Lead Opinion
Opinion by Judge REINHARDT;. Concurrence by Judge WALLACE; Dissent by Judge RYMER.
We review this ease en banc to resolve a conflict in our circuit over the proper standard for determining whether an adequate showing has been made by a defendant seeking discovery in connection with a selective prosecution charge. The conflict arises from two cases filed within days of each other that adopted different approaches to this question. United States v. Redondo-Lemos,
We have jurisdiction to hear the government’s appeal only because the district judge ordered dismissal of the defendants’ indictments. 18 U.S.C. § 3731. Under 18 U.S.C. § 3731, the government is not permitted to appeal the discovery ruling itself. The statute does, however, permit the government to appeal the dismissal of indictments. Here, the district judge imposed dismissal as a sanction for the government’s failure to comply with her discovery order. That action resulted in an appealable order-under § 3731.
The government does not question the reasonableness of the particular sanction imposed. In fact, it was the government itself that suggested dismissal of the indictments to the district court so that an appeal might lie. On appeal, the government argues only that no sanction at all should have been ordered,' conténding that the district judge abused her discretion in requiring discovery. As a result, the appeal allows us to reach the merits of the underlying discovery issue.
The district judge stayed execution of the dismissal order pending the outcome of this appeal. It appears from the record that she issued the stay so that the defendants would not be released prior to our ruling on the validity of that order. Thus, while our opinion is devoted to a discussion of the discovery order, ultimately we rule on the validity of the order dismissing the indictments.
In sum, the appeal is properly before us only because the government knowingly accepted the consequence of opting for an immediate appeal rather than- complying with the discovery order. That consequence is that, if we affirm, the dismissal of the indictments must now be implemented unless the order dismissing them is further stayed pending review by the Supreme Court. It is too late for the government to change its mind and comply with the discovery order. Were that not the rule, we would simply be permitting appeals of discovery orders under the guise of reviewing dismissal orders that were either only tentative or were never intended to take effect. In either ease, we would not have jurisdiction over the appeals under § 3731.
Because we hold that the defendants here satisfied the colorable basis requirement, we affirm the district court’s dismissal of the indictments.
I.
In April of 1992, defendants Christopher Armstrong, Aaron Hampton, Freddie Mack, Shelton Martin, and Robert Rozelle were charged with federal offenses for their alleged involvement in the distribution of cocaine báse, known colloquially as “crack” or “rock”. The charges stemmed from an in
All five defendants were charged with conspiracy to distribute cocaine base under 21 U.S.C. § 846. Some of the defendants were also charged with selling cocaine base under 21 U.S.C. 841(a)(1) and using firearms in connection with drug trafficking in violation of 18 U.S.C. § 924(c). The decision to charge the defendants with federal rather than California state offenses was significant. Federal law imposes a minimum sentence of 10 years and a maximum of life for those convicted of selling more than 50 grams of cocaine base. 21 U.S.C. § 841(b). By contrast, under California law, the minimum sentence for that offense is three years and the maximum is five. Cal.Health & Safety Code § 11351.5 (Deering 1993). All five defendants are black.
On July 20, 1992, defendant Martin filed a Motion for Discovery and/or Dismissal of Indictment for Selective Prosecution. He claimed that the decision to prosecute him on federal charges was based on his race. The other four defendants timely joined the motion which was heard on September 8, 1992.
To support the motion for discovery, the defendants offered into evidence a study of every case involving a charge under 21 U.S.C. §§ 841 and 846 that the Federal Public Defender’s Office for the Central District of California had closed in 1991. The study showed that in all 24 such cases the defendants had been black. At the hearing, counsel for the government responded to the judge’s request for an explanation of these numbers by stating: “I would have no explanation for that. But certainly I can say that there is no racial motivation of any sort that I am aware of as to why we brought this case versus any others.”
The district court granted the motion for discovery. Specifically, the district judge ordered the government to: (1) provide a list of all cases from the prior three years in which *the government charged both cocaine base offenses and firearms offenses; (2) identify the race of the defendants in those cases; (3) identify whether state, federal, or joint law enforcement authorities investigated each ease; and (4) explain the criteria used by the U.S. Attorney’s Office for deciding whether to bring cocaine base cases to the federal court.
The government chose not to comply with the discovery order and instead filed a motion for reconsideration. In support of its motion, the government provided a list of all-defendants charged with violations of 21 U.S.C. §§ 841 and 846 over a three,-year period (without any racial breakdown) as well as declarations by three law enforcement officers and two Assistant United States Attorneys. The declarations collectively provided four explanations for the study’s implication that the overwhelming bulk of federal prosecutions for cocaine base offenses targeted black defendants.
First, the declarations asserted that socioeconomic factors led certain ethnic and racial groups to be particularly involved with the distribution of certain drugs and that blacks were particularly involved in the Los Ange-les-area crack trade. Second, the declarar tions contended that during the three-year period, seven non-black defendants had been prosecuted on federal cocaine base charges, although it appears that all of them were members of racial or ethnic minority groups. (Later, the government identified four more non-black defendants who had been prosecuted during that three-year period, all of whom were also persons of color.) Third, the declarations asserted that many blacks had been tried in state court for cocaine base offenses. Fourth, the declarations contained a description of some of the general factors on which federal prosecutors based their charging decisions for crack-related offenses. The factors specifically referred to. were ' the strength of the evidence, the deterrent value of bringing the charge, the federal interest in the prosecution, and the suspect’s criminal history. The declarations also referred to other unidentified “race-neutral” criteria.
In response, the defendants bolstered the statistical study they had submitted at.the initial hearing with additional declarations. First, one of the defendant’s counsel stated
District Judge Consuelo Marshall denied the motion for reconsideration. She stated her reasons for the. denial at the hearing: “The statistical data provided by the Defendant raises a question about the motivation of the Government which could be satisfied by the government disclosing its criteria, if there is any criteria, for bringing this case and others like it in Federal court. Without. this criteria the statistical data is evidence and does suggest that the decisions to prosecute in Federal court could be motivated by race. Without expert testimony, this Court cannot conclude that the defendants’ evidence is explained by social phenomena.”
The government again chose not to comply with the discovery order. After some discussion among the parties and the court, the defendants moved to dismiss the indictments as a sanction. The district judge dismissed the indictments, but stayed the order pending appeal. The government timely appealed.
II.
We review for abuse of discretion a district' court’s decision to order discovery. United States v. Bourgeois,
We are mindful that it is only a discovery order that we are reviewing. To obtain discovery, the defendants need not prove impermissible discrimination. To order discovery, the district court need not decide that the defendants have in fact demonstrated the existence of selective prosecution. If such conclusive determinations could be made without discovery, there would be no need for discovery in the first place. Thus, the evidence necessary to obtain a discovery order when a charge of selective prosecution has been made is obviously substantially less than that needed to prove the charge itself.
We conclude that discovery may be ordered when the evidence provides a color-able basis for believing that discriminatory prosecutorial selections have occurred. The existence of a colorable basis must be judged in light of all the evidence presented to the district court and not simply that offered by the defendant. “The United States Attorney must be given the chance to make whatever showing [he] deems appropriate to dispel the district judge’s concerns.” Redondo-Lemos,
The colorable basis standard is met by “some evidence tending to show the essential elements of the claim.” United States v. Heidecke,
to obtain discovery on a selective prosecution claim, a defendant must present specific facts, not mere allegations, which establish a colorable basis for the existence of both discriminatory application of a lawand discriminatory intent on the part of government actors.
Because the meaning of “colorable basis” first articulated in Bourgeois has proved elusive, we believe it necessary to explain the standard more fully. In particular, we address here three aspects of the showing needed for discovery in a selective prosecution claim that may be unclear after Bourgeois and concerning which the parties strongly disagree.
First, Bourgeois stated that the colorable basis standard sets a “high threshold” that should rarely justify discovery. Id. at 940. This characterization of the standard appears to conflict with the opinion’s earlier conclusion that the showing needed for discovery is less than that needed for a prima facie case. Id. at 939. In describing the colorable basis test as setting a “high threshold” that would be met only infrequently, our opinion resulted in more confusion than clarification. The “high threshold” language in Bourgeois appeared to set an artificially onerous burden in such claims. The inclusion of that language in our opinion was in error.
Second, Bourgeois did not adequately • explicate what showing is necessary to create a colorable basis for believing that particular prosecutorial conduct has discriminatory effects and is motivated by a discriminatory purpose. To succeed on a claim of selective prosecution the defendant must Show both that the prosecutorial selection “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte v. United States,
A direct showing of discriminatory intent is not always necessary to make out an equal protection claim; under ordinary equal protection standards, a claimant may prove discriminatory purpose circumstantially. See Arlington Heights v. Metropolitan Housing Development Corp.,
Moreover, we have previously stated that statistical disparities alone may suffice to provide the evidence of discriminatory effect and intent that will establish a prima facie case of selective prosecution. See Redondo-Lemos,
Finally, Bourgeois did not sufficiently emphasize that judges considering discovery requests on selective prosecution charges should bear in mind the evidentiary obstacles defendants face. The notorious difficulty of proving a race discrimination claim is particularly acute in the context of selective prosecution claims. Cf. Wayte,
Defendants attempting to show a colorable basis that warrants discovery can only be expected to make good faith efforts to obtain whatever evidence is readily available, as well as to provide whatever evidence is already in their possession. Cf. Arlington Heights,
The colorable basis standard we enunciate today brings our approach to discovery in selective prosecution claims more in line with that of the other circuits. While all the circuits have considered the issue, only four apply a stricter test. Moreover, each of those four requires a prima facie showing,
The colorable basis standard not only best reflects the prevailing view of the law, but it also effectively accommodates the twin but conflicting concerns that discovery in selective prosecution claims implicates. On the one hand, selective prosecution claims call into question the very integrity of our system of criminal justice by suggesting that prose-cutorial decisions have been “‘deliberately
On the other hand, selective prosecution claims invite the courts to investigate the discretionary charging decisions of executive branch officials that traditionally have not been subject to strict oversight. Separation of powers concerns and the systemic costs that such judicial intrusions entail caution against setting the threshold showing for discovery so low that even frivolous assertions of prosecutorial bias may require the government to lay bare its files. See Wayte,-
The colorable basis standard ensures that the government will not be called to answer for its charging decisions as a result of frivolous and unwarranted allegations. At the same time, the standard ensures that defendants will not face unjustified hurdles at the discovery stage that will preclude them from demonstrating the existence of actual discrimination in the selection of defendants for criminal prosecution.
III.
Here, the defendants have presented sufficient evidence to provide a colorable basis for believing that the government has engaged in discriminatory prosecution. They have provided statistical evidence suggesting that blacks are disproportionately charged with federal crack offenses. The government has not offered evidence in response that is sufficiently persuasive to refute the inference that may reasonably be drawn from the statistics. Thus, the district judge is not precluded from determining in her discretion that a colorable basis for selective prosecution has been shown.
A.
The study conducted by the Office of the Federal Public Defender provides a colorable basis for concluding that invidious discrimination may have occurred. The study found that, of all cocaine base cases closed by the Office in 1991, 24 out of 24 involved black defendants. To be sure, such a small number of cases does not conclusively establish either of the elements of selective prosecution. However, 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 prose-cutorial policies are driven by discriminatory motives arid yield discriminatory effects. As a result, the study raises enough of a question to justify further inquiry.
The evidence of discriminatory prosecution in this case is much stronger than the evidence we held insufficient in Bourgeois. In that case, the defendants argued that they were entitled to discovery based on a showing that all prosecutions for firearms violations steinming from a two-day police operation involved black defendants. The district court rejected the defendants’ claims, holding in part that two days was far too short a period to serve as a basis for analyzing the overall conduct of a prosecutorial agency. Instead of focusing on the single operation that resulted in the arrests of Bourgeois and his associates, the district court looked instead to all firearms prosecutions over a two-year span. The court found that the government had prosecuted over 140 people during
The evidence offered in Bourgeois involved only one operation, over a single two-day period. The Federal Public Defender study, by contrast, involved an agency that represents a significant percentage of all federal criminal defendants, and it involved all cases closed over a significant period of time. Common sense indicates that such a study provides a much stronger basis for reasonably inferring invidious discrimination than does an analysis of only a single, short police operation. See id. (“[T]he relevant inquiry is the history of prosecutions over a reasonable period of time.”).
The Federal Public Defender study showed that the largest single provider of legal services to federal criminal defendants in the Central District of California did not close a single case involving a crack charge against a non-black defendant in all of 1991. Although the number of cases is too small to resolve the issue either way, it certainly constitutes “some evidence tending to show the essential, elements” of the defendants’ claim.
The district judge based the discovery order on precisely this reasoning. “I think the number is adequate that would at least require the Government to provide some explanation. The time period is such that would require some explanation. The charges are the same or similar, and the race is the same in each case.” A district judge’s decision to permit further inquiry into the issue based on such an analysis cannot fairly be considered to be an abuse of discretion.
B.
In determining whether a color-able basis for discovery exists, the district judge cannot discount the government’s attempts to explain the evidence introduced by the. defendant. A colorable basis must still exist after all the evidence presented by both sides has been considered. However, in evaluating the adequacy of the government’s response, the judge may exercise considerable discretion. We, in turn, give broad deference to the district court’s determinations. See Bourgeois, 964 F.2d .at 937.
Here, the government proffers three responses to the defendants’ showing. First, the government challenges the defendant’s study and contends that its limited scope could not reasonably suggest any race-based disparity in the treatment of crack offenders by federal prosecutors. Second, the government contends that even if the defendants’ showing did suggest such a racial disparity, socioeconomic forces and race-neutral charging criteria rather than prosecutorial discrimination explain that disparity. Finally, the government contends that the defendants made no showing of discriminatory purpose. The district judge did not abuse her discretion in concluding that these responses do not effectively dispel the colorable basis for discrimination that the defendants’ showing created.
The government contends that the study does not demonstrate any discriminatory effect because it shows only that blacks have been prosecuted, not that others of different races and similarly situated have not. But a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated. He need only provide a colorable basis for believing that other similarly situated persons have not been prosecuted. The study introduced by defendants clearly satisfies this requirement. “At a threshold level, whether or not there is a significant disparity in the treatment of classes of defendants can normally be determined on the basis of statistical evidence, without reference to the underlying facts of individual cases.” Redondo-Lemos,
Given the prevalence of all kinds of drugs throughout our community, at least some crack distributors are likely to be non-blacks. We must start with the presumption that people of- all races commit all types of crimes — not with the premise that any type
Here, the government’s own showing in and of itself provides evidence that similarly situated potential defendants of other races do exist — in other words that non-blacks also' commit violations of 21 U.S.C. §§ 841 and 846. Thus, here the government does not take the unsupportable position that only blacks commit the crimes with which the defendants are charged.
The fact that the government has identified some non-black crack offenders who. have been charged with federal crimes, however, does not undermine the accuracy or the force of the study. The government has not identified a single non-black cocaine base case closed by the Federal Public Defender’s Office (or anyone else) during the study’s one-year time period. Instead, the government introduced evidence to show that over a three-year period some federal cocaine base prosecutions of members of other minorities did occur. None of the cases, however, fell within the parameters of the study. As a result, the government’s identification of these cases fails to undermine the accuracy of the study in any respect.
In the absence of a response undermining the study’s accuracy, the district judge appropriately gave credence to the defendants’ showing that a study of federal cocaine base cases closed by the federal public defender over a particular period of time showed that only black defendants were involved. These results are highly suggestive of the fact that blacks constitute at the very least a disproportionate number of those charged with federal crack offenses.
Of course, the government could have demonstrated that the study’s results were a mere statistical fluke arid that pure chance explains the fact that the only cases closedduring the relevant period were those involving black defendants. But the government failed to do that as well. Instead, the government’s evidence showed only that during a three-year period in which several thousand people were charged with violations of §§ 841(a)(1) and 846, it was only able to identify 11 non-bláck defendants charged with crack cocaine offenses under these statutes, all of whom were members of racial or ethnic minority groups. The identification of a handful of non-black crack offenders (all of whom also happened to be persons of color) does nothing to suggest that the study’s inference of race-based disparity is untenable. Indeed, the fact that the government could identify so few non-blacks charged with federal crack offenses is entirely consistent with the study’s inference that those charged federally with cocaine basé offenses belong virtually exclusively to one racial group.
Of course, in finding that the Federal Public Defender study provides a colorable basis for concluding that discriminatory prosecution may have occurred, we do not determine that the study establishes that the United States Attorney has engaged in such invidious conduct. Rather, it serves only as some evidence that tends to show that the United States Attorney may be engaging in discrimination and suggests thajt further inquiry on the subject is warranted. That is precisely
The government argues in the alternative that even if -the defendants’ evidence does suggest a disparity in the treatment of crack offenders on the basis of race, that disparity can be explained by reasons apart from the existence of discriminatory prosecution. Explanations for apparent racial disparities can in some circumstances effectively explain evidence that on its own would provide a basis for ordering discovery. For example, in Bourgeois, discovery was denied largely because the government had offered a compelling explanation of why all those arrested in the two-day sweep were black. The government there explained that the sweep had focused on a particularly dangerous criminal gang of which all members were black. The defendants had made no showing that an overwhelming majority of gang prosecutions focused on black defendants or that the two-day action was in any way representative of what occurred over a longer period. Thus, the government’s response provided the court with a compelling explanation of why all those prosecuted during the sweep were black. See Bourgeois,
In its attempt to explain the alleged disparity here, the government offers essentially two responses. Neither response is of a kind that we can hold adequate to dispel the defendants’ showing of a colorable basis. First, the government asserts that blacks in fact commit crack related offenses in disproportionate numbers. As the district judge noted, this assertion is based only on the generalized statements of DEA agents and not expert sociological testimony. Moreover, the response does not speak to the inference that blacks are more frequently prosecuted for federal crack offenses than even their allegedly disproportionate involvement with the drug would justify.
The defendants additional submissions addressed the latter point. On the government’s motion for reconsideration, the defendants introduced two declarations from defense attorneys that provided additional support for the conclusion that the charging decisions may have been discriminatory. One declaration set forth a statement made by an intake coordinator at a Pasadena halfway house who said that, in his experience, there were an equal number of white and non-white users and dealers of crack. The other declaration was from David R. Reed, an experienced criminal defense attorney in the Central District. Reed stated that, in his experience as a federal criminal defense lawyer and as a director of the state court indigent defense panel, he had never handled, known of, or heard of a single federal crack cocaine case involving non-black defendants, but that he knew of many crack cocaine prosecutions against non-blacks in state court.
The government’s response that blacks are disproportionately involved in the crack trade is simply a non-sequitur. Even if it were true that blacks commit crack offenses in greater numbers' than others, that fact would not explain why black violators are more likely than their non-black counterparts in the crack trade to be charged with a federal than a state offense. In short, the response simply does not undermine the inference from the evidence, including the Reed declaration, that a crack offender’s race is a factor that prosecutors rely on in deciding whether to charge him with a federal offense. Precisely this gap in the government’s explanation caused the district judge to believe discovery was needed. “[Wjhat the court wants to know is whether or not there is any criteria in deciding which of these cases will be filed in state court versus Federal court and if so, what is that criteria. That is the problem I think that needs to be addressed, because we do see a lot of the cases and one does ask why some are in state court and some are being prosecuted in Federal court, and if it’s not based on race, what’s it based on?”
Given the circumstantial evidence of discrimination that the statistical evidence provides, the government’s simple assertion that it relies on unspecified race-neutral criteria cannot suffice to foreclose further inquiry. More in the way of concrete facts is necessary. Blanket denials of discrimination, though often (but not always) made in good faith, are to be expected in cases such as these. The availability of discovery must not turn on the unlikely event that a federal prosecutor will confess to private biases. As the district judge noted in assessing the government’s denial of racist motivations, “I’m not sure we’d find anybody that would say [otherwise].”
Finally, we note that the government’s contention that no evidence of discriminatory purpose has been shown is unavailing. As our earlier discussion makes clear, an unexplained race-based statistical disparity can itself be sufficient circumstantial evidence of discriminatory intent to justify discovery. Cf. Redondo-Lemos,
C.
When all of the evidence is taken together, the defendants have established several “specific facts, not mere allegations, which establish a colorable basis” to believe that the government has engaged in selective prosecution. Bourgeois, 964'F.2d at 939. Moreover, the government has not explained the evidence of a colorable basis in a manner that would justify our holding that the district judge abused her discretion in concluding that further statistical inquiry and elaboration of governmental charging criteria was justified. A district judge observes countless prosecutions in the course of even' a brief stay on the bench. There is no reason to believe that such judges are easily convinced that the prosecutors who appear before them on a daily basis may be carrying out discriminatory policies. When a district judge does find that there is evidence that reasonably permits one to find a colorable basis for concluding that race-based'prosecutorial se
IV.
There are few claims as serious as the charge put forth by the defendants here— that the government has selected them for prosecution because of their race. Such claims deserve the most careful examination by the courts so that the prosecutorial power does not become a license to discriminate based on race. Discovery is the crucial means by which defendants may provide a trial judge with the information needed in order to determine whether a claim of selective prosecution is meritorious. There is no basis for concluding that Judge Marshall abused her discretion in trying to conduct a careful examination of the defendants’ charges or in determining that the defendants made a colorable showing of discriminatory enforcement of the law. Judge Marshall acted properly by authorizing the defendants to inquire further into this issue. Her discovery order was clearly within her discretion. We affirm the sanction she imposed for the government’s failure to comply. As a consequence, the dismissals of the indictments are
AFFIRMED.
Notes
. To the extent that United States v. Gutierrez conflicts with this proposition by holding that a statistical disparity does not satisfy the effect prong of a prima facie showing of selective prosecution, we overrule it. See United States v. Gutierrez,
. See United States v. Penagaricano-Soler,
. See In Re Grand Jury,
. See United States v. Gordon,
. We do not consider here the question of whether or under what circumstances a judge may rely on facts within his own experience in satisfying the colorable basis standard. See Redondo-Le-mos,
We note, however, that we review certain types of rulings under an abuse of discretion or clearly erroneous standard rather than de novo because of the trial court’s " ‘experience with the mainsprings of human conduct.' " United States v. McConney,
. Accordingly, the dissent's repeated calls for a "comparison pool", simply miss the point. The fact that evidence of similarly situated persons-who were not prosecuted was submitted in other kinds of selective prosecution claims is of no significance in the context of a selective prosecution case based on race. Certainly, no “comparison pool” is necessary when the record contains statistical evidence tending to show that only members of racial or ethnic minority groups have been prosecuted. Were we to conclude otherwise, we would be accepting unwarranted racial stereotypes. Of course, as we explain, the government is free either to show that the record is incomplete or that a reasonable explanation exists for the statistical evidence. That is what the government failed to do here.
. The dissent complains that the study looks at . all cases closed and suggests that it would have been preferable to look at all cases opened. We fail to see the difference. While there may be better ways to conduct a statistical- study, we think-that examining closed cases is not an unreasonable one. In this regard, we note that the factor used to choose the cases examined in the study — whether the case had been closed — was a factor independent of and not correlated with race.
. The government did not object to the admissibility of these declarations. As a result, the declarations constitute probative evidence. N.L.R.B. v. International Union of Operating Engineers, Local Union No. 12,
. The dissent misleadingly characterizes this declaration. See Post at 1522-23. The specific factors listed by the dissent and said to be applicable to the defendants in this case were never shown to be part of any federal charging criteria. As the district court ruled, the government failed to disclose .the criteria used by the United States Attorney in deciding whether to prosecute drug offenses. Thus, the declaration did not "explain” why the decisions to prosecute the Armstrong defendants were "consistent with the guidelines.” Post at 1522. Rather, the declaration merely asserted that they were. In short, the district court was provided with wholly inadequate information concerning the criteria set forth in the guidelines.
Concurrence Opinion
concurring:
This case requires us to set forth the appropriate test for determining whether a sufficient showing has been made to allow discovery in. a selective prosecution claim. I thought we could all agree that this test should be the one that our court developed in United States v. Bourgeois,
I
The majority correctly points out that the dismissal of the indictment as a sanction for noncomplianee with the discovery order creates the appealable order that gives us jurisdiction over this appeal. However, this does not mean that the dismissal must be interpreted to be with prejudice. For a dismissal to be "with prejudice, “the prosecution must be forewarned” of that fact. United States v. Loud Hawk,
II
Turning to the merits, the majority, in an attempt to “clarify” the Bourgeois standard, goes too far. Bourgeois, held that- “the discovery threshold should not be so high as to require establishment of a prima facie case.” Bourgeois,
Undeterred, however, the majority attempts to “clarify” this test by stating that the “ ‘high threshold’ language in Bourgeois appeared to set an artificially onerous burden” on discovery. While the formulation of the colorable basis test shows that the test is certainly not as “high” as that required to prove a prima facie case, neither is it as “low” as a nonfrivolous showing. The dissent’s discussion to the effect that á high threshold “is appropriate because courts are ill equipped to assess a prosecutor’s charging
On the other hand, my agreement with the majority’s result is supported by a very similar observation- about our role as a federal appellate court. -Just as the district court should be careful not to undermine effective law enforcement by constantly evaluating the prosecutor’s charging decisions, so too should we, as an appellate court, not second-guess the ruling of a district court in a close case. We are able to carry out this function by adhering to our standards of review. ■
When reviewing the district court’s discovery ruling on a selective prosecution claim, we ask whether the district court abused its discretion. Id. at 937; see also United States v. Bryan,
In this case, the defendant provided: (1) evidence that all 24 cocaine base cases closed in 1991 by the Federal Public Defender involved black defendants; (2) two additional affidavits stating that there are Caucasian cocaine base users and that the number of such users prosecuted in state court is greater than the number prosecuted in federal' court; and (3) a Los Angeles Times article stating that federal cocaine base laws carry-tougher sentences. The district court, applying the Bourgeois standard, found that a colorable basis had been met, and ordered limited discovery. Because the abuse of dis: cretion standard permits the district court flexibility, I conclude we should not overturn that order in this case.
The dissent argues that, as a matter of law, the colorable basis test has not been met. This conclusion is driven largely by the ’ fact that there has been no showing here that “others similarly situated” have . not been prosecuted. I agree with the dissent that to establish a prima facie case, hard data about others similarly situated is necessary. Proving a prima facie ease of selective prosecution requires proof: (1) that others similarly situated have not .been prosecuted, and (2) that the prosecution is based on an impermissible motive (discriminatory purpose or intent). United States v. Gutierrez,
The language of the colorable basis standard does indicate that specific facts must exist to establish the basis for believing that “discriminatory application of law” and “discriminatory intent” are present. Put without discovery, the contention that “others similarly situated” have not been prosecuted (a-claim essential to the prima facie case) may be impossible tó show. The evidence produced by the defense in this .case presents a close question, and, had I been the district judge, I might well have concluded that it was insufficient to make out a colorable basis. Indeed, this en banc case might have resulted in a different outcome were we to review the district judge’s decision de novo. I am unable, however, to conclude that the district judge abused her discretion in allowing limited discovery.
I therefore concur in the result reached by the majority.
RYMER, Circuit Judge, with whom Circuit Judges LEAVY, T.G. NELSON, and KLEINFELD, join, dissenting:
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
I
The government’s appeal requires us to decide whether five defendants indicted in 1992 for conspiring to distribute cocaine base (in part through úsing an armed guard) in violation of 21 U.S.C. §§ 846 and 841(a)(1), four of whom are also charged with using a firearm in connection with the drug offenses under. 18 U.S.C. § 924(c), are entitled to discovery on their claimed defense of selective prosecution on account of race.
Armstrong seeks to show that this prosecution was undertaken not because of the crimes committed, but rather because the United States Attorney’s Office prosecuted these defendants as part of a systematic policy intentionally to discriminate against blacks in its prosecutorial decisions. The discovery request was based on evidence that of the 24 defendants represented by the Federal Public Defender’s Office (FPD) in § 846 and § 841(a)(1) cocaine base cases closed by the FPD in 1991, all were black. The filing stamp numbers on the closed cases in this study range from “88” to “91,” indicating that the defendants whose cases were closed by the FPD in 1991 were prosecuted over a four-year period.
After the district court ordered discovery, the government moved for reconsideration and presented evidence that at least four non-black defendants were prosecuted on crack charges during the period when the cases in the FPD’s study were opened, two of whom-were represented by the FPD, and at least seven were charged in 1992, the year the Armstrong defendants, were indicted. In addition, the government submitted declarations indicating that in total, without breakdown by type of drug, approximately 2400 persons were charged with violations of § 841, and 1700 with violations of § 846, in the past three years; that race played no part in the investigation which resulted in the Armstrong defendants’ arrests; that the county district attorney’s offices prosecute many black cocaine base offenders; that so-cio-economic factors account for the prevalence of drugs and trafficking patterns in different communities; and that all charging decisions made by the United States Attorney’s Office, including in this case, are made on the basis of whether a federal offense meeting the Office’s guidelines has occurred, the overall strength of .the evidence, the deterrence value and federal interest associated with the particular case, the criminal history of the suspects, and other race-neutral criteria.. Specifically as to this case, the declaration of the then-Chief of the Criminal Complaints Section explained why the Armstrong defendants were prosecuted and stated that the decision to charge them was consistent with the guidelines: there were over 100 grams of cocaine base involved — more than twice the quantity necessary to trigger a ten year mandatory minimum sentence; there were multiple sales involving multiple defendants, thereby indicating a substantial crack cocaine ring; the case was jointly investigated with a federal Bureau of Alcohol, Tobacco and Firearms agent; there were multiple
Armstrong countered with a declaration by defense counsel stating that she had spoken with a halfway house intake coordinator who told her that in his experience in treating cocaine base addiction, the number of Caucasian and minority users and dealers is the same. Armstrong also offered a declaration by another defense attorney averring that of the defendants facing crack charges whom he has represented in federal court, all were black, and that he has never heard of non-blacks being prosecuted in federal court, whereas based on what he has heard, he believes that the state prosecutes many non-black cocaine base offenders in state court.' Finally, Armstrong proffered an article from the Los Angeles Times, which indicates that blacks disproportionately commit cocaine base offenses.
The district court found that Armstrong had made a sufficient showing to require the government to provide to the defense:
(1) A list of all eases from the prior three years in which the government charged both cocaine base offenses and firearms offenses;
(2) The race of the defendant(s) in each of those cases;
(3) Whether each case was investigated by federal, state or joint law enforcement authorities; and
(4) An explanation of the criteria used by the United States Attorney’s Office for deciding whether to bring cocaine base eases federally.
The court’s initial ruling concluded:
In this case we have a fairly general charge — one that we see regularly in this courthouse — and whether it’s coincidental or not, that out of the group that the public defender — that Ms. O’Connor provides us information on — all of them happen to be of the same racial group.
I think the number is adequate that would at least require the Government to provide some explanation. The time period is such that would require some explanation. The charges are the same or similar, and the race is the same in each case.
In’ denying the motion to reconsider, the court further concluded:
The statistical data provided by the Defendant raises a question about the motivation of the Government which could be satisfied by the Government disclosing its criteria, if there is. any 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.
Without expert testimony, this Court cannot conclude that the Defendants’ evidence is explained by social phenomena.
The executive branch has a responsibility to dissuade public opinion that its decisions to prosecute or where to prosecute are not motivated by improper reasons such as race, and the evidence of who was prosecuted and why those persons were prosecuted and where those persons were prosecuted is within the peculiar knowledge of the Government and therefore, as the Court indicated at the previous hearing, it would be this Court’s position that it is the Government that would have to provide that evidence so that Defendants could analyze it and decide if there is any basis for filing a motion to dismiss.
The government declined to comply with the order, and the court granted Armstrong’s motion to dismiss. This appeal followed.
The panel, relying on United States v. Bourgeois,
We went en banc in part to resolve the tension between Bourgeois (“colorable basis” founded on specific facts required for discovery of whether prosecution is discriminatory) and United States v. Redondo-Lemos,
However, I disagree with the majority’s opinion. Although it appears to embrace the “colorable basis” standard we adopted in Bourgeois, the opinion actually guts it by holding that when a selective prosecution claim is based on race, evidence “tending to show that only members of racial or ethnic minority groups have been prosecuted” will suffice. Op. at 1517, n. 6. Instead, I would reaffirm the Bourgeois standard, and hold that the district court erred as a matter of law in finding that Armstrong made an adequate showing in the absence of any evidence that.others, similarly situated except for being non-black, were not prosecuted. By the same token, the court should not have ordered discovery based on its conclusion that “the statistical data provided by the Defendant raises a question about the motivation of the Government”; the proper legal standard is not whether the defendant’s evidence “raises a question,” but whether it provides a colorable basis for the existence of discriminatory effect and discriminatory intent. In the absence of any evidence that the government purposefully selected these defendants for prosecution on account of their race, there is no colorable basis for the existence of discriminatory intent as a matter of law. The district court also went astray in founding its order on a “fairly general charge” instead of on specific facts as to these defendants. Further, at the discovery stage, it is the defendant’s burden to provide facts that, if fleshed out by the discovery sought, would tend to prove both elements of selective prosecution. Thus, the district court’s order fails in two additional respects: first, it shifts to the government the “responsibility to dissuade public opinion,” but ignores the government’s submissions; and second, the discovery ordered does not advance the ball game because racial identity and criteria for federally charging crack and firearms violations will still only show who was prosecuted, not who wasn’t. In any event, the FPD’s study relates to crack eases closed by that office and says nothing about any pool of crack and firearms offenders. As the discovery that was ordered targets prosecutions for both crack and firearms violations, it lacks any basis at all. I would, therefore, reverse.
II
Armstrong contends that the en banc court should adopt the “reasonable inference” test articulated in Redondo-Lemos instead of the “colorable basis” standard set out in Bourgeois. Short of this, he suggests that Bourgeois and Redondo-Lemos could be reconciled by defining “colorable basis” as the Seventh Circuit did in United States v. Hei-
Í do not believe that it is necessary to do' more than resolve the conflict between Bourgeois and Redondo-Lemos, because the evidence in this ease does not pass muster under either the Bourgeois or Heidecke standard. See United States v. Kerley,
There is no question that selective prosecution claims of the sort we address today are deeply troubling. Such claims bring powerful interests into conflict: the nation’s commitment to rid itself of drugs, on the one hand, and the individual’s right not to be singled out for prosecution on account of race, on the other. They reflect concerns which are legitimate and widespread — and which I share — that mandatory minimum sentences in general, and those for crack offenses iii particular, fall heavily on young black males.
In our criminal justice system, the Government retains “broad discretion” as to whom to prosecute. “[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.” This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such fac-r tors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.
United States v. Wayte,
In that light, I disagree with the majority that there is any call to revisit Bourgeois. There we held that
to obtain discovery on a selective prosecution claim, a defendant must present specific facts, not mere allegations, which establish a colorable basis for the existence of both discriminatory application of a law and discriminatory intent on the part of government actors. This is a high threshold. As has been true historically, it will be the rare defendant who presents a sufficiently strong ease of selective prosecution to merit discovery of government documents.
A “high threshold” is appropriate because courts are ill equipped to assess a prosecutor’s charging decisions, and oversight of prosecutorial decisions could undermine effective law enforcement. Bourgeois;
We believe that this high threshold will discourage fishing expeditions, protect legitimate prosecutorial- discretion, safeguard government investigative records, and yet still allow meritorious claims to proceed. This threshold also draws on the effectively high hurdle all the circuits have adopted, regardless of the phraseology of their standards. Our research of circuit court opinions uncovered only a handful of instances in the past few decades in which a defendant obtained discovery or dismissal of charges based on a selective prosecution claim. In those cases, the defendants presented solid, credible evidence in support of their claims.
The majority opinion nevertheless declares that the meaning of the Bourgeois standard is “elusive,!’ and uses that excuse to rewrite the law. However, “colorable basis” as a standard is no more elusive than any other threshold standard. It is the standard most other circuits apply. Although there may be no way precisely to define it, I doubt that many judges would disagree that “colorable basis” is a lower level of specificity than a prima facie showing, but greater than an allegation. As Bourgeois indicates, it simply requires some specific facts — not allegations, speculation, conclusions, or questions — that are solid and credible enough to indicate that both elements of a selective prosecution defense exist.
While the majority opinion purports to clarify what “colorable basis” means, it actually crafts a new standard which is far more elusive than Bourgeois. It is variously described as “some evidence tending to show the essential elements of the claim,” op. at 1520, “more than frivolous and based on more than conclusory allegations,” id., more than “frivolous and unwarranted allegations,” id. at 1515, “some evidence that tends to show that the United States Attorney may be engaging in discrimination,” id. at 1517, and “evidence that reasonably permits one to find a colorable basis for concluding that race-based prosecutorial selection may have occurred.” Id. at 1519. To permit discovery on a showing that discrimination “may” have
III
We previously held in Bourgeois,
IV
I would hold that the district court erred as a matter of law in concluding that- Armstrong made a sufficient showing in the absence of any evidence that similarly situated non-black offenders were not prosecuted, and in the absence of any finding that the statistical pattern presented could be so stark, if fleshed out by discovery, as to be inexplicable on grounds other than intentional discrimination on the basis of race. The Supreme Court has made clear that unless there is an-overtly discriminatory classification, which Armstrong does not claim in this ease, a defendant is required to show both discriminatory effect and discriminatory intent in order to make out a -defense of selection prosecution. Wayte,
While acknowledging that both discriminatory effect and discriminatory intent must be shown, the majority opinion effectively cob-lapses the two by holding that “inadequately explained evidence of a. significant statistical disparity in the race of those prosecuted suffices- to show the colorable basis of dis-criminátory intent and effect that warrants discovery on a selective prosecution claim.” Op. at 1514-15. In this it is incorrect: from the statistic in evidence, “statistical dispari
A
We have held a number of times in a number of different cases that the first thing a defendant must show is that “others similarly situated have not been prosecuted....” United States v. Wayte,
have not shown, as the Oaksm test requires, that other[9 ] similarly situated who have not exercised their rights have not been prosecuted. The statistics listed above show that there were other prosecutions and the Wilsons have not shown that those defendants were also tax protestors. This being so, we cannot find that the Wilsons carried their burden of proving that the decision to prosecute was made because they exercised their constitutional rights.
Id. at 504. In United States v. Aguilar,
While he showed that similarly situated members of his tax protest group had also been prosecuted, Ness did not show a single instance of a similarly situated but nonprotesting violator who had not been prosecuted. The fact that access to the Government’s files might be helpful to a defendant seeking to prove discriminatory prosecution does not relieve him of the burden of making an initial showing, nor does that fact, in itself, entitle every defendant raising such a claim to discovery.
Thus it is well settled: to succeed on a claim of selective prosecution, a defendant has the burden of establishing that others similarly situated have not been prosecuted. The burden for purposes of discovery is substantively the same, only it is met by showing a colorable basis that others similarly situated have not been prosecuted.
Requiring defendants to provide a color-able basis for believing that others similarly situated have not been prosecuted is a reasonable requirement. “Selective prosecution” implies that a selection has taken place. If a defendant is part of a protected class, that alone does not provide a colorable basis for believing that a selection has taken place; nor does evidence demonstrating that other members of the protected class were prosecuted provide a colorable basis for so believing. Rather, a defendant must supply a colorable basis for believing that others similar to him except that they are not in his protected class were not prosecuted. Without a col-orable basis to believe that others similarly situated were not prosecuted, the most reasonable conclusion is that the defendant was selected for prosecution because the government believed the defendant committed the offense; the fact that the defendant is a member of a protected class is coincidental.
Armstrong,
Armstrong’s showing lacks any specific evidence that the government has failed to
For these reasons, the only statistic in evidence affords no basis for inferring the existence of discriminatory selection, or effect. The mere fact that all the offenders share the same trait ii.e., are black) cannot prove that this trait was the motivation for selecting them for prosecution unless other similar offenders who do not possess that trait were not selected. The FPD study shows nothing more than the fact that all persons it represented in eases closed in 1991 shared the common trait of being black; it sheds no light on whether the government discriminated as there is no showing that those without the trait were, or would be, treated differently.
Armstrong also relies on the Los Angeles Times article and two declarations presented in connection with the government’s motion for reconsideration. One is counsel’s declaration that an Impact House employee told her that in his experience dealing with crack addiction, there are an equal number of Caucasian and black users and dealers; the other is another counsel’s declaration that he had never heard of non-blacks being prosecuted in federal court whereas they were in state court. It is unclear that the district court relied on anything other than the FPD study, as it made no reference to the declarations and said it found nothing of value in the newspaper article. Regardless, assuming that it was proper for the court to consider the declarations in connection with a discovery request even though both were hearsay, neither declaration sets out any specific fact or credible evidence of the existence of discriminatory effect or intent. Counsel’s declaration about not having heard of non-blacks being prosecuted in federal court is entitled to no weight in light of the government’s evidence that non-blacks were in fact prosecuted; his further statement that “many” crack cocaine sales cases prosecuted in state court involve racial groups other than blacks lacks any relevant force because it can’t be determined whether they are similarly situated in any respect to the Armstrong defendants. By the same token, Impact House is a residential drug treatment center; it houses addicts, not dealers unless they are also addicts, and nothing in the declaration suggests that the intake coordinator’s experience is with offenders who are similarly situated to the Armstrong defendants.
In sum, there is no indication that the government has not prosecuted similarly situated non-black offenders. However, even if an inference of disproportionate impact for purposes of selective prosecution could be drawn, Armstrong’s evidence does not establish a colorable basis that he was prosecuted because of his race.
B
“ ‘Discriminatory purpose’ ... implies more than ... intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Wayte,
Armstrong argues, however, that a prima facie case of purposeful discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. He submits that intent may be found even though there is no evidence that the government is hostile to the group, and the government gives a race-neutral explanation for its action, Batson v. Kentucky,
This is clear from comparing the two cases where the Supreme Court has seen impact alone as determinative, Gomillion v. Lightfoot,
Given the absence of any evidence about any comparison group in this case, and thus of any possible statistical disparity in how different classes are treated, there is no way under existing law that the evidence in this case establishes a colorable basis for the existence of discriminatory intent.
C
The majority opinion’s logic flows from its assumption that “statistical disparities alone may suffice to provide the evidence of discriminatory effect and intent that will establish a prima facie case of selective prosecution.” Op. at 1513. For this it relies on Redondo-Lemos,
Of the need to show that others similarly situated have not been prosecuted, the opinion first says the obvious: “a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated. He need only provide a color-able basis for believing that other similarly situated persons have not been prosecuted.” Id. at 1516. Then the opinion comes full circle by concluding that the FPD study “clearly satisfies this requirement” because “[a]t a threshold level, whether or not there is a significant disparity in the treatment of classes of defendants can normally be determined on the basis of statistical evidence, without reference to the underlying facts of individual cases.” Id. This doesn’t follow as a matter of fact, or as a matter of law.
The majority opinion then holds that the government must explain “evidence of a significant statistical disparity.” Op. at 1514. There are two problems with this step. First, the FPD study does not show “significant” statistical “disparity.” It is not a random sample in which every case has the same chance of being selected, nor is a sample of 24 cases indicted over four years but closed in a single year large enough, or representative enough, to say (or surmise) anything meaningful about the history of crack prosecutions in the Central District. The second, and more important problem lies in the fact that the opinion regards the government’s explanation in this case as unpersuasive, and in so doing, essentially holds that the defendant’s statistical showing cannot be explained without the full disclosure that the discovery requested would entail.
The majority opinion shifts the burden to the government in another respect that is unprecedented as well. It first assumes that “[gjiven the prevalence of all kinds of drugs throughout our community, at least some crack distributors are likely to be non-blacks.” Op. at 1514. This is probably correct, but is speculation nonetheless which has no basis in the record. From this premise, however, the opinion creates a presumption: “We must start with the presumption that people of all races commit all types of crimes — not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.” Id. Although “[tjhese presumptions and premises are, of course, not conclusive,” id., the opinion gives no clue as to what they are to prove, or how they are to be disproved. Because the opinion finds that the government’s identification of some non-black crack offenders who have been charged does not undermine the force of the FPD study, id. at 1517-18, apparently the presumption cannot be overcome by a showing that of “some crack distributors [who] are likely to be non-blacks,” some have been prosecuted. If that is so, it is unclear to me that the “presumption” is rebuttable at all. Nor does the opinion suggest why such a “presumption” is needed; the party who seeks to use statistics must show what the comparison pool looks like. Moreover, to the extent that this “presumption” is intended to suggest that the government has some obligation to charge equal numbers, or proportionate numbers, of black and non-black offenders — or explain why not, it turns the law of selective prosecution on its head. The government has the right to be selective about whom it prosecutes, so long as it does not select this defendant because of & constitutionally impermissible factor. Wayte,
If the majority opinion remains the law, it will be at no small cost. In this case alone, locating more than 3000 files and figuring out which were crack and firearms prosecutions, the racial identity of each defendant (presumably from the Presentence Report, because the United States Attorney’s Office has no records of race), and the investigating authorities will be a time-consuming and expensive process. The opinion is, of course, license for the same fishing expedition in legions of other cases. If a raw number— the number of cases prosecuted — suffices for discovery, I would suppose that discovery could be called for in virtually every case. For example, 100% of antitrust convictions are of white males. United States Sentencing Commission, Annual Report 1991, tables 16 and 17. Of pomographers, 92.6% are Caucasian. Id., table 16. Men comprise 83.3% of all those convicted of ail federal crimes. Id., table 17. And so on.
Resources intended for controlling crime, one of the nation’s most pressing concerns, will be chasing statistics instead. With the prospect of having to fight discovery and justify every charging decision, it will not be surprising for crack prosecutions to wane. That will disserve those who suffer from what the Los Angeles Times has just called “the plague [that] destroyed dreams, lives and families.” Los Angeles Times, Dec. 21, 1994, at A1 (headline). The opinion will also
This is not what we, or any other circuit, have permitted until now. If there are specific facts which afford a colorable basis for finding that discriminatory effect and discriminatory intent exist, the costs are worth it. Race cannot determine whether one is prosecuted or not. But, sound policy as well as separation of powers constraints demand that there be a meaningful threshold before the courts may authorize an intrusion into the discretionary workings of our co-equal branch. For these reasons, I cannot join the majority opinion.
. I refer to all of the defendants collectively as "Armstrong."
. Hon. Harlington Wood, Jr., Senior United States Circuit Judge, Seventh Circuit Court of Appeals, sitting by designation, wrote for the court. I joined that opinion, and Judge Reinhardt dissented.
. The district judge in this case ruled on the basis of the defendants’ motion for discovery.
Although the majority opinion indicates' that it does not consider the question of whether or under what circumstances a judge may rely on facts within her own experience, op. at 1514-15, it cites Redondo-Lemos,955 F.2d at 1298, 1302 , with approval on the point that district judges are well situated to discern "patterns of discrimination.” Op. at 1512. To the extent this simply means that when exercising discretion within the law, reviewing courts should be deferential to the district judge, I could not agree more. However, to the extent that the opinion means to endorse discovery based on something outside the record, it is dicta and I disagree.
. Data from the United States Sentencing Commission, for example, indicate that 87.9 percent of all those convicted for cocaine base offenses nationwide are African-American. United States Sentencing Commission Annual Report 1993, table 62.
. The First Circuit test for an evidentiary hearing is sufficient facts tending to show that the defen
The Fourth Circuit requires a nonfrivolous showing of both elements to merit discovery. At least a legitimate issue of improper governmental conduct must be raised, and in determining whether one has been, the district court may consider the government's explanation for its conduct. United States v. Greenwood,
The Second and Eighth Circuits require that a defendant make a prima facie showing before discovery can be ordered. St. German of Alaska Eastern Orthodox Catholic Church v. United States,
. See n. 16, infra at 1533.
. See n. 5, supra at 1525-26.
. The majority opinion also appears to make the showing required — whatever its threshold — contingent on whether the facts that would establish a colorable basis are "easily obtainable” by' defendants. Op. at 1514. It does so by relying on the dissent in Wayte,
. The reference is to United States v. Oaks,
. Although the majority purports to overrule Gutierrez to the extent that it is inconsistent with the opinion’s view that "statistical disparities alone may suffice to provide the evidence of discriminatory effect and intent that will establish a prima facie case of selective prosecution,” op. at 1513, n. 1, I believe Gutierrez remains good law in part because I wrote it, and in part
. This view is in accord with all other circuits to have considered the question. See, e.g., Irish People,
. In Irish People, the D.C. Circuit similarly concluded that "it makes sense to require a color-able claim of both [parts of the two-element test for selective prosecution] before subjecting the Government to discovery,” explaining:
Defendant must make a colorable showing that he has been especially singled out, that there exist persons similarly situated who have not been prosecuted. Without such a showing, it is irrelevant that the British or Irish may also have wanted the suit brought.
... It is clear ... that a demonstration of selection is indispensable for the defense and that the burden of so demonstrating lies squarely on the defendant.
... Where defendant cannot show anyone in a similar situation who was not prosecuted, ithas been held that he has not “met even the threshold point of the Yick Wo doctrine — ‘official discrimination ... between persons in similar circumstances, material to their rights....' ”
. The majority opinion’s statement that "the factor used to choose the cases examined in the study — whether the case had been closed — was a factor independent of and not correlated with race,” op. at 1517, n. 7, is without any support in the record. It could as well be said — equally without any support in the record — that the reason closed cases instead of opened cases was chosen was because (as the government's evidence shows) non-blacks were prosecuted in cases that were opened during 1988-1991 but were closed in some year other than 1991.
. The majority opinion “fail[s] to see the difference" between cases closed and cases opened. Op. at 1517, n. 7. They are, of course, opposite sides of the same coin. Whether looked at through the lens of "opened” or "closed,” the number of black defendants prosecuted on crack charges, standing alone as it does here without reference to whether non-black crack dealers who sold large quantities and used firearms and had priors and were caught in the act on tape were not prosecuted, has no tendency to prove the elements of selective prosecution. However, on the theory adopted by the majority opinion— that the number prosecuted is alone sufficient — it does make a difference whether the focus is on cases opened or cases closed. The opinion fixes only on the closed aspect of the closed cases in the FPD study, whereas the government's evidence focuses, correctly, on the opened aspect of the closed cases as well as others which were prosecuted against non-black defendants who were either not represented by the FPD at all or at least not in cases that were closed in 1991. Cases closed can’t have any tendency to prove discrimination except to the extent that they show what cases were brought, or opened, and thus what was motivating the United States Attorney’s Office when it decided to file charges against Armstrong. The cases closed in 1991 were indicted in 1988, 1989, 1990, and 1991. The evidence shows that non-black defendants were also indicted during that period. Thus, contrary to the majority opinion, the government’s showing directly rebuts both the "accuracy” of the study (to the extent that accuracy is in issue, which it really isn’t) and its probative value on the elements of selective prosecution (which is in issue).
. Jury-selection cases, see, e.g., Castaneda v. Partida,
. There has been evidence of disparity (not just a study of numbers prosecuted) in each of the few cases in which a finding of selective prosecution or an order for discovery has been upheld on appeal. See, e.g., Steele,
. In this connection, the majority opinion asserts that the government’s response "does not speak to the inference that blacks are more frequently prosecuted for federal crack offenses than even their allegedly disproportionate involvement with the drug would justify.” Op. at 1518. The assertion implies that the response somehow should have spoken to the issue of state and federal prosecutions and is deficient because it didn’t. This is incorrect because the defendants ’ showing says nothing about state and federal prosecutions of similarly situated offenders so there is nothing to respond to. More important, it slides into the balance of whether discovery should be ordered a consideration federal courts of appeal — including ours — have uniformly rejected as implicating equal protection: the fact that higher federal sentences for cocaine base offenses fall disproportionately on blacks. United States v. Singleterry,