remanding and reassigning case for a hearing in which the defendant could question the Assistant United States Attorney as to specific issues related to the defendant’s motion to dismiss for selective prosecution
How later courts described this case
- remanding and reassigning case for a hearing in which the defendant could question the Assistant United States Attorney as to specific issues related to the defendant’s motion to dismiss for selective prosecution
- criticizing "the apparently frequent, and often too easy, practice of simply dismissing all allegations of illegal discrimination in the enforcement of criminal laws with a reference to Oyler ”
- defendant’s participation in a draft counseling organization opposing the war in Vietnam
- when prima facie case presented, burden of proof of nondiscrimination will rest on government
Written by the judges who cited it.
The opinion
FAIRCHILD, Circuit Judge
(concurring).
I agree that there has been a sufficient showing to warrant judicial in *625 quiry into the motives of the prosecutor. This is indeed an exceptional area of national life where conscientious opposition to government policy has been intertwined with violations of the laws which implement the policy.
I would add one further point, with respect to the sentence imposed. Defendant was given an aggregate three year sentence for his card violations, as much as or more than he would probably have received if his induction order had been lawful. The judge apparently considered an ill-advised and offensive remark defendant made to his Board. In any event, the sentence appears grossly disproportionate to the circumstances of the offenses. I would readily concede that one who knowingly commits an offense as a means of protest deliberately risks the penalty. In a sense his exposure to sacrifice is a means of making his protest meaningful. On the other hand, the card offenses here can not be considered serious, nor to have threatened, under the circumstances, the government’s legitimate objective in requiring the possession of cards.
Even if the prosecution were deemed lawful on remand, I believe the aggregate sentence must be substantially reduced.