DAVID ALAN WAYTE, PETITIONER V. UNITED STATES OF AMERICA

   No. 83-1292

   In the Supreme Court of the United States

   October Term, 1984

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
      A. The registration program, the "passive
      enforcement" system, and the prosecution of petitioner.
      B. Development of an "active enforcement" system.
      C. Proceedings in this case.
   Summary of argument
   Argument:
      I. The selection of petitioner for prosecution
      did not impermissibly discriminate against him
          A. A prosecutor has broad discretion in initiating
          a criminal case, and, unless deliberately based on
          improper considerations, the exercise of that
          discretion is not subject to judicial review
          B. Petitioner was not impermissibly selected for
          prosecution on the basis of his exercise of First
          Amendment rights
              1. Petitioner was not singled out for prosecution
              from among others similarly situated
              2. The "passive enforcement" system served
              legitimate governmental purposes and did not base
              prosecutions on the exercise of First Amendment
              rights
      II. The selection of petitioner for prosecution
      did not violate the First Amendment
          A. Petitioner's prosecution was not
          unconstitutional under the First Amendment
          B. The traditional selective-prosecution test
          provides the proper legal standard here, and
          no separate inquiry under the First Amendment
          is required
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals is reported at 710 F.2d 1385.
The opinion of the district court is reported at 549 F. Supp. 1376.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 19, 1983.
A petition for rehearing was denied on November 4, 1983.  The petition
for a writ of certiorari was filed, pursuant to an extension, on
February 2, 1984, and was granted, limited to the first question
presented, on May 29, 1984 (J.A. 3).  The jurisdiction of this Court
rests on 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioner, who volunteered to the government that he had
violated the Military Selective Service Act, was impermissibly
selected for prosecution under a "passive enforcement" system on the
basis of his exercise of First Amendment rights.

                               STATEMENT

   On July 22, 1982, petitioner was indicted in the Central District
of California for knowingly refusing to register with the Selective
Service as required by law, in violation of 50 U.S.C. App. (& Supp. V)
453 and 462(a).  On November 15, 1982, the district court dismissed
the indictment on the ground that petitioner had been impermissibly
selected for prosecution (Pet. App. A21-A33, A47).  The court of
appeals reversed (id. at A9-A11).

 A. The Registration Program, The "Passive Enforcement" System, And
The Prosecution Of Petitioner

   1. On July 2, 1980, President Carter, acting pursuant to the
Military Selective Service Act (50 U.S.C. App. (Supp. V) 453), issued
Proclamation No. 4771, 45 Fed. Reg. 45247 (1980).  The Proclamation
directed all males residing in the United States who were born in 1960
to register with the Selective Service System during the week of July
21, 1980, by filling out a registration form at a local post office.
In signing the Proclamation, the President stated that he was "deeply
concerned about the unwarranted and vicious invasion of Afghanistan by
the Soviet Union." He explained that registration would "expedite()
the process by which, if our Nation enters a time of emergency or a
threat to our national security or a time of war in the future, the
marshaling of our defense mechanisms can be expedited." The President
also "emphasize(d) that the registration act is not a draft * * *.
(S)  eparate legal action would be required by Congress * * * to
initiate a draft * * *." 16 Weekly Comp. Pres. Doc. 1274, 1274-1275
(July 2, 1980).

   Petitioner, then a 20-year-old college student, was required to
register under the Presidential Proclamation but did not do so.
Instead, on August 4, 1980, he wrote Selective Service informing it:
"I have not registered for the draft.  I plan never to register.  I
realize the possible consequences of my actions, and I accept them"
(J.A. 716).  On the same day, petitioner sent a letter to President
Carter stating that he had made "the decision to consciously and
willfully break a law of my country. * * * * * I decided to obey my
conscience rather than your law.  I did not register for your draft.
I will never register for your draft" (J.A. 713-714).  Six months
later, petitioner sent a second letter to Selective Service (J.A.
710):

      Last August I wrote to inform you of my intention not to
      register for the draft.  Well, I did not register, an(d) still
      plan never to do so, but thus far I have received no reply to my
      letter, much less any news about your much-threatened
      prosecutions. I must interpret your silence as meaning that you
      are too busy or disorganized to respond to letters or to keep
      track of us draft-age youth.  So I will keep you posted of my
      whereabouts.

   Petitioner also stated that, although he would "be travelling the
nation * * * encouraging resistance and spreading the word about peace
and disarmament," he could be reached at his designated home address
in Pasadena, California (J.A. 710-711).

   2. Shortly after the initiation of the registration program in July
1980, the government began to receive letters and telephone calls from
people who stated that either they or persons known to them had not
registered as required by law.  In order to process this information,
Selective Service developed the "passive enforcement" system.  Under
this system, Selective Service did not actively seek to identify
nonregistrants, but instead directed initial enforcement efforts at
people who came to the government's attention as possible violators
either through their own communications or those of third parties.
J.A. 628-633, 858-859.  Third-party reports were an integral feature
of the "passive enforcement" system and accounted for more than
one-half of all of the names of possible nonregistrants that were
conveyed to the government (J.A. 631, 679-685).  Such reports could
come from a wide range of people, including parents, friends, and
neighbors of the nonregistrant as well as other concerned citizens,
and could reflect a variety of reasons:  patriotic citizens who were
aware of someone's nonregistration;  parents who were disappointed at
a son's refusal to comply with the law;  people whose own son had
registered and did not want to permit someone else to avoid the same
obligation;  or those motivated by personal considerations such as
spite or revenge.  /1/

   As part of the "passive enforcement" system, Selective Service sent
a letter by certified mail to each reported violator who it verified
had not registered and for whom it had a mailing address.  The letter
explained the duty to register, stated that Selective Service had
information that the person was required to register but had not done
so, requested that he either comply with the law by filling out an
enclosed registration card or explain why he was not subject to
registration, and warned that a violation could result in criminal
prosecution and specified penalties (J.A. 639-640, 737-741).  On June
17, 1981, this letter was sent to the first group of people who had
been identified as possible nonregistrants (J.A. 640).  Petitioner
received a copy of the letter but did not respond (J.A. 642-643, 645,
734).

   On July 20, 1981, Selective Service transmitted to the Department
of Justice, for further investigation and potential prosecution, the
names of petitioner and 133 other possible nonregistrants identified
under the "passive enforcement" system, all of whom had not registered
in response to the above letter from the Service.  J.A. 646-648,
690-692.  After screening out individuals who appeared not to be in
the class required to register, David J. Kline, the attorney in the
Criminal Division of the Department responsible for supervising
enforcement of the Selective Service laws, referred the remaining
names to the Federal Bureau of Investigation for additional inquiry
and to the United States Attorneys for the districts where the
nonregistrants resided (J.A. 692-695).  Petitioner was among the
people so referred (J.A. 692).

   In formulating its enforcement plans, the Department concluded that
"the primary goal of any prosecution policy must be to encourage and
to facilitate registration" (J.A. 225).  The Department believed that,
by "adopt(ing) a posture of viewing the failure to register as a
serious matter, * * * (it would) further encourag(e) registration"
(J.A. 228).  Thus, "an initial round of well publicized, successful
prosecutions should have a dramatic effect in further reducing the
number of non-registrants" (J.A. 272).  By bringing prosecutions, the
government sought to demonstrate that it viewed nonregistration to be
a serious offense and that it intended to enforce the law by criminal
sanctions if necessary.  See J.A. 848;  see also 1983 (House
Appropriations Hearing 212.

   In light of its objective to encourage registration, the Department
adopted a policy of leniency under which it would seek to obtain
voluntary (albeit late) compliance by the nonregistrant as an
alternative to prosecution.  Purusant to this so-called "beg" policy,
/2/ the appropriate United States Attorney was required to notify
identified nonregistrants by registered mail that, unless they
registered within a specified time, prosecution would be considered
(J.A. 771).  In addition, an FBI agent generally was sent to interview
the person before prosecution was commenced (J.A. 257, 270, 360, 389).

   The "beg" policy was intended to afford nonregistrants a last
opportunity to register in order to prevent prosecution, and it
reflected the fact that the Department was "trying to do everything we
can to avoid prosecution unless we're forced into it" (J.A. 791).
Thus, the effect of the policy was "to ensure that * * * (a
defendant's) refusal to register is willful" and that "only the
persons who are most adamant in their refusal to register will be
prosecuted" (J.A. 389-390;  see also J.A. 846).  Any person who
registered under the "beg" policy would not be prosecuted;
conversely, prosecutions were brought against every identified
nonregistrant who refused to comply (J.A. 255, 257, 271, 281, 775-776,
782-785, 792).  Pursuant to the "beg" policy, on October 15, 1981, the
United States Attorney for the Central District of California sent
petitioner a letter urging him to register or face possible
prosecution (J.A. 723-724).  Once again, petitioner failed to respond.

   In December 1981, the Criminal Division instructed United States
Attorneys to suspend efforts to seek indictments in nonregistration
cases.  Thereafter, on January 7, 1982, President Reagan announced a
grace period to allow nonregistrants to register without penalty.
This grace period continued until February 28, 1982.  J.A. 263-268,
697, 814.

   In March 1982, the Department decided to go forward with
prosecutions of those people who, despite the grace period and the
"beg" policy, persisted in their refusal to register.  It recognized
that, under the "passive enforcement" system, the defendants were
"liable to be vocal proponents of nonregistration * * * (or people)
with religious or moral objections" (J.A. 301), and that prosecutions
would "undoubtedly result in allegations that the (case was) brought
in retribution for the nonregistrant's exercise of his first amendment
rights" (ibid.).  /3/ However, the Department was advised that
Selective Service's effort to develop a more "active" enforcement
system (discussed at pages 7-10, infra) would not be completed for
some time (J.A. 299-300, 303).  In these circumstances, the Department
decided against further delay in the commencement of prosecutions
(J.A. 302-303):

      (W)e cannot recommend putting the "passives" on hold until the
      "actives" are referred.  We are precluded from doing so by one
      factor -- time.  If the Department of Justice waits until late
      this year to institute prosecutions of non-registrants, the
      registration scheme will suffer greatly.  Consequently, we
      reluctantly conclude that United States Attorneys should be
      directed to proceed to prosecution with the matters which have
      already been referred to them.

   In June 1982, after the results of registration during the grace
period had been determined (J.A. 823), the Department notified United
States Attorneys to proceed with nonregistration prosecutions (J.A.
698-700).  The Assistant Attorney General for the Criminal Division
advised United States Attorneys that "any significant delay in
instituting prosecutions will impact adversely on the registration
scheme and result in an increase in numbers of persons who refuse to
register.  Consequently, * * * such matters * * * (should be) handled
on a priority basis" (J.A. 330-331).  See also J.A. 814, 840.
Following an interview by FBI agents (J.A. 726-731), petitioner
continued to refuse to register.  Accordingly, on July 22, 1982, an
indictment was returned against him for knowingly failing to register
with the Selective Service as required by law (J.A. 1-2).

           B. Development Of An "Active Enforcement" System

   The "passive enforcement" system was instituted as the initial
compliance method "because (it) was the only system for which
Selective Service had authority or resources" (J.A. 652-653;  see page
13, infra).  However, even before the first referrals of possible
violators (including petitioner) were made to the Department of
Justice under the "passive" system in July 1981, Selective Service was
seeking to establish a more "active" system for identifying
nonregistrants;  at least as early as May 1981, the Service was in the
process of developing an "active enforcement" method.  See J.A. 233,
488.  Any such system was to be based on a comparison of Selective
Service registration lists with records that contained birthdates
identifying people of the age subject to registration.  The Department
of Justice strongly supported and encouraged the development of such a
system.  See J.A. 292, 302, 766, 811-813, 877, 900-912.  In the end,
though, the creation of a more "active" system proved to be a
difficult and time-consuming endeavor.

   From the beginning, Social Security records were thought to offer
the best data for an "active enforcement" system.  However, in
November 1980, a federal court ruled that under the Privacy Act (5
U.S.C. 552a) Selective Service could not require registrants to
provide their Social Security number, and it enjoined the Service to
delete the request for this information and to eliminate Social
Secuirty numbers from its existing records.  See Wolman v. Selective
Service System, 501 F. Supp. 310 (D.D.C. 1980).  This decision raised
serious problems for Selective Service's efforts to develop an
"active" system.  See J.A. 653.  In December 1981, Congress enacted
legislation to overturn the decision by authorizing the President to
require a registrant to submit his Social Security number and to
direct the Social Security Administration to provide pertinent
information to Selective Service.  See Pub. L. No. 97-86, Section
916(c), 95 Stat. 1129, 50 U.S.C. App. (Supp. V) 462(e);  H.R. Conf.
Rep. 97-311, 97th Cong., 1st Sess. 129 (1981);  H.R. Rep. 97-71, 97th
Cong., 1st Sess. 160-161 (1981).  /4/ In March 1982, presidential
authorization was given under the statute for Selective Service to
obtain data from Social Security records.  See J.A. 309-310, 606, 658.

   By March 1982, Selective Service had developed a computer matching
program to identify nonregistrants (J.A. 586, 606).  Over the next few
months, the Service worked out arrangements with Social Security for
transfer of the necessary computer data (J.A. 298-299, 495-496, 600,
602, 606-608).  However, after suspected nonregistrants were
identified by computer cross-matching, it was found that the
computerized Social Security records did not include complete address
information and that the manual files often contained obsolete
addresses.  Efforts to obtain current addresses from the Internal
Revenue Service failed because IRS concluded that it was barred from
disclosing such information by 26 U.S.C. 6103.  /5/

   Faced with this difficulty, Selective Service turned to other data
bases for identifying nonregistrants.  In particular, it considered
the use of state driver's license lists.  See 47 Fed. Reg. 55445
(1982).  This alternative had previously been rejected because it was
less desirable than Social Security records for establishing a
comprehensive and equitable enforcement system:  first, this
information was not available from all states;  and second, not all
people who were required to register for the draft had a driver's
license.  /6/ When the use of Social Security records proved
inadequate, however, Selective Service reconsidered the matter and
decided to use the state information as part of the basis for
implementing a feasible "active" system.  /7/

   Since early 1983, Selective Service has employed an "active
enforcement" system to identify and locate nonregistrants.  /8/ This
system utilizes Social Security records and state driver's license
lists, as well as information from other federal and state sources.  A
suspected nonregistrant is notified at least twice by letter of his
duty to register;  if he refuses to comply, Selective Service refers
his name to the Department of Justice for investigation and possible
prosecution.  We are advised that, as of June 1984, a total of more
than 160,000 names have been transmitted to the Department under the
"active" system, and that 599 of these people have been selected at
random for further investigation;  to date, all such people who were
subject to the registration requirement have elected to comply
pursuant to the "beg" policy, and thus no prosecutions have been
instituted.

                      C. Proceedings In This Case

   1. Petitioner moved to dismiss the indictment on the ground of
selective prosecution.  He requested an evidentiary hearing on the
motion and sought to supboena Presidential Counsellor Edwin Meese III,
Secretary of Defense Caspar Weinberger, Selective Service Director
Thomas Turnage, and Assistant Attorney General D. Lowell Jensen.  He
also requested production of internal documents of the Selective
Service System, the Department of Justice, the Presidential Military
Manpower Task Force, and the White House Staff.  Petitioner contended
that he and the other 12 defendants who had been indicted were "vocal"
opponents of the registration program and that, out of an estimated
500,000 nonregistrants, they had been impermissibly targeted for
prosecution on the basis of their exercise of First Amendment rights.
In making this claim, petitioner relied on a number of internal
Department of Justice memoranda that had previously been disclosed in
other litigation.

   The district court granted petitioner's request for discovery.  In
particular, it ordered the government to furnish petitioner not only
with copies of Selective Service and Department of Justice documents
concerning the prosecution of nonregistrants, but also to disclose
materials relating to the Selective Service program from the
Presidential Military Manpower Task Force, the White House Staff, and
the Department of Defense (10/1/82 Tr. 23-25).  The government turned
over all relevant Justice Department and Selective Service documents
but sought reconsideration of the remainder of the discovery order.
In support of reconsideration, the government submitted affidavits
from Selective Service Director Turnage, Assistant Attorney General
Jensen, and Criminal Division Attorney Kline.  The district court
denied the request for reconsideration (10/5/82 Tr. 40).

   On October 7, 1982, the district court conducted an evidentiary
hearing.  At the hearing, Kline testified at length about the
formulation of prosecution policy in nonregistration cases.  /9/ He
explained that the overriding objective had been to foster compliance
with the registration law by attempting to induce people to register.
Kline emphasized that the Division's approach involved "absolutely no
intention to single out vocal nonregistrants in order to deter them
from exercising their First Amendment rights," and that "(t)he idea
was to avoid the problems, not to engage in any kind of selective
prosecution" (J.A. 778).  /10/ He also testified that, although he
believed the Department's prosecution policy to be constitutionally
sound, he had sought adoption of a more Comprehensive scheme for
identifying nonregistrants and selecting them for prosecution in order
to enhance overall compliance with the registration law and to avoid
selective prosecution claims;  and in that regard he pointed to the
development of the "active enforcement" policy and the difficulties
and delays that had been encountered (J.A. 766, 796-805).  Finally,
Kline testified that he handled petitioner's case like those of all
other alleged nonregistrants and that petitioner had not been singled
out for exercising his First Amendment rights but instead had been
investigated and prosecuted because he had violated the law (J.A. 782,
784-786, 788, 852).

   The government also submitted affidavits from Kline and from Edward
A. Frankle, who was responsible for the development and implementation
of Selective Service's registration compliance program.  Kline made
clear that he reviewed the files transmitted from Selective Service,
including that of petitioner, to determine whether the person was
required to register (J.A. 528E, 528H) and that petitioner and the
other nonregistrants were referred to the FBI and United States
Attorney "for no reason other than it appeared that (they) had
violated federal law by failing to register with the Selective Service
System" (J.A. 528M).  Kline also stated that he had no information
regarding petitioner beyond what was contained in the Selective
Service file (ibid.) and that petitioner was treated no differently
from others (J.A. 528L).  Frankle likewise explained that he had
handled petitioner's case like that of everyone else and that, apart
from the letters petitioner had sent to the government, he had no
knowledge of any activities in opposition to registration in which
petitioner might have engaged (J.A. 633, 637-638, 649, 650).  Thus,
petitioner "was not referred for possible prosecution because of any
anti-draft or political activities.  He was referred simply because he
offered his name to the attention of the Selective Service and upon
investigation by letter, it became apparent that he was most probably
in violation of the * * * Act" (J.A. 650-651).  More generally,
Frankle stated that the "passive enforcement" system was directed to
people who were reported to the government -- either by themselves or
by third-parties -- to be nonregistrants and that accordingly he had
not processed (J.A. 635)

      several letters written by individuals who declared their
      opposition to the decision to resume registration but which did
      not indicate that the individual opposed to registration was of
      the age required to register.

   Finally, Frankle described the development of the "active
enforcement" system (J.A. 653) and explained that the "passive" system
had been implemented because "at the time * * * it was * * * the only
system for which Selective Service had authority and resources. * * *
(The 'active') system was not initiated sooner solely because of lack
of time, authority and resources" (J.A. 652-654).

   Despite this extensive evidence, and notwithstanding a formal
declaration of privilege executed by the White House Chief of Staff,
the district court, based on its in camera review, required the
production of documents from the Presidential Military Manpower Task
Force and the White House Staff and directed that Meese, Jensen, and
Turnage be made available to testify (10/15/82 Tr. 37-40;  10/28/82
Tr. 4-6;  C.A. Excerpt of Record 1179).  The government respectfully
declined to comply and suggested that the court dismiss the indictment
in order to allow an appeal to be pursued with respect to the validity
of the sweeping discovery ordered by the court.

   2. On November 15, 1982, the district court dismissed the
indictment on the ground of selective prosecution (Pet. App. A18-A47).
 It held that petitioner had made a prima facie case that he and the
other nonregistration defendants were "vocal" opponents of the
registration program and that they had been singled out for
prosecution under the "passive enforcement" system on the basis of
their First Amendment rights.  In addition, the court concluded that
the government had failed to rebut this showing of selective
prosecution.  Accordingly, the court ruled that the prosecution
violated petitioner's right to equal protection.

   3. The court of appeals reversed (Pet. App. A7-A17).  It held that
petitioner had not shown that the government focused its investigation
on him because of First Amendment activities.  It also found that the
government had justified its prosecution policy on neutral and
legitimate grounds and that an "active enforcement" system was being
established.  Finally, the court concluded that, since petitioner had
not made a sufficient initial showing of selective prosecution, the
government's refusal to comply with the discovery orders was not
improper.  Judge Schroeder dissented.

                          SUMMARY OF ARGUMENT

   1. Under settled principles, a prosecutor has broad discretion in
initiating a criminal case and, unless motivated by impermissible
considerations, the exercise of that discretion is not subject to
judicial review.  The doctrine of prosecutorial discretion rests on
both constitutional separation-of-powers principles and the practical
administration of the criminal justice system.

   To establish the defense of selective prosecution under traditional
equal-protection standards, the defendant must show that he was
singled out for prosecution from among others similarly situated and
that such discrimination was based on improper factors such as race or
the exercise of constitutional rights.  Petitioner's challenge to the
"passive enforcement" system does not satisfy either prong of this
two-part test.

   a. Petitioner has failed to prove discrimination against
nonregistrants who exercise their First Amendment right to protest the
registration requirement.  First, under the "passive enforcement"
system, more than 1000 people were reported to Selective Service as
possible violators;  only those who were required to register but
refused to do so were prosecuted.  By focusing on the category of
eventual defendants rather than the category of reported violators,
petitioner has misconceived the relevant universe for determining
whether the "passive" system discriminated against "vocal"
nonregistrants.

   In any event, even under petitioner's approach, there has been no
showing of discrimination.  While petitioner and others prosecuted
pursuant to the start-up "passive enforcement" policy may be more
"vocal" than a randomly selected group of nonregistrants, they all
share one salient characteristic that other nonregistrants do not and
that is an entirely proper basis for selecting them for prosecution --
they were known to Selective Service as probable violators of the
registration law.  Accordingly, because the government prosecuted all
known nonregistrants, it is not the case that petitioner was chosen
for prosecution while other people similarly situated were not.

   Other considerations also confirm that the government did not
discriminate among nonregistrants on First Amendment grounds.  The
government investigated all reported nonregistrants, and prosecuted
all who were required to register but refused to do so, without regard
to their exercise of First Amendment rights.  At the same time, no one
who engaged in protests of draft registration, but who was not
reported to the government as a violator, was investigated or
prosecuted.  And all reported nonregistrants -- including public
opponents of registration -- were given the opportunity to avoid
prosecution by registering under the lenient "beg" policy.  Taken
together, these considerations belie petitioner's contention that the
government discriminated against "vocal" nonregistrants and
demonstrate that he has not presented a sufficient basis to justify
judicial inquiry into the process of prosecutorial decisionmaking.  In
essence, petitioner selected himself for prosecution by reporting his
violation to the government and persisting in his refusal to register
despite repeated chances to comply with the law.

   b. In addition, petitioner has not shown that his prosecution under
the "passive enforcement" system was deliberately based upon an
unjustified standard or motivated by improper factors.

   Initially, we submit that First Amendment values are simply not
implicated in this case.  The sole consideration in pursuing an
investigation and possible prosecution was that the person had been
reported to the government, either by himself or by a third-party, to
be nonregistrant;  neither the fact nor the content of any protest
against registration was relevant.  Indeed, the provision for
third-party reporting plainly indicates that the enforcement system
was not based on the nonregistrant's exercise of his constitutional
right to oppose government policy;  such reports did not involve a
nonregistrant's right to complain to the government about the
registration requirement, and third parties could learn of a
nonregistrant's violation in many ways that were entirely unrelated to
any public protest in which he might have engaged.  Moreover, even in
instances of self-reported violations, a nonregistrant's admission to
the government that he had committed a crime is not itself protected
by the First Amendment, and therefore it was proper to base his
prosecution on such a confession.  Finally, even the most visible
nonregistrant could avoid prosecution merely by registering under the
"beg" policy.  Thus, nonregistrants were completely free to exercise
their constitutional rights and, at the same time, would not be
indicted for their violation of the Selective Service Act if they
complied (albeit late) with the registration requirement.  Since, as
petitioner concedes, the First Amendment does not afford a privilege
to refuse to register, the "passive enforcement" system burdened no
constitutional right:  the only freedom denied petitioner was that of
continuing to violate the law.

   Furthermore, to the extent that their First Amendment rights were
implicated, "vocal" nonregistrants were not impermissibly selected for
prosecution on the basis of constitutionally protected activity.  On
the contrary, the "passive enforcement" system served legitimate
governmental purposes and did not constitute an attempt to repress
opposition to registration.  First, by relying on reports of
nonregistration, the system allowed the government to identify
violators and bring prosecutions with a minimal expenditure of its
limited resources.  It also enabled the government to prosecute those
cases that were the strongest because the defendant's confession of a
violation provided clear evidence of his knowing and persistent
refusal to register.  In addition, prosecution of "vocal" offenders
promoted general deterrence and prevented the possibility that the
failure to proceed against a publicly known offender would encourage
others to disobey the law.  Lastly, the government could properly
consider the flagrancy of the violation of those who announced their
refusal to register and declined repeated opportunities to come into
compliance under the "beg" policy.  Petitioner's challenges to these
evident justifications for the "passive enforcement" system represent
no more than an attempt to second-guess the wisdom of the Executive's
policy and do not establish the defense of selective prosecution.  And
the absence of governmental bad faith is made especially clear here by
the fact that the "passive" system was simply an initial enforcement
method and remained in effect only until a suitable "active" system
could be developed and implemented.

   2. Petitioner no longer relies, as he did below, on the traditional
equal-protection standard for selective prosecution.  Instead, he now
contends that his prosecution directly violated the First Amendment.
We submit, however, that this contention is without merit under a
correct First Amendment analysis and that, in general, claims like
petitioner's are properly analyzed under the traditional
selective-prosecution test and do not require a separate First
Amendment inquiry.

   For the reasons stated above, the First Amendment is not implicated
in this case.  The "passive enforcement" system was based upon reports
of nonregistration, not constitutionally protected activities, and
whether or how a nonregistrant exercised his First Amendment rights
was simply immaterial.  Additionally, pursuant to the "beg" policy, a
nonregistrant could avoid prosecution merely by complying with his
duty to register, regardless of anything he may have said previously
or might wish to say in the future;  nonregistrants were and remain
entirely free to exercise their constitutional rights without
restriction and would be restrained by the prospect of prosecution
only from persisting in their violation of the law.

   At all events, because the "passive enforcement" policy served
governmental interests that were unrelated to the suppression of
constitutional rights, the proper First Amendment standard for
reviewing any incidental effect on protected activity is that set
forth in United States v. O'Brien, 391 U.S. 367 (1968).  Because this
exercise of prosecutorial discretion furthered substantial
governmental interests and was not overbroad in relation to those
interests, the O'Brien test is satisfied.

   More generally, where there is no showing of impermissible
motivation to suppress protected speech under the traditional
selective-prosecution standard, O'Brien would provide the correct test
for any First Amendment analysis.  And, as the foregoing discussion
illustrates, the good-faith exercise of prosecutorial discretion would
meet the other elements of O'Brien.  Accordingly, we submit that
claims of selective prosecution like that raised by petitioner do not
call for a separate First Amendment inquiry and are properly analyzed
under the traditional selective-prosecution standard.  In fact, the
courts of appeals have uniformly followed this course and have never
suggested that an independent First Amendment appraisal is necessary
or appropriate.  Petitioner's contrary approach would be a radical and
unwarranted departure from prevailing law and should be rejected.

                               ARGUMENT

 I. THE SELECTION OF PETITIONER FOR PROSECUTION DID NOT IMPERMISSIBLY
DISCRIMINATE AGAINST HIM

 A. A Prosecutor Has Broad Discretion In Initiating A Criminal Case,
And, Unless Deliberately Based On Improper Considerations, The
Exercise Of That Discretion Is Not Subject To Judicial Review

   The doctrine of prosecutorial discretion is a cardinal feature of
our system of criminal justice.  "(S)o long as the prosecutor has
probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests entirely
in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978);
see also Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980);  United
States v. Batchelder, 442 U.S. 114, 124 (1979).

   The "broad discretion" exercised by prosecutors (Butz v. Economou,
438 U.S. 478, 515 (1978)) derives from the basic structure and
operation of the tripartite system of federal government.  Pursuant to
Article II of the Constitution, "(t)he executive Power * * * (is)
vested in * * * (the) President of the United States" (Section 1, Cl.
1), who is charged to "take Care that the Laws be faithfully executed"
(Section 3).  One of the principal powers of the Executive is to bring
criminal proceedings "in the name of the United States as sovereign."
United States v. Nixon, 418 U.S. 683, 694 (1974);  see also United
States v. Russell, 411 U.S. 423, 435 (1973).  In the exercise of this
power "the Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case." Nixon, 418 U.S. at
693;  see also Confiscation Cases, 74 U.S. (7 Wall.) 454, 456-459
(1869).  And of course the Attorney General, acting either directly or
through subordinate officials in the Department of Justice, "is the
hand of the President in taking care that the laws of the United
States * * * in the prosecution of offenses be faithfully executed."
Ponzi v. Fessenden, 258 U.S. 254, 262 (1922);  see also Nixon, 418
U.S. at 694;  United States v. Johnson, 323 U.S. 273, 278 (1944);  28
U.S.C. 509, 510, 515, 516, 533.  The doctrine of prosecutorial
discretion rests on this fundamental authority reserved to the
Executive under the principle of separation of powers and serves to
ensure that the judiciary does not impermissibly intrude upon
functions entrusted to the co-equal branch of government responsible
for law enforcement.

   In addition, the practical implementation of this executive
responsibility makes it largely inappropriate and unsuited to judicial
oversight.  Indeed, as Chief Justice (then Judge) Burger has observed,
"(f)ew subjects are less adapted to judicial review than the exercise
by the Executive of his discretion in deciding when and whether to
institute criminal proceedings * * *." Newman v. United States, 382
F.2d 479, 480 (D.C. Cir. 1967).

   First, "the manifold imponderables which enter into the
prosecutors' decision to prosecute or not to prosecute make the choice
not readily amenable to judicial supervision." Inmates of Attica
Correctional Facility v. Rockefeller, 477 F.2d 375, 380 (2d Cir.
1973).  Because "(t)he determination of when the evidence available to
the prosecution is sufficient to obtain a conviction is seldom
clear-cut, and reasonable persons often will reach conflicting
conclusions" (United States v. Lovasco, 431 U.S. 783, 793 (1977)), the
prosecutor must exercise judgment in selecting cases to be brought.
Moreover, "(t)he decision to file criminal charges, with the awesome
consequences it entails, requires consideration of a wide range of
factors in addition to the strength of the Government's case, in order
to determine whether prosectuion would be in the public interest" (id.
at 794).  Foremost among these are the defendant's "culpability, as
distinguished from his legal guilt" (ibid.), the need to "promote * *
* respect for the law" (Pugach v. Klein, 193 F. Supp. 630, 634
(S.D.N.Y. 1961)) and to establish a "deterrent effect on others * * *
(in order to) promot(e) more general compliance with the * * * laws"
(United States v. Catlett, 584 F.2d 864, 868 (8th Cir. 1978)), and
"the relative importance of the offense compared with the competing
demands of other cases on the time and resources of investigation,
prosecution and trial" (Pugach v. Klein, 193 F. Supp. at 635).  /11/
The assessment and weighing of these and other relevant factors are
generally not susceptible to fixed legal standards but instead call
for the application of informed judgment and discretion.

   Furthermore, judicial review of the prosecutor's charging decisions
would entail substantial systemic costs and pose serious problems of
administration.  Because examination of the basis for a prosecution
diverts the proceeding from the central issue of the defendant's
guilt, "'(u)nwarranted judicial inquiries would * * * undermine the
strong public policy that resolution of criminal cases not be unduly
delayed by litigation over collateral matters.'" United States v.
Ross, 719 F.2d 615, 619 (2d Cir. 1983), quoting United States v. Moon,
718 F.2d 1210, 1230 (2d Cir. 1983), cert. denied, No. 83-1242 (May 14,
1984).  Such examination also would probe the internal deliberative
process by which prosecutorial decisions are made.  See United States
v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973);  cf. Nixon, 418 U.S. at
703-716.  This would often require that the prosecutor himself testify
to explain his decision, that he divulge the details of the
defendant's case as well as of other cases (whether the subject of a
prosecution, still under investigation, or closed) to show that no
impermissible selection occurred, and that he reveal internal files,
grand jury transcripts, and other confidential materials in order to
demonstrate the basis for his actions.  /12/ In addition to the
burdens and disruption that would result, such disclosures could
impede effective law enforcement and undermine general deterrence by
providing offenders with a "roadmap" of prosecutorial decisionmaking.

   For these reasons, the prosecutor is vested with "broad discretion"
(United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982)) that is not
generally subject to judicial review.  And, because such discretion is
an integral part of the criminal justice system, "'the conscious
exercise of some selectivity in enforcement is not itself a federal
constitutional violation.'" Ibid., quoting Bordenkircher v. Hayes, 434
U.S. at 364, and Oyler v. Boles, 368 U.S. 448, 456 (1962).  "(P)
rosecutor(s are) duty bound to exercise (their) best judgment * * * in
deciding which suits to bring" (Imbler v. Pachtman, 424 U.S. 409, 424
(1976)), and, "in the absence of clear evidence to the contrary,
courts presume that they have properly discharged their official
duties." United States v. Chemical Foundation, 272 U.S. 1, 14-15
(1926);  see also United States v. Dotterweich, 320 U.S. 277, 285
(1943);  Gregg v. Georgia, 428 U.S. 153, 225 (1976) (White J.,
concurring in the judgment);  Cameron v. Johnson, 390 U.S. 611, 623
(1968) (Fortas, J., dissenting).

   To be sure, "(s)electivity in the enforcement of criminal laws is *
* * subject to constitutional constraints." Batchelder, 442 U.S. at
125;  see also Two Guys v. McGinley, 366 U.S. 582, 588 (1961).  As the
Court has held, "(t)he Equal Protection Clause prohibits selective
enforcement" (Batchelder, 442 U.S. at 125 n.9) against a defendant
whose selection from among others similarly situated "was deliberately
based upon an unjustifiable standard such as race, religion, or other
arbitrary classification." Oyler v. Boles, 368 U.S. at 456;  see also
Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886).

   The vice in such selective enforcement is the prosecutor's abuse of
his public office by exercising his authority on the basis of improper
and invidious considerations -- a course that is incompatible with the
very rule of law on which our legal system rests.  "Nothing can
corrode respect for a rule of law more than the knowledge that the
government looks beyond the law itself to arbitrary considerations,
such as race, religion, or control over the defendant's exercise of
his constitutional rights, as the basis for determining its
applicability." United States v. Berrios, 501 F.2d 1207, 1209 (2d Cir.
1974).  The rule against selective prosecution applies "in the rare
situation in which the decision to prosecute is so abusive of (the
prosecutor's) discretion as to encroach on constitutionally protected
rights * * *." United States v. Johnson, 577 F.2d 1304, 1307 (5th Cir.
1978).

   Accordingly, the Court has recognized that "(i)n appropriate
circumstances * * * traditions of prosecutorial discretion do not
immunize from judicial scrutiny cases in which the enforcement
decisions * * * were motivated by improper factors * * *." Marshall v.
Jerrico, Inc., 446 U.S. at 249.  This standard, by focusing on the
motivation of the prosecutor, reflects the rationale that underlies
the doctrine of selective prosectuion:  the prosecutor should not be
allowed to abuse his otherwise broad and unreviewable discretion by
making decisions on the basis of impermissible considerations.  Thus,
as the Court stated in Snowden v. Hughes, 321 U.S. 1, 8 (1944),
"administration by * * * officers of a * * * statute fair on its face,
resulting in its unequal application to those who are entitled to be
treated alike, is not a denial of equal protection unless there is
shown to be present in it an element of intentional or purposeful
discrimination." See also Mackay Telegraph & Cable Co. v. Little Rock,
250 U.S. 94, 100 (1919);  Yick Wo v. Hopkins, 118 U.S. at 373-374.
/13/ And under this standard "a discriminatory purpose is not
presumed;  there must be a showing of 'clear and intentional
discrimination.'" Snowden v. Hughes, 321 U.S. at 8 (citations
omitted).

   In line with the decisions of this Court, the lower federal courts
have uniformly held that a defendant seeking to establish a claim of
selective prosecution must show that he was chosen for prosecution
although others similarly situated were not and that the prosecutor
intentionally discriminated against him on the basis of impermissible
considerations.  /14/ Moreover, although this Court has not directly
addressed the question, the courts of appeals are in agreement that it
is impermissible for a prosecutor intentionally to bring criminal
charges for the purpose of penalizing or deterring the exercise of a
First Amendment or other constitutional right.  /15/ This test for
selective prosecution is a "rigorous" one (United States v. Mangieri,
694 F.2d 1270, 1273 (D.C. Cir. 1982)).  "The presumption is always
that a prosecution for violation of a criminal law is undertaken in
good faith and in a nondiscriminatory fashion for the purpose of
fulfilling a duty to bring violators to justice" (United States v.
Falk, 479 F.2d 616, 620 (7th Cir. 1973) (en banc)), and "defendants
bear a very heavy burden" to demonstrate that they were singled out
for prosecution on an impermissible basis.  United States v. Greene,
697 F.2d 1229, 1235 (5th Cir. 1983), cert. denied, No. 82-1941 (June
27, 1983).  "(T)he judiciary performs the very limited role of
secondarily measuring the primary decision of the prosecutor against
constitutional standards." Johnson, 577 F.2d at 1307-1308.

   Applying this two-part standard, we submit that petitioner has
failed to satisfy either prong.

 B. Petitioner Was Not Impermissibly Selected For Prosecution On The
Basis Of His Exercise Of First Amendment Rights

 1. Petitioner Was Not Singled Out For Prosectuion From Among Others
Similarly Situated

   It is undisputed that, when this prosecution was commenced, there
were approximately 500,000-700,000 men who had failed to register with
the Selective Service System as required by law.  /16/ Petitioner
contends that he and the other 12 people indicted for nonregistration
at the time of this prosecution /17/ were "(v)ocal (n)onregistrants"
(Br. 5) and "outspoken dissenter(s) against the draft and the draft
registration program" (id. at 7), and that they were improperly chosen
for prosecution on this account.  Even accepting petitioner's
characterization of the defendants as "vocal nonregistrants," /18/
these facts do not demonstrate that they were singled out for
prosecution from among others similarly situated under the first part
of the selective-prosecution standard.

   In analyzing this issue, the purpose of the first element of the
selective-prosecution test must be properly understood.  To establish
his claim, a defendant must initially show that there has been some
discrimination that calls for judicial examination of the reasons for
the prosecution.  The first prong screens out those cases in which
such inquiry is not warranted and hence serves to ensure that the
costs associated with litigating the selective-prosecution defense are
not unnecessarily imposed on the criminal justice system (see pages
20-21, supra).  Accordingly, the relevant question is whether the
defendant has sufficiently shown discrimination to justify an inquiry
into the process of prosecutorial decisionmaking.

   Initially, petitioner's position that the Court should consider the
group selected for prosecution as being the 13 individuals actually
indicted totally misconceives the relevant universe for evaluating the
selectivity of the "passive enforcement" program.  In fact, more than
1,000 names were reported or self-reported to Selective Service (see
Oversight Hearing 8, 10);  and of those in this group who were
required to register, the overwhelming majority, unlike the 13
nonregistration defendants, availed themselves of one of the several
opportunities offered them to avoid prosecution by late registration.
Petitioner has not established that the relevant group of prospective
targets identified under the "passive" system (a majority of whom were
reported by third parties, see page 3, supra) was comprised, like the
small group of defendants on which he focuses, largely or entirely of
"vocal" nonregistrants so as to support a prima facie showing of
discrimination.

   In any event, even looking to the 13 nonregistration defendants,
the first prong of the selective-prosecution test is not satisfied by
petitioner's showing that nonregistrants prosecuted under the start-up
"passive enforcement" program differ from a randomly selected group of
nonregistrants in terms of the probability that they have expressed
politically or religiously based opposition to draft registration.
Those prosecuted all share a salient characteristic that is an
entirely legitimate basis for distinguishing between them and other
potential violators -- their violator status was known to the
government.  Accordingly, because he has not established that the
government failed to proceed against other known nonregistrants, there
has been no showing that he was prosecuted while other people
similarly situated were not.  As the Court explained in Oyler v.
Boles, 368 U.S. at 456, equal protection is not violated where "the
failure to proceed against other * * * offenders was due to lack of
knowledge * * * on the part of the prosecutors * * *.  (It is not
sufficient to allege nothing) more than a failure to prosecute others
because of a lack of knowledge of their * * * offenses." /19/ Under
this standard, in order to "prove () that others similarly situated
generally had not been prosecuted * * * (the defendant must show that)
the government knew of a number of violations of the statutes involved
and chose to prosecute only those who spoke out against the laws. * *
* (The defendant has to) prove that the Government failed to prosecute
persons it knew had violated the * * * laws." United States v. Kahl,
583 F.2d 1351, 1353 (5th Cir. 1978).  See United States v. Martin, 557
F. Supp. 681, 687 (N.D. Iowa 1982), rev'd on other grounds, 733 F.2d
1309 (8th Cir. 1984) (en banc), petition for cert. pending, No.
83-1959.  /20/

   Moreover, this facet should not be viewed in isolation, and other
aspects of petitioner's claim of discrimination indicate as well that
it fails to provide a basis for probing into the decision to prosecute
him.  Indeed, the case is devoid of the kinds of factors that would be
expected if, as petitioner argues, nonregistration prosecutions
discriminated on First Amendment grounds.  First, petitioner does not
deny that the government investigated "non-vocal" as well as "vocal"
nonregistrants who were reported to it as possible violators and would
have prosecuted those who continued to refuse to register.  In
addition, there is no allegation that the government brought charges
against nonregistrants who -- like petitioner -- exercised their First
Amendment rights to protest draft registration but who -- unlike
petitioner -- were not reported to the government as possible
violators.  /21/ Nor is it asserted that the government focused on the
leaders or others in prominence among nonregistrants.  Likewise, the
small number of prosecutions that were initiated, when compared to the
apparently large number of young men who spoke out in opposition to
draft registration, undercuts the idea that the government was seeking
to silence those who critized the Selective Service laws.  Finally,
"vocal" opponents of the registration law who were reported to the
government, like other reported violators, were given the opportunity
to avoid prosecution by registering under the "beg" policy.  See
generally Eklund, 733 F.2d at 1293.  Taken together, these
considerations belie the contention that the government discriminated
among nonregistrants in retaliation for or in an attempt to discourage
the exercise of First Amendment rights.

   In the end, petitioner's claim of discrimination must fail because
it misconceives the nature of the nonregistration prosecutions.  Much
like a civil contemnor, these defendants "carr(ied) 'the keys of their
prison in their own pockets'" (Shillitani v. United States, 384 U.S.
364, 368 (1966) (citation omitted)) and had the ability to prevent
prosecution altogether by registering pursuant to the "beg" policy.
In this sense the nonregistrants rather than the government controlled
the decision to prosecute;  it was self-selection by the defendants
through their persistent refusal to register, not conscious
selectivity by the government, that led to the charges against them.
In these circumstances, a claim of selective prosecution must be
rejected for failure to establish that the government discriminated
against the defendants in relation to others similarly situated.

 2. The "Passive Enforcement" System Served Legitimate Governmental
Purposes And Did Not Base Prosecutions On the Exercise Of First
Amendment Rights

   In addition to failing to show the requisite discrimination,
petitioner's contentions also do not establish the second prong of the
selective-prosecution test:  that the decision to prosecute was
"'deliberately based upon an unjustifiable standard'" (Bordenkircher
v. Hayes, 434 U.S. at 364, quoting Oyler v. Boles, 368 U.S. at 456) or
"motivated by improper factors" (Marshall v. Jerrico, Inc., 446 U.S.
at 249).

   Petitioner does not assert that he was individually selected for
prosecution on the basis of his exercise of First Amendment rights.
Indeed, the record shows that petitioner was treated no differently
from any other nonregistrant and that, apart from the letters he wrote
to government officials, neither the Justice Department nor Selective
Service had any knowledge of petitioner's anti-registration
activities.  Petitioner was prosecuted because he admitted to the
government his violation of the law and declined several requests to
register.  See pages 2-3, 4, 7, 12, supra.

   Petitioner does contend that the "passive enforcement" system, by
"design and necessity" (Br. 22), selected for prosecution only those
nonregistrants who had exercised their First Amendment rights.  This
contention does not meet the second part of the selective-prosecution
standard.

   a. Initially, we submit that the First Amendment is simply not
involved in this case.  See Eklund, 733 F.2d at 1295.  The "passive
enforcement" system did not turn on the nonregistrant's First
Amendment activities or employ "a First Amendment trip-wire" (Pet. Br.
26).

   The critical consideration in pursuing an investigation and
possible prosecution was the fact that a person was reported, by
either his own submission or that of a third party, to be a
nonregistrant.  It was that indication of violation, not the contents
of any criticisms or protests of government policy that might have
accompanied it, that engaged the process.  See Eklund, 733 F.2d at
1292.  A person who admitted his nonregistration but did not oppose
the registration system -- whether as, e.g., an act of defiance or
rebellion (see J.A. 285), a matter of contrition, or a statement of
religious scruple -- was subject to investigation and prosecution;
conversely, a person who wrote to the government to oppose the
registration requirement, even in the most vehement terms, but did not
admit a violation of the law, was not considered for further
investigation (see page 13, supra).  Under the "passive enforcement"
policy, both the existence and the substance of any protest against
government policy -- whatever its nature and location on the political
spectrum -- were immaterial.

   In addition, while a nonregistrant's expression of protest to the
government is protected by the First Amendment, his confession of a
violation, as such, is not.  There is nothing in the Constitution that
precludes the government from considering a volunteered admission of
guilt in determining whether to bring a prosecution, and it does not
matter whether that admission is conjoined with other statements that
come within the First Amendment.  /22/ See Eklund, 733 F.2d at 1291.
/23/ Indeed, it cannot be doubted, as petitioner concedes (Br. 21, 22,
36 n.35), that his letters could be used by the government as evidence
of the wilfulness of his failure to register.  Thus, although
petitioner could not be selected for prosecution in retaliation for
his expression of opposition to government policy, it was entirely
proper for Selective Service and the Department of Justice to act on
the basis of his self-reported confession of nonregistration.  /24/

   Moreover, because of the "beg" policy, prosecution under the
"passive enforcement" system did not and could not interfere with a
"vocal" nonregistrant's First Amendment rights.  A "vocal"
nonregistrant was completely free to engage in constitutionally
protected activity to protest draft registration;  at the same time,
even the most adamant and outspoken critic could have avoided
prosecution for his Selective Service violation by registering under
the "beg" policy, thus remaining able without fear of prosecution to
continue public opposition to draft registration in the fullest
exercise of his rights of free speech and petition.  And, as
petitioner admits (Br. 14, 22), there is no First Amendment privilege
to refuse to register.  /25/ Hence, the possibility of prosecution
could not burden a nonregistrant's exercise of constitutional rights,
since he need only have fulfilled his legal duty to register in order
to prevent prosecution.  In essence, the enforcement scheme abridged
no First Amendment rights but only the "right" to persist in a refusal
to comply with the concededly valid registration requirement.  Cf.
Selective Service System v. Minnesota Public Interest Research Group,
No. 83-276 (July 5, 1984), slip op. 5-9.

   That the "passive enforcement" system did not depend on the
nonregistrant's exercise of First Amendment rights is also made clear
by the provision for third-party reporting, which in fact accounted
for somewhat more than one-half of the reports of violations received
by the government (see page 3, supra).  In these instances "(f)riends,
neighbors or concerned citizens contact Selective Service and report
alleged non-compliance with the registration requirement" (J.A. 554).
Such third-party reports plainly do not involve or interfere with the
right of the nonregistrant to petition the government for redress of
grievances.  Nor, contrary to petitioner's assertion (Br. 26 n.28),
are third-party reports necessarily based on the nonregistrant's
protected speech publicly protesting government policy.  A third party
can learn of another person's failure to register in numerous wasy
that have nothing to do with the nonregistrant's exercise of First
Amendment rights.  For example, parents or friends could become aware
of the violation in a private and casual conversation with the
nonregistrant;  or they could know of objective circumstances
concerning the nonregistrant's whereabouts or activities that make it
extremely improbable that he complied with the law;  or they may
believe from their general knowledge of him that he was unlikely to
have registered for the draft.

   b. It is only by ignoring these features of the "passive
enforcement" system that First Amendment concerns are brought into
play at all in this case.  Thus, in our view, the above discussion is
sufficient to end the matter.  But the system on "vocal"
nonregistrants calls for further inquiry, the record refutes the claim
of impermissible selective prosectuion.  In the ensuring discussion,
therefore, we shall assume, as petitioner would have it, that the
"passive" system focused on "vocal" nonregistrants who wrote to the
government to protest the registration law and in so doing confessed
their violation.

   Even under that assumption, however, the "passive enforcement"
system served a number of legitimate governmental purposes and did not
rest on the impermissible basis of penalizing or discouraging the
exercise of First Amendment rights.  See Note, supra, 84 Colum. L.
Rev. at 144, 148.  First, by relying on reports of nonregistration,
the system allowed the government to identify violators and bring
enforcement proceedings with a minimal expenditure of its limited
investigatory and prosecutorial resources.  /26/ Second, 50 U.S.C.
App. 462(a) requires the government to prove that the defendant, with
knowledge of his obligation and the intent not to comply, "knowingly"
did not register as required by law;  /27/ because failure to register
"is by itself an equivocal act" that could easily be asserted to be
due to such things as ignorance, mistake, or inadvertence, the
defendant's confession would be "most useful in showing" his knowledge
of the obligation to register and his deliberate refusal to do so.
United States v. Taylor, 693 F.2d 919, 923 n.5 (9th Cir. 1982),
petition for cert. pending, No. 83-6035.  /28/ Third, prosecution of
"vocal" defendants would be especially effective to promote general
deterrence and prevent the possibility that the failure to proceed
against a publicly known offender would encourage others to violate
the law.  /29/ Finally, it is not inappropriate for the government to
consider the flagrancy of the violation /30/ by those who announced
their nonregistration to the government, declined repeated
opportunities to register under the "beg" policy, and invited the
government to prosecute them.  /31/

   Petitioner undertakes to challenge these evident justifications for
the enforcement policy.  Although he agrees (Br. 33, 34) that these
objectives represent legitimate and substantial governmental interests
in general, he argues that they are inapplicable or insufficient to
sustain the prosecution here.  As we now discuss, petitioner's
arguments are nothing more than an attack on the wisdom of the
prosecutorial approach in nonregistration cases.  His contentions are
misdirected, for the role of the selective-prosecution defense is not
to second-guess the prosecutor's strategy.  /32/

   Petitioner contends (Br. 35) that it was "unnecessary" for the
government to rely on his self-confession to prove willfulness because
that element was "sufficiently" shown by his later failure to register
after he was personally notified, pursuant to the "beg" policy, of his
obligation to do so.  For this reason, he asserts that his initial
admissions were not "'necessary or even useful to establish
wilfullness'" (ibid.; citation omitted).  We submit, however, that it
is for the prosecutorial agencies of government, not defendants, to
determine what proof is "necessary," "sufficient," or "useful." See
Lovasco, 431 U.S. at 793, 794-795;  cf. Hoffa, v. United States, 385
U.S. 293, 310 (1966).  Furthermore, the government is entitled to
prosecute and present to the jury its strongest cases by showing that
the defendant's failure to register persisted over a considerable
period of time and was deliberate from the start.  Finally, the
evidence developed as a result of the "beg" policy may be more
ambiguous or problematic than petitioner acknowledges.  For example,
where the certified "beg" letter from the government was accepted by a
member of the defendant's family rather than by the defendant himself,
/33/ he could seek to argue that he never in fact received it.
Alternatively, he could assert that, despite the letter, he
misunderstood or was confused about his obligation.  /34/ The
Constitution does not require the prosecutor to run the risk of an
acquittal by forgoing highly probative and reliable evidence of the
defendant's guilt.

   Petitioner also asserts that the prosecution policy "simply (did)
not foster deterrence" (Br. 33) because an unreported nonregistrant
"knows that as long as Selective Service relies exclusively upon
passive identification, he is totally immune from prosecution" (id. at
34).  This argument overlooks that, prior to judicial hearings on the
issue of selective prosecution, nonregistrants did not know the
government's prosecution policy.  Rather, the government made every
effort to maintain the secrecy of its policy.  /35/ Thus,
nonregistrants could not formulate a plan to avoid prosecution.
Beyond that, petitioner's argument reflects a misunderstanding of the
deterrent effect of nonregistration prosecutions.  Government
officials consistently recognized the importance of criminal
prosecutions in promoting general compliance with the registration
law.  Such prosecutions emphasized the seriousness of the duty to
register, indicated the government's intention to enforce the statute,
and publicize the registration requirement.  And in fact, contrary to
petitioner's assumption, experience has shown that criminal
prosecutions lead to increased registration.  /36/ Thus, the
government's enforcement policy was a reasonable and permissible means
of furthering the goal of deterrence.

   Petitioner further contends (Br. 36-37) that considerations of
limited government resources do not serve to support the "passive
enforcement" system.  We do not think it can be doubted, however, that
this system required only a modest expenditure of investigatory and
prosecutorial resources and made effective use of the level of funds
devoted to criminal enforcement of the registration law.  Whether
other approaches were subsequently developed and implemented at an
acceptable cost is simply irrelevant to the validity of the "passive
enforcement" system in the circumstances under which it was employed.
/37/

   More importantly, the "passive enforcement" system was intended to
be merely the initial step in devising a prosecution policy.  As
discussed above (see pages 7-10, supra), the development of an
"active" system proved to be a difficult and lengthy task.  As a
result, by March 1982 an "active" system was not yet in place.
Because further delays in initiating prosecutions would have impaired
compliance with the registration law and caused "the registration
scheme (to) suffer greatly (J.A. 663), the Department of Justice
"reluctantly conclude(d)" (ibid.) that it should proceed with cases
under the "passive enforcement" system.

   The circumstances surrounding the initiation of the "passive
enforcement" system and the efforts to create a more "active" system
clearly refute the notion that the initial "passive" system was
motivated by an intent to single out for prosecution those
nonregistrants who had exercised their First Amendment rights.
Moreover, against this background, the fact that the currently
operational "active enforcement" system might have been adopted
earlier does not, as petitioner suggests (Br. 10 & n.18, 36-37),
discredit the "passive" system.  The government initially sought to
develop a uniform and comprehensive "active" system based on Social
Security data, and therefore it decided not to use state driver's
license lists because they were not available from all states and did
not include all those required to register.  That an "active" system
using driver's license records was later implemented, after attempts
to develop a more desirable system relying on Social Security data had
proven unworkable, surely does not impugn the government's use of the
"passive" system in the meantime.  /38/

   Finally, petitioner cites (Br. 3-6, 9, 30 n.30) to internal
government documents as shown impermissible prosecutorial motivation.
To be sure, in deciding that criminal prosecutions should proceed in
order to further compliance with the registration law, the government
was aware that under the "passive" system "the first prosecutions
(were) liable to consist of a large sample of (1) persons who object
(to registration) on religious and moral grounds and (2) persons who
publicly refuse to register" (J.A. 336).  This reflected that such
people were the most likely to subject themselves to prosecution by
informing the government of their violation and refusing to register
under the liberal "beg" policy.  Since the enforcement system --
including the "beg" policy -- was "designed to ensure that * * * (a
defendant's) refusal to register is willful" so that "only persons who
are most adamant in their refusal to register will be prosecuted"
(J.A. 389-390), it could be anticipated that these nonregistrants
would self-select themselves for prosecution.  The government also
recognized -- as subsequent events have confirmed -- that prosecutions
of nonregistrants were "liable to raise thorny selective prosecution
claims" (J.A. 336) and were "liable to result in adverse judicial
decisions based on defendant claims of selective prosecution" (J.A.
290).  However, these statements do not indicate any intention to
single out "vocal" nonregistrants.  Rather, the record makes clear
that government officials were seeking to be "alert * * * to possible
problems.  The idea was to avoid the problems, not to engage in any
kind of selective prosecution" (J.A. 778).  See Eklund, 733 F.2d at
1294.  The government's actions surely are not to be condemned because
of the professionalism of its lawyers in recognizing possible
constitutional issues and exercising judgment and foresight in
formulating litigation policy.

   Moreover, the government's awareness of potential legal problems
does not establish a purpose or motivation to discriminate against
"vocal" nonregistrants.  See Eklund, 733 F.2d at 1293, 1295.  Here,
petitioner has not shown that prosecutions were brought "'because of'
and not metely 'in spite of'" the impact on "vocal" nonregistrants.
Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979) (citations
and footnotes omitted);  see also Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252, 265-266 (1977);  Washington v.
Davis, 426 U.S. 229, 240-242 (1976);  Snowden v. Hughes, 321 U.S. at
8.  On the contrary, the nonregistration prosecutions were justified
by legitimate and important law enforcement considerations entirely
unrelated to the suppression of dissent.  Accordingly, the record does
not support an inference of impermissible motivation.  /39/

 II. THE SELECTION OF PETITIONER FOR PROSECUTION DID NOT VIOLATE THE
FIRST AMENDMENT

   In this Court petitioner has not renewed the argument, made in the
courts below, that he was singled out for prosecution based on an
impermissible motive under the traditional equal-protection standard
governing the defense of selective prosecution.  Instead, he now
argues that his prosecution violated the First Amendment.  Because
petitioner has framed the issue in First Amendment terms, and because
this case is the Court's first occasion to address a claim of
selective prosecution based on the exercise of First Amendment rights,
we shall discuss below the proper First Amendment analysis of
petitioner's position.

   In our view, however, claims like petitioner's do not present an
issue under the First Amendment that is analytically distinct from the
question of selective prosecution that has been considered above.
Rather, the proper standard under the First Amendment essentially
overlaps the selective-prosecution test.  Accordingly, the Court
should reject petitioner's First Amendment argument and make clear
that the appropriate analysis is the traditional selective-prosecution
approach.

 A. Petitioner's Prosecution Was Not Unconstitutional Under The First
Amendment

   At the outset, we reiterate our contention (see pages 30-33, supra)
that the selection of petitioner for prosecution did not implicate his
First Amendment rights at all.  /40/ First, it was irrelevant under
the enforcement policy whether or how petitioner had exercised his
First Amendment rights.  Rather, he was prosecuted because he brought
himself to the government's attention and confessed his violation of
the registration law -- a confession that was not itself protected by
the First Amendment.  In these circumstances, petitioner has no First
Amendment claim to raise.

   Second, petitioner could have avoided prosecution altogether by
registering, as he was repeatedly requested to do, under the "beg"
policy.  Since, as he concedes, his refusal to do so was not within
the First Amendment, petitioner's prosecution for nonregistration
could hardly be said to chill his or others'
constitutionally-protected activities.  Petitioner was free at all
times to exercise his First Amendment rights and would not have been
subject to criminal prosecution if he had complied with his legal --
and unchallenged -- duty to register;  the only freedom denied
petitioner was that of continuing to violate the law.

   In any event, assuming that the First Amendment is brought into
play here, it was not violated.  Any incidental effect of the "passive
enforcement" system on First Amendment rights would be "sufficiently
justified * * * if (the enforcement system) furthers an important or
substantial governmental interest;  if the governmental interest is
unrelated to the suppression of free expression;  and if the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest."
O'Brien, 391 U.S. at 377.  See also, e.g., Roberts v. United States
Jaycees, No. 83-724 (July 3, 1984), slip op. 12-13, 17-18;  Clark v.
CCNV, No. 82-1998 (June 29, 1984), slip op. 6, 10-11;  City Council v.
Taxpayers for Vincent, No. 82-975 (May 15, 1984), slip op. 14, 17-20,
25-27;  Younger v. Harris, 401 U.S. 37, 51 (1971);  Konigsberg v.
State Bar, 366 U.S. 36, 50-51 (1961);  Young v. American Mini
Theatres, Inc., 427 U.S. 50, 79-82 (1976) (Powell, J., concurring).
/41/

   The O'Brien test is satisfied in this case.  To begin with, we
submit that the exercise of prosecutorial discretion, such as the
"passive enforcement" policy contested by petitioner, involves an
important governmental interest.  In general, the doctrine of
prosecutorial discretion rests on fundamental constitutional
principles of separation of powers, allowing the Executive Branch the
independence and autonomy necessary to discharge its responsibilities.
 Prosecutorial discretion is also essential to the sound and efficient
operation of the criminal justice system.  And, in any particular
case, the exercise of discretion both serves significant law
enforcement purposes -- such as establishing general deterrence or
selecting the cases in which charges are most warranted because of the
strength of the evidence or the culpability of the defendant -- and
furthers the policies of the statute that is being enforced.

   Indeed, this last consideration is especially substantial in the
present case.  The "passive enforcement" system was designed to
promote compliance with the draft registration requirement that
President Carter reinstated in 1980;  it cannot be doubted, as both
the Executive and the Congress have recognized, that the governmental
interest in the registration system is of the highest order.  /42/ The
government also recognized that the failure to initiate criminal
prosecutions would impair the efficacy of the registration system;  as
the Assistant Attorney General for the Criminal Division stated,
"(p)rosecution of non-registrants (was) necessary to deter people from
refusing to register.  Consequently, prosecutions (were) essential to
the success of the registration system" (J.A. 387).  To achieve that
deterrence objective, the "passive enforcement" system was employed as
an initial measure while efforts were made to develop a more "active"
enforcement method.  Particularly in these circumstances, the exercise
of prosecutorial discretion that is challenged here furthered an
important governmental interest.

   In addition, the governmental interest in the "passive enforcement"
system was unrelated to the suppression of First Amendment rights.  As
previously discussed (see pages 33-35, supra), this prosecutorial
policy was justified by a number of considerations:  the efficient use
of the government's limited investigatory and prosecutorial resources;
 the desirability of pursuing strong cases where a "knowing" violation
was clear and longstanding;  the need to establish a general deterrent
and proceed against visible offenders;  and the appropriateness of
prosecuting flagrant nonregistrants who flaunted their violation by
calling it to the government's attention and persisting in their
refusal to register despite numerous opportunities to comply.
Moreover, these considerations are strongly reinforced here by the
fact that the "passive" system was an initial enforcement measure that
was necessary to promote compliance with the registration law until a
more comprehensive system could be designed and implemented.  Nothing
in these considerations is related to the suppression of
constitutional rights.

   Likewise, the enforcement policy was substantially related to these
governmental interests, and any incidental effect on First Amendment
rights was no greater than essential to the furtherance of such
interests.  This element of the O'Brien test requires that the
governmental regulation not be "substantially broader than necessary
to protect the (government's) interest." Taxpayers for Vincent, slip
op. 17;  see also CCNV, slip op. 6.  Under this standard, the
governmental regulation must relate to its legitimate objectives "and
do() nothing more.  In other words, both the governmental interest and
the (governmental regulation) are (to be) limited to the
noncommunicative aspect of * * * (the defendant's) conduct." O'Brien,
391 U.S. at 381-382;  see also Ely, supra, 88 Harv. L. Rev. at
1484-1486.  Accordingly, the required nexus exists if the government
regulation, judged in relation to the ends it is designed to serve, is
not overly broad.  And this requirement is not violated if there is
"no more than a disagreement with the * * * (Executive over policy
goals and the means to achieve them).  O'Brien (does not) assign to
the judiciary the authority to replace the (Executive in its
responsibilities) or endow the judiciary with the competence to judge
* * * (what policies are) wise and how * * * (those policies are) to
be attained." CCNV, slip op. 11;  see also Taxpayers for Vincent, slip
op. 25-27.

   Because it did not extend beyond legitimate prosecutorial purposes,
the "passive enforcement" system satisfied this standard.  By focusing
on those who were reported as possible nonregistrants, the government
could target its investigatory resources on people who it had reason
to believe were out of compliance with the law.  In addition, this
enforcement system helped to enable the government to pursue the
strongest cases and most flagrant violators.  It also reinforced the
deterrent effect of the prosecutions that were brought.  And, once
again, the "passive" system was the only practical means available at
the time for enforcing the registration law on a nationwide basis.
Accordingly, the "passive enforcement" system was not overbroad in
relation to the achievement of its objectives or directed to the
constitutionally protected aspect of the defendants' activities.

   Petitioner contends, however, that the "passive enforcement" system
was a "content-based regulatory policy" (Br. 17) that selected "only
nonregistrants who exercised their First Amendment right to criticize
the draft and draft registration by writing to government officials or
by speaking out publicly" (id. at 22).  In his view (id. at 23;
emphasis added):

         The Selective Service passive enforcement policy was * * *
      not activated by violation of the draft registration law or even
      by First Amendment activity in general, but rather was aroused
      only by First Amendment activity conveying a particular
      political message.  Even though the enforcement policy did not
      overtly punish protected speech as such, it inevitably created a
      content-based regulatory system with a concomitantly disparate,
      content-based impact on nonregistrants.

   This contention is the linchpin of petitioner's First Amendment
argument.

   However, petitioner misconceives the nature of the "passive
enforcement" system.  A content-based standard is one that
"regulat(es) speech in ways that favor some viewpoints or ideas at the
expense of others." Taxpayers for Vincent, slip op. 14.  Under the
First Amendment, the government may not "discourage one viewpoint and
advance another" (Perry Educ. Ass'n. v. Perry Local Educators' Ass'n.,
No. 81-896 (Feb. 23, 1983), slip op. 11) or "discriminate invidiously
* * * in such a way as to 'aim() at the suppression of dangerous
ideas.'" Regan v. Taxation With Representation, No. 81-2338 (May 23,
1983), slip op. 7 (citations omitted).  See also Board of Educ. v.
Pico, 457 U.S. 853, 870-871 (1982) (plurality opinion);  id. at 877,
879-881 (Blackmun, J., concurring);  Consolidated Edison Co. v. Public
Serv. Comm'n., 447 U.S. 530, 536-537 (1980);  Police Department v.
Mosley, 408 U.S. 92, 95-96 (1972);  O'Brien, 391 U.S. at 375, 382.

   The "passive enforcement" system did not involve a content-based
standard.  Enforcement did not depend upon the substance of any
protest against registration, the grounds of the objection, or the
political viewpoint expressed.  The government did not inquire whether
the nonregistrant criticized the registration law and did not look to
the reasons that were advanced for any such opposition that was
stated;  it did not matter whether his objection was based on
philosophical, religious, political, legal, or personal views, whether
the criticism came from the political right or the political left, or
whether his position represented a conventional or idiosyncratic point
of view.  And no matter how vehement or outspoken the expression of
opposition to draft registration, it created no exposure to
enforcement efforts unless coupled with an indication to the
government that the person had failed to register as required by law.
Nonregistrants were thus prosecuted based solely on their "status" as
confessors rather than "their views" (Perry Educ. Ass'n., slip op.
11).  Because it did not draw distinctions on the basis of viewpoint,
the "passive enforcement" system was content-neutral.

   In addition, as we have previously discussed, the "passive
enforcement" system did not single out "vocal" nonregistrants for
investigation and possible prosecution.  Of course, it was to be
expected that any "vocal" nonregistrants who were identified would
have been opposed to registration on some ground.  But an otherwise
neutral provision is not rendered invalid as content-based simply
because it applies to people who are likely to have a particular
outlook.  See Perry Educ. Ass'n., slip op. 11-13 & n.9;  O'Brien, 391
U.S. at 382;  cf. Minnesota Bd. for Community Colleges v. Knight, No.
82-898 (Feb. 21, 1984), slip op. 16-18;  Taxation With Representation,
slip op. 7-8.

 B. The Traditional Selective-Prosecution Test Provides The Proper
Legal Standard Here, And No Separate Inquiry Under The First Amendment
Is Required

   The foregoing discussion demonstrates that petitioner's argument
that his prosecution violated the First Amendment is without merit
under a proper First Amendment analysis.  But it also demonstrates a
more general proposition:  in considering a claim that a defendant was
impermissibly selected for prosecution because of the exercise of
First Amendment rights, the appropriate standard is the traditional
selective-prosecution test, and no independent inquiry under the First
Amendment is required.

   At bottom, petitioner's contention is that he was treated
differently from others similarly situated and that this difference in
treatment was based on impermissible considerations.  Such a claim of
discrimination is clearly in the nature of an equal-protection issue
that best lends itself to analysis under the traditional test for
selective prosecution, and this is no less true where the challenged
distinction is asserted to implicate First Amendment values.  Cf.
Carey v. Brown, 447 U.S. 455 (1980);  Police Department v. Mosely,
supra.  Indeed, the courts of appeals, in assessing claims virtually
indistinguishable from petitioner's, have uniformly applied the
selective-prosecution standard and have never suggested that an
independent inquiry under the First Amendment is necessary or
appropriate.  See pages 23-24 & note 15, supra.  This weight of
experience is telling evidence against petitioner's argument.

   Moreover, the selective prosecution and First Amendment analyses
essentially overlap in this area.  The defense of selective
prosecution is established where the defendant can show that he was
selected from among others similarly situated on the basis of improper
considerations by the prosecutor, including the prosecutorial
motivation to suppress or penalize protected First Amendment
activities.  In that event the prosecution is invalid, and it is
unnecessary to undertake a separate First Amendment analysis.

   On the other hand, where no such showing of impermissible
prosecutorial animus is made, the government's interest underlying the
exercise of prosecutorial discretion would be "unrelated to the
suppression of free expression" (O'Brien, 391 U.S. at 377).  In that
circumstance, O'Brien provides the correct standard for any First
Amendment inquiry.  For the reasons previously discussed, however, it
seems clear that the remaining elements of the O'Brien test -- that
the challenged regulation further a substantial governmental interest
and not extend beyond its legitimate objectives -- would be satisfied
by the good-faith exercise of the prosecutor's discretion in enforcing
the law.  Since prosecutorial discretion serves both important
law-enforcement purposes in particular cases and significant systemic
values in general, and since the sound exercise of that discretion
will bear a sufficient relation to those interests, a defendant's
First Amendment challenge to his prosecution would be unavailable
under O'Brien.

   Accordingly, the First Amendment does not require a distinct rule
of decision for petitioner's claim of selective prosecution on the
basis of his exercise of constitutional rights.  Rather, as the courts
of appeals have recognized, the proper standard is the traditional
selective-prosecution test.  Petitioner's contrary approach would be a
radical and unwarranted departure from prevailing law and should be
rejected by this Court.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   MARK I. LEVY

      Assistant to the Solicitor General

   JOHN F. DEPUE

      Attorney

   AUGUST 1984

   /1/ See J.A. 284, 286, 507, 554;  Selective Service Prosecutions:
Oversight Hearing Before the Subcomm. on Courts, Civil Liberties, and
the Administration of Justice of the House Comm. on the Judiciary,
97th Cong., 2d Sess. 17, 1 (1982) (hereinafter cited as Oversight
Hearing);  Department of Housing and Urban Development -- Independent
Agencies Appropriations for 1984:  Hearings Before a Subcomm. of the
House Comm. on Appropriations, 98th Cong., 1st Sess. 586 (1983)
(hereinafter cited as 1984 House Approrpiations Hearings);  Department
of Housing and Urban Development -- Independent Agencies
Appropriations for 1983:  Hearings Before a Subcomm. of the House
Comm. on Appropriations, 97th Cong., 2d Sess. 216 (1982) (hereinafter
cited as 1983 House Appropriations Hearings).

   /2/ Kline explained that this was called the "beg" policy because
the Department chose "to beg people to register before (it) prosecuted
them" (J.A. 771).

   /3/ The Department recognized that, under the "passive enforcement"
system, "the first prosecutions are liable to consist of a large
sample of (1) persons who object (to registration) on religious and
moral grounds and (2) persons who publicly refuse to register" (J.A.
336).  This principally reflected two considerations:  that such
people were the most likely, first, to report their nonregistration to
the government and, second, to persist in their refusal to register
and decline the opportunity to avoid prosecution under the "beg"
policy.  The government also realized that these defendants "are
liable to raise thorney selective prosecution claims" (ibid.) and that
such a defense, if successful, would adversely affect the objective of
the prosecutions to establish a general deterrent in order to enhance
compliance with the registration requirement (J.A. 290).  The
Department therefore thought that it would be desirable for an "active
enforcement" system to be designed to replace the "passive" system
(J.A. 292).

   /4/ In light of the statute, the court of appeals remanded Wolman
to the district court for further consideration (675 F.2d 1341 (D.C.
Cir.) (Table)), and the district court vacated its earlier judgment
(542 F. Supp. 84 (D.D.C. 1982)).

   /5/ IRS did send notices to identified nonregistrants requesting
that they comply with the law.  Where no response was received,
however, Selective Service was unable to proceed further because it
could not locate the individual.

   /6/ See J.A. 292 n.3, 548-549, 567-568, 571-572, 805, 911-912;  see
also Oversight Hearing 74;  1984 House Appropriations Hearings 581;
1983 House Appropriations Hearings 208.

   /7/ See 1984 House Appropriations Hearings 607;  Department of
Housing and Urban Development, and Certain Independent Agencies
Appropriations For Fiscal Year 1984:  Hearings on H.R. 3133 Before the
Senate Comm. on Appropriations, 98th Cong., 1st Sess. 48-49 (1983)
(hereinafter cited as 1984 Senate Appropriations Hearings).

   /8/ See Semiannual Report of the Director of Selective Service for
the Period Oct. 1, 1983-Mar. 31, 1984, at 3;  Semiannual Report of the
Director of Selective Service for the Period Apr. 1, 1983-Sept. 30,
1983, at 5, 12;  S. Rep. 98-506, 98th Cong., 2d Sess. 83 (1984);  1984
Senate Appropriations Hearings 48-49.

   /9/ The government also introduced copies of all documents
generated within the Department -- including internal memoranda,
policy statements, and preliminary drafts -- that were pertinent to
the development of the prosecution policy.

   /10/ Kline testified that his memoranda had "tried to alert (his
superiors) to possible problems" (J.A. 778) but that "(h)ad I ever
thought that we were dealing with an unconstitutional scheme I would
have done my maximum to * * * shut down the system and you would be
reading scads of documents that say this is what my belief is" (J.A.
802-803).  See also J.A. 906-907.

   /11/ See also Lovasco, 431 U.S. at 794 n.15;  United States v.
Berrigan, 482 F.2d 171, 180-181 (3d Cir. 1973);  Pugach v. Klein, 193
F. Supp. at 634-635.

   /12/ See United States v. Amon, 669 F.2d 1351, 1356-1357 & nn.7, 7a
(10th Cir. 1981), cert. denied, 459 U.S. 825 (1982);  United States v.
Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978);  United States v.
Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974);  Berrigan, 482 F.2d at
181;  United States v. Falk, 479 F.2d 616, 620, 623 (7th Cir. 1973)
(en banc);  id. at 627 & n.5, 631-632 & n.8 (Cummings, J.,
dissenting);  Inmates of Attica Correctional Facility v. Rockefeller,
477 F.2d at 380;  see also United States v. Eklund, 733 F.2d 1287,
1308 (8th Cir. 1984) (en banc) (Heaney, J., dissenting), petition for
cert. pending, No. 83-1959.

   /13/ This standard is also consistent with the Court's analysis in
other cases that equal protection is not violated in the absence of
purposeful discrimination.  See Mobile v. Bolden, 446 U.S. 55 (1980);
Personnel Administrator v. Feeney, 442 U.S. 256 (1979);  Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977);
Washington v. Davis, 426 229 (1976).

   /14/ See, e.g., United States v. Saade, 652 F.2d 1126, 1135-1136
(1st Cir. 1981);  United States v. Ross, 719 F.2d 615, 619-620 (2d
Cir. 1983);  United States v. Torquato, 602 F.2d 564, 568-570 (3d Cir.
1979);  United States v. Barber, 668 F.2d 778, 782-783 (4th Cir.),
cert. denied, 459 U.S. 829 (1982);  United States v. Jennings, 724
F.2d 436, 445 (5th Cir. 1984);  United States v. Hazel, 696 F.2d 473,
474-475 (6th Cir. 1983);  United States v. Peskin, 527 F.2d 71, 86
(7th Cir. 1975), cert. denied, 429 U.S. 818 (1976);  United States v.
Wyman, 724 F.2d 684, 687 (8th Cir. 1984);  United States v. Ness, 652
F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126 (1981);  United
States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983);  United
States v. Mangieri, 694 F.2d 1270, 1273, 1275 (D.C. Cir. 1982).

   /15/ See, e.g., United States v. Greene, 697 F.2d 1229, 1236 (5th
Cir. 1983)cert. denied, No. 82-1941 (June 27, 1983);  Hazel, 696 F.2d
at 474-475;  Mangieri;  694 F.2d at 1273;  Amon, 669 F.2d at
1355-1357;  Saade, 652 F.2d at 1135;  United States v. Wilson, 639
F.2d 500, 503-504 (9th Cir. 1981);  Torquato, 602 F.2d at 569 n.9;
Catlett, 584 F.2d at 866-867;  Berrios, 501 F.2d at 1209-1212;  Falk,
479 F.2d at 618-624;  United States v. Steele, 461 F.2d 1148, 1151
(9th Cir. 1972);  United States v. Crowthers, 456 F.2d 1074, 1078-1081
(4th Cir. 1972).

   /16/ See Pet. Br. 3;  Pet. App. A9;  Oversight Hearing 1, 5, 8, 10,
20;  See also Selective Service System v. Minnesota Public Interest
Research Group, No. 83-276 (July 5, 1984), slip op. 12 & n.11.

   /17/ Since registration began in 1980, a total of 16 people have
been prosecuted for failure to register.  See Semiannual Report of the
Director of Selective Service for the Period Oct. 1, 1983-Mar. 31,
1984, at 10-11.

   /18/ The term "vocal" is misleading insofar as it suggests that all
of those indicted had made public statements of opposition to draft
registration.  In some cases the only statement made by the defendant
prior to indictment was a letter to the government declaring his
refusal to register, which petitioner elsewhere recognizes (Br. 19
n.22) to be a private communication.  In United States v. Schmucker,
petition for cert. pending, No. 83-2035, the district court explained
(83-3025 Pet. App. 21a):

      (N)either (Schmucker), 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 (Schmucker's) briefs and
      exhibits suggests nothing else.  The only clue regarding
      (Schmucker'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 Schmucker was described as "soft spoken"
      and "uneasy at the center of attention." He was quoted as
      indicating that he is unaccustomed to publicity.

   /19/ See also Note, Rethink Selective Enforcement in the First
Amendment Context, 84 Colum. L. Rev. 144, 146 & n.15 (1984) (under
Oyler, selective-prosecution defense requires proof that other
individual violators were known to the government but not prosecuted).

   /20/ In Eklund, Judge Heaney's dissenting opinion stated (733 F.2d
at 1307-1308) that the government failed to pursue nonregistrants who
did not respond to letters from Selective Service requesting that they
register and advising them of the possible consequences of refusing to
do so.  This is incorrect;  indeed, petitioner himself did not respond
to the Service's letter (see page 4, supra).  The names of such
individuals were referred, along with the names of those who did
respond and declined to register, to the FBI and the appropriate
United States Attorney for further investigation and possible
prosecution.  See J.A. 528D-528H, 784.  We are advised that, of the
group discussed by Judge Heaney, nine people were indicted, 108 cases
were eventually closed, and 17 are still pending;  of the 108 closed
cases, 55 were terminated because the person registered, 14 because
the person was too old and not required to register, 1 because the
person was female and not required to register, 3 because the person
was in the active military, 11 because the person could not be located
or the case was determined to involve a fictitious name, and 24
because the person was an alien who apparently had left the country or
had an unknown address.

   /21/ To the contrary, the record indicates that people who wrote to
the government to protest registration but did not state that they had
refused to comply with the law were not subject to investigation and
potential prosecution (see page 13, supra).

   /22/ Contrary to petitioner's characterization (Br. 21), the issue
is not whether his confession "strip(s) his * * * protest (in letters
to the government) of its fundamental character as constitutionally
protected speech." Rather, the question is whether the confession
itself, which was not otherwise safeguarded by the First Amendment,
took on constitutional protection simply because it was offered in
letters that criticized government policy.

   /23/ Cf. cases cited in note 30, infra.  For example, as the court
stated in United States v. Stout, 601 F.2d 325, 328 (7th Cir.), cert.
denied, 444 U.S. 979 (1979) (footnote omitted), "(a)ggressively
displaying one's antipathy to * * * (a law) or daring the government
to enforce it does not create immunity from, or a defense to,
prosecution."

   /24/ It is especially ironic for petitioner to seek to avoid
prosecution on the ground that his confession was constitutionally
protected.  As petitioner recognizes (Br. 21), the only possible
expressive significance of that admission derives from the fact that
it served to subject him to a greater chance of prosecution and
thereby demonstrated his "firm opposition to the draft." To the extent
that the First Amendment prohibits the government from considering
that statement for purposes of prosecution, it would be inconsistent
with the very basis for petitioner's invocation of the First Amendment
in the first place.  See Ely, Flag Desecration:  A Case Study in the
Roles of Categorization and Balancing in First Amendment Analysis, 88
Harv. L. Rev. 1482, 1489 & n.29 (1975).

   /25/ This Court has stated that the First Amendment affords no
right to refuse to comply with the Selective Service laws.  See Welsh
v. United States, 398 U.S. 333, 356 (1970) (Harlan, J., concurring in
the result);  Hamilton v. Regents, 293 U.S. 245, 263-265 (1934);  id.
at 265-268 (Cardozo, J., concurring);  United States v. Macintosh, 283
U.S. 605, 623-624 (1931), overruled on other grounds, Girouard v.
United States, 328 U.S. 61 (1946);  Jacobson v. Massachusetts, 197
U.S. 11, 29 (1905).  Indeed, in the debates on the Bill of Rights, the
First Congress rejected a proposal to exempt people from military
service on the ground of religious scruples.  See 1 Annals of Cong.
434, 750 (J. Gales ed. 1789);  Russell, Development of Conscientious
Objector Recognition in the United States, 20 Geo. Wash. L. Rev. 409,
414-417, 436-438 (1952).

   /26/ See United States v. Hoover, 727 F.2d 387, 390 (5th Cir.
1984);  United States v. Rice, 659 F.2d 524, 527 (5th Cir. 1981);
Saade, 652 F.2d at 1136;  United States v. Tibbetts, 646 F.2d 193,
195-196 (5th Cir. 1981);  Wilson, 639 F.2d at 505;  Johnson, 577 F.2d
at 1309;  United States v. Ojala, 544 F.2d 940, 945 (8th Cir. 1976);
Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d at
380;  see also Moog Industries, Inc. v. FTC, 355 U.S. 411, 413 (1958).

   /27/ See, e.g., United States v. Boucher, 509 F.2d 991, 993 (8th
Cir. 1975);  United States v. Klotz, 500 F.2d 580, 581-582 (8th Cir.
1974);  Kaohelaulii v. United States, 389 F.2d 495 (9th Cir. 1968).

   /28/ See also Wilson, 639 F.2d at 505.  For example, petitioner's
initial letters to the government stated that he had "not registered
for the draft * * * (and) plan(ned) never to register" (J.A. 716) and
that he had "deci(ded) to consciously and willfully break a law of my
country. * * * * * I decided to obey my conscience rather than your
law" (J.A. 713-715).  See also J.A. 710.

   /29/ See Hoover, 727 F.2d at 389-390;  Greene, 697 F.2d at 1236;
Hazel, 696 F.2d at 475;  Taylor, 693 F.2d at 923;  Amon, 669 F.2d at
1356;  Saade, 652 F.2d at 1136;  Ness, 652 F.2d at 892;  Catlett, 584
F.2d at 868;  Johnson, 577 F.2d at 1309;  Ojala, 544 F.2d at 944-945.

   /30/ See Hoover, 727 F.2d at 390;  Rice, 659 F.2d at 527;  United
States v. Rickman, 638 F.2d 182, 183 (10th Cir. 1980);  United States
v. Heilman, 614 F.2d 1133, 1139 (7th Cir.), cert. denied, 447 U.S. 922
(1980);  Stout, 601 F.2d at 328;  Johnson, 577 F.2d at 1309;  Ojala,
544 F.2d at 944.

   Indeed, even with respect to offenses for which criminal
prosecutions are not generally brought, like simple possession of
marijuana in some jurisdictions, authorities would surely be entitled
to prosecute someone who came into a police station and lit a
marijuana cigarette to protest the inequity of the law banning such
action.

   /31/ Petitioner informed the government in his letters that he
"realized the possible consequences of (his) action, and (he)
accept(ed) them" (J.A. 716).  In addition, as explained in our brief
(at 2) in response to the petition in Eklund v. United States, No.
83-1959 (a copy of which is being provided to counsel for petitioner),
the defendant in that case sent a letter to Selective Service
informing it that he had failed to register "as the law require(s)"
and that he did not intend to register in the future because of his
belief that the government lacked "the right to force unwilling
individuals to participate in the military." Observing that no one had
yet been prosecuted for noncompliance with the registration law, he
volunteered to be the first and requested that the government within
the next few months "either begin prosecution or send me a letter
apologizing for the disruption in my life * * *."

   /32/ Amici Central Committee for Conscientious Objectors, et al.,
acknowledge (CCCO Br. 14-16, 20-21, 24, 25, 29) that the established
standard for selective prosecution requires the defendant to show an
impermissible motive or intent on the part of the government.  They
then propose a complex method, based on inferences from statistical
data, to demonstrate such an intent in this case.  Of course, even
where, as here, the ultimate test is one of discriminatory intent
rather than simply disparate impact, proof of the effects of an action
may, in appropriate circumstances, shed light on the actor's
motivation.  But even assuming that the small sample in this case (13
prosecutions out of a universe of more than 500,000 nonregistrants) is
an adequate basis for amici's approach, it is unnecessary here to
undertake an inferential analysis of the government's purpose because
of the extensive direct evidence that was introduced on that issue and
that plainly refutes any inference of actual invidious motivation.

   /33/ In this case, the original certified letter from Selective
Service was signed for by a Marica Wayte and not by petitioner (J.A.
643, 734).

   /34/ For instance, petitioner declined to tell an FBI agent whether
he understood the letters he received from Selective Service and the
United States Attorney concerning his duty to register (J.A. 729-730).
 Analogously, as we explain in our brief (at 3) in response to the
petition in Eklund v. United States, supra, the defendant there
acknowledged that during the six-day period prescribed for
registration he was aware of the Selective Service law but believed
that he did not have to register because a court had invalidated the
statute on grounds of gender discrimination;  this illustrates that
even a defendant who is informed of the registration requirement may
contend that the failure to register was not knowing.

   /35/ See J.A. 256, 258, 335-336 & n.3, 361, 484;  see also
Oversight Hearing 23.

   /36/ See J.A. 271, 272, 392-393, 397-398, 481-482, 848;  see also
Eklund, 733 F.2d at 1294.

   /37/ It should also be noted that the enforcement system petitioner
prefers, based on access to computer data bases, has been subject to
criticisms.  For example, some have objected that such a system
entails invasions of privacy and could interfere with the purposes for
which the records were originally developed.  See Oversight Hearing 42
(statement of Draft Action).  In addition, where the data are not
complete and available nationwide, the enforcement system may be
uneven and unfair and fail to achieve a uniform level of compliance.
See page 9, supra.

   /38/ Petitioner also suggests (Br. 36-37) that FBI agents could
have been sent out as an "active" means to find nonregistrants.
Again, however, this overlooks that the government was trying to
develop a comprehensive and efficient system for dealing with
nonregistrants.  The government was not required to divert the FBI
from its other law enforcement responsibilities and devote its limited
investigatory resources in an essentially ad hoc search for possible
Selective Service violators.  See J.A. 911.

   /39/ Petitioner also contends (Br. 30 n.30) that the involvement of
high-level officials outside the Department of Justice and the role of
main Justice rather than the local United States Attorneys in setting
prosecution policy raise questions about the government's good faith.
But as the Eighth Circuit explained in Eklund, 733 F.2d at 1295:

      Surely it is not remarkable that high-ranking executive
      officials participated in formulating a policy for enforcement
      of laws pertaining to national security interests and involving
      hundreds of thousands of offenders, especially since it was
      contemplated that other executive agencies, specifically the IRS
      and the Social Security Administration, would become involved in
      the enforcement process.

   See also 50 U.S.C. App. (Supp. V) 462(e) (presidential authority to
require Social Security information to be provided to Selective
Service);  28 C.F.R. 0.61(i) (1981) (Criminal Division responsible for
enforcement of Military Selective Service Act);  1 ABA, Standards for
Criminal Justice Section 3-2.5 (2d ed. 1980) (desirability of
establishing general prosecutorial guidelines).

   /40/ It is, of course, petitioner's burden "to demonstrate that the
First Amendment even applies." Clark v. CCNV, No. 82-1998 (June 29,
1984), slip op. 5 n.5.

   /41/ As these later decisions demonstrate, the O'Brien test is not
limited to cases involving so-called "symbolic speech." See also Ely,
supra, 88 Harv. L. Rev. at 1484.

   /42/ See 16 Weekly Comp. Pres. Doc. 1274, 1274-1275 (July 2, 1980);
 S. Rep. 96-826, 96th Cong., 2d Sess. 160 (1980);  Department of
Defense Authorization for Appropriations for Fiscal Year 1981:
Hearings on S. 2294 Before the Senate Comm. on Armed Services, 96th
Cong., 2d Sess. 1803, 1805 (1980);  see also U.S. Const., Art. I,
Section 8, Cls. 12-14;  Rostker v. Goldberg, 453 U.S. 57, 59-61, 65,
68, 75 (1981);  O'Brien, 391 U.S. at 377, 381;  Selective Service
System v. Minnesota Public Interest Research Group, slip op. 2-3
(Powell, J., concurring).