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August 27, 1998


The opinion of the court was delivered by: SEYBERT


 SEYBERT, District Judge:

 Pending before the Court is defendants' joint motion for pretrial discovery relating to their defenses of selective and vindictive prosecution. The defendants were indicted on January 6, 1998 under 49 U.S.C. § 1155(b), which prohibits the unauthorized removal of aircraft parts from any plane involved in a civil aviation accident, and for conspiracy to violate the statute. The two count indictment alleges that between October 1996 and July 1997, the defendants conspired to remove a portion of a seat cushion from the interior cabin of the now-infamous TWA Flight 800. The defendants allegedly conspired with Terrell Stacy, a former TWA pilot, to have him cut a piece of the fabric from the cushion that was being stored in a secured hangar Calverton, New York during the accident investigation of the National Transportation Safety Board ("NTSB") and the Federal Bureau of Investigations (the "FBI"). The defendants allegedly sought the material because it contained samples of a reddish brown residue, which defendant James Sanders believed would prove his theory that a Navy missile was responsible for the downing of Flight 800.


 The defendants have jointly moved for discovery pertaining to their claim that the determination to bring criminal charges against them was motivated by the Government's desire to retaliate against them for exercising their First Amendment free speech rights, as well as to chill those rights. Thus, defendants purport to seek discovery of information and documents in the Governments' possession that are relevant to the Government's decision-making process and its motives for prosecuting the present case. *fn1"

 As a preliminary matter, the Court must address the defendants' contention that their conduct in obtaining the fabric from the wreckage was protected by a First Amendment "newsgathering" privilege. See United States v. Cutler, 6 F.3d 67 (2d Cir. 1993); United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816, 78 L. Ed. 2d 85, 104 S. Ct. 72 (1983). Under this privilege, defendants contend that the acts the defendants are charged with all relate to the constitutionally protected process of newsgathering because James Sanders was a freelance journalist and was investigating the crash of Flight 800 for newsgathering purposes. Elizabeth Sanders, in assisting her husband, was also engaged in the news- gathering process.

 While the Court recognizes that there is a "reporter's privilege" with respect to certain information subpoenaed in civil and criminal proceedings, this privilege clearly does not apply as a shield against prosecution for violation of laws of general applicability. Indeed, in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), the Supreme Court stated that "the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability." Id. at 682, 92 S. Ct. at 2657. Thus, the press may not use First Amendment protection to justify otherwise illegal actions. See United States v. Sanusi, 813 F. Supp. 149, 155 (E.D.N.Y. 1992) (citing Associated Press v. NLRB, 301 U.S. 103, 132-33, 57 S. Ct. 650, 656, 81 L. Ed. 953 (1937) ("The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.")). As Judge Weinstein aptly stated in Sansusi, "because the press in certain circumstances may be able to resist the demands of a subpoena, does not mean the press may, simply by raising the cry of 'newsgathering,' exempt itself from all ordinary legal constraints." Id. (citing Galella v. Onassis, 487 F.2d 986, 995-96 (2d Cir. 1973) ("There is no threat to a free press in requiring its agents to act within the law.")).

 Accordingly, the Court rejects defendants' argument that they are immune from prosecution for the acts alleged in the indictment on the basis of a newsgathering privilege. The Supreme Court has been clear that the "First Amendment confers no such immunity from prosecution." Wayte v. United States, 470 U.S. 598, 614, 105 S. Ct. 1524, 1534, 84 L. Ed. 2d 547 (1985). The Second Circuit has reiterated this principle and found that where the facts involve the exercise of prosecutorial discretion and "speech" and "nonspeech" elements are combined in the same course of conduct, "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992) (citing Wayte, 470 U.S. at 611, 105 S. Ct. at 1532)). Indeed, the Court also notes that 49 U.S.C. § 1155(b), under which defendants are indicted, does not facially implicate First Amendment concerns and the defendants do not raise any challenges to the statute itself as a valid exercise of government power.

 The Court now turns to defendants' motion for discovery relating to their defenses of selective and vindictive prosecution.


 A selective prosecution claim is not a defense on the merits to a criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. United States v. Armstrong, 517 U.S. 456, 463, 116 S. Ct. 1480, 1486, 134 L. Ed. 2d 687 (1996). The standard for demonstrating selective prosecution, however, is a "rigorous" one. See id. at 468, 116 S. Ct. at 1488. To prevail on such a defense requires the defendants to overcome the strong presumption of regularity on the part of federal prosecutors, and "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Id. at 464, 116 S. Ct. at 1486 (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1, 6, 71 L. Ed. 131 (1926)). In the ordinary case, therefore, "so 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." Id. (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604 (1978)).

 Before the defendants are entitled to discovery or an evidentiary hearing on a claim of selective prosecution, they must make two showings. First, the defendants must present at least "'some evidence tending to show the existence of the essential elements of the defense.'" Fares, 978 F.2d at 59 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)). This standard applies whether termed as providing a "colorable basis," "substantial threshold showing," "substantial and concrete basis," or "reasonable likelihood." See Armstrong, 517 U.S. at 468, 116 S. Ct. at 1488. Second, the defendants must show that the documents in the government's possession would indeed be probative of these elements. See Fares, 978 F.2d at 59 (quotation omitted). The basis for this requirement is to prevent unwarranted fishing expeditions to obtain documents to which the defense normally would not be entitled. See Berrios, 501 F.2d at 1211.

 Accordingly, under the Armstrong standard, a defendant must make at least "a credible showing of different treatment of similarly situated persons" to establish a colorable basis for a finding of discriminatory effect and consequently to become eligible for discovery. See Armstrong, 517 U.S. at 470, 116 S. Ct. at 1489; see United States v. Al Jibori, 90 F.3d 22, 25 (2d Cir. 1996). In this regard, mere assertions and generalized proffers on information and belief are insufficient. Fares, 978 F.2d at 59.

 A. Evidence Establishing the Elements of the Defense

 The prima facie elements of a claim for selective prosecution are twofold. The defendants must first show that they have been singled out for prosecution while others "similarly situated" have not generally been prosecuted for the same type of conduct forming the basis of the charges against them. See United States v. Moon, 718 F.2d 1210, 1229 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984) (quotation omitted). If the defendants can establish that "similarly situated" persons were not prosecuted, they must then show that the government's discriminatory selection of the defendants for prosecution has been invidious or in bad faith; i.e., based upon such impermissible considerations as race, religion, or the desire to prevent their exercise of their constitutional rights. Id. In this case, therefore, the defendants have the demanding burden of producing some evidence tending to show both that "similarly situated" individuals were not prosecuted and that the decision to prosecute them was animated by a desire to "chill" the exercise of defendants' First Amendment rights or to retaliate against them for the exercise of constitutional rights. See Armstrong, 517 U.S. at 469, 116 S. Ct. at 1488.

 1. "Similarly Situated" Individuals

 To sustain their burden with respect to identifying "similarly situated" individuals, defendants point to two facts. First, they believe that there must be "numerous incidents" of souvenir hunters who have stolen parts of aircraft wreckage, which was also an offense under § 1155's predecessor statute enacted in 1962, Pub. L. 87-810. This speculation, however, is insufficient to provide some credible evidence establishing that others similarly situated were not prosecuted. In Berrios, the Second Circuit expressly rejected a nearly identical argument by the defense and found that a proffer stating that the defendant and his attorney believed that there were "hundreds" of unprosecuted persons similarly situated to defendant was insufficient because it failed to identify any unprosecuted violators. See 501 F.2d at 1211.

 Second, the defendants also suggest that James Kallstrom, the Assistant Director in Charge of the New York FBI Office, is a similarly situated person who was not prosecuted. James Sanders himself describes Kallstrom as the FBI official in charge of the Flight 800 investigation. Sanders Aff. P 21. Nevertheless, defendants assert that Kallstrom was not prosecuted after it was reported that he removed an American flag found among the wreckage and presented it to the son of one of the victims. The Court easily rejects this comparison. First, § 1155(b) clearly provides that only "unauthorized" removal of aircraft wreckage is a violation. *fn2" Second, Mr. Kallstrom's action in presenting an American flag ...

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