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138.

Sample Memorandum Supporting Motion Precluding Evidence of Selective Prosecution

The United States of America, by and through undersigned counsel, hereby moves this court for an order precluding the defendants from introducing evidence or eliciting testimony relating to their claim that they are victims of selective or vindictive prosecution, or that there has been an FDA "vendetta" against them, and for an order barring them from raising or arguing these issues at trial. Such relief is appropriate because the court has already found, in connection with the defendants' Motion to Dismiss on these grounds, that no basis for such a defense has been established by the defendants.

To support a claim of selective prosecution, a defendant bears the burden of establishing unconstitutional discrimination in the administration of a penal statute. United States v. Gutierrez, 990 F.2d 472, 476 (9th Cir. 1993). In order to establish a prima facie case of selective prosecution, a defendant must show both "(1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive, i.e. discriminatory purpose or intent." Id. at 475 (emphasis added). See also United States v. Bourgeois, 964 F.2d 935, 938 (9th Cir. 1992). The impermissibly discriminatory purpose or motive must imply "that the decision-maker selected or reaffirmed a particular course of action at least in part because or, not merely in spite of, its adverse effects upon an identifiable group. The identifiable group is typically a race, religion, or group of persons exercising a constitutional right." Gutierrez, 990 F.2d at 476 (citations omitted). Selective prosecution claims are evaluated according to ordinary equal protection standards. Bourgeois, 964 F.2d at 938. Similarly, to establish a prima facie case of vindictive prosecution, a defendant must make a "showing that charges of increased severity were filed because the accused exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness." United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982).

XXXXXXX has not provided any facts to support the allegation of prosecutorial vindictiveness or selective prosecution. He has articulated no constitutionally discriminatory purpose or motive on the part of the government, and has not indicated the nature or identity of the group to which he belongs which would provide the unconstitutionally discriminatory motive for his prosecution. He alleges only that the government acted in a discriminatory manner by failing to warn him that his activity was illegal and deciding to prosecute, "despite the fact that there were countless others engaged in the manufacture or distribution of GHB", and that FDA had a "vendetta" against him. Defendant's Motion to Dismiss at 5, lines 1-5.

Even if it were true that there was a "vendetta" against XXXXXXXX, or that he alone of the GHB distributors was targeted for prosecution, this would not suffice to establish selective prosecution.[FN1] Furthermore, these allegations are completely untrue. For example, XXXXXXXX is well aware of the other GHB distributors who have been successfully prosecuted by the government, and that they also received no warnings. He has not even documented his claim that there are persons who have distributed GHB for drug purposes who have not been prosecuted. It should also be noted that the "vendetta" claims are based solely on the statements of the estranged wife of one of the FDA investigators in a very bitter domestic situation, and cannot be afforded any credibility.

FN1. For example, there is no constitutional or statutory right either to manufacture GHB or to be warned that such activity is illegal. A warning is not a right or prerequisite to a criminal action. See United States v. Dotterweich, 320 U.S. 277, 279 (1943); United States v. Morgan, 222 U.S. 274, 280 (1911) ("the statute clearly shows that there was no intent to make notice jurisdictional").
A defendant cannot prevail on a motion to dismiss an indictment for selective or vindictive prosecution unless he has established a prima facie case. Gutierrez, 990 F.2d at 475. This court has already ruled, on September 20, 1993, that the defendants in this case have failed to establish a prima facie case of selective or vindictive prosecution. In this circuit, the failure to establish a prima facie case of selective or vindictive prosecution not only defeats a motion to dismiss on those grounds, it also precludes a defendant from presenting evidence relating to selective or vindictive prosecution. Bourgeois, 964 F.2d at 938. In fact, a defendant is not even entitled to discovery relating to these issues unless he presents "specific facts, not mere allegations, which establish a colorable basis" for such claims, a "high threshold" showing. Id. at 939. Since the defendants have not come forward with any showing, or even so much as an allegation of facts, which would indicate the existence of a possible case of selective or vindictive prosecution, they are precluded from presenting evidence relating to such defenses to the trial jury or in any way arguing such defenses at trial. See, e.g., United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984) (where evidence is insufficient as a matter of law to support a particular defense, trial court should preclude such evidence).

CONCLUSION

For all of the foregoing reasons, the government requests that the court enter an order precluding the defendants from introducing evidence or eliciting testimony relating to their claim that they are victims of selective or vindictive prosecution, or that there has been an FDA "vendetta" against them, and for an order barring them from raising or arguing these issues at trial.

Respectfully submitted this _______ day of September, 1993.

____________________________ STEVEN A. KELLER SHARON I. KURN RAYMOND W. PHILIPPS Trial Attorneys Office of Consumer Litigation U.S. Department of Justice P.O. Box 386 Washington, D.C. 200444

[cited in USAM 4-8.240]