U.S. v. Deberry

• Decision Date: 13 December 2005
• Docket Number: No. 04-1532.,04-1532.
• Citation: 430 F.3d 1294
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Frederick D. DEBERRY; Rodgerick L. Lackey; Paul S. Talifero, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

430 F.3d 1294

UNITED STATES of America, Plaintiff-Appellant, v. Frederick D. DEBERRY; Rodgerick L. Lackey; Paul S. Talifero, Defendants-Appellees.

No. 04-1532.

United States Court of Appeals, Tenth Circuit.

December 13, 2005.

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James C. Murphy, Assistant United States Attorney (William J. Leone, United States Attorney, and Joshua G. Stein, Assistant United States Attorney, with him on the briefs), Denver, CO, for Plaintiff-Appellant.

David C. Japha, The Law Offices of David C. Japha, P.C., Denver, CO (James A. Castle, Denver, CO, Randy S. Reisch, Reisch Law Firm, LLC, Denver, CO, and Michael J. Norton, Burns, Figa & Will, P.C., Englewood, CO, with him on the brief) for Defendants-Appellees.

Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.

HARTZ, Circuit Judge.

Frederick DeBerry, Rodgerick Lackey, and Paul Talifero (Defendants), inmates at the United States Penitentiary in Florence, Colorado (USPF), were indicted in the United States District Court for the District of Colorado for an alleged assault on Wayne Wheelock, a fellow inmate. Mr. Wheelock is Native American and Defendants are African American. Defendants contend that they were treated less favorably than three Native Americans who allegedly assaulted an African American several days after the assault on Mr. Wheelock, and they moved for discovery concerning selective prosecution. The district court granted their motion. When the government refused to comply with the discovery order, the court dismissed the indictment against Defendants with prejudice. The government appeals the dismissal. We have jurisdiction under 18 U.S.C. § 3731. Because we conclude that the district court's discovery order was erroneous, we reverse the order of dismissal.

I. BACKGROUND

Mr. Wheelock was assaulted on April 27, 2003. Three days later, three Native American inmates, Fred Goldtooth, Steven Dock, and Ricky Mungia (the Native Americans) allegedly stabbed Arnold Haskins, an African American inmate at USPF. On October 7, 2003, approximately five and one-half months after the assault, Defendants were indicted on charges of assault with intent to commit murder and assault resulting in serious bodily injury. At the time briefs were submitted to this court the Native Americans had not been charged in the later attack. But on July 27, 2005, they were each indicted for assaulting Mr. Haskins with intent to commit murder, assaulting him with a dangerous weapon, and committing an assault resulting in his serious bodily injury; Mr. Mungia was further charged on a count of trafficking in contraband.

On June 21, 2004, Defendants moved for discovery concerning selective prosecution based on the government's failure to indict the Native Americans. They sought (1) a list of all cases in the previous three years "in which the Government charged a federal inmate in the District of Colorado with the charge of assault based on a stabbing of another inmate," including the race of both victims and defendants; (2) a list of all cases in the previous three years "in which the Government was referred a case involving a stabbing of one inmate by another for the purpose of determining whether charges would be sought against a federal inmate in the District of Colorado and no charges resulted[,]" including the race of both victims and defendants; (3) a Department of Justice document explaining the criteria for deciding whether to bring charges in such cases; and (4) a Department of Justice document "explaining the levels of law enforcement that were involved in the investigation of and the decisions concerning whether to prosecute" such cases. Aplt.App. at 38. Before the hearing on the motion, the government filed a superseding indictment charging Defendants with assault with intent to commit murder, assault resulting in serious bodily injury, and possession of a dangerous weapon. Mr. Talifero was further charged with threatening a witness.

At the hearing on the discovery motion, the government asserted that Defendants had not produced enough evidence to warrant discovery, arguing that they had not met their burden under United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), of showing evidence of both discriminatory impact and discriminatory intent. The government contended that a single anecdotal example of differential treatment did not demonstrate discrimination by the prosecution, and that differences in treatment could result from differences in evidence, the prison-release dates of the perpetrators, the press of business in the prosecutor's office, and the benefit of prosecuting the perpetrators. It mentioned that Defendants' alleged attack was captured on videotape, whereas the second assault was not. In addition, the government argued that responding to the request would be burdensome because it would need to hand-search the files of the United States Attorney to determine which cases involved stabbings of inmates and then to retrieve investigative reports, which are not kept in the United States Attorney's office after the cases are closed, from the FBI and Bureau of Prisons. Finally, the government asserted that the other assault "is going to be prosecuted," Aplt.App. at 108, but it had not yet sought an indictment because the Assistant United States Attorney (AUSA) assigned to the case had been too busy. Counsel for Defendants responded that the Bureau of Prisons does keep track of stabbings at USPF so that the discovery would not be unduly burdensome, and that prison guards had witnessed the second assault.

The district court granted Defendants' motion for discovery. It ruled that the government's failure to indict Native Americans suspected of a crime almost identical to the one allegedly committed by Defendants was sufficient to show discriminatory effect for purposes of a discovery motion. The court said that discriminatory intent could be inferred from the disparate treatment of the assailants. It also said that one could draw negative inferences against the government from its expressing its intent to indict with respect to the second assault only after Defendants had filed a selective-prosecution motion. The court ordered the government to produce (1) all cases brought by the United States in the District of Colorado in the previous three years charging a federal inmate with stabbing another inmate, indicating the race of the defendants and victims in each case; (2) "[a] list for the same time period of all cases referred to the government involving a stabbing of one inmate by another in which no criminal charges resulted"; (3) a statement of the criteria used by the United States in deciding whether to prosecute; and (4) an identification of the persons involved in the investigations and decisions to prosecute in those cases. Aplt.App. at 62.

When the government refused to comply with the discovery order, the district court issued an order to show cause why the AUSAs involved in the case should not be held in contempt of court. During the hearing on the show-cause order, the government argued that rather than holding the AUSAs in contempt, the court should follow the procedure used in Armstrong and dismiss the indictment to allow the government to appeal the discovery order. After the hearing the court vacated its show-cause order and dismissed the indictment against Defendants with prejudice.

II. DISCUSSION

A. Standard of Review

We review de novo the district court's grant or denial of a defendant's selective-prosecution discovery motion. United States v. James, 257 F.3d 1173, 1178 (10th Cir.2001) ("[W]hen 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." (internal quotation marks omitted)).

B. Selective Prosecution

Claims of selective prosecution have been recognized by the Supreme Court for well over a century. In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), two Chinese subjects raised challenges under the Fourteenth Amendment's Equal Protection Clause to their incarceration for violating a San Francisco ordinance requiring operators of laundries in wooden buildings to obtain a permit from the city. About 200 Chinese owners of wooden laundries had been denied permits, whereas 80 non-Chinese owners had been granted permits to carry on their businesses under similar conditions. Id. at 374, 6 S.Ct. 1064. The Supreme Court reversed the convictions, declaring:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is ... within the prohibition of the Constitution.

Id. at 373-74, 6 S.Ct. 1064. In other words, a decision to prosecute that is "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification" is a denial of equal protection. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). The ban on discriminatory prosecution is not limited to the states but also applies to the federal government under the Fifth Amendment's Due Process Clause. Wayte v. United States, 470 U.S. 598, 608 n. 9, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).

A defendant claiming selective prosecution must demonstrate "that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose." Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 (internal quotation marks omitted). "To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." Id. Discriminatory intent can be...