The opinion of the court was delivered by: SNYDER
The defendant in this proceeding has filed a Motion to Dismiss, a Motion for Bill of Particulars, and a Motion for Discovery. These matters will be discussed and disposed of in that order. At the outset it is necessary to state that the Motion to Dismiss must be denied.
The Indictment in this case charges that on or about the twelfth day of March, 1970, the defendant being a registrant under the Military Selective Service Act of 1967, wilfully and knowingly failed to perform the duty required of him by the Act and the regulations and directions issued pursuant thereto to keep his local draft board advised of his correct and current address, in violation of Title 50 Appendix, United States Code § 462(a).
The Indictment was returned on October 16, 1973. The defendant plead Not Guilty and then filed the Motions as hereinabove set forth.
Through court appointed counsel, the defendant outlined as the basis of the Motion to Dismiss that he was the victim of selective, intentional and discriminatory prosecution in violation of defendant's right to equal protection of the law. It was further stated in the motion, and admitted by the Government, that about June 10, 1970, an indictment was returned by the Grand Jury charging this same defendant with failing to comply with an order of his local draft board to report for, and submit to, an armed forces physical examination. About October 16, 1973 the Government elected not to pursue the Indictment of April 16, 1973 and the United States Attorney informed this Court at the argument that the reason therefore was due to the recent decision of the Third Circuit in United States v. Belgrave, 484 F.2d 915 (3rd Cir. filed August 21, 1973). The holding of the Belgrave case is that the Government must be able to establish proof of actual delivery of the order of the local board to report for, and submit to, an armed forces physical examination. The Government could not prove such actual delivery in the Indictment at Criminal No. 70-177, although the order to report for physical examination was addressed to Yingling's home and had not been returned; the Government then elected not to prosecute that case further. Instead, on October 16, 1973, the Government sought and secured a True Bill on the offense of failing and neglecting to keep his local draft board advised of his correct and current address. A hearing was held on the Motion to Dismiss, as well as the other motions, on November 20, 1973 at which time the above facts were stipulated.
The same attorney who represented the defendant on the previous indictment, and convinced the Government of the weakness of its position under the Belgrave decision, now suggests that this Court should dismiss the present indictment because the defendant is a victim of selective, intentional and discriminatory prosecution since the Government had knowledge in March of 1970 of the acts which form the basis of the second indictment and did not indict the defendant for failing to keep his local board informed of his correct and current address until almost four years later; the defendant was indicted at the subsequent indictment solely because he successfully "defended the indictment at Criminal No. 70-177, and thereby exercised his Fifth and Sixth Amendment rights" (It must be pointed out that this contention is made even though the Government dropped the first indictment.); that the defendant is being unconstitutionally penalized for his willingness and ability to present a defense to the indictment at Criminal No. 70-177; that the Government presently has knowledge of many registrants whose only offense is that they failed to notify their local boards of their correct and current addresses, and that these registrants are not subject to prosecution in that the Government has an avowed policy of not indicting registrants for only "minor infractions" of the Military Selective Service Act of 1967; that the Government presently has knowledge of many registrants who are identically situated (except for the fact that the defendant has attempted to defend himself against the prosecution brought by the Government) and who failed to keep their local boards informed of their correct and current addresses but are not subject to prosecution in that the Government has an avowed policy of not indicting registrants for these minor infractions; that the Government is attempting to punish and stifle the defendant's Fifth and Sixth Amendment rights to defend himself, by indicting him for failure to keep his local board informed of his correct and current address solely because of his willingness and ability to present a defense to the Indictment at No. 70-177 and; that the defendant would not have been indicted at Criminal No. 73-275 (the current Indictment) except for the fact that he presented a defense to the Indictment at Criminal No. 70-177.
In addition, it is alleged that the defendant has been denied equal protection of the law in that "the Military Selective Service Act of 1967, as amended, requires that only males, not females, to keep the local board informed of their current and correct address."
The contentions of the defendant's counsel were set forth at some length in order to illustrate the unusual nature of the contentions and to show clearly why they must be dismissed.
The Fourteenth Amendment prohibits any State from taking an action which would "deny to any person within its jurisdiction the equal protection of the laws." This prohibition is applicable to the Federal Government through the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954); Washington v. United States, 130 U.S. App. D.C. 374, 401 F.2d 915, 922 (1968). As early as Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S. Ct. 1064, 1073, 30 L. Ed. 220 (1886), it has been recognized that the promise of equal protection of the laws not only means the enactment of fair and impartial legislation, but also extends to the application of these laws. In addition, the underlying principle is certainly applicable to the actions of prosecutors and police officials. Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582, 588, 81 S. Ct. 1135, 6 L. Ed. 2d 551 (1961); Shock v. Tester, 405 F.2d 852, 855 (8th Cir. 1969); Moss v. Hornig, 314 F.2d 89, 92-93 (2nd Cir. 1963).
While there is some indication that in Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 506, 7 L. Ed. 2d 446 (1962) that, at least, selection based upon an unjustifiable standard such as race, religion, or other arbitrary classification, would be a basis for federal constitutional violation, this Court is also of the opinion that Oyler does not preclude the granting of relief if there is intentional or purposeful discrimination against an individual. Cf. Furman v. Georgia, 408 U.S. 238, 257, 293, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944).
In the instant case, it is noted that the primary contention of the defendant seems to be that he presently stands indicted because he successfully defended a previous indictment and is now being additionally penalized for his willingness and ability to present a defense to the former indictment. However, the only basis for such a charge apparently is that the Government had a policy of not indicting registrants for minor infractions, such as failure to keep the board informed. It is interesting to note that the defendant's counsel indicates the very reason why prosecutions of this type occur, even if now commenced for the first time as the defendant alleges, is because of the effect of the Belgrave decision. Therefore, this Court is of the opinion that even if all of the facts were proven as set forth by the defendant, his motion would still be denied.
It is also interesting that the defendant places great stress on the case of United States v. Falk, 479 F.2d 616 (7th Cir. 1973). It would seem to this Court that the reliance on this case is completely misplaced. Circuit Judge Sprecher, speaking for the majority of the Court en Banc held that (Page 620):
"The presumption is always that a prosecution for violation of a criminal law is undertaken in good faith and in nondiscriminatory fashion for the purpose of ...