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United States v. Maclin

United States District Court, E.D. Wisconsin

March 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JACOB L. MACLIN, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR DISCOVERY ON SELECTIVE PROSECUTION AND SELECTIVE ENFORCEMENT

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         On June 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.)

         Maclin 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.

         1. Selective Prosecution

         1.1 Legal Standard

         Federal 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 (1962)).

         To 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).

         To show 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).

         In 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.

         Statistical 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.

         To show 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).

         1.2 Application to This Case

         Maclin, 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.)

         Maclin 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 ...


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