# Opposition Brief — United States v. Armstrong

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 456

## Text

| x

QUESTIONS PRESENTED

No. 95-157

A. WHETHER THE COLORABLE BASIS STANDARD FOR INITIATION

IN THE SUPREME COURT OF THE UNITED STATES OF DISCOVERY ON A CLAIM OF DISCRIMINATORY PROSECUTION, AS

October Term, 1995 EXPLAINED AND REFINED BY THE NINTH CIRCUIT COURT OF APPEALS, IS

SUFFICIENTLY IN ACCORD WITH ESTABLISHED FEDERAL LAW.

UNITED STATES OF AMERICA, B. WHETHER A DISTRICT COURT ABUSED ITS DISCRETION IN

ISSUING A NARROW DISCOVERY ORDER AFTER BEING PRESENTED WITH

Petitioner,
EVIDENCE PROVIDING A COLORABLE BASIS TO BELIEVE SELECTIVE

Vv.
PROSECUTION MAY HAVE OCCURRED.

CHRISTOPHER LEE ARMSTRONG, ET. AL.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OPPOSITION TO PETITION FOR CERTIORARI

TIMOTHY C. LANNEN
Counsel of Record
880 W. First Street, Suite 516
Los Angeles, California 90012
(213) 680-3617

Attorney for Respondent
AARON HAMPTON

TABLE OF CONTENTS
TABLE OF AUTHORITIES
: Page Cases Page
OPINIONS DPA eCRhehebentens 660seseeede beecedhs ceracaccuaal
Pas CO SSSRERCOSEaeO COS SS ERED CcOe Cee ORD Ceooecceoeed Arlington Height v. Metropolitan Housing — j usin
Development Corp. 429 U.S. 252, 266 (1977) ....eeeeeeeeees 15
PARTIES TO THE Pes 6660666665) hobs bb Rbebsenectneetin : 7
Attorney General of United States v. Irish People,
Pe OSU5 6666656000556 466.00 066 uSDE Ob OEE SOOECecéoecuel Inc i. oe a. Oe Ce, Cal, SOON cecocccecveceees 11
REASONS FOR DENYING THE PETITION........ 6606565 Gd Us8 ee Siood
ahh Oe ek6ackbe cen ease ebbes bee bes neeseweeuce«xcculll _ — ” —* eee Pn: , SA eae =
In re Grand Jury
MOTION TO LEAVE TO PROCEED IN FORMA PAUPERIS.............18 Gid F, B46 2682, 2030 (30 Cir. 1980) ..cccccccsccccccvcsveces 11
i», - , i @ ... seeeeseeeses eeek®
De ee te ieee CASE ECO OS CH SDE NES CORES 15
ska Easter Orthodox
Catholic Church v.United States
S40 PF. 26 1067, 1095 (20 Cir. 19BB) cece ccsccesesecsccees ll
United States v. Adams
S70 F. 24 1140, 1246 (6TH Cir.19B9) ... ccc ccc ccccvscccevses ll
t Vv mstron
48 FP. 34 1508, 1512 (9tH Cir. - 1998) .. cece vec veescnevevecs ll
i sv alough
820 F. 22 14865, 1491 (9th Cir.1987) .. ccc ccc cscvcnccvvvves 14
a
462 F. 22 171, 182 (3rd Cir. 1973) wc cece ccecsescseseevees 14
United States v. Berrios
$01 F. 24 1207, 1212 (2nd Cir. 1974) wc ccc vecvscvcevvecves 14
eois
9664 F 20 935, 940 (9tM Cir.1992) . cc ccc ecccvcccevecesvces 6,8
woo
796 F. 2€ 49, 52 (4th Cir. 1986)... ecw neneeeenveesces 11,14
United States v. Gomez-Lopez
Daily Journal D.A.R. 10560... . cece cece eee ee eee renee ees 12

ii iii

TABLE OF AUTHORITIES-Continued
Cases Page

United States v. Gordon
817 F. 2da 1538,1540 (11th Cir. 1988) Serre, eee ee
900 F. 2d 1155, 1159 (7th Cir. 1990)..........eeeeeeeekl, 14

United States v. Henry
CR 94628-CBM (c.D. Cal June 25, 1995S) .ccccccscvcccsseseseene

United States v. Hintzman

806 F. 2a 840, 846 (8th Cir. 1986) -.ccccccccccccsccccssesesene
United States v. Johnson

577 F. 2a 1304, 1308 (5th Cir. 1978). ne © fe © rrr ss

United States v. Parham
16 F. 30 044, O47 (8th Cig. 19006) .ccccccccseceseeenseeneel

United States v. P.H.E., Inc.
965 F. 2d 848,860 (10th cir. 1992) -ccccccccecccccsccseseesenn

United States v. Penagarican-Soler

911 F. 2d 833,838 (ist Cir. 1990)..... (dace peen sedeecaueel

United States vy. Redondo-Lemos

995 F 2d 1302 (9th Cir. 1992)............. 0466668 eee

United States v. Wayte

470 U.S. 598, (1985). ne wo eeeeeese © #*# © © © © © © © 60666865 Beene

Washington v. Davis

426 U.S. 330 363 CIOVG) «6ccccctdsseseee ionaide errr
j Wo v

138 GS 396, 36 (30068). ccccvsceucesseel eee << ae eee 15

iv

TABLE OF AUTHORITIES-Continued

Page
Statutes
BO U.B.C. GB OBE (CS) ccccccccescccccscsccresscvesesecesssess 2
21 U.S.C. § B41 (A) (1) nce cece ccc r crn e renner nnaneneneee 2,3
21 U.S.C. § BEL (D) nce cee c cee c cere ee reer neneeeeeeeeeeees 2
21 U.S.C. § BEG. cece reser reece eeeereeeeeseeeeeeeeseeees 2,3
nn. ccc cece eesccesescccecccesccoses 2
Cal. Health & Safety Code § 11351.5....cc ccc ccnnncnnnrnnes 3
Miscellaneous

U.S. Sentencing Commissions:

Crack Cocaine Offenses, 57 Criminal Law Reporter 2127, 2131

31,

eeeeeeeeeeeeeeeeeseeeeeeeeeeveeeeeeaeseeeeeaeneaeneesee ee 728

Materials Concerning Sentencing for

(May

October Term, 1995

No. 95-157
UNITED STATES OF AMERICA,
Petitioner,
v.
CHRISTOPHER LEE ARMSTRONG, ET. AL.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINIO..) BELOW
The opinion of the en banc court of appeals is reported
at 48 F.3d 1508. The panel opinion of the court of appeals is
reported at 21 F. 3d 1431.
JURISDICTION
The judgement of the en banc court of appeals was
entered on March 2, 1995. By order dated June 21, 1995, Justice

1

0' Connor extended the time within which to file a petition for
a writ of certiorari to and including July 28, 1995. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254 (1).

PARTIES TO THE PROCEEDING
The petitioner is the United States of America. The

respondents are Christopher Lee Armstrong, Robert Rozelle, Aaron

Hampton, Freddie Mack, and Shelton Auntwan Martin.

STATEMENT

In April of 1992, respondent Aaron Hampton, Christopher
Armstrong, Freddie Mack, Shelton Martin, and Robert Rozelle were
charged with federal offenses for their alleged involvement in
the distribution of cocaine base ("crack"). The charges stemmed
from an investigation conducted under the direction of a joint
state and federal task force comprised of detectives from the
Inglewood Narcotics Division and agents from the Bureau of
Alcohol, Tobacco, and Firearms.

Respondents, each of whom is a young African-American
male, were charged with conspiracy to distribute cocaine base
under 21 U.S.C. § 846. Some of the defendants were also charged
with selling cocaine base under 21 U.S.C. 841 (a)(1) and using
firearms in connection with drug trafficking in violation of 18
U.S.C. § 924 (Cc). The decision to charge the defendants with
federal rather than California State offenses was significant.
Federal law imposes a minimum sentence of 10 years and a maximum
of life for those convicted of selling more than 50 grams of

2

cocaine base. 21 U.S.C. § 841 (b). By contrast, under California
law, the minimum sentence for that offense is three years and the
maximum is five. Cal. Health & Safety Code § 11351.5 (Deering
1993).

Respondents filed a Motion for Discovery and/or
Dismissal of Indictment for Selective Prosecution, claiming that
the decision to prosecute on federal instead of state charges was
based on race. To support the motion for discovery, the
defendants offered into evidence a study of every case involving
a charge under 21 U.S.C. §§ 841 and 846 that the Federal Public
Defender's Office for the Central District of California had
closed in 1991. The study showed that in all 24 such cases the
defendants had been black.

The district court granted the motion for discovery.
Specifically, the district judge ordered the government to: (1)
provide a list of all cases from the prior three years in which
the government charged both cocaine base offenses and firearms
offenses; (2) identify the race of the defendants in those
cases;(3) identify whether state, federal, or joint law
enforcement authorities investigated each case; and (4) explain
the criteria used by the U.S. Attorney's Office for deciding
whether to bring cocaine base cases to the federal court.

The government chose not to comply with the discovery
order and instead filed a motion for reconsideration. In support
of its motion, the government provided a list of all defendants
charged with violations of 21 U.S.C. §§ 841 and 846 over a three
year period (without any racial breakdown) as well as

3

: — Se a

= eld.

declarations by three law enforcement officers and two Assistant
United States Attorneys. The declarations collectively asserted
that socioeconomic factors led certain ethnic and racial groups
to be particularly involved with the distribution of certain
drugs and that Blacks were particularly involved in the Los
Angeles-area crack trade. The declarations also contained a
description of some of the race neutral factors on which federal
prosecutors based their charging decisions for crack-related
offenses. The factors included were the strength of the
evidence, the deterrent value of bringing the charge, the federal
interest in the prosecution, and the suspect's criminal history.

In response, the defendants bolstered the statistical
study they had submitted at the initial hearing with additional
declarations. First, one of the defendant's counsel offered an
affidavit stating that she had spoken with a halfway house intake
coordinator who told her that in his experience treating cocaine
base addicts, whites and blacks dealt and used the drug in equal
numbers. Second, another defense attorney asserted in a
declaration that his experience and conversations with judges,
lawyers, and defendants led him to conclude that many non-blacks
were prosecuted for cocaine base offenses in state court.
Finally, the defendants submitted an article from the Los Angeles
Times discussing the disparate federal sentences imposed for
cocaine base and regular cocaine offenses.

The District Court denied the motion for
reconsideration. The court stated its reasons for the denial at

the hearing: "The statistical data provided by the Defendant

raises a question about the motivation of the Government which
could be satisfied by the government disclosing its criteria, if
there is any criteria, for bringing this case and others like it
in Federal Court. Without this criteria the statistical data is
evidence and does suggest that the decisions to prosecute in
Federal court could be motivated by race. Without expert
testimony, this Court cannot conclude that the defendants’
evidence is explained by social phenomena."

The government again chose not to comply with the
discovery order. The district court judge dismissed the
indictments, but stayed the order pending appeal. The government
timely appealed.

2. A divided panel of the court of appeals reversed.
The majority constructed a three category test based on Redondo-

Lemos, supra, and Bourgeois, supra. The dissent argued that the
district court had not abused its discretion by ordering

discovery on the claim of selective prosecution, and that the
majority opinion created three highly artificial categories of
cases.

3. The court of appeals granted rehearing en banc to
resolve a conflict in its cases over the standards governing
discovery when a defendant claims selective prosecution. By a
7-4 vote, the court held that the district court had not abused
its discretion in ordering discovery in this case. The majority
first held that a district court had discretion to order
discovery on a claim of selective prosecution when the evidence
provides a colorable basis for believing that discriminatory

5

prosecutorial selections have occurred. The existence of a
colorable basis must be judged in light of all the evidence
presented to the district court and not simply that offered by
the defendant. "The United States Attorney must be given the
chance to make whatever showing [he] deems appropriate to dispel
the district judge's concerns." (app. at 8a)' However, where
the goverment fails to make a showing sufficient to dispel those
concerns, then a colorable basis remains even though the
government has provided some evidence in response.

Explaining and refining the standard articulated in
United States v. Bourgeois 964 F 2d 935, 940 (9th Cir.) cert.
denied, 113 S. Ct. 290 (1992) the court of appeals held that:

a. The showing needed for discovery is less than that
needed for a prima facie case. (app. at 9a)

b. Inadequately explained evidence of a significant
statistical disparity in the race of those prosecuted suffices
to show the colorable basis of discriminatory intent and effect
that warrants discovery on a selective prosecution claim. (Id
at lla)

c. Defendants attempting to show a colorable basis
that warrants discovery can only be expected to make good faith
efforts to obtain whatever evidence is available, as well as to
provide whatever evidence is in their possession. (Id at l2a)

The court noted that the colorable basis standard

enunciated in its opinion is more in line with other circuits

' app. shall refer to the appendix to the petition for a
writ of certiorari filed in this case.

6

and that it accommodates the twin but conflicting concerns that
discovery in selective prosecution claims implicates: "The
colorable basis standard ensures that the government will not be
called to answer for its charging decisions as a result of
frivolous and unwarranted allegations. At the same time, the
standard ensures that defendants will not face unjustified
hurdles at the discovery stage that will preclude them from
demonstrating the existence of actual discrimination in the
selection of defendants for criminal prosecution." (app. at l4a,
15a)

Chief Judge Wallace, concurring with the majority,
agreed that the abuse of discretion standard permits the district
court flexibility and voted to affirm. (Id at 30a) While noting
that usually evidence of “others similarly situated" is needed
to establish a prima face case, he nevertheless found that at the
discovery stage, where there is evidence of a large enough number
of prosecutions directed at a single race over a sufficiently
long period of time, eventually there becomes a point where that
evidence is sufficient to establish a colorable basis of
selective prosecution. (Id at 31a)

The dissent found that the majority opinion “crafts a
new standard" rather than clarifying the colorable basis standard
and that it allowed discovery on a showing that discrimination
“may” have occurred, rather than a definitive showing it had
occurred. (app. dissent at 44a.) The dissent would require a

specific showing of a similarly situated non-black offender who

.

was not prosecuted, rather than a colorable basis for the belief
such an individuai exists. (]d. at 46a.)

The dissent agreed that, in limited circumstances, a
pattern of prosecution of a single racial group could provide
circumstantial evidence of intent. (Id. at 58a) It disagreed
that the statistical evidence presented to the district court

here was sufficient to support the inference.

REASONS FOR DENYING THE PETITION

The Ninth Circuit Court of Appeals explained and
refined its rulings in two previous discovery cases United States
v. Bourgeois 964 F 2d 935 (9th Cir. 1992) United States Vv.
Redondo-Lemos 995 F 2d 1296, 1302 (9th Cir. 1992) and in so doing
made a ruling that is squarely in the mainstream of federal
discovery law on the issue of when discovery can be ordered on
a claim of selective prosecution in a criminal case.

By holding that defendants must present sufficient
evidence to provide a colorable basis for believing that the
government has engaged in discriminatory prosecution before a
court may order discovery, the appellate court “ensures that the
government will not be called to answer for its charging
decisions as a result of frivolous and unwarranted allegations.
At the same time the standard ensures that defendants will not
face unjustified hurdles at the discovery stage that will

preclude them from demonstrating the existence of actual

discrimination in the selection of defendants for criminal
prosecution. " (app. at 14a, 15a)

1. The court of appeals relied not only on the
statistical data presented by the Federal Public Defenders Office
that showed that the federal government prosecuted only African-
Americans for crack cocaine offenses, but also upon declarations
demonstrating that white defendants were routinely prosecuted in
state court for crack cocaine. The court found those
declarations were probative evidence that’ like-situated
defendants of a different race were not prosecuted in federal
court (app. at 23a ft. 8)? The sum of the evidence presented to
the district court places the holding of the court of appeals in
the mainstream of its fellow circuits; that “inadequately
explained evidence of a significant statistical disparity in the
race of those prosecuted suffices to show the colorable basis of
discriminatory intent and effect that warrants discovery on a
selective prosecution claim".

The court of appeals had already stated in Redondo-
Lemos supra 955 2d at 1301-02 that statistical disparities alone
may suffice to provide the evidence of discriminatory intent that
will establish a prima facie case of selective prosecution.

In Bourgeois,supra, the court held that to obtain discovery on

a selective prosecution claim, a defendant must present specific

2. The government petition ignores the finding of the court
of appeals that the affidavits were probative evidence, while
arguing at the same time that the affidavits had insufficient
evidentiary value to be considered. (petition at 17, Footnote
1)

facts which establish a colorable basis for the existence of both
discriminatory application of a law and discriminatory intent on
the part of the government. The court noted that it was a high

threshold. (Id. at 939) The Bourgeois court found that the

defendant had failed to establish a colorable basis for the first

element of the claim that “others similarly situated have not

been prosecuted" citing United States v. Wayte 470 U.S.

598, (1985)? The instant opinion of the court of appeals
acknowledges that the standard of evidence sufficient to trigger
discovery must necessarily amount to less than the evidence
needed to establish a prima facie case, and that defendants
attempting to show a colorable basis that warrants discovery can
only be expected to make good faith efforts to obtain whatever
evidence is available, as well as to provide what evidence is in
their possession. (app. at 12a) By holding that “inadequately
explained evidence of a significant statistical disparity in the
race of those prosecuted suffices to show the colorable basis of
discriminatory intent and effect that warrants discovery on a
selective prosecution claim," the court of appeals settles the

tension between Redondo-Lemos and Bourgeois while at the same

time upholding the colorable basis standard.

3 United States v. Wayte 470 U.S. 598 held that to succeed
on a selective prosecution claim, the defendant bears the burden
of showing “that others similarly situated have not been
prosecuted and that the prosecution is based on an impermissible
motive" and that selective prosecution claims are evaluated
“according to equal protection standards". supra at 608-09
However Wayte did not address the issue of discovery on a Claim
of selective prosecution (Id at 605 ft. 5) (emphasis added)

10

In so doing, the court notes that the evidence of
discriminatory prosecution presented to the district court in the
discovery motion was much stronger than the ninth circuit held
insufficient to initiate discovery in Bourgeois. (app at 16a)
The opinion hardly supports petitioner's subsequent allegation
that the court of appeals holding amounts to a “reformulation of
legal principles".

The colorable basis standard is embraced by the
third, sixth, seventh, tenth and D.C. circuits,‘ while two
circuits have a less-strict "non frivolous" standard’ and four

¢ The colorable basis

apply a stricter prima facie showing test.
test as clarified in the court's opinion takes the middle ground
that “accommodates the twin but conflicting concerns" that

discovery in selective prosecution claims implicate.

+

See In re Grand Jury, 619 f. 2d 1022, 1030 (3d Cir.
1980); United States v. Adams, 870 F. 2d 1140, 1146 (6th Cir.
1989); United States v. Heidecke, 900 F.2d 1155, 1159 (7th Cir.
1990); United States v. Armstrong, 48 F. 3d 1508, 1512 (9th Cir.

1995); United States v. P.H.E., Inc., 965 F. 2d 848, 860 (10th
Cir. 1992); Attorney General of United States v. Irish People,

Inc., 684 f. 2d 928, 948 (D.C. Cir. 1982).

5
See United States v. Greenwood, 796 F. 2d 49, 52 (4th Cir.

1986); United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir.
1988).

6
See United States v. Penagarican-Soler, 911 F.2d 833, 838
(Ist Cir. 1990); St. Germain of Alaska Easter Orthodox Catholic
Church v. United States, 840 F. 2d 1087, 1095 (2d Cir. 1988):
United States v. Johnson, 577 F. 2d 1304, 1308 (Sth Cir. 1978);
United States v. Parham, 16 F. 3d 844, 847 (8th Cir. (1994).

11

2. Petitioner's claim that the Ninth Circuit holding
has a “substantial adverse impact on the prompt and effective
enforcement of the criminal law" and "places the entire crack
enforcement program for that District under a cloud" does not
withstand scrutiny. The same district court judge that granted
the discovery motion in the instant case denied a similar motion
when the government properly responded with information regarding

its policies. See United States v. Henry No. CR 94628-CBM

(C.D. Cal June 26, 1995). Had the government complied with the
concerns of the district court as expressed in its narrow

discovery order, it could have avoided this controversy. AS

noted by petitioner, the affidavits prepared in United States v.
Henry, supra, have satisfied discovery in other cases (petition
at 23 ft. 3) Respondent is aware of no case where discovery has
been ordered following that response by the government. In
essence the government has put the issue to rest by complying
with the district court's cautious and fact-appropriate original
order.

In predicting the ramifications of the holding in this
case to Giecovery as applied to other statutes, petitioner joins
the dissent in ignoring the limited question and complaint
presented to the district court judge: That African-American
males are more frequently prosecuted for federal crack offenses,

with the increased liability for punishment, than for state crack

12

offenses, where the punishment is remarkably less severe.’ That
issue does not translate to crimes such as violation of
immigration laws, where the only prosecutions occur under federal
law. Similarly, the perceived danger of future challenges to
white race and male gender prosecutions in LSD, pornography and
prostitution cases does not take into account the specific
phenomenon presented in this case to the district court judge and
the court of appeals.

The unique problems involving the disparity of
treatment of defendants for the use and sale of crack cocaine and
powder cocaine in federal court, as well as the disparity of
sentences for crack cocaine between federal and state courts,
have attracted national attention and led to consideration by
congress and the United States Sentencing Commission for reform

in these areas.®

The evidence presented to the district court
that federal authorities had targeted a racial minority made the
narrow discovery order of the district court judge appropriate.
District court judges routinely fashion discovery orders on a
case-by-case basis, based on their observations, experience and

the evidence presented to them. For that reason district court

discovery orders are not disturbed absent a clear abuse of

Respondent Aaron Hampton is facing mandatory life

imprisonment without possibility of parole in the instant federal
case. Had the case been filed “across the street" in the Los
Angeles County Court under the state statute, Mr. Hampton would
be facing a maximum of approximately six years in actual custody.

°- gee 6.6. Sentencing Commission: Materials Concerning
Sentencing for Crack Cocaine Offenses, 57 Criminal Law Reporter
2127, 2131 (May 31, 1995)

13

discretion. United States v. Balough 820 F. 2d 1485,1491 (9th

Cir. 1987).°

The court of appeals emphasized that its discovery
holding does not reach the ultimate issue of whether defendants
have in fact demonstrated the existence of selective prosecution.
(app. at 8a) It found that the evidence necessary to obtain a
discovery order must obviously be substantially less than that
needed to prove the charge itself. Nevertheless the appellate
court insists upon evidence that provides a colorable basis for
believing that discriminatory prosecutorial decisions have
occurred. The existence of a colorable basis must be judged in
light of all the evidence presented to the district court and not

simply that offered by the defendant. "The United States

Attorney must be given the chance to make whatever showing he

deems appropriate to dispel the district court's concerns."

(app. at 8a)

3. Finally, the court of appeals colorable basis
standard of review for discovery fits squarely within the
parameters of cases decided by this Court, particularly where

equal protection and racial classifications are involved.

° i i buse of discretion See
. Other circuits also review for a
e.g i 900 F 2d 1155, 1162 (7th

th
cir.1990); United States v. Hintzman, 806 F. 2d 840, 846 (8

. §2 (4th Cir.
. 1986); United States v. Greenwood, 796 F. 2d 49,
1988) United States v. Berrios, $01 F. 2d 1207, 1212 (2nd Cir.

1974); United States v. Berrigan, 482 F. 2d 171, i181 (3rd Cir.
1973)

14

Although the defendant bears the burden of proving
purposeful discrimination, [s]he may rely upon circumstantial
evidence of invidious intent based upon proof of a
disproportionate impact in the application of the law. Batson
vy. Kentucky 476 U.S. 79, (1986) Arlington Height v. Metropolitan
Housing Development Corp. 429 U.S. 252, 266 (1977) Washington
v. Davis 426 U.S. 229, 242 (1976). This court held in Arlington

Heights v. Metropolitan Housing Development Corp. supra, 429 US.

252, 266 that a direct showing of discriminatory intent is not
always necessary to make out an equal protection claim; under
ordinary equal protection standards, a claimant may prove
discriminatory purpose circumstantially. (Id at 266) “Sometimes
a clear pattern, unexplainable on grounds other than race,
emerges from the effect of the state action even when the
governing legislation appears neutral on its face". (Id at 266)
See also Yick Wo vy. Hopkins 118 U.S. 356, 30 (1886) Gomillion
v. Lightfoot 364 U.S. 339 (1960) Determining whether invidious
discriminatory purpose was a motivating factor demands a
sensitive inquiry into such circumstantial and direct evidence
of impact as may be available. Washington v. Davis, supra 426
U.S. 229, 242 (1976)

Petitioner unwisely attempts to join the standard
applicable to a motion to dismiss for selective prosecution with
the standard applicable to a motion for discovery. The district
court and the court of appeal ruled only on the latter.

By initiating limited discovery based upon the evidence
presented, the district court acted properly within its

15

discretion. The court of appeals correctly affirmed that ruling

using the colorable basis standard for discovery in a criminal

case.
CONCLUSION

The petition for writ of certiorari should be denied.

ectfully Submitted,

[aff

TIMOTHY A. LANNEN
Counsel’ of Record
Attorney for Respondent
Aaron Hampton

16

CERTIFICATE OF SERVICE

I, TIMOTHY C. LANNEN, a member of the Bar of this
Court, hereby certify that on August 24, 1995, Respondent's
OPPOSITION TO PETITION FOR CERTIORARI was served upon counsel
listed below by depositing copies of same in the United States
mail, with first class postage prepaid, addressed as follows:

DREW S. DAYS, III

SOLICITOR GENERAL

DEPARTMENT OF JUSTICE

10TH & PENNSYLVANIA AVE., N.W.
WASHINGTON, D.C. 20530

DAVID DUDLEY, ESQ.
1999 AVENUE OF THE STARS, SUITE 1200
LOS ANGELES, CA 90067

JOSEPH WALSH
316 W. SECOND STREET, SUITE 1200
LOS ANGELES, CALIFORNIA 90012

BARBARA O'CONNOR, ESQ.

DEPUTY FEDERAL PUBLIC DEFENDER
1503 UNITED STATES COURTHOUSE

312 NORTH SPRING STREET

LOS ANGELES, CALIFORNIA 90012

BERNARD ROSEN, ESQ.
1717 FOURTH STREET, THIRD FLOOR
LOS ANGELES, CALIFORNIA 90401 /

/

TIMOTHY C. LANNEN
Attorney for Respondent
AARON HAMPTON

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0636%3A03. Public record. Not legal advice.