United States v. Jeffrey Stuart Falk

CUMMINGS, Circuit Judge, with whom HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge,

join (dissenting).

Prior to his trial defendant moved to dismiss Counts II, III and IV of the indictment charging him with failure to possess his Selective Service registration card and his 1968 and 1969 I-A classification cards. The basis of his motion was that by seeking these counts of the indictment the Government denied him “equal protection of the law as that right is guaranteed in the due process clause of the Fifth Amendment to the Federal Constitution.” In support of his claim he merely alleged that on information and belief over 25,000 Selective Service registrants had dispossessed' themselves of their draft cards and that the supposed violators had not been indicted. He then alleged that his prosecution had been brought “not to enforce the Selective Service law, but for the unconstitutional purpose of punishing the Defendant for expressing his beliefs that the draft is wrong, that war is wrong, and for lawfully participating in an organization known as the ‘Chicago Area Draft Resisters’ (CADRE) * * * [and] for the purpose of chilling the exercise of right secured to the Defendant by the First Amendment * * Defendant requested an evi-dentiary hearing so that he could prove the alleged “unlawful purpose.” The district court denied defendant an evi-dentiary hearing, although at the end of trial testimony he permitted defendant to make an offer of proof.

The majority holds that on the strength of the allegations in the pretrial motion to dismiss, defendant was entitled to an evidentiary hearing. If this be so, Senior Judge Campbell’s observation that in criminal cases “[w]e now have eight trials to replace the original one!” 1 is outdated. In this Circuit there are now nine! For there are few criminal defendants who will be unable to make assertions as bald and unspecific as defendant’s, and naturally there is now incentive to make them. If the magic in defendant’s allegations is thought to lie in the assertion that defendant exercised his First Amendment rights, it is hard to imagine a criminal who cannot search his past to find that he too has exercised his right of free speech. Since defendant’s draft-counseling work took place after his commission of the crimes, a criminal need only speak out after he has broken the law. Perhaps the magic is defendant’s alleged espousal of viewpoints unpopular with the incumbent Administration. Thus if they have not already done so, criminals would be well advised to criticize some policy of the Government which may in- *626 diet them. Finally, the mere assertion that over 25,000 violators were not in-dieted lends no support whatever to an allegation of invidiously discriminatory prosecutorial selectivity, as will be demonstrated below. Any defendant could make a comparably meaningless allegation by stating that during some unspecified period of time he believed that, in absolute terms, an apparently large number of violators, not stated to be similarly situated, were not prosecuted.

I.

Defendant alleged both that he believed over 25,000 Selective Service registrants had dispossessed themselves of their draft cards and had not been indicted and that his indictment had been brought for the purpose of punishing him for and chilling him in the exercise of his First Amendment rights. He claims that these allegations would support an unequal protection finding under Oyler v. Boles, 368 U.S. 448, 456 , 82 S. Ct. 501 , 7 L.Ed.2d 446 , 2 and that without more he is entitled to a hearing on his claim. The difficulty with this contention is obvious. If defendant were to prove exactly what he alleged concerning over 25,000 other registrants, he would not demonstrate anything of probative value to show that a line has been drawn between those who exercised their First Amendment rights and those who did not.

Defendant did not allege or contend at any time during the course of these proceedings that the supposed 25,000 registrants who were not prosecuted did not also engage in protected First Amendment activities. Nor did he allege they were similarly situated. Specifically he failed to state when these non-prosecuted registrants were supposed to have turned in their draft cards and whether or not their delinquencies were handled administratively. This is of elementary importance because prior to the Supreme Court’s decision in Gutknecht v. United States, 396 U.S. 295 , 90 S.Ct. 506 , 24 L.Ed.2d 532 decided January 19, 1970, card non-possession delinquencies were routinely handled administratively by punitively accelerating the registrants’ induction dates or, in some cases, by reclassifying them. 3 See also Breen v. Selective Service Local Bd. No. 16, 396 U.S. 460 , 90 S.Ct. 661 , 24 L.Ed. 2d 653 decided January 26, 1970; compare Oestereich v. Selective Service Local Bd. No. 11, 393 U.S. 233 , 89 S.Ct. 414 , 21 L.Ed.2d 402 . Defendant himself had his induction date accelerated when he turned in his registration certificate, but the advanced date was canceled on April 1, 1970, shortly after Gutknecht was handed down. And no *627 allegation was made with reference to whether or not the 25,000 plus registrants actually submitted to induction. If the majority is correct in its assumption that there was a policy not to prosecute registrants for minor violations occurring during their processing unless they refused induction (ante at 622), this too is of basic importance. 4

If the class of persons not prosecuted was not situated similarly to defendant in these basic respects, his equal protection violation claim must fail. Likewise if the class of persons not prosecuted was situated similarly to defendant but also voiced opposition to the war and the draft, etc., any claim that defendant was comparatively disadvantaged on the basis of his engagement in protected First Amendment activities would be unsustainable. Without these crucial allegations defendant’s claim at best is that he was prosecuted for a crime which was routinely handled administratively until ten months prior to his indictment because he possessed a certain characteristic and that a large number of men (who may or may not have possessed that characteristic) were not prosecuted at some unspecified time in the past. If this unspecific and misleading allegation deserved a hearing to determine whether a defendant’s prosecution violated equal protection, then it is inescapable that practically any defendant can precipitate such a hearing.

Perhaps this result would be tolerable if defendant were required at the outset to show that the 25,000 persons were different from him only in respect to the alleged impermissible selection factor. But it is apparent that defendant never intended to establish that the effect of the Government’s prosecutive policy was to prosecute a card-dispossessing registrant only if he vocally opposed governmental war policy, and the majority does not require him to do so. Rather, defendant wants, and now receives, a hearing to determine whether in his particular case the decision to prosecute was made for an invidious purpose — to punish him for and chill him in the exercise of his First Amendment rights. Let there be no mistake about this: the hearing is to determine the actual motive of the Government attorneys responsible for defendant’s indictment principally through their own testimony. 5

Cases relied on by the majority do not support the conclusion that defendant’s dismissal motion allegations, if proved, would make out a prima facie equal protection denial. In Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 it was alleged in the uncontradicted petitions that consent of the supervisors to operate laundries in wooden buildings was withheld from all Chinese but granted to all Caucasians (save one) similarly situated. Id. at 359, 361, 374 , 6 S.Ct. 1064 . The Court found “the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons * * * as to amount to a practical denial by the state of * * -x- equal protection of the laws * * * ” Id. at 373, 6 S.Ct. at 1073 . In United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972), defendants alleged that although they were arrested for participating in various anti-war demonstrations under a disorderly conduct regulation which prohibited “conduct on property which creates loud and unusual noise, or which obstructs the usual use of entrances, foyers, [etc.] * * *,” on sixteen prior occasions the Government allowed similar activities non-offensive to it where the level of noise was even *628 greater than that of defendants’. The court found that to be a fact and concluded the selection was “made not by measuring the amount of obstruction or noise but because of governmental disagreement with ideas expressed by the accused.” Id. at 1079 . In United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), the defendant alleged that the census authorities applied an unjustifiable standard in selecting persons for prosecution. In support thereof, he alleged that the only persons selected for prosecution were himself and three others who had vociferously, participated in a census resistance movement, and that many other persons who had provided census officials with no more information than he had were not prosecuted, but these had not taken a public stand against the cen-us. Id. at 1151 . He was partially successful in proving his allegation.

The common thread running through these decisions was an allegation and a showing that the effect of the administrative or prosecutive policy was a division between persons otherwise similarly situated according to whether or not they possessed a certain characteristic. 6 But again, defendant never alleged or offered to prove, or at any time during the course of these proceedings took the position that those registrants who turned in their draft cards and were not prosecuted were similarly situated to defendant except that they had not engaged in protected First Amendment activities. Unless the impact or effect of challenged governmental action is actually to discriminate between persons or classes according to an impermissible basis of selection, no denial of equal protection can be made out. See Palmer v. Thompson, 403 U.S. 217, 225-226 , 91 S. Ct. 1940 , 29 L.Ed.2d 438 . Thus although defendant contends his prosecution violated equal protection (due process, see Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 ), his claim lacks the essential stuff of an equal protection violation.

Defendant’s case, then, comes to this: without making any effort to establish that the effect of the Government’s prosecution is to differentiate between him and others on an impermissible basis, he would have a court inquire into the actual motivation behind the Government’s indictment and rule his prosecution unconstitutional solely on the basis of a wrongful prosecutorial purpose. But the “purpose” of the executive, as Falk uses the term, is not a basis for declaring this otherwise valid prosecution unconstitutional.

In United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 , the import of which the majority understandably sidestepped, O’Brien argued that the 1965 amendment to the Universal Military Training and Service Act of 1948, prohibiting the knowing destruction or mutilation of Selective Service registration and classification certificates, was unconstitutional as applied to him and unconstitutional because “what he calls the ‘purpose’ of Congress was ‘to suppress freedom of speech.’ ” Id. at 376 , 88 S.Ct. at 1678 . The Supreme Court, assuming O’Brien’s draft-card-burning had a sufficiently communicative contest to bring the First Amendment into play, rejected his first argument because the Government had a substantial interest in ensuring the smooth functioning of the Selective Service System, because the 1965 amendment was an appropriately narrow means of protecting this interest and condemned only the noncommunicative impact of the conduct in its reach, and because the non-communicative impact of O’Brien’s draft-card burning frustrated the Government’s interest. Id. at 376-382 , 88 S.Ct. 1673 . What is important for this case is that the unanimous Supreme Court also rejected O’Brien’s second argument. O’Brien wanted the Court to look at *629 statements by legislators and the historical context in which the statute was enacted in order to divine the “purpose” or “motive” of Congress in passing the law. The Court could not have more firmly refused O’Brien’s invitation to make this inquiry and use it as a basis for declaring the Act .unconstitutional. Chief Justice Warren, writing for the Court, stated:

“ * * ':f the purpose of Congress, as O’Brien uses [the] term, is not a basis for declaring the legislation unconstitutional.

“It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated:

“ ‘The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.’ McCray v. United States, 195 U.S. 27, 56 , 24 S.Ct. 769 , 49 L.Ed. 78 (1904).” Id. at 383, 88 S.Ct. at 1682 .

Falk now asks this Court to look at statements of Government attorneys and the surrounding circumstances in order to divine the purpose or motive for his indictment. We should even more firmly decline this invitation. Since the reasons behind the O’Brien Court’s refusal to use Congressional purpose or motive as a sufficient vehicle to strike down an otherwise constitutional statute are grounded in the judiciary’s institutional competence and the doctrine of separation of powers, they apply with equal, if not greater, force to close the door to judicial inquisition into the purpose or motive of the executive in seeking an otherwise valid indictment. This could not have been made more explicit than in the following passage from Justice Edward Douglass White’s opinion in McCray v. United States, 195 U.S. 27 , 24 S.Ct. 769 , 49 L.Ed. 78 , whose undiminished vitality the Court reaffirmed in O’Brien :

“Whilst, as a result of our written constitution, it is axiomatic that the judicial department of the government is charged with the solemn duty of enforcing the Constitution, and therefore, in eases properly presented, of determining whether a given manifestation of authority has exceeded the power conferred by that instrument, no instance is afforded from the foundation of the government where an act which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust. To announce such a principle would amount to declaring that, in our constitutional system the judiciary was not only charged with the duty of upholding the Constitution, but also with the responsibility of correcting every possible abuse arising from the exercise by the other departments of their conceded authority. So to hold would be to overthrow the entire distinction between the legislative, judicial, and executive departments of the government, upon which our system is founded, and would be a mere act of judicial usurpation.

“It is, however, argued if a lawful power may be exerted for an unlawful purpose, and thus, by abusing the power, it may be made to accomplish a result not intended by the Constitution, tall limitations of power must disappear, and the grave function lodged in the judiciary, to confine all the departments within the authority conferred by the Constitution, will be of no avail. This, when reduced to its last analysis, comes to this: that, because a particular department of the government may exert its lawful powers with the object or motive of reaching an end not justified, therefore it becomes the duty of the judiciary to restrain the exercise of a lawful pow *630 er wherever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that, under our constitutional system, the abuse by one department of the government of its lawful powers is to be corrected by the abuse of its powers by another department.

“The proposition, if sustained, would destroy all distinction between the powers of the respective departments of the government, would put an end to that confidence and respect for each other which it was the purpose of the Constitution to uphold, and would thus be full of danger to the permanence of our institutions.

“It is, of course, true, as suggested, that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the exercise of a lawful power.”

McCray v. United States, supra at 53-55, 24 S.Ct. at 775 ; see also Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 130 , 3 L.Ed. 162 (Chief Justice Marshall).

The type of inquiry which O’Brien asked the Supreme Court to make and which Falk now proposes can lead to only an assumption of bad governmental purpose. Not only is it true that what motivates some legislators will not be the purposes other legislators have in mind (O’ Brien, supra, 391 U.S. at 384 , 88 S.Ct. 1673 ), but also a motive to stifle a type of expression, for example, may coexist with a purpose to ensure the smooth functioning of the Selective Service System in the mind of any legislator. It would, therefore, have been a very risky business, indeed, to strike down the 1965 amendment in O’Brien on the basis of statements by legislators and the circumstances surrounding debate, and, as the Supreme Court put it, “the stakes are sufficiently high for us to eschew guesswork.” Id. 391 U.S. at 384 , 88 S. Ct. at 1683 . In the case at bar, Falk’s indictment was drafted by someone in the United States Attorney’s Office in Chicago, approved by the Chief of its Criminal Division, by the First Assistant United States Attorney, by the United States Attorney, and by the Department of Justice in Washington. Whose motivation is supposed to be decisive of the Government’s purpose in prosecuting Falk? And doubtless any evil purpose will be coincident with a purpose to enforce the law. Indeed, in his offer of proof defense counsel stated he expected an Assistant United States Attorney to testify that “one of the reasons” defendant was prosecuted was his draft-counseling activities. As explained later, I do not believe that to be an impermissible reason, but if a court feels otherwise, is it to engage in the guesswork of trying to determine the “dominant” purpose? O’Brien’s answer is an emphatic “no.” See also Palmer v. Thompson, 403 U.S. 217, 225 , 91 S.Ct. 1940 , 29 L.Ed.2d 438 . Unless a judge has made an indefensible a priori determination, this type of judicial inquiry must only lead to an assumption. And it is simply not the function of the judiciary within our constitutional scheme to void otherwise valid governmental acts solely on the basis of such an assumption. The fact that Falk proposes to call the officials responsible for his indictment to the witness stand does not alleviate the problem but rather exacerbates it. It is the ultimate transgression of judicial authority to haul the executive to the witness stand for examination by a criminal defendant as to why it has chosen to indict him. 7

*631 Furthermore, if a court dismisses an indictment because it decides a base motive has inspired it, presumably the Government will be able to reindict the defendant and survive the court’s motive scrutiny by making a “wiser” statement about it. O’ Brien, supra, 391 U.S. at 384 , 88 S.Ct. 1673 ; Palmer, supra, 403 U.S. at 225 , 91 S.Ct. 1940 . If the court would not accept reindictment, or as in the case at bar, would reverse a conviction because of its motive assumption, a criminal will have violated the law with complete impunity and obtained an immunity bestowed on the most uncertain of grounds. And finally, what a court would, in essence, be doing is invalidating a prosecution, which the executive undoubtedly had the power to initiate, “on the ground that it is unwise.” O’Brien, supra, 391 U.S. at 384 , 88 S.Ct. at 1683 . This cannot be the judiciary’s proper function.

II.

Recognizing only the practical problems of “government prosecutors being called to the stand by every criminal defendant for cross-examination as to their motives in seeking an indictment * * *,” 8 the majority finds this procedure acceptable when the defendant makes the perfunctory allegations and “presents facts sufficient to raise a reasonable doubt about the prosecutor’s purpose * * Ante at 620. Naturally the majority cites no precedent for this proposition. I have been unable to find a single case where a United States Attorney or his superiors in the Department of Justice were required to explain their motives for seeking an indictment at a defendant’s behest and as a part of his case under any circumstances, and the majority has cited none. 9 The majority employs the term “reasonable doubt,” but if the “facts” which the majority marshals raise such a doubt, then criminal juries, which operate under the same standard, must routinely free the guilty.

First of all, the only “fact” which defendant presented in his motion to dismiss was his belief that over 25,000 Selective Service registrants had turned in their draft cards but gone unindicted. As shown, supra at 626-627, this allegation is meaningless. The majority decides the district court was wrong in not granting the hearing requested in defendant’s motion to dismiss. But since it does not, and hardly could, deem proof *632 of the “over 25,000” allegation sufficient to warrant calling the prosecutors to the stand, the defendant, even if he had been granted the hearing, could not have simply put the prosecutors on the stand. I have previously indicated my disagreement with the assertion that defendant’s skeletal motion to dismiss deserved a hearing. Assuming, however, that a hearing should have been granted, the record, as well as defendant’s briefs and arguments in this Court, makes it perfectly clear that all defense counsel really had in mind was putting prosecutors on the witness stand. Immediately after the motion to dismiss was denied, defendant filed a motion “to produce the following agents and employees of the Government * * * Stephen Kadi-son, Assistant United States Attorney, [e]ach officer or employee of the Justice Department of the United States of America who authorized or considered the advisability of indicting Mr. Falk for nonpossession of draft cards.” When defendant was given the opportunity to make an offer of proof on his contention, he only proceeded to call Assistant United States Attorney Kadison to the stand and, when the district judge became aware of the implications of this tack and cut it short, defense counsel completed his offer of proof merely by stating what he expected the prosecutor to say. But it would be circular reasoning to use as one of the “facts” justifying calling the prosecutor to the stand what the prosecutor said when he was on the stand and what defense counsel stated he expected him to say.

The only other “fact” presented in the record is the statement of General Louis B. Hershey, Director, Selective Service System, in Legal Aspects of Selective Service 47 (January 1, 1969, U. S. Government Printing Office), which defendant included in his motion for acquittal. This statement is as follows:

“The escalation of the United States military involvement in Viet Nam increased the draft calls, and there was an upsurge of public demonstrations in protest. Some of these protests took the form of turning ‘draft’ cards into various public officials of the Department of Justice, the State or National Headquarters of Selective Service System, or directly to local boards. By agreement with the Department of Justice, registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted under Section 12(a) of the Military Selective Service Law of 1967, but were processed administratively by the local boards.”

The statement as of January 1, 1969, by its terms refers to a situation existing prior to that date wherein “[b]y agreement with the Department of Justice, registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted under Section 12(a) of the Military Selective Service Law of 1967, but were processed administratively by the local boards.” 10 (Emphasis supplied.) How that statement, hearsay as to Justice Department policy to begin with, has any applicability to Falk, who was indicted in October 1970, escapes comprehension. Furthermore, prior to the Supreme Court’s decision in Gutknecht v. United States, 396 U.S. 295 , 90 S.Ct. 506 , 24 L.Ed.2d 532 , decided January 19, 1970, the Selective Service System routinely deal with card non-possession delinquencies by punitively accelerating the registrants’ induction dates or reclassifying them. Gutknecht outlawed the punitive measure of accelerating induction dates and together with Breen v. Selective Service Local Bd. No. 16, 396 U.S. 460 , 90 S.Ct. 661 , 24 L.Ed.2d 653 , finally put to rest the punitive reclassification procedure. See Oestereich v. Selective Service Local Bd. No. 11, 393 U.S. 233 , 89 S.Ct. 414 , 21 L.Ed.2d 402 . *633 Hence the raison d’etre for the nonpros-ecutive policy — administrative handling by the local boards — was removed. The majority finds it suspicious that the Government, instead of blinking at criminal conduct, should enforce the law by prosecution when the administrative means of enforcement — the only other alternative to crime with impunity — was foreclosed. Respectfully, it appears any suspicion is a product of predisposition.

In sum, not only is there no support for the majority’s newly fashioned “reasonable doubt” standard for cross-examining prosecutors as to their motives in seeking an indictment, but also the “facts” presented by defendant are so far from raising such a doubt that they fail to amount to a scintilla.

The majority concludes, after examining the “unrebutted evidence” before the trial court, that defendant “made out at least a prima facie case of improper discrimination.” Ante at 623. Initially, the majority has indefensibly usurped the trial court’s function of determining fact in reaching this conclusion. More importantly, since nothing defendant alleged or offered to prove went to the status of the persons not prosecuted, defendant’s ease went not to establishing discrimination but rather to establishing a bad purpose behind his prosecution. But assuming the truth of everything defendant alleged or offered to prove— all that is properly before us 11 — defendant did not come close to making out a prima facie case of the unconstitutional “purpose” he alleged.

As already demonstrated, proof of the bare allegation that 25,000 Selective Service registrants who turned in their draft cards were not prosecuted is meaningless. Likewise, as shown previously, the Hershey statement is not probative. When called as a witness on defendant’s offer of proof, Assistant United States Attorney Kadison stated that he did not draft defendant’s indictment but believed he was involved in making the decision whether or not to prosecute defendant. Defense counsel stated he expected to prove that this prosecutor was aware of defendant’s activities as a draft counselor and that Mr. Kadison had previously told him: that the Government would be unable to prove unlawful counseling or urging evasion of the draft against Mr. Falk, but they believed that a good deal of their trouble in enforcing the Selective Service law had been coming from people like him, that it was sometimes unusual to bring an indictment for non-possession of cards, that Mr. Falk’s counseling activities were one of the reasons why the prosecution for nonpossession of draft cards was brought, and that he was not sure of the Government’s case on Count I against defendant. Defense counsel told the district court that Mr. Kadison had made these statements to him on December 8, 1970, when defense counsel visited the prosecutor’s office to request the dismissal of Counts II, III and IV in return for defendant’s agreement to carry his cards. Mr. Kadison told the court that defendant’s indictment had already been drafted when he joined the United States Attorney’s Office, that it was approved by the Chief of the Office’s Criminal Division, the First Assistant United States Attorney, the United States Attorney, and the Department of Justice and that he had had very little to say about the actual decision whether or not to prosecute.

As explained earlier, the majority’s use of the prosecutor’s statements and supposed statements to infer an unconstitutional governmental motive for indicting Mr. Falk serves as the best possible illustration why consideration of motive or purpose is not open as the basis for voiding an otherwise valid governmental act. Moreover, the majority’s unexplained assumption that Kadison’s testimony would be admissible to prove the Government’s purpose in bringing the prosecution, ante at 623 and n. 6, is very dubious as an evidentiary matter. His out-of-court statements to defense *634 counsel are not introducible in defendant’s case as admissions of the Government, 12 nor could he testify as to the Government’s motives in prosecuting Falk. 13 He could only speak for himself.

But putting to one side these basic infirmities of the majority’s unprecedented approach, if indeed Falk’s draft counseling activity was one of the reasons why the prosecution was brought, that is hardly an impermissible reason for prosecution. Quite the contrary. As stated in the panel decision, “select enforcement of a law against someone in a position to influence others is unquestiona-. bly a legitimate prosecutorial scheme to secure general compliance with the law.” 472 F.2d at 1108. Nowhere does the majority choose to dispute that proposition. Instead it quotes from United States v. Steele, 461 F.2d 1148, 1152 (9th Cir. 1972), to the effect that “[a]n enforcement procedure that focuses upon the vocal offender is inherently suspect, since it is vulnerable to the charge that those chosen for prosecution are being punished for their expression of ideas, a constitutionally protected right.” As a general proposition, and certainly under the circumstances of this case, I cannot subscribe to that view. Though such a procedure may be vulnerable to that charge, at least in cases such as this, where it is ridiculous to expect prosecution of all violators, it is likewise consistent with the sensible enforcement scheme of securing general compliance through prosecution of those who defiantly violate the law in the public eye. It is well within the realm of prosecu-torial discretion to take into account the personal characteristics of the defendant, and among those his visibility and influence over others may quite properly weigh heavily in the decision whether to prosecute.

The majority relies on the statement of Mr. Kadison that defendant’s indictment was approved by several echelons of prosecutorial officials as “some evidence that Falk was singled out for special prosecution.” Ante at 622. First of all, the majority has simply assumed it was the card non-possession counts of the indictment that were the subject of the multi-leveled review, but there is nothing in the record to substantiate that. But even operating on that assumption, the majority’s inference seemingly smacks of prepossession.

Certainly no one would expect Federal prosecutors to expend their limited resources on indicting and trying all Selective Service registrants who have violated the card possession requirements. In the fall of 1970, when Falk was indicted, recourse to the usual administrative procedure for dealing with draft card delinquencies was no longer open, and prosecution was the only means available for enforcing the regulations. That the United States Attorney’s Office would want carefully to consider proposals for indicting registrants in order to insure that the prosecutions had sufficient potential for effecting deterrence and securing general compliance to justify the expenditure of limited resources is a reasonable approach indeed. And, as I have said before, unquestionably it is a sound enforcement technique to prosecute the notorious violator or counselor, to whom others look, in order to deter would-be violators and promote general compliance. Furthermore, if all violators cannot be prosecuted, the United States Attorney’s Office has an interest in carefully reviewing proposals to prosecute in order to insure decisional uniformity as a matter of fairness to the registrants. 14

The Justice Department, at a time when a large prosecutorial responsibility *635 had just been created as a result of Supreme Court decisions, must have had similar concerns in obtaining maximum enforcement without needless expenditure of resources better spent elsewhere, if possible, and also in insuring a nationwide uniformity among the various United States Attorneys’ Offices’ decisions to prosecute these violators. Consequently, if the multileveled approval procedure was used in Falk’s ease, it is beside the point that it is not the usual course of proceedings in the universe of all draft cases, ante at 621, and it hardly follows that defendant was singled out according to an impermissible selection factor. Finally, the multileveled approval procedure is inconsistent with any governmental purpose to punish defendant for being a draft counselor and opposing the war unless one is willing to assume that even the Justice Department was so petty as to approve the indictment out of a small-minded animus against one Jeffrey Stuart Falk. I would view the several approvals involved here as a prophylactic against arbitrariness on the part of a low level prosecutor as well as against non-uniform treatment and wastefulness.

Apparently cognizant that support for defendant’s argument about the purpose of his prosecution was lacking, the majority devised another argument, not advanced by the defendant. This argument leads to the conclusion that defendant was “indicted and prosecuted for violation of the card possession requirements only because he exercised his First Amendment privilege to claim a statutory right as a conscientious objector.” Ante at 623. The argument’s curious dialectic is as follows: The Government had notice of defendant’s first violation of the card possession regulations when defendant mailed his registration card to the Department of Justice on December 4, 1967, but did not indict him until October of 1970, after Falk had refused to submit to induction. 15 Falk was indicted both for refusing to report and for violating the card possession requirements. The Selective Service System had a policy that, wherever possible, a registrant should not be prosecuted for minor offenses committed during his processing if he is willing to be inducted. 16 Although this policy is generally sound, in this ease Falk was acquitted of the refusal to report charge because the district court concluded he was entitled to classification as a conscientious objector. Therefore, “the conclusion would seem to be compelling that * * * he was indicted and prosecuted for violation of the card, possession requirements only because he exercised his First Amend- *636 meat privilege to claim a statutory right as a conscientious objector.” Ante at 623.

If this argument is valid, it follows that whenever a defendant is acquitted of a failure to report charge because his local board somehow erred in not awarding him a requested classification other than I-A, the court must automatically acquit the defendant of accompanying “minor” infraction charges of which he is proved guilty. But of course the argument is invalid. There is no logical way the court’s acquittal on the refusal of induction charge can retroactively taint the prosecutor’s decision to indict for other violations as well. Unless the prosecutor is expected to possess clairvoyance, he can hardly be faulted for seeking to indict the defendant for all violations he was believed to have committed. The defendant violated the card possession requirements and cannot gain immunity from prosecution simply because he was not indicted for so doing until after he refused induction. His First Amendment rights were freely exercised when he claimed CO status. No First Amendment rights were implicated in anything that transpired thereafter.

To summarize, the principal points of my disagreement with the majority are as follows: First, the bare-boned and conclusionary allegations in defendant’s motion to dismiss did not deserve a hearing. Second, defendant’s allegations were facially insufficient to sustain a claim that he was denied equal protection of the laws. Third, the “purpose” of his prosecution, as defendant uses the term, is not a basis for declaring that prosecution unconstitutional. Fourth, it is not permissible for a defendant to call a prosecuting attorney for the United States or his superiors to the witness stand for interrogation as to the Government’s motive for prosecuting him. Fifth, assuming the propriety of the majority’s approach and the truth of everything defendant alleged and offered to prove, defendant did not make out a pri-ma facie case that his prosecution was impermissibly brought, much less that he was denied equal protection.

Finally, I could hardly take issue with the proposition that “[t]he judiciary has always borne the basic responsibility for protecting individuals against unconstitutional invasions of their rights by all branches of the Government.” Stamler v. Willis, 415 F.2d 1365, 1369-1370 (7th Cir. 1969), certiorari denied, 399 U.S. 929 , 90 S.Ct. 2331 , 26 L.Ed.2d 796 . However, the judiciary can only exercise that responsibility within the confines of its institutional competence in our constitutional system. Even if it is conceded that the executive acted lawlessly in prosecuting the defendant out of an evil animus, this Court likewise acts lawlessly when it undertakes to right a wrong it has no competence to right. Unless the Court suggests that its purposes or motives may be inquired into and their nobility balanced against the baseness of the executive’s, I fail to see how the Court’s action can be any less lawless than the executive’s. As noted previously, the Supreme Court stated in McCray v. United States, 195 U.S. 27, 55 , 24 S.Ct. 769, 776 , 49 L.Ed. 78 :

“It is, of course, true, as suggested, that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies not in the abuse by the judiciary of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the exercise of a lawful power.”

I respectfully dissent.

. Hon. William J. Campbell, Delays in Criminal Cases, 55 F.R.D. 229 , 231 (1972).

. In that case the Supreme Court stated:

“Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged.” 368 U.S. at 456 , 82 S.Ct. at 506 .

Defendant argues that because he alleged that others were not prosecuted and that the purpose of his prosecution was unconstitutional, he did allege grounds supporting a denial of equal protection. I cannot agree. As explained in the text infra, it is essential for facial sufficiency that defendant allege a line has actually been drawn between him, who possesses a certain characteristic, and others similarly situated who do not possess that characteristic. There is no disagreement, as the majority suggests, ante at 619, on the proposition that an individual can be the victim of invidious discrimination. (Even if “a person * * * must show that he is a member of a class against which the law is being selectively enforced,” ante at 619, nothing precludes a class of one, provided the class is objectively discernible.) The essential point of disagreement is that the majority would hold sufficient to support a finding of a denial of equal protection that defendant’s prosecution was badly motivated and that others, sometime, somewhere and however situated were not prosecuted.

. This was done pursuant to 32 C.F.R. §§ 1642.12 and 1642.13.

. Furthermore, defendant failed to allege whether the prosecutors were aware of the existence of the 25,000 violators supposedly known to defendant, and Oyler would seem to hold the absence of such allegation to be fatal. 368 U.S. at 456 , 82 S.Ct. 501 .

. See page 631, infra. Defendant lias never contended he could prove the alleged “unlawful purpose” without interrogating the prosecutorial officials who decided to seek his indictment.

. See also Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), certiorari granted, 411 U.S. 915 , 93 S.Ct. 1544 , 36 L.Ed.2d 306 .

. See Newman v. United States, 127 U.S.App.D.c. 263, 382 F.2d 479, 481 (1967) (then Judge Burger).

. It is questionable whether the majority pays more than lip service to the practical problems involved in allowing defendants to put government prosecutors on the witness stand in order to probe prosecutorial motivation. In this case defendant’s indictment was approved by several echelons of government attorneys including officials in the Justice Department. If the Government’s purpose in seeking to indict defendant is really to be discerned, all of these officials would have to testify since the testimony of any one of them, especially the lowest level prosecutor’s, would hardly establish the Government’s purpose, if indeed the testimony of all of them could. See notes 12 and 13 infra. Presumably the defendant well understood this since he moved to have all persons “who authorized or considered the advisability of indicting Mr. Falk” produced. The majority attempts to narrow the circumstances under which this unique procedure will occur by stating that the defendant must present facts sufficient to raise a reasonable doubt about the Government’s purpose. But as demonstrated in the text infra, this standard amounts to virtually no limitation at all. It is not difficult to picture the chaos which will reign. See Goldberg v. Hoffman, 225 F.2d 463, 467 (7th Cir. 1955).

. The majority cites only Dixon v. District of Columbia, 129 U.S.App.D.C. 341 , 394 F.2d 966 (1968), and United States v. Steele, 461 F.2d 1148 (9th Cir. 1972). Ante at 623 n. 6. The latter referred to testimony by the Regional Technician for the census in Hawaii, not a federal prosecutor. Judge Bazelon’s opinion in the former case, not joined in by the two other members of the panel, referred to testimony by a former Chief of the Law Enforcement Division of the District of Columbia’s Corporation Counsel. However, neither in that opinion nor in the Steele decision is there anything whatsoever to indicate that the official was called to the witness stand by the defendant as a part of his case.

. For dealing with delinquent registrants who held statutory exemptions, the Selective Service System’s administrative procedure of revoking those exemptions was outlawed in Oestereich v. Selective Service Local Bd. No. 11, 393 U.S. 233 , 89 S.Ct. 414 , 21 L.Ed.2d 402 , decided December 16, 1968.

. See Moss v. Hornig, 314 F.2d 89, 93-94 (2d Cir. 1963).

. See United States v. Santos, 372 F.2d 177, 180-181 (2d Cir. 1967); United States v. Keogh, 271 F.Supp. 1002, 1008, n. 22 (S.D.N.Y.1967).

. See United States v. Powers, 467 F.2d 1089, 1095 (7th Cir. 1972), certiorari denied 410 U.S. 983 , 93 S.Ct. 1499 , 36 L.Ed.2d 178 .

. Cf. Rabin, Agency Criminal Referrals in the Federal System: An Empirical Study of Prosecutorial Discretion, 24 Stan.L.Rev. 1036, 1065 (1972).

. The majority finds suspicious the delay between the dates defendant turned in his draft cards (December 1967, October 1968, and May 1969) and the date of his indictment in October 1970. Ante at 621-622. It then posits that “some explanation” for the delay may be found in a policy statement of the Director of the Selective Service System to the effect that prosecutions for minor violations occurring during their processing should be foregone if the registrants are willing to be inducted. Id. However, the majority neglects to mention that during almost the entire period, defendant’s delinquency was being handled administratively under then prevailing practice. In June 1968 defendant was declared a delinquent for his December 1967 dispossession, and after the completion of a pending administrative appeal of his classification, his draft board rewarded Ms delinquency with an accelerated induction date in November 1968. Although defendant’s induction date was postponed while he was allowed to seek another classification, it was not until April 1970 that, pursuant to Gutknecht v. United States, 396 U.S. 295 , 90 S.Ct. 506 , 24 L.Ed.2d 532 , the Selective Service System abandoned its measure of administratively dealing with defendant’s card dispossession by accelerating his induction date. At that time defendant was rescheduled for induction in his regular sequence of call, and when he refused to report in May 1970, he was indicted the following October.

. Although not implausible, there is nothing in the record to indicate that this was the policy of the Justice Department or of any United States Attorney’s Office.