Wayte v. United States, 470 U.S. 598 (1985)

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

The Court decides today that petitioner "has not shown that the Government prosecuted him because of his protest activities," and it remands to permit his prosecution to go forward. However interesting the question decided by the Court may be, it is not necessary to the disposition of this case. Instead, the issue this Court must grapple with is far less momentous but no less deserving of thoughtful treatment. What it must decide is whether Wayte has earned the right to discover Government documents relevant to his claim of selective prosecution.

The District Court ordered such discovery, the Government refused to comply, and the District Court dismissed the indictment. The Court of Appeals reversed on the grounds that Wayte had failed to prevail on the merits of his selective prosecution claim, and that the discovery order was improper. If Wayte is entitled to obtain evidence currently in the Government’s possession, the Court cannot dismiss his claim on the basis of only the evidence now in the record. To prevail here, then, all that Wayte needs to show is that the District Court applied the correct legal standard, and did not abuse its discretion in determining that he had made a nonfrivolous showing of selective prosecution entitling him to discovery.

There can be no doubt that Wayte has sustained his burden. Therefore, his claim cannot properly be dismissed at this stage in the litigation. I respectfully dissent from this Court’s decision to do so.

I

In order to understand the precise nature of the legal question before this Court, it is important to review in some detail the posture in which this case comes to us. In July, 1982, an indictment filed in the District Court for the Central District of California charged Wayte with knowingly and willfully failing to register for the draft. In September, 1982, Wayte moved to have the indictment dismissed on the ground of selective prosecution.

In support of his claim, he presented 10 exhibits: 7 internal Justice Department memoranda discussing the mechanism for the prosecution of individuals who failed to register for the draft, a report by the United States General Accounting Office discussing alternatives to the registration program, a statement by the Director of Selective Service before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Committee, and a transcript of a meeting of the Department of Defense’s Military Manpower Task Force. According to Wayte, this evidence supported his claim that the Government had designed a prosecutorial scheme that purposefully discriminated against those who had chosen to exercise their First Amendment right to oppose draft registration. Wayte argued that he had demonstrated sufficient facts on his claim of selective prosecution to be entitled to an evidentiary hearing on that issue. In this regard, Wayte moved to discover a variety of Government documents that he asserted were relevant to his selective prosecution claim, and indicated his intention to subpoena seven out-of-district witnesses, including Edwin Meese III, the Counsellor to the President.

On September 30, 1982, the District Court found that the motion to dismiss the indictment on the ground of selective prosecution was "non-frivolous." The following day, it held a hearing in which the parties presented their disagreements over Wayte’s discovery requests. The District Court granted some of Wayte’s requests, denied others, and ordered the Government to submit some documents for in camera inspection. At a hearing on October 5, the District Court denied the Government’s motion for reconsideration of the discovery order and postponed ruling on the requested subpoenas until after a preliminary evidentiary hearing on Wayte’s selective prosecution claim.

This hearing was held on October 7. Two witnesses testified: David J. Kline, a Senior Legal Advisor at the Justice Department’s Criminal Division, and Richard Romero, an Assistant United States Attorney in the Central District of California and the principal prosecutor in Wayte’s case. Kline’s testimony dealt extensively with the Justice Department’s policies for prosecuting individuals who violated the draft registration statute.

At a nonevidentiary hearing on October 15, the District Court ruled that portions of three of the many documents that had been submitted in camera should be turned over to the defense. The three documents in question had previously been given to the defense in expurgated fashion. As to certain parts of them, however, the District Court determined that the defense’s need for the still undisclosed materials outweighed the Government’s interest in nondisclosure. Specifically, the District Court ordered disclosure of two sentences and one paragraph in one letter, and one paragraph in each of two memoranda. The District Court also indicated that some of the documents submitted for in camera review had been redacted in a manner that made them incomprehensible.

The Government was less than eager to comply with the District Court’s order of October 15. The Government’s response to that order indicated, in a paragraph that was later stricken at the Government’s request following an admonishment by the District Court:

It is obvious that the Court’s appetite for more and more irrelevant disclosures of sensitive information has become insatiable. It is also apparent that, with each new disclosure, made pursuant to near-impossible deadlines, the court feels compelled to impugn the motives of the Government.

Record, Doc. No. 95, p. 3. The Government invoked a "deliberative processes" privilege for documents that it had turned over to the District Court for in camera review. It also refused to allow Meese’s testimony on the ground that all information on which he could testify was privileged.

The saga continued on October 20, when the District Court ordered the production, for in camera review, of unredacted versions of documents that had previously been submitted in redacted form. The Government eventually complied with that order.

On October 29, the District Court ordered that certain portions of those documents be turned over to the defense. The list of documents was kept under seal. The District Court applied the standard for determining whether an assertion of executive privilege is valid announced in United States v. Nixon, 418 U.S. 683, 711 (1974). The court determined:

Applying the balancing test from Nixon to the facts, this court finds that the scales of justice tip decidedly in favor of the defendant’s right to review several of the documents which this court has inspected in camera. The Government’s generalized assertion of a "deliberative process" executive privilege must yield to the defendant’s specific need for for documents, which this court has determined must be released to Mr. Wayte.

Record, Doc. No. 119, p. 5.

In the same order, the District Court also granted Wayte’s request that Meese be ordered to testify at an evidentiary hearing. In this connection, the District Court made a series of findings: (1) that the Government’s normal prosecutorial policies were not being followed for the prosecution of nonregistrants; (2) that Meese served as a nexus between the White House and the Justice Department on this issue; and (3) that Meese had been directly involved in decisions involving the Government’s prosecutorial policies toward nonregistrants. It therefore determined that his testimony was relevant to Wayte’s claim.

The Government refused to comply with the District Court’s order of October 29. It explained:

[I]t is our position that important governmental interests are at stake in connection with our claim of privilege, which we sincerely believe have not been shown to be overridden in this case. Nor can we concur in the Court’s conclusion that a sufficient basis has been established to justify requiring the appearance and testimony of an official as senior as the Counsellor to the President. Contrary to the Court’s finding in its Order of October 29, 1982, we believe that the record amply demonstrates that decisions relating to the prosecution of nonregistrants were made within the Department of Justice, and that there is, therefore, no nexus between the White House and the selection of the defendant for prosecution.

Record, Doc. No. 123, p. 3.

The District Court held its last hearing on this matter on November 15. In an order and opinion filed that day, the District Court dismissed Wayte’s indictment. 549 F.Supp. 1376 (1982). It found, first, that Wayte had alleged sufficient facts on his selective prosecution claim "to take the question beyond the frivolous stage," id. at 1379 (citing United States v. Erne, 576 F.2d 212, 216 (CA9 1978)), and thus had earned the right to discover relevant Government documents. Second, it found that the Government had refused to comply with the discovery order of October 29, and that it was the Government’s position that

the only way to achieve appellate review of the Government’s assertion of executive privilege is for the court to dismiss the indictment against the defendant.

549 F.Supp. at 1378-1379; see Alderman v. United States, 394 U.S. 165, 181 (1969) ("[D]isclosure must be made even though attended by potential danger to the reputation or safety of third parties or to the national security -- unless the United States would prefer dismissal of the case to disclosure of the information").

Having made these findings, the District Court turned to the merits of Wayte’s underlying claim. It found that Wayte had gone beyond satisfying the standard for obtaining discovery, and that he had in fact made out a prima facie case of selective prosecution. 549 F.Supp. at 1379-1380. As a result, the burden shifted to the Government to prove that its policy was not based on impermissible motives. The District Court found that the Government had failed to rebut Wayte’s prima facie case. Id. at 1382-1385.

On appeal to the Court of Appeals for the Ninth Circuit, the Government conceded that

[t]he event that triggered dismissal for selective prosecution was the government’s declination, following the surrender of Presidential documents to the court, to comply with orders directing that certain of these documents be furnished to the defense and that Presidential Counsellor Edwin Meese be made available as a witness.

Brief for United States in No. 82-1699 (CA9), p. 42. The Government gave two reasons for its refusal to comply with the District Court’s order. First, it maintained that Wayte "did not even meet the colorable basis test so as to trigger a discovery obligation on the part of the government." Id. at 44. Second, it argued that Wayte had not shown that he had a particularized need for the privileged materials that was sufficiently substantial to outweigh the asserted need to preserve confidentiality. Id. at 45. The Government acknowledged that the District Court had applied the correct standard for evaluating claims of privilege -- that set out in United States v. Nixon, supra. The Government, however, disagreed with the manner in which the District Court had weighed the relevant factors.

In his brief to the Ninth Circuit, Wayte argued that one independent basis for the dismissal of the indictment was that the Government had refused to comply with the District Court’s lawful discovery orders. Brief for Appellee in No. 82-1699 (CA9), pp. 20-31. Wayte’s brief clearly stated that "the indictment could properly have been dismissed on that basis alone." Id. at 20. In this connection, Wayte argued that he had alleged sufficient facts to take his selective prosecution claim beyond the frivolous stage, that the District Court’s orders concerned materials that were relevant to that claim, that the propriety of discovery orders must be reviewed under an abuse of discretion standard, that the District Court had not abused its discretion in ordering discovery in this case, and that the District Court properly rejected the Government’s claim of privilege.

A divided panel of the Court of Appeals for the Ninth Circuit reversed the dismissal of Wayte’s indictment. 710 F.2d 1385 (1983). Writing for the majority, Judge Wright focused primarily on the merits of the underlying selective prosecution claim. He concluded that, on the record before the court, Wayte had failed to show that he was selected for prosecution "because of his exercise of his constitutional rights." Id. at 1387.

The Court of Appeals dealt with the Government’s failure to comply with the discovery order in only one brief paragraph:

Because Wayte made no initial showing of selective prosecution, he was not entitled to discovery of government documents. That access to the documents might have been helpful to him does not, in itself, entitle him to discovery. The government’s refusal to comply with the discovery orders was justified.

Id. at 1388 (citations omitted).

In an unsuccessful petition for rehearing, Wayte argued that the majority had overlooked the standard of review applicable to trial court discovery orders. Pet. for Rehearing and Suggestion of Appropriateness of Rehearing en Banc in No. 82-1699 (CA9), pp. 8-10. Wayte renewed his selective prosecution arguments before this Court. See Pet. for Cert. 9-12; Tr. of Oral Arg. 9-11.

II

A

This streamlined account of the stormy proceedings below makes clear that, from a legal perspective, this case is first and foremost a discovery dispute. If the District Court correctly resolved the discovery issue, Wayte was entitled to additional evidence. And if he was entitled to additional evidence, the Court cannot reject his claim on the merits, on the basis of only the evidence to which Wayte had access at the time of the District Court proceedings.{1}

The question of whether the discovery order was appropriate breaks down into three narrower inquiries. The first is whether Wayte made a sufficient showing of selective pros ecution to be entitled to any discovery. The second is whether the documents and testimony ordered released were relevant to Wayte’s selective prosecution claim, that is, whether the scope of discovery was appropriate. The third is whether Wayte’s need for the materials outweighed the Government’s assertion of executive privilege. The Court of Appeals dealt with only the first of these questions, finding that an adequate showing had not been made. Thus, if that decision is incorrect, the proper disposition of this case is a remand to the Court of Appeals for a determination of the second and third questions. Certainly this Court is in no position to perform those inquiries, as the documents at stake, which were submitted to the District Court for in camera review, are not before us.

B

A two-part inquiry leads to the resolution of the narrow discovery question before this Court: (1) what showing must a defendant make to obtain discovery on a claim of selective prosecution, and (2) under what standard does an appellate court review a district court’s finding that the required showing was made.

The Courts of Appeals have adopted a standard under which a defendant establishes his right to discovery if he can show that he has a "colorable basis" for a selective prosecution claim. See, e.g., United States v. Murdock, 548 F.2d 599, 600 (CA5 1977); United States v. Cammisano, 546 F.2d 238, 241 (CA8 1976); United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974); United States v. Berrigan, 482 F.2d 171, 181 (CA3 1 973). To make this showing, a defendant must allege sufficient facts in support of his selective prosecution claim "to take the question past the frivolous state." United States v. Hazel, 696 F.2d 473, 475 (CA6 1983); United States v. Erne, 576 F.2d at 216. In general, a defendant must present "some evidence tending to show the existence of the essential elements of the defense." United States v. Berrios, supra, at 1211.

This standard, which the District Court applied in this case, is consistent with our exhortation that

[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.

United States v. Nixon, 418 U.S. at 709. It also recognizes that most of the relevant proof in selective prosecution cases will normally be in the Government’s hands. Cf. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962). At the same time, the standard adequately protects the Government from attempts by the defense to seek discovery as a means of harassment or of delay. See United States v. Murdock, supra, at 600.

With respect to the second determination, which concerns the appropriate scope of review, there is no doubt that trial judges should enjoy great deference in discovery matters. District court decisions on discovery are therefore not subject to plenary review on appeal, but are instead reviewed under an abuse of discretion standard. As we stated in United States v. Nixon:

Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court, since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with [Federal Rule of Criminal Procedure] 17(c).

418 U.S. at 702. The abuse of discretion standard acknowledges that appellate courts in general, and this Court in particular, should not expend their limited resources making determinations that can profitably be made only at the trial level. Cf. Anderson v. Bessemer City, ante at 573-576; Florida v. Rodriguez, 469 U.S. 1, 12 (1984) (STEVENS, J., dissenting).

The Court of Appeals below, however, did not even mention the appropriate standard of review, much less explain how to apply it. To the extent that its conclusory statements shed any light on the basis for its decision, it appears that the Court of Appeals performed a de novo inquiry. Such review is especially inappropriate in this case, given the painstaking care that the District Court took in supervising the discovery process, and the narrowly tailored scope of its rulings.

III

The proper starting point, then, is to consider whether the District Court abused its discretion in determining that Wayte had presented sufficient facts to support a nonfrivolous claim of selective prosecution. I believe that the District Court acted well within the scope of its discretion.

To evaluate the merit of Wayte’s claim, I consider the elements of a prima facie case of selective prosecution and ascertain whether Wayte has made a nonfrivolous showing as to the existence of these elements. It is important to bear in mind at this stage that Wayte need not have made out a full prima facie case in order to be entitled to discovery. A prima facie case, of course, is one that, if unrebutted, will lead to a finding of selective prosecution. It shifts to the Government the burden of rebutting the presumption of unconstitutional action. See Rose v. Mitchell, 443 U.S. 545, 565 (1979); Duren v. Missouri, 439 U.S. 357, 368 (1979); Castaneda v. Partida, 430 U.S. 482, 495 (1977); Alexander v. Louisiana, 405 U.S. 625, 631-632 (1972). But a defendant need not meet this high burden just to get discovery; the standard for discovery is merely nonfrivolousness.

Moreover, Wayte need not convince this Court, as he had no need to persuade the Court of Appeals, that it would have made a finding of nonfrivolousness itself if it had sat as a finder of fact. All that he needs to show is that the District Court’s finding of nonfrivolousness did not constitute an abuse of discretion. See United States v. Cammisano, 546 F.2d at 242; United States v. Berrios, 501 F.2d at 1211-1212. I turn, then, to consider whether a sufficient showing was made.

The Court correctly points out that Wayte’s selective prosecution claims must be judged according to ordinary equal protection standards. Ante at 608; see Oyler v. Boles, 368 U.S. 448, 456 (1962); Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). Wayte presents an equal protection challenge to the "passive" enforcement system, under which Selective Service refers to the Justice Department for further investigation and possible prosecution only the

names of young men who fall into two categories: (1) those who wrote to Selective Service and said that they refused to register and (2) those whose neighbors and others reported them as persons who refused to register.

App. 239. Wayte argues that the scheme purposefully singled out these individuals as a result of their exercise of First Amendment rights. See Brief for Appellee in No. 82-1699 (CA9), pp. 3-8, 11-20.

To make out a prima facie case, Wayte must show first that he is a member of a recognizable, distinct class. Second, he must show that a disproportionate number of this class was selected for investigation and possible prosecution. Third, he must show that this selection procedure was subject to abuse or was otherwise not neutral. Castaneda v. Partida, supra, at 494. The inquiry then is whether Wayte has presented sufficient evidence as to each of the elements to show that the claim is not frivolous.

Wayte has clearly established the first element of a prima facie case. The record demonstrates unequivocally that Wayte is a member of a class of vocal opponents to the Government’s draft registration program. All members of that class exercised a First Amendment right to speak freely and to petition the Government for a redress of grievances, and either reported themselves or were reported by others as having failed to register for the draft.

To establish the second element, Wayte must show that the "passive" enforcement policy identified for investigation and possible prosecution a disproportionate number of vocal opponents of draft registration. The record, as it stands given the Government’s refusal to comply with the District Court’s discovery order, does not contain a breakdown of how many of the approximately 300 young men referred by Selective Service to the Justice Department were "vocal." However, the record suggests that responsible officials in the Justice Department were aware that the vast majority of these individuals would be vocal opponents of draft registration.

For example, a draft letter prepared by David J. Kline, the Justice Department official responsible for overall enforcement of the draft registration law, for Assistant Attorney General Jensen to send to Herbert C. Puscheck, Selective Service’s Associate Director for plans and operations, stated:

Unfortunately, we believe that, if the government initiates prosecutions with only the present passive identification scheme in place, there exists a real risk that the United States will lose at least a few of those initial cases. There is a high probability that persons who write to the Service and that persons who are reported by others are vocal proponents of non-registration. Since a passive identification scheme necessarily means that there will be enormous numbers of non-registrants who are neither identified nor prosecuted, a prosecution of a vocal nonregistrant will undoubtedly lead to claims that the prosecution is brought in retribution for the nonregistrant’s exercise of his first amendment rights. Indeed, with the present univers[e] of hundreds of thousands of nonregistrants, the chances that a quiet nonregistrant will be prosecuted is probably about thesame as the chances that he will be struck by lightning.

App. 290-291 (emphasis added; citation omitted). Similarly a memorandum from Jensen to various United States Attorney’s Offices states:

Selective Service’s enforcement program is presently "passive." Nonregistrants 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.

Id. at 361-362.

Perhaps, by itself, this evidence would not suffice to establish the second element of a prima facie case. However, it is more than adequate to make nonfrivolous the claim that the "passive" enforcement scheme identified for possible prosecution a disproportionate number of vocal opponents of draft registration.

As to the third element, the decision to implement the "passive" enforcement system was certainly a decision susceptible to abuse.

This is indeed an exceptional area of national life where conscientious opposition to government policy has been intertwined with violations of the laws which implement the policy.

United States v. Falk, 479 F.2d 616, 625 (CA7 1973) (en banc) (Fairchild, J., concurring). The correlation between vocal opposition and violations of the law makes it relatively easy to punish speech under the guise of enforcing the laws.

Here, the enforcement scheme was implemented with full knowledge that its effects would be particularly harsh on vocal opponents of the Government’s policies. See App. 290-291, 361-362 (quoted supra, at 627 and this page); cf. 549 F.Supp. at 1384 (Government "recognized the passive program had potentially serious first amendment problems"). Such knowledge makes the scheme directly vulnerable to the charge that its purpose was to punish individuals for the exercise of their First Amendment rights. This Court has recognized that

[a]dherence to a particular policy or practice, "with full knowledge of the predictable effects of such adherence . . . is one factor among others which may be considered by a court"

in determining whether a decision was based on an impermissible ground. Columbus Board of Education v. Penick, 443 U.S. 449, 465 (1979); see also Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, n. 25 (1979); id. at 283 (MARSHALL, J., dissenting) ("To discern the purposes underlying facially neutral policies, this Court has . . . considered the . . . foreseeability of any disproportionate impact"); United States v. Steele, 461 F.2d 1148, 1152 (CA9 1972).

Thus, Wayte has established the first and third elements of a prima facie case, and has presented a colorable claim as to the second.{2} As a result, there can thus be no doubt that the District Court did not abuse its discretion when it found that Wayte’s equal protection claim was not frivolous.

The Court, of course, has not viewed this case through the same lens. Instead of focusing on the elements of a prima facie case, and on whether Wayte presented sufficient evidence as to the existence of each of these elements to earn the right to discover relevant information in the Government’s possession, the Court leaps over these two issues and proceeds directly to the merits of the equal protection claim. The Court’s analysis is flawed in two respects. First, as I have shown, the Court ignores the simple fact that, if Wayte is entitled to discovery, his claim cannot be rejected on the merits for lack of evidence.

Second, and of equal importance, the Court errs in the manner in which it analyzes the merits of the equal protection claim. It simply focuses on the wrong problem when it states that "the Government treated all reported nonregistrants similarly," and that "those prosecuted in effect selected themselves for prosecution by refusing to register after being reported and warned by the Government." Ante at 610. Those issues are irrelevant to the correct disposition of this case.

The claim here is not that the Justice Department discriminated among known violators of the draft registration law either in its administration of the "beg" policy, which gave such individuals the option of registering to avoid prosecution, or in prosecuting only some reported nonregistrants. Instead, the claim is that the system by which the Department defined the class of possible prosecutees -- the "passive" enforcement system -- was designed to discriminate against those who had exercised their First Amendment rights. Such governmental action cannot stand if undertaken with discriminatory intent. As this Court has clearly stated,

for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is "patently unconstitutional."

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); see also United States v. Goodwin, 457 U.S. 368, 372 (1982). If the Government intentionally discriminated in defining the pool of potential prosecutees, it cannot immunize itself from liability merely by showing that it used permissible methods in choosing whom to prosecute from this previously tainted pool. Cf. Connecticut v. Teal, 457 U.S. 440, 450-451 (1982).

Under the Court’s flawed approach, there would have been no equal protection violation in Yick Wo v. Hopkins, 118 U.S. 356 (1886), this Court’s seminal selective prosecution decision. In Yick Wo, the Court reversed a conviction under a municipal ordinance that prohibited the construction of wooden laundries without a license. The Court held that such a conviction could not stand because the municipal licensors had discriminatorily denied licenses to individuals of Chinese origin. If the Court then had focused only on the prosecutions themselves, as it does now, it would have found no discrimination in the choice, among violators of the ordinance, of the individuals to be prosecuted. Indeed, all but one of these violators were of Chinese origin. Instead, the Court properly focused on the official action that led to those prosecutions. In Yick Wo, that prior action was the discriminatory denial of licenses, which affected the definition of the class from which prosecutees were chosen. In this case, the referrals made by Selective Service to the Justice Department for investigation and possible prosecution played a similar role, and may also have been discriminatory. It is to that issue that the Court should have directed its attention.

I do not suggest that all prosecutions undertaken pursuant to passive enforcement schemes warrant evidentiary hearings on the question of selective prosecution. But where violations of the law are so closely intertwined with political activity, where the speech at issue is so unpalatable to the Government, and where the discriminatory effect is conceded, the need for a hearing is significant, and in no way opens the door to an onslaught of such hearings in less compelling contexts.{3}

Here, I believe that Wayte has raised sufficient questions about the Government’s intentions to be entitled to obtain access to evidence in the Government’s possession. I therefore dissent from the Court’s outright dismissal of his equal protection claim.

1. The Court expressly refuses to consider the question whether Wayte has earned the right to discover relevant Government documents; it maintains that this claim was not properly asserted here. See ante at 605, n. 5. That conclusion is quite surprising. The grant of certiorari in this case was limited to "Question 1 presented by the petition," 467 U.S. 1214 (1984), which focused on a conflict among the Federal Circuits. Wayte offered only one reason for granting certiorari on that question:

The direct conflict between the Sixth and Ninth Circuits on an issue concerning the exercise of First Amendment rights particularly in view of the pending prosecutions in other circuits raising the identical question, justifies the grant of certiorari to review the judgment below.

Pet. for Cert. 12 (emphasis added). In the case to which Wayte referred, the Sixth Circuit had held that the defendant was "entitled to a hearing on his charge of selective prosecution." United States v. Schmucker, 721 F.2d 1046, 1048 (1983). Given that the lower courts have applied the same standard for granting discovery orders and evidentiary hearings in this area, the Sixth Circuit’s holding also would entitle the defendant in that case to discovery, and the Sixth Circuit’s holding therefore is in "direct conflict" with the Ninth Circuit’s holding that Wayte was not entitled to discovery. Compare, e.g., United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974), with United States v. Erne, 576 F.2d 212, 216 (CA9 1978). The discovery question could not have been raised more clearly in the lower courts and, contrary to the Court’s suggestion, it is squarely presented.

In addition, to the extent that the Court chooses to address the merits of Wayte’s selective prosecution claim, ante at 607-610, it must also decide the antecedent discovery question. First, the merits of that constitutional claim, which were not briefed before this Court, are certainly no better presented than Wayte’s discovery claim. Second, it makes little sense to decide whether, at the time that the Government chose to ignore the District Court’s discovery order, Wayte had amassed sufficient evidence to prove that the Government acted in a discriminatory manner. The threshold question is, of course, whether Wayte presented enough evidence of a constitutional violation to be entitled to documents in the Government’s possession. If he was entitled to such discovery, the merits should not be addressed until the record is complete.

Finally, it is curious that the Court here professes such concern about whether the discovery issue was properly presented. Indeed, the Court chooses to address Wayte’s claim that the prosecution scheme placed a direct burden on the exercise of First Amendment rights. Ante at 610-614. That claim was not presented or ruled upon by the District Court, was not presented or ruled upon on appeal, and was not raised in Wayte’s petition for certiorari. To the extent that the Court discusses that claim on the ground that all of Wayte’s constitutional claims are interrelated, it must also discuss the threshold constitutional claim: whether Wayte made a sufficient showing of a constitutional violation to be entitled to discovery.

2. None of the evidence presented by the Government to the District Court places in any serious question the existence of these three elements.

3. In my mind, Wayte’s claim that the "passive" enforcement scheme placed a direct burden on First Amendment freedoms, ante at 607-610, should not be addressed at this stage in the litigation. The materials that Wayte sought to discover, and that he well may be entitled to discover, could be relevant to that claim. The Court of Appeals should resolve the issue of access to evidence on remand; the resolution of the merits of Wayte’s claims should await a final determination of that issue.