48 F.3d 1508 (9th Cir. 1994), 93-50031, United States v. Armstrong

Docket Nº93-50031, 93-50057.
Citation48 F.3d 1508
Party NameUNITED STATES of America, Plaintiff-Appellant, v. Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant, and Robert Rozelle; Aaron Hampton; Freddie Mack; Shelton Auntwan Martin, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant-Appellee.
Case DateJanuary 21, 1994
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 1508

48 F.3d 1508 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellant,

v.

Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant,

and

Robert Rozelle; Aaron Hampton; Freddie Mack; Shelton

Auntwan Martin, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant,

v.

Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant-Appellee.

Nos. 93-50031, 93-50057.

United States Court of Appeals, Ninth Circuit

January 21, 1994

Argued and Submitted July 12, 1993.

Opinion Withdrawn April 20, 1994.

Filed April 20, 1994.

Argued and Submitted (en banc) Sept. 22, 1994.

Decided March 2, 1995.

Page 1509

Richard E. Drooyan, Miriam A. Krinsky, Daniel P. Collins, George S. Cardona, Lawrence H. Cho, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellant.

Page 1510

Timothy C. Lannen, Barbara E. O'Connor, Deputy Federal Public Defender, Joseph F. Walsh, Los Angeles, CA, for defendants-appellees.

Appeals from the United States District Court for the Central District of California.

Before: WALLACE, Chief Judge, BROWNING, SCHROEDER, FLETCHER, D.W. NELSON, CANBY, REINHARDT, LEAVY, RYMER, T.G. NELSON, and KLEINFELD, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge WALLACE; Dissent by Judge RYMER.

REINHARDT, Circuit Judge:

We review this case en banc to resolve a conflict in our circuit over the proper standard for determining whether an adequate showing has been made by a defendant seeking discovery in connection with a selective prosecution charge. The conflict arises from two cases filed within days of each other that adopted different approaches to this question. United States v. Redondo-Lemos, 955 F.2d 1296, 1302 (9th Cir.1992), held that the government could be ordered to provide discovery only upon a "prima facie showing that wrongful discrimination is probably taking place." By contrast, United States v. Bourgeois, 964 F.2d 935, 939 (9th Cir.1992), stated that a prima facie showing was not necessary. Instead, Bourgeois adopted a "colorable basis" test. Id. We conclude that the colorable basis standard better accommodates the competing concerns implicated by discovery in selective prosecution cases.

We have jurisdiction to hear the government's appeal only because the district judge ordered dismissal of the defendants' indictments. 18 U.S.C. Sec. 3731. Under 18 U.S.C. Sec. 3731, the government is not permitted to appeal the discovery ruling itself. The statute does, however, permit the government to appeal the dismissal of indictments. Here, the district judge imposed dismissal as a sanction for the government's failure to comply with her discovery order. That action resulted in an appealable order under Sec. 3731.

The government does not question the reasonableness of the particular sanction imposed. In fact, it was the government itself that suggested dismissal of the indictments to the district court so that an appeal might lie. On appeal, the government argues only that no sanction at all should have been ordered, contending that the district judge abused her discretion in requiring discovery. As a result, the appeal allows us to reach the merits of the underlying discovery issue.

The district judge stayed execution of the dismissal order pending the outcome of this appeal. It appears from the record that she issued the stay so that the defendants would not be released prior to our ruling on the validity of that order. Thus, while our opinion is devoted to a discussion of the discovery order, ultimately we rule on the validity of the order dismissing the indictments.

In sum, the appeal is properly before us only because the government knowingly accepted the consequence of opting for an immediate appeal rather than complying with the discovery order. That consequence is that, if we affirm, the dismissal of the indictments must now be implemented unless the order dismissing them is further stayed pending review by the Supreme Court. It is too late for the government to change its mind and comply with the discovery order. Were that not the rule, we would simply be permitting appeals of discovery orders under the guise of reviewing dismissal orders that were either only tentative or were never intended to take effect. In either case, we would not have jurisdiction over the appeals under Sec. 3731.

Because we hold that the defendants here satisfied the colorable basis requirement, we affirm the district court's dismissal of the indictments.

I.

In April of 1992, defendants Christopher Armstrong, Aaron Hampton, Freddie Mack, Shelton Martin, and Robert Rozelle were charged with federal offenses for their alleged involvement in the distribution of cocaine base, known colloquially as "crack" or "rock". The charges stemmed from an investigation

Page 1511

conducted under the direction of a joint state and federal task force comprised of detectives from the Inglewood Narcotics Division and agents from the Bureau of Alcohol, Tobacco, and Firearms.

All five defendants were charged with conspiracy to distribute cocaine base under 21 U.S.C. Sec. 846. Some of the defendants were also charged with selling cocaine base under 21 U.S.C. 841(a)(1) and using firearms in connection with drug trafficking in violation of 18 U.S.C. Sec. 924(c). The decision to charge the defendants with federal rather than California state offenses was significant. Federal law imposes a minimum sentence of 10 years and a maximum of life for those convicted of selling more than 50 grams of cocaine base. 21 U.S.C. Sec. 841(b). By contrast, under California law, the minimum sentence for that offense is three years and the maximum is five. Cal.Health & Safety Code Sec. 11351.5 (Deering 1993). All five defendants are black.

On July 20, 1992, defendant Martin filed a Motion for Discovery and/or Dismissal of Indictment for Selective Prosecution. He claimed that the decision to prosecute him on federal charges was based on his race. The other four defendants timely joined the motion which was heard on September 8, 1992.

To support the motion for discovery, the defendants offered into evidence a study of every case involving a charge under 21 U.S.C. Secs. 841 and 846 that the Federal Public Defender's Office for the Central District of California had closed in 1991. The study showed that in all 24 such cases the defendants had been black. At the hearing, counsel for the government responded to the judge's request for an explanation of these numbers by stating: "I would have no explanation for that. But certainly I can say that there is no racial motivation of any sort that I am aware of as to why we brought this case versus any others."

The district court granted the motion for discovery. Specifically, the district judge ordered the government to: (1) provide a list of all cases from the prior three years in which the government charged both cocaine base offenses and firearms offenses; (2) identify the race of the defendants in those cases; (3) identify whether state, federal, or joint law enforcement authorities investigated each case; and (4) explain the criteria used by the U.S. Attorney's Office for deciding whether to bring cocaine base cases to the federal court.

The government chose not to comply with the discovery order and instead filed a motion for reconsideration. In support of its motion, the government provided a list of all defendants charged with violations of 21 U.S.C. Secs. 841 and 846 over a three-year period (without any racial breakdown) as well as declarations by three law enforcement officers and two Assistant United States Attorneys. The declarations collectively provided four explanations for the study's implication that the overwhelming bulk of federal prosecutions for cocaine base offenses targeted black defendants.

First, the declarations asserted that socioeconomic factors led certain ethnic and racial groups to be particularly involved with the distribution of certain drugs and that blacks were particularly involved in the Los Angeles-area crack trade. Second, the declarations contended that during the three-year period, seven non-black defendants had been prosecuted on federal cocaine base charges, although it appears that all of them were members of racial or ethnic minority groups. (Later, the government identified four more non-black defendants who had been prosecuted during that three-year period, all of whom were also persons of color.) Third, the declarations asserted that many blacks had been tried in state court for cocaine base offenses. Fourth, the declarations contained a description of some of the general factors on which federal prosecutors based their charging decisions for crack-related offenses. The factors specifically referred to were the strength of the evidence, the deterrent value of bringing the charge, the federal interest in the prosecution, and the suspect's criminal history. The declarations also referred to other unidentified "race-neutral" criteria.

In response, the defendants bolstered the statistical study they had submitted at the initial hearing with additional declarations. First, one of the defendant's counsel stated

Page 1512

that she had spoken with a halfway house intake coordinator who told her that in his experience treating cocaine base addicts, whites and blacks dealt and used the drug in equal numbers. Second, another defense attorney asserted that his experience and conversations with judges, lawyers, and defendants led him to conclude that many non-blacks were prosecuted for cocaine base offenses in state court. Finally, the defendants submitted an article from the Los Angeles Times discussing the disparate federal sentences imposed for cocaine base and regular cocaine offenses.

District Judge Consuelo Marshall denied the motion for reconsideration. She stated her reasons for the denial at the hearing: "The statistical data provided by the...

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11 practice notes
  • Subconstitution al checks.
    • United States
    • Notre Dame Law Review Vol. 92 Nbr. 3, January 2017
    • January 1, 2017
    ...979 F.2d 98, 100 (7th Cir. 1992). (134) United States v. Armstrong, 517 U.S. 456 (1996), overruling United States v. Armstrong, 48 F.3d 1508, 1515 (9th Cir. 1995). (135) See, e.g., State v. Kruczek, No. Cl-97-2140, 1998 WL 170115, at *1 (Minn. Ct. App. Apr. 14, 1998) ("District courts shoul......
  • Selective prosecution and the federalization of criminal law: the need for meaningful judicial review of prosecutorial discretion.
    • United States
    • University of Pennsylvania Law Review Vol. 145 Nbr. 5, May 1997
    • May 1, 1997
    ...used by the U.S. Attorney's Office for deciding whether to bring cocaine base cases to the federal court. United States v. Armstrong, 48 F.3d 1508, 1511 (9th Cir. 1995). Judge Marshall's discovery order was reversed by a three-judge panel of the Ninth Circuit, see United States v. Armstrong......
  • Portioning punishment: constitutional limits on successive and excessive penalties.
    • United States
    • University of Pennsylvania Law Review Vol. 144 Nbr. 1, November 1995
    • November 1, 1995
    ...whether the trial court properly ordered discovery in a selective prosecution claim by an African American defendant), granting cert. to 48 F.3d 1508 (9th Cir. 1995) (en banc); cf. Wayte v. United States, 470 U.S. 598, 608 (1985) (stating that a decision to prosecute cannot be based deliber......
  • Recasting prosecutorial discretion.
    • United States
    • Journal of Criminal Law and Criminology Vol. 86 Nbr. 3, March 1996
    • March 22, 1996
    ...Charging Decision, 30 Ariz. L. Rev. 85 (1988). (192) See Wayte v. United States, 470 U.S. 598 (1985). See also United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995). (193) ABA Standards for Criminal Justice: Prosecution Function and Defense Function [sections] 3-3.4 (3d ed. 1993). (194) ......
  • Request a trial to view additional results
11 books & journal articles
  • Selective prosecution and the federalization of criminal law: the need for meaningful judicial review of prosecutorial discretion.
    • United States
    • University of Pennsylvania Law Review Vol. 145 Nbr. 5, May 1997
    • May 1, 1997
    ...used by the U.S. Attorney's Office for deciding whether to bring cocaine base cases to the federal court. United States v. Armstrong, 48 F.3d 1508, 1511 (9th Cir. 1995). Judge Marshall's discovery order was reversed by a three-judge panel of the Ninth Circuit, see United States v. Armstrong......
  • Portioning punishment: constitutional limits on successive and excessive penalties.
    • United States
    • University of Pennsylvania Law Review Vol. 144 Nbr. 1, November 1995
    • November 1, 1995
    ...whether the trial court properly ordered discovery in a selective prosecution claim by an African American defendant), granting cert. to 48 F.3d 1508 (9th Cir. 1995) (en banc); cf. Wayte v. United States, 470 U.S. 598, 608 (1985) (stating that a decision to prosecute cannot be based deliber......
  • Subconstitution al checks.
    • United States
    • Notre Dame Law Review Vol. 92 Nbr. 3, January 2017
    • January 1, 2017
    ...979 F.2d 98, 100 (7th Cir. 1992). (134) United States v. Armstrong, 517 U.S. 456 (1996), overruling United States v. Armstrong, 48 F.3d 1508, 1515 (9th Cir. 1995). (135) See, e.g., State v. Kruczek, No. Cl-97-2140, 1998 WL 170115, at *1 (Minn. Ct. App. Apr. 14, 1998) ("District courts shoul......
  • Unequal justice: the Supreme Court's failure to curtail selective prosecution for the death penalty.
    • United States
    • Journal of Criminal Law and Criminology Vol. 93 Nbr. 4, June 2003
    • June 22, 2003
    ...Curiae of Former Law Enforcement Officials and Police Organizations et al., in Support of Respondents at 8-9, United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995) (No. 93-50031; 93-50057))). (193) McAdams, supra note 6, at 667 (stating that the deterrent effect of the criminal justice s......
  • Request a trial to view additional results

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