The opinion of the court was delivered by: HOWARD
The pivotal question before the Court on defendant's motion for evidentiary hearing and to dismiss is whether defendant is entitled to an evidentiary hearing to determine whether he was indicted for failure to register for the draft because of his exercise of First Amendment rights secured to him under the Federal Constitution.
In essence, Jacob asserts that there are thousands of young males who have not registered for the draft, but only those who have publicly expressed disagreement with the draft registration law have been prosecuted and, as such, the Government has abridged his right of free speech and the Court should afford him a hearing on his claim of selective prosecution.
On the other hand, the Government contends that there has been no abridgment of Jacob's First Amendment rights inasmuch as the Government may legally select for prosecution only those protestors who call attention to themselves by publicly acknowledging that they have not registered and do not intend to do so. In short, the Government asserts strongly that Jacob is not entitled to an evidentiary hearing because his defense of selective prosecution does not state a legitimate defense.
The Court holds that Jacob has not made a threshold showing of his entitlement to an evidentiary hearing by alleging sufficient facts in his motion to take the question beyond the frivolous state and raise a reasonable doubt as to the Government's purpose in prosecuting him. Therefore, Jacob's motion is denied.
In United States v. Eklund, 733 F.2d 1287 (8th Cir. 1984) the Court of Appeals reemphasized that the following standards are dispositive in determining whether an evidentiary hearing should be granted on a claim of selective prosecution:
"A hearing is necessitated only when the motion alleges sufficient facts to take the question past the frivolous state . . . and raises a reasonable doubt as to the prosecutor's purpose. . . . Without such a showing the criminal prosecution is presumed to have been undertaken in good-faith and in a nondiscriminatory manner pursuant to a duty to bring violators to justice."
It is universally accepted that the Government, through the Justice Department, possesses "broad discretion" as to whom to prosecute, providing there is probable cause to believe that an offense has been committed and the determination to prosecute is not "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classifications including the exercise of basic and fundamental rights secured under the Federal Constitution." See, Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531 (1985).
In Wayte the Supreme Court observed that the broad discretion afforded the Government in deciding whom to prosecute rest, in part, on such matters as "the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the Government's overall enforcement plan." While the Supreme Court emphasized that this governmental discretion is not "unfettered and is subject to constitutional constraints," courts are "hesitant to examine the decision whether to prosecute" because, among other things, of the possibility of frustrating the Government's law enforcement policies.
Defendant, Paul Jacob (Jacob), twenty-five years of age, on January 5, 1981, participated in a demonstration protesting draft registration
at the downtown Little Rock post office. Jacob stated to news reporters that he had not registered for the draft and did not intend to. Jacob's name was supplied to the Selective Service by someone who had witnessed the demonstration.
On September 24, 1981, an Assistant United States Attorney of the Eastern District of Arkansas sent ...