## Facts

- James E. Venable, an African American, was federally indicted in the Eastern District of Virginia for felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- Venable alleged he was selected for federal prosecution through “Project Exile,” a federal–state gun-crime initiative, because of his race.
- Two white individuals, Gary Wayne Turner and Michele Lynn Zechman, burglarized a home in Campbell County, Virginia, and stole eleven firearms.
- Campbell County authorities (in the Western District of Virginia) prosecuted Turner and Zechman in state court; local authorities there had an expressed interest in prosecuting firearm offenses within the county.
- Venable argued Turner and Zechman were similarly situated comparators who were not federally prosecuted, and he sought discovery into the U.S. Attorney’s criteria and procedures for choosing federal prosecution.

## Issues

1. Whether Venable made the required credible showing, under United States v. Armstrong, to obtain discovery on a racially selective-prosecution claim.
2. Whether Turner and Zechman were similarly situated comparators for purposes of showing discriminatory effect when their prosecutions occurred in a different district under different prosecutorial policies.
3. Whether Venable offered sufficient evidence of discriminatory purpose to justify discovery into prosecutorial decision-making.

## Decision

- The Fourth Circuit affirmed the district court’s denial of Venable’s motion for discovery.
- The court held Venable did not meet Armstrong’s threshold because he failed to present evidence that similarly situated individuals of a different race were not prosecuted.
- The court concluded that differences in district location, prosecutorial authority, and enforcement initiatives provided non-racial explanations for the differing charging outcomes.
- The court found Venable also failed to present evidence supporting an inference of discriminatory intent behind the federal charging decision.

## Legal Principles

- Selective prosecution is assessed under equal-protection principles; to obtain discovery a defendant must make a credible showing of both discriminatory effect and discriminatory purpose.
- Under United States v. Armstrong, discovery requires some evidence that similarly situated persons of a different race were not prosecuted.
- Individuals are not similarly situated when material distinctions exist, including different prosecuting offices, district boundaries, and charging policies that plausibly explain divergent treatment.
- Courts apply a demanding discovery threshold to avoid unwarranted intrusion into prosecutorial discretion and to limit probing of charging deliberations absent concrete evidence of unconstitutional discrimination.

## Conclusion

The Fourth Circuit held that Venable’s proposed comparators were not similarly situated given the different districts and prosecutorial frameworks, and that he offered no concrete evidence of racially discriminatory effect or purpose; therefore, he was not entitled to discovery on his selective-prosecution claim.


United States v. Venable, 666 F.3d 893 (4th Cir. 2012)