PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

No. 96-4009

ANTHONY L. OLVIS, a/k/a Tony;

ANGELA D. PALMER,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Raymond A. Jackson, District Judge.

(CR-95-38-NN)

Argued: June 6, 1996

Decided: October 11, 1996

Before ERVIN, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote

the opinion, in which Judge Ervin and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: William Graham Otis, Senior Litigation Counsel, Alexandria, Virginia, for Appellant. James Stephen Ellenson, Newport

News, Virginia, for Appellee Olvis; Sterling Harrisbe Weaver, Sr.,

Portsmouth, Virginia, for Appellee Palmer. ON BRIEF: Helen F.

Fahey, United States Attorney, Justin W. Williams, Assistant United

States Attorney/Chief, Criminal Division, Michael R. Smythers,
Executive Assistant United States Attorney, Alexandria, Virginia, for

Appellant.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

After uncovering a large and violent crack cocaine conspiracy in

the Williamsburg, Virginia area, the United States indicted 25 persons

in three separate indictments. All 25 are black, and of the approximately 55 unindicted persons who were also involved in the conspiracy, 50 are black and 5 are white.

Two of the blacks who were indicted, Anthony L. Olvis and

Angela D. Palmer, moved to dismiss their indictment, claiming that

they had been selected for prosecution because of their race in violation of the equal protection component of the Fifth Amendment's Due

Process Clause. On Olvis' and Palmer's argument that five unindicted

white persons were similarly situated to them and their demonstration

that more than 90% of those indicted in the Norfolk-Newport News

area since 1992 for crack cocaine trafficking are black, the district

court ordered discovery into the government's criteria for prosecution. When the government refused, arguing that such discovery was

unwarranted, the district court dismissed the indictment against Olvis

and Palmer.

Because the defendants did not satisfy the "rigorous" standard

recently articulated by the Supreme Court to obtain discovery for

selective-prosecution claims, we conclude that the district court erred

in ordering discovery. Accordingly, we reverse the court's dismissal

order and remand with instructions to reinstate the indictment and for

further proceedings.

I

In 1992, drug enforcement officers began investigating Anthony

Olvis and other individuals involved in distributing crack cocaine and

marijuana in Williamsburg, portions of James City and York Coun-

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ties, and an area of Newport News, Virginia. Investigators believed

that Olvis had managed to become "untouchable," insulating himself

from prosecution by employing a network of street dealers whom he

replaced as they were arrested. Moreover, according to law enforcement authorities, Olvis' activities had grown increasingly violent,

with shootings becoming "mixed in with the street level activity."

Indeed, at the time of the indictment in this case, police believed that

Olvis' drug conspiracy was linked to several unsolved murders. The

government accordingly claims that it had a keen interest in prosecuting Olvis and his colleagues.

Of more than 80 persons allegedly involved in the drug trafficking

activities, the government prosecuted 25 through 3 indictments.*

Olvis and Angela Palmer, who assisted Olvis in laundering his drug

proceeds by taking title to vehicles in her name, were indicted in

August 1995 for conspiracy to distribute crack cocaine and money

laundering. Olvis was also indicted for possession with intent to distribute crack cocaine and use of a firearm in relation to drug trafficking. Palmer was indicted additionally for perjury and obstruction of

justice.

In support of their motion to dismiss on selective-prosecution

grounds, Olvis and Palmer noted that all 25 defendants that the government indicted are black. While recognizing that"a number of people that have been granted immunity are also black," the defendants

argued that grand jury testimony revealed that "at least three whites

have been granted immunity who are at least or more culpable than

the black defendants, and at least two other whites have not been

charged."

In opposition to the dismissal motion, the government insisted that

the unindicted white individuals, "like the many unindicted black persons Olvis neglect[ed] to list," were not similarly situated to Olvis or

Palmer. The government's chief prosecutors submitted two affidavits,

stating that the government's decisions about whom to indict were

_________________________________________________________________

*In addition to this case, indictments were obtained in United States

v. Terry D. Jones, et al., Criminal Action No. 95-37 (E.D. Va.), and

United States v. Marty L. Wright, et al., Criminal Action Nos. 95-39 and

95-44 (E.D. Va.).

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based "solely on the evidence or other race-neutral criteria such as a

prior disposition in state court, more limited participation in the conspiracy, or the government's need for a particular individual's cooperation."

At the hearing on the motion, counsel for Olvis and Palmer recited

statistical evidence that more than 90% of those who had been tried

since 1992 for crack cocaine offenses in the district court's Norfolk

and Newport News divisions are black. They claimed that the defendant's race was known in 285 of the 312 crack cocaine cases tried

since 1992, and that 260 of those 285 cases involved black defendants.

The government presented testimony from Kevin Comstock, an

Assistant United States Attorney, and Lieutenant Delmas Linhart, an

officer in the James City County Police Department and special deputy with the FBI. In his testimony Comstock indicated that the percentage of blacks indicted for crack cocaine offenses was high

because blacks primarily were involved in the distribution of crack

cocaine in the Norfolk-Newport News area. He explained,

I don't choose individuals to violate the law. They choose

to violate the law themselves. And when they violate the

law, if we can prove it, we prosecute[ ] them, regardless of

their race, regardless of their sex, regardless of where they

were born, or in what family they were raised in.

Lt. Linhart testified similarly that race played no part in the government's selection of whom to prosecute. He noted that the Colonial

Narcotics Enforcement Task Force, of which he was a member, pursued the Olvis organization because Olvis had managed to insulate

himself from the police and his organization was becoming increasingly violent. And Lt. Linhart added that Angela Palmer had been

offered the opportunity to become a cooperating witness, but that, in

the investigators' judgment, she had lied before the grand jury and

had otherwise failed to cooperate.

Lt. Linhart also explained why each white conspirator cited in the

defendants' motion had not been indicted. Mary Deroja, who was

romantically involved with an alleged gang member and drove his car

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for him, had approached the authorities and agreed to assist in their

investigation by working undercover. Denny Petrie had not yet been

prosecuted because the government, after executing a search warrant

on his home, still lacked sufficient evidence to indict him. Lonnie

Beverly and his black partner, Eddie Phillips, had been approached

about becoming witnesses at a time when the authorities knew little

about them; only subsequently did enforcement officers learn that

Beverly was the driver and Phillips the gunman in a drive-by shooting

of an unoccupied car, information that might have disqualified them

from receiving immunity. Lt. Linhart testified, moreover, that Beverly

has since proven truthful and cooperative. As for the remaining two

unindicted white persons, Linhart testified that the government had

never heard of "Floyd," a white male referred to once in an ambiguous manner by a witness before the grand jury, nor did it have any

evidence that Jeffrey Branscome was a seller, rather than merely a

user, of drugs.

The district court concluded that the defendants had made a "nonfrivolous showing in raising a claim of selective prosecution," and

ordered the government to respond to defendants' formal requests for

discovery into its criteria for selecting whom to prosecute. The court

found that Olvis, Palmer, and the unindicted white conspirators were

"similarly situated" for a selective-prosecution claim and that the

defendants' statistical data made a "nonfrivolous showing of discriminatory intent."

The government moved for reconsideration of the district court's

order, submitting an additional affidavit from Lt. Linhart which

detailed the shootings and murders associated with the "largest drug

ring in Hampton Roads' history." Lt. Linhart's affidavit pointed out

that all but one of the shootings' victims were black and that there

were more than ten unindicted black conspirators for every unindicted

white conspirator. The affidavit added that after the indictments had

been publicly announced, Lt. Linhart received several phone calls

from black citizens in the predominantly black neighborhoods in

which the gangs operated, expressing their appreciation for the

arrests.

The district court denied the government's motion for reconsideration. And when the government refused to comply with its discovery

order, the court dismissed the indictment against Olvis and Palmer.

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This appeal followed.

II

When acting on probable cause that a crime has been committed,

a government prosecutor generally enjoys unfettered discretion in the

decision whether to prosecute. See Bordenkircher v. Hayes, 434 U.S.

357, 364 (1978). Because law enforcement is "a core executive constitutional function," United States v. Armstrong, 116 S. Ct. 1480,

1486 (1996), judicial intrusion into prosecutorial decisions is justified

only when the Constitution requires it, see United States v.

Batchelder, 442 U.S. 114, 125 (1979).

The equal protection component of the Fifth Amendment's Due

Process Clause forbids the government from deciding to prosecute

based on a defendant's race. See Armstrong, 116 S. Ct. at 1486; see

also Oyler v. Boles, 368 U.S. 448, 456 (1962). Because of the great

danger of unnecessarily impairing the performance of a core executive constitutional function and the "presumption of regularity" that

supports prosecutorial decisions, a defendant must support a

selective-prosecution claim with "clear evidence." Armstrong, 116 S.

Ct. at 1486 (quoting United States v. Chemical Found., Inc., 272 U.S.

1, 14-15 (1926)). The standard is intended to be a"demanding" and

"rigorous" one. Id. at 1486, 1488.

To establish a selective-prosecution claim, a defendant must demonstrate that the prosecution "had a discriminatory effect and that it

was motivated by a discriminatory purpose." Wayte v. United States,

470 U.S. 598, 608 (1985). This requires the defendant to establish

both (1) that "similarly situated individuals of a different race were

not prosecuted," Armstrong, 116 S. Ct. at 1487, and (2) that the decision to prosecute was "invidious or in bad faith," United States v.

Greenwood, 796 F.2d 49, 52 (4th Cir. 1986) (quoting United States

v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)).

Similarly, to obtain discovery in support of a selective-prosecution

claim, a defendant must produce "some evidence" making a "credible

showing" of both discriminatory effect and discriminatory intent.

Armstrong, 116 S. Ct. at 1488-89. Just as the standard for ultimately

proving a selective prosecution claim is a rigorous one, so too is the

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evidentiary threshold for obtaining discovery from the government to

support such a claim. Id. at 1488. A significant barrier to discovery

is necessary because discovery "imposes many of the costs present

when the Government must respond to a prima facie case of selective

prosecution"; it diverts governmental resources and discloses prosecutorial strategies. Id. Thus, the Supreme Court recently admonished in

Armstrong, "the showing necessary to obtain discovery should itself

be a significant barrier to the litigation of insubstantial claims." Id. at

1486.

While we ordinarily defer to a district court's decision to order discovery, the Supreme Court emphasized in Armstrong that for a selective prosecution claim, the justifications for a rigorous standard of

proof to establish a claim require "a correspondingly rigorous standard for discovery in aid of such a claim." 116 S. Ct. at 1488. Thus,

when we review a district court's discovery order in support of a

selective-prosecution claim, we are determining the legal adequacy of

the evidence. We review the legal adequacy of evidence de novo. Cf.

Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996) (legal adequacy of evidence to establish probable cause is reviewed de novo);

Towler v. Sayles, 76 F.3d 579, 581 (4th Cir. 1996) (legal adequacy of

evidence on appeal from judgment as a matter of law is reviewed de

novo).

III

The district court in this case concluded that Olvis and Palmer had

satisfied the discriminatory effect prong of their selective-prosecution

claim because the unindicted white conspirators were similarly situated to them. Focusing only on the evidence of the conspirators' criminal activity, the court found all to have "similar involvement" in the

conspiracy and dismissed the government's proffered distinctions

among the conspirators as "unpersuasive." Thus, the court reasoned

that the government's inconsistency in granting some members of the

conspiracy immunity and prosecuting others "call[ed] into question

the legitimacy of the entire prosecution."

Generally, in determining whether persons are similarly situated

for equal protection purposes, a court must examine all relevant factors. See Ah Sin v. Wittman, 198 U.S. 500, 507-08 (1905); see also

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Attorney General of the United States v. Irish People, Inc., 684 F.2d

928, 946 (D.C. Cir. 1982) ("Discrimination cannot exist in a vacuum;

it can be found only in the unequal treatment of people in similar circumstances"), cert. denied, 459 U.S. 1172 (1983). And this principle

applies to the analysis of allegedly discriminatory criminal prosecutions:

The goal of identifying a similarly situated class of law

breakers is to isolate the factor allegedly subject to impermissible discrimination. . . . If all other things are equal, the

prosecution of only those persons [to whom the factor

applies] . . . gives rise to an inference of discrimination. But

where the comparison group has less in common with

defendant, then [other] factors . . . may very well play a part

in the prosecution.

United States v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989).

By considering only the conspirators' relative culpability, the district court in this case failed to take into account several factors that

play important and legitimate roles in prosecutorial decisions. See

Oyler, 368 U.S. at 456 (prosecutorial exercise of selectivity in

enforcement without more does not violate Constitution). A prosecutor may, for example, legitimately offer immunity to a potential

defendant who is equally "involved" as others simply because that

defendant may choose to cooperate and expose yet more criminal

activity. Prosecutorial decisions may also be legitimately influenced

by such factors as the strength of the evidence against a particular

defendant, the defendant's role in the crime, whether the defendant is

being prosecuted by state authorities, the defendant's candor and willingness to plead guilty, the amount of resources required to convict

a defendant, the extent of prosecutorial resources, the potential impact

of a prosecution on related investigations and prosecutions, and prosecutorial priorities for addressing specific types of illegal conduct.

Making decisions based on the myriad of potentially relevant factors and their permutations require the very professional judgment

that is conferred upon and expected from prosecutors in discharging

their responsibilities. See McCleskey v. Kemp , 481 U.S. 279, 297

(1987). In rejecting the district court's narrow approach to relevant

 8
factors to be considered when deciding whether persons are similarly

situated for prosecutorial decisions, we hold that defendants are similarly situated when their circumstances present no distinguishable

legitimate prosecutorial factors that might justify making different

prosecutorial decisions with respect to them.

Applying our fact-focused test to the circumstances of this case, we

conclude that the defendants did not establish the first element of their

selective-prosecution claim. We begin with the observation that Olvis

is alleged to be the head of an organization that has distributed

cocaine continuously for over four years and has become increasingly

violent. While Palmer does not project the same prosecutorial profile,

she is being prosecuted because investigators in this case believe that

she committed perjury before the grand jury and she has otherwise

refused to cooperate with law enforcement authorities.

Compared to Olvis and Palmer, the white conspirators projected

significantly different prosecutorial profiles. Mary Deroja came forward and offered to go undercover to assist the investigation, and in

doing so she offered to put herself at significant risk. Although Denny

Petrie was a government target, a search of his residence failed to produce sufficient evidence to prosecute him. Lonnie Beverly, who is

white, along with Eddie Phillips, his black partner, agreed to become

witnesses before the government uncovered the extent of their illegal

activities. Nevertheless, Beverly continues to be truthful and helpful

to the prosecution. And the government has no information about a

white person named Floyd, whose last name is unknown, nor evidence that Jeffrey Branscome was a drug dealer. Moreover, in addition to presenting these particularized factors that distinguish the

defendants' circumstances from those of the unindicted conspirators,

the government notes that there were approximately 50 black conspirators whom prosecutors chose not to indict. We find no merit, based

on all of these legitimate considerations, to the contention that Olvis

and Palmer were situated similarly to the unindicted white conspirators for making prosecutorial decisions.

As further evidence of their argument that the government's prosecutorial decisions had a discriminatory effect, Olvis and Palmer

presented an informal statistical study conducted by their attorneys.

The study showed that in the Norfolk-Newport News area, of all the

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federal crack cocaine trafficking prosecutions in federal court since

1992 in which the defendant's race was apparent, over 90% involved

black defendants.

While the district court viewed the defendants' informal study as

probative of only the discriminatory intent prong of a selectiveprosecution claim, the Supreme Court in Armstrong considered a similar study under the discriminatory effect prong. See 116 S. Ct. at

1488-89. Regardless of the purpose for which the defendant's study

is offered, however, we do not believe that it advances the defendants' selective-prosecution claim.

Olvis' and Palmer's study provides no statistical evidence on the

number of blacks who were actually committing crack cocaine

offenses or whether a greater percentage of whites could have been

prosecuted for such crimes. The study suffers from the same fatal

defect that the Court recognized in Armstrong , where the proffered

study had failed "to identify individuals who were not black, could

have been prosecuted for the offenses for which respondents were

charged, but were not so prosecuted." 116 S. Ct. at 1489. Without an

appropriate basis for comparison, raw data about the percentage of

black crack cocaine defendants proves nothing. Such statistics could

have relevance only if it could be presumed that crack cocaine violations were committed proportionately by all races -- a presumption

the Supreme Court rejected in Armstrong as"at war" with unchallenged statistics. Id.

Just as the Supreme Court held in Armstrong, when faced with a

similar study, we conclude that the defendants' statistical study

offered in this case "did not constitute `some evidence tending to

show the existence of the essential elements of' a selectiveprosecution claim," 116 S. Ct. at 1489 (quoting Berrios, 501 F.2d at

1211).

IV

The district court summarily concluded in this case that Olvis and

Palmer satisfied the second prong of the selective-prosecution claim

-- that the government acted with discriminatory intent -- relying

solely upon the statistical evidence they presented. The court

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explained that "[i]nadequately explained evidence of statistical disparity, as presented in this case, is a nonfrivolous showing of discriminatory intent" and found "instructive," but"advisory," a similar type of

analysis conducted by the Ninth Circuit in United States v.

Armstrong, 48 F.3d 1508 (9th Cir. 1995). Unfortunately, when the

district court decided this case, it did not have the benefit of the

Supreme Court's recent decision rejecting the Ninth Circuit's analysis

in Armstrong. 116 S. Ct. at 1488. In reversing the court of appeals'

discovery order, the Supreme Court specifically held that absent an

appropriate basis for comparison, statistical evidence alone cannot

establish any element of a discrimination claim. Id. at 1488-89. Even

if the study had a basis for comparison that showed discriminatory

effect, it would not necessarily prove discriminatory intent. This is

consistent with the general rule that in cases involving discretionary

judgments "essential to the criminal justice process," statistical evidence of racial disparity is insufficient to infer that prosecutors in a

particular case acted with a discriminatory purpose. See McCleskey,

481 U.S. at 297 (holding that statistical evidence that race played a

role in other death penalty cases was insufficient to create inference

that prosecutors sought death penalty against particular defendant

because of his race).

In considering the defendants' informal study, the district court

also erred in apparently imposing a duty on the government to "explain [the] evidence of statistical disparity" that Olvis and Palmer had

presented. The court noted that the defendants' informal study, if left

unexplained, demonstrated discriminatory intent. By creating a presumption that unexplained statistical evidence of racial disparity

proves racial animus, the court imposed on the government the burden of disproving such animus. As already noted, however, the defendants bear the burden of establishing all elements of their selectiveprosecution claim and, to obtain discovery on such a claim, the burden of making a credible showing of "some evidence" on each element. By ruling that defendants can meet these demanding burdens

by presenting a study of the type they presented in this case and

thereby shifting to the government the onus of dispelling a presumption of discrimination would open virtually every prosecution to a

claim for selective prosecution.

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V

On the record presented to the district court, we conclude that Olvis

and Palmer have failed to carry their burden of producing some evidence to make a credible showing of both discriminatory effect and

discriminatory intent. Accordingly, the district court erred in ordering

the United States to provide discovery on its criteria for selecting

whom to prosecute. We reverse the district court's dismissal order

and remand this case with instructions to reinstate the indictment and

for further proceedings.

REVERSED AND REMANDED

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