US v. James

• Decision Date: 16 July 2001
• Docket Number: 00-3344,00-3363,Nos. 00-3292,s. 00-3292
• Citation: 257 F.3d 1173
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THOMAS CONNE JAMES, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL EDWARD DAVIS, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SAMUEL JUAN GREEN, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1173

257 F.3d 1173 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THOMAS CONNE JAMES, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL EDWARD DAVIS, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SAMUEL JUAN GREEN, Defendant-Appellant.

Nos. 00-3292, 00-3344, 00-3363

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 16, 2001

Appeal from the United States District Court for the District of Kansas (D.C. Nos. 00-CR-40007-DES, 99-40091-DES, and 00-CR-40018-RDR) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Melody Evans, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with her on the briefs), Topeka, Kansas, for the appellants.

James E. Flory, Assistant United States Attorney (Jackie N. Williams, United States Attorney, and Nancy Landis Caplinger, Assistant United States Attorney, with him on the brief), Topeka, Kansas, for the appellee.

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE, Circuit Judge.

BRISCOE, Circuit Judge.

Defendants Thomas Conne James, Paul Edward Davis and Samuel Juan Green were separately convicted of possession with intent to distribute and/or distribution of cocaine base (crack) in violation of 21 U.S.C. 841(a)(1). In these companion cases, they appeal the district court's denial of their motions for discovery on the issue of whether they were targeted for arrest and federal prosecution because of their race. Davis, the only defendant to go to trial, also argues that Section 841 is facially unconstitutional, that the jury should have been given a lesser included offense instruction, and that he should have received a sentence reduction based on acceptance of responsibility. We have jurisdiction under 28 U.S.C. 1291 and affirm as to each defendant.

I.

In 1999, the Topeka, Kansas Police Department (TPD) and the Department of Housing and Urban Development (HUD) took part in a joint drug investigation known as the "Washburn Operation." The investigators installed audio and video equipment in a house across from Washburn University and recorded numerous drug transactions between an informant and local drug dealers. The investigation resulted in the arrests of twenty-seven people, including James, Davis and Green. Together with the recent "Pine Ridge" and "Polk Plaza" Operations, this was the third investigation in which TPD and HUD joined forces to target drug dealers in Topeka's public housing projects and public assisted housing.

A federal grand jury separately indicted James, Davis and Green on crack cocaine charges, and the same Assistant Federal Public Defender was appointed to represent all three defendants. She subsequently filed a motion on behalf of each defendant seeking discovery on the issue of whether they were arrested and federally prosecuted because they were black. The motions alleged that TPD and HUD investigators targeted black crack cocaine dealers but ignored white crack cocaine and methamphetamine dealers. The motions also alleged that the United States Attorney's Office for the District of Kansas consistently prosecuted black crack cocaine defendants but referred white crack cocaine and methamphetamine defendants for prosecution in state court, where sentences tended to be lower.

The government opposed the discovery motions, and the district court held a separate evidentiary hearing for each defendant. Davis and James offered essentially the same witnesses and exhibits at their evidentiary hearings. The court denied Davis' motion by published order, United States v. Davis, 194 F.R.D. 688 (D. Kan. 2000) (Davis I), and then denied James' motion for the reasons set forth in that order, ROA Vol. 1, Doc. 36 (No. 00-3292). Another judge conducted Green's hearing, at which Green introduced the complete record from James' hearing and additional exhibits. The court adopted the Davis I opinion by reference and similarly denied Green's motion in a published order, United States v. Green, 108 F. Supp.2d 1169 (D. Kan. 2000).

After the district court denied their discovery motions, James pled guilty to one count of distribution of crack cocaine and Green pled guilty to two counts of possession with intent to distribute crack cocaine, both in violation of 21 U.S.C. 841(a)(1). Davis, however, pled not guilty to three counts of distribution of crack cocaine within 1,000 feet of a university and two counts of possession with intent to distribute crack cocaine within 1,000 feet of a university, all in violation of 21 U.S.C. 841(a)(1) and 860. Davis later admitted at trial that he possessed and distributed crack cocaine but argued the government entrapped him on the school zone element. At the end of the trial, the district court instructed the jury on the elements of the offenses under Section 860, but refused to give a lesser included instruction under Section 841, which would not include the school zone element. The jury returned a guilty verdict on all five counts. In calculating Davis' sentence, the district court denied his request for an acceptance of responsibility reduction. United States v. Davis, No. 99-40091-DES, 2000 WL 1665261, at *4 (D. Kan. Oct. 16, 2000) (Davis II).

II.

Each defendant contends the district court erred in denying his selective prosecution discovery motion. The parties agree that the threshold standard for obtaining such discovery is set forth in United States v. Armstrong, 517 U.S. 456 (1996), but they disagree as to the standard of review we should apply on appeal.

This court has not adopted a standard for reviewing a selective prosecution discovery order. The defendants argue the district court's decision should not be given any deference on appeal, and they urge us to follow the Fourth Circuit and adopt the de novo standard. See United States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996). The government, on the other hand, advocates the abuse of discretion standard. As support, it invokes United States v. Gonzalez-Acosta, 989 F.2d 384, 388 (10th Cir. 1993), for the broad proposition that we review criminal discovery rulings for an abuse of discretion. It also notes we applied this standard to review a selective prosecution discovery order in an unpublished opinion, United States v. McMillan, Nos. 96-1054 & 96-1076, 1997 WL 413252, at *2 (10th Cir. July 23, 1997).¹

We agree with the defendants that a district court's decision to grant or deny a selective prosecution discovery motion is not entitled to any deference on appeal. As the Fourth Circuit has observed, although an appellate court will normally defer to a district court's criminal discovery ruling,

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." 517 U.S. at [468]. 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.

Olvis, 97 F.3d at 743. We find this reasoning persuasive. Although other circuits have continued to review selective prosecution discovery orders for an abuse of discretion even after Armstrong was decided, see, e.g., United States v. Jones, 159 F.3d 969, 977 (6th Cir. 1998); United States v. Quinn, 123 F.3d 1415, 1425 (11th Cir. 1997); United States v. Candia-Veleta, 104 F.3d 243, 246 (9th Cir. 1996), we decline to follow those circuits because their decisions lack any analysis of Armstrong with respect to the standard of review and instead simply cite pre-Armstrong case law (or other post-Armstrong cases citing pre-Armstrong case law) in which the abuse of discretion standard was applied. Similarly, we decline to follow our prior application of the abuse of discretion standard in McMillan because that non-binding opinion relied solely on United States v. Furman, 31 F.3d 1034, 1037 (10th Cir. 1994), a pre-Armstrong case in which the defendant sought dismissal rather than discovery based on selective prosecution. We therefore review the district court's denial of the defendants' selective prosecution discovery motions de novo.

A defendant who claims he was targeted for prosecution because of race is entitled to discovery on that claim only if he presents "some evidence tending to show the existence of the essential elements of the [selective prosecution] defense, discriminatory effect and discriminatory intent." Armstrong, 517 U.S. at 468 (internal quotations omitted) (emphasis added). With the exception of James, the defendants on appeal focus entirely on the investigative aspect of their prosecutions in attempting to show some evidence of discriminatory effect and discriminatory intent. Specifically, all three defendants assert that TPD and HUD investigators target only black crack cocaine dealers and ignore similarly-situated white crack cocaine dealers. James additionally claims the U.S. Attorney's Office treats black crack cocaine defendants differently than similarly-situated white methamphetamine defendants.

In light of Armstrong's seemingly less stringent "some evidence tending to show" standard, the defendants need not establish a prima facie case of selective prosecution to obtain discovery on these issues. Jones, 159 F.3d at 978; United States v. Bin Laden, 126 F. Supp. 2d 256, 262 & n.12 (S.D.N.Y. 2000); United States v. Tuitt, 68 F. Supp. 2d 4, 14-15 (D. Mass. 1999). Nevertheless, given the heavy burden that discovery can impose on the government, see Armstrong, 517 U.S. at 468, the showing necessary to obtain discovery for a selective prosecution defense must "itself be a significant barrier to the litigation of insubstantial claims," id. at 464. Keeping this admonition in mind, we conclude the district court properly denied the defendants' discovery motions because the...