UNITED STATES OF
AMERICA, Petitioner
v.
Christopher Lee ARMSTRONG,
et al.
No. 95-157.
United States
Supreme Court Petitioner's Brief.
October Term,
1995.
Dec. 14, 1995.
ON WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
BRIEF FOR THE UNITED
STATES
Drew S. Days, III
Solicitor General John C. Keeney Acting Assistant
Attorney General Michael R. Dreeben Deputy Solicitor General Irving L.
Gornstein Assistant to the Solicitor General Kathleen A. Felton Attorney
Department of Justice Washington, D.C. 20530 (202) 514-2217
*i QUESTION
PRESENTED
Whether the court of
appeals erred in holding that evidence that members of a particular race have
been prosecuted for a particular offense is sufficient to justify an order
requiring discovery from the government on a claim of selective prosecution,
absent evidence that similarly situated persons of a different race have not
been prosecuted for that offense.
*iii TABLE OF CONTENTS
Jurisdiction ... 1
Statement ... 2
Summary of argument ... 11
Argument:
Discovery on a claim of selective prosecution on the basis
of race may not be ordered absent evidence that similarly situated persons of a
different race have not been prosecuted ... 15
A. A defendant seeking discovery on a claim of selective
prosecution must make a substantial threshold showing ... 16
B. The showing to obtain discovery must include some
evidence that similarly situated persons have not been prosecuted ... 21
C. The court of appeals' reasons for
eliminating the similarly situated offender requirement are unsound ... 28
Conclusion ... 38
TABLE OF AUTHORITIES
Cases:
Ah Sin v. Wittman, 198 U.S. 500 (1905) ... 14, 32, 33,
34
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ... 36
Attorney General v. Irish People, Inc., 684 F.2d 928 (D.C.Cir.1982), cert.
denied, 459 U.S. 1172 (1983) ... 18, 22, 29
Basic Inc. v. Levinson, 485 U.S. 224 (1988) ... 30
Bordenkircher v. Hayes, 434 U.S. 357 (1978) ... 16
Brady v. Maryland, 373 U.S. 83 (1963) ... 20
C.E. Carlson, Inc. v. SEC, 859 F.2d 1429 (10th Cir.1988) ... 24
Cobbledick v. United States, 309 U.S. 323 (1940) ... 17
Cooler & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) ... 36
*iv DiBella v. United States, 369 U.S. 121 (1962) ... 17
Hazelwood School District v. United States, 433 U.S. 299 (1977) ... 32
Heckler v. Chaney, 470 U.S. 821 (1985) ... 16
Imbler v. Pachtman,424 U.S. 409 (1976) ... 19
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) ... 16
McCleskey v. Kemp, 481 U.S. 279 (1987) ... 18, 29, 31,
32
Oyler v. Boles, 368 U.S. 448 (1962) ... 17
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) ... 18
Ponzi v. Fessenden, 258 U.S. 254 (1922) ... 16
Town of Newton v. Rumery, 480 U.S. 386 (1987) ... 16, 17, 29
Turner v. United States, 396 U.S. 398 (1970) ... 30
United States v. Adams, 870 F.2d 1140 (6th Cir.1989) ... 26
United States v. Armstrong, 48 F.3d 1508 (9th Cir.1995) ... 34
United States v. Bassford, 812 F.2d 16 (1st Cir.), cert.
denied, 481 U.S. 1022 (1987) ... 18
United States v. Batchelder, 442 U.S. 114 (1979) ... 16, 17
United States v. Bourgeois, 964 F.2d 935 (9th Cir.), cert.
denied, 113 S. Ct. 290 (1992) ... 8, 25, 26
United States v. Burr, 25 F. Cas. 30 (C.C.Va.1807) (No.
14,692d) ... 36
United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926) ... 18, 29
United States v. Cooks, 52 F.3d 101 (5th Cir.1995) ... 23,
34
United States v. Diggs, 613 F.2d 988 (D.C.Cir.1979), cert.
denied, 446 U.S. 982 (1980) ... 27
United States v. Falk, 479 F.2d 616 (7th Cir.1973) ... 19
United States v. Fares, 978 F.2d 52 (2d Cir.1992) ... 23
United States v. Goodwin, 457 U.S. 368 (1982) ... 16
*v United States v. Gordon, 817 F.2d 1538 (1987), vacated in
part on rehearing, 836 F.2d 1312 (11th Cir.), cert.
dismissed, 487 U.S. 1265 (1988)
... 26
United States v. Greenwood, 796 F.2d 49 (4th Cir.1986) ... 24
United States v. Gutierrez, 990 F.2d 472 (9th Cir.1993) ... 34
United States v. Hazel, 696 F.2d 473 (6th Cir.1983) ... 26
United States v. Holmes, 794 F.2d 345 (8th Cir.1986) ... 26
United States v. Hoover, 727 F.2d 387 (5th Cir.1984) ... 26
United States v. Huff, 959 F.2d 731 (8th Cir.1992), cert.
denied, 113 S. Ct. 162 (1992) ... 34-35
United States v. Lovasco, 431 U.S. 783 (1977) ... 17
United States v. Mezzanatto, 115 S. Ct. 797 (1995) ... 18, 29
United States v. Mitchell, 778 F.2d 1271 (7th Cir.1985) ... 24
United States v. Moon, 718 F.2d 1210 (2d Cir.1983), cert.
denied, 466 U.S. 971 (1984) ... 19
United States v. Murdock, 548 F.2d 599 (5th Cir.1977) ... 20
United States v. Nixon, 418 U.S. 683 (1974) ... 16
United States v. Parham, 16 F.3d 844 (8th Cir.1994) ... 18,
24
United States v. Peete, 919 F.2d 1168 (6th Cir.1990) ... 24
United States v. Penagaricano-Soler, 911 F.2d 833 (1st Cir.1990) ... 18
United States v. Schmucker, 815 F.2d 413 (6th Cir.1987) ... 24
United States v. Steele, 461 F.2d 1148 (9th Cir.1972) ... 27
*vi United States Dept of Labor v. Triplett, 494 U.S. 715 (1990) ... 35
Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ... 18, 31, 32
Wade v. United States, 504 U.S. 181 (1992) ... 21
Washington v. Davis, 426 U.S. 229 (1976) ... 18
Wayte v. United States, 470 U.S. 598 (1985) ... 12, 16, 17,
18
Weatherford v. Bursey, 429 U.S. 545 (1977) ... 20
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ... 12, 17, 18,
31, 32, 33
Constitution, statutes and rules:
U.S. Const.:
Art. II ... 11
§ 3 ... 16
Amend. VI ... 19
Amend. XIV (Equal Protection Clause) ... 32, 34
Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq ... 19
18 U.S.C. 924(c) ... 2
21 U.S.C. 841 ... 3, 6
21 U.S.C. 841(a)(1) ... 2
21 U.S.C. 846 ... 2, 3, 6
Fed. R. App. P. 45(b) ... 19-20
Fed. R. Crim. P.:
Rule 2 ... 19
Rule 16 ... 20
Rule 50 ... 19
Miscellaneous:
United States Sentencing Comm'n. Annual Report 1994 ... 30
*1 OPINIONS BELOW
The opinion of the
en banc court of appeals (Pet.App.1a-67a) is reported at 48 F.3d 1508. The panel opinion of the court of appeals
(Pet.App.68a-104a) is reported at 21 F.3d 1431.
JURISDICTION
The judgment of the
en banc court of appeals was entered on March 2, 1995. By order dated June 21, 1995, Justice
O'Connor extended the time within which to file a petition for a writ of
certiorari to and including July 28, 1995.
The petition for a writ of certiorari was filed on July 28, 1995, and
was granted on October 30, 1995 (J.A. 237). The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
On April 21, 1992,
respondents Christopher Lee Armstrong, Robert Rozelle, Aaron Hampton,
Freddie Mack, and Shelton Auntwan Martin were indicted in the United States
District Court for the Central District of California on charges of conspiring
to possess with intent to distribute, and conspiring to distribute. more than
50 grams of cocaine base (crack), in violation of 21 U.S.C. 846. Respondents were also variously charged in
four counts with distributing crack, in violation of 21 U.S.C. 841(a)(1), in one count
with possessing crack with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and in three
counts with using or carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. 924(c). J.A. 60-67.
Respondents, each of
whom is black, alleged that the United States Attorney's Office had determined
to prosecute them because of their race.
They sought discovery from the government to obtain information that
they asserted would support that claim.
J.A. 68. The district court
granted the motion for discovery. J.A.
150-151. It also adhered to that ruling
in denying the government's motion for reconsideration. J.A. 216, 217. When the government indicated that it would not comply with the
discovery order, the district court dismissed the indictment. J.A. 224-226. A divided panel of the court of appeals reversed,
concluding that the district court had abused its discretion in ordering
discovery. Pet. App. 68a-104a. On rehearing en banc, the court of appeals,
by a 7-4 vote, held that the district court had permissibly ordered
discovery. It therefore affirmed the
district court's dismissal of the indictment.
Id. at 1a-67a.
*3 1. From
February to April 1992, a task force composed of detectives from the Inglewood,
California, police department's Narcotics Division and agents of the federal
Bureau of Alcohol, Tobacco, and Firearms (ATF) conducted an investigation into
a crack distribution ring. From
February 13, 1992, to April 6, 1992, confidential informants made seven
different purchases of crack from respondents, totalling approximately 124.3
grams. The informants also reported the
use of firearms by respondents during the sales. Pet. App. 69a-70a.
On April 8, 1992,
task force agents executed warrants to search the hotel room where the drug
sales took place, as well as the residences of some of the respondents. The officers arrested respondents Armstrong
and Hampton in the hotel room; they
also discovered 9.29 additional grams of crack and a loaded gun. Respondents Mack, Martin, and Rozelle were
later arrested pursuant to bench warrants.
Pet. App. 70a; J.A. 64.
2. Respondents filed
a motion for discovery or dismissal of the indictment, alleging that the
government had selected them for prosecution because of their race. In support
of their motion for discovery, respondents offered only one item of evidence to
substantiate their claim of selective prosecution: an affidavit from a paralegal employed by the Federal Public
Defender for the Central District of California. J.A. 68-70. The affidavit
stated that, based on a review of all cases closed by the Federal Public
Defender's Office during 1991 that involved substantive drug offenses or drug
conspiracy offenses in violation of 21 U.S.C. 841 and 846, all of the 24
defendants charged with a crack trafficking offense were black. The government opposed respondents' *4
motion for discovery, arguing that respondents had failed to establish the
threshold showing of selective prosecution required to justify an order
compelling discovery. J.A. 149-150.
The district court
found that respondents' showing was sufficient to justify discovery. The court stated that the number of cases
and the time period covered by the affidavit;
the comparable charges involved in each case; and the fact that all the defendants were of the same race required
the government to provide an explanation.
The court ordered the government:
(1) to list all cases from the prior three years in which the government
charged both crack and firearms offenses;
(2) to identify the race of the defendant in each case; (3) to state
whether each case was investigated by federal or state law enforcement
authorities or by a joint federal and state effort; and (4) to explain the criteria used by
the United States Attorney's Office in deciding whether to bring crack charges
in federal court. J.A. 161-162.
The government moved
for reconsideration of the court's discovery order. In support of its motion, the government submitted affidavits
from the two officers who had investigated this case. Those affidavits stated that race had played no role in the investigation
and that the case had been referred for federal prosecution because it involved
provable crack and firearms offenses that met the U.S. Attorney's guidelines
for federal prosecution. J.A. 75-79.
The government also submitted the affidavit of the then-Chief of the Criminal
Complaints Section of the United States Attorney's Office, who explained that
"[a]ll charging decisions are made on the basis of whether a federal
offense that meets this Office's guidelines has occurred, the overall strength
of the evidence, the deterrence *5 value and federal interest associated
with the particular case, the criminal history of the suspects, and other
race-neutral criteria." J.A.
80. He further stated that this case
met the general criteria because: it
involved more than 100 grams of crack, which was in excess of twice the amount
necessary for a ten-year mandatory minimum sentence; the case involved multiple sales and multiple defendants,
indicating a fairly substantial crack cocaine ring; the case was jointly investigated by federal and state
agencies; firearms were used in
connection with the drug trafficking; the evidence against respondents, including
audio and video tapes of respondents' illegal activities, was strong; respondent Armstrong had made threats
against the arresting officers; and
several of the respondents had committed prior narcotics and firearms
violations. J.A. 81.
In addition, the
government submitted an affidavit from the Public Information Officer for the
Los Angeles Division of the Drug Enforcement Administration (DEA) and a DEA
report on crack. The affidavit stated
that, for cultural and historical reasons, particular racial and ethnic groups
tend to dominate the distribution of particular drugs. In the officer's experience, black street
gangs dominate the distribution of crack in the Los Angeles area. J.A. 73, 74. The DEA report, "Crack Cocaine Overview 1989," detailed
the sociological patterns of crack use and distribution in this country. J.A. 84-117. It concluded that Jamaicans, Haitians, and black street gangs
dominate the large- scale manufacture and distribution of crack
nationwide. J.A. 103.
The government also
provided evidence, based on an informal survey of Assistant United States
Attorneys *6 in the Central District of California, that at least 11
non-black defendants had been indicted on crack charges during the period
covered by respondents' affidavit. J.A.
82, 169. Five of those 11 were
represented by the Federal Public Defender.
J.A. 82, 169. Finally, the
government also submitted computerized records showing that from 1989 to 1992 approximately 2,400 defendants had been charged with drug
offenses under 21 U.S.C. 841 and approximately
1,700 defendants had been charged with drug conspiracy offenses under 21 U.S.C. 846. J.A. 82.
In response,
respondents offered an affidavit from one of respondents' defense attorneys
stating that she had spoken to an intake coordinator at a drug treatment center
in Pasadena, California, who told her that, based on his experience, there are
"an equal number of caucasian users and dealers to minority users and
dealers." J.A. 138. A second defense attorney asserted in a
declaration that, based on his discussions with judges, prosecutors, and
defense attorneys, many non-blacks are prosecuted in state court for crack
offenses. J.A. 141. Finally, respondents offered a newspaper
article that stated that the federal penalty for crack offenses is higher than
the penalty for powder cocaine offenses and that most federal defendants in
crack cases nationwide are black. Pet.
App. 6a-7a, 33a; J.A. 208-210.
The district court
denied the government's motion for reconsideration, stating:
The statistical
data provided by [respondents] raises a question about the motivation of the
Government which could be satisfied by the Government disclosing its criteria,
if there is any *7 criteria, for bringing thiscase and others like it in
Federal court. Without the criteria, the statistical data is evidence and does
suggest that the decision to prosecute in Federal court could be motivated by
race.
J.A. 217. After the government indicated that it would
not comply with the court's discovery order, the district court dismissed the
indictment. J.A. 224-226.
3. A divided panel
of the court of appeals reversed. Pet.
App. 68a-104a. The panel held that, to
justify discovery on a claim of selective prosecution, a criminal defendant must
demonstrate a "colorable basis for believing that 'others similarly
situated have not been prosecuted.' "
Id. at 80a. The panel determined
that respondents' 24-case study failed to satisfy that test because it showed
only that "others have been prosecuted, not that others similarly situated
have not." Ibid. Without a
colorable basis for believing that others similarly situated have not been
prosecuted, the panel stated, "the most reasonable conclusion is that the
defendant was selected for prosecution because the government believed the
defendant committed the offense; the
fact that the defendant is a member of a protected class is
coincidental." Ibid.
Judge Reinhardt
dissented. Pet. App. 85a-104a. In his view, a court "must assume * * *
that people of all races commit all types of crimes." Id. at 96a.
For that reason, Judge Reinhardt concluded that, "[w]here a
defendant shows a reasonable statistical basis for the inference that all
defendants charged with a particular federal crime over
a significant period of time were members of a single race, such a *8
showing creates, ipso facto, a colorable basis for believing that similarly
situated members of other races were not prosecuted." Id. at 96a-97a.
4. The court of
appeals granted rehearing en banc to resolve a conflict in its cases over the
standards governing discovery when a defendant claims selective
prosecution. By a 7-4 vote, the court
held that the district court had not abused its discretion in ordering
discovery in this case. Pet. App.
1a-67a.
The majority first
held that a district court has discretion to order discovery on a claim of
selective prosecution when "the evidence provides a colorable basis for
believing that discriminatory prosecutorial selections have
occurred." Pet. App. 8a. Rejecting the view expressed in United
States v. Bourgeois, 964 F.2d 935, 940 (9th Cir.), cert.
denied, 113 S. Ct. 290 (1992), that
discovery should be ordered only in the rare case, the en banc court held that
the applicable standard does not set a "high threshold" to obtain
discovery. Pet. App. 9a. Instead, it requires defendants to produce
"some evidence tending to show the essential elements of the claim,"
a standard that is met when the evidence is "more than frivolous and based
on more than conclusory allegations," and when defendants "make good
faith efforts to obtain whatever evidence is readily available, as well as to
provide whatever evidence is already in their
possession." Id. at 8a, 12a. Because the court believed that proving a
case of selective prosecution is difficult and that the information necessary
to support such a claim may be in the government's exclusive possession, the
court concluded that a more substantial threshold showing should not be
required. Id. at 11a-12a. The court also held that, by itself,
statistical information concerning whom the government has prosecuted can
establish a *9 prima facie case of race-based selective prosecution. Id.
at 10a & n. 1. Concluding that the standard for obtaining discovery should
be lower than that required for a prima facie case, the court held that
"inadequately explained evidence of a significant statistical disparity in
the race of those prosecuted suffices to show the colorable basis of
discriminatory intent and effect that warrants discovery on a selective
prosecution claim." Id. at 11a.
Applying those
standards, the court held that respondents' identification of 24 black crack
defendants was sufficient to establish a "disparity," and therefore
to warrant discovery. The court stated
that, although "such a small number of cases does not conclusively
establish either of the elements of selective prosecution * * *, the fact that
every single crack defendant represented by the Federal Public Defender in all
cases that terminated during 1991 was black provides a colorable basis for
believing that the challenged prosecutorial policies
are driven by discriminatory motives and yield discriminatory
effects." Pet. App. 16a. The government argued that respondents'
affidavit failed to establish a disparity and thus was inadequate to justify
discovery because it "shows only that blacks have been prosecuted, not
that others of different races and similarly situated have not." Id. at 18a.
The court concluded, however, that it was proper to infer a disparity,
despite the absence of a comparison pool, because of a "presumption that
people of all races commit all types of crimes." Id. at 19a. Otherwise,
the court said, "we would be accepting unwarranted racial
stereotypes." Id. at 19a n. 6. The
court therefore inferred a showing of racial disparity sufficient to warrant
discovery. The court also rejected the
government's contention *10 that no evidence of discriminatory purpose
had been presented. Rather, it
expressed the view that an unexplained race-based "disparity" is
sufficient evidence of discriminatory intent to justify discovery. Id. at 25a.
Chief Judge Wallace
concurred in the judgment. Pet. App.
28a-31a. He rejected the majority's
holding that the discovery threshold in a selective prosecution case should not
be "high." In his view,
"a high threshold 'is appropriate because courts are ill equipped to
assess a prosecutor's charging decisions, and oversight of prosecutorial
decisions could undermine effective law enforcement.' " Id. at 29a.
Nevertheless, he concurred in the result in this
case because of his view that an appellate court should not overturn a district
court's discovery order absent a clear error in judgment. Id. at 29a, 31a.
Judge Rymer, joined
by Judges Leavy, T.G. Nelson, and Kleinfeld, dissented. Pet. App. 32a-67a. Judge Rymer summarized her disagreement with the majority as follows:
For the first time
in this circuit or any other, the en banc court has held that a raw number of
prosecutions, without reference to a comparison group and without evidence that
others, similarly situated except for their race, have not been prosecuted,
provides a colorable basis for the existence of both discriminatory effect and
discriminatory intent sufficient to order discovery from the government in
connection with a criminal defendant's selective prosecution defense. Also, though both the Supreme Court and this
circuit have made clear that discriminatory effect and discriminatory intent
are two different elements, *11 each of which must exist, the majority's
opinion effectively collapses intent into effect by holding that both may be
shown by the same, insubstantial statistic.
Additionally the opinion has formally removed the "high
threshold" that, until now, we explicitly (and other circuits implicitly)
have required to be met before discovery relating to a selective prosecution
claim can be ordered. In so doing, the
majority opinion radically, and unnecessarily, rewrites
the law of selective prosecution.
Id. at 32a. Judge Rymer concluded that, in view of the
majority's relaxed standard for ordering discovery, government resources that
would better be spent on prosecuting crime will instead be devoted to
"chasing statistics." Id. at 67a.
SUMMARY OF ARGUMENT
The court of appeals
erred in holding that discovery on a claim of selective prosecution may be
ordered based solely on evidence that members of a particular race have been
prosecuted, without any evidence that similarly situated persons of a different
race have not been prosecuted.
A. The government
has broad prosecutorial discretion, and courts are properly reluctant to
subject particular exercises of that discretion to scrutiny. The reasons are that prosecutorial
discretion is a core element of the Executive's power under Article II; courts are ill-equipped to evaluate the many
factors that affect the decision to prosecute;
judicial inquiry into a prosecutor's decisions can chill law
enforcement; and judicial scrutiny of
charging decisions diverts a criminal proceeding from its central purpose: determining whether the defendant is *12
guilty of the charges against him.
Wayte v. United States, 470 U.S. 598, 607 (1985).
Prosecutorial
discretion is nonetheless subject to equal protection limits. The Constitution is violated when a defendant establishes
that (1) similarly situated persons of a different race have not been
prosecuted and (2) the difference in treatment is motivated by race. Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886). Because of the unique considerations
implicated by judicial inquiry into an exercise of prosecutorial discretion,
however, a defendant must show both elements of a selective prosecution claim
through exceptionally clear proof.
The special
considerations involved when courts review a substantive claim of selective
prosecution also bear on the standard for obtaining discovery from the
government on a claim of selective prosecution. In order to avoid encroachment into an area that the Constitution
reserves to the Executive Branch, and unwarranted litigation on an issue that
is collateral to the defendant's guilt, judicial inquiry should not even begin
until there is a substantial and concrete basis for suspecting unconstitutional
conduct. Accordingly, discovery on a claim of race-based selective prosecution
may not be ordered unless a criminal defendant makes a "substantial
threshold showing" both that similarly situated persons of a different
race have not been prosecuted and that the difference in treatment is motivated
by a racially discriminatory intent.
B. Because proof of
improper selection is an indispensable element of a selective
prosecution claim, a criminal defendant must introduce solid and credible
evidence on it at the discovery stage.
Accordingly, the courts of appeals have uniformly held that *13
discovery on a claim of selective prosecution is unwarranted unless a defendant
makes a threshold showing of "selection," i.e., that similarly
situated persons were not prosecuted.
The requirement that
a defendant make a showing that similarly situated persons have not been
prosecuted is easily administered by courts.
It is therefore a particularly practical way to identify those few cases
worthy of further judicial inquiry. At
the same time, because evidence concerning similarly situated offenders is not
in the government's exclusive possession, requiring criminal defendants to
introduce such evidence will not cut off meritorious claims prematurely.
Under the correct
legal standard, respondents' evidence that all of the 24 crack prosecutions
closed by the Federal Public Defender in 1991 involved black defendants was
insufficient to justify a discovery order.
It demonstrates only that blacks have been prosecuted, not that others
similarly situated have not. The district court therefore acted on the basis of
an incorrect understanding of law and consequently abused its discretion in
ordering discovery.
C. In upholding the
discovery order in this case, the Ninth Circuit dispensed with any requirement
to show that similarly situated offenders were not prosecuted. Its reasons for diluting the required
showing, however, are unsound.
The court of appeals
concluded that race-based selective prosecution claims differ from other
selective prosecution claims: according
to the court, defendants alleging selection based on race may rely on a legal
presumption that people of all races commit all types of crimes. But a showing that similarly situated
offenders have not been prosecuted is an indispensable *14 element of a
selective prosecution claim, and that is no less true when the ground of
selection is alleged to be race. The
court of appeals' presumption also runs counter to the settled rule that the
government is presumed to act in good faith;
that presumption can only be overcome by proof of specific facts. And the requirement that a defendant show
that similarly situated persons have not been prosecuted does not accept racial
stereotypes. Requiring such proof instead recognizes the possibility that, for
socioeconomic and historical reasons, members of particular groups may
predominate in the commission of certain crimes.
The court of appeals
also erred in relying on cases holding that statistical disparities can
establish a prima facie case of discriminatory effect and intent. Under those cases, a disparity does not
exist simply because those prosecuted are predominantly of one race. Rather, a disparity exists only when there is a significant difference between the composition
of the group prosecuted and the composition of the group eligible for
prosecution, a showing that necessarily requires proof that others who are
similarly situated have not been prosecuted.
The Court's decisions in Yick Wo and Ah Sin v. Wittman, 198 U.S. 500 (1905), confirm the
importance of evidence that similarly situated persons of a different race have
not been prosecuted in cases that rely on statistics. In Yick Wo, evidence concerning similarly situated offenders was
presented, and a violation was found.
In Ah Sin, no allegation concerning similarly situated offenders was
made, and the Court found the claim insufficient as a matter of law.
The court of
appeals' concern that defendants who have potentially meritorious claims may be
unable *15 to prove them without discovery is insufficient to change the
discovery standard. If there were any
substance to respondents' assertion of selective prosecution, they should have
had no difficulty producing concrete evidence that similarly situated
non-blacks were being prosecuted in the state criminal justice system.
Finally, the
principle that a district court's discovery orders are reviewed under an abuse
of discretion standard does not affect the analysis in this case. A district court must exercise its
discretion in accordance with a correct understanding of the law. Because the district court ordered discovery
under an incorrect legal approach, its decision
constituted an abuse of discretion.
ARGUMENT
DISCOVERY ON A CLAIM OF SELECTIVE PROSECUTION ON THE BASIS
OF RACE MAY NOT BE
ORDERED ABSENT EVIDENCE THAT SIMILARLY SITUATED PERSONS OF A
DIFFERENT RACE
HAVE NOT BEEN PROSECUTED
The court of appeals
held that trial courts may order discovery on a claim of selective prosecution
based solely on evidence that persons of a particular race have been prosecuted
for a particular offense, without any evidence that similarly situated persons
of a different race have not been prosecuted.
For reasons that follow, that holding is incorrect. Except in cases involving direct admissions
by officials of discriminatory purpose, a defendant seeking discovery on a
claim of selective prosecution based on race must present evidence establishing
that similarly situated persons of a different race have not been
prosecuted. Because no such showing was
made *16 in this case, the district court's exercise of its discretion
in ordering discovery rested on an erroneous understanding of the law.
A. A Defendant
Seeking Discovery On A Claim Of Selective Prosecution Must Make A Substantial
Threshold Showing
1. A prosecutor has
broad discretion in the enforcement of the criminal laws. "[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); Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting
Bordenkircher); see also Town of Newton
v. Rumery, 480 U.S. 386, 396 (1987) (opinion of
Powell, J.); United States v. Goodwin, 457 U.S. 368, 380 n. 11 (1982); Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980); United States v. Batchelder, 442 U.S. 114, 124 (1979). That principle is founded on several
important considerations. First,
prosecutorial discretion is a core element of the Executive's power to
"take Care that the Laws be faithfully executed." U.S. Const.
Art. II, § 3. See Heckler v. Chaney,
470 U.S. 821, 832 (1985); United States v. Nixon, 418 U.S. 683, 694 (1974); Ponzi v. Fessenden, 258 U.S. 254, 262 (1922). Separation-of-powers principles therefore
constrain judicial review of prosecutorial decisions. Second, "the decision to prosecute is particularly
ill-suited to judicial review."
Wayte, 470 U.S. at 607. The factors that the government must
consider in deciding to prosecute, such as the strength of the case, the
general deterrence value, and the government's enforcement priorities, "are
not *17 readily susceptible to the kind of analysis the courts are
competent to undertake." Ibid. Third, judicial
review of prosecutorial decisionmaking "threatens to chill law enforcement
by subjecting the prosecutor's motives and decisionmaking to outside inquiry,
and may undermine prosecutorial effectiveness by revealing the Government's
enforcement policy." Ibid. See
also Town of Newton, 480 U.S. at 396 (opinion of Powell,
J); United States v. Lovasco, 431 U.S. 783, 793-794 (1977). Finally, judicial scrutiny of a prosecutor's
charging decisions imposes high costs on the criminal justice system. The purpose of a criminal proceeding is to
determine a defendant's guilt or innocence, and examination of the prosecutor's
reasons for bringing a prosecution diverts the proceeding from that central
issue, resulting in delay that can be "fatal to the vindication of the
criminal law." Cobbledick v.
United States, 309 U.S. 323, 325 (1940). See also DiBella v. United States, 369 U.S. 121, 126 (1962). Those factors "make the courts properly
hesitant to examine the decision whether to prosecute." Wayte, 470 U.S. at 608.
Although
prosecutorial discretion is broad, it is subject to constitutional
constraints. In particular, the
decision 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); accord Wayte, 470 U.S. at 608; Batchelder, 442 U.S. at 125. "Though the law itself be fair on its
face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an
unequal hand, * * * the denial of equal justice is still within the prohibition
of the Constitution." Yick Wo v.
Hopkins, 118 U.S. 356, 373-374 (1886).
*18 Claims of
selective prosecution are governed by "ordinary equal protection
standards." Wayte, 470 U.S. at 608. Absent proof of an explicit discriminatory
classification, a criminal defendant alleging selective prosecution based on
race must therefore show that (1) persons of a difference race in "similar
circumstances" have not been prosecuted and (2) the difference in
treatment is motivated by an intent to discriminate against members of the
defendant's race. Yick Wo, 118 U.S. at 374. As the Court stated in Wayte, 470 U.S. at 608, a criminal
defendant must demonstrate both a "discriminatory effect" and a
"discriminatory purpose." See
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979); Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 264-265 (1977); Washington v. Davis, 426 U.S. 229, 239-241 (1976).
Because of the special considerations implicated by judicial inquiry into an
exercise of prosecutorial discretion, those two elements of the claim must be
satisfied by "exceptionally clear proof." McCleskey v. Kemp, 481 U.S. 279, 297 (1987). In the absence of such proof, courts must
presume that a prosecution for violation of a criminal law has been undertaken
in good faith for the purpose of bringing offenders to
justice. United States v. Mezzanatto, 115 S. Ct. 797, 806 (1995); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); United States v. Parham, 16 F.3d 844, 846 (8th
Cir.1994); United States v.
Penagaricano-Soler, 911 F.2d 833, 837 (1st
Cir.1990); United States v. Bassford, 812 F.2d 16, 19 (1st Cir.), cert.
denied, 481 U.S. 1022 (1987); Attorney General v. Irish People, Inc., 684 F.2d 928, 947 (D.C.Cir.1982),
cert. denied, 459 U.S. 1172 (1983); *19 United States v. Falk, 479 F.2d 616, 620 (7th Cir.1973) (en
banc).
2. The same
considerations that make courts reluctant to examine exercises of prosecutorial
discretion and that require exceptionally clear proof to establish a claim of
unconstitutional selective prosecution also determine the standard that should
govern discovery on such a claim. In
order to avoid judicial encroachment into an area that the Constitution
reserves to the Executive Branch, judicial inquiry into a prosecutor's reasons
for bringing a prosecution should not even begin unless there is a substantial
and concrete basis for suspecting unconstitutional action. That prerequisite to judicial inquiry is
especially important because criminal defendants often "transform [their]
resentment at being prosecuted into the ascription of improper and malicious
actions to the [government's] advocate."
Imbler v. Pachtman, 424 U.S. 409, 425 (1976). Absent threshold screening to prevent
abuses, defendants would be able to employ claims of selective prosecution and
associated discovery demands as powerful tools to divert a prosecutor's
"energy and attention * * * from the pressing duty of enforcing the
criminal law," ibid., and to delay the resolution of criminal charges
against them. See United States v.
Moon, 718 F.2d 1210, 1230 (2d Cir.1983)
("Unwarranted judicial inquiries" into prosecutorial motive
"undermine the strong public policy that resolution of criminal cases not
be unduly delayed by litigation over collateral matters."), cert. denied, 466 U.S. 971 (1984). [FN1]
FN1. The Sixth Amendment guarantee of a speedy trial, the
federal Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq., Rules 2 and
50 of the Federal Rules of Criminal Procedure, and Rule 45(b) of the Federal
Rules of Appellate Procedure all provide for the prompt disposition of criminal
cases. Because of the important public
policy of expediting the resolution of criminal charges, the right to discovery
in criminal cases is sharply limited.
"There is no general constitutional right to discovery in a
criminal case." Weatherford v.
Bursey, 429 U.S. 545, 559 (1977). Due process requires the government to
disclose exculpatory evidence that is material to guilt or punishment (Brady v.
Maryland, 373 U.S. 83 (1963)), but the Federal Rules of Criminal Procedure, primarily
Rule 16, otherwise govern the extent of discovery in criminal cases. Rule 16 contains specified categories of
information subject to disclosure by the prosecution and defense, requiring in
general that those items subject to discovery must be relevant and material to
the defense of the criminal charges.
Permitting discovery on claims of selective prosecution where there has
not been a substantial threshold showing would undermine that policy and allow
criminal defendants to circumvent the limitations on discovery built into the
Federal Rules. See United States v.
Murdock, 548 F.2d 599, 600 (5th Cir.1977) (a
threshold showing of selective prosecution is required because "[t]o hold
otherwise would encourage the assertion of such defense, no matter how
spurious, as a means of burdening criminal trials with massive discovery of
material completely irrelevant and immaterial to the defendant's case").
*20
Accordingly, before obtaining discovery on a claim of selective prosecution, a
criminal defendant is required to make a substantial threshold showing on each
element of the claim. By requiring a
significant threshold showing, courts may avoid unwarranted and highly
intrusive inquiries into a prosecutor's judgment about why it was important to
bring a case. At the same time, that standard will serve to prevent the needless
diversion of government and judicial resources from the adjudication of a
criminal case to the disposition of a selective prosecution motion.
*21 The
Court's decision in Wade v. United States, 504 U.S. 181 (1992), supports that
approach. In Wade, the Court considered
whether a court may review a claim that the government unconstitutionally
refused to file a motion for a departure from a mandatory minimum sentence based
on the defendant's substantial assistance to the prosecution, and, if so, what
showing a criminal defendant must make to obtain discovery on that claim. The Court held that such a discretionary
decision should be treated no differently from a prosecutor's other decisions
and that district courts therefore have authority "to review a
prosecutor's refusal to file a substantial-assistance motion and to grant a
remedy if they find that the refusal was based on an unconstitutional
motive." Id. at 185-186. The Court then noted the defendant's
concession that, in order to obtain discovery on such a claim, the defendant
was required to make a "substantial threshold showing" of an
unconstitutional motive. Id. at 186. Because the defendant had failed to make
such a showing, the Court held that discovery was properly denied. Id. at 186-187. In Wade, as here, the requirement of a
substantial threshold showing properly balances the interest of courts in
protecting the equal protection rights of individuals
with the necessary judicial hesitance to explore the motives of prosecutors in
bringing a criminal case.
B. The Showing To
Obtain Discovery Must Include Some Evidence That Similarly Situated Persons
Have Not Been Prosecuted
A key threshold
requirement that a defendant must meet in the selective prosecution context is
the presentation of concrete evidence on both elements of a selective
prosecution claim, including a threshold *22 showing of
"selection," i.e., that others who are similarly situated have not
been prosecuted. That principle has
been uniformly recognized and applied in the courts of appeals.
In Attorney General
v. Irish People, Inc., 684 F.2d 928, 932 (1982), cert.
denied, 459 U.S. 1172 (1983), the D.C.
Circuit articulated the governing principles with particular clarity. There, the court held that, in order to
obtain discovery from the government on a claim of selective prosecution, a
defendant must not only introduce evidence of improper motive, but must also
"make a colorable showing that he has been especially singled out, that
there exist persons similarly situated who have not been prosecuted." 684 F.2d at 946. The court reasoned that "a
demonstration of selection is indispensable for the defense and * * * the
burden of so demonstrating lies squarely on the defendant." Ibid. It explained that "[i]f, as the
district court found, there was no one to whom
defendant could be compared in order to resolve the question of selection, then
it follows that defendant has failed to make out one of the elements of its
case. Discrimination cannot exist in a
vacuum; it can be found only in the
unequal treatment of people in similar circumstances." Ibid. The court made clear that evidence
that there are similarly situated offenders is essential not only to prove a
claim of selective prosecution, but also to obtain discovery on such a claim (id. at 947-948 (footnote omitted)):
[W]e can see no
reason for throwing out half the standard on the discovery issue. If either part of the test is failed, the
defense fails; thus it makes sense to
require a colorable claim of both before subjecting the Government to
discovery. Since it *23 is well
established that, even in the context of a criminal prosecution, the Government
enjoys a presumption of having "undertaken [the action] in good faith and
in nondiscriminatory fashion," it also makes sense that the burden be
generally on the defendant to show the necessary elements at each procedural
stage.
The court's analysis
in United States v. Cooks, 52 F.3d 101, 105 (5th Cir.1995), a
case similar to the present one, also illustrates the correct approach. There, a defendant prosecuted for conspiring
to distribute more than 50 grams of crack sought discovery on a claim that
blacks were selectively prosecuted in federal rather than state court. In support of that request, the defendant introduced statistical evidence that the
overwhelming majority of those arrested for possession of crack are black and
that such arrests have increased tenfold in recent years. Ibid. The Fifth Circuit held that discovery
was properly denied because the statistical evidence "fail[ed] to satisfy
the first prong of the selective prosecution inquiry; it d[id] not establish that white defendants committing this
offense were prosecuted in state rather than federal court." Ibid.
The Second, Fourth,
Sixth, Seventh, Eighth, and Tenth Circuits have all similarly held that
discovery may not be ordered against the government on a claim of selective
prosecution absent a threshold showing on both elements of the claim. Those circuits have therefore affirmed
district court decisions denying discovery where the defendant failed to make a
threshold showing that similarly situated persons were not prosecuted. See United States v. Fares, 978 F.2d 52, 59-60 (2d Cir.1992) (no
abuse of discretion in *24 refusing to order discovery where defendant
did not offer "evidence as to large numbers of similarly situated persons
known to the government who had not been prosecuted"); United States v. Greenwood, 796 F.2d 49, 52-53 (4th Cir.1986)
(discovery properly denied because defendant failed to make nonfrivolous
showing that he had been singled out while others who were similarly situated
had not been prosecuted); United States
v. Peete, 919 F.2d 1168, 1176 (6th Cir.1990)
(discovery properly denied because defendant,
"aside from his own self-serving affidavit and an affidavit from
his counsel, did not point to any evidence that others similarly situated were
not prosecuted"); United States v.
Schmucker, 815 F.2d 413, 418-419 (6th Cir.1987)
(without any evidence of others similarly situated who were not prosecuted,
defendant not entitled to discovery);
United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985)
(to compel discovery, defendant must show colorable basis for selective
prosecution claim, which must include some evidence that defendant was singled
out for prosecution while others were not);
Parham, 16 F.3d at 846-847 (8th Cir.)
(discovery properly denied because, "[w]here a defendant cannot show
anyone in a similar situation who was not prosecuted, he has not met the
threshold point of showing that there has been selectivity in
prosecution"); C.E. Carlson, Inc.
v. SEC, 859 F.2d 1429, 1437-1438 (10th
Cir.1988) (discovery properly denied because securities dealers sanctioned by
SEC "were unable to show that others similarly situated were not subjected
to enforcement proceedings"). Even
the Ninth Circuit had, before the decision in this case, correctly required
defendants seeking discovery from the government to introduce "solid,
credible" evidence that other similarly situated *25 offenders had
not been prosecuted in order to obtain discovery on a claim of selective
prosecution. United States v. Bourgeois, 964 F.2d 935, 939 (9th Cir.), cert.
denied, 113 S. Ct. 290 (1992).
The substantial
threshold showing necessary to permit a court to order discovery on a selective
prosecution claim does not require proof of a prima facie case of selective
prosecution. The evidence need not be
so forceful or comprehensive as would be required to establish a prima facie
case. But a mere nonfrivolous assertion
of selective prosecution is not enough to justify an order requiring
discovery. If defendants were not
required to come forward with more than a nonfrivolous assertion, they could
too easily provoke unwarranted inquiries and needless delay. A substantial threshold showing lies between
those two poles. It requires concrete
evidence on both elements of a selective prosecution claim sufficient to show a
reasonable likelihood that unconstitutional selective prosection has taken
place. The standard will
"discourage fishing expeditions, protect legitimate prosecutorial discretion,
[and] safeguard government investigative records." Bourgeois, 964 F.2d at 940.
Requiring defendants
to make a significant threshold showing that others who are similarly situated
have not been prosecuted is a particularly practical device for courts to use
in determining whether or not further judicial inquiry may be warranted. The question whether similarly situated
offenders have been prosecuted is readily susceptible
to objective proof. At the same time,
the requirement that a defendant make a significant threshold showing that
others who are similarly situated have not been prosecuted "still allow[s]
meritorious *26 claims to proceed." Bourgeois, 964 F.2d at 940. In those rare instances in which there are
reasonable grounds to credit and explore a claim of selective prosecution, it
should not be difficult for a criminal defendant to make an objective showing
of disparity of treatment.
Experience in the courts
of appeals demonstrates that evidence concerning similarly situated offenders
is not in the government's exclusive possession. See United States v. Adams, 870 F.2d 1140, 1145-1146 (6th
Cir.1989) (discovery ordered where record suggested that taxpayers who
underreported income and voluntarily amended returns and paid deficiencies, as
defendants did, were not prosecuted);
United States v. Gordon, 817 F.2d 1538, 1540 (1987)
(discovery affirmed; colorable
entitlement shown where defendants presented some evidence of similar
violations by other persons who were not prosecuted, as well as evidence of
invidious intent), vacated in part on rehearing on other grounds, 836 F.2d 1312 (11th Cir.), cert.
dismissed, 487 U.S. 1265 (1988); United States v. Holmes, 794 F.2d 345, 348 & n. 3 (8th
Cir.1986) (defendant submitted names of 30 white farmers not prosecuted for same
conduct; court's review of prosecution
records in camera showed adequate explanation for
defendant's allegations); United States
v. Hoover, 727 F.2d 387, 389 (5th Cir.1984)
(defendant met first part of test for selective prosecution by showing that
only three of the 300 striking air traffic controllers in the Houston area were
prosecuted); United States v. Hazel, 696 F.2d 473, 475 (6th Cir.1983)
(showing that 34 other members of Michigan tax revolt group committed same
offense but were not prosecuted probably enough to demand evidentiary hearing
on first prong of selective prosecution test, but defendants failed to *27
show evidence of intent to discriminate);
United States v. Diggs, 613 F.2d 988, 1003-1004
(D.C.Cir.1979) (congressman offered evidence that two other congressmen who had
engaged in similar conduct were not prosecuted; court assumed that first prong of discovery standard was met, but
denied discovery on the ground that there was no evidence of discriminatory intent),
cert. denied, 446 U.S. 982 (1980); United States v. Steele, 461 F.2d 1148, 1151 (9th Cir.1972)
(conviction reversed based on defendant's showing that six others who had also
refused to complete census form were not prosecuted). A requirement that a defendant produce some evidence of similarly
situated offenders to obtain discovery is therefore a fair burden to place on a
defendant who seeks to inquire into the prosecutor's motives for bringing a
criminal case.
Respondents did not
meet that burden. In support of their
claim of selective prosecution, respondents produced
evidence that all of the 24 crack prosecutions closed by the Federal Public
Defender in 1991 involved black defendants.
Under the correct legal standard, that evidence was legally insufficient
to justify a discovery order. As the
original panel in this case explained, that evidence "demonstrates only
that others have been prosecuted, not that others similarly situated have
not." Pet. App. 80a. The showing therefore contains "a total
lack of evidence" (ibid.) on an essential element of a selective
prosecution claim: the disparate
treatment of offenders who are similarly situated but for their race. Thus, as the *28 original panel
concluded, the district court's discovery order was unwarranted. [FN2]
FN2. The district court did not rely on respondents'
affidavits in exercising its discretion to order discovery in this case. J.A. 217.
They are therefore irrelevant here.
In any event, those affidavits are also legally insufficient to support
a discovery order. See note 4, infra.
C. The Court Of
Appeals' Reasons For Eliminating The Similarly Situated Offender Requirement
Are Unsound
The court of appeals
recognized that there was no factual showing in this case that the government
had failed to prosecute similarly situated persons of a different
race. The court held, however, that
such evidence was unnecessary. The
court of appeals gave several reasons for dispensing with the similarly
situated offender requirement universally recognized by other circuits. Those reasons are unsound.
1. The court first
held that evidence of similarly situated offenders is unnecessary because of a
legal presumption "that people of all races commit all types of
crimes." Pet. App. 19a & n. 6.
According to the court, a criminal defendant can rely on that presumption,
unless the government introduces "compelling contrary evidence." Id. at 19a.
The court stated that "[t]he fact that evidence of similarly
situated persons who were not prosecuted was submitted in other kinds of
selective prosecution claims is of no significance in the context of a
selective prosecution case based on race" because, in the court's view,
imposing such a requirement in relation to race-based claims "would be
accepting unwarranted racial stereotypes." Id. at 19a n. 6.
*29 The need
to identify similarly situated persons who have not been prosecuted, however,
does not diminish simply because the claim is one of race- based selective
prosecution. As the panel in this case
explained' " '[s]elective prosecution' implies that a selection has taken
place," Pet. App. 80a, and that principle is applicable to claims of
selective prosecution based on race.
Evidence that members of a particular racial group have been prosecuted fails to provide any basis for believing that a
selection has taken place, unless there is evidence that similarly situated
persons of a different race have not been prosecuted. Ibid. Absent concrete evidence to that effect, "the most
reasonable conclusion is that the defendant was selected for prosecution
because the government believed the defendant committed the offense; the fact that the defendant is a member of a
protected class is coincidental."
Ibid.
In addition, as
noted above, "in the context of a criminal prosecution, the Government
enjoys a presumption of having 'undertaken [the action] in good faith and in
nondiscriminatory fashion.' "
Irish People, Inc. 684 F.2d at 947. This Court has made clear that
"tradition and experience justify our belief that the great majority of
prosecutors will be faithful to their duty." Mezzanatto, 115 S. Ct. at 806, quoting Town of
Newton, 480 U.S. at 397. Accordingly,
"in the absence of clear evidence to the contrary, courts presume that
[prosecutors] have properly discharged their official duties." Chemical Foundation, Inc., 272 U.S. at 14-15; see McCleskey, 481 U.S. at 297. Reliance on a
presumption, rather than actual proof, to permit the defendant to make a
threshold showing of a discriminatory effect runs counter to that settled
rule. To overcome that presumption of
prosecutorial *30 good faith, the defendant must adduce facts, not
assumptions.
Nor does insisting on evidence that other similarly situated
offenders of another racial group have not been prosecuted accept racial
stereotypes. Rather, it recognizes the empirical possibility that, for
socioeconomic and historical reasons, members of particular racial and ethnic
groups may predominate in the commission of certain crimes. The government in fact presented affirmative
evidence in this case supporting the conclusion that black individuals dominate
large-scale dealing in crack, while members of other racial groups dominate the
sales of other drugs. See Pet. App.
22a; see id. at 72a-73a (panel
opinion). Information from the
Sentencing Commission confirms that particular crimes can be associated with
particular racial groups. According to
the Commission's most recent nationwide statistics, more than 90% of those
persons sentenced for trafficking in crack cocaine were black. United States Sentencing Comm'n, Annual
Report 1994, at 107 (Table 45). In
contrast, 93.4% of those sentenced for trafficking in LSD, 100% of those
sentenced for antitrust violations, and 91.4% of those sentenced for
pornography and prostitution offenses were white. Id. at 41, 107 (Tables 13, 45).
In addition, of those sentenced for trafficking in methamphetamine,
72.9% were white, while only 1.6% were black.
Id. at 107 (Table 45). The court
of appeals, in the interest of avoiding what it characterized as racial
stereotypes, was not free to adopt an evidentiary presumption that has neither a rational nor a factual foundation. Cf. Basic Inc. v. Levinson, 485 U.S. 224, 245-246 (1988); Turner v. United States, 396 U.S. 398, 404-405 (1970).
*31 2. In
dispensing with the similarly situated offender requirement, the court of
appeals also relied on cases indicating that statistical disparities alone can
constitute sufficient evidence of discriminatory effect and intent to establish
a prima facie case of selective prosecution.
The court stated that the standard for obtaining discovery is lower than
that for establishing a prima facie case.
It then reasoned that because a showing of a statistical disparity in
the race of those persons prosecuted would establish a prima facie case, it is
also sufficient to warrant discovery.
Pet. App. 10a-11a. But the
court's application of its analysis reveals its misunderstanding of the concept
of a "disparity." The court
held that respondents' evidence that all 24 crack prosecutions closed by the
Federal Public Defender in 1991 involved black defendants established a
statistical disparity, and that respondents were therefore relieved of the
necessity of showing that others who are similarly situated have not been
prosecuted. Id. at 15a-16a; see id. at 10a n. 1 (evidence of similarly
situated offenders is not required when there is statistical evidence of a
disparity in the race of those prosecuted).
The court's chain of
reasoning is seriously flawed. This
Court has held that, in some circumstances, statistical disparities can
establish a prima facie case of discriminatory effect
and intent. McCleskey, 481 U.S. at 293-294 & nn. 12, 13
(discussing cases); Village of
Arlington Heights, 429 U.S. at 266; Yick Wo, 118 U.S. at 373-374. Under this Court's decisions, however, a
disparity does not exist just because the persons prosecuted are predominantly
of one race. Rather, a disparity exists
when there is a substantial difference between the racial composition of the
group prosecuted and the racial composition of the group *32 eligible
for prosecution. See Hazelwood School
District v. United States, 433 U.S. 299, 307-308 & n. 13
(1977); Yick Wo, 118 U.S. at 373-374. Demonstrating such a disparity necessarily
entails proof that others who are similarly situated have not been
prosecuted. Absent such a showing, the
evidence fails to cast any doubt on the most obvious race- neutral explanation
for the prosecutions brought: that the
pool of persons prosecuted mirrors the pool of persons eligible for
prosecution. [FN3]
FN3. In addition, where, as here, "the discretion that
is fundamental to our criminal process is involved," McCleskey, 481 U.S. at 313, statistical
evidence would be capable of proving a violation of the Equal Protection Clause
only if the disparity between the racial composition of those selected and the
racial composition of those eligible for selection is so "stark" as
to be "unexplainable" on any ground other than race. Id. at 293-294 & n. 12; Village of Arlington Heights, 429 U.S. at 266; Yick Wo, 118 U.S. at 373. Because there was no showing of any
disparity in this case, the question of how extreme such a disparity must be to
prove unconstitutional selective prosecution is not at issue here.
Yick Wo and the
Court's subsequent decision in Ah Sin v. Wittman, 198 U.S. 500 (1905), demonstrate
that statistical evidence is capable of showing discriminatory effect and
intent only when it involves proof that similarly situated persons have not
been prosecuted. In Yick Wo, an
ordinance prohibited the operation of laundries constructed of wood except by
persons who obtained permission from the Board of Supervisors. The evidence showed that 200 laundry owners
of Chinese ancestry petitioned the Board for permission to continue their
businesses in wooden buildings, and every one of those petitions was
denied. 118 U.S. at 359 (Statement of
Facts). In contrast, of the petitions *33
filed by the 80 laundry owners of non-Chinese ancestry, all but one was
granted. Ibid. As a result, 150 laundry
owners of Chinese ancestry were arrested for violating the ordinance, while no
laundry owners of non- Chinese ancestry were arrested. Ibid. The Court held that those facts
established a violation of the Equal Protection Clause. Id. at 373-374. The Court explained
that the Board had engaged in disparate treatment of persons
of Chinese ancestry and non-Chinese ancestry who were in "similar
circumstances" and that no reason for the disparate treatment was possible
except for "hostility" to persons of Chinese ancestry. Id. at 374. The finding of a violation in Yick Wo
therefore depended on evidence that similarly situated persons had not been
prosecuted.
In Ah Sin, an
ordinance prohibited the display of gambling implements in a barred or
barricaded room. The defendant alleged
that the ordinance was enforced only against persons of Chinese ancestry. Because the defendant failed to allege that
there were persons of non-Chinese ancestry who had violated the ordinance,
however, the Court held that the defendant had failed to allege the facts
necessary to establish a violation of the equal protection principle
established in Yick Wo. The Court reasoned that
[i]n the Yick Wo
case there was not a mere allegation that the ordinance attacked was enforced
against the Chinese only, but it was shown that not only the petitioner in that
case, but two hundred of his countrymen, applied for licenses, and were
refused, and that all the petitions of those not Chinese, with one exception,
were granted. The averment in the case
at bar is that *34 the ordinance is enforced "solely and
exclusively against persons of the Chinese race and not otherwise." There is no averment that the conditions and
practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against
the ordinance than the Chinese as to whom it was not enforced.
Respondents'
statistical evidence contains the same flaw identified in Ah Sin: the absence of any evidence that similarly
situated persons of a different race were not prosecuted. The court of appeals' view that statistical
evidence need not include such information in order to prove a violation of the
Equal Protection Clause is incorrect.
See United States v. Cooks, 52 F.3d at 105 (statistics
reflecting that the overwhelming majority of those arrested for possession of
crack are African-American failed to satisfy first prong of selective
prosecution inquiry because it did not establish that white defendants
committing this offense were prosecuted in state rather than federal
court); United States v. Gutierrez, 990 F.2d 472, 476 (1993) (statistics
showing a high percentage of certain groups being prosecuted insufficient to
establish that similarly situated persons are not being prosecuted), overruled
by United States v. Armstrong, 48 F.3d 1508, 1513 n. 1 (9th
Cir.1995) (en banc); United States v.
Huff, 959 F.2d 731, 735 (8th Cir.)
(evidence from newspaper article stating that 87% of arrests in reverse sting
cases in Minneapolis were African-Americans insufficient to establish prima
facie case of selective prosecution because there was no evidence
that similarly situated *35 non-African-Americans were not being
prosecuted for similar conduct), cert. denied, 113 S. Ct. 162 (1992).
3. The court of
appeals' elimination of the similarly situated offender requirement also
appears to have been animated by its concern that defendants who have
potentially meritorious claims may be unable to prove their cases without
obtaining discovery from the government.
Pet. App. 11a-12a. Courts have
long required defendants to offer at least some evidence on both prongs of the
selective prosecution defense before ordering discovery, however, and there is
no basis for assuming that defendants with valid claims cannot meet those
standards. As previously discussed,
evidence concerning similarly situated offenders is not in the government's
exclusive possession. See pages 26-27,
supra.
The present case is
illustrative. If there were any
substance to respondents' claim that the United States Attorney improperly
selects only blacks in prosecutions for dealing in crack, respondents should
have had no difficulty producing concrete evidence that similarly situated
persons of other races were being prosecuted by the State of California. Although information concerning persons
prosecuted by the State is readily accessible to the public, respondents failed
to produce such evidence. [FN4]
FN4. The affidavits submitted by
respondents concerning non-black crack dealers contain only vague, conclusory,
and impressionistic hearsay. They do
not provide the kind of solid and credible evidence necessary to support a
discovery order. Cf. United States Dept
of Labor v. Triplett, 494 U.S. 715, 724-725 (1990). Those affidavits also fail to include any
information that would suggest that crack dealers prosecuted in the state
courts were similarly situated to respondents.
Respondents were indicted for conspiring to distribute more than 50
grams of cocaine and that conspiracy involved the use of firearms. The affidavits do not assert that there are
any non-black crack dealers prosecuted in state court who have trafficked in
comparable quantities of crack and who have used firearms in connection with
that trafficking. For those reasons,
the panel correctly concluded that the affidavits did not assist respondents in
making the threshold showing necessary to obtain discovery. Pet. App. 82a-83a (describing the affidavits
as containing unsubstantiated hearsay, noting that they do not include any
information on the quantity of drugs involved or the presence of firearms, and
concluding that they constitute "flimsy" and "ineffective"
evidence).
*36 4.
Finally, the court of appeals relied on the principle that a district court's discovery orders must be reviewed under
an abuse of discretion standard. Pet.
App. 7a; id. at 29a-31a (Wallace, J.,
concurring). A district court must
exercise its discretion, however, on the basis of correct legal
principles. As this Court has stated,
"discretionary choices are not left to a court's 'inclination, but to its
judgment; and its judgment is to be
guided by sound legal principles.' "
Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975), quoting
United States v. Burr, 25 F. Cas. 30, 35 (C.C.Va.1807) (No.
14,692d) (Marshall, C.J.). When a
district court exercises its discretion on the basis of an erroneous view of
the law, it necessarily abuses its discretion.
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402, 405 (1990). That is the situation here. As we have discussed, the district court's
order is premised on the incorrect understanding that discovery may be ordered
based solely on evidence that persons of a particular race have been prosecuted
for a particular offense, without evidence that similarly situated persons of a
different race have not been prosecuted for that offense. In view of that legal *37 error, the
district court abused its discretion in ordering discovery in this case.
The court's error is
particularly evident on the facts of this case. Respondents introduced evidence concerning an extremely small, unrepresentative
sample of defendants who were prosecuted.
That evidence proves little, if anything, about
the actual pool of persons prosecuted, and nothing about the pool of persons
eligible for prosecution. In contrast,
the government offered specific information on the reasons it brought the
charges in this case: the decision to
prosecute was based on the large quantity of drugs involved, the number of
sales and defendants, the presence of firearms violations intertwined with the
drug offenses, the involvement of a federal agency in the investigation, the
criminal histories of the defendants, and the strength of the evidence. J.A. 81.
As the panel concluded, if discovery can be ordered on that kind of
record, "district courts too often and unnecessarily could become immersed
in the workings of a coordinate branch of government, to the benefit of
neither." Pet. App. 84a. Under the controlling legal standards, the
order of discovery in this case was an abuse of discretion.
*38 CONCLUSION
The judgment of the
court of appeals should be reversed.