United States v. Jeffrey Stuart Falk

PELL, Circuit Judge

(dissenting).

I concur in the dissenting opinion of Judge Cummings. While the acute analysis in that opinion of the particular case before the court scarcely needs amplification, nevertheless, because of the *637 policy implications of the majority opinion on the administration of criminal law enforcement, I feel compelled to add these words of dissent.

While a majority of the judges of this court have joined in Judge Sprecher’s well-written opinion, I, respectfully to the good judgment which I am aware they possess, am of the opinion that insufficient consideration has been given to the far-reaching impact of the law now established by the majority opinion. The ripples of that opinion will permeate far beyond the factual reaches of this case for erosion once permitted is not easily contained. That the present opinion may constitute a minuscular crack in the sluice gate does not mean that Falk has not established as a principle that the motivation of the public prosecutor as to an individual defendant may be scrutinized. Once the right of scrutiny has been established, the methodology and range of scrutiny will undoubtedly be coextensive with the right. That inquiry will perforce necessitate another trial within a trial in which the involved prosecutorial staff will by their testimony attempt to go forward with the proof burden placed on them by the majority, that of showing nondiscriminatory motivation.

I offer no apologies for, nor approbation of, the prosecutor who may be improperly motivated in a case involving a particular individual.' Such conduct is beneath both the dignity and the purpose of the office to which is entrusted the enforcement of our criminal laws on an objective basis. Because prosecutors along with the rest of public officials are subject to human frailities, and may on occasion let those characteristics override propriety, it does not, in my opinion, justify a case-by-case ad hoc determination of the question. Mr. Justice Frankfurter observed that our system of criminal justice necessarily depends on conscience and circumspection in prosecuting officers 1 and with that no one would quarrel. The question here, however, is whether the occasional malmotivation should be thte basis for opening with considerable regularity this new line of defense or whether the matter should not be properly left to 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.” 2

That the claim of improper motivation, a dragnet of infinite magnitude in its scope of assertion, will not be advanced with considerable regularity appears to me to be ignoring the realities implicit in sophisticated defense tactics. I think I can safely venture the opinion that a substantial number of law violators react to prosecution with a feeling they are being singled out. The sweep is broad, ranging from the recipient of a parking ticket who resents the fact that the large black Cadillac by a fireplug is unmolested to the A1 Capone who is prosecuted for violation of the income tax laws. Each will now have a new weapon, not to prove that he did not commit the crime with which he is charged but only to defeat the penalty which the legislature has decreed for his aberrant behavior.

The particular case before the court has arisen from a situation which Judge Fairchild has properly characterized as “an exceptional area of national life.” The fact that this country’s involvement in the conflict in Southeast Asia has generated emotionalism and divisiveness within the citizenry such as has been seldom experienced does not justify the establishment of a rule of law which can only have a deleterious effect on a proper administration of criminal justice. The claims of Falk may well cause us as individuals to feel that he was singled out for prosecution for reasons other than that he had violated the law. This surface allure does not, however, in my opinion, justify our intervention as the judiciary nor does it gainsay that in *638 fact he was charged with, and convicted of, a crime. The triteness of the aphorism that hard cases make bad law does not destroy its truthfulness.

No one on this court disagrees with the holding of Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886), that there has been a denial of equal protection of the law when that law in its administration is discrimina-torily directed at a particular class of people, as in Yick Wo on a nationality basis. The same principles would seem to be applicable irrespective of what the generic basis for differentiation might be between classes of persons. The court is in disagreement, however, in the case of the claim of an individual who asserts that he is being prosecuted because of an ulterior motive toward him on the part of the prosecutor.

This is not a situation such as the defense of insanity where society has determined that a person should be relieved from penal responsibility in the absence of the requisite mentality. No doubt any defense makes the prosecutor’s task more onerous than attendance in court on a guilty plea. I do not urge any rationale of protecting the prosecutor from the full performance of his duty of prosecuting the guilty. I do recognize, and urge, however, the necessity for not curtailing prosecutorial selectivity in the discharge of that duty. In the nature of human affairs not everyone who has committed a crime will be prosecuted, but as Judge Cummings has pointed out, there is merit in a “sensible enforcement scheme of securing general compliance through prosecution of those who defiantly violate the law in the public eye.”

To subject the prosecutor’s determination to the scrutiny of propriety of the motivation toward the defendant qua individual is indeed to pry the lid from the mythological cask. A few examples will suffice: “I was picked out for prosecution because I am too poor to hire an attorney and although many other people have smoked pot, they are not charged because they are wealthy and can afford top-notch lawyers, who can beat the rap; I was singled out for prosecution because my name is ethnically unorthodox in this community; I got charged because the prosecutor disliked my father, so he grants the other guy immunity to pin the rap on me; and the tax people have never prosecuted for that sort of a thing but they’re after me because they think I got by too easily as to years on which the statute has run.”

I do not purport to conceive all of the ways in which improper motivation might be discovered by ingenious defense counsel. I merely point out that the road is there and it will be utilized. No doubt many will be summarily dismissed as frivolous but the dismissal will itself be another ground for appeal plus the fact that those not dismissed summarily will entail the prosecutor being put to the proof of purity of motivation.

In sum, I do not believe society needs this additional remedy for the guilty. Those who are innocent will not need it. I therefore respectfully dissent.

. United States v. Dotterweich, 320 U.S. 277, 285 , 64 S.Ct. 134 , 88 L.Ed. 48 (1943).

. McCray v. United States, 195 U.S. 27, 55 , 24 S.Ct. 769, 776 (1904).