guilt.¹²

The majority opinion does not specify the standard which appellants must meet in order to be entitled to a hearing or to discovery, except that my colleagues say that the “threshold should not be set too low.” Id. at 608.¹³ For the reasons set forth in this opinion, I think the threshold would have to be significantly lowered from prevailing standards for these appellants to be able to cross it on the record before us. I am satisfied that they have not shown the requisite similarity to the diverted individuals in the DCLSIC study or presented any plausible evidence of discriminatory purpose. Accordingly, I conclude that they cannot prevail either under a “colorable basis” test or under the more rigorous “prima facie case” standard.

Finally, the law will not ordinarily require the performance of a futile act. See, e.g., Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208, 1216 (8th Cir.1972). In my opinion, a remand here is an exercise in futility. Although I have no crystal ball, and cannot tell for certain what the testimony will show, I think the possibility that the discovery and evidentia-ry hearing which my colleagues have seen fit to order will result in appellants’ admission to diversion hovers between very slim indeed and nil.¹⁴ Even if my assessment of the term “similarly situated” is wrong— and I do not think it is — I see no prospect whatever for a finding by the trial courts that the United States Attorney was animated here by the kind of discriminatory purpose which is required to be shown under Wayte. In the meantime, however, the majority’s disposition will presumably require prosecutors to be answering defendants’ interrogatories and explaining the reasons for what they did or did not do¹⁵ — the very kind of eventuality which the courts seek to avoid in the absence of a strong prior showing of improper purpose. Parties and courts ought not to be required to engage in exercises which are all but certain to lead nowhere, especially when, as Wayte so plainly instructs us, the potential for interference with the prosecutorial function is both acute and substantial.

I respectfully dissent.

1 . The quoted passage is essentially identical to a part of a footnote in Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U.Pa.L.Rev. 1365, 1371 n. 19 (1987), with citations from the footnote omitted.

2 . The DCLSIC study revealed that only 26 percent of the diversion-eligible persons charged with unlawful entry who were not demonstrators received first-offender treatment; 74 percent were prosecuted, just as appellants were. This is significant because "a showing of as few as two or three other prosecutions will negate the assertion that defendant has been singled out for prosecution." State v. Holloway, 460 A.2d 976, 979 (Del.Super.1983). Appellants’ point, however, is that they were not even considered for diversion, whereas persons not exercising rights protected by the First Amendment were given consideration for that privilege on a case-by-case basis. I agree that the denial of diversion to some, even most, of the non-demonstrators among the DCLSIC unlawful entrants was not fatal to or dispositive of the kind of claim presented here.

3 . Another hypothetical situation illustrates why this must be so. Although Smith, who bought a nickel bag of marijuana for his girlfriend and handed it to her, violated the same statutory proscription against distribution of a controlled substance as Jones, who sold five pounds of the stuff to a street dealer, the two have not engaged in “essentially the same conduct,” and Jones' violation is “materially different" from, and far graver than, Smith’s. Accordingly, Jones would have no ground for complaint if the government agreed to accept a plea of guilty from Smith to simple possession, while simultaneously insisting that Jones plead guilty to, or be found guilty of, unlawful distribution.

4 . I assume for present purposes that shoelessness in a restaurant is not a form of "expression" protected by the First Amendment. I do not think that the Founding Fathers had that type of thing in mind.

5 . Cf. T.S. Eliot, The Hollow Men (1925):

This is the way the world ends.

Not with a bang but with a whimper.

6 . As my colleagues point out, some had actively protested the draft, others had written letters to the government declaring their refusal to register, some had been reported by others, and some had neither reported themselves nor been reported by anyone else.

7 . Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-74, 30 L.Ed. 220 (1886).

8 . Like my colleagues in the majority, however, I find wholly inapposite to this case the proposition accepted by both trial judges that, because appellants violated the law, their conduct did not immunize them from prosecution. Appellants admit that they violated the law, and do not challenge the initial institution of proceedings against them. Rather, they claim that their concededly non-immunized conduct was treated more severely because they exercised rights secured by the First Amendment. The correct statement that such protected activity does not immunize appellants from prosecution begs the question which they have presented.

9 . "The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, — U.S.-,-, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989) (emphasis added). The most exacting scrutiny is required when the State "undertakes to regulate speech on the basis of its content.” Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 277, 70 L.Ed.2d 440 (1981). No claim of content-based discrimination is made in this case.

10 . "‘When we take our seats on the bench, we are not struck with blindness, and forbidden to know as judges what we see as men [and women].’ ” Edwards v. Habib, 130 U.S.App.D.C. 126, 140, 397 F.2d 687, 701 (1968) (quoting Ho Ah Kow v. Nunan, 12 Fed.Cas. 252, 255 (C.D.Cal. 1879)), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969).

11 . Or, for that matter, denying diversion.

12 . "[B]ecause of the intrusive nature of the discovery necessary to prove an impermissible discriminatory intent, which may require the examination of the prosecutor under oath, the discovery of internal documents concerning a prosecution, or the disclosure of confidential law enforcement information, courts are reluctant to allow the discovery that is usually necessary to prove the prohibited intent.” Reiss, supra, 135 U.Pa.L.Rev. at 1373 (footnotes containing citations omitted).

13 . My colleagues are prepared to assume for purposes of this case that a prima facie showing is necessary. This is what we required in (Elizabeth) Smith, supra, 460 A.2d at 578, before discovery on the issue of selective prosecution may be ordered. In that case, there had been a prior evidentiary hearing, but the court’s description of it does not indicate that there had been any interrogation of prosecutors or similar controversial activity. Id.

14 . All bets would be off, of course, if the government elected to try to moot the case by granting these three demonstrators diversion.

15 . One can readily imagine the disagreements that prosecutors and defense counsel are likely to have as to the propriety of particular discovery or of questions which are likely to be asked at an evidentiary hearing. We can safely anticipate that there will be plenty of objections. Barring a settlement or other resolution not on the merits, this case is far from over, and we may very well see it again.

As it is, these very minor offenses occurred more than two and a half years ago, and appellants' probationary terms were all scheduled to expire long ago as well. Appellants have also presumably performed the community service ordered by the trial courts, and I wonder whether they will really wish to submit to diversion if they do prevail on the merits, since that would probably entail further community service. The case is not moot, for appellants’ convictions of crime are at issue, but it does have its academic or abstract side.