United States District Court, W.D. Washington, Seattle
ORDER ON DEFENDANTS' MOTIONS TO DISMISS COUNT 2
DUE TO SELECTIVE PROSECUTION
Honorable Richard A. Jones United States District Judge.
Richard A. Jones THIS MATTER has come before the Court upon
Defendant Bradford Johnson and Defendant Eric Woodberry's
Motions to Dismiss Count 2 Due to Selective Prosecution (Dkt.
##71 and 73). Having considered the motions, the
government's response (Dkt. #95), and the files and
pleadings herein, the Court DENIES the
seek dismissal of Count 2 of the Indictment alleging
“selective prosecution.” Both also seek discovery
to support their argument.
begin with the faulty conclusion that they have made a
threshold showing of discrimination, thereby entitling them
to discovery and/or relief from prosecution. At best, what
the defendants have established is that they are members of a
distinct racial minority group, African-America, and that
both are the subject of a Federal Indictment. The defendants
have also shown that the victim of the robbery, who is the
subject of the current charges, is a marijuana dispensary
that has not been charged or prosecuted in any manner by
Court agrees with the succinct conclusion of the government
as stated in its response pleading:
“This argument has no merit. The defendants have failed
to evince a shred of evidence that the government acted with
a discriminatory purpose. Further, they have provided no
evidence that similarly situated individuals were treated
differently on the basis of a protected status (here,
race).” (Dkt. #95, p. 4).
government's argument accurately sets forth the legal
standards this Court must consider in addressing selective
prosecution claims. Specifically, that the defendants must
show clear evidence of an equal protection violation by
showing that a federal prosecutorial policy “had a
discriminatory effect and that is was motivated by a
discriminatory purpose.” Wayte v. United
States, 470 U.S. 598, 608 (1985).
engaging in this analysis, this Court recognizes that so long
as there is probable cause to believe that the defendant
committed a crime against the United States, the decision of
whether to prosecute rests almost entirely within the
government's discretion. This discretion, however, must
be exercised in conformity with the Due Process clause of the
Fifth Amendment and Equal Protection clause of the 14th
Amendment, both of which prohibit the government from making
prosecutorial decisions based upon race.
noted in United States v. Armstrong, 517 U.S. 456
(1996), a “presumption of regularity” supports
prosecutorial decisions, which will not be upset absent clear
evidence to the contrary.
defendants to advance their claim of selective prosecution
they have the burden to show by way of clear evidence that a
federal prosecutorial policy “had a discriminatory
effect and that it was motivated by a discriminatory
purpose.” Id. Wayte, 470 U.S. at 608. This
burden includes the need for the defendants to demonstrate
discriminatory effect by showing that similarly situated
suspects were not prosecuted. The defendants have failed to
meet this burden.
Court reaches this conclusion because the defendants'
first step in meeting their burden is to establish that the
government acted with discriminatory intent. There is no
evidence advanced by the defendants that the government was
motivated to prosecute based on their race.
record is equally devoid of any evidence to demonstrate
discriminatory effect from the government's decision to
prosecute the defendants.
plain and simple fact is that the defendants and the
marijuana store operators are totally dissimilar in operation
and means. True, the marijuana store is selling drugs in
violation of federal law, but that is where the similarity
stops. The marijuana stores operate in compliance with a
Washington State sanctioned law and must conform to state
rules and regulations that permit the sale of marijuana. The
operation of the dispensary under the protection of the
Washington law hardly rises to being a true comparator to the
conduct or circumstances of the defendants, who are charged
with acts of violence and drug sales not sanctioned under any
state or federal law. Hence, these circumstances do not
support a selective prosecution claim.
were a circumstance where the marijuana store had been
operated by two African-Americans and they were singled out
for prosecution where white counterparts were not, a far
better comparator or similarly situated argument could be
made. But that is not the case and defendants completely fail