United States v. Thorpe

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0471p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

UNITED STATES OF AMERICA,

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No. 05-2220

v.

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JAMES THORPE, -

Defendant-Appellee. -

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 03-80329—Denise Page Hood, District Judge.

Argued: November 2, 2006

Decided and Filed: December 27, 2006

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

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COUNSEL

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.

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OPINION

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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 Honorable John G. Heyburn II, Chief United States District Judge for the Western District of Kentucky,

sitting by designation.

1

No. 05-2220 United States v. Thorpe Page 2

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

No. 05-2220 United States v. Thorpe Page 3

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.

No. 05-2220 United States v. Thorpe Page 4

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.

No. 05-2220 United States v. Thorpe Page 5

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

No. 05-2220 United States v. Thorpe Page 6

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)

No. 05-2220 United States v. Thorpe Page 7

(“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.

No. 05-2220 United States v. Thorpe Page 8

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

No. 05-2220 United States v. Thorpe Page 9

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.

No. 05-2220 United States v. Thorpe Page 10

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

No. 05-2220 United States v. Thorpe Page 11

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

No. 05-2220 United States v. Thorpe Page 12

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.