United States v. Khan, 461 F.3d 477 (4th Cir. 2006): Discovering Whether Similarly Situated Individuals and the Selective Prosecution Defense Still Exist

• Publication year: 2021

87 Nebraska L. Rev. 538. United States v. Khan, 461 F.3d 477 (4th Cir. 2006): Discovering Whether Similarly Situated Individuals and the Selective Prosecution Defense Still Exist

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United States v. Khan, 461 F.3d 477 (4th Cir. 2006): Discovering Whether "Similarly Situated" Individuals and the Selective Prosecution Defense Still Exist

Thomas P. McCarty

Note*

TABLE OF CONTENTS

I. Introduction ........................................... 539 R
II. History and Background ................................. 541 R
A. Brief History of Equal Protection Principles......... 541 R
B. History of the Selective Prosecution Defense ........ 542 R
1. Development of the Selective Prosecution
Defense in the U.S. Supreme Court ................ 542 R
2. Undecided Definition of "Similarly Situated"
Individual........................................ 547 R
3. Islamic Faith-Based Selective Prosecution
Cases ............................................ 548 R
C. United States v. Khan............................. 551 R
1. Factual Background ............................ 551 R
2. District Court Ruling.......................... 553 R
3. Fourth Circuit Court of Appeals: Arguments
and Ruling .................................... 554 R
4. The Defendants' Petition to the U.S. Supreme
Court for a Writ of Certiorari ................ 556 R
III. Analysis ............................................... 557 R
A. Stringent v. Lenient Discovery Standard.............. 558 R

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B. "Similarly" or "Identically" Situated?............... 559 R
1. Difficulty Satisfying the Fourth Circuit's
"Similarly Situated" Definition.................. 560 R
2. First Circuit v. Fourth Circuit: "Similarly
Situated" Definitions ........................... 561 R
C. The Aftermath ....................................... 565 R
IV. Conclusion............................................... 567 R

I. INTRODUCTION

On November 8, 2001, U.S. Attorney General John Ashcroft announced that "[d]efending our nation and defending the citizens of America against terrorist attacks is now [the Department of Justice's] first and overriding priority."(fn1) Ashcroft explained that the Department of Justice would "arrest and detain any suspected terrorist who has violated our laws."(fn2) However, under the new strategy, "[s]uspects without links to terrorism or who are not guilty of violations of the law will not be detained."(fn3) Ashcroft reallocated the Department's resources to execute the prosecutorial strategy.(fn4)

Generally, courts do not interfere with such prosecutorial strategies.(fn5) The U.S. Supreme Court has long held that "[t]he Attorney General and the United States Attorneys retain `broad discretion' to enforce the Nation's criminal laws."(fn6) Under this tradition, courts "`presume that [prosecutors] have properly discharged their official duties'"(fn7) absent "`clear evidence to the contrary . . . .'"(fn8) However, prosecutors' strategies and decisions are also "`subject to constitutional constraints.'"(fn9) The U.S. Constitution's Equal Protection principles demand that a prosecutor's "`decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification.'"(fn10)

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If a prosecutor prosecutes a defendant based on such arbitrary classifications, the defendant may raise the selective prosecution defense under the Equal Protection principles of the U.S. Constitution.(fn11) The U.S. Supreme Court first recognized the validity of the selective prosecution defense over one hundred years ago.(fn12) Since that time, the Court has continuously narrowed the defense's application.(fn13) As a result, the standard for proving the elements of a selective prosecution defense is now "a demanding one."(fn14) Defendants seeking discovery to help prove the validity of their selective prosecution defenses also face a "correspondingly rigorous" discovery standard.(fn15)

In 2006 the Fourth Circuit determined whether the U.S. District Court for the Eastern District of Virginia erred when it denied three Islamic defendants' discovery request for their selective prosecution defense.(fn16) The district court convicted the defendants of various crimes relating to their ties to an Islamic terrorist organization.(fn17) The defendants claimed that the Government failed to prosecute non-Muslim individuals in the United States who engaged in similar criminal conduct.(fn18) Furthermore, the defendants claimed that the Government prosecuted them because they were Muslims in a post-9/11 world.(fn19) The Fourth Circuit affirmed the district court's decision to deny the defendants' discovery request.(fn20)

To fully understand Khan's contribution to selective prosecution jurisprudence, one must first review the history of the selective prosecution defense and the facts and procedural history of Khan. Therefore, Part II of this Note provides an in-depth background of the selective prosecution defense and the facts and procedural history of Khan. Then, Part III analyzes the Fourth Circuit's application of the U.S. Supreme Court's selective prosecution discovery standard in Khan. Please notice that this Note does not challenge the Fourth Circuit's ultimate decision to deny the Khan defendants' discovery request. However, it is important to recognize that ends do not always justify means. Courts may come to correct conclusions through incorrect applications of law or logic. The author proposes that the Fourth Circuit correctly denied the defendants' discovery request, but did so

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through a questionable application of the U.S. Supreme Court's discovery standard for selective prosecution claims. As a result, courts following Khan on this issue may bar future defendants with legitimate selective prosecution claims from obtaining discovery.

II. HISTORY AND BACKGROUND

A. Brief History of Equal Protection Principles

The selective prosecution defense is rooted in the Equal Protection principles of the U.S. Constitution's Fifth and Fourteenth Amendments.(fn21) Therefore, this section provides a brief background of those principles.

In 1776, the Declaration of Independence proclaimed "that all men are created equal" and that "Governments are instituted among Men" to protect and reinforce such equality.(fn22) The Declaration of Independence also declared that citizens may alter or overthrow their government if the government fails to protect equality and other inalienable rights.(fn23) However, the U.S. Constitution did not explicitly provide for the equal protection of laws until the States ratified the Fourteenth Amendment on July 21, 1868.(fn24) In the meantime, slavery an ugly institution based on principles of inherent inequality flourished in the United States.

The Fourteenth Amendment declared that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."(fn25) The U.S. Supreme Court later determined that this "Equal Protection Clause" prevents state prosecutors from prosecuting "based upon an unjustifiable standard such as race, religion, or other arbitrary classification."(fn26)

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Although the Fourteenth Amendment contains an explicit Equal Protection Clause, no such clause exists on the face of the Fifth Amendment.(fn27) However, the U.S. Supreme Court's "`approach to Fifth Amendment equal protection claims has . . . been precisely the same as to equal protection claims under the Fourteenth Amendment.'"(fn28) Therefore, the Fifth Amendment prohibits federal prosecutors from prosecuting based on arbitrary classifications.

B. History of the Selective Prosecution Defense

1. Development of the Selective Prosecution Defense in the U.S. Supreme Court

In 1886, the U.S. Supreme Court first recognized the validity of the selective prosecution defense in Yick Wo v. Hopkins.(fn29) In Yick Wo, two Chinese subjects alleged that their prosecution and imprisonment under San Francisco city and county ordinances violated the Fourteenth Amendment's Equal Protection Clause.(fn30) The ordinances prohibited the operation of laundries in wooden buildings in San Francisco city and county limits without the consent of the county's board of supervisors.(fn31) The defendants applied to the county board to operate their laundries in wooden buildings.(fn32) However, the board denied their applications.(fn33) Despite the board's denial, the defendants continued to operate their laundries in wooden buildings.(fn34) The defendants were subsequently arrested, convicted, and imprisoned for violating the ordinance.(fn35) The defendants appealed their convictions and the case eventually came before the U.S. Supreme Court.(fn36)

Before the U.S. Supreme Court, the defendants showed that the county board denied the laundry permits of all other similarly situ-

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ated Chinese applicants.(fn37) The defendants also showed that the board approved nearly all non-Chinese applications.(fn38) After reviewing this evidence, the Court ruled that "[t]hough the law itself be fair on its face . . . if it is applied and administered by public authority with an evil eye and an unequal hand . . . the denial of equal justice is still within the prohibition of the constitution."(fn39) Therefore, the Court held that the board's discriminatory application of the substantively constitutional ordinance violated the Equal Protection clause of the Fourteenth Amendment.(fn40) Accordingly, the Court ordered the defendants' discharge from imprisonment.(fn41) The Court's ruling in Yick Wo placed prosecutors on notice that they could not unequally enforce state laws with an "evil eye."(fn42)

In 1905, a Chinese subject challenged the constitutionality of his prosecution under a different San Francisco ordinance in Ah Sin v. Wittman.(fn43) The ordinance prohibited persons from placing gambling...