Stephen Fellegy caught a walleye out of season protesting what he views to be the state’s unjust, favorable treatment of Ojib-we, the Native Americans whose treaty rights exempt them from prosecution for violating the state’s fishing restrictions on Lake Mille Lacs. The state charged Felle-gy, who is not Ojibwe, for his violation. Before trial, Fellegy challenged the charge as unconstitutional selective enforcement in violation of his constitutional right to equal protection under the law. The district court rejected Fellegy’s challenge without holding an evidentiary hearing and found him guilty of illegal fishing. Fellegy appeals, arguing that he is entitled to an evidentiary hearing on his motion. We affirm the conviction because a district court need not conduct an evidentiary hearing to explore a pretrial claim of unconstitutional selective enforcement when the defendant has not asserted facts that, if proven, would substantiate the claim.
FACTS
Two days before the walleye fishing opener in May 2010, Stephen Fellegy caught a walleye on Lake Mille Lacs in Aitkin County. He kept the fish and announced his out-of-season catch in an internet website message read by Minnesota Department of Natural Resources conservation officers. The officers investigated. Fellegy told them that he had intentionally caught and kept the fish in protest over fishing rights. The Aitkin county attorney filed charges against Fellegy for taking the walleye out of season. See Minn.Stat. § 97C.395, subd. 1(a)(1) (2008).
Fellegy pleaded not guilty. The district court scheduled a court trial for November 2010. On the day set for trial, Fellegy appeared without counsel and explained his defense. He did not dispute that he took the walleye out of season. Instead, he defended based on a racially oriented equal protection theory, contending,
[The charge must be dismissed] based on the fact that during the same time frame in Minnesota and Wisconsin citizens harvested approximately 65 tons of walleyes from the same lake. In the end, solely based on skin color and ethnic origin this charge discriminates against me and should be dismissed; and if not dismissed, I should be found not guilty based on the protection of such discrimination.
He added, “[I]f other citizens harvested fish during the same time frame out of the same body of water ... I question how the lake could be considered closed.” The district court treated Fellegy’s expression as a constitutional challenge arising from his right to equal protection and deemed it a pretrial motion to dismiss the charge. The district court directed the state and Felle-gy to submit written memoranda on the motion before January 1, 2011.
On December 15, 2010, the state filed its brief on Fellegy’s equal protection challenge. That same day, the district court judge presiding over the case recused himself and the matter was reset for a pretrial hearing to occur January 10. Fellegy sent a letter to the district court on December 23 explaining that he was retaining counsel and requesting that the pretrial hearing be rescheduled for a later date. He submitted no memorandum and made no request regarding the deadline.
The district court rescheduled the pretrial hearing for March 24, 2011. Fellegy, represented by counsel, filed a memorandum of law on March 21, 2011. Like his November 2010 oral argument, Fellegy’s March 2011 written brief made a racially oriented equal protection challenge. But he based the challenge on different facts.
A second judge presided over the March 24 hearing. The state inquired about the status of Fellegy’s motion and reminded the court that the previous judge had ordered the parties to brief the equal protection issue. The district court stated that the file lacked any formal motion and that if a formal motion were filed it would be set for an evidentiary hearing. It then scheduled a conference and court trial for June 7, 2011. Fellegy did not formalize his motion or request an evidentiary hearing.
A third judge presided over the court trial on June 7. After meeting in chambers, the district court made a record of the procedural history. It declared that Felle-gy had made two distinct motions and that by not briefing the equal protection argument that he made orally in November 2010 by the court’s briefing deadline of January 1, 2011, he had waived the motion. It also denied the motion on the alternative ground that it failed as a matter of law under Washington v. Washington State Commercial Passenger Fishing Vessel Association,
Fellegy appeals.
ISSUES
I. Did the district court abuse its discretion by deeming as waived the motion to dismiss that Fellegy raised orally on November 2010 or err by denying the motion on the merits?
II. Did the district court abuse its discretion by dismissing as untimely the motion that Fellegy raised in his March 2011 memorandum?
III. Did the district court abuse its discretion by failing to order an evidentiary hearing before denying Fellegy’s motion to dismiss?
ANALYSIS
Fellegy challenges the district court’s decision in several respects. He maintains that the district court erred by deeming as waived the motion that he raised orally on the originally scheduled trial date of November 2010, and he also contests the court’s denial of that motion on the merits. He contends that the district court erred by denying as untimely the motion that he raised in his March 2011 memorandum. And he maintains that the district court was obligated to schedule an evidentiary hearing on that motion. We take up each argument in turn.
I
We are not persuaded by Fellegy’s argument that the district court erroneously rejected his original, November 2010 mo
We first address whether Felle-gy forfeited his motion. We review the district court’s decision for an abuse of discretion. C.f. State v. Hart,
Construing Fellegy’s November 2010 assertions carefully, we conclude that he moved the district court to dismiss the charges because he had been the subject of a particular type of prosecutorial discrimination. He asserted that he had been the target of unconstitutional selective enforcement of the fishing laws based on his race specifically because, “during the same time frame” in which he took the walleye from Lake Mille Lacs, others, “solely based on skin color and ethnic origin,” had “harvested approximately 65 tons of walleyes from the same lake” without being subject to prosecution. Fellegy did not expressly say so, but it is clear from the circumstances that the unspecified others who were not prosecuted for fishing in Mille Lacs because of “skin color and ethnic origin” were Native Americans.
The district court treated Fellegy’s assertion as a motion to dismiss and ordered the parties to provide supporting or opposing memoranda by January 1, 2011. Fel-legy never provided a written memorandum in support of his specific contention that the charge against him was subject to dismissal because he was being prosecuted for fishing out of season in Lake Mille Lacs while Native Americans are not. As the district court later put it, “January 1, 2011, came and went, and Mr. Fellegy did not file any brief.” On that ground, we cannot say that the district court abused its discretion by denying the motion on the day of trial, June 7, 2011, by which point Fellegy still had not provided any legal support for his November 2010 contention.
We recognize that Fellegy did file a memorandum on March 21, 2011, also alleging unconstitutional selective enforcement of the fishing laws based on race. But we hold that the district court accurately construed the memorandum as not supporting the November 2010 motion and as attempting to present a new motion. Fellegy’s March 2011 memorandum abandoned altogether Fellegy’s original factual premise. The memorandum does not attempt to support his specific declaration that his equal protection rights were vio
The difference between the two assertions is substantial and supports the district court’s decision to treat them as different motions. Fellegy accurately points out that the November 2010 and March 2011 arguments both rest on the premise that the equal protection guarantees of the United States and Minnesota Constitutions forbid racially motivated selective and discriminatory enforcement of nondiscriminatory laws. See Yick Wo v. Hopkins,
The distinction is significant here because, on the different lakes at issue, the Ojibwe have a different comparative relationship to Fellegy. A defendant cannot make out a constitutional case of selective discriminatory prosecution unless he satisfies his “heavy burden of establishing,” among other things, that “others similarly situated” have not faced prosecution for the same conduct giving rise to his prosecution. State v. Russell,
In contrast, Fellegy’s new position as asserted in March 2011 does not rest on a comparison between himself and those whose treaty rights render them dissimi-larly situated. Also in contrast, his new, March 2011 pleading does not assert that his prosecutor’s decision not to prosecute other individuals reflects racial discrimination, since the only allegedly similarly situated persons his March 2011 pleading refers to were fishermen in Beltrami County, not Aitkin County. As Fellegy’s oral argument to the district court in support of his March 2011 memorandum' acknowledges, the two counties have different, autonomous charging authorities:
I appreciate the Aitkin County Attorney’s position that these conservation officers should ... testify against myclient for taking a single walleye out of Mille Lacs Lake ..., but the Beltrami County Attorney isn’t doing any of this. He’s not acting on the conservation officer’s file.
For these reasons we hold that the district court accurately understood Fellegy’s March 2011 memorandum to constitute a different motion from his November 2010 motion and appropriately denied the November 2010 motion as forfeited for lack of any supporting memorandum.
We also hold that the district court appropriately denied the November 2010 motion on the alternative ground that the motion has no legal merit. The district court cited only Washington v. Washington State Commercial Passenger Fishing Vessel Association as its ground for denying the motion. This was sufficient. The Fishing Vessel court established that a tribe’s federal treaty rights to hunt, fish, and gather on state land can coexist with state natural resources management plans.
II
We also are not persuaded that the district court abused its discretion by denying Fellegy’s motion as presented in his March 2011 memorandum. The district court dismissed the motion as untimely. Fellegy acknowledges that he filed his motion late, but he contends that the district court was obligated to consider it on the merits first because it “was not a new motion,” second because there was no prejudice to the state, and third because it was “unjustly harsh” to deem the motion untimely as a penalty for Fellegy’s failure to file a memorandum by the January 1, 2011 deadline. The arguments do not lead us to reverse.
We have already addressed Fellegy’s assertion that the March 2011 motion was not a new one but rather the same as his November 2010 motion. Again, the district court appropriately treated it as a new motion given both its change in substance and Fellegy’s failure to provide a timely memorandum addressing his November 2010 assertions.
We are not convinced by Fellegy’s assertion that the state would have suffered no prejudice if it had to respond in writing a second time to Fellegy’s then-shifted equal protection claims made months after the deadline imposed by the rules. See Minn. R.Crim. P. 10.03. And we observe that his argument about prejudice to the state does not consider the disruption to the district court’s schedule or its responsibility and authority to hold parties accountable to reasonable deadlines. See Hart,
The district court has broad authority to fashion a remedy for untimely motions. Even if we were to conclude that the district court exceeded its discretion by denying Fellegy’s March 2011 motion as untimely, we would nevertheless affirm the denial on the merits. We may affirm the district court on any ground, including one not relied on by the district court. Kafka v. O’Malley,
Ill
Fellegy contends that he was at least entitled to a pretrial evidentiary hearing before the district court denied his motion to dismiss. We are not persuaded. In State v. Sharich, the supreme court reversed the denial of a claim of discriminatory enforcement of antiprostitution laws by the Minneapolis police department’s morals squad.
Relying on this caselaw, Fellegy argues that by asserting that the different charging decisions were racially motivated, he has made out a prima facie case of selective prosecution entitling him to an evidentiary hearing at which he could subpoena unspecified officials to test their motives. Neither the Sharich court nor the Buschette court required the district court to conduct an evidentiary hearing on an accusation that, on its face, lacks the essential elements necessary to support the constitutional claim. We hold that the district court need not conduct an evidentiary hearing to explore a criminal defendant’s pretrial motion to dismiss a criminal charge based on the defendant’s claim that the charge arose from selective prosecution and violates his constitutional right to equal protection if, as here, the defendant
The following standard must be met before a finding of selective, discriminatory enforcement:
To support a defense of selective discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, ie., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional right.
Russell, 343 N.W.2d at 37 (quotation omitted). To trigger a pretrial hearing, the defendant must meet a threshold showing of alleging “sufficient facts to take the question past the frivolous state and to raise a reasonable doubt as to the prosecutor’s purpose.” State v. Hyland,
At oral argument on appeal, Fellegy’s counsel suggested that an evidentiary hearing would have given Fellegy the chance to subpoena and probe unspecified state and county officials in the hope of finding some evidence supporting his belief that a state-wide discriminatory atmosphere exists. This is too speculative to require an evidentiary hearing, particularly since Fellegy waited seven months after asserting his equal protection theory and then three months after briefing his motion before he made a day-of-trial request for an evidentiary hearing. The district court properly denied Fellegy’s request for more out-of-season fishing.
DECISION
The district court did not err by deeming as waived Fellegy’s first motion to dismiss or by denying the motion on the merits. It did not abuse its discretion by dismissing as untimely his second motion raised in his written memorandum. And it did not abuse its discretion by refusing to order an evidentiary hearing before denying Fellegy’s second motion to dismiss on the allegation of selective, discriminatory enforcement. For these reasons, we affirm the conviction.
Affirmed.