UNITED STATES OF AMERICA, PETITIONER V. MARK ARDEN SCHMUCKER No. 83-2835 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-10a) is reported at 721 F.2d 1046. The order of the district court denying respondent's motion to dismiss for selective prosecution (App., infra, 19a-23a) is unreported. JURISDICTION The judgment of the court of appeals was entered on November 25, 1983 (App., infra, 11a-12a). A petition for rehearing was denied on March 12, 1984 (App., infra, 13a). On May 2, 1984 Justice O'Connor extended the time for filing a petition for a writ of certiorari to June 10, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether respondent was impermissibly selected for prosecution for violation of the Military Selective Service Act in retaliation for the exercise of his First Amendment rights. 2. Whether respondent was improperly denied the right to an evidentiary hearing on his claim of selective prosecution. STATEMENT Following a jury trial in the United States District Court for the Northern District of Ohio, respondent was convicted of failing to register with the Selective Service, as required by Presidential Proclamation No. 4771, in violation of 50 U.S.C. App. (& Supp. V) 453, 462. He was sentenced under the Youth Corrections Act to three years' probation, conditioned upon serving the first 24 months of the term in community service at a home for the mentally retarded (C.A. App. 10-13). 1. On July 2, 1980, President Carter, acting pursuant to the Military Selective Service Act (50 U.S.C. App. (Supp. V) 453), issued Presidential Proclamation No. 4771 (45 Fed. Reg. 45247 (1980)). The proclamation directed males residing in the United States and born in 1960 to register with Selective Service during the week of July 21, 1980, by filling out a registration form at a local post office (App., infra, 1a-2a). Respondent, a college student born on October 4, 1960, did not do so (Tr. 88, 92, 153, 159, 161-165; C.A. App. 31). Instead, on August 10, 1980, he sent a letter to Selective Service saying that he had "violated the Military Selective Service Act by not registering," explaining that he had refused to do so on the basis of his religious convictions (Tr. 24-25; C.A. App. 24-25). Selective Service received other communications like respondent's which stated that the writers were required to register but had not done so, or that other persons known to the writer were required to register but had failed to do so (Tr. 21). As a result, Selective Service developed a system for processing the communications and attempting to obtain compliance from the alleged nonregistrants whose names had come to its attention. It opened a file on each person whose alleged failure to register had been reported, and after verifying that the person in question had not registered, sent each a letter reminding him of his obligation, requesting that he comply by filling out an enclosed registration card, and warning that failure to comply could result in prosecution (Tr. 21-24, 26-30; C.A. App. 28-29). Although respondent received a copy of the letter and registration form, he failed to reply (Tr. 31-34, 242). On October 21, 1981, respondent's name was transmitted with the names of other nonregistrants to the Department of Justice for possible prosecution. The Department attempted unsuccessfully to obtain his voluntary compliance with the registration requirement through additional correspondence with him (Tr. 35). President Reagan also declared a national grace period between January 7, 1982 and February 28, 1982, during which anyone who was required to register but had not done so could register without fear of prosecution (Tr. 35-36). Again, however, respondent failed to register. On June 22, 1982, respondent was interviewed by an FBI agent. He admitted that he knew he had an obligation to register and that he had failed to do so. He explained that his refusal was designed to "cause the United States Government to be delayed in mobilizing (its) armed forces" by requiring it to expend time investigating and prosecuting his case (Tr. 165). Testifying on his own behalf at trial, respondent again acknowledged that he had knowingly failed to register (Tr. 226, 240-241). He explained that the registration requirement conflicted with his religious beliefs as a member of the Mennonite church, because his registration would "facilitat(e) the efficient mobilization of (the) Armed Forces * * * (and) thus allow the country to prepare for war more easily" (Tr. 223-224). 2.a. Respondent moved before trial to dismiss the indictment on the basis of selective prosecution. He argued that, at the least, an evidentiary hearing and further discovery directed to that issue were warranted. /1/ To support his claim he alleged that, from more than half a million eligible men who had not registered, the government had singled out for prosecution only eight, each of whom either had expressed dissent against draft registration in letters to the government or had publicly denounced the registration law. The motion charged that the selection of these men for prosecution was the result of a policy "intentionally and exclusively based upon information generated through the exercise of First Amendment rights of expression * * * (which) focus(ed) only upon self-identifiers who were exercising the rights to petition the government for redress of grievances as well as protected speech rights" (Mot. to Dismiss for Selective Prosecution No. CR-82-133A (N.D. Ohio Sept. 15, 1982)). To substantiate this charge respondent relied upon statements made in memoranda generated within the Justice Department's Criminal Division. For example, a Mem. from Lawrence Lippe (Chief of the General Litigation and Legal Advice Section) to Assistant Attorney General D. Lowell Jensen (Mar. 19, 1982) explained that the cases referred to the Division by Selective Service consisted of nonregistrants who had reported themselves or who had been reported by others. The memorandum predicted that "the present scheme is liable to result in numerous selective prosecution claims." Although "there will be enormous numbers of nonregistrants who are neither identified nor prosecuted, a prosecution of a vocal non-registrant will undoubtedly result in allegations that the prosecution is brought in retribution for the exercise of the non-registrant's exercise of his first amendment rights" (C.A. App. 42-43; App., infra, 4a). The memorandum noted, however, that although the problem of selective prosecution claims could be avoided by waiting until a method for "active" identification of nonregistrants was developed, further delay in initiating prosecutions would adversely affect the registration scheme. A July 14, 1982 memorandum from Lippe to Jensen stated that, although Selective Service was exploring ways to develop an active enforcement system through the use of Social Security records, and although legislation to permit such a program was pending in Congress, "Selective Service's enforcement program is presently 'passive.' Non-registrants are brought to the Service's attention either when they report themselves or when others report them. Consequently, the first prosecutions are liable to consist of a large sample of (1) persons who object on religious and moral grounds and (2) persons who publicly refuse to register" (C.A. App. 45-46). The government responded to the motion to dismiss by filing affidavits explaining the development and implementation of the prosecution policy. Edward A. Frankle (the Selective Service attorney responsible for the development of its compliance program) explained that Selective Service had adopted a "passive compliance" program. It simply collected names that came to its attention by letters and telephone calls -- some ("slig tly less than half") (C.A. App. 48) from nonregistrants themselves, the others from third parties. After confirmation that an individual was required to register and had failed to do so, a file containing pertinent correspondence was established and his name was entered into a "Suspected Violator Inventory System." On October 21, 1981, after Selective Service had written letters attempting to obtain voluntary compliance, it referred the files of 49 nonregistrants (including respondent), to the Department of Justice for possible prosecution (C.A. App. 49-54). /2/ Frankle's affidavit stated (id. at 54): (Respondent's) case was not given any special attention by Selective Service and he was not specially investigated or individually discussed or specially handled by Selective Service System. Outside of his statements made in his letter to Selective Service, Selective Service had at the time of his referral no knowledge whatsoever of any activities of (respondent) and indeed still (is) unaware of any outside activities. Therefore, he was not referred for possible prosecution because of any antidraft or political activities. He was referred simply because his name came to the attention of Selective Service and upon investigation by letter, it became apparent that he most probably was in violation of the Military Selective Service Act. Frankle went on to say that Selective Service had adopted the passive enforcement program because it was at the time the only means of identifying nonregistrants for which Selective Service had the authority and resources. The agency was trying to implement an "active" program for identifying nonregistrants through the use of Social Security numbers. That program, which had required legislative authorization for the use of Social Security information, was expected to be operating by late 1982 or early 1983 (C.A. App. 55-56). /3/ An affidavit executed 0y David J. Kline (the attorney within the Department of Justice responsible for supervising the administration of the Selective Service Act) stated that between July and October of 1981 he received from Selective Service the files of 183 nonregistrants who had reported themselves or who had been reported by others. /4/ After reviewing the files to determine whether those individuals were in fact required to register, Kline referred the names (including respondent's) to the FBI for further investigation, and to the appropriate United States Attorneys for possible prosecution (C.A. App. 62-64). In June 1982, after checking to see whether any individuals had registered during the Presidential grace period, Kline asked the concerned United States Attorneys to proceed with prosecutions on a priority basis, since any more delay would only encourage further noncompliance (C.A. App. 66-67). Kline concluded by explaining that when respondent's name was referred to the United States Attorney for the Northern District of Ohio, he "knew no more about (respondent) than was contained in the material referred by the Selective Service System." The referral was made "for no reason other than that it appeared that (respondent) had violated federal law by failing to register with the Selective Service System" (C.A. App. 67-68). Finally, affidavits executed by the United States Attorney for the Northern District of Ohio and by the Assistant United States Attorneys responsible for respondent's prosecution stated that, after respondent's file was referred to their office, they alone made the decision to seek an indictment on the basis of its "prosecutive merit" rather than "upon any anti-draft registration activities in which (respondent) might have engaged" (C.A. App. 72-79). /5/ b. The district court denied the motion to dismiss. It also held that, because respondent had failed to make out a prima facie case of selective prosecution, no evidentiary hearing on the issue was warranted (App., infra, 20a). Rejecting respondent's claim that the government had singled out for prosecution only vocal opponents of draft registration, the court observed that neither respondent nor another previously convicted nonregistrant had publicly called attention to his antiregistration views before being indicted. There was therefore no basis for suspicion that the government was pursuing prosecutions in retaliation against those who publicly denounced registration (id. at 20a-21a). The court also found no merit to the claim that it was impermissible to single respondent out for prosecution because he had reported his failure to register in a letter to Selective Service. The fact that the government had prosecuted those who wrote of their intent not to register indicated only a preference for prosecuting strong cases. The court rejected the claim that the government's use of a passive enforcement system was in itself evidence of a discriminatory intent. It observed that respondent's own exhibits showed "that the government is not invidiously preferring passive detection." Instead, it was trying to establish an active system for prosecuting nonregistrants on a random basis. The government properly believed, however, that until the active program could be implemented, immediate prosecutions were necessary to prevent further deterioration of the registration system (App., infra, 22a-23a). 3. The court of appeals reversed (App., infra, 1a-10a). The court began by noting that there were two issues before it (id. at 3a): The first issue * * * is whether the government may prosecute only those who publicly express their conscientious refusal to obey the registration law while leaving aside all who engage in covert refusal to obey and unadvertised evasion of the law. If the answer to that question is no, the second issue is whether we should require an evidentiary hearing on the present record. Concerning the first issue, the court noted that only those who had opposed registration "by letter to the government or public speech" had been prosecuted, and that several Justice Department officials had anticipated such a result (id. at 4a). The court reasoned (ibid.): A prosecutorial policy so limited clearly violates the first amendment. It selects for prosecution only those who speak out against the law. It selects people based on their expression of beliefs and the strength of their convictions. The court rejected the government's argument that respondent was selected for prosecution simply because he had confessed, in his letter, to the commission of a crime. "The government lacks the power," the court said, "to adopt a stated policy of prosecuting people who publicly confess their failure to register in confessions which criticize government policy" (App., infra, 6a). In reaching this result the court expressly rejected the Ninth Circuit's holding in United States v. Wayte, 710 F.2d 1385 (1983), cert. granted, No. 83-1292 (May 29, 1984). Wayte held that evidence virtually identical to that presented by respondent failed to establish impermissible selection based upon the exercise of constitutional rights. According to the court of appeals here, the decision in Wayte had the effect of "'permit(ting) the government to prosecute a citizen because he has spoken out rather than because he has violated the law'" (App., infra, at 9a, quoting 710 F.2d at 1390 (Schroeder, J. dissenting)). Having concluded that such a policy, if proven, would violate the First Amendment, the court found it unnecessary to discuss at length the right to a hearing. It merely stated: "The government seems to agree for purposes of argument that (respondent) may be able to show at an evidentiary hearing that prosecution is limited to dissenters who publicly confess their resistance to the registration law" (App., infra, at 3a-4a). /6/ Because such a showing would -- in the court's view -- prove the claim of selective prosecution, respondent was entitled to a chance to make it. The court remanded the case to the district court for that purpose (id. at 10a). The court denied the government's petition for rehearing (App., infra, 13a). Judge Wellford dissented (id. at 14a-18a). REASONS FOR GRANTING THE PETITION This case presents two closely related issues (one substantive and one procedural), on which the courts of appeals are divided, concerning the exercise of prosecutorial discretion in the enforcement of the Selective Service law. The substantive issue is whether it is permissible for the government to focus investigation and prosecution on those who have admitted to Selective Service their failure to comply with the draft registration law, or whose failure to register has been reported by others. This issue is now before the Court in Wayte v. United States, cert. granted, No. 83-1292 (May 29, 1984). The procedural issue is whether a defendant who offers evidence that the government has pursued such an enforcement policy is entitled to an evidentiary hearing on the issue of selective prosecution. 1. The court of appeals' holding on the substantive issue of selective prosecution conflicts with the Ninth Circuit's decision in United States v. Wayte, supra. /7/ It also conflicts with the Eighth Circuit's later en banc decision in United States v. Eklund, No. 82-2505 (May 4, 1984). The court there held, on the same facts relied upon by respondent, that "Eklund has not shown that his prosecution flowed from a motive on the part of the government to prosecute him on the basis of the exercise of First Amendment rights. Indeed, First Amendment values were not threatened, implicated, or involved in his prosecution" (slip op. 15). For the reasons stated in our brief in Wayte, we believe that the court of appeals here erred, and that the Eighth and Ninth Circuits correctly decided the merits of the issue of selective prosecution. Since this Court has granted the petition in Wayte on this issue, however, it should defer consideration of the same question in this case pending its decision in Wayte. 2. a. Whatever the standard may be for proving the substantive issue of selective prosecution, there is in each case an additional question whether the defendant has alleged or shown sufficient facts to warrant holding an evidentiary hearing on such a claim. The court of appeals here did not engage in any extended discussion of that procedural issue. It did not, for example, state what threshold test might be used to identify claims that warrant further inquiry. The court did point out that "(respondent) claims, and apparently the government does not deny, that of the approximately half million young men who have failed to register for the draft, only thirteen had been indicted by November, 1982, each of whom had expressed his opposition to the law by letter to the government or public speech" (App., infra, 4a). The court also found significant Lippe's March 19, 1982 memo to Jensen, particularly its statement that prosecution of a "'vocal nonregistrant will undoubtedly result in allegations that the prosecution is brought in retribution for the nonregistrant's exercise of his first amendment rights'" (ibid.). Finally, the court noted, "(t)he government seems to agree for purposes of argument that (respondent) may be able to show at an evidentiary hearing that prosecution is limited to dissenters who publicly confess their resistance to the registration law" (id. at 3a-4a). But see note 6, supra. Again, the court's decision on this procedural issue conflicts with the decision in United States v. Eklund, supra. The Eighth Circuit there held, on the basis of the same evidence, that the defendant had failed to make the requisite threshold showing for an evidentiary hearing. See also United States v. Wayte, 710 F.2d at 1388 (holding a similar factual proffer insufficient to warrant discovery of government documents). Although the courts of appeals have stated the threshold test for an evidentiary hearing on selective prosecution in somewhat differing terms, they all agree that the defendant must make at least some showing that the elements of the defense can be established. /8/ Those elements are: (1) that the defendant was singled out for prosecution while other similarly situated offenders were not; and (2) that the selection was based upon an impermissible ground, such as a desire to punish the defendant for exercising his right to free speech. United States v. Eklund, slip op. 4 (quoting United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978)). In this case respondent made no showing that others similarly situated were not prosecuted. The government did concede, as the court of appeals noted, that only a few of the large number of nonregistrants had been indicted. But there was no indication that the government failed to prosecute anyone whose name and address came to its attention and who thereafter persisted in a refusal to register when asked to do so. On the contrary, as the Eighth Circuit noted in Eklund, "(o)nce (an) individual's name came to the government's attention the prosecutive mechanism was engaged" (slip op. 9). Moreover, "the uncontradicted evidence show(ed) that the government embarked on a long-range program to identify offenders, both vocal and silent, and prosecute them" (id. at 8). Nor did respondent introduce any evidence tending to show that his prosecution was motivated by a desire to punish him for his exercise of First Amendment rights. Indeed, as the district court pointed out (App., infra, 21a), nothing in respondent's "briefs (or) exhibits suggest(ed)" that he had ever "publicly called attention to (his) non-registration prior to (his) indictment." The only communication in which respondent's views appeared was his letter to Selective Service. Lippe's March 19, 1982 memo, on which the court of appeals relied, gives no indication that the government wished to punish the writers of such letters. And it is utterly implausible to suppose that the government adopted a policy designed to retaliate against or discourage that form of communication, which only made its job of securing convictions easier while in no way discouraging others from registering. There are substantial reasons for requiring a far more convincing showing than respondent made on these issues before holding an evidentiary hearing on a claim of selective prosecution. As the Second Circuit explained in United States v. Moon, 718 F.2d 1210, 1230 (1983), cert. denied, No. 83-1242 (May 14, 1984): (T)o engage in a collateral inquiry respecting prosecutorial motive, there must be more than mere suspicion or surmise. If a judicial inquiry into the government's motive for prosecuting could be launched without an adequate factual showing of impropriety, it would lead far too frequently to judicial intrusion on the power of the executive branch to make prosecutorial decisions. Unwarranted judicial inquiries would also undermine the strong public policy that resolution of criminal cases not be unduly delayed by litigation over collateral matters. b. There are a number of significant questions concerning a defendant's entitlement to an evidentiary hearing on the issue of selective prosecution, and the scope of such a hearing, that have not been addressed by this Court. These include the nature of the threshold showing a defendant must make in order to obtain a hearing (see note 8, supra); whether the threshold should be higher when the government has offered a nondiscriminatory explanation of its policy through affidavits from the responsible government officials; and whether, when a hearing is granted, the government can be compelled to produce senior executive branch officials even after an explanation of its prosecution policy has been presented through other testimony. See United States v. Wayte, 710 F.2d at 1388. In this case, as we have noted, the court of appeals said little about the requisite threshold showing. The court also provided no guidance about what additional evidence respondent should be permitted to discover and adduce at the evidentiary hearing. Nor did it specify, given its view of applicable law, what evidence the government could present to disprove respondent's claim. In fact, in light of the court's holding that the government may not prosecute those who criticize government policy while confessing their failure to register, it is difficult to imagine how the district court could ultimately do anything other than dismiss the indictment. This case may thus not be the most appropriate vehicle for plenary consideration of the procedural issues attendant upon the right to a hearing. This is especially true since either affirmance or reversal of the Ninth Circuit's decision in Wayte will lamost certainly obviate the need for any kind of hearing to resolve the selective prosecution claims of respondent and other similarly situated defendants in prosecutions for failure to register. For these reasons we suggest that the Court may wish to defer consideration of this issue as well, pending its decision of the substantive question presented in Wayte. CONCLUSION The Court should defer consideration of the petition and dispose of it as appropriate in light of its decision in Wayte v. United States, No. 83-1292. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General JOHN H. GARVEY Assistant to the Solicitor General JOHN F. DE PUE Attorney June 1984 /1/ Respondent did not specify what evidence he desired to develop during an evidentiary hearing, nor did he seek to subpoena any government officials responsible for enforcement of the registration law. Compare United States v. Wayte, 710 F.2d 1385, 1387 (9th Cir. 1983), cert. granted, No. 83-1292 (May 29, 1984). Two weeks later, however, respondent filed a "Motion to Compel Discovery" seeking additional materials to support his selective prosecution claim. The motion sought production of the files of all nonregistrants referred by Selective Service for prosecution; the study and report of the Presidential Military Manpower Task Force concerning the registration program; and all communications among government agencies -- including Selective Service, the Presidential Military Manpower Task Force, the Department of Justice, the Department of Defense, and the White House Staff -- regarding prospective prosecutions for failure to register (Mot. to Compel Discovery, No. CR-82-133A (N.D. Ohio, Sept. 27, 1982)). /2/ This was the second group of referrals. The affidavit explained that other names had been sent earlier under the same system. /3/ On December 1, 1981 Congress enacted legislation authorizing the President to require the Department of Health and Human Services to furnish Social Security data to the Director of Selective Service to assist in the enforcement of the registration law. See 50 U.S.C. App. (Supp. V) 462(e). Six additional months elapsed before the two agencies worked out the necessary implementing details. Although arrangements were made with the Department of Health and Human Services for use of Social Security data by June 1982, it turned out that current addresses of nonregistrants could be obtained only from the Internal Revenue Service. The IRS declined to divulge that information, believing that disclosure would violate 26 U.S.C. 6103. IRS has, however, sent notices from Selective Service to identified nonregistrants advising them that they should register or face possible prosecution. Once it became clear that "active" enforcement of the registration law could not depend on the use of Social Security data, Selective Service began negotiations with state departments of motor vehicles for the names and addresses of eligible men in driver's license files. The first referrals of nonregistrants by Selective Service to the Department of Justice arising from that system occurred in February 1983. To date more than 100,000 names have been referred to the Department of Justice under that system. The Department has randomly selected 428 of the persons identified for investigation and prosecution. To date there have been no prosecutions, however, because each time a nonregistrant is given (as respondent was) the choice of registering or being prosecuted, he has chosen to register. /4/ Kline received 134 of the files in July 1981. He received a second group of 49 files, including respondent's, on October 21, 1981 (C.A. App. 62, 64). /5/ The affidavit of one of the prosecutors stated that, before seeking an indictment, he had contacted respondent and sought to convince him to reconsider his decision, and to apply for conscientious objector status should the draft be reinstituted. Respondent replied that he could not do so, since conscientious objectors "were controlled by the military" (C.A. App. 77-78). /6/ This statement is inaccurate in two ways. In the first place, as Lippe's memos and Frankle's and Kline's affidavits show, the government's "passive" prosecution policy was never limited to self-proclaimed nonregistrants. Selective Service also referred for prosecution, and the Department of Justice processed, individuals whose alleged failure to register was reported by third parties. In the second place it is wrong to assume that nonregistrants who report their criminal conduct to the government are ipso facto "vocal" nonregistrants who have "publicly confess(ed) their resistance to the registration law." As the district court pointed out (App., infra, 21a): neither (respondent), nor previously convicted Enten Eller, publicly called attention to their non-registration prior to their indictments. Rather, the notoriety surrounding their cases appears to have come only as a result of the government's prosecution. A thorough examination of (respondent's) briefs and exhibits suggests nothing else. The only clue regarding (respondent's) pre-indictment public posture has come to this Court's attention through the extrajudicial source of a local newspaper article published on or about the date of his indictment, in which (respondent) was described as "soft spoken" and "uneasy at the center of attention." He was quoted as indicating that he is unaccustomed to publicity. We assume, however, that the court of appeals was aware of these factual difficulties with its view of the case and found them immaterial. They were noted both by the district court (ibid.), and by Judge Wellford, dissenting from the denial of rehearing en banc (id. at 17a). They were also fully briefed on appeal. See, e.g., Appellee's C.A. Br. 37 n.13, 39 n.14. /7/ We noted this conflict in our brief acquiescing in the petition in Wayte, 83-1292 Gov't Br. 14. We have provided counsel for respondent with a copy of our brief in Wayte. /8/ See, e.g., United States v. Ross, 719 F.2d 615, 619-620 (2d Cir. 1983); United States v. Moon, 718 F.2d 1210, 1229-1230 (2d Cir. 1983), cert. denied, No. 83-1242 (May 14, 1984); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir. 1976). For some examples of statements of the applicable threshold test, see United States v. Jennings, 724 F.2d 436, 445 (5th Cir. 1984) (evidentiary hearing required only when defendant presents facts "'sufficient to create a reasonable doubt about the constitutionality of a prosecution'"; no evidence presented showing prosecution motivated by impermissible considerations); United States v. Hazel, 696 F.2d 473, 475 (6th Cir. 1983) (defendant entitled to evidentiary hearing only uhen "prima facie showing (of selective prosecution) has been made and the defendant has proven a 'colorable entitlement' to dismissal"); United States v. Brown, 591 F.2d 307, 311-312 (5th Cir. 1979) (defendant must prove a "'colorable entitlement'" to the defense; defendant failed to make the requisite prima facie showing); United States v. Catlett, 584 F.2d 864, 866-868 (8th Cir. 1978) (evidentiary hearing required only when motion alleges sufficient facts to take the question of selective prosecution past the frivolous stage; defendant failed to establish such a prima facie case); United States v. Erne, 576 F.2d 212, 216 & n.4 (9th Cir. 1978) (defendant entitled to an evidentiary hearing when he alleges sufficient facts to take the question past the frivolous stage; here defendant alleged insufficient facts to show that the government's conduct uas motivated by exercise of First Amendment rights); United States v. Peskin, 527 F.2d 71, 86 (7th Cir. 1975) (defendant must present facts sufficient to raise a "'reasonable doubt about the prosecutor's purpose'"; defendant failed to make a colorable souing that prosecution was undertaken with a motive to suppress dissent); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973) (defendant must establish "colorable entitlement" to the defense). APPENDIX