                          
                                        )       Cause No. CR-00-5037-GF-RFC
UNITED STATES OF AMERICA,               )
                                        )       MOTION AND 
        Plaintiff,                      )       MEMORANDUM IN 
                                        )       SUPPORT OF MOTION            
                  vs.                   )       TO DISMISS; SELECTIVE
                                        )       PROSECUTION
BARRY ADAMS,                            )
                                        )
        Defendant, Pro Se               )       (oral arguments requested)
________________________________________________________________________

I. MOTION

COMES NOW the Defendant, pro Se, with Stand-by counsel, in a Motion and Memorandum in Support of Motion to Dismiss based on evidence of Selective Prosecution.

Defendant contends, through examination of facts and testimony presented at his trial in this Court on February 5th, 2001, that certain truths were revealed that establish the selective prosecution of this defendant. In order to insure the defendant's defense of selective prosecution has been sufficiently considered by this Court, and to provide for this consideration in the Record for Appellate review, defendant hereby files this Motion to Dismiss. 1/

Defense attempted contact by phone, of Mr. McLean, concerning the filing of this Motion, on February 9th, 2001. Asst. U.S. Attorney McLean was unavailable; Adams, pro Se left voice message. II. ARGUMENTS

A. Selective Enforcement with Discriminatory Effect.

1. Defendant Adams' letter of application was denied due process.

Incident Commander Bill Fox admitted in his testimony that he solicited Adams with an application, when they met in March 8, 2000. Mr. Fox also testified that he received the letter Adams wrote on March 28th, government's Exhibit 4, but did not reply to it. This letter was a valid initial application but was not acknowledged as such or processed appropriately.

Special Agents Moe and Poague both testified that they were unaware that Adams had submitted an application. Special Agent Poague also stated that if he had received an application at the gathering, he would have conveyed it to the Incident Commander who in turn would relay that for processing through the appropriate channels.

However, it appears from Mr. Fox's testimony that Mr. Adams' application of March 28 was not relayed to the appropriate line officers for processing. Mr. Fox testified, as witness for the prosecution, that he did not respond to Mr. Adams letter because it was directed to Chief Dombeck, not him and he did not regard it as an application. However, upon Cross-examination, Fox admitted that the letter was also clearly addressed to him, and that the heading of the letter explicitly indicated its subject matter as "Re: Application for Special Use." Fox also acknowledged statements at the end of the letter requesting a prompt response. Because Fox had solicited Adams with the application packet, it was reasonable for Adams to direct his subsequent application to Fox, as he did. But Mr. Fox did not deign to respond.

District Ranger Dennis Havig also testified that he was one of the line officers that could have been responsible for processing a permit application and that he was not made aware of any application having been submitted by Adams. It was Mr. Havig who distributed application packets to the individuals assembled at Miner Lake site on June 10th. He was acting on the understanding that no application had yet been made.

Moreover, the application packet, admitted as government's Exhibit 9, includes a cover letter from Beaverhead-Deerlodge Forest Supervisor Janette Kaiser, dated June 6, in which the application process is explained. The letter, directed to "Rainbow Family Gathering," implicitly indicates that no application from this group had been received by Janette Kaiser as of June 6, 2001. But Adams submitted his letter to Bill Fox, Chief Dombeck on March 28, 2001. If Adams was regarded by the Incident Command as a "qualified signer" or 'organizer," why wasn't this application letter forwarded to Dennis Havig or Janette Kaiser for further processing?

Mr Fox indicated in his testimony that Adams had not submitted the appropriate application "form." However, the letter from Janette Kaiser indicates that the application information may be submitted "on the form provided and/or on plain paper." See Gov. Ex. 9. Mr. Havig also testified to in his experience processing special use applications, that initial contact may also be made verbally or by letter. Havig testified further, that in cases where he receives an application or proposal but some of the required permit information is lacking, he would not then deny the request, but proceed to request more information and continue the planning process. Mr. Fox appears to have dismissed Adams application on his own discretion, without seeking clarification and, according to his own testimony, even though he was not a line officer who was qualified to make this call.

On the one hand, Mr. Fox claims he did not need authorization from anyone to solicit Adams with the permit. But at the same time he claims he did not have authority to grant or deny or process a permit. Mr. Bschor of the Washington Office finally responded to Adams, after six weeks and notice of intent to suit, but Fox could not say if this was a valid denial. The bottom line is Adams submitted an application, in good faith, to the officer who had presented it to him, but received neither a clear denial, nor request for more information, nor referral to the appropriate line officer. As a result of his good faith efforts, Adams was selected for prosecution.

Defendant Adams gave early notice, agreed to fulfill the role of "contact", made an initial application "in writing," something stronger than "oral" contact. But instead of passing this information along to a qualified line officer to refine the application and begin developing an operating plan, as the 9th circuit indicates is appropriate, Mr. Fox, in his sole authority, chose to ignore Adams' application and Notice of suit. Defendant an example of how to initiate contact with Forest Service, and submit an application in a 'lawful' manner. However, the Forest Service dropped the ball, in failing to follow their own regulations and give any legal credibility to Adams' application.

2. Defendant was selected for citation because of his expression.

Defendant's rightful requests for information and efforts to communicate with Forest Service officials about gathering was used to select him for prosecution. The government introduced documents of Adams' communication with Forest Service or others about proposed use of national forest for coming gatherings; this is not an element of the crime. Furthermore, these communications specifically included a written letter of application for the permit in question, which was not duly processed by the Incident Command. Instead, this communication and others that took place long before any violations of this regulation occurred, were introduced by the government as evidence against the defendant. In fact, these exhibits establish the defendant's good faith effort to comply with the law. Defendant submits this as evidence that he was selected for prosecution and wrongfully discriminated against on the basis of these communications; he was singled out for prosecution as an alleged "organizer."

Commander Fox testified that defendant Adams made several efforts to communicate with him prior to the Gathering, including faxes, emails, phone calls and a meeting on March 8th, at which he gave Adams an application and permit package. Adams, as he affirmed in his testimony and through documentation in Court filings, initially contacted Fox to obtain information concerning the previous year's gathering. Adams requested this information from Allegheny National Forest, but was directed by them to contact Incident Commander Bill Fox for any reports or documentation concerning the Gathering in Pennsylvania 1999. Adams contacted Fox in January 2000, who told him to file a FOIA request. Adams sent copies of his request to Fox and then continued communication to follow up on this and other FOIA requests. These communications led to Adams being solicited by Fox, as an individual, with an application. These communications were used to select Adams for citation.

Mr Fox also testified that Adams told him he was "running the show." But Adams denies this and pointed out the inconsistency of such a statement to his long-held and explicit position that he can act only as an individual. According to Fox's testimony, it was Adams' communications to him, and from Adams' postings to the Internet, which led him to the opinion that Adams was an "organizer" of the gathering. Adams was singled out for citation, not for his presence at an unauthorized assembly, but because of his communications, his speech and writings, and his "viewpoint" concerning the gathering, and his "viewpoint" on how to fill out an application for special use.

Special Agent Moe and Poague testified that on July 2, 2000, they specifically sought out Adams for citation. Special Agent Poague admitted that he passed by thousands of "participants or spectators" on the way to find Adams to issue him a citation. Poague testified that Adams was selected because the Incident Command sought to cite individuals who were organizers, higher-ups, or bonafide contacts with ownership of the gathering. Mr. Poague admitted in his testimony that Adams was singled out and selected for citation as an "organizer." This determination was based solely on Adams communications prior to the Gathering.

Agent Fox also stipulated, upon his recall to the stand for defense questioning, that he did in fact state publicly, on June 6 at the public meeting in Wisdom, to Havig and others, that Adams was an organizer or leader of the rainbows.2 This public vilification of Adams as leader took place before any violation occurred. Ranger Havig testified that he did not witness over 75 people on his June 7th visit to the Miner Lake camp. He was not certain until June 10, that over 75 people were assembled. Therefore, Agent Fox's public statements on June 6th declaring Adams as an "organizer" were based on Adams' communications and public expression, rather than any observation of his participation in an illegal assembly on national forest land.

Adams' expressive activity was even noted on his citation. Special Agent Moe wrote in the Citation Report on July 2, that Mr. Adams was expressing his views on the Forest Service permit issue. See Attachment C, Citation Report No. F2741755, from Defendant's Memorandum in Support of Motion to Dismiss (filed November 15, 2000). Was this an element of the crime?

Adams was singled out as an "organizer" or "leader" for publicly expressing his views and objections concerning the Forest Service' handling of the permit issue. Adams was cited 'mid-speech' by "undercover" officers of the Incident Command. Adams recognized these 'undercover officers' and inferred that they were there to give him a citation or arrest him. Adams had cause to expect a citation because he was aware that Commander Fox had stated to Ed Tunis that he was "going after Barry Adams and his helpers," as Mr. Tunis testified, and because Fox himself had told Adams that he was "going after you and rainbow family leaders", and "the time for going to the courts is over." The presence of Poague and Moe and their citation of Adams interrupted Adams and "chilled" his speech. Adams testified that they interrupted him, just as the citation reads. Defense submits that Adams was cited in an effort to silence or chill his expression, based on the content of his expression. 3/

3. Unequal treatment of Adams.

There have been many "gatherings' where citations were issued because no application was submitted, but there are no other cases where citations were made even after an application was submitted. Only in defendant Adams' case has such a record of facts emerged. Adams has been charged after having lawfully applied for the permit in question.

In previous years, all other applications that were submitted by individuals in relation to these gatherings were accepted as lawful, even though they contained "fictitious" statements with regard to any of these persons having been designated by those assemblies. Each and every one of those individuals were self-designated, and had no legal authorization to sign as 'agent or representative' of the Rainbow Family. When Adams faced similar charges in Oregon in 1997, the case before Federal Magistrate Hubel was moved for dismissal by the government because a self-designated individual had applied for and signed a permit, albeit fictitiously, on behalf of the "group." See U.S. v. Adams, Bernstein and Michaels, No. 97-2049M (D. Or. 1997). But this year, when Adams himself submitted an application and expressed a willingness to sign in his own capacity as an individual desiring to resolve the conflict, his application was rejected. Why? Was it simply because he refused to endorse the fiction that he could sign as a designee of the assembly?

Regardless of motive, it is evident that Adams was singled out and treated differently than any previous applicants or similarly charged defendants. Like the defendants in Kalb, Adams was "selected" for citation as a "organizer participant" But the government went further in Adams' case, putting Adams under surveillance at the Gathering. Special Agent Moe testified that he had intelligence that Adams had a tipi at the tipi village area of the gathering and he had cause to assume Adams had slept at tipi village the night before his July 2nd citation.

In addition, Mr. Bschor's letter of May 16, 2000 (Gov. Ex. 14), told Adams he could not apply as an individual under the regulation. Bschor's statement of Forest Service policy indicates discriminatory treatment of "individual" applicants, which denies equal protection and due process for individuals seeking to assemble with others. In its ruling, this Court stated that the 9th Circuit Court of Appeals appears in Black v. Arthur, 201 F.3d 1120, to support the view that individuals can and should apply. This contradicts Bschor's statement of Forest Service Policy, by which Adams' application was disallowed.

4. Statutory Acceptance.

Defendant submitted a lawful application for special use. The regulation stipulates that applications will be deemed granted unless they are explicitly denied, in writing, within 48 hours. Defendant received no response within 48 hours, nor even within 6 weeks. It was not until May 16th, the week after he filed notice of intent to sue, that any response was returned to him. Therefore, defendant has cause to believe his application was, de facto, granted. Accordingly, defendant "exercising rights and privileges", would appear to be the only individual at the gathering who had a legal standing to be there. However, his efforts to achieve a legal standing were instead utilized by the government as evidence against him.

Fox testified that he did not reply to Adams within 48 hours because he did not regard himself as the appropriate responder, and the Washington office did not respond to Mr. Adams within 48 hours, but took over six weeks. Regardless of who "dropped the ball" on Adams' application, it is undisputed that Adams received no response to his application within the required 48 hours. Under the terms of the regulation at 251.54(h)(2), Adams application was therefore accepted.

5. Noerr- Pennington doctrine

Adams was in the process of suing the Forest Service when his application was denied. Adams sent a written Notice of intent to sue to Forest Service Chief Dombeck and Incident Commander Fox, on May 10th, 2001, by certified mail and Fax. See Attachment 7, Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition (filed December 28, 2000). Under White v. Lee (9th Cir. Sept. 27, 2000), Adams was entitled to Noerr-Pennington immunity 4/ pending this litigation.

B. Selective Prosecution

Prior to Trial, Adams was assured that "leadership or organizer" was not an "element" of his alleged crime, by the Government and in Orders by this Court. However, when the prosecution brought its case at trial, it turned out that Adams was in fact to be tried as an "organizer." The Court not only admitted government's evidence and testimony to this effect, but did so after having denied Adams' requests for Discovery and Subpoena privileges related to this element of the prosecution. In doing so, the Court denied Adams the opportunity of preparing an adequate defense to the charges against him. Adams was selectively prosecuted.5

1. Adams was prosecuted as "leader/organizer" rather than a mere participant.

The regulation specifies "participants and spectators are treated equally under the law", and 'all participants and spectators are equally in violation." In this case this defendant was charged with being a 'participant' and only a participant. According to the Court's Orders, in Denying this defendant's requests for Discovery and Subpoena privileges, neither the quantity or quality of his expressive participation were to be on trial. Rather, only his presence as a participant or spectator at an unauthorized assembly of 75 or more people was at issue.

Prior to trial, the Government stated the following:

"Relatedly, Adams argues that the Forest Service identified him as a 'leader" and that his status as a 'leader" is somehow relevant. Adams Brief at 2, 19. it is not clear yet on this record whether the Forest Service Service identified him as a leader in this case, and, in any event, being a leader is not an element of the crime Adams committed. proof of a violation of 261.10(k) requires only that the government 'demonstrate: 1) use, 2) of national Forest land, 3) by a noncommercial group of 75 or more persons, either as participants or spectators, 4) without special use authorization." Johnson, 159 F.3d at 894. Accord Kalb, 2000 WL 1811392 at *4 (quoting Johnson). United States Consolidated Memorandum in Opposition to Defendant's Motions to Dismiss, p. 17, footnote 6.

However, in the trial proceedings on February 5, 2001, this narrow construction was not upheld. The government's "case in chief" relied heavily on Adams' writings and interactions with Forest Service Incident Commander Bill Fox prior to the Gathering or any violation. The critical fact of Mr. Adams' physical presence at the Gathering was scarcely brought up. The prosecution portrayed Adams as a leader/organizer rather than a mere participant, ultimately causing him to receive a heavier sentence than another defendant similarly charged.

The government went out of its way to portray Adams as an "organizer," and the Court sustained this prosecution. The prosecution introduced writings of Adams found on the independent forums on the internet and Adams' communiqu�s to Mr. Fox concerning the upcoming gathering. The prosecution relied heavily on Mr. Fox's testimony that "Adams said he was running the show." In rebuttal to cross-examination of Mr. Fox, the prosecution asked Mr. Fox to repeat his statements that Adams told him he was "running the show" and "organizing the gathering." Special Agent Poague also admitted on cross-examination that Adams was selected for a citation, because of a preference to cite someone "higher-up", with "ownership" of the gathering, "an organizer."

Again, in cross-examination of Mr. Michaels, witness for the defense, prosecution's sole question on cross-examination consisted of introducing a newspaper article and questioned Mr. Michaels concerning whether he made a statement to the effect that Adams was an "organizer" of the 'organization," as the newspaper article said. Mr Michaels answered the article and that sentence was taken out of context, and that he had notified the author concerning the inaccuracy of this quotation. The government, in their Consolidated Trial Brief, pg. 3 at 1, stated,

"The trial should not be allowed to become a political forum or a rehash of past Rainbow Family/Forest Service relations., Therefore the government intends to object often and strenuously to any defendant's efforts to inject matters irrelevant to the limited issue which remains for trial."

However, prosecution proceeded to "inject irrelevant matters" to make the trial a 'political forum' for the Incident Command to promote their own image of Adams as an "organizer." Adams expressions concerning his beliefs and creed, in an independently published newsletter called "GrapeVine" (Gov. Ex.3), were used to portray him as an "organizer." The Government's case culminated in a plea for "restitution." All of these exhibits were directed, not toward an element of the crime, but toward demonstrating to this Court that Adams had a 'viewpoint" concerning this regulation and use of public land that demonstrated Adams was 'thumbing his nose" at the law. A message the Court echoed in its statements at sentencing.

Clearly, the prosecution disregarded its own statements concerning the relevant elements of Adams' charges, and argued extensively that Adams was an alleged "organizer."

2. Prosecution did not Disclose discovery concerning "organizers"

Adams filed a Motion to Compel Discovery (January 19, 2001), that included requests for documentation concerning 'leaders' or 'organizers' of the gathering. See Government's Response to Defendant Adams' Motion to Compel Discovery (Jan. 24, 2001), concerning Adams request for "All information relating to the identity of the "Rainbow Family of Living Light," including any members, leaders, officers, or formal body";

"Most important, none of the information requested under this heading is relevant to the elements which the government must prove at trial. Therefore, defendant's request for al information relating to the identity of the 'Rainbow Family of Living light" including any members, leaders, officers, or formal body should be denied." This request was objected to by the prosecution and denied by the Court as irrelevant. Therefore, the defense was denied the opportunity to shield himself from the sword of the prosecution. This Court's Orders, gave defendant "safe harbor" assurances that 'organizer' was not an element in this crime, not in prosecution nor in sentencing.

Adams had also requested Discovery concerning "information pertaining to why Adams was sought out among all other individuals and groups for citation." On this point, the Government responded that,

"information pertaining to why Adams was sought out among all other individuals and groups for citations irrelevant to the elements of the crime charged in this case. Defendant's request for said information should be denied." See Government's Response to Defendant Adams' Motion to Compel Discovery (Jan. 24, 2001).

However, it appears now that Adams was sought out because he was considered to be an organizer, clearly a relevant factor to his citation.

Defendant Adams, had he been aware that he would be prosecuted as an "organizer, could have brought on witnesses to impeach Mr. Fox's testimony. For example, Adams testified, as a Vietnam-era veteran of U.S. Navy, he has a hard time dealing with authority. Adams could have brought on his V.A. Doctors and Counselors to testify that Adams does not relate well to 'authority", and how unlikely Adams would say something like he is 'running the show." Adams could have brought character witnesses to testify that Adams, in adherence to his espoused Creed, or "Rainbow Way," would never say to anyone, let alone an Incident Commander, that he was 'running the show". This concept is antithetical to Adams' Creed and to the entire concept of Rainbow Family and Rainbow-style Gatherings.

Adams was also denied Discovery concerning any final reports, or clean-up reports from the gathering, on grounds they did not exist and were irrelevant. Yet the prosecution was able to produce a bill, a type of report, for damages with regard to "restitution." Clearly some report with itemization of damages did exist and should have been disclosed to Adams if it were going to be introduced as relevant to his charges.

Additionally, Mr. Havig testified that he had amended his notes from those included in initial discovery. No amended notes were provided to the Defense.

3. The history, or "hipstory," of Adams interaction with the government was denied relevance in deference to prosecution.

For many years, even before there was a 36 CFR 251 regulation for noncommercial use, Adams has consistently maintained that he does not need a "permit" to pray. Yet when Adams has desired use of the National Forest or public forum, for speech, prayer, or petition, Adams has contacted the Forest Service, given early notice, and agreed to be a informal "contact" to help work out Operating Plan Guidelines, and for clean-up if necessary. And, in many Gatherings, Adams, as an individual, has maintained communication and cooperation with the Forest Service over resource and recreational use issues. Adams is well known to the Forest Service, and is well known among the Forest Service for his suit, as an individual, against Special Agents and Forest Service who cited him in 1997, in a similar way.

There have been "applications' and "permits' and 'agreements' signed by self-designated individuals on behalf of 'Rainbow Family' and 'Rainbow Family Gathering" and "Gatherings of the Tribes", by whatever name, since 1976. In Missouri in 1996, an individual hundreds of miles away signed an 'application", (See Gov.Ex. 4, p.3 at (b), re: "Kind Bud") and it was considered lawful. And in Oregon in 1997, citations were dismissed once a self-designated person signed an "application" and "permit". All of these 'applications" were made by "individuals", just like Adams, in this case. And, in Montana in 1987, under this same regulatory scheme, Adams was issued a 'permit", as an individual. See Attachment 6, Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition.

This history is relevant to the Adams present prosecution. Adams is well-known to the Forest Service and was singled out as an "organizer" because of this history. The Court's decision to restrict evidence and testimony to the Year 2000 has abridged the truth and deprived Adams of the right to present the larger picture that guided and informed his actions in year 2000.

4. Similarly charged individuals were not similarly prosecuted.

Adams was prosecuted differently than Mr. DeMars, a similarly charged "participant." As noted, Adams was tried as an "organizer" of the gathering. No such 'element' was injected into Defendant DeMars case. DeMars was tried as a 'participant", not as a 'spectator', convicted as a 'participant", sentenced as a 'participant' while Adams was tried as an 'organizer participant', convicted as an 'organizer participant", sentenced as an 'organizer participant".

According to U.S. v. Armstrong, 517 U.S. 456 (1996), at pg 464:

"Of course, a prosecutor's discretion is 'subject to constitutional constraints." United States v. Batchelder, 442 U. S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification, " Oyler v. Boles, 368 U.S. 448, 456 (1962). A defendant may demonstrate that the the administration of a criminal law is 'directed so exclusively against a particular class of person... with a mind so unequal and oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins.", 118 U.S. 356, 373 (1886)." ... (And at 466) "The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings 'under similar conditions.'" Similarly, Adams was prosecuted differently than DeMars simply because he was perceived to be an organizer, in effect, discriminated against because of the fact and content of his expression.

Government did start down this path, introducing this element, however, government had no expressions of Mr. DeMars 'viewpoint' such as the application, writings and petitions of Adams. The government then restrained itself and tried DeMars for the crime he was charged with, i.e. being a participant.

5. The conduct of Forest Service officials is relevant in Adams case.

In the Government's Consolidated Trial Brief, p.2 at 18-20,

"The plans and conduct of Forest Service Resource managers and law enforcement officers in trying to manage the Rainbow Family gathering are irrelevant to the crime charged against each defendant."

But it was this very discriminatory conduct6 by which Adams was impermissibly singled out for prosecution and denied access to the processing of his application. And it was the Government who proceeded in Trial to submit Adams' letter of application to the Court as evidence (Gov. Ex. 4) of Adams' alleged role as an "organizer" of this Gathering. C. Discriminatory Effect in Sentencing

Adams was cited "selectively" as were the three defendants in Kalb , for his "viewpoint" concerning this Federal regulation and Forest Service policy. All persons who attend gatherings on national forest land are liable for prosecution, but persons like Adams, who are 'listed", investigated, selected out, by Forest Service investigation, to be "organizers", persons who similarly express their 'viewpoint" as regards this regulation to the public and to the Forest Service, are subject to heavier prosecution, irrelevant elements are entered into their Trials, and their sentences are heavier. And among these, Adams stands alone in the heaviest recommendations for sentencing ever imposed on any individual similarly situated..

This Court has decided that Adams 'thumbed his nose at the law', echoing Mr. Fox and the Incident Command. However Adams was engaged in a "prayer of petition", according to his beliefs, and unlike any other persons who have made an application or signed permits, Adams is the only person who has ever applied for use of national forest for such a gathering legally. Adams is the only individual who has ever lawfully received a 'permit' for such a Gathering.

In the 9th Circuit, in regard to defendants similarly charged, only one other defendant has been given jail time, and that is Mr. DeMars, tried immediately after Adams in this Court. And in his trial, the government brought proof of Mr. DeMars crime through 'clear, concise proof" of Mr. DeMars 'presence' at the Gathering. In the Kalb case in Pennsylvania, defendant Sedlacko was considered "indigent" by the Court and therefore given no fine, despite being tried as "organizer." Adams, who is also 'indigent' was given $500 fine.

The government successfully influenced this harsh sentencing by again injecting irrelevant matters, including alleged damages. In the Government's Consolidated Trial Brief, pg 2 at 17,

"Whether the Rainbow family inflicted damage to National Forest lands or satisfied the Forest Service with its clean-up efforts is completely irrelevant to the charge against each defendant."

Yet this factor was introduced by government with a series of pictures. Since these were not pictures of Adams among persons assembled on these lands, as would be directed toward the crime in this case, of Adams presence at the Gathering but were being used to present evidence allegedly depicting environmental damage done by gathering attendees, Adams "objected as to relevance", and Court sustained. However, in sentencing, the government returned to this element as if it were relevant to their requests for a severe sentence, including "restitution" for alleged damages.

Again, these 'irrelevant' elements were used in Adams sentencing, something not done in any Court, in any other similar case, including the 9th Circuit and this Court, who sentenced Mr. DeMars $500 fine and 10 days in jail, another 'participant' at the same Gathering. This Court selected heavier sentencing of Adams based on the government's bringing evidence of the element of 'organizer", in violation of this Court's rulings as to "irrelevance". CONCLUSION

The Forest Service, U.S. Attorneys, and this Court, all "selected" Adams for selective prosecution, at the behest of Mr. Fox, as an alleged "organizer" for expressive participation in this Gathering. This Court joined Mr. Fox in his belief Adams was 'thumbing hisnose at the law', yet all the while Adams had lawfully made application.

In consideration of the foregoing arguments, Defense respectfully moves this Court to set aside its Judgement of February 5th, 2001 and Dismiss the charges against Adams on grounds of selective prosecution with discriminatory effect.

Respectfully submitted, DATED this February 12, 2001. _________________________ Barry Adams, pro Se