MOTION TO COMPEL PRODUCTION OF DISCOVERY MATERIALS

IN SUPPORT OF A SELECTIVE PROSECUTION CLAIM

COMES NOW Defendant * * *, Jr., by and through counsel undersigned, and hereby moves this Honorable Court for an Order compelling the Government to provide Mr. * with the following documentary evidence and information, so that Mr. * may attempt to provide further justification for the ultimate sanction of dismissal:

1. Any and all statistical information in the government's possession, custody or control regarding the racial and ethnic identity of individuals prosecuted for offenses involving the possession, distribution, or intended distribution of cocaine base under 21 U.S.C. § 841, and 21 U.S.C. § 846, during the time period 1990 to 1995, and the same information regarding defendants prosecuted under Florida state statutes applicable to the possession, distribution, or intended distribution of cocaine base.

2. Any and all statistical information in the government's possession, custody or control regarding the racial and ethnic identity of individuals prosecuted for offenses involving the possession, distribution, or intended distribution of cocaine hydrochloride under 21 U.S.C. § 841 and § 846 during the time period 1990 to 1995, and the same information regarding defendants prosecuted under Florida state statutes applicable to the possession, distribution, or intended distribution of cocaine hydrochloride.

3. Any and all statistical information in the government's possession, custody or control regarding the racial identity of individuals arrested in the Middle District of Florida during the time period 1990 to 1995 as a result of federal, joint local and federal, or local law enforcement ⁽¹⁾ investigations, for offenses involving cocaine base.

4. Any and all statistical information in the government's possession, custody or control regarding the racial identity of individuals arrested in the Middle District of Florida during the time period 1990 to 1995 as a result of federal, joint local and federal, or local law enforcement ⁽²⁾ investigations, for offenses involving cocaine hydrochloride.

5. Any and all manuals, handbooks, pamphlets, memoranda and other documents containing information regarding the policies or practices of the Department of Justice, the United States Attorney's Office for the Middle District of Florida, all federal law enforcement and/or investigative agencies and all law enforcement and prosecutorial agencies within the Middle District of Florida concerning the prosecution of individuals for offenses involving cocaine base, including, but not limited to, those documents which discuss when such cases will be or are accepted or referred to the state authorities for prosecution.

6. Any and all memoranda and other documents containing intelligence information, whether titled as such or not, regarding * *, in the possession of the Department of Justice, the United States Attorney's Office for the Middle District of Florida. and all other law enforcement and prosecutorial agencies within the Middle District of Florida ⁽³⁾ during the period 1990 to 1995.

7. Any and all statistical information in the government's possession, custody, or control concerning the race, geographic location of residents, social class, income level, or other demographic information regarding individuals who use, distribute, or possess with intent to distribute, cocaine base in the Middle District of Florida.

8. Any and all memoranda or other documents containing information regarding all persons arrested in connection with joint task force investigations in the Middle District of Florida, who have been rejected for federal prosecution, and the same information regarding persons rejected for state prosecution.

9. Any manuals, handbooks, pamphlets, or other documents containing information regarding the policies or practices of the United States Department of Justice and the United States Attorney's Office for the Middle District of Florida, all federal law enforcement and/or investigative agencies and all law enforcement and prosecutorial agencies within the Middle District of Florida, with respect to the prosecution of individuals for offenses involving cocaine hydrochloride, including, but not limited to, those documents which discuss when such cases will be accepted or referred for federal prosecution and when such cases will be accepted or referred to the state authorities for prosecution.

This Motion is based upon the attached memorandum of points and authorities and exhibits, all files and records in this case, and such further evidence and argument as may be presented, should a hearing be occasioned on this motion.

INTRODUCTION

* * *, Jr. is charged in a multi-count indictment with distribution of cocaine base, in violation of 21 U.S.C. § 841, and conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846. Trial in this matter is presently set for April, 1996.

Mr. * is African-American. He is African-American like the vast majority of defendants who are prosecuted under the mandatory minimum sentence provisions of 21 U.S.C. § 841(a)(1), which apply to the distribution, manufacture, or possession with intent to distribute cocaine base. Since a special statutory provision for cocaine base was enacted, the defendants who have been brought into federal court -- in contrast to those prosecuted in state court -- have consistently been African-American. As discussed in further detail in the argument section of this memorandum, this ethnic disparity is evident to defense counsel who regularly practice in this court, is established by statistical studies for earlier, as well as current, time periods, and, the defense would expect, is consistent with the experience of this court.

A. A COURT HAS DISCRETION TO ORDER DISCOVERY IN SUPPORT OF A SELECTIVE PROSECUTION CLAIM IF A DEFENDANT ESTABLISHES A "COLORABLE BASIS" THAT (1) OTHERS SIMILARLY SITUATED HAVE NOT BEEN PROSECUTED, AND, (2) THE PROSECUTION IS BASED ON AN IMPERMISSIBLE MOTIVE.

In our system of justice, the government retains broad discretion as to whom to prosecute for violations of criminal law. Wayte v. United States, 470 U.S. 598, 608 (1985). Still, that discretion is not unfettered. Prosecutorial decisions must not be based upon an unjustifiable standard, such as race, religious beliefs, or other arbitrary classifications. Wayte, 470 U.S. at 608-609. Over a century ago, the Supreme Court recognized that the application of criminal laws "with an evil eye and an unequal hand" denies defendants equal protection. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886), quoted in United States v. Bourgeois, 964 F.2d 935, 938 (9th Cir. 1992).

The evaluation of a selective prosecution claim necessarily involves three thresholds, which a defendant may be required to cross only one at a time. The first threshold is for discovery. The second threshold is for an initial evaluation by the court of the ultimate claim of selective prosecution, to wit, an inquiry into whether the defendant has established a prima facie case. The third threshold is for the ultimate decision which the court must make after an evidentiary hearing with government rebuttal -- whether the government has in fact discriminated in the selection of defendants for prosecution.

Each threshold requires a successively stronger showing of likely discrimination, and, conversely, each preceding threshold requires a lesser showing. The standard for an ultimate finding of selective prosecution is higher than that for proving a prima facie case. See United States v. Redondo-Lemos, 955 F.2d 1296, 1302 (9th Cir. 1992). The standard for proving a prima facie case is in turn higher than that required to justify further discovery. See Bourgeois. 964 F.2d at 939.

The threshold for mere discovery is thus the lowest of the three thresholds. To warrant further discovery, a defendant need only show that there is a "colorable basis" for believing that (1) "others similarly situated have not been prosecuted" and (2) "the prosecution is based upon an impermissible motive". United States v. Gordon, 817 F.2d 1538, 1539 (11th Cir. 1988), Bourgeois, 964 F.2d at 938 (quoting United States v. Wayte, 710 F.2d 1385, 1387 (9th Cir. 1983), aff'd, 470 U.S. 598 (1985)).

The Eleventh Circuit has defined the term "colorable basis". In Gordon, 817 F.2d 1538,1540, the court defined "colorable basis" as "sufficient facts 'to take the question past the frivolous state and raise[s] a reasonable doubt as to the prosecutor's purpose.'" ⁽⁴⁾ In Redondo-Lemos, at 955 F.2d 1296, 1302, the court suggested that a Defendant "must present enough evidence to demonstrate a reasonable inference of invidious discrimination." Finally, in Bourgeois, supra, the court discussed the prior case law in depth and held:

We agree that the discovery threshold should not be so high as to require establishment of a prima facie case. We disagree, however, . . . that a defendant need only present some evidence showing that his claim is not frivolous. We hold that to obtain discovery on a selective prosecution claim, defendant must present specific facts, not mere allegations, which establish a colorable basis for the existence of both discriminatory application of the law and discriminatory intent on the part of government actors.

Bourgeois, 964 F.2d at 939. This discussion and the plain meaning of the words "colorable

basis"' suggest that there need not be clear proof at the discovery stage; rather, there need be

only a basis for drawing a reasonably plausible inference. Cf. Webster's Third New

International Dictionary, 449 (3d ed. 1981) (defining "colorable" as "seemingly valid and

genuine: having an appearance of truth, right or justice: plausible").

This is an intermediate standard which balances competing concerns. On the one hand

is the concern expressed in Wayte, 470 U.S. 598 (1985):

[T]he decision to prosecute is particularly ill-suited to judicial review. Such factors 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 systematic 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 decision making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.

Id. at 607. On the other hand are the concerns noted by Judge Reinhardt in United States v.

Armstrong, 21 F.3d 1431 (9th Cir. 1994), (en banc, 48 F.3d 1508):

[The defendants] present one of the most serious claims any person can raise --that the government has engaged in racial discrimination in selecting which offenders to prosecute. Such a claim deserves the most careful examination, for the ability to decide whether to bring charges gives prosecutors an awesome power to affect people's lives. When prosecutors use this power in a racially discriminatory manner, courts must step in to protect the objects of that conduct.

Armstrong, 21 F.3d at 1438 (Reinhardt, J., dissenting). The Bourgeois court sought to discourage mere "fishing expeditions" and yet "still allow meritorious claims to proceed." Bourgeois, 964 F.2d at 940.

The court ordered discovery information as currently sought in the case of United States v. Christopher Lee Armstrong. et al., CR92-336-CBM. The government refused to provide the discovery ordered, and the court dismissed the indictment in that case, whereupon the government appealed. A panel of the court of appeals reversed the court's ruling, but a petition for rehearing en banc was granted. See Armstrong, 21 F.3d at 1431, pet. for rehrg.granted, slip op. at 8851 (9th Cir. Aug. 1, 1994). The matter was argued before the court of appeals sitting en banc on September 22, 1994. ⁽⁵⁾

B. THERE IS SUFFICIENT EVIDENCE FOR THE COURT TO EXERCISE ITS

DISCRETION AND FIND A "COLORABLE BASIS" THAT OTHERS SIMILARLY

SITUATED HAVE NOT BEEN PROSECUTED AND THAT THE PROSECUTION IS

BASED ON AN IMPERMISSIBLE MOTIVE.

1. THE COURT'S DISCRETION

Before addressing the evidence in this case, it is important to recognize the discretion which this court possesses. The Ninth Circuit recognized in Bourgeois that a district court order of discovery for a selective prosecution claim is not subject to de novo review, but is subject to review only for abuse of discretion. See Bourgeois 964 F.2d at 937. This was explicitly recognized again by Judge Reinhardt in Armstrong and was not contested in the majority opinion. See Armstrong, 21 F.3d at 1439.

That this is the standard of review means that this court has broad discretion in deciding whether or not to find a "colorable basis" and whether or not to order discovery. As Judge Reinhardt noted in Armstrong, "district courts such as this court are 'uniquely situated to observe possible discrimination in the government's charging decisions' and must use that unique position in exercising their discretion." Id. at 1439 (Reinhardt, I., dissenting). Indeed, though the defense does not believe this is necessary in the present case, this court may go beyond the evidence presented by the defense in deciding how to exercise its discretion. It may also consider any "suspicion of unconstitutional conduct on the basis of its own day-to-day observations." Redondo-Lemos, 955 F.2d at 1296, 1303. This would have satisfied even the majority of the panel in Armstrong, at least as Judge Reinhardt understood it. See Armstrong, 21 F.3d at 1445 (Reinhardt, J., dissenting) ("the majority's opinion leave Judge Marshall free on remand to impose the same discovery order as she had before. so long as she explains that she is basing her order in part on her personal observations of and experience with the United States Attorney's Office").

2. THE EVIDENCE OF NON-PROSECUTION OF "SIMILARLY SITUATED" DEFENDANTS.

The exhibits attached to this motion establish, at the very least, a "colorable basis'' that "similarly situated" defendants who are not African-American are being treated differently. To begin, Mr. * offers greater evidence than that which was before the court in the Armstrong case. ⁽⁶⁾

Anecdotal evidence from other parts of the country is consistent with this, as suggested by the newspaper article and news show transcript attached as exhibit B. One example set forth in the article is the Northern District of Georgia, in which 69 of the 70 defendants charged with cocaine-base related crimes from early 1990 to September 30, 1991 were African-American or Latino. National statistics reveal that 92% of the 624 .'crack offenders" sentenced in federal court between April 1, 1990 and July 1, 1990 were African american.

In another case -- United States v. John Richard Washington. et. al., CR 91-632-TJH - commissioned Dr. Richard Berk to conduct a formal statistical analysis of the ethnic breakdown of cocaine base defendants in federal and state court, respectively. That study was published in the Federal Sentencing Reporter in July, 1993, and is attached as Exhibit C. It reveals that African-American defendants are treated significantly more harshly than other defendants.

Between January 1, 1990 and October 10, 1992, 8% of the Caucasians arrested for drug offenses were arrested for the sale of cocaine base, and 27% of the African-Americans arrested for drug offenses were arrested for the sale of cocaine base. Exhibit C, at 36, 37. The ratio of the percentage of African-Americans arrested for the sale of cocaine base to the percentage of Caucasians arrested for sale of cocaine base was thus 3.4 to 1 (i.e., 27% to 8%). Id. at 38.

If the judicial system were operating in a racially neutral fashion, the ratios of persons charged with base offenses would be similar to the ratio of arrests. See Exhibit C, at 38. In fact, the study demonstrates that this is generally true in the state courts. See id. Within the state system, the ratio of the percentage of African-Americans to the percentage of Caucasians who were charged with the sale of cocaine base was approximately 3.8 to I (i.e., 65% to 17%). Id. Accordingly, the state system appears, at least on the basis of these statistics, to be racially neutral.

When Dr. Berk compared the ratio of the percentage of African-Americans to the percentage of Caucasians who were charged with the sale of cocaine base in federal court, the results were dramatically different. When the arrest data are taken as a benchmark, African Americans are dramatically over represented in federal cocaine base cases. For the federal data to properly reflect the arrest data in a racially neutral fashion, approximately 15% of the cocaine base defendants in this court would be Caucasian. Exhibit C, at 38. All of the cocaine base defendants in this district, except one, have been African-American.

Just on its face, such a significant disparity would seem difficult to attribute to mere chance; this was presumably the reason the court ordered discovery in Armstrong, even without any formal statistical analysis. See Armstrong, 21 F.3d at 1442 (Reinhardt, J., dissenting) ("[g]iven the prevalence of all kinds of drugs throughout our community, at least some crack distributors must be non-blacks" [emphasis in original]). Yet, Dr. Berk was able to use formal statistical analysis to squarely establish that the differential was not due to mere chance. He explained:

While these patterns are instructive the arithmetic comparisons of percentages do not address the role of chance. It is important to ask whether the difference between these various tables could in some sense reflect the 'luck of the draw.' That is, could a simple random sample from Table I produce the patterns seen in Tables 2, 3. Using Table I as the 'population', chi-squared tests were performed. Neither Table 2 nor Table 3 are likely to have been produced by such a random sample. In particular, the probability that the patterns in the federal data (Table 3) could have occurred by the luck of the draw is less than 4 in 2500 (p-value = .0004).

For Table 4, a similar test was conducted in which first row (arrest data) was used as the population for comparison to rows 2 and 3. Again the patterns are likely to have been produced by a random draw. For the federal data, the chances are less than I in 100 (p-value = .0088) that they are just a 'luck of the draw' sample for the population of people arrested.

Exhibit C at 38. Dr. Berk therefore concluded that "while strong conclusions [are] difficult",

the data suggests "that African-Americans in general and African-Americans who are charged

with offenses involving cocaine base in particular are at greater risk of being charged with

federal crimes than other racial/ethnic offenders." Id.

This is the epitome of a "colorable basis" that similarly situated defendants are being treated differently. It goes beyond, not only the evidence which persuaded the court to

exercise its discretion favorably in Armstrong, but also the evidence provided, and rejected as

insufficient, in Bourgeois, supra, and United States v. Gutierrez, 990 F.2d 472 (9th Cir.

1 993).

In Bourgeois, the defense provided no evidence of the prosecution rate for non-

minority defendants, and provided no statistical evidence at all beyond a very narrow time

period during which the government focused on one particular group of gangs. See Bourgeois

964 F.2d at 94041. In Gutierrez, the defense presented only statistics showing a high

percentage of certain minority groups were being prosecuted, and presented no statistical

evidence regarding the prosecution rate for white defendants. See Gutierrez, 990 F.2d at 476-

77. Here the defense has provided quantitative evidence of a statistically significant

differential in the prosecution rates for African-American defendants and other defendants.

3. THE EVIDENCE OF IMPERMISSIBLE MOTIVE.

The same evidence that establishes a "colorable basis" for believing that similarly situated defendants are not prosecuted, establishes a "colorable basis" for believing there exists an impermissible motive. The courts have recognized that statistics are some evidence of discriminatory intent, and, indeed, are in some cases sufficient evidence even on the ultimate issue. In United States v. Gordon, 817 F.2d 1538 (11th Cir. 1987), vacated on other grounds, 836 F.2d 1312 (11th Cir. 1988), for example, the court held that a district court had erred when it declined to even consider "racial impact or results evidence". Id. at 1541.

'Circumstantial evidence of invidious intent may include proof of disproportionate impact.' Batson v. Kentucky, [476 U.S. 79, 93 (1986)1 (citing Washington v. Davis, 426 U.S. 229, 242, . . . (1976). Indeed, under some circumstances, proof of discriminatory impact 'may, for all purposes, demonstrate unconstitutionality because in various circumstances the discrimination is very diff~cult to explain on non-racial grounds." Washington, 426 U.S. at 242. ... At the evidentiary hearing on remand, the court must take into consideration this kind of evidence in deciding the selective prosecution claim.

Gordon, 817 F.2d at 1541. The differential in the present case is also one which "is very difficult to explain on non-racial grounds." At the very least, there is no obvious explanation. Compare Wayte, 710 F. 2d at 1388 (noting that the explanation which the government offered for its prosecution selection procedure was "logical and does not evidence impermissible motives"). See also United States v. Gutierrez, 990 F.2d at 477 (noting "evidence in the record that race did not play a part in the decision to prosecute" and "[i]t appears that the district court accepted this evidence"). Dr. Berk's analysis establishes that the difference in prosecution rates cannot be explained by mere chance. See supra pp. 16-17. There is, therefore, a "colorable basis" for believing there exists an impermissible motive for the less frequent prosecution of "similarly situated" offenders of other ethnic groups.

CONCLUSION

The survey of Dr. Randall Fisher, anecdotal evidence, and the statistical study by Dr. Richard Berk all point to different prosecution rates for African-American defendants. This directly establishes a colorable basis for the assertion that similarly situated defendants are not being treated similarly. It also justifies a reasonable inference of discriminatory intent. This is all that is necessary to justify a court order requiring the government to produce additional discovery relevant to a selective prosecution claim. The court should, therefore, order the government to produce the discovery sought in this motion.

RESPECTFULLY SUBMITTED, this 15th day of December, 1995.

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1. including, but not limited to, Metropolitan Bureau of Investigation, City/County Investigative Bureau, Orlando Police Department, Orange County Sheriff's Office, Volusia County Sheriff's Office, Osceola County Sheriff's Office, Osceola County Investigative Bureau, Lake County Sheriff's Office, and any and all other law enforcement agencies in the Middle District of Florida.

2. including, but not limited to, Metropolitan Bureau of Investigation, City/County Investigative Bureau, Orlando Police Department, Orange County Sheriff's Office, Volusia County Sheriff's Office, Osceola County Sheriff's Office, Osceola County Investigative Bureau, Lake County Sheriff's office, and any and all other law enforcement agencies in the Middle District of Florida.

3. including, but not limited to, Metropolitan Bureau of Investigation, City/County Investigative Bureau, Orlando Police Department, Orange County Sheriff's Office, Volusia County Sheriff's Office, Osceola County Sheriff's Office, Osceola County Investigative Bureau, Lake County Sheriff's Office, and any and all other law enforcement agencies in the Middle District of Florida.

4. The colorable basis standard is embraced by the third, sixth, seventh and D.C. circuits, while the fourth and eleventh circuits have a less strict "non frivolous" standard and four circuits apply a stricter prima facie showing test. See In re Grand Jury, 619 F.2d 1022,1030 (3d Cir. 1980);, 870 F.2d 1140, 1146 (6th Cir. 1989); United States v. Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990); United States v. Armstrong, 48 F.3d 1508, 1512 (9th Cir. 1995); United States v. P.H.E.. Inc., 965 F.2d 848, 860 (10th Cir. 1992); Attorney General of United States v. Irish People. Inc., 684 F.2d 928, 948 (D.C. Dir. 1982); United States v. Greenwood, 796 F.2d 49, 52 (4th Cir. 1986); United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir. 1988); United States v. Penaearicano-Soler, 911 F.2d 833, 838 (1st Cir. 1990); St. Gerrnain of Alaska Easter Orthodox Catholic Church v. United States, 840 F.2d 1087, 1095 (2d Cir. 1988); United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir. 1978); United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994).

5. By a 7-4 vote, the en banc court held that the district court had not abused its discretion in ordering discovery. The government has now sought certiorari review in the Supreme Court of the United States #95157. The Supreme Court of the United States has accepted certiorari jurisdiction in Case #95-157.

6. A survey of cocaine cases prosecuted in the Middle District of Florida from 1993-1995, as well as additional anecdotal evidence, and a partial survey of cocaine cases prosecuted in the Ninth Judicial Circuit. Orange County, Florida. l~he partial survey of cocaine cases prosecuted is described in the declaration of Dr. Randall Fisher. See Exhibit A, p. 9. Of the 83 defendants prosecuted in the Middle District of Florida on crack cocaine charges, 82 were black