United States District Court, E.D. Wisconsin
ORDER ON DEFENDANT'S MOTION FOR DISCOVERY ON
SELECTIVE PROSECUTION AND SELECTIVE ENFORCEMENT
JOSEPH UNITED STATES MAGISTRATE JUDGE
5, 2018, a grand jury returned a three-count indictment
charging Jacob Maclin with possession of a firearm by a
felon, possession with intent to distribute a mixture and
substance containing marijuana, and possession of a firearm
in furtherance of a drug trafficking offense. (Docket # 1.)
The charges stem from a traffic stop conducted by Milwaukee
Police on March 31, 2018. (Docket # 33 at 1.) Maclin pled not
guilty. (Docket # 41). Trial is adjourned pending the
resolution of pretrial motions. (Docket # 22.)
moves for discovery as to selective prosecution and selective
enforcement, as well as leave to file a motion to dismiss the
indictment once discovery is complete. (Docket # 41, # 46.)
Maclin asserts that he has made the required showing to
obtain such discovery. The government opposes the motion.
(Docket # 44.) I will address Maclin's requests for
discovery concerning selective prosecution and selective
enforcement in turn.
prosecutors have broad discretion to enforce federal criminal
laws as delegates of the President in the exercise of
executive powers. United States v. Armstrong, 517
U.S. 456, 464 (1996) (citing U.S. Const., Art. II, § 3;
28 U.S.C. §§ 516, 547; Wayte v. United
States, 470 U.S. 598, 607 (1985)). As a result,
prosecutorial decisions are entitled to a presumption of
regularity and courts must presume that prosecutors have
properly discharged their official duties in the absence of
clear evidence to the contrary. Id. (citing
United States v. Chemical Foundation, Inc., 272 U.S.
1, 14-15 (1926)). Ordinarily, a prosecutor need only have
probable cause to believe that the accused committed an
offense defined by statute; in such a case, the decision
whether to prosecute, and what charge to file or bring before
a grand jury, generally rests entirely in the
prosecutor's discretion. Id. (citing
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)).
However, basing the decision whether to prosecute on an
unjustifiable standard such as race, religion, or another
arbitrary classification constitutes “a practical
denial” of equal protection of the law. Id. at
464-65 (citing Oyler v. Boles, 368 U.S. 448, 456
entitle a defendant to discovery in aid of a claim of
selective prosecution, the defendant must present “some
evidence tending to show the existence of discriminatory
effect and discriminatory intent. Id. at 468-69. The
standard for discovery in aid of such a claim is a
“rigorous” one that requires actual evidence, not
merely a claim that discovery would elicit such evidence.
Id. at 468, 470 (explaining that the high standard
appropriately balances enabling defendants with legitimate
claims to proceed with the independence of the executive
branch and the need not to impose unnecessarily burdensome
discovery demands on prosecutors); United States v.
McGee, No. 08-CR-17, 2008 WL 598133, at *2 (E.D. Wis.
Mar. 3, 2008) (quoting United States v. Thorpe, 471
F.3d 652, 659 (6th Cir. 2006)) (“‘Merely
demonstrating that better evidence cannot be obtained without
discovery does not suddenly render otherwise insufficient
evidence sufficient.'”) However, “a defendant
need not prove his case in order to justify discovery on an
issue.” McGee, 2008 WL 598133 at *1 (quoting
Thorpe, 471 F.3d at 657).
a racially discriminatory effect, the defendant must present
“some evidence that similarly situated defendants of
other races could have been prosecuted, but were not.”
Armstrong, 517 U.S. at 469. To be “similarly
situated, ” the comparator must be “prima
facie identical in all relevant respects” to the
defendant. Purze v. Village of Winthrop Harbor, 286
F.3d 452, 455 (7th Cir. 2002); see also United States v.
Skiljevic, 11-CR-72, 2012 WL 2050861, at *10 (E.D. Wis.
June 7, 2012) (denying discovery on selective enforcement
when Bosnian Serb accused of atrocities during the conflict
in the former Yugoslavia and fraud in seeking admission to
the United States “presented no evidence that Bosnian
Muslims who engaged in such conduct sought admission to the
United States, lied on their immigration papers, had their
fraud detected, yet were not prosecuted”). The evidence
against comparators must be “‘as strong [as] or
stronger'” than that against the person arguing
there has been an equal protection violation. McDonald v.
Village of Winnetka, 371 F.3d 992, 1006 (7th Cir. 2004)
(quoting United States v. Smith, 231 F.3d 800,
810-11 (11th Cir. 2000)). Additionally, the similarly
situated individuals must have been known to prosecutors.
United States v. Barlow, 310 F.3d 1007, 1012 (7th
Cir. 2002) (for discovery on selective enforcement, defendant
was required to “present evidence that the DEA agents
observed whites engaging in the same behavior as Barlow . . .
but chose not to approach them”); cf.
Armstrong, 517 U.S. at 470 (defendants “could have
investigated whether similarly situated persons of other
races were prosecuted by the State . . . and were known
to federal law enforcement officers, but were not
prosecuted in federal court”) (emphasis added).
Armstrong, the defendants presented an affidavit
showing that in every one of the 24 cases under the relevant
drug statutes closed by the Federal Defender's Office
during 1991, the defendant was black. Id. at 459.
The Court concluded that this was not sufficient to show
discriminatory effect to justify discovery, because it failed
to identify individuals who were not black and could have
been prosecuted for the offenses for which respondents were
charged, but were not so prosecuted. Id. at 470. The
Court also rejected a newspaper article discussing the
discriminatory effect of federal drug sentencing laws as not
relevant to an allegation of discrimination in decisions to
prosecute, and dismissed affidavits recounting one
attorney's conversation with a drug treatment center
employee and another attorney's experience defending drug
prosecutions in state court as recounting hearsay and
personal conclusions based on anecdotal evidence.
Id. The Court opined that the defendants could have
investigated whether similarly situated persons of other
races were known to federal law enforcement officers, but
were not prosecuted in federal court. Id.
evidence is generally insufficient to demonstrate
discriminatory effect. United States v. Bass, 536
U.S. 862, 864 (2002) (per curiam) (“Raw statistics
regarding overall charges say nothing about charges brought
against similarly situated defendants.”); see also
Armstrong, 517 U.S. at 460-70 (finding it inappropriate
to presume that members of all races commit all types of
crimes at equal rates when interpreting statistics showing
different rates of prosecution for different races relative
to their percentage of the population). However, while
“statistics alone rarely establish an equal protection
violation, ” on motions for discovery on selective
prosecution or enforcement in certain cases, “they may
be sufficient to establish the discriminatory effect prong of
the Armstrong test.” Barlow, 310 F.3d
at 1011; cf. United States v. Paxton, No. 13-CR-103,
2014 WL 1648746, at *4 (N.D. Ill. Apr. 17, 2014) (allowing
use of statistics to satisfy discriminatory effect prong in
profiling case where identifying similarly situated
individuals was impossible). Such statistics, however, must
be “relevant and reliable.” Barlow, 310
F.3d at 1011.
discriminatory intent, the defendant must present some
evidence supporting an inference that racial considerations
played a part in the decision to prosecute him. See
Chavez v. Illinois State Police, 251 F.3d 612, 645 (7th
Cir. 2001) (“Plaintiffs offer little evidence specific
to their case that would support an inference that racial
considerations played a part in their stops, detentions, and
searches.”). Discriminatory intent requires that the
decisionmakers acted with discriminatory purpose, which
implies more than just awareness of consequences; it implies
that the decisionmaker chose the course of action at least in
part because of its adverse effects on an identifiable group.
Id. (citing McCleskey v. Kemp, 481 U.S.
279, 292, 298 (1987); Nabozny v. Podlesny, 92 F.3d
446, 453 (7th Cir.1996)). Only in rare cases will a
statistical pattern of discriminatory impact suffice to infer
discriminatory intent. Id. at 647-48 (citing Supreme
Court's acceptance of statistics to show intent to
discriminate in the selection of a jury venire in a
particular district, statutory violations under Title VII of
the Civil Rights Act of 1964, and possibly legislative
redistricting, but concluding that statistical analysis may
not be the sole proof of a constitutional violation based on
alleged racial profiling).
Application to This Case
who is African American, presents several documents as
evidence in support of his motion for discovery on the
selective prosecution claim. Exhibit 1 is a chart
extrapolated from the U.S. Census Bureau showing the racial
makeup of the counties in the Eastern District of Wisconsin,
showing that Milwaukee County is by far the most populous and
has by far the greatest percentage of non-white residents.
(Docket # 41-1.) Exhibit 2 lists defendants charged with drug
trafficking crimes in the Eastern District of Wisconsin
between January 1, 2017 and June 30, 2018 along with their
race, showing that a significant majority are non-white.
(Docket # 41-2.) Exhibit 3 lists 42 white defendants from
various counties whom Maclin alleges could have been charged
under § 924(c) but were not, along with selected facts
from their state cases. (Docket # 41-3.) Finally, Exhibit 4
lists 23 defendants charged with marijuana-only violations of
§ 924(c) between 2004 and 2013, along with their races.
(Docket # 46-1.)
describes the charging practices of the U.S. Attorney's
Office for the Eastern District of Wisconsin as follows:
Maclin reports that during an 18-month period between January
2017 and June 2018, the U.S. Attorney charged 176 people with
drug trafficking crimes in the Eastern District of Wisconsin,
of whom 90 were black, 41 were white, 30 were Hispanic, and
15 were of another race. (Docket # 41 at 10.) Thirty-five of
those defendants were, like Maclin, also charged with
violating 18 U.S.C. § 924(c) for possessing a firearm in