## Facts

- Federal prosecutors indicted Christopher Lee Armstrong and other defendants on conspiracy to possess with intent to distribute, and to distribute, more than 50 grams of crack cocaine (21 U.S.C. §§ 841, 846), plus firearms offenses.
- Defendants (all Black) sought discovery or dismissal, alleging race-based selective prosecution in the decision to bring federal charges.
- Defendants submitted an affidavit from a Federal Public Defender paralegal stating that, in 24 crack or cocaine cases closed by that office in 1991, every defendant was Black, along with a list of those cases and outcomes.
- The district court ordered the Government to produce information about prior federal cases involving cocaine and firearms charges, the defendants’ races, the investigating agencies, and federal prosecution criteria.
- When the Government refused to comply, the district court dismissed the indictment.
- The Ninth Circuit (en banc) affirmed, concluding defendants need not show that similarly situated persons of other races were not prosecuted to obtain discovery.

## Issues

1. What threshold showing must a defendant make to obtain discovery in support of a race-based selective-prosecution claim.
2. Whether a defendant must produce some evidence that similarly situated individuals of other races were not prosecuted for similar conduct.

## Decision

- The Supreme Court reversed and remanded.
- Defendants seeking discovery on a selective-prosecution claim must present a credible threshold showing, including some evidence of discriminatory effect.
- In a race-based claim, discriminatory effect requires evidence that similarly situated individuals of a different race were not prosecuted.
- The defendants’ affidavit and case list did not identify any similarly situated non-Black individuals who were not federally prosecuted and therefore did not justify discovery.
- Because the discovery order was improper, dismissal for noncompliance with that order was also improper.

## Legal Principles

- A selective-prosecution claim arises under the equal protection component of the Fifth Amendment’s Due Process Clause and requires proof of both discriminatory purpose and discriminatory effect.
- To show discriminatory effect in a race-based selective-prosecution claim, a defendant must show that similarly situated individuals of a different race were not prosecuted.
- Discovery into prosecutorial decisionmaking is limited by separation-of-powers concerns and a presumption of regularity in charging decisions.
- Federal Rule of Criminal Procedure 16 does not authorize broad discovery into prosecutorial charging decisions merely because requested material is assertedly relevant to selective prosecution; prosecutorial work product protections apply.
- Courts may require a threshold evidentiary showing before permitting discovery that risks intruding into internal prosecutorial deliberations.

## Conclusion

The Court held that defendants are not entitled to discovery on a race-based selective-prosecution claim without some evidence that similarly situated individuals of other races were not prosecuted, and it reversed the dismissal entered after the Government declined to comply with an improper discovery order.


United States v. Armstrong, 517 U.S. 456 (1996)