Prosecution and Project Safe Neighborhoods (PSN)

United States 6th Circuit Court of Appeals Reports

U.S.A. v. THORPE, 05-2220 (6th Cir. 12-27-2006) UNITED
STATES OF AMERICA, Plaintiff-Appellant, v. JAMES THORPE,
Defendant-Appellee. No. 05-2220. United States Court of
Appeals, Sixth Circuit. Argued: November 2, 2006. Decided
and Filed: December 27, 2006. Pursuant to Sixth Circuit
Rule 206.

Appeal from the United States District Court for the
Eastern District of Michigan at Detroit. No. 03-80329
— Denise Page Hood, District Judge.

ARGUED: Jonathan Tukel, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellant.

David S. Steingold, LAW OFFICES OF DAVID S. STEINGOLD,
Detroit, Michigan, for Appellee.

ON BRIEF: Jonathan Tukel, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellant.

David S. Steingold, Tracie Dominique Palmer, LAW OFFICES OF
DAVID S. STEINGOLD, Detroit, Michigan, for Appellee.

Before: GILMAN and GRIFFIN, Circuit Judges; HEYBURN, Chief
District Judge.[fn*]

[fn*] The Honorable John G. Heyburn II, Chief United States
District Judge for the Western District of Kentucky,
sitting by designation.

OPINION

RONALD LEE GILMAN, Circuit Judge.

A federal grand jury in the Eastern District of Michigan
indicted James Thorpe for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). Thorpe,
an African-American, moved to dismiss the indictment on the
ground that he was being selectively prosecuted because of
his race. After conducting a preliminary investigation in
support of his claim, Thorpe formally moved the district
court for discovery of all of the government’s files
regarding the Project Safe Neighborhoods (PSN) program
under which Thorpe was being prosecuted.

The court granted Thorpe’s motion, reasoning that Thorpe
could not support his selective-prosecution claim without
the requested materials and that the harm to the
government, which had already disclosed some of the
requested materials to another judge in a different case,
would be minimal. When the government refused to fully
comply with the district court’s discovery order, the court
dismissed with prejudice the indictment against Thorpe. For
the reasons set forth below, we REVERSE the judgment of the
district court granting Thorpe’s discovery motion,
REINSTATE the government’s indictment against Thorpe, and
REMAND the case to the district court for further
proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

At approximately 2:00 a.m. on March 31, 2003, officers from
the Detroit Police Department responded to a dispatch
reporting that there was an individual with a gun in a red
Ford Taurus parked next to a gas pump at an Amoco station
in Detroit. Shortly after their arrival at the station, the
officers observed an African-American male lying asleep in
the driver’s seat of a red Ford Taurus that was parked next
to a gas pump. Beside him was a .380 automatic handgun,
which the officers saw on the car’s front passenger seat
inches from his hand. The individual was James Thorpe, whom
the officers promptly arrested and placed in the back seat
of the police car. Shortly thereafter, according to one of
the officers, Thorpe voluntarily exclaimed, among other
things, “I knew the gun was in there, but I just didn’t
take it out.”

B. Procedural background

Following Thorpe’s arrest by the Detroit police, he was
prosecuted by the United States Attorney’s Office in
accordance with the PSN program. PSN is a Department of
Justice initiative that encourages state and federal law
enforcement, as well as other segments of the community, to
collaborate in the reduction of “gun crime in America.”
Prosecutions under the PSN program, which occur at the
federal level, typically arise by way of referrals from
state law enforcement. According to the PSN web site, the
U.S. Attorney in each participating federal district must
have a strategic plan to attack gun crime, must constantly
evaluate the plan’s effectiveness, and must report
semi-annually to the Department of Justice on several
aspects of the district’s PSN implementation efforts.

Thorpe filed a motion to dismiss the indictment in
September of 2004. He alleged that the implementation of
PSN in the Southern Division of the Eastern District of
Michigan had resulted in selective prosecution on the basis
of race, in violation of the Equal Protection Clause of the
Fourteenth Amendment. On October 4, 2004, the district court
authorized Thorpe, who is indigent, to expend one thousand
dollars of government funds to investigate his claim.
Following a hearing on Thorpe’s motion to dismiss, but
before the district court had reached a decision, Thorpe
filed a separate motion for discovery regarding his claim of
selective prosecution. Thorpe submitted the following
statistical reports in support of his motion: (1) two 2002
reports from the U.S. Sentencing Commission’s web site
documenting the rates of prosecution of firearm offenses
and the rates of imprisonment for those individuals
convicted of firearm offenses in every district and circuit
in the country, (2) an unattributed report documenting the
racial composition of all of the counties in Michigan, and
(3) two reports from local Federal Defender’s Offices, one
in Detroit and the other in Flint, documenting the race of
the defendants in each office’s “pending firearm cases with
state origin.”

The U.S. Sentencing Commission reports demonstrated that,
at least in 2002, the number of defendants sentenced for
federal firearms offenses in the Eastern District of
Michigan as a percentage of all federal sentencings was
approximately 60% greater than the national average (12.9%
versus 8.1%). Moreover, whereas 89% of those individuals
convicted of firearm offenses nationally were in prison in
2002, 97% of those individuals convicted of firearm
offenses in the Eastern District of Michigan were in prison
that year. No mention of PSN, however, appears in the U.S.
Sentencing Commission reports. The unattributed report is
devoid of crime statistics altogether. Instead, it appears
to be a demographic report showing that the five counties
in the Eastern District of Michigan with the highest
percentage of African-Americans in their populations are
Wayne (42.2%), Genessee (20.4%), Washtenaw (12.3%), Oakland
(10.1%), and Jackson (7.9%). Finally, and most pertinent,
the reports from the Federal Defender’s Offices in Detroit
and Flint revealed that of the 68 “pending firearm cases
with state origin” in both offices combined, 60, or
approximately 88%, involved African-American defendants.
Thorpe also provided numerous printouts from both the local
and national web sites for PSN, setting forth the
information summarized in relevant part above.

Conceding that this information was not sufficient to
establish his selective-prosecution claim, Thorpe then
requested that the district court order the government to
disclose its “entire records on Project Safe Neighborhood”
for an in camera review. The district court granted
Thorpe’s discovery motion in March of 2005, while at the
same time denying his motion to dismiss the indictment
against him. Specifically, the court required the
government to produce for an in camera review the following
documents relating to PSN:

1) The criteria for cooperation and for prosecution or
rejection of state cases;

2) The strategic plan regarding the Project;

3) A list of what documents and information the U.S.
Attorney retains for cases prosecuted or rejected as part
of Project Safe Neighborhoods;

4) Writings regarding or comprising the Memoranda of
Understanding between the Federal Government and the
Prosecutors’ Offices in the Eastern District of Michigan;

5) Statistics distinguishing between cases resolved by
plea in State Court and those referred for prosecution in
Federal court; and

6) Any statistics on the cases the U.S. Attorney
prosecutes or rejects, by race.

The district court stated that its decision was based on the
fact that “[i]n United States v. Nixon, 316 F. Supp. 2d 876
(2004) [sic], the Honorable John Feikens ordered the
Government to produce certain documents for in camera
review relating to the Project Neighborhoods initiative.”

The government initially refused to comply with the
district court’s order, citing “well established legal
standards for discovery on a claim of selective
prosecution” and “important institutional considerations.”
After the district court ordered the government to show
cause why it should not be held in contempt for its failure
to comply with the discovery order, however, the government
relented, at least in part. In June of 2005, “[i]n view of
the history” of Judge Feikens and the Nixon case, the
government submitted “those same documents” that it had
previously submitted in Nixon for in camera review by the
district court. But the district court noted in its order
dismissing the indictment that the government had failed to
submit “an affidavit indicating which [of the other
documents ordered for discovery] do not exist.”

Because of the government’s failure to fully comply with
the discovery order, the district court, invoking its
“supervisory powers” under McNabb v. United States, 318
U.S. 332, 340 (1943), dismissed with prejudice the
government’s indictment against Thorpe in July of 2005. The
government timely appealed.

II. ANALYSIS

A. Jurisdiction

As an initial matter, we have jurisdiction over this appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3731. See United States v. Bass, 266 F.3d 532, 535-36 (6th
Cir. 2001) (finding that jurisdiction was proper because
the district court’s dismissal of the death penalty notice,
like the dismissal of an indictment, constituted a “final,
appealable order” for the purpose of 18 U.S.C. §
3731), rev’d on other grounds, 536 U.S. 862 (2002).

B. Standard of review

Notwithstanding the government’s original argument for a de
novo standard of review, we review a district court’s
decision to grant or to deny a motion for discovery
regarding a selective-prosecution claim under the
abuse-of-discretion standard. See United States v. Jones,
159 F.3d 969, 977-78 (6th Cir. 1998), and cases cited
therein; cf. United States v. Armstrong, 517 U.S. 456, 482
(1996) (Stevens, J., dissenting) (“Even if respondents
failed to carry their burden of showing that there were
individuals who were not black but who could have been
prosecuted in federal court for the same offenses, it does
not follow that the District Court abused its discretion in
ordering discovery.”) (emphasis added).

The government has since acknowledged the incorrectness of
its argument, but we still pause to note that the de novo
standard of review adopted by the Fourth and Tenth Circuits
in United States v. Olvis, 97 F.3d 739 (4th Cir. 1996), and
United States v. James, 257 F.3d 1173 (10th Cir. 2001),
respectively, remains — by a considerable margin
— the minority standard of review. See United States
v. Sanders, 211 F.3d 711 (2d Cir. 2000) (applying the
abuse-of-discretion standard); United States v. Hediathy,
392 F.3d 580 (3d Cir. 2004) (same); United States v.
Arenas-Ortiz, 339 F.3d 1066 (9th Cir. 2003) (same); United
States v. Quinn, 123 F.3d 1415 (11th Cir. 1997) (same); see
also, e.g., United States v. Penagaricano-Soler, 911 F.2d
833 (1st Cir. 1990) (applying the abuse-of-discretion
standard before Armstrong); United States v. Cooks, 52 F.3d
101 (5th Cir. 1995) (same); United States v. Mitchell, 778
F.2d 1271 (7th Cir. 1985) (same); United States v.
Hintzman, 806 F.2d 840 (8th Cir. 1986) (same).

Both parties agree that Armstrong governs a district
court’s disposition of discovery requests related to
selective-prosecution claims. As this court noted in Jones,
the Armstrong Court held that “[b]ecause a selective
prosecution claim is not a defense to the merits of a
criminal charge but, instead, an independent assertion of
misconduct, discovery is not available pursuant to
Fed.R.Crim.P. 16.” Jones, 159 F.3d at 975 n. 3 (citing
Armstrong, 517 U.S. at 463). A defendant hoping to obtain
discovery must therefore make a showing of “some evidence
tending to show the existence of the essential elements of
the defense, discriminatory effect and discriminatory
intent.” Armstrong, 517 U.S. at 468 (quotation marks
omitted) (emphasis added). Although the “some evidence”
standard is “rigorous,” id., it is still relatively light,
because “[o]bviously, a defendant need not prove his case
in order to justify discovery on an issue.” Jones, 159 F.3d
at 978.

C. PSN’s alleged discriminatory effect

For the purpose of satisfying the discriminatory-effect
prong, “some evidence” means “a credible showing” that
“similarly situated individuals of a different race were
not prosecuted.” Armstrong, 517 U.S. at 465, 470. Evidence
“identify[ing] individuals who were not black and could
have been prosecuted for the offenses for which respondents
were charged, but were not so prosecuted,” therefore
suffices. Id. at 470. Thorpe, however, has failed to meet
this standard. This court’s holding in Jones is
instructive.

In Jones, the court reversed the district court’s order
denying discovery to Jones, an African-American man, on
his selective-prosecution claim. The court reasoned that in
addition to the flagrant and uncontroverted evidence of
discriminatory intent, Jones had also satisfied the “some
evidence” standard as to discriminatory effect by
introducing evidence that “law enforcement referred only him
and his co-defendant Billings for a federal prosecution
that involved crack cocaine, and failed to refer for
federal prosecution eight non-African-Americans who were
arrested and prosecuted for crack cocaine.” Jones, 159 F.3d
at 978. Neither the small sample size of only 10 state
prosecutions for crack cocaine nor the fact that Jones’s
codefendant was in fact Caucasian prevented this court from
remanding Jones’s case to the district court to compel
discovery. Id.

The evidence that Thorpe presented to the district court in
the present case, however, falls far short of the showing
made in Jones. As Thorpe repeatedly concedes in his brief,
the evidence that he submitted says nothing about
“similarly situated” individuals. What Thorpe offered, in
addition to the background statistics from the U.S.
Sentencing Commission regarding rates of prosecution and
imprisonment for firearm-related crimes, were the two
reports from the Federal Public Defender’s Office for the
Eastern District of Michigan (FDO Reports). The FDO Reports
demonstrated only that a large number of firearm-related
prosecutions, presumably under the PSN program, had been
pursued against African-Americans. Specifically, the
reports showed that of the 68 “pending firearm cases with
state origin” known to the FDOs, 60 (88%) involved
African-American defendants, 3 (4%) involved Caucasian
defendants, 3 (4%) involved Hispanic defendants, and 2 (3%)
involved Native-American defendants.

The reports, however, said nothing about whether any of the
“pending firearm cases” dealt with prosecutions for
violations of 18 U.S.C. § 922(g), the statutory
provision under which Thorpe was indicted. In other words,
the two FDO Reports, as well as the more general data from
the U.S. Sentencing Commission, constituted nothing more
than “raw statistics regarding overall charges.” See United
States v. Bass, 536 U.S. 862, 863 (2002) (concluding that
“nationwide statistics demonstrating that the United States
charges blacks with a death-eligible offense more than
twice as often as it charges whites” were insufficient for
the purpose of satisfying the Armstrong standard)
(quotation marks omitted). And in Bass, the Supreme Court
held that such statistics “say nothing about charges
against similarly situated defendants.” Id. at 864
(emphasis in original).

The evidence presented by Thorpe in support of his motion
for discovery thus failed to demonstrate that the federal
government had declined to prosecute other similarly
situated individuals. Thorpe concedes this fact on appeal,
arguing instead that it was and still is “impossible” for
him or any other PSN defendant to know what constitutes a
similarly situated individual for the purposes of PSN
prosecutions. He notes that unlike the “clearly set forth”
statutory crimes at issue in Armstrong and Bass, “the
Government has never set forth the criteria for how a case
is determined to qualify for PSN prosecution.”

Thorpe’s argument misses the point. Like the defendants in
Armstrong and Bass, Thorpe was charged with the violation of
a very specific federal statute, 18 U.S.C. § 922(g).
He therefore cannot effectively distinguish those cases on
the ground that there existed “a concrete definition of
what would constitute a ‘similarly situated’ defendant
based on the plain language of each respective statute
being enforced.” Such a “concrete definition” exists in
Thorpe’s case as well. The PSN program, as the government
properly notes, creates no new element or offense; it is
simply a broad initiative designed to reduce certain types
of independently defined crimes.

An individual similarly situated to Thorpe would therefore
be a felon known to federal law enforcement officers who
has been arrested for “possess[ing] in or affecting
commerce, any firearm or ammunition.” See 18 U.S.C.
§ 922(g). Thorpe does not need access to the
government’s “entire records on Project Safe Neighborhoods”
to identify such individuals. In fact, precisely as the
Supreme Court suggested to Armstrong, we suggest that
Thorpe, too, “could have investigated whether similarly
situated persons of other races were [arrested and/or
prosecuted] by the State of [Michigan] and were known to
federal law enforcement officers, but were not prosecuted
in federal court.” Armstrong, 517 U.S. at 470. Instead,
Thorpe appears to have made little effort to explore
state-court records that were available to him as well as
to every other member of the public.

Thorpe therefore failed to present even “some evidence”
tending to show discriminatory effect despite the fact that
it was not impossible for him to do so. Cf. Chavez v. Ill.
State Police, 251 F.3d 612, 639-640 (7th Cir. 2001) (noting
that, unlike in a criminal case, “[i]n a civil racial
profiling case, . . . the similarly situated requirement
might be impossible to prove” because the plaintiff “would
not, barring some type of test operation, be able to
provide the names of other similarly situated motorists who
were not stopped”). To be sure, we do not mean to imply
that Thorpe’s discovery request constituted a “fishing
expedition” undertaken in bad faith, but we do wish to
point out that good faith alone cannot overcome legal
insufficiency. Similarly, “[m]erely demonstrating that
better evidence cannot be obtained without discovery does
not suddenly render otherwise insufficient evidence
sufficient.” United States v. Arenas-Ortiz, 339 F.3d 1066,
1071 (9th Cir. 2003).

Thorpe does refer in his brief to race-based statistics
regarding PSN prosecutions that he obtained from the
Washtenaw County Prosecutor’s Office pursuant to a Freedom
of Information Act request. But even if we assume that
these statistics add weight to Thorpe’s claim of selective
prosecution, they are irrelevant for the purpose of this
appeal because there is no indication in either the record
or the briefs — nor was there any indication given
by Thorpe’s counsel during oral argument — that
Thorpe presented these statistics to the district court
before it ordered discovery.

D. PSN’s alleged discriminatory intent

Even if we assume for the sake of argument that Thorpe
presented some evidence of discriminatory effect, reversal
would still be called for because Thorpe, as the district
court itself made clear, did not produce any evidence
whatsoever of discriminatory intent. For the purpose of
satisfying the discriminatory-intent prong, what “some
evidence” means is not entirely clear. The Supreme Court
has not had occasion to directly consider the issue,
because the Court in both Armstrong and Bass found that the
defendant had failed as an initial matter to satisfy the
discriminatory-effect prong. Armstrong, 517 U.S. at 470
(“The study failed to identify [similarly situated]
individuals who . . . could have been prosecuted . . . but
were not. . . .”); Bass, 536 U.S. at 863 (“We need go no
further in the present case than consideration of the
evidence supporting discriminatory effect.”).

This circuit’s opinion in Jones provides only slightly more
guidance, because that case involved racial animus so
blatant that the evidence of it, in the court’s opinion,
was sufficient to meet not only the “some evidence”
discovery threshold but the higher prima facie merits
standard as well. Jones, 159 F.3d at 977-78 (recounting how
the officers who arrested Jones and his wife had, among
other things, made and worn T-shirts depicting the two
African-American suspects at the time of their arrest and
later, while Jones was in jail awaiting trial, sent Jones a
postcard of an African-American woman with bananas on her
head).

Given this lack of clear guidance, a logical approach would
be to apply the prevailing test for discriminatory intent
that predated Armstrong, because Armstrong recognized that
“[t]he requirements for a selective-prosecution claim draw
on ordinary equal protection standards.” 517 U.S. at 465
(quotation marks omitted). In McCleskey v. Kemp, 481 U.S.
279, 292 (1987), the Supreme Court held that in all but
“certain limited contexts,” general statistics, without
more, are insufficient to show discriminatory intent.
Instead, a defendant hoping to prevail under the Equal
Protection Clause “must prove that the decisionmakers in
his case acted with discriminatory purpose.” Id. (emphasis
in original); see also Wayte v. United States, 470 U.S.
598, 610 (1985) (“Discriminatory purpose . . . implies more
than . . . awareness of consequences. It implies that the
decisionmaker . . . selected or reaffirmed a particular
course of action at least in part because of, not merely in
spite of, its adverse effects upon an identifiable group.”)
(brackets and quotation marks omitted).

At least two federal courts, including this one, however,
have questioned this approach in the discovery context. The
first is United States v. Bradley, 880 F. Supp. 271 (M.D.
Pa. 1994). In Bradley, the court noted that “McCleskey did
not address the significance of disparate impact [in] the
context of a discovery request,” where the standard is
“more lax.” Id. at 281. Accordingly, the Bradley court
determined that the McCleskey standard did not govern its
determinations of evidentiary sufficiency at the discovery
stage. The other court to express a similar view is our
own. In United States v. Bass, 266 F.3d 532, 539-40 (6th
Cir. 2001), rev’d on other grounds, 536 U.S. 862 (2002),
this court noted that although “McCleskey will certainly
preclude Bass’s selective prosecution claim if, at the end
of discovery, he fails to show any additional evidence [of
intentional discrimination, McCleskey] does not . . . pose
any bar to Bass at this preliminary stage.”

Because the abuse-of-discretion standard of review governs,
this uncertainty in the law reduces the effective range of
the government’s argument on appeal. A district court
abuses its discretion when it “relies on erroneous findings
of fact, applies the wrong legal standard, misapplies the
correct legal standard when reaching a conclusion, or makes
a clear error of judgment.” Reeb v. Ohio Dep’t of Rehab. &
Corr., 435 F.3d 639, 644 (6th Cir. 2006) (emphasis added).
Precisely because the appellate courts, including this one,
have had difficulty articulating a clear and uniform
standard for what constitutes “some evidence” of
discriminatory intent, the district court could not have
known what the correct legal standard was when it ruled upon
Thorpe’s motion for discovery. That the district court
“applie[d] the wrong legal standard” or “misapplie[d] the
correct legal standard” in granting the motion is highly
unlikely absent such knowledge. Id.

This limits the government to arguing that the district
court either “relie[d] on erroneous findings of fact” or
“ma[de] a clear error of judgment.” Id. Fortunately for the
government, the district court’s order granting Thorpe’s
discovery motion was clearly erroneous on its face, as
discussed further below.

Thorpe admits in his brief that he failed to provide the
district court with any evidence of the government’s
discriminatory intent. He also concedes that “the original
publicized plan for PSN obviously did not espouse any
discriminatory purpose.” Instead, his “evidence” of
discriminatory intent amounts to an inference that he
contends the government itself created:

Rather, the Government proved its discriminatory intent,
based on the knowledge it necessarily had at the time of
the indictment against Mr. Thorpe of the overwhelmingly
racially discriminatory effect the prosecution choices
the U.S. Attorney for the Eastern District of Michigan
was making, by pursuing PSN prosecutions almost
exclusively against non-Caucasian defendants.

(Emphasis in original.) Rephrased, Thorpe’s argument appears
to be that the government’s pursuit of a program despite
knowledge of that program’s discriminatory effect is by
itself “some evidence” of discriminatory intent.

The caselaw does not support Thorpe’s argument. To be sure,
the government exaggerates by implying that statistical
evidence of discriminatory effect, without more, can never
raise an inference of discriminatory intent. See United
States v. Tuitt, 68 F. Supp. 2d 4, 10 (D. Mass. 1999) (“A
discriminatory effect which is severe enough can provide
sufficient evidence of discriminatory purpose.”). But such
a finding remains the exceedingly rare exception to the
general rule. Cf. Wayte, 470 U.S. at 610 (“Discriminatory
purpose . . . implies more than . . . awareness of
consequences.”).

On only a handful of occasions has the Supreme Court made
such an exception. Most notable are the cases of Yick Wo v.
Hopkins, 118 U.S. 356 (1886), and, almost three-quarters of
a century later, Gomillion v. Lightfoot, 364 U.S. 339
(1960). In Yick Wo, the plaintiff presented statistics
demonstrating that the City of San Francisco had applied an
ordinance prohibiting the operation of laundries in wooden
buildings against Chinese nationals only. The city had
denied all 200 permit applications submitted by Chinese
nationals, but had granted all 80 permit applications
submitted by non-Chinese nationals. Yick Wo, 118 U.S. at
374. The Court famously held:

Though the law itself be fair on its face, and impartial
in appearance, yet, if it is applied and administered by
public authority with an evil eye and an unequal hand, so
as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to
their rights, the denial of equal justice is still within
the prohibition of the Constitution.

Id. at 373-74.

In Gomillion, the plaintiffs alleged that the Alabama
legislature’s decision to alter the boundaries of the city
of Tuskegee — “from a square to an uncouth
twenty-eight-sided figure” — had resulted in the
exclusion of all but 4 or 5 of 400 (99%) possible black
voters but not a single eligible white voter. Gomillion,
364 U.S. at 340-41. Echoing Yick Wo, the Court held that if
these statistical allegations were to prove “uncontradicted
or unqualified” at trial, “the conclusion would be
irresistible, tantamount for all practical purposes to a
mathematical demonstration, that the legislation is solely
concerned with segregating white and colored voters by
fencing Negro citizens out of town so as to deprive them of
their pre-existing municipal vote.” Id. at 341.

The statistical evidence that Thorpe presents —
assuming, again, that it speaks to similarly situated
persons — falls far short of approaching the
disparities at issue in Yick Wo and Gomillion. First, the
FDO Reports from Detroit and Flint, which document the
cases of only 68 individuals, “are based on a statistically
unimpressive number of federal defendants.” See United
States v. Turner, 104 F.3d 1180, 1185 (9th Cir. 1997)
(concluding that the district court had abused its
discretion in granting discovery on the defendants’
selective-prosecution claim). In addition, the very fact
that the FDO Reports indicate that the government was
pursuing similar prosecutions against Caucasian, Hispanic,
and Native-American defendants, albeit in limited numbers,
belies a claim of discriminatory intent towards
African-American defendants specifically.

The case of United States v. Colbert, No. 04-80026 (E.D.
Mich. Oct. 7, 2005), which Thorpe contends is directly on
point, does not alter our analysis. In Colbert, the
district court convened a hearing on Colbert’s motion to
dismiss the indictment against him on the ground of
selective prosecution. The hearing occurred after the
district court in the present case had ordered discovery
and dismissed the indictment against Thorpe. At the Colbert
hearing, the government insisted that Colbert’s case was
not a PSN prosecution, and the district court found this
fact dispositive in denying Colbert’s motion to dismiss. In
its brief in the present case, however, the government
lists Colbert as one of several PSN cases in the Eastern
District of Michigan where the defendant has alleged
selective prosecution. Thorpe argues that this change in
the government’s characterization of the Colbert case
— first as a non-PSN case, and later as a PSN case
— constitutes “a poor attempt to cover up what they
know is an unconstitutional practice.”

But even if we assume that the proceedings in Colbert add
weight to Thorpe’s similar claim of selective prosecution,
those proceedings occurred after the district court in
Thorpe’s case had already granted discovery. The transcript
of the Colbert hearing is therefore irrelevant to the
question of whether the district court in this case abused
its discretion in granting Thorpe discovery on his
selective-prosecution claim. This does not mean, of course,
that the Colbert case, or the Washtenaw County statistics,
are of no use whatsoever to Thorpe. He still may use them
to his advantage if he decides to further pursue his
selective-prosecution claim on the merits despite our
holding regarding his discovery request.

Notwithstanding the inapplicability of Colbert, Thorpe
argues that requiring him to make a more affirmative
showing of discriminatory intent without the benefit of
discovery would be patently unfair:

As PSN is not a statutory scheme, and its guidelines for
case selection for federal prosecution are unknown outside
of the U.S. Attorney’s Office, the Government has put all
PSN defendants in a Catch-22: you have to prove the
threshold with evidence of discriminatory intent to get
discovery from the Government, but you cannot have access
to any of the information necessary to prove (or to
disprove) the threshold without discovery from the
Government.

The Court in Armstrong, however, was well aware of precisely
this conundrum, yet still found the “rigorous” standard for
discovery to be justified: “The similarly situated
requirement does not make a selective-prosecution claim
impossible to prove.” Armstrong, 517 U.S. at 466. To be
sure, the burden that Armstrong imposes on a defendant
seeking discovery is still quite heavy, but it is not, in
the Court’s words, “insuperable.” Id. at 470.

In Armstrong’s wake, numerous commentators and courts alike
have questioned whether the Supreme Court’s reassurance
would prove hollow in practice. Most opined that it would,
raising virtually the same arguments that Thorpe raises now
on appeal. See, e.g., Anne Bowen Poulin, Prosecutorial
Discretion and Selective Prosecution: Enforcing Protection
After United States v. Armstrong, 34 Am. Crim. L. Rev.
1071, 1098 (1997) (“By requiring the defendant to produce
specific evidence of an unprosecuted control group before
granting discovery, the Court subjects the defendant to a
‘Catch 22’: the defendant needs discovery to obtain the
information necessary to entitle the defendant to
discovery.”); id. at 1073 (“[The Armstrong] holding creates
a barrier few defendants are likely to surmount.
Consequently, few selective prosecution claims will receive
any meaningful judicial hearing.”); Hubbard v. United
States, No. 04-80321, 2006 WL 1374047, at *1 (E.D. Mich.
May 17, 2006) (“The discovery rule established in Armstrong
places a nearly impossible burden on defendants claiming
selective prosecution since they cannot prove their claim
without discovery and cannot obtain discovery without
mustering some evidence in support of their claim.”).

Despite this criticism, the Supreme Court in United States
v. Bass, 536 U.S. 862 (2002), summarily and unequivocally
dispelled any notions that it would consider, much less
reduce, the threshold for discovery that it first set forth
in Armstrong. Reversing this court’s judgment that the
district court had not abused its discretion in granting
Bass’s motion for discovery, the Supreme Court in Bass
issued a brief per curiam opinion that minced no words as
to Armstrong’s enduring validity:

In [Armstrong], we held that a defendant who seeks
discovery on a claim of selective prosecution must show
some evidence of both discriminatory effect and
discriminatory intent. . . . Under Armstrong, therefore,
because respondent failed to submit relevant evidence
that similarly situated persons were treated differently,
he was not entitled to discovery. . . . The Sixth
Circuit’s decision is contrary to Armstrong and threatens
the “performance of a core executive constitutional
function.” Armstrong, [517 U.S. at 465]. For that reason,
we reverse.

Bass, 536 U.S. at 863-64. Thorpe’s impossibility argument,
accordingly, is misplaced.

We need only briefly consider Thorpe’s further suggestion
that we find “some evidence” of discriminatory intent
simply because all of the PSN prosecutions in the Eastern
District of Michigan arise from “a few select counties,” or
precisely those counties with the highest proportion of
African-Americans in the population. The Ninth Circuit’s
opinion in United States v. Turner, 104 F.3d 1180 (9th Cir.
1997), is instructive. After staying the case pending the
resolution of Armstrong in the Supreme Court, the Ninth
Circuit held that the district court had abused its
discretion in ordering discovery relating to the
defendants’ selective-prosecution claim. Similar to Thorpe
in the present case, the Turner defendants had attempted to
persuade the Ninth Circuit that “selection of a particular
community for a particular enforcement operation
constitutes racial discrimination if it is foreseeable that
because of the ethnic composition of the community one race
will necessarily provide most of the government’s targets.”
Id. at 1185. The Ninth Circuit thoroughly — and, we
think, correctly — rejected this line of reasoning:

The defendants’ hypothetical has a superficial attraction
but is seriously flawed. It is not entirely unnatural for
an observer noting ethnic identity to come to the
conclusion that when almost all the defendants charged
with a particular offense have a certain skin color or
ethnic identity that a racial or ethnic prejudice must be
at work in the selection. Such an observer, however, must
not be very familiar with the demographic and occupational
patterns of the United States. Despite our reputation as
a melting pot, different neighborhoods and different
occupations often attract distinct racial or ethnic
groups; so that if a particular kind of crime comes into
vogue it may well be a feature of a neighborhood or of an
occupation marked by one or another ethnic or racial
characteristic.

In effect, as applied in this case, the defendants’
hypothetical is an argument that the minorities of the
inner city of Los Angeles must be denied the protection of
law enforcement by the federal government because the
likely suspects are overwhelmingly apt to be members of
the minority living in that area. The defense is a grave
perversion of proper sensitivity to the civil liberty of
minorities. If any policy of government had a racially
discriminatory effect, it would be to deny law enforcement
on the grounds of a specious claim of racial
discrimination.

Id. at 1185-86.

Thorpe’s related argument regarding the racial composition
of the counties selected by the U.S. Attorney for
participation in the PSN initiative in the Eastern District
of Michigan is similarly unavailing. He presented no
evidence, in other words, that these particular counties
were selected on the basis of their racial composition as
opposed to being selected because of their level of gun
violence.

In any event, the district court’s order granting Thorpe’s
discovery motion was clearly erroneous on its face.
Notwithstanding the fact that the court ostensibly analyzed
Thorpe’s motion under the prima facie standard that applies
to the ultimate merits, rather than under the less onerous
“some evidence” standard that applies to discovery, the
court’s analysis did not support and, in fact, could not
have supported its conclusion. The district court, in
assessing the evidence of discriminatory intent, stated in
no uncertain terms:

Defendant has not addressed the second element —
that the prosecution was initiated with a discriminatory
purpose. . . . There is a strong presumption that the
prosecutor acted in good faith, to overcome that
presumption clear and convincing evidence to the contrary
must be presented. . . . Defendant has not provided any
evidence to overcome the presumption of good faith. The
second element of the prima facie case was not
established.

So even if the court had applied the correct “some evidence”
standard for discovery purposes, Thorpe could not have
prevailed.

The district court nonetheless granted discovery, relying
solely on the fact that the government had produced some of
the same documents requested by Thorpe for an in camera
review in a different case (United States v. Nixon, No.
03-80793 (E.D. Mich. Apr. 23, 2004) (opinion ordering
discovery)), before a different judge (Judge Feikens), and
regarding a different issue (whether any remedy existed in
federal court for two PSN defendants whose counsel had
rendered ineffective assistance relating to plea agreements
offered to them in state court). Because Armstrong does not
afford district courts the discretion to grant discovery in
selective-prosecution cases where the rigorous “some
evidence” standard has not been met, the granting of
Thorpe’s motion for discovery necessarily constituted an
abuse of discretion. The district court’s “supervisory
powers” justification, set forth in its order dismissing
the indictment against Thorpe, does not alter this
conclusion for the related reason that validating it would
effectively render Armstrong moot. Cf. Bank of Nova Scotia
v. United States, 487 U.S. 250, 254 (1988) (“[I]t is well
established that even a sensible and efficient use of the
supervisory power . . . is invalid if it conflicts with
constitutional or statutory provisions.”) (citation and
quotation marks omitted).

E. Thorpe’s in camera argument

Finally, Thorpe argues that an in camera review of the
materials ordered by the district court for discovery
adequately addresses the government’s concerns regarding
the disclosure of confidential information relating to its
charging decisions, thereby rendering the discovery order
harmless. The pre-Armstrong caselaw provides a degree of
support for this argument. See, e.g., United States v.
Oaks, 508 F.2d 1403, 1405 (9th Cir. 1974) (noting that the
district court, in ordering discovery pursuant to a
selective-prosecution claim, “can minimize the risk to the
government by holding the proceeding in camera and issuing
appropriate protective orders”); see also Ponte v. Real ,
471 U.S. 491, 514-15 (1985) (Marshall, J., dissenting)
(“The in camera solution has been widely recognized as the
appropriate response to a variety of analogous disclosure
clashes involving individual rights and government secrecy
needs.”).

In light of Armstrong and Bass, however, the in camera
argument is insufficient to overcome the “some evidence”
threshold for discovery in a selective-prosecution case.
This court in Bass had upheld the district court’s grant of
discovery and remanded the case to allow the government to
submit materials for the court’s in camera review only.
United States v. Bass, 266 F.3d 532, 540 (6th Cir. 2001).
The Supreme Court nonetheless reversed, making no mention
of the in camera review requirement, much less conceding
that such a review would be sufficient to mitigate the
burden of discovery imposed on the government. See
generally Bass, 536 U.S. 862; cf. Armstrong, 517 U.S. at 469
(“Discovery thus imposes many of the costs present when the
Government must respond to a prima facie case of selective
prosecution. It will divert prosecutors’ resources and may
disclose the Government’s prosecutorial strategy.”).
Thorpe’s in camera argument, therefore, does not overcome
the district court’s abuse of discretion in granting his
discovery motion.

Thorpe also advances the related argument that the formal
reporting requirements of the PSN program minimize whatever
burden his discovery request might impose on the
government. But the simple fact that local U.S. Attorneys
in charge of implementing the PSN program report to the
Department of Justice in Washington, D.C. on a regular basis
does not by itself make the content of their reports public
information that is accessible through court-ordered
discovery.

F. Dismissal of the indictment

Because the district court’s discovery order was improper,
the court a fortiori had no proper basis to dismiss the
indictment. Cf. Armstrong, 517 U.S. at 461 n. 2 (“We have
never determined whether dismissal of the indictment, or
some other sanction, is the proper remedy if a court
determines that a defendant has been the victim of
prosecution on the basis of his race. Here, it was the
government itself that suggested dismissal of the
indictments to the district court so that an appeal might
lie.”) (quotation marks omitted).

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the
judgment of the district court granting discovery,
REINSTATE the indictment against the Thorpe, and REMAND the
case to the district court for further proceedings
consistent with this opinion.