United States v. Armstrong, 517 U.S. 456 (1996)

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certiorari to the united states court of appeals for the ninth circuit

No. 95-157. Argued February 26, 1996—Decided May 13, 1996

In response to their indictment on "crack" cocaine and other federal charges, respondents filed a motion for discovery or for dismissal, alleging that they were selected for prosecution because they are black. The District Court granted the motion over the Government's argument, among others, that there was no evidence or allegation that it had failed to prosecute nonblack defendants. When the Government indicated it would not comply with the discovery order, the court dismissed the case. The en banc Ninth Circuit affirmed, holding that the proof requirements for a selective-prosecution claim do not compel a defendant to demonstrate that the Government has failed to prosecute others who are similarly situated.

Held: For a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races. Pp. 461-471. (a) Contrary to respondents' contention, Federal Rule of Criminal Procedure 16, which governs discovery in criminal cases, does not support the result reached by the Ninth Circuit in this case. Rule 16(a)(1)(C)—which, inter alia, requires the Government to permit discovery of documents that are "material to the preparation of the . . . defense" or "intended for use by the government as evidence in chief"— applies only to the preparation of the "defense" against the Government's case in chief, not to the preparation of selective-prosecution claims. This reading creates a perceptible symmetry between the types of documents referred to in the Rule. Moreover, its correctness is established beyond peradventure by Rule 16(a)(2), which, as relevant here, exempts from discovery the work product of Government attorneys and agents made in connection with the case's investigation. Respondents' construction of "defense" as including selective-prosecution claims is implausible: It creates the anomaly of a defendant's being able to examine all Government work product under Rule 16(a)(1)(C), except that which is most pertinent, the work product in connection with his own case, under Rule 16(a)(2). Pp. 461-463. (b) Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based

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