United States v. Armstrong: Permissible Prosecutorial Discretion? - Robert C. Brand

• Citation: Vol. 48 No. 3
• Publication year: 1997

United States v. Armstrong: Permissible Prosecutorial Discretion?

In United States v. Armstrong,¹ the Supreme Court explicitly set forth the threshold requirement the defendant must meet in order to be entitled to discovery on a selective prosecution claim. There must be a credible showing that similarly situated persons of other races could have been prosecuted, but were not.²

I. Factual Background

In April 1992, respondents, all black men, were indicted on crack cocaine and federal firearms charges.³ Respondents filed a motion for discovery, or for dismissal, alleging they were the targets of selective prosecution based on their race.⁴ In support of their motion, they produced an affidavit indicating that all twenty-four crack cocaine cases closed in 1991 by the federal public defender's office in Los Angeles involved black defendants.⁵ The government opposed the discovery motion alleging that the affidavit was insufficient because it did not show that defendants who were not black were not prosecuted.⁶ The district court granted respondents' motion and ordered the government to provide detailed discovery on the selective prosecution claim.⁷

The government moved for reconsideration, providing the court with the alleged facts of the criminal charge and a report indicating the manufacture and distribution of crack is controlled in part by black street gangs.⁸ Respondents supplemented their original offer with evidence that both black and white people use crack cocaine and that there are white persons prosecuted for crack offenses in state courts.⁹ The district court denied the motion to reconsider and dismissed the case when the government indicated that it would not comply with the discovery order.¹⁰

A three-judge panel for the Ninth Circuit reversed the district court's order and held that the defendants must provide a colorable basis for believing that other similarly situated persons have not been prosecuted in order to be entitled to discovery.¹¹ Upon a rehearing en banc, the Ninth Circuit affirmed the district court's order of dismissal holding that a defendant is not required to demonstrate that the government has failed to prosecute similarly situated persons as long as some evidence of selective prosecution is shown.¹²

The Supreme Court granted certiorari to determine the appropriate showing a defendant must make in order to compel the government to provide discovery on a selective prosecution claim.¹³ In reversing the en banc panel of the Ninth Circuit, the Court held that in order to compel discovery a defendant must meet the threshold requirement of a credible showing of different treatment of similarly situated per- sons.¹⁴

II. Legal Background

The Supreme Court laid the foundation for the law on selective prosecution in Yick Wo v. Hopkins.¹⁵ In that case, petitioners chal-lenged a local ordinance¹⁶ granting licensing discretion to the board of supervisors on equal protection grounds, alleging that all two hundred Chinese applications for laundry licenses were denied while all but one of the eighty Caucasian applications were approved.¹⁷ In deciding that petitioners' rights had been violated, the Supreme Court reasoned that a certain amount of discretion in the administration of the law was acceptable.¹⁸ However, the exercise of discretion "directed so exclusive-ly against a particular class of persons . . . administered . . . with an evil eye and an unequal hand" is not constitutionally permissible.¹⁹

The Supreme Court further defined permissible prosecutorial discretion in Oyler v. Boles.²⁰ There, petitioners alleged a Fourteenth Amendment Equal Protection violation in that they were discriminated against as habitual criminals and sentenced to life imprisonment when five other persons, who were subject to sentencing under the habitual criminal statute,²¹ were not sentenced under it.²² In disagreeing with petitioners' equal protection claim the Court stated, "[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard . . . ."²³

In United States v. Berrios,²⁴ the Second Circuit developed a fre-quently cited formulation for the defense of selective prosecution. After describing the defendant's burden as a heavy one, the court found that a defendant must produce prima facie evidence that similarly situated persons were not prosecuted and that the government's charging decision was invidious or in bad faith.²⁵ In order to compel discovery on selective prosecution, the court found that a colorable basis must exist for the claim.²⁶ There must be some evidence tending to show that the essential elements of the defense exist and that the requested documents would be probative of the claim.²⁷ Despite its belief that neither standard was met in the case, the court of appeals found the district court had not abused its discretion in finding a prima facie case of selective prosecution.²⁸

In Wayte v. United States,²⁹ the Supreme Court confirmed that selective prosecution claims were appropriately judged by ordinary standards of equal protection.³⁰ Thus, in order to maintain a claim of selective prosecution, a defendant would have to show both a discrimina-tory effect and a discriminatory purpose behind the prosecutorial scheme.³¹ However, the Court specifically declined to answer the question the dissent viewed as crucial; the standard by which the prosecution could be compelled to provide discovery on the issue of selective prosecution.³² The dissent argued that a defendant need not make out a prima facie case in order to compel discovery.³³ Instead, a defendant would have to make a nonfrivolous showing on the selective prosecution claim before discovery would be compelled from the prosecution.³⁴

The federal circuits have not been uniform regarding the burden a defendant must meet to compel discovery on selective prosecution.³⁵ Some circuits require a heavy burden of a prima facie showing of selective prosecution before discovery is required.³⁶ Other circuits have adopted the standard of a nonfrivolous showing of the elements of selective prosecution.³⁷ Finally, some circuits have adopted a lower burden of some evidence tending to show the existence of the essential elements of selective prosecution.³⁸

III. Rationale of the Court

The Supreme Court in United States v. Armstrong³⁹ established the threshold requirement of a credible showing of different treatment of similarly situated persons before the government will be required to comply with a discovery request regarding selective prosecution.⁴⁰ In setting this standard, the Court concluded that the "showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims."⁴¹

The primary rationale offered in support of the higher burden before compelling discovery results from a respect for the separation of powers between the judicial and executive branches of government and a reluctance to subject prosecutorial charging decisions to judicial scrutiny.⁴² Furthermore, doing so has several negative consequenc-es.⁴³ First, it delays criminal prosecutions.⁴⁴ Second, law enforcement efforts are hampered through scrutiny of the prosecutor's motives and decisions.⁴⁵ Third, revealing the government's enforcement policies undermines the effectiveness of prosecutions.⁴⁶...