No. 95-157 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. CHRISTOPHER LEE ARMSTRONG, ET AL. 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 ---------------------------------------- Page Break ---------------------------------------- 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 govern- ment on a claim of selective prosecution, absent evidence that similarly situated persons of a different race have not been prosecuted for that offense. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 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 US. 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 Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990) . . . . 36 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page 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 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page 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 (lst 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 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page United States Dep't 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)(l) . . . . 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 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-157 UNITED STATES OF AMERICA, PETITIONER v. CHRISTOPHER LEE ARMSTRONG, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinion of the en banc court of appeals (Pet. App. la-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). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 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)(l), in one count with possessing crack with intent to distribute it, in violation of 21 U.S.C. 841(a)(l), and in three counts with using or carrying a firearm dur- ing 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. ---------------------------------------- Page Break ---------------------------------------- 3 1. From February to April 1992, a task force composed of detectives from the Inglewood, Cali- fornia, 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, total- ling 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 war- rants 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 gov- ernment 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 Cali- fornia. 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 substan- tive 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' ---------------------------------------- Page Break ---------------------------------------- 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 offen- ses; (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 offi- cers who had investigated this case. Those affidavits stated that race had played no role in the investiga- tion 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 guide- lines- for federal prosecution. J.A. 75-79. The govern- ment 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 oc- curred, the overall strength of the evidence, the de- ---------------------------------------- Page Break ---------------------------------------- 5 terrence 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 sen- tence; the case involved multiple sales and multi- ple 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, respon- dent Armstrong had made threats against the arrest- ing officers; and several of the respondents had committed prior narcotics and firearms violations. J.A. 81. In addition, the government submitted an affi- davit 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 distribu- tion of crack nationwide. J.A. 103. The government also provided evidence, based on an informal survey of Assistant United States Attor- ---------------------------------------- Page Break ---------------------------------------- 6 neys in the Central District of California, that at least 11 non-black defendants had been indicted on crack charges during the period covered by respon- dents' affidavit. J.A. 82, 169. Five of those 11 were represented by the Federal Public Defender. J.A. 8.2, 169. Finally, the government also submitted com- puterized 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 con- spiracy 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 at- torney 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, respon- dents 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 ---------------------------------------- Page Break ---------------------------------------- 7 criteria, for bringing this case 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 rea- sonable 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 ---------------------------------------- Page Break ---------------------------------------- 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 selec- tive 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 defen- dants 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 what- ever 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 ---------------------------------------- Page Break ---------------------------------------- 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 re- quired 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 selec- tive prosecution claim." Id. at 11a. Applying those standards, the court held that respondents' identification of 24 black crack defen- dants 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 "presump- tion that people of all races commit all types of mimes." 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 ---------------------------------------- Page Break ---------------------------------------- 10 that no evidence of discriminatory purpose had been presented. Rather, it expressed the view that an un- explained 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 prosecu- tion 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 un- dermine 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 major- ity 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 pros- ecuted, provides a colorable basis for the exis- tence of both discriminatory effect and discrimi- natory 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, ---------------------------------------- Page Break ---------------------------------------- 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 dis- cretion 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 cen- tral purpose: determining whether the defendant is ---------------------------------------- Page Break ---------------------------------------- 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 violat- ed 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. Ac- cordingly, 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 indis- pensable element of a selective prosecution claim, a criminal defendant must introduce solid and cred- ible evidence on it at the discovery stage. Accord- ingly, the courts of appeals have uniformly held that ---------------------------------------- Page Break ---------------------------------------- 13 discovery on a claim of selective prosecution is un- warranted 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 prose- cuted 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 pos- session, requiring criminal defendants to introduce such evidence will not cut off meritorious claims pre- maturely. 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 se- lective 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 of- fenders have not been prosecuted is an indispensable ---------------------------------------- Page Break ---------------------------------------- 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 socio- economic and historical reasons, members of particu- lar 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 ---------------------------------------- Page Break ---------------------------------------- 15 to prove them without discovery is insufficient to change the discovery standard. If there were any substance to respondents' assertion of selective pros- ecution, 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 dis- covery orders are reviewed under an abuse of discre- tion standard does not affect the analysis in this case. A district court must exercise its discretion in ac- cordance 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 PROS- ECUTION ON THE BASIS OF RACE MAY NOT BE ORDERED ABSENT EVIDENCE THAT SIMI- LARLY 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 dis- covery on a claim of selective prosecution based on race must present evidence establishing that simi- larly situated persons of a different race have not been prosecuted. Because no such showing was made ---------------------------------------- Page Break ---------------------------------------- 16 in this case, the district court's exercise of its discre- tion 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. Rumerry, 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, prosecuto- rial 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 princi- ples therefore constrain judicial review of prosecuto- rial 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. ---------------------------------------- Page Break ---------------------------------------- 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 re- vealing 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 crimi- nal justice system. The purpose of a criminal pro- ceeding is to determine a defendant's guilt or inno- cence, 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." Cobble- dick 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). ---------------------------------------- Page Break ---------------------------------------- 18 Claims of selective prosecution are governed by "ordinary equal protection standards." Wayte, 470 U.S. at 608. Absent proof of an explicit discrimi- natory 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 "dis- criminatory purpose." See Personnel Administrator of Massachusetts y. 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 im- plicated 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 US. 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 (lst 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); ---------------------------------------- Page Break ---------------------------------------- 19 United States v. Falk, 479 F.2d 616,620 (7th Cir. 1973) (en banc). 2. The same considerations that make courts re- luctant to examine exercises of prosecutorial discre- tion and that require exceptionally clear proof to establish a claim of unconstitutional selective prose- cution also determine the standard that should govern discovery on such a claim. In order to avoid judicial encroachment into an area that the Constitution re- serves 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 espe- cially 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 em- ploy 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 in- quiries" 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). 1. ___________________(footnotes) 1 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 ---------------------------------------- Page Break ---------------------------------------- 20 Accordingly, before obtaining discovery on a claim of selective prosecution, a criminal defendant is re- quired 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 judg- ment 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 re- sources from the adjudication of a criminal case to the disposition of a selective prosecution motion. ___________________(footnotes) 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 ex- culpatory 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 eases. 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"). ---------------------------------------- Page Break ---------------------------------------- 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 mini- mum 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 discre- tionary 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 defen- dant 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 require- ment 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 prosecu- tors in bringing a criminal case. B. The Showing To Obtain Discovery Must Include Some Evidence That Similarly Situated Per- sons 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 ---------------------------------------- Page Break ---------------------------------------- 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 simi- larly situated who have not been prosecuted." 684 F.2d at 946. The court reasoned that "a demonstra- tion 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 offend- ers 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 ---------------------------------------- Page Break ---------------------------------------- 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 dis- tribute 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 ---------------------------------------- Page Break ---------------------------------------- 24 refusing to order discovery where defendant did not offer "evidence as to large numbers of similarly situ- ated 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 affi- davit 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 dis- covery, defendant must show colorable basis for selec- tive prosecution claim, which must include some evi- dence 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 (lOth Cir. 1988) (dis- covery 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 situ- ---------------------------------------- Page Break ---------------------------------------- 25 ated 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 proofof 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 suffi- cient to show a reasonable likelihood that unconsti- tutional selective projection 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 thresh- old 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 offend- ers have been prosecuted is readily susceptible to objective proof. At the same time, the require- ment that a defendant make a significant thresh- old showing that others who are similarly situated have not been prosecuted "still allow[s] meritorious ---------------------------------------- Page Break ---------------------------------------- 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 volun- tarily amended returns and paid deficiencies, as defen- dants did, were not prosecuted); United States v. Gordon, 817 F.2d 1538, 1540 (1987) (discovery affirmed; colorable entitlement shown where defendants pre- sented 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. dis- missed, 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 rec- ords 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 com- mitted same offense but were not prosecuted probably enough to demand evidentiary hearing on first prong of selective prosecution test, but defendants failed to ---------------------------------------- Page Break ---------------------------------------- 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 discrimi- natory 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 com- plete census form were not prosecuted). A require- ment 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 prosecu- tions 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 prosecu- tion claim: the disparate treatment of offenders who are similarly situated but for their race. Thus, as the ---------------------------------------- Page Break ---------------------------------------- 28 original panel concluded, the district court's discov- ery order was unwarranted. 2. 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 pre- sumption, unless the government introduces "com- pelling 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 selec- tive 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. ___________________(footnotes) 2 The district court did not rely on respondents' affida- vits 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 dis- covery order. See note 4, infra. ---------------------------------------- Page Break ---------------------------------------- 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 selec- tive prosecution. As the panel in this case explained, "`[selective 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 reason- able conclusion is that the defendant was selected for prosecution because the government believed the de- fendant committed the offense; the fact that the defen- dant 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. Reli- ance 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 ---------------------------------------- Page Break ---------------------------------------- 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 socio- economic and historical reasons, members of particu- lar 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 Commis- sion confirms that particular crimes can be asso- ciated with particular racial groups. According to the Commission's most recent nationwide statistics, more than 90% of those persons sentenced for traf- ficking 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 sen- tenced 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). ---------------------------------------- Page Break ---------------------------------------- 31 2. In dispensing with the similarly situated of- fender 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 establish- ing 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-lla. 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 defen- dants 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 dis- parity 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, how- ever, 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 ---------------------------------------- Page Break ---------------------------------------- 32 eligible for prosecution. See Hazelwood School Dis- trict v. United States, 433 U.S. 299, 307-308 & n.13 (1977); Yick Wo, 118 US. 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. 3. 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 discrimina- tory 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 ___________________(footnotes) 3 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. ---------------------------------------- Page Break ---------------------------------------- 33 filed by the 80 laundry owners of non-Chinese an- cestry, all but one was granted. Ibid. As a result, 150 laundry owners of Chinese ancestry were ar- rested for violating `the ordinance, while no laundry owners of non-Chinese ancestry were arrested. Ibid. The Court held that those facts established a viola- tion 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 en- forced only against persons of Chinese ancestry. Be- cause 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 allega- tion 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 ---------------------------------------- Page Break ---------------------------------------- 34 the ordinance is enforced "solely and exclusively against persons of the Chinese race and not otherwise." There is no averment that the con- ditions 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. 198 U.S. at 507-568. 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 in- formation 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 pos- session 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. Gutier- rez, 990 F.2d 472, 476 (1993) (statistics showing a high percentage of certain groups being prosecuted in- sufficient to establish that similarly situated per- sons 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 stat- ing 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 ---------------------------------------- Page Break ---------------------------------------- 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 simi- larly 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 dis- covery from the government. Pet. App. lla-12a. Courts have long required defendants to offer at least some evidence on both prongs of the selective pros- ecution 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 exclu- sive 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. 4. ___________________(footnotes) 4 The affidavits submitted by respondents concerning non- black crack dealers contain only vague, conclusory, and impres- sionistic hearsay. They do not provide the kind of solid and credible evidence necessary to support a discovery order. Cf. United States Dep't 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 ---------------------------------------- Page Break ---------------------------------------- 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, how- ever, 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 dis- covery 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 ___________________(footnotes) 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 respon- dents 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). ---------------------------------------- Page Break ---------------------------------------- 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 rea- sons 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 un- necessarily 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. ---------------------------------------- Page Break ---------------------------------------- 38 CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney MICHAEL R. DREEBEN Deputy Solicitor General IRVING L. GORNSTEIN Assistant to the Solicitor General KATHLEEN A. FELTON Attorney DECEMBER 1995 ---------------------------------------- Page Break ---------------------------------------- No. 95-157-1 IN THE SUPREME COURT OF THE UNTED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. CHRISTOPHER LEE ARMSTRONG, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Page Ah Sin v. Wittman, 198 U.S. 500(1905) . . . . 10, 11 Batson v. Kentucky, 476 U.S. 79 (1986) . . . . 12 Bowman Dairy Co. v. United States, 341 U.S. 214 (1951) . . . . 17 Copley Press, Inc. v. Superior Court, 7 Cal. Rptr.2d 841(1992) . . . . 16 Franks v. Delaware, 438 U. S. 154 (1978) . . . . 6 Hazelwood School Dist. v. United States, 433 U.S. 299(1977) . . . . 14 McCleskey v. Kemp, 481 U. S. 279 (1987) . . . . 7, 13 Roviaro v. United States, 353 U.S. 53 (1957) . . . . 6 United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974) . . . . 3,17 United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978) . . . . 3 United States v. Mezzanatto, 115 S. Ct. 797 (1995) . . . . 6 United States v. Murdock, 548 F.2d 599 (5th Cir. 1977) . . . . 3 United States v. Nixon, 418 U. S. 683(1974) . . . . 17 United States v. 0ne 1985 Mercedes, 917 F.2d 415 (9th Cir. 1990) . . . . 3-4 Wade v. United States, 504 U. S. 181(1992) . . . . 6, 10 Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989) . . . . 14 Wayte v. United States, 470 U.S. 598(1985) . . . . 6, 7, 11, 12 Yick Wo v. Hopkins, 118 U. S. 356(1886) . . . . 10 Statutes and rules: Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e . . . . 12 18 U.S.C. 924(c) (1988 & Supp. V 1993) . . . . 19 (I) ---------------------------------------- Page Break ---------------------------------------- II Statutes and rules-Continued: Page 21 U.S.C. 841(b)(1) (1988 & Supp. V 1993) . . . . 19 Fed. R. Civ. P.: Rule 1 . . . . 8 Rule 11 . . . . 8 Rule 11(d) . . . . 8 Rule 26 . . . . 8 Fed. R. Crim. P.: Rule 11(e)(6) . . . . 6 Rule 16 . . . . 2, 3, 4, 5, 7, 8, 17 Advisory committee note (1974 Amendment) . . . . 5 Rule 16(a) (l)(A) . . . . 4 Rule 16(a)(1)(B) . . . . 4 Rule 16(a)(l)(C) . . . . 1, 2, 4, 5, 7 Rule 16(a)(l)(D) . . . . 4 Rule 16(a)(1) (E) . . . . 4 Rule 16(b)(1970) . . . . 5 Rule 17 . . . . 17 Rule 17(c) . . . . 3 Fed. R. Evid.: Rule 201(a) . . . . 16-17 Rule 201(b) . . . . 16-17 Rule 410 . . . . 6 Miscellaneous: 2 Charles A. Wright, Federal Practice And Procedure (2d ed. 1982) . . . . 3, 17 ---------------------------------------- Page Break ---------------------------------------- No. 95-157 UNITED STATES OF AMERICA, PETITIONER v. CHRISTOPHER LEE ARMSTRONG, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES Our position is that, absent direct evidence of a discriminatory purpose, a criminal defendant must make a substantial threshold showing that similarly situated persons of a different race have not been prosecuted in order to obtain discovery from the government on a selective prosecution claim. Re- spondents offer no adequate reason for eliminating the similarly situated offender requirement. 1. The Martin respondents contend, for the first time in this litigation, that requiring a substantial threshold showing of selective prosecution as a condition to obtaining discovery conflicts with Fed. R. Crim. P. 16(a)(1)(C). Martin Br. 26-38. According (1) ---------------------------------------- Page Break ---------------------------------------- 2 to respondents, Rule 16 requires the government to provide discovery to a defendant so long as "the information already available to a defense attorney is 'sufficient to lead a reasonable person to believe . . . that further inquiry on the subject is warranted.'" Martin Br. 22, quoting Pet. App. 97a (Reinhardt, J., dissenting from the panel opinion in this case). As a general matter, discovery is not available in a criminal case on that slender basis, and respondents' suggestion is particularly unwarranted with respect to discovery incursions into the exercise of pros- ecutorial discretion. a. On its face, Rule 16(a)(1)(C) does not give a defendant unrestricted access to the government's files in order to search for a defense to the charges against him. Rather, in authorizing limited discovery in a criminal case, the portion of Rule 16 invoked by respondents specifically requires a defendant to make a threshold showing of materiality: Upon request of the defendant the govern- ment shall permit the defendant to inspect and copy or photograph books, papers, docu- ments, photographs, tangible objects, build- ings or places, or copies or portions thereof, which are within the possession, custody, or control of the government, and which are material to the preparation of the defen- dant's defense * * *. Fed. R. Crim. P.l6(a)(1)(C) (emphasis added). The Rule's restriction on discovery of documents and tangible items to those that are "material to the preparation of the defendant's defense" is a signifi- cant limitation. As one commentator has stated, "[i]f defendant requests discovery because he thinks the ---------------------------------------- Page Break ---------------------------------------- 3 documents sought are material to the preparation of his defense, he must make a prima facie showing of materiality." Charles A. Wright, Federal Practice And Procedure 254, at 66-67 (2d ed. 1982) (footnote omitted). That requirement means that, before discovery may be ordered, the defendant must estab- lish that he has a factual basis for asserting the defense on which discovery is sought, and that the requested documents or tangible items are relevant and helpful to that defense. See United States v. Murdock, 548 F.2d 599, 600 (5th Cir. 1977). The factual showing of "materiality" is to be demon- strated by the defendant "before discovery is allowed." Ibid. (emphasis added); cf. United States v. Berrios, 501 F.2d 1207, 1211-1212 (2d Cir. 1974) (requiring evidentiary showing of "the essential ele- ments of the defense and that the documents in the government's possession would indeed be probative of these elements" to obtain enforcement of a subpoena under Fed. R. Crim. P. 17(c) issued in connection with a hearing on a selective prosecution claim). Because the test under Rule 16 is "materiality," the threshold showing that must be made depends on the defense that is asserted. When information is sought to support a defense of selective prosecution based on race, the defendant must make a threshold showing of race-based selection, i.e., that he was selected for prosecution, while similarly situated persons of a different race were not. Murdock, 548 F.2d at 600; United States v. Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978) (where the defendant "did not make a prima facie showing that he was singled out for prosecution, he did not establish the materiality of the evidence sought" and consequently was not entitled to discovery under Rule 16); see also United ---------------------------------------- Page Break ---------------------------------------- 4 States v. One 1985 Mercedes, 917 F.2d 415, 421 (9th Cir. 1990) (in order to obtain discovery on a claim of vindictive prosecution, defendant must introduce evidence tending to establish the essential elements of the claim). It is not sufficient for defense counsel to assert that the information at hand affords what he claims is a reasonable basis for further inquiry. The structure of Rule 16 confirms that the "materiality" requirement was intended as a signifi- cant limitation on a defendant's right to discovery under that portion of the Rule. Rule 16 specifically permits the defendant to obtain discovery of several other categories of information without requiring the defendant to show that they are material to the defense. The government must disclose the defen- dant's relevant oral or written statements, Rule 16(a)(1)(A); the defendant's criminal record, Rule 16(a)(1)(B); the results of scientific tests that "are intended for use by the government as evidence in chief at the trial," Rule 16(a)(1)(D); summaries of expert witness testimony that the government intends to use "during its case in chief at trial," Rule 16(a)(1)(E); and, most important, all documents and physical objects that "are intended for use by the government as evidence in chief at the trial" or that "were obtained from or belong to the defendant," Rule 16(a)(1)(C). To the extent, however, that a defendant seeks other documents, tangible objects, or scientific reports in the government's possession, he must show that the documents sought are "material to the preparation of the defendant's defense." Rule 16(a)(l) (C) and (D). 1. ___________________(footnotes) 1 The history of Rule 16 also supports that analysis. As adopted in 1966, Rule 16 did not specifically address whether a ---------------------------------------- Page Break ---------------------------------------- 5 The Martin respondents contend that, because Rule 16 specifically precludes discovery of three categories of information (internal government documents, witness statements, and grand jury proceedings), interpreting the Rule to require a defendant to establish a threshold showing to obtain information outside those categories would violate the principle of "expressio[] unius est exclusio alterius." Martin Br. 27-28. The requirement of a threshold showing, however, does not create a fourth category of information that is categorically shielded from dis- closure. Rather it imposes a condition upon obtaining information that may be subject to disclosure, and that condition is drawn directlv from the text of Rule 16. The principle of expressio unius est exclusio alterius is therefore inapplicable here. b. The relaxation of discovery standards proposed by respondents is particularly inapt in the present context. The Federal Rules of Criminal Procedure were framed against the backdrop of well-established principles that sharply limit judicial inquiries into ___________________(footnotes) defendant could obtain evidence that the government would introduce at trial or had obtained from the defendant. Instead, those two categories of information were discoverable only "upon a showing of materiality to the preparation of [the defendant's] defense." Fed. R. Crim. P. 16(b) (1970). In 1975, however, Rule 16(a)(1)(C) was amended for the express purpose of relieving a defendant of having to demonstrate materiality in order to obtain those two categories of informa- tion. The Advisory Committee reasoned that evidence in- troduced by the government in its case in chief or obtained from the defendant could be assumed to be "material" without requiring the defendant affirmatively to establish that fact. Fed. R. Crim. P. 16 advisory committee note (1974 Amend- ment). For other documents, however, the materiality requirement was left intact. ---------------------------------------- Page Break ---------------------------------------- 6 exercises of prosecutorial discretion, and the "ma- teriality" requirement, in Rule 16, as applied to such inquiries, necessarily draws its meaning from those principles. Cf. United States v. Mezzanatto, 115 S. Ct. 797 (1995) (interpreting Fed. R. Evid. 410 and Fed. R. Crim. P. 11(e)(6) against the background principle that evidentiary privileges may be waived). Just as those principles require a substantial threshold showing of unconstitutional motive before a defendant may obtain discovery on a claim that the government has unconstitutionally withheld a substantial assis- tance motion, Wade v. United States, 504 U.S. 181, 186-187 (1992), so they require a substantial threshold showing of selective prosecution here. See also Franks v. Delaware, 438 U.S. 154, 155-156 (1978) (requiring "substantial preliminary showing" as a precondition to a hearing on a claim that a facially valid warrant is invalid because the affiant lied to the magistrate); Roviaro v. United States, 353 U.S. 53, 60-61 (1957) (requiring a substantial showing of materiality as a precondition to obtaining discovery of information that would disclose the identity of a confidential informant). The exercise of discretion in enforcing the criminal law is a core element of the constitutional authority of the Executive Branch, and judicial inquiry into such prosecutorial decisionmaking "entails systemic costs of particular concern." Wayte v. United States, 470 U.S. 598, 607-608 (1985). While respondents' stated "central purpose" is "to obtain from the gov- ernment an official articulation of its prosecution criteria," Martin Br. 59, this Court recognized the general inappropriateness of forcing precisely that form of disclosure in Wayte: ---------------------------------------- Page Break ---------------------------------------- 7 Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the pros- ecutor's motives and decisionmaking to outside inquiry, and may undermine prose- cutorial effectiveness by revealing the Government's enforcement policy. 470 U.S. at 607. Those concerns "make the courts properly hesitant to examine the decision whether to prosecute." Id. at 608. See also McCleskey v. Kemp, 481 U.S. 279, 296-297 & n.18 (1987) ("the policy considerations behind a prosecutor's traditionally 'wide discretion'" suggest the general "impropriety of our requiring prosecutors to defend their deci- sions"). Nothing in Rule 16 suggests that the Rule was intended to abrogate those well-established principles and to make judicial inquiries into prosecutorial decisionmaking a routine part of a criminal pro- ceeding. Accordingly, when a defendant invokes Rule 16 to seek discovery to support a claim of selective prosecution, he must make a substantial threshold showing that unconstitutional selective prosecution has occurred. c. The Martin respondents concede that some threshold showing as to the merits of a proposed defense must be made before discovery under Rule 16(a)(1)(C) may be ordered. They acknowledge that, in the absence of an "objective standard" to determine the "genuineness" of a defense, their construction of Rule 16(a)(1)(C) would result in "the sort of fishing expedition prohibited by criminal and civil discovery principles alike." Martin Br. 21-22. And respondents do not suggest that the text of Rule 16 provides any ---------------------------------------- Page Break ---------------------------------------- 8 further guidance about the kind of threshold showing required. Rather than interpreting the materiality requirement in light of settled limitations on judicial review of exercises of prosecutorial discretion, how- ever, respondents contend that the test for whether the documents relate to a "genuine defense" should be "gauged by the standard of Rule 11" of the Federal Rules of Civil Procedure. Martin Br. 14-15, 22-23. Respondents would find that test to be satisfied when "the information available to defense counsel is suffi- cient to lead a reasonable attorney to conclude that further inquiry on the subject is warranted." Id. at 23. For three reasons, Rule 11 provides no source of guidance for the interpretation of Rule 16 of the Federal Rules of Criminal Procedure. First, the set of rules to which Rule 11 belongs is expressly limited to "suits of a civil nature." Fed. R. Civ. P. 1. There is therefore no textual basis for applying Rule 11 in the context of a criminal case. Second, Rule 11 applies to pleadings or motions filed with the court, and is expressly made "[i]napplicab[le] to [d]iscovery," see Fed. R. Civ. P. 11(d). It thus provides a particularly unsuitable frame of reference for measuring entitle- ment to discovery in a criminal case. Third, it is unlikely that any standard included in the Federal Rules of Civil Procedure would be properly suited to measure whether a criminal defendant may compel discovery from the government on a claim of selective prosecution. The Civil Rules establish a very permissive discovery regime. See Fed. R. Civ. P. 26 (requiring voluntary disclosure of much information regarding the case and permitting additional dis- covery where reasonably calculated to lead to the dis- covery of admissible evidence). In contrast, because ---------------------------------------- Page Break ---------------------------------------- 9 of the important public policy of expediting the reso- lution of criminal cases, the Criminal Rules tightly limit the scope of discovery. See U.S. Br. 19 n.1. Given the very significant differences between the purposes and scope of civil and criminal discovery rules, it would be inappropriate to borrow any civil discovery standard to give content to a criminal discovery rule. Even more significantly, the Martin respondents' proposed standard does not provide any meaningful protection against intrusive and unnecessary in- quiries into prosecutorial decisionmaking. The inevitable consequence of adopting a standard that depends on whether a "reasonable attorney [would] conclude that further inquiry on the subject is warranted" would be to make judicial inquiries into prosecutorial decisions routine in a wide range of cases. As we point out in our petition (Pet. 22 & n.2, 24 & n.4), the standard adopted by the court of appeals in this case has already led to repeated judicial inquiries into claims of selective prosecution in crack and illegal reentry cases. Adoption of respondents' standard, which appears to afford even less protection for prosecutorial decisionmaking, could only acceler- ate that trend. This Court's cases do not counte- nance that kind of routine encroachment on pros- ecutorial authority. 2. ___________________(footnotes) 2 Respondent Rozelle contends that, in order to obtain dis- covery on a claim of selective prosecution, a criminal defendant must establish a "colorable basis" for believing that selective prosecution has occurred. Rozelle Br. 16-17. While courts have often used the phrase "colorable basis" in describing the standard for obtaining discovery on a selective prosecution claim, they have also uniformly held that a defendant must make a threshold showing that similarly situated offenders ---------------------------------------- Page Break ---------------------------------------- 10 2. Respondents next assert (Martin Br. 38-50) that it is unnecessary to make a showing regarding similarly situated offenders who were not prosecuted as a prerequisite to discovery because, in re- spondents' view, such a showing is not an essential element of a selective prosecution claim at all. Respondents' approach to proving selective pros- ecution is incorrect. Absent direct evidence of dis- criminatory motive, evidence that similarly situated offenders have not been prosecuted is essential to establish unconstitutional selective prosecution, see U.S. Br. 21-25, 32-35, and evidence of the same character is thus an essential element of a selective prosecution discovery request. a. The contrast between this Court's decisions in Yick Wo v. Hopkins, 118 U.S. 356 (1886), and Ah Sin v. Wittman, 198 U.S. 500 (1905), reveals the impor- tance to a selective prosecution claim of establishing that similarly situated offenders have not been prosecuted. In Yick Wo, the habeas petitioner's ___________________(footnotes) have not been prosecuted in order to establish a "colorable basis." See U.S. Br. 22-25. The court below is the first to find a "colorable basis" for discovery without imposing a similarly situated offender requirement. While the label for the test is of limited importance, in our view a clearer description of the proper standard would be to characterize it as a "substantial threshold showing." See Wade, 504 U.S. at 186 (noting defendant's concession that a "substantial threshold showing" is required to obtain discovery on a claim that the government has acted unconstitutionally in refusing to file a substantial assistance motion). The critical point, however, is that there must be an evidentiary showing to support the claim of improper prosecutorial conduct, and, in this context, that credible evidence must be produced that similarly situated offenders have not been prosecuted before discovery may be ordered. ---------------------------------------- Page Break ---------------------------------------- 11 showing that similarly situated offenders had not been prosecuted led to a finding of an equal protection violation, while in Ah Sin, the habeas petitioner's failure to allege that similarly situated persons had not been prosecuted led to a dismissal of the complaint. See U.S. Br. 32-34. Respondents contend that Ah Sin merely reflects an application of "strin- gent pleading requirement[s]." Martin Br. 43-44. Under modern pleading requirements, the habeas petitioner in Ah Sin might not have been required to allege that similarly situated offenders had not been prosecuted in order to survive a motion to dismiss. But under the holding of that decision, he still would have been required to prove that similarly situated offenders had not been prosecuted in order to prevail on the merits. Ah Sin, 198 U.S. at 506-508. Nothing in Wayte rejects the view that a selective prosecution claim depends on a showing that similar- ly situated offenders were not prosecuted. Martin Br. 42-43. The defendant in Wayte was a vocal opponent of the draft who reported his nonregistration to the government. He alleged that the government had impermissibly selected him for prosecution on the basis of his vocal opposition to the draft. The evidence established, however, that the government had a neutral policy of prosecuting those who reported their nonregistration to the government, including those who were not vocal opponents of the draft. In light of that evidence, the Court held that the defendant had failed to establish that he had been selected for prosecution based on his vocal opposition to the draft because "[the] facts demonstrate that the Government treated all reported nonregistrants similarly. It did not subject vocal nonregistrants to any special burden." 470 U.S. at 610. ---------------------------------------- Page Break ---------------------------------------- 12 The Martin respondents' contention (Br. 42-43) that Wayte rejected a similarly situated offender require- ment is therefore incorrect. The Court ruled against the defendant in that ease precisely because he was unable to show that similarly situated offenders were treated any differently from him. 3. Wayte therefore provides no support for dispensing at the discovery stage with the threshold showing of discriminatory selection. b. In support of their contention that a selective prosecution claim does not require proof that similarly situated offenders have not been prosecuted, the Martin respondents rely (Br. 41-42) on cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, and this Court's decision in Batson v. Kentucky, 476 U.S. 79 (1986). Selective prosecution claims, however, raise unique concerns that are not implicated by Title VII or Batson claims. An employer may be required to defend a hiring or promotion decision, or a litigant to defend a pre- emptory challenge, without imposing any of the "systemic costs" (Wayte, 470 U.S. at 607) associated with requiring the government to justify to a federal judge the charging decisions it has made in the case at hand and potentially in many other cases. The standards of proof applicable in those settings, there- fore, cannot readily be applied to the selective prosecution setting. ___________________(footnotes) 3 The dissent in Wayte understood the majority to have imposed a similarly situated offender requirement. The dis- sent stated that "the Court errs in the manner in which it analyzes the merits of the equal protection claim. It simply focuses on the wrong problem when it states that the 'Govern- ment treated all reported nonregistrants similarly.'" 470 U.S. at 629-630 (Marshall, J., dissenting). ---------------------------------------- Page Break ---------------------------------------- 13 This Court's decision in McCleskey v. Kemp, 481 U.S. 279 (1987), makes clear the special proof requirements applicable here. In that case, the Court held that claims that prosecutors have exercised their discretion on the basis of race must be supported by "exceptionally clear proof." Id. at 297. For that reason, the Court held that the kind of statistical evidence used to prove discrimination in Title VII and jury venire cases could not be used as a basis for shifting the burden of proof to a prosecutor to justify his discretionary decisions. Id. at 293-297. The Court explained that "the policy considerations behind a prosecutor's traditionally wide discretion suggest the impropriety of our requiring prosecutors to defend their decisions * * * often years after they were made." Id. at 296 (internal quotation marks omitted). And it noted that "[r]equiring a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors is quite different from requir- ing a prosecutor to rebut a contemporaneous chal- lenge to his own acts." Id. at 296 n.17 (citing Batson). In light of McCleskey, respondents' reliance on the procedural framework for proving Title VII and Batson claims is misplaced. 4. In any event, where, as here, a party seeks to raise an inference of discrimination based on a statistic or a pattern, Title VII and Batson both require a proper ___________________(footnotes) 4 Respondents attempt to distinguish McCleskey on the ground that it involved a challenge to decisions made by juries. Martin Br. 52-53. The claim in McCleskey, however, was that both juries and prosecutors had exercised their discretion on the basis of race. And the Court's holding that such a claim must be supported by "exceptionally clear proof" (481 U.S. at 297) applied to both the discretionary decisions of juries and the discretionary decisions of prosecutors. Id. at 294-297. ---------------------------------------- Page Break ---------------------------------------- 14 comparison pool. In the Title VII context, the Court has made clear that a plaintiff cannot establish a prima facie case of a discriminatory effect or a dis- criminatory purpose merely by showing that there is a low percentage of minority employees in a partic- ular job. Rather, there must be a comparison "be- tween the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650 (1989) (discriminatory effect); Hazelwood School Dist. v. United States, 433 U.S. 299, 306-308 (1977) (discriminatory intent). Similarly, in the Batson context, a prima facie case may not be estab- lished based solely on evidence that a litigant exer- cised preemptory challenges to exclude potential jurors of a particular race. For example, a party who strikes ten black jurors in a row has not committed a prima facie Batson violation if all of the prospective jurors on the venire are black. A pattern of striking jurors of a particular race is significant only if the litigant has declined to strike jurors of a different race. c. The Martin respondents argue that, in a variety of settings, a prosecutor's improper selection of a person for prosecution based solely on his race would be immunized from scrutiny by a requirement that a defendant must identify similarly situated offenders who were not prosecuted. Br. 39-40. They claim, for example, that that result would follow when the defendants are charged with an offense that is committed exclusively by members of one race. Ibid. That claim is incorrect. If the defendant in such a hypothetical could produce direct evidence of dis- criminatory intent, or show that he is similarly situated in all relevant respects to persons who ---------------------------------------- Page Break ---------------------------------------- 15 commit a different offense but are not prosecuted, an Equal Protection violation could be sufficiently indicated (at the discovery stage) or established (on the merits). There is no reason to think that if such unconstitutional action were taking place, defendants would be unable to obtain some credible evidence of it -and if no such evidence were available, it would plainly be inappropriate to license a "fishing ex- pedition" for it. Martin Br. 22. In any event, respondents' claim in this case is not that prosecutors have chosen to prosecute crack offenses because they are committed exclusively by members of one race. Rather, their claim is that federal prosecutors have selected black crack offend- ers for federal prosecution, while leaving white crack offenders to be prosecuted by the State of California. Respondents virtually concede that proof of similarly situated offenders who have not been prosecuted is essential to that claim by stating that, "[t]o the extent that a defendant argues that improper invid- ious distinctions were made within a particular group of offenders, such as crack dealers, the com-parative treatment of other members of that group would of course be important evidence." Martin Br. 44-45. 3. The Martin respondents contend that requiring a showing that similarly situated offenders have not been prosecuted at the discovery stage would impose a "crippling burden of proof" that will allow racial discrimination to escape undetected. Martin Br. 45-50 & n.66. As we note in our opening brief, however, defendants in other cases have satisfied the similarly situated offender requirement at the discovery stage, U.S. Br. 26-27, and if there were any merit to re- spondents' claim in this case, they should have been able to satisfy that requirement as well. ---------------------------------------- Page Break ---------------------------------------- 16 One of respondents' counsel submitted a conclusory affidavit below asserting that, in his capacity as a member of the Board of Directors of the Los Angeles County Criminal Courts Bar Association Indigent Defense Panel, he regularly conversed with "many state court judges, prosecutors, and defense attor- neys." J.A. 141. There is no reason that respondents could not have obtained concrete information from those sources concerning whether persons who were similarly situated to them were prosecuted by the State of California. The Federal Public Defender's Office in this case searched its own records for information concerning cases closed by its office; there is no reason that it could not have conducted a comparable study of cases closed by local public defenders during the same period. Finally, California law generally makes court records available to the public. Copley Press, Inc. v. Superior Court, 7 Cal. Rptr.2d 841,843-844 (1992). Respondents were free to review those files for evidence that similarly situated persons were prosecuted in state court. 5. Thus, while the similarly situated offender requirement serves as ___________________(footnotes) 5 Respondents themselves indicate the feasibility of such an inquiry, by referring to the "Berk study," which was not introduced in this case and is not a part of the record here. That study purported to compare the rates at which blacks are prosecuted for crack offenses in state and federal court. Martin Br. 12-13. While Judge Reinhardt relied on that study in his panel dissent, Pet. App. 10la-102a, in our en banc brief, we objected to the propriety of taking judicial notice of such matters, noting that the study had been extensively attacked for its failure, inter alia, to compare similarly situated defendants and could not be described as "not subject to reasonable dispute." U.S. En Banc Br. 8 & n.6 (quoting Fed. R. Evid. 201(a) and (b)). The en banc majoriy opinion did not refer to the Berk study. ---------------------------------------- Page Break ---------------------------------------- 17 an effective threshold screening device, it does not block meritorious claims. 6. The Martin respondents assert that it would have been easier for the government to produce informa- tion concerning similarly situated offenders than for the respondents to obtain such information them- selves. Martin Br. 46-47. The relative ease of acquiring information bears on the propriety of discovery, however, only after a defendant makes the requisite threshold showing of the defense in question. Because it is generally easier for the government than for criminal defendants to obtain information, any other view would lead to the ___________________(footnotes) 6 It is not our view that "the district judge in this case could properly have issued a subpoena to California officials directing them to produce information about cocaine base dealers prosecuted in state court." Martin Br. 18. A subpoena duces tecum under Fed. R. Crim. P. 17 is "not intended to provide a means of discovery for criminal cases." United States v. Nixon, 418 U.S. 683, 698 (1974), citing Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). And if respond- ents were seeking evidence under Rule 17 for use at a hearing relating to a selective prosecution defense, they would be required to make the same threshold showing that similarly situated offenders have not been prosecuted that is required by Rule 16. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974); see also United States v. Nixon, 418 U.S. at 698-670 (a party seeking to enforce a Rule 17 subpoena must make a preliminary showing that the materials sought are relevant and admissible); 2 Charles A. Wright, Federal Practice and Procedure 275, at 160 n.8 (2d ed. 1982). The government's statement below that respondents could have pursued sub- poenas to obtain state law enforcement records (see Martin Br. 18 n.47) was intended to underscore that respondents had made no independent efforts to obtain the information they sought- not to suggest that such subpoenas could have been enforced over the state's objection. ___________________(footnotes) 18 unacceptable conclusion that a defendant need only allege unconstitutional selective prosecution in order to obtain discovery on that claim. 4. Finally, the Martin respondents argue that the meaning of a similarly situated comparison pool is elusive and that absent discovery, they had no basis for determining the offenders who were "similarly situated" to them. Martin Br. 59. That argument is without merit. Respondents were required to show, at a minimum, that there were offenders not pros- ecuted who engaged in conduct comparable to the conduct that they were charged with committing. See U.S. Br. 35 n.4. A prosecutor is presumed to act in good faith. See U.S. Br. 18-19, 29-30. Accordingly, when persons not prosecuted have engaged in conduct that is significantly different from those who were prosecuted, the presumption is that the difference in treatment is based on the difference in conduct and not on impermissible considerations such as race. To overcome that presumption, the defendant must make a threshold showing that at least some persons known to the prosecution have not been prosecuted for engaging in conduct that is sufficiently similar to the conduct that the defendant is charged with com- mitting. Accordingly, the starting point for respondents was the criminal conduct with which they were charged in the indictment against them. In this case, the indictment against respondents charged them with conspiring to distribute more than 50 grams of cocaine base, and with using guns in furtherance of that conspiracy. J.A. 60-65. Under federal law, both the quantity of drugs and the use of a gun signifi- cantly affect the seriousness of a drug trafficking offense. See 21 U.S.C. 841(b)(l) (1988 & Supp. V 1993) ---------------------------------------- Page Break ---------------------------------------- 19 (setting a ten-year minimum for sale of more than 50 grams of cocaine base, and a five-year minimum for sale of more than five grams of cocaine base); 18 U.S.C. 924(c) (1988 & Supp. V 1993) (setting an additional five-year penalty for use of a gun in relation to a drug trafficking offense). To satisfy the similarly situated offender requirement, respondents were therefore required to show that others who were not prosecuted conspired to distribute a comparable amount of cocaine base and used guns in furtherance of that conspiracy. As the panel below correctly concluded (Pet. App 82a-83a), because respondents failed to make that showing, the district court abused its discretion in ordering discovery in this case. * * * * * For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General FEBRUARY 1996