Amicus Curiae Brief — United States v. Armstrong

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA,

Petitioner,

vs.

CHRISTOPHER LEE ARMSTRONG, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER*

TRACI L. HUAHN

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

QUESTIONS PRESENTED

1. What standard of evidence must a defendant meet before

being entitled to discovery on a claim of discriminatory prosecu-

tion?

2. Does evidence that one group of defendants are all of the

same race, with no showing of any comparison group of persons

not prosecuted, meet this standard?

(i)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA,

Petitioner,

vs.

CHRISTOPHER LEE ARMSTRONG, et al.,

Respondents.

MOTION OF AMICUS CURIAE FOR LEAVE TO FILE

BRIEF IN SUPPORT OF PETITIONER

Pursuant to Supreme Court Rule 37.3, the Criminal Justice

Legal Foundation respectfully moves for leave to file the

accompanying brief amicus curiae in support of petitioner in the

above-captioned case. Counsel for petitioner has consented to

the filing of this brief, as have counsel for four of the five

respondents. Counsel for respondent Armstrong (Mr. Dudley)

has withheld consent by failure to respond to our numerous

attempts to contact him over a period of nearly four weeks.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a nonprofit

California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the constitutional protections of

the accused into balance with the rights of victims and of society

to rapid, efficient, and reliable determination of guilt and swift

execution of punishment.

iV

The criminal justice system does not have infinite resources.

Every time the courts create new issues for litigation which are

irrelevant to the central question of guilt or innocence, the

system is further sapped of its strength and diverted from its

There can be no doubt that a true case of discriminatory

prosecution is a grave injustice, but the rarity of proven cases

indicates that real cases are also rare. If a low threshold showing

is sufficient to force discovery and an evidentiary hearing on this

question, then it threatens to become a routine diversion. The

fight against crime is too important to be distracted by the

routine pursuit of wild geese.

Acceptance of the minimal threshold showing endorsed by

the Court of Appeals in the present case would be contrary to the

interests CJLF was formed to protect.

For the foregoing reasons, amicus curiae requests for leave

to file its brief.

December, 1995

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

TABLE OF CONTENTS

os tee eadeeeeetes tava wn i

ED vo cen eenaeet ees eveeeuen ill

ne .ccstevecsaeeeesseukaes iil

Dt ceute eed behesstecentéeees vi

in. i 6 bed ceva cee eueeteu ecu l

pre . is ceeeneneeeeecueues l

eC ois avee ce O60 ebaéeeeeaues 3

_ FT TTT TT TEPPER E CLEC TT TTT 4

I

Crack is a dangerous drug, and vigorous enforcement against

distributors is entirely appropriate ............... 4

Il

The rule to be established in this case should be expressly

based on nonconstitutional sources ............... 6

Ill

The Federal Rules of Criminal Procedure provide the proper

EDs 60's 20 05 66's 6 ba 5 Oe obs 00% 10

IV

Wade and Franks provide the appropriate standard ..... 13

Vv

The showing in the present case is insufficient ........ 18

GED a SK ceed ccesedoncccebe ceceeeees 24

(v)

vi

TABLE OF AUTHORITIES

Cases

Arlington Heights v. Metropolitan Housing

Development Corp., 429 U. S. 252, 50 L. Ed. 2d 450,

Be Ge Se SED 0:6 due cod Ode Se We dWewe 20, 21

Bowman Dairy Co. v. United States, 341 U. S. 214,

35 L. Bd. S79, 71 &. Ce. 67S (ISS1) . ww ww eee 12

Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274,

a, Ge: CEE neue ctescess eee eet cect 8

Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215,

PCr rrr rrr. 8

Brecht v. Abrahamson, 123 L. Ed. 2d 353,

eh PD, “6 dwede meee wees bs ou 5s 14

Callins v. Collins, 127 L. Ed. 2d 435,

i vn. -cckGbe eeodeeadseece Ou8 22

Copley Press, Inc. v. Superior Court, 6 Cal. App. 4th 104,

Pes eh, EE 0. n d'g oe eudeeaedeouen ses 16

Estelle v. McGuire, 502 U. S. 62, 116 L. Ed. 2d 385,

PP CE «<sKbvnes dvieeeds S40 E wee‘ 7

Franks v. Delaware, 438 U. S. 154, 57 L. Ed. 2d 667,

§ ry ee 7, 14

Giglio v. United States, 405 U. S. 150, 31 L. Ed. 2d 104,

Sh Cn. oéns6ese seeabe ease teem 8

Goeke v. Branch, 131 L. Ed. 2d 152,

ee Gy EY ace obey Ge ewe EN 0s ee ee 7

Gomillion v. Lightfoot, 364 U. S. 339, 5 L. Ed. 2d 110,

RR Ee rr ee ee 21

In re Littlefield, 5 Cal. 4th 122, 851 P. 24d 42 (1994).... 17

Irvin v. Dowd, 366 U. S. 717, 6 L. Ed. 2d 751,

7 9-38 | PPP rrrrr err eee 16

vii

Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908,

Re | ae 20

Kimmelman v. Morrison, 477 U. S. 365, 91 L. Ed. 2d 305,

I i y

Kyles v. Whitley, 131 L. Ed. 2d 490,

i dl x

Leary v. United States, 395 U. S. 6, 23 L. Ed. 2d 57,

I a et 19

Linkletter v. Walker, 381 U. S. 618, 14 L. Ed. 2d 601,

I i 18

Liverpool, New York and Philadelphia S. S. Co. v.

Commissioners of Emigration, 113 U. S. 33,

Se FS Fae errr 9

Malloy v. Hogan, 378 U. S. 1, 12 L. Ed. 2d 653,

PEE. es oop b0en0ns0000009 009% 9

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

PGs ee GUE cocccnscecnsonsesenes. 16

McCleskey v. Kemp, 481 U. S. 279 (1987) .......... 22

McCleskey v. Zant, 580 F. Supp. 338 (ND Ga. 1984)... 22

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

es Gs EEE onc cence cesececebes ouws 8

Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791,

DERE, cunecacecseesteseasseeaes 8

Napue v. Illinois, 360 U. S. 264, 3 L. Ed. 2d 1217,

4 § | TTR TET TCE E TT Tee 8

Palermo v. United States, 360 U. S. 343, 3 L. Ed. 2d 1287,

. 3 § < SPPyrrerre ri rrry ee 9

People v. Luttenberger, 50 Cal. 3d 1, 265 Cal. Rptr. 690,

& | PRET TTT TC 7, 8,17

viii

Solorio v. United States, 483 U. S. 435, 97 L. Ed. 2d 364,

107 S. Ct. 2924 (1987) 2... cc eee ees 14

State v. Russell, 477 N. W. 2d 886 (Minn. 1991) ...... 18

Stein v. New York, 346 U. S. 156, 97 L. Ed. 1522,

ot See i: BePeerre rire Tees 19

Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,

104 S. Ct. 2052 (1984) 2... eee 15

United States v. Adams, 870 F. 2d 1140

GRD BD ohh cc Ce cbswietedsesvdsctecs vi 10, 23

United States v. Armstrong, 48 F. 3d 1508

=< ) eer es TEE Passim

United States v. Augenblick, 393 U. S. 348,

21 L. Ed. 2d 537, 89 S. Ct. 528 (1969) ............ 4

United States v. Bagley, 473 U. S. 667, 87 L. Ed. 2d 481,

ff ee | rrrrTerereeece 8

United States v. Berrigan, 482 F. 2d 171

SE GED os ceéccccedesasnbesnedee 10, 11, 12

United States v. Berrios, 501 F. 2d 1207

= § | FRA rer Ty) Tere aaa 10, 11, 12

United States v. Bourgeois, 964 F. 2d 935

GER BEE ce cccceeeecesseceoecvestivws 14, 18

United States v. Gordon, 817 F. 2d 1538

SNE SUED whee ac scancdreccoeeeessecenes 17

United States v. Greenwood, 796 F. 2d 49

GE EE wc cc cee cece boeeedatwaetesense 17

United States v. Hearst, 412 F. Supp. 863

SP SOU cc dncccerdadowsennrs cesses 13

United States v. Heidecke, 900 F. 2d 1155

Gy GSES oe See cack cee debbsbecswesreces 10, 17

United States v. Johnson, 577 F. 2d 1304 (CAS 1978)... 10

United States v. Nixon, 418 U. S. 683, 41 L. Ed. 2d 1039,

94S. Ct. 3090 (1974) 2. eee ee 11

United States v. Nobles, 501 F. 2d 146 (CA9 1974) .... 12

United States v. Nobles, 422 U. S. 225, 45 L. Ed. 2d 141,

ee) | PPP TETTEETTEEETETeee 12

United States v. P. H. E., Inc., 965 F. 2d 848

GEES Cec cc ce cesseredsssbevececoes 23

United States v. Redondo-Lemos, 955 F. 2d 1296

GONE Sh oc ewece es eeerdesooereccees 16

United States v. Simmons, 964 F. 2d 763 (CA8 1992)... 18

Wade v. United States, 504 U. S. 181, 118 L. Ed. 2d 524,

BES ©. CR. TRG CITTED ccc ccc cccccscnscccene 14

Wardius v. Oregon, 412 U. S. 470, 37 L. Ed. 2d 82,

| 5-) | PPrrereeerererieee 7,9

Wayte v. United States, 470 U. S. 598, 84 L. Ed. 2d 547,

105 S. Ct. 1524 (1985) ........... 16, 17, 21, 22, 23

Weatherford v. Bursey, 429 U. S. 545, 51 L. Ed. 2d 30,

Oe We Ge GT UPPED ccc ccc cc esereecesccecens 6

Webster v. Fall, 266 U. S. 507, 69 L. Ed. 411,

45S. Ct. 148 (1925) 2... cee ee ees 14

Williams v. Calderon, 52 F. 3d 1465 (CA9 1994)...... 15

Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 220,

15-5 | PPPreeerereeLereereeeeee 21

United States Statutes

| & Se Por rrrrT eT Tre PE Tee 2

] RN XP rrPreererererereeecerere 2,6

BP hs Oe Ge OE oc wemte core reseesececceenee 16

P. L. 104-38 (Oct. 30, 1995) .. 2... eee 5, 6, 20

x

State Statutes

CB, Ge, GP Pee oo cece ee cecncsedeanta 16

Cal. Health & Safety Code §11351.5............64.. 2

Cal. Health & Safety Code §11353 ...........00055. 2

GR, FEI, 6 06-00% cewek c weds Ken thea 2

- Bf A, PPP TETETET 2

= By APP PTETTELILET TL 17

= Bs rer rrr res 2

Ee OF PTT TTT 2

Federal Rules of Court

Fed. Rules Crim. Proc., Rule 16............22- 12, 13

DED os cusaveaeeent 12, 13

SU. GND BGs CUSED cc cc ceca cecnci sce 12

PGE no 0064. cadieep 00 es kes 12

RENEE cRudecevadcadnveb ncaa 12

Treatises

B. Witkin & N. Epstein, Cal. Criminal Law

(2d ed. 1989 & 1995 Supp.) ...... 6.6 cece eens 17

C. Wright, Federal Practice & Procedure—Criminal

tT BF yf | 8 PET EEE 12, 13

Miscellaneous

141 Cong. Rec. $14782 (Sept. 29, 1995) ............ 5

141 Cong. Rec. H10283 (Oct. 28, 1995) ............, 5

141 Cong. Rec. H10284 (Oct. 28, 1995) ............ 5

xi

Baldus, Pulaski & Woodworth, Comparative Review of Death

Sentences: An Empirical Study of the Georgia Experience,

74 J. Crim. L. & Criminology 661 (1983) ......... 16

A. Bequai, Organized Crime (1979) .............. 19

V. Flango, Habeas Corpus in State and Federal Courts

RP ge Se ST Cy renner a een anna 15

Shein, Racial Disparity in “Crack” Cocaine Sentencing,

8 Crim. Just. 28 (Summer 1993) ............... 18

Commission on the Future of the California Courts, Justice in

Nee es ven 6 15

Statement by the President on Signing S. 1254

re Ae re se a biel c's a'é's « 4

U. S. Bureau of Justice Statistics, Sourcebook of Criminal

Justice Statistics—1993 (1994) .............005. 15

U. S. Sentencing Commission, Special Report to the

Congress: Cocaine and Federal Sentencing Policy

Ce stceeeee oh eee baeeae hace bees 4, 5, 6, 19

U. S. Sentencing Commission, Statement of the Commission

Majority in Support of Recommended Changes in Cocaine

and Federal Sentencing Policy, 57 BNA CrL 2128

RY gpa Cer are ane 5

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA,

Petitioner,

vs.

CHRISTOPHER LEE ARMSTRONG, et al.,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

SUMMARY OF FACTS AND CASE

Five defendants, all of whom are black, were charged in

federal court with conspiracy to distribute cocaine base.

Additional counts against some defendants included selling

cocaine base and using a firearm in connection with a drug

violation. The defendants claimed that the decision to prosecute

them in federal rather than state court was racially discriminatory

and requested discovery on this claim. The sole basis for the

original request was a study by the Federal Public Defender

showing that in each of the 24 cases of this type closed by that

office in 1991 the defendant was black. United States v.

Armstrong, 48 F. 3d 1508, 1511 (CA9 1995) (en banc).

No showing was made of a comparison group of others,

similarly situated, who were prosecuted in state court instead.

Id., at i527 (Rymer, J., dissenting). No explanation was given

as to why the particular data set was chosen for the study. /d.,

at 1530, n. 13.

Congress has established substantial penalties for persons

trafficking in substantial quantities of cocaine base. Under 21

U.S.C. §841(b)(1)(A)(iii), persons convicted of such an

offense involving over 50 grams receive a minimum sentence of

10 years. An additional five years may be imposed for use of a

firearm in connection with the offense. 18 U. S. C. §924(c)(1).

Penalties under California law are generally less, but not

necessarily as much less as the majority opinion below implies.

California sentencing is a complex system of base terms and

enhancements. The base term for possession of cocaine base for

sale is, indeed, three, four, or five years. Cal. Health & Safety

Code §11351.5. The firearm enhancement statute, which is

similar to 18 U. S. C. §924(c), may well add up to five years in

this case. See Cal. Penal Code § 12022.5(c).

It is difficult to say what other enhancements might apply in

state court, as the factors involved there would not necessarily be

alleged in federal court. For example, while 21 U. S. C. § 841

sharply distinguishes cocaine and cocaine base, it does not

distinguish sales to or through minors from those involving only

adults. California law punishes use of a minor for such sales by

up to nine years in prison for the first offense, Cal. Health &

Safety Code § 11353, and life in prison with a minimum of 17

years before parole for the third offense. Cal. Penal Code

§ 667.75. Selling cocaine to minors is a “serious felony,” id.,

§ 1192.7(c), cl. 24, resulting in a five-year enhancement for each

previous serious felony. /d., § 667(a).

Thus, the maximum sentence in another sentencing system

cannot be determined simply by looking up the term for the basic

offense, as the Court of Appeals majority did in the present case,

48 F. 3d, at 1511, because it may depend on facts which the

government had no reason to allege in the federal prosecution.

The district court granted the discovery motion and issued a

sweeping discovery order, ordering the government to create

compilations of data and answer specific questions. /bid. The

government moved for reconsideration and offered data and

explanations in response to the claim of discrimination. J/bid.

The district court denied reconsideration and dismissed the

action as a sanction for the government’s refusal to comply with

discovery. The dismissal was stayed pending appeal. The Ninth

Circuit originally reversed, finding that the defendants had not

met the “colorable basis” test, 21 F. 3d 1431, but then granted

rehearing en banc and affirmed.

SUMMARY OF ARGUMENT

Crack cocaine is a dai.gerous drug. Vigorous prosecution of

its distributors is appropriate. Prosecution policies that focus on

higher-level and better-organized distributors, in preference to

low-level, individual user-dealers, are also appropriate and are

fully consistent with the policy that Congress has recently

established.

There is no general constitutional right to discovery in a

criminal case, even when the underlying claim is a constitutional

one. The present case should be expressly decided on noncon-

stitutional grounds, such as the Federal Rules of Criminal

Procedure, to preclude any mistaken impression that the rule

established is binding on the states or immune from Congres-

sional modification.

The Federal Rules of Criminal Procedure, ignored by the

opinion below, provide the structure for analysis. To be

discoverable under Rule 16 or subject to subpoena under Rule

17, the material sought, if not privileged, must be relevant to a

question actually at issue. This requires some preliminary

showing.

Wade v. United States required a “substantial” showing. So

did Franks v. Delaware in an analogous situation. This term is

better than “colorable,” which has caused confusion. A

“substantial” threshold will raise the bar high enough to prevent

meritless claims from becoming routine.

The showing in the present case was not even close to

sufficient. For criminal gangs to be organized on ethnic lines is

not unusual in America. For a gang or group of gangs to

dominate a segment of crime in a particular area is also not

unusual.

To make a substantial showing of discriminatory prosecution

with statistics alone would require a comparison pool, controlled

on all the major variables for legitimate differential treatment.

As a practical matier, most discriminatory prosecution cases will

require direct evidence of discriminatory intent.

ARGUMENT

I. Crack is a dangerous drug, and vigorous enforcement

against distributors is entirely appropriate.

President Clinton recently had this to say about crack

cocaine:

“Trafficking in crack, and the violence it fosters, has a

devastating impact on communities across America, especial-

ly inner-city communities. Tough penalties for crack

trafficking are required because of the effect on individuals

and families, related gang activity, turf battles, and other

violence.” Statement by the President on Signing S. 1254

(Oct. 30, 1995).

Although cocaine is not physiologically addictive, it is

psychologically addictive. Crack poses a greater danger of

ensnaring casual users in the web of addiction because of the

manner in which it is administered. U. S. Sentencing Commis-

sion, Special Report to the Congress: Cocaine and Federal

Sentencing Policy 181 (1995) (cited below as “USSC Report”).

Cocaine has its effects only when it reaches the central

nervous system, especially the brain. /d., at 14. “The psycho-

tropic feelings, described as ‘stimulated’ or ‘high,’ are correlated

to the rate of increased concentration of cocaine in the blood,

particularly blood flowing to the brain. The faster cocaine

reaches the brain, the greater the intensity of the psychotropic

effects.” Jd., at 15-19 (emphasis added).

Cocaine can be taken four ways: injection, inhalation

(smoking), insufflation (“snorting”), or ingestion. Cocaine base,

or crack, is smoked, while powder is used the other three

ways.' Inhalation provides by far the fastest “high,” with the

1. Powder cocaine can be inhaled by “freebasing,” but that dangerous

practice has become relatively rare since the advent of crack. /d., at

182, n. 1.

maximum psychological response only a single minute after use,

four times faster than injection and twenty times faster than

insufflation. /d., at 18, Figure 4 ; id., at 29, Table 2.

The difference between smoking and insufflation is the

important comparison for considering the danger of addicting

casual users, since few beginners will inject themselves. /d., at

183, and n. 3. Cocaine powder lodges in the mucous mem-

branes of the nasal cavity and is absorbed into the capillaries.

This relatively slow route of administration results in a slower,

lower, longer “high” and is less likely to result in drug depen-

dence. Id., at 28.

Along with the greater danger of addiction is the violent

crime associated with crack cocaine distribution. “[{T}he

available research suggests that crack cocaine is significantly

associated with systemic crime—that is, crime related to its

marketing and distribution.” /d., at 185. The Sentencing

Commission acknowledged that crack had “higher addictive

qualities,” id., at 183, and was associated with “more criminal

activity,” id., at 186, but found neither difference quantifiable.

Id., at 183, 186.

The Commission strongly recommended against the present

100-to- 1 powder/crack ratio for mandatory minimum sentences,

id., at 198, but left open the possibility that some increased ratio

was appropriate. /d., at xv. The Commission subsequently

decided against any differential by the barest of majorities.

U. S. Sentencing Commission, Statement of the Commission

Majority in Support of Recommended Changes in Cocaine and

Federal Sentencing Policy, 57 BNA CrL 2128, 2130 (May |,

1995). The dissenters believed that a differential was appropri-

ate for distributors but not users. /d., at 2131, and n. 2.

The elected branches of government emphatically agreed

with the dissent. Public Law 104-38 (S. 1254) passed the Senate

without recorded dissent. 141 Cong. Rec. $14782 (Sept. 29,

1995). It passed the House after a similar House bill had passed

332 to 83. 141 Cong. Rec. H10283-10284 (Oct. 18, 1995). As

noted earlier, the President emphatically endorsed the bill's

rejection of lower penalties for distributing crack cocaine.

Public Law 104-38 sends the issue back to the Sentencing

Commission with a number of guidelines. Among these are that

people who traffic in crack should be sentenced more severely

than those who traffic in powder cocaine, P.L. 104-38

§ 2(a)(1)(A), and that those who operate organizations of five or

more people in trafficking should be sentenced more severely.

Id., §2(a) 1 D)\(xi).

Thus, both Congress and the Sentencing Commission

dissenters agreed that the severe sentences imposed by federal

law on mere users of crack cocaine, as opposed to traffickers,

are inappropriate. An exercise of prosecutorial discretion which

sought high federal penalties against organized traffickers, while

relegating users and isolated, low-level dealers to the generally

lesser penalties of state law, would not only be based on a

legitimate law enforcement purpose; it would be in line with

what Congress has since indicated is appropriate.

The U. S. Attorneys for the Central District of California

and the District of Columbia have adopted a threshold of 50

grams for prosecution in federal court. USSC Report, supra, at

139, and n. 92; id., at 143, and n. 94. This exercise of discre-

tion amounts to a nullification of the much-criticized mandatory

minimum sentence for 5 grams of crack, see 21 U.S.C.

§ 841(b)(1)(B)(iii), an amount likely to be possessed by a low-

level user-dealer. See USSC Report, supra, at 171, 174.

In summary, then, crack cocaine is a particularly dangerous

drug requiring stronger prosecution and penalties. Congress

made that determination when it first distinguished crack from

powder, and it has reaffirmed it in light of accumulated know!-

edge by large, bipartisan majorities and with the emphatic

approval of the President. Prosecution policies which focus

these penalties on dealers in substantial quantities who work in

organized operations, as opposed to low-level, individual user-

dealers, are entirely in accord with Congressional policy.

Il. The rule to be established in this case should be

expressly based on nonconstitutional sources.

“There is no general constitutional right to discovery in a

criminal case, and Brady did not create one.” Weatherford v.

Bursey, 429 U. S. 545, 559 (1977). “[T}he Due Process Clause

has little to say regarding the amount of discovery which the

parties must be afforded... .” Wardius v. Oregon, 412 U. S.

470, 474 (1973) (although disallowing one-way discovery).

The Court of Appeals in the present case asserted that a right

of discovery exists without identifying its source. United States

v. Armstrong, 48 F. 3d 1508, 1512-1515 (CA9 1995) (en banc).

This is a dangerous omission in a case where the underlying

claim is constitutional. Lower courts can slip too easily into the

error of assuming that any rule which implements a constitution-

al right must itself be constitutional.

The distinction between constitutional and nonconstitutional

rules is overlooked too easily and too often. See, e.g., Estelle

v. McGuire, 502 U.S. 62, 67-68, and n. 2 (1991). The

distinction is a vital one, however, because rules promulgated

under this Court's supervisory power are not binding on state

courts. Just last term, this Court summarily reversed a grant of

federal habeas relief to a state prisoner by a federal court which

had paid insufficient attention to this basic distinction. Goeke v.

Branch, 131 L. Ed. 2d 152, 158-159, 115 S. Ct. 1275, 1278

(1995).

The California Supreme Court explored the distinction

between constitutional rules and discovery procedures in cases

involving those rules in People v. Luttenberger, SO Cal. 3d |,

784 P. 2d 633 (1990). In that case, the defendant sought

discovery under earlier state case law “for purposes of challeng-

ing the accuracy of statements made in an affidavit in support of

a search warrant.” /d., at 6, 784 P. 2d, at 635. After the case

authorizing such discovery, however, the people of the state had

abolished the independent state exclusionary rule, so that the

merits of the underlying claim would be governed by the federal

rule of Franks v. Delaware, 438 U.S. 154 (1978). Lutten-

berger, 50 Cal. 3d, at 11, 784 P. 2d, at 639. The prosecution

claimed that because Franks required a “substantial preliminary

showing” for an evidentiary hearing, the state courts could not

authorize discovery upon a lesser showing. /d., at 12, 784

P. 2d, at 639.

The court rejected this argument. “[T]he fact that the

discovery at issue may yield information to support a challenge

to the affidavit and an eventual motion to suppress .. . does not

mean that the discovery is therefore also governed exclusively by

federal principles.” /d., at 17, 784 P. 2d, at 643.

This Court, of course, can and has promulgated constitution-

al rules of procedure, binding on the states, to implement or

protect a constitutional right. The advisement requirements for

guilty pleas, Boykin v. Alabama, 395 U. S. 238 (1969), and in-

custody confessions, Miranda v. Arizona, 384 U. S. 436 (1966),

are examples. Decisions of this type are among the most

controversial in criminal law and raise grave questions about this

Court exceeding its constitutional authority and violating the

people's right of self-government. See Boykin, 395 U. S., at

245 (Harlan, J., dissenting); Miranda, 384 U.S., at 525-526

(Harlan, J., dissenting). Creation of any more such rules would

require compelling justification, to say the least.

The cases finding an affirmative constitutional duty to

disclose evidence have been narrow and limited, as the quotes at

the beginning of this part, ante, at 6, indicate. These cases were

reviewed recently in Kyles v. Whitley, 131 L. Ed. 2d 490, 505-

510, 115 S. Ct. 1555, 1565-1569 (1995). Briefly, the require-

ment has its roots in the rule of Mooney v. Holohan, 294 U. S.

103, 112 (1935) that the prosecution cannot knowingly use

perjured testimony. Napue v. Illinois, 360 U.S. 264, 269

(1959) extended this prohibition to the prosecution's failure to

correct testimony it knew was false but did not solicit.

Brady v. Maryland, 373 U.S. 83, 86-87 (1963) further

extended Mooney to favorable evidence “material either to guilt

or to punishment” even in the absence of the introduction of false

evidence. Giglio v. United States, 405 U.S. 150, 153-154

(1972) applied Brady and Napue to a false statement by the

prosecution's principal witness that he had not been given

promises of leniency in return for his testimony. While not

directly bearing on actual guilt or innocence, the credibility of

the witness was an essential part of that determination. United

States v. Bagley, 473 U. S. 667 (1985) defined Brady materiality

with the same standard used for “prejudice” in ineffective

assistance cases: “a reasonable probability that, had the evi-

dence been disclosed to the defense, the result of the proceeding

would have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.”

Id., at 682.

The question remains open whether the “confidence in the

outcome” test can ever be met on a collateral issue irrelevant to

actual innocence Justice Powell discussed the issue sua sponte

in his concurrence in Kimmelman v. Morrison, 477 U. S. 365,

394-397 (1986), but the issue had not been raised by the parties

and was not decided by the Court. /d., at 397-398.

A claim of selective prosecution is similar to the exclusionary

rule claim in Kimmelman in the sense that the defendant seeks

acquittal not on the ground that he is innocent, but rather because

he claims the government is guilty. This Court has not yet

extended the constitutional mandate of Brady to encompass such

claims, and this would be an inappropriate case in which to make

an extension. The Court of Appeals did not state the basis of the

authority to order discovery and did not consider the constitu-

tional complexities of extending Brady.

Other than the narrow requirement of Brady, the reciprocity

requirement of Wardius, supra, and the privilege against self-

incrimination, Malloy v. Hogan, 378 U. S. 1, 6 (1964) (incorpo-

ration), the questions of how much discovery to make available

in criminal cases and what mechanisms to provide have been

decided separately by the federal government and each of the

several States. See Wardius, supra, 412 U.S., at 474-475;

United States v. Augenblick, 393 U. S. 348, 356 (1969). Within

each sovereign, moreover, courts have made rules interstitially,

but the legislative authority has had ultimate control. See

Palermo v. United States, 360 U.S. 343, 353, n. 11 (1959)

(Jencks Act). Any change to this allocation of authority, either

state v. federal or legislative v. judicial, should be made only

For the present case, it is sufficient and, amicus submits,

necessary to state that preexisting case law does not recognize a

constitutional mandate for the discovery sought here, and

defendants have not asked this Court to recognize one. What-

ever standard the Court may decide is proper should be based

expressly on nonconstitutional sources, applicable solely to the

federai courts and subject to Congressional modification.

Creation of a constitutional rule can be considered if and when

the need arises. See Liverpool, New York and Philadelphia S. S.

Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885).

10

Ill. The Federal Rules of Criminal Procedure provide

the proper analytical structure.

Although there is some variation in the circuits, most of them

cite United States v. Berrigan, 482 F. 2d 171 (CA3 1973) and

United States v. Berrios, 501 F. 2d 1207 (CA2 1974) as the

germinal cases in the area. See, e.g., United States v. Johnson,

577 F. 2d 1304, 1308 (CAS 1978) (quoting Berrios); United

States v. Heidecke, 900 F. 2d 1155, 1158-1559 (CA7 1990)

(citing both, following Berrios for “colorable basis”); United

States v. Adams, 870 F. 2d 1140, 1146 (CA6 1989) (following

cases quoting Berrios). A close look at these cases is in order.

During the Vietnam War, the notorious Father Philip

Berrigan and Sister Elizabeth McAlister exchanged letters

planning a bizarre plot to kidnap Henry Kissinger and have him

tried by a kangaroo court of “big wigs of the liberal ilk...

[who would] also [be] kidnapped if necessary... .” Berrigan,

supra, 482 F. 2d, at 178. They also planned to destroy parts of

the Washington, D.C. utility system. /d., at 179. These letters

were smuggled in and out of Lewisberg Federal Penitentiary, in

violation of 18 U. S. C. §1791. /d., at 173. The defendants

claimed that they were prosecuted under this rarely enforced

statute as political retaliation for their antiwar efforts. /bid.

The procedure in the case was somewhat irregular; the

discriminatory prosecution question was considered post-trial,

id., at 176, rather than pretrial. In the course of discussing the

merits of the claim the court said, “Without denigrating the

importance of the right of a person accused of crime to establish

the presence of discriminatory prosecution, central to the issue

must be some initial showing that there is a colorable basis for

the contention.” /d., at 177 (emphasis added). The purpose of

this showing is not entirely clear, since this statement occurs in

Part I B of the opinion, discussing the trial judge’s ruling on the

merits, not discovery, the setting of a hearing, or the conduct of

the hearing. On the merits, Berrigan holds, in essence, that

people prosecuted for smuggling letters hatching bizarre and

dramatic conspiracies against national security are not similarly

situated with run-of-the-mill prison smugglers. See id., at 179.

Part I C of the opinion, dealing with the conduct of the

hearing, is most pertinent to the present case. The district court

——

11

refused to let Berrigan’s counsel call the government’s attorneys

as witnesses and quashed a sweeping subpoena for “all docu-

ments in the government’s files dealing with the decision to

investigate and prosecute the case.” /d., at 180. The question-

ing of attorneys was di-allowed on the grounds of separation of

powers. /d., at 180-181. The subpoena was quashed on similar

grounds of executive privilege but also on the specific exemption

from discovery in Rule 16(b) of the Federal Rules of Criminal

Procedure. /d., at 181.

Not long after Berrigan, this Court recognized that executive

privilege is not absolute and must, in appropriate cases, give way

to the judicial need to reach the truth. United States v. Nixon,

418 U. S. 683, 707 (1974). That case, however, involved a

much stronger preliminary showing. See id., at 700. In

Berrigan, “appellants failed to meet their burden of proving a

colorable entitlement to the defense of discriminatory prosecution

SO as to entitle them to the desired testimonial and documentary

evidence.” 482 F. 2d, at 181 (emphasis added).

Berrios, supra, 501 F.2d, at 1211, adopted the phrase

“colorable basis” from Berrigan, but placed a more coherent

structure on the discovery issues. Berrios, like the present case,

was an appeal by the government after dismissal of the case,

following the government’s refusal to turn over documents. /d.,

at 1209.

Berrios was an official of the Teamsters Union despite his

previous conviction of arson, in violation of 29 U. S. C. § 504.

Ibid. This fact came to the U.S. Attorney’s attention when

Berrios was investigated for another labor-related arson. /d., at

1210. Berrios claimed that “there are hundreds of unions with

officers who have prison records,” and that he was singled out

because of his political and labor activity. /d., at 1209-1210.

To decide what is discoverable and under what circum-

stances, the Berrios court turned to the Federal Rules of Criminal

Procedure. First, Berrios noted, as Berrigan had, that the

government’s internal reports, memoranda, and other documents

prepared by government agents are unequivocally exempt from

discovery under Rule 16. 501 F. 2d, at 1211.

“Upon an adequate preliminary showing of relevancy,

however, the district court may hold a hearing upon a motion

12

raising defenses or objections, [former] Rule 12(b)(4),

F. R. Crim. P., and issue a subpoena directing the govern-

ment to produce books, papers or records for introduction at

the hearing, Rule 17(c), F. R. Crim. P.” bid. (emphasis

added).

Under Rule 17, materials may be subpoenaed which are not

within the scope of Rule 16 discovery, but only if they are

admissible evidence. Bowman Dairy Co. v. United States, 341

U. S. 214, 220-221 (1951). Use of the subpoena for “a fishing

expedition to see what may turn up” is not allowed. /d., at 221.

If the subpoena calls for materials not admissible as evidence it

is invalid. /d., at 220-221.

Materials not protected from discovery by Rule 16(a)(2) are

discoverable under Rule 16(a)(1)(C) only if they are “material to

the preparation of the defendant's defense.”? Materials sought

under Rule 17 can be subpoenaed only if they are admissible,

and they are admissible, among other requirements, only if they

are relevant to a fact of consequence to the determination of the

action and not privileged. Fed. Rules Evid. 401, 402, 501.’

Under either rule, then, there must be a showing that discrimina-

tory prosecution is a genuine issue in the case before any

production can be ordered.

Regrettably, later decisions, including the present one, seem

to have cut loose from the moorings of the Rules. In a case

about pretrial discovery, the opinion below does not once

mention Rule 16. In an earlier case, the Ninth Circuit held that

it could not order production of material expressly exempted

from discovery by Rule 16. United States v. Nobles, 501 F. 2d

146 (1974). This Court reversed only on the ground that Rule

16 is limited to pretrial discovery and does not extend to

production orders during trial. United States v. Nobles, 422

2. The Rule provides two other grounds of discoverability , intended for use

by the government at trial and obtained from or belonging to the

defendant, neither of which is likely to apply in this context.

3. Professor Wright says that the use of Rule 17 to obtain materials not

discoverable under Rule 16 is no longer necessary, 2 C. Wright, Federal

Practice & Procedure—Criminal § 274, p. 158 (2d ed. 1982), at least as

to materials held by the government. /d., at 48 (1995 Supp.).

13

U. S. 225, 234-236 (1975). The Nobles Court implicitly agreed

with the Ninth Circuit's basic premise that Rule 16's exclusions

from discovery, particularly the broadly defined work-product

exclusion, are controlling pretrial, and the district judge has no

authority to order discovered what Congress has protected. See

also United States v. Hearst, 412 F. Supp. 863, 866 (ND Cal.

1975).

Review of the scope of the order issued by the district court

in the present case is not within the question presented, see Pet.

for Cert. i, but the order is a significant indication of how far

that court has strayed from the Rules. The district court ordered

the government to create new documents, rather than disclose

existing ones, and effectively ordered the government to answer

interrogatories. See id., at 3. Yet it is well established that

these kinds of discovery are not available in criminal cases. 2 C.

Wright, Federal Practice and Procedure—Criminal § 254, pp.

64-66, nn. 12, 18 (2d ed. 1982).

In short, then, a return to Berrios’ emphasis on the Federal

Rules of Criminal Procedure is in order. If the appropriate

be discovered under Rule 16(a)(1)(C), to the extent they are not

precluded by Rule 16(a)(2). If a showing sufficient for an

evidentiary hearing has been made, nonprivileged documents

admissible in evidence can be subpoenaed under Rule 17. The

remaining question is the definition of that threshold showing.

IV. Wade and Franks provide the appropriate standard.

On one point, the opinion below is correct. “[T]he meaning

of ‘colorable basis’ . . . has proved elusive . . . .” United States

v. Armstrong, 48 F. 3d 1508, 1513 (CA9 1995). An earlier

Ninth Circuit precedent used these words to describe “ a ‘high

threshold’ that should rarely justify discovery.” /bid. (quoting

United States v. Bourgeois, 964 F. 2d 935, 940 (1992)). The en

banc court in the present case used the same words to describe

a standard so low that discovery can be ordered every time gangs

14

of a particular ethnic group corner a particular racket.‘ A

Standard which generates that much confusion should be

reconsidered. See Solorio v. United States, 483 U. S. 435, 450

(1987).

In Wade v. United States, 504 U. S. 181, 186 (1992), the

Court accepted Wade's concession “that a defendant has no right

to discovery or an evidentiary hearing unless he makes a

‘substantial threshold showing.’” A point conceded and

accepted may have more precedential force than a question

merely lurking in the record, which has none. See Webster v.

Fall, 266 U. S. 507, 511 (1925). Yet, at least arguably, it has

less force than a decision on a point actively contested. See

Brecht v. Abrahamson, 123 L. Ed. 2d 353, 368, 113 S. Ct.

1710, 1718 (1993). Precedent or not, amicus believes that the

Standard stated in Wade is a better formulation than the term

“colorable basis,” and it is a closer approximation to what the

_ Courts using the latter term really meant in the cases prior to the

present one.

For a precedent on a closely analogous question which was

actively contested, we turn to Franks v. Delaware, 438 U. S.

154 (1978). Franks involved the question of whether a defendant

could challenge a facially valid warrant on the ground that the

affiant lied to the issuing magistrate. The Court held that an

evidentiary hearing on that issue was required only upon a

“substantial preliminary showing.” /d., at 155-156. “Prelimi-

nary” is functionally the same as “threshold” in this context, and

hence the Franks standard is the same as the Wade standard.

One of the considerations which convinced the Franks Court

to require such a showing applies equally to the present case. A

Franks hearing, like a discriminatory prosecution hearing,

diverts resources from “the pressing question of guilt or inno-

cence.” /d., at 167. “The weight of criminal dockets, and the

need to prevent diversion of attention from the main issue of

guilt or innocence, militate against such an added burden on the

trial courts.” Jbid. A “sensible threshold showing” was

required to keep this burden within bounds. /d., at 170.

4. See post, at 19, for a discussion of why this is not unusual.

15

This consideration is even more important today than it was

when Franks was decided. Justice is sacrificed daily on the altar

of limited resources. The odious practice of plea bargaining has

Statistics— 1993, p. 536 (1994). Civil cases of great importance

to their parties sit on the back burner as criminal cases get

priority. See, e.g., Commission on the Future of the California

Courts, Justice in the Balance—2020, p. 147 (1993). Courts

should think long and hard before tossing another brick on this

Staggering camel's back.

Concerns about a flood of frivolous motions are not idle

speculation. Such a flood has followed in the wake of Strickland

v. Washington, 466 U. S. 668 (1984). A recent study found

ineffective assistance claims raised in 45 percent of noncapital

federal habeas petitions, V. Flango, Habeas Corpus in State and

Federal Courts 47 (1994), although less than one percent of such

claims were granted. /d., at 62, Table 17. In Capital cases,

where petitioners generally have counsel, the situation is worse,

not better. “An unfortunate offshoot of death penalty litigation

has been the recurrent demonization of prior counsel... .”

Williams v. Calderon, 52 F. 34 1465, 1470, n. 3 (CA9 1995).

America’s criminal justice system does not need another

resource-gobbling side issue to be alleged by criminals, caught

red-handed, who have nothing else to argue.’ The threshold

showing must be high enough that the claim cannot be lightly

made.

The court below, regrettably, appears to have had exactly the

Opposite goal in mind. “Defendants attempting to show a

colorable basis that warrants discovery can only be expected to

make good faith efforts to obtain whatever evidence is readily

available... .” United States v. Armstrong, supra, 48 F. 3d,

at 1514 (emphasis added). “Nor are defendants required to

compile facts which are not easily obtainable by them.” Jbid.

(emphasis added).

5. “Mules seldom have a viable defense, generally having been corralled

red-hoofed with large quantities of illegal drugs at or near the border.”

United States v. Redondo-Lemos, 955 F. 24 1296, 1298 (CA9 1992).

16

Where is the compelling social need to pave a yellow brick

road for these claims? Is discriminatory prosecution rampant in

the land, such that new remedies must be created or existing

ones expanded to address it? Cf. Mapp v. Ohio, 367 U. S. 643,

651 (1961) (exclusion needed because other remedies had failed);

Irvin v. Dowd, 366 U.S. 717, 730 (1961) (Frankfurter, J.,

concurring) (broad federal habeas needed because, at the time,

state courts routinely disregarded fundamental unfairness). That

case has not been made.

Statistics on allegedly discriminatory application of the

criminal law can be gathered and have been gathered from public

records. See, ¢.g., Baldus, Pulaski & Woodworth, Comparative

Review of Death Sentences: An Empirical Study of the Georgia

Experience, 74 J. Crim. L. & Criminology 661 ,680-681 (1983).

The present case involves allegations of prosecution in state

versus federal court of persons represented by the public

defender. A comparison pool, see Armstrong, supra, 48 F. 3d,

at 1530 (dissent), could be found in the case files of persons

represented by the county public defenders of the seven counties

comprising the Central District of California. See 28 U. S. C.

§ 84(c) (boundaries of CD Cal.); Cal. Govt. Code §27700

(establishment of public defender by county). If this task is too

large, both samples could be limited to offenses occurring in Los

Angeles County. This information is no more available to the

federal prosecutor than it is to the federal defender. In addition

to their own files and those of the county public defenders, state

court records are generally open to the public. See Copley

Press, Inc. v. Superior Court, 6 Cal. App. 4th 106, 111-112, 7

Cal. Rptr. 841 (1992).

Considering both the separation of powers problem, see

Wayte v. United States, 470 U. S. 598, 607-608 (1985), and the

resource allocation problem, intelligible standards need to be set.

There are up to three different standards to be considered: (1)

a standard to obtain discovery; (2) a standard to warrant an

evidentiary hearing; and (3) a standard to establish the defense

and obtain dismissal of the prosecution.

The final standard was firmly established in Wayte, 470

U. S., at608. The defendant must “show both that the [prosecu-

17

tion policy] had a discriminatory effect and that it was motivated

by a discriminatory purpose.”®

With the elements of the defense established, the next

question is whether the standard for discovery should be any

lower than the standard for a hearing. Some cases have held that

the two standards are the same. See United States y. Gordon,

817 F. 2d 1538, 1540 (CA11 1987); United States v. Green-

wood, 796 F. 2d 49, 52 (CA4 1986). Others have held that

different standards apply. See, e.g., United States v. Heidecke,

900 F. 2d 1155 (CA7 1990).

In some contexts, there is considerable force to the argument

that a lower threshold should be set for discovery, with the fruits

of the discovery used to meet the higher burden for an evidentia-

ry hearing. People v. Luttenberger, 50 Cal. 3d 1, 18, 784 P. 2d

633, 643-644 (1990) established such a rule in a Fourth Amend-

ment context where compliance with the discovery was simple

and where there was no issue of intrusion into the discretionary

functions of another branch of government.’

Significant differences exist in the discriminatory prosecution

context. By definition, discriminatory prosecution occurs across

the whole class of comparable cases and not just in one isolated

case. In a Fourth Amendment context, an individual police

officer could make up a nonexistent confidential informant, and

no one would ever know. In the present context, a standing

policy of targeting one racial group while treating another

leniently would be difficult to conceal for long. Employees

working on the cases could see the pattern, and nearly every

office of any size has some disgruntled employees or former

employees. Also, as noted ante, at 16, a significant portion of

6. The latter element is self-proving if the prosecution uses “an overtly

discriminatory classification.” See id., at 608, n. 10.

7. Luttenberger is also distinguishable as the product of a court-created

regime of liberal defense discovery quite different from the federal rules,

see 5 B. Witkin & N. Epstein, Cal. Criminal Law §§ 2493-2499, pp.

2995-3000 (2d ed. 1989), and subsequently abolished by the people. See

id., §2498D, p. 19 (1995 Supp.); Cal. Penal Code § 1054.5; In re

Littlefield, 5 Cal. 4th 122, 129, 851 P. 2d 42, 47 (1994).

18

the evidence is in public records. The need for discovery is

reduced in this context.

On the other side of the ledger, the damage is largely

complete upon discovery. Like an unreasonable search, the

discovery itself is the injury, not the later use of the products in

court. Cf. Linkletter vy. Walker, 381 U. S. 618, 637 (1965). In

the present context, the expense of gathering documents and data

from a large number of files and the intrusion of defense

counsel’s prying eyes on the prosecution’s inner workings are

the principal injuries to be avoided. Once the resources have

been spent and the privacy of the office breached, an actual

evidentiary hearing would be a relatively minor additional

intrusion.

For these reasons, a single standard should apply for both

discovery and an evidentiary hearing. Further, the Ninth

Circuit's earlier opinion was correct when it said that “some

evidence” is not enough, and a “high threshold” is necessary.

United States v. Bourgeois, 964 F. 2d 935, 939 (1992). The

phrasing of Franks and Wade, that the showing be “substantial,”

comes closer to the mark than the confusing term “colorable”

and should be adopted.

Vv. The showing in the present case is insufficient.

The showing in the present case requires only brief discus-

sion. Previous attacks upon crack sentencing laws have stressed

that the bulk of the violators of this particular drug law are

black. The Minnesota Supreme Court sustained an equal

protection challenge to the constitutionality of similar state law

on this basis. State v. Russell, 477 N. W. 2d 886, 887 (1991).

The Russell court noted that 96.6 percent of cocaine base

defendants in Minnesota were black, while 79.6 percent of

powder cocaine defendants were white. Similar proportions

have been found in other cases. See United States v. Simmons.

964 F. 2d 763, 767 (CA8 1992); Shein, Racial Disparity in

“Crack” Cocaine Sentencing, 8 Crim. Just. 28, 32 (Summer

1993).

Despite all this, the Court of Appeals majority in the present

Case states that any assumption that the defense's statistics in this

19

case represent demographic reality rather than racist policy

“would be accepting unwarranted racial stereotypes.” United

States v. Armstrong, 48 F. 3d 1508, 1517, n. 6 (CA9 1995).

This statement is the rhetorical equivalent of chemical warfare.

With neither precedent nor experience to support its position, the

a

.

:

reality.

unusual about gangs of a particular ethnic group dominating a

particular segment of organized crime in a given region at a

given time. The Mafia, the tongs, and the Nuestra Familia have

been comprised primarily, if not exclusively, of people of one

ethnic group. See A. Bequai, Organized Crime 19-25 (1979).

When such gang or group of gangs is successful enough to

dominate a “racket” for some period, then it follows that most

perfectly proper exercise of prosecutorial discretion to focus the

most intense efforts on groups rather than individuals and on

large groups rather than small groups. Who are the large groups

in the Los Angeles area? “The Crips and the Bloods are rival

that.

This Court has held that the use of a presumption which is

not grounded in reality is so grossly unfair that it violates the

Due Process Clause. Leary v. United States, 395 U.S. 6. %6

(1969). The people are also entitled to due process of law. Stein

v. New York, 346 U.S. 156, 197 (1953), overruled on other

20

grounds in Jackson v. Denno, 378 U. S. 368, 391 (1964). A

presumption of homogeneity in a country we know is heteroge-

neous," particularly in its criminal gangs, is fundamentally

unfair to the people and denies them due process of law.

For this reason, a showing of discriminatory impact must

include a comparison group of people who received more lenient

treatment and who do not differ from the allegedly targeted

group on any legitimate basis for differential treatment. No such

showing was made in the present case.

The Court of Appeals majority gave the defense complete

control over which data set would be used for the threshold

showing. The Federal Public Defender’s Office chose its own

cases closed in 1991 as the study group. When the government

responded with a broader group, the majority dismissed the

response, saying “None of the cases [shown by the government],

however, fell within the parameters of the [defense’s] study.”

48 F. 3d, at 1517. As the dissent notes, it is quite possible that

various parameters were tried and the set that gave the most

favorable numbers for the argument was chosen. /d., at 1530,

n. 13. Random variation, especially in sets as small as 24 cases,

makes such dishonesty far too easy.

The additional declarations made to “bolster” the initial

statistical study, 48 F. 3d, at 1511, were extraordinarily weak.

First there was counsel's declaration of rank hearsay from a

halfway house coordinator concerning his experience in treating

addicts. Id., at 1511-1512. Because federal policy is targeted

at distributors rather than users and lower-level sellers, see P. L.

104-38, § 2(a)(1)(B) (Oct. 30, 1995), the population of addicts

is utterly irrelevant. To the extent the halfway house coordinator

opined on the population of dealers, Armstrong, 48 F. 3d, at

1512, even if he had the expertise to make such a statement, it

does not distinguish low-level individuals from more organized

operations. The defense attorney's declaration of conversations

and conclusions about “cocaine base offenses,” ibid., does not

show that the state cases are comparable on all legitimate

8 See Arlington Heights v. Metropolitan Housing Development Corp , 429

U.S. 252, 266, n. 15 (1977)

21

criteria, or indeed on any criterion other than a sweeping

Category of offenses.

Can statistics alone ever make a case of discriminatory imi

prosecution? Wayte v. United States, 470 U. S. 598, 609 (1985)

cites Arlington Heights, supra. That case states the answer.

“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.

Yick Wo v. Hopkins, 118 U.S. 356 (1886): [citations];

Gomillion v. Lightfoot, 364 U. S. 339 (1960). The eviden-

tiary inquiry is then relatively easy. But such cases are rare.

Absent a pattern as stark as that in Gomillion or Yick Wo

impact alone is noi determinative, and the Court must look

to other evidence.” 429 U.S., at 266 (emphasis added:

footnotes omitted).

granted. 118 U. S., at 359. Gomillion did not simply show that

the Tuskegee gerrymander excluded ali but four or five of the

Fee ne Voners: he also showed it included all the white voters.

U. S., at 341.

Defendant's showing clearly does not come anywhere close

to these. However, the showing is not offered as a proven case

but rather as the basis for discovery. If a disparity as stark as

Yick Wo or Gomillion is required for proof of discriminatory

intent, how stark of a disparity will suffice for a “substantial

tin howine”?

For the preliminary showing to serve its function, defendants

must be required to show different treatment of similarly situated

groups and to substantially (not conclusively) negate the principal

valid reasons why the groups might be treated differently '

First, the allegedly disadvantaged sample group must be

selected, ¢.g., because records of this group were available and

a comparison pool was available. It would also be helpful to

and any preliminary results from them. This would help negate

suspicion that the pool was chosen because it coincidentally

22

yielded the numbers most favorable to the argument. Cf.

Armstrong, supra, 48 F. 3d, at 1530, n. 13 (dissenting opinion).

Second, a comparison pool is essential. Reliance on general

population statistics and an unsupported presumption of homoge-

neity would be fundamentally unfair to the people. See ante, at

19.

Third, the two pools must be shown to be comparable on the

major legitimate reasons for the charging decision, including

government knowledge of the offense, strength of the case,”

quantity in drug cases, prior criminal history, firearm use or

other violence, and level of organization.

Making a substantial showing of discriminatory prosecution

through statistics alone is a daunting task, to be sure. Yet the

complexity of the prosecution decision, see Wayte, supra, 470

U. S., at 607, renders any lesser showing void of probative

value. For example, in McCleskey v. Zant, 580 F. Supp. 338

(ND Ga. 1984), the model that supposedly showed “a statistical-

ly significant race of the victim effect at work on the prose-

cutor’s decision-making” was, in reality, “totally invalid for it

contain{ed] no variable for strength of the evidence... .” /d.,

at 367 (emphasis added). Another study in the case did contain

data on strength of the evidence. /d., at 355. That study

showed “no statistically significant race of the victim effect . . .

in the prosecutor’s decision... .” /d., at 367."° Statistical

studies with major variables missing simply show nothing.

The very few defendants who have actually made a prelimi-

nary showing of discriminatory prosecution have typically done

so ‘vith direct evidence from employees or former employees of

9. This is generally not a problem in drug possession cases unless there is

a Fourth Amendment issuc.

10. On appeal, the Eleventh Circuit and this Court chose to decide the case

on the facts alleged, rather than the facts found by the trier of fact.

McCleskey v. Kemp, 481 U.S. 279, 289, 291, mn. 7 (1987). That

departure from normal appellate procedure has led to the widespread but

mistaken belief that Baldus had proved his statistical case. See Callins

v. Collins, 127 L. Ed. 24 435, 445, 114 S. Ct. 1127, 1135 (1994)

(Blackmun, J_, dissenting) (describing Baldus study as “highly reliable”

and “staggering evidence”)

23

the government. See United States vy. Adams, 870 F. 24 1140,

1144 (CA6 1989); United States v. P. H. E., Inc., 965 F. 24

848, 851 (CA10 1992). As a practical matter, defendants

seeking to make discriminatory prosecution claims would

generally be wise to invest in some old-fashioned detective work,

rather than relying solely on statistics. Making even a prelimi-

nary case on numbers alone is difficult enough that some

Statements from present or former insiders will usually be

necessary.

The need for evidence beyond numbers presents a significant

hurdle, but not an impossible one. Tolerance for intolerance is

vastly lower in America today than it was in the days of Yick Wo

or Gomillion. Diversity within prosecuting offices is far greater.

If a racist conspiracy were truly being perpetrated over an

extended period by a U. S. Attorney's Office, it is probable that

some employee or former employee would eventually be willing

to come forward and expose it. See ante, at 17. If such

showings are rare, it is probably because such conspiracies are

rare.

We do not pretend that such evidence will always be

available. A threshold showing requirement raises the risk that

some discriminatory conspiracies might remain covered up. Any

system of criminal justice necessarily tolerates some risk. For

example, the standard of proof beyond a reasonable doubt, rather

than proof beyond any doubt, creates some risk of conviction of

an innocent person. The conviction of one guilty person while

other guilty persons go free, even if discriminatory, is a matter

of far lesser magnitude. We cannot afford to pursue thousands

of phantoms to catch one real violation. A substantial showing

requirement will limit litigation of this issue to cases where there

is a Significant possibility of a real violation.

The showing in the present case is far from “substantial,”

having no comparison group for statistics and no direct evidence

of discriminatory intent. Discovery should not have been

11. If there is something less than racist conspiracy, such as a race-neutral

policy with an unintended disparate impact, that does not constitute a

defense to prosecution. See Wayte, supra, 470 U. S., at 610.

24

CONCLUSION

The judgment of the Court of Appeals for the Ninth Circuit

should be reversed.

December, 1995

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation