U.S. v. Bourgeois

Citation964 F.2d 935
Decision Date19 May 1992
Docket NumberNo. 90-50595,90-50595
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rodney BOURGEOIS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Rose Reilly, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Mark C. Holscher, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before: SNEED, BEEZER and TROTT, Circuit Judges.

BEEZER, Circuit Judge:

Rodney Bourgeois, a black man arrested as part of "Operation Streetsweep," claims that the decision to prosecute him was unconstitutionally based on race. In furtherance of this claim, Bourgeois sought discovery of government documents about Operation Streetsweep. The district court denied the discovery request, denied a motion to dismiss for selective prosecution and accepted Bourgeois' conditional guilty plea. Bourgeois' timely appeal challenges only the denial of discovery. We have jurisdiction and we affirm.

I

On June 14 and 15, 1990, federal agents and local law enforcement officers arrested more than 100 alleged gang members in South Central Los Angeles. These arrests were part of a publicized, nationwide effort, dubbed "Operation Streetsweep," that resulted in at least 160 arrests in 11 states. The government prosecuted ten Los Angeles arrestees for federal firearms violations. All ten, including Bourgeois, are black men suspected of being affiliated with either the Crips or the Bloods, two Los Angeles-based gangs.

As Bourgeois' brief states, "[a]lthough many other notorious gangs also use guns and violence--ranging from Latino (Nuestra Familia, Maravilla, 18th Street, Lomas), [to] Asian (Yu Li, Joe Boys, Wah Ching, Frogmen) [and] White (Hells Angels, Hole Stoners, Aryan Brotherhood)--only Black men were arrested and charged with federal violations as a result of 'Operation Streetsweep.' No other gangs were identified. No other race was represented...."

This exclusive representation was, Bourgeois claims, deliberate. His review of information provided by the government suggests that the ten men had been ostensibly identified through two methods of investigation. The first method focused on felons who purchased weapons from gun stores or who redeemed weapons from pawn shops. The second method focused on felons with a 1988 or 1989 state arrest indicating that they possessed a firearm. "Out of these two potentially enormous multi-racial pools of similarly situated persons, 'Operation Streetsweep' prosecuted only Black persons. The fact that only Blacks were prosecuted from such a tremendous class of similarly situated persons demonstrates the intentional selection of Blacks for prosecution," according to Bourgeois.

The government asserts that it targeted the Crips and Bloods because the gangs' members engage in violence and drug trafficking throughout the country. It did not target the Crips and Bloods because of the racial composition of their membership. Furthermore, the government stresses that it does prosecute people of all races for violating federal firearms laws. It characterizes Operation Streetsweep as an isolated program of gang-member arrests: "These arrests were coordinated to generate publicity and thus achieve maximum deterrence value in law enforcement's effort to combat street crime and the proliferation of dangerous weapons among inner-city street gangs." According to a government affidavit, the cases against five of the ten men were referred for prosecution to the United States Attorney's Office months before prosecutors became aware of Operation Streetsweep.

Bourgeois' prosecution stemmed from his 1989 purchase of a 12-gauge Mossberg shotgun. Federal agents conducting a records inspection at a Los Angeles gun store had noted that Bourgeois purchased a firearm that the government considers a "weapon of choice" for crime. Accordingly, they checked his criminal history. Despite his prior felony conviction and two pending felony charges (all for drug activities), Bourgeois had signed a form indicating that he was not a felon and not facing felony charges. Bourgeois was arrested on June 14, 1990, the first day of Operation Streetsweep. He was indicted for violation of 18 U.S.C. § 922(g)(1) (1988), which prohibits felons from possessing firearms.

Bourgeois moved to dismiss the indictment based on selective prosecution. He filed a discovery request seeking documents broadly related to Operation Streetsweep and the government's efforts to combat violence by gang members. The district court denied both the motion to dismiss and the request for discovery. Bourgeois subsequently entered a conditional plea of guilty for violating 18 U.S.C. § 922(g)(1). The court sentenced him to ten months' imprisonment followed by three years' supervised release.

II

We have not previously resolved the question whether abuse of discretion or clearly erroneous is the appropriate standard of review for denial of discovery relating to a selective prosecution claim. See United States v. Aguilar, 883 F.2d 662, 705 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991) (citing conflict in a case reviewing a denial of discovery); United States v. Moody, 778 F.2d 1380, 1385 (9th Cir.1985), amended by, 791 F.2d 707 (9th Cir.1986) (citing conflict in a case reviewing denial of motion to dismiss because of selective prosecution). Both the Aguilar and Moody opinions declined to decide which of the two deferential standards is correct. Both opinions found neither clear error nor abuse of discretion in the district courts' decisions. Aguilar, 883 F.2d at 705; Moody, 778 F.2d at 1385.

We now decide that the appropriate standard of review is abuse of discretion. "Discovery questions are ordinarily reviewed for abuse of discretion." United States v. Michaels, 796 F.2d 1112, 1115 (9th Cir.1986) (applying standard in criminal case), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). See also Ah Moo v. A.G. Becker Paribas, Inc., 857 F.2d 615, 619 (9th Cir.1988) (applying abuse of discretion standard to challenge regarding adequacy of discovery in civil case); United States v. Balk, 706 F.2d 1056, 1060 (9th Cir.1983) (applying abuse of discretion standard to denial of discovery motion in selective prosecution case). The Aguilar opinion suggests that this usual review standard might not apply in a selective prosecution case. The opinion refers to Moody for support. Aguilar, 883 F.2d at 705.

The Moody opinion, however, did not review a discovery determination. It reviewed a determination on the merits of a selective prosecution claim. Moody, 778 F.2d at 1385-1386. The decisions the Moody opinion cites as utilizing a clearly erroneous standard similarly involve determinations on the merits of the defendants' claims, not determinations regarding the defendants' requests for discovery. See, e.g., United States v. Stewart, 770 F.2d 825, 829 n. 2 (9th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 888, 88 L.Ed.2d 922 (1986).

When faced with this discovery question, other circuits review for abuse of discretion. See, e.g., United States v. Heidecke, 900 F.2d 1155, 1162 (7th Cir.1990); United States v. Hintzman, 806 F.2d 840, 846 (8th Cir.1986); United States v. Greenwood, 796 F.2d 49, 52 (4th Cir.1986); United States v. Berrios, 501 F.2d 1207, 1212 (2d Cir.1974); United States v. Berrigan, 482 F.2d 171, 181 (3rd Cir.1973). We agree that this is the appropriate standard. Accordingly, we will not reverse the district court's order denying discovery unless it reflects an abuse of discretion.

III

Bourgeois claims that it was because of his race that the government selected him, and not other armed felons, to be prosecuted in federal court. Although the government "retains broad discretion as to whom to prosecute," its discretion "is not unfettered." United States v. Wayte, 470 U.S. 598, 608, 609, 105 S.Ct. 1524, 1531, 1532, 84 L.Ed.2d 547 (1985) (quotations omitted). More than a century ago, the Supreme Court observed that the application of laws "with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances" constitutes a denial of equal protection. Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886) (vacating convictions of Chinese men for illegally operating laundries, where facially neutral law had been discriminatorily applied).

As the Second Circuit aptly commented, "[n]othing can corrode respect for a rule of law more than the knowledge that the government looks beyond the law itself to arbitrary considerations, such as race, religion, or control over the defendant's exercise of his constitutional rights, as the basis for determining its applicability." Berrios, 501 F.2d at 1209. Accordingly, "[a] defendant cannot be convicted if he proves unconstitutional discrimination in the administration of a penal statute." United States v. Steele, 461 F.2d 1148, 1151 (9th Cir.1972) (vacating conviction of notorious census protestor for failure to answer census questions).

To succeed on a selective prosecution claim, the defendant bears the burden of showing both "that others similarly situated have not been prosecuted and [also] that the prosecution is based on an impermissible motive." United States v. Wayte, 710 F.2d 1385, 1387 (9th Cir.1983), affirmed 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (allowing prosecution of vocal draft resister for failure to register). Thus, selective prosecution claims are evaluated "according to ordinary equal protection standards." Wayte, 470 U.S. at 608-09, 105 S.Ct. at 1531-32 (citing Personnel Adm'r v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); ...

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