67 F.Supp.2d 170 (W.D.N.Y. 1999), 99-CR-6027, United States v. Grimes

Docket Nº:99-CR-6027.
Citation:67 F.Supp.2d 170
Party Name:UNITED STATES of America v. Charles GRIMES.
Case Date:August 18, 1999
Court:United States District Courts, 2nd Circuit, Western District of New York
 
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Page 170

67 F.Supp.2d 170 (W.D.N.Y. 1999)

UNITED STATES of America

v.

Charles GRIMES.

No. 99-CR-6027.

United States District Court, W.D. New York.

Aug. 18, 1999

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Bret Puscheck, Assistant United States Attorney, Rochester, NY, for the United States of America.

William Clauss, Federal Public Defender, Rochester, NY, for the Defendant.

DECISION and ORDER

SIRAGUSA, District Judge.

Indictment number 99-CR-6027 was filed against the defendant on April 6, 1999, charging him with three counts, all in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). The defendant brought a Notice of Motion dated June 2, 1999 seeking various forms of relief. The Government filed a response dated June 18,1999 in opposition to the defendant's motion. The Court heard oral argument on June 21, 1999, after which two matters remained outstanding. The first involved the defendant's request for a hearing on Project Exile, the prosecutorial initiative pursuant to which the United States Attorney brought the case. The Court reserved on this application. The second, involved the defendant's motion to suppress physical evidence that was seized as a result of two searches conducted at the defendant's residence following his arrest on a parole warrant. In regard to this matter, the Court held a hearing on July 7, 8, and 23 of 1999. For the reasons to be stated, both of the defendant's outstanding applications are denied.

PROJECT EXILE

The Project Exile program, which was initiated here in Rochester in September of 1998 and which is modeled after a similar program in Richmond, Virginia, is a result of the collaboration of several state and local law enforcement agencies, including the Monroe County District Attorney's Office, the Rochester Police Department, the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms, the United States Marshal's Service, the New York State Police, the Monroe County Sheriff's Department, the Monroe County Chiefs of Police, and the United States Attorney's Office. The stated purpose of the Project Exile program is to federally prosecute firearms-related crimes in order to take advantage of federal pre-trial detention and sentencing statutes. The defendant contends that Project Exile may violate his constitutional guarantee of equal protection under the law. As to this equal protection argument the defendant, who is an African-American, relies on three grounds. First, he suggests that he will likely be tried by a jury drawn from a population with a greater proportion of non-African-American people than he would be if prosecuted in State court. Accordingly, he moved for inspection of jury lists as an initial step in establishing this claim, and requested leave to supplement his jury composition argument after inspection of jury records. Although the Court granted the defendant access to the Master and Qualified jury wheels on July 21, 1999, the defendant has been unable to support his suggestion that the jury selection process in federal court is constitutionally infirm with any type of proof. Therefore, to the extent that the defendant is seeking any type of relief on this equal protection ground, it is denied.

The second ground advanced by the defendant is that Project Exile violates the Fifth Amendment prohibition against selective prosecution based on race. In this regard, the defendant attempts to show, through the use of statistics, that similarly-situated individuals are treated differently. Specifically, the defendant states that since January 1, 1998, twenty-seven of the thirty-three defendants the Federal Public Defender's Office has been assigned to represent on gun-related charges are African-American. To demonstrate that similarly-situated individuals of a different race have been treated differently, the defendant cites five cases where white gun offenders were not diverted from state court to federal court for prosecution, and suggests upon information

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and belief (without stating the sources of such information and belief), that other examples of non-African-American defendants being prosecuted in state court rather than federal court, exist. Based upon these allegations, the defendant requests a hearing, so he can subpoena witnesses and documents to support his claim. However, to be entitled to the relief he seeks, the defendant must make a credible showing that some evidence exists which tends to show, one, that similarly-situated individuals of a different race were not prosecuted and, two, that the decision to prosecute him was invidious or in bad faith. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). The Court finds that the statistics cited by the defendant do not amount to the requisite credible showing that similarly-situated individuals of a different race were not prosecuted. See United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992). Even assuming, arguendo, that the statistics advanced by the defendant constituted sufficient evidence of discriminatory effect, the defendant fails to offer any evidence of discriminatory intent. Consequently, the defendant's application for a hearing, based on selective prosecution is denied.1

The third equal protection ground advanced by the defendant is one of disparate impact. Specifically, the defendant contends...

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