United States v. Armstrong,
517 U.S. 456 (1996)

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No. 95-157. Argued February 26, 1996-Decided May 13, 1996

In response to their indictment on "crack" cocaine and other federal charges, respondents filed a motion for discovery or for dismissal, alleging that they were selected for prosecution because they are black. The District Court granted the motion over the Government's argument, among others, that there was no evidence or allegation that it had failed to prosecute nonblack defendants. When the Government indicated it would not comply with the discovery order, the court dismissed the case. The en banc Ninth Circuit affirmed, holding that the proof requirements for a selective-prosecution claim do not compel a defendant to demonstrate that the Government has failed to prosecute others who are similarly situated.

Held: For a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races. Pp.461-471.

(a) Contrary to respondents' contention, Federal Rule of Criminal Procedure 16, which governs discovery in criminal cases, does not support the result reached by the Ninth Circuit in this case. Rule 16(a)(I)(C)-which, inter alia, requires the Government to permit discovery of documents that are "material to the preparation of the ... defense" or "intended for use by the government as evidence in chief"applies only to the preparation of the "defense" against the Government's case in chief, not to the preparation of selective-prosecution claims. This reading creates a perceptible symmetry between the types of documents referred to in the Rule. Moreover, its correctness is established beyond peradventure by Rule 16(a)(2), which, as relevant here, exempts from discovery the work product of Government attorneys and agents made in connection with the case's investigation. Respondents' construction of "defense" as including selective-prosecution claims is implausible: It creates the anomaly of a defendant's being able to examine all Government work product under Rule 16(a)(I)(C), except that which is most pertinent, the work product in connection with his own case, under Rule 16(a)(2). Pp. 461-463.

(b) Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based


on an arbitrary classification such as race or religion. Oyler v. Boles, 368 U. S. 448, 456. In order to prove a selective-prosecution claim, the claimant must demonstrate that the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose. Ibid. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. Ah Sin v. Wittman, 198 U. S. 500. Batson v. Kentucky, 476 U. S. 79, and Hunter v. Underwood, 471 U. S. 222, distinguished. Although Ah Sin involved federal review of a state conviction, a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute. Discovery imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. Assuming that discovery is available on an appropriate showing in aid of a selective-prosecution claim, see Wade v. United States, 504 U. S. 181, the justifications for a rigorous standard of proof for the elements of such a case thus require a correspondingly rigorous standard for discovery in aid of it. Thus, in order to establish entitlement to such discovery, a defendant must produce credible evidence that similarly situated defendants of other races could have been prosecuted, but were not. In this case, respondents have not met this required threshold. Pp. 463-471.

48 F.3d 1508, reversed and remanded.

REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined, and in which BREYER, J., joined in part. SOUTER, J., post, p. 471, and GINSBURG, J., post, p. 471, filed concurring opinions. BREYER, J., filed an opinion concurring in part and concurring in the judgment, post, p. 471. STEVENS, J., filed a dissenting opinion, post, p. 476.

Solicitor General Days argued the cause for the United States. With him on the briefs were Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Irving L. Gornstein, and Kathleen A. Felton.

Barbara E. O'Connor, by appointment of the Court, 516 U. S. 1007, argued the cause for respondents. With her on the brief for respondents Martin et al. were Maria E. Stratton, Timothy C. Lannen, by appointment of the Court, 516 U. S. 1007, David Dudley, Bernard J. Rosen, and

Full Text of Opinion

Primary Holding

A defendant who is arguing that he was targeted for prosecution on the basis of race cannot compel discovery unless he or she can show that the government did not prosecute similarly situated individuals of other races.


Police informants bought cocaine from Armstrong and his associates, and they were seen to be carrying firearms at the time. As a result, law enforcement searched the hotel rooms where the informants bought the cocaine and arrested Armstrong and one of his associates. The police found more cocaine and a loaded gun in the hotel. They also arrested other members of the drug ring. When Armstrong and his associates, who were all African-American, were indicted for violating drug and firearms laws, they argued that they had been singled out for prosecution because of their race. The district court granted their motion for discovery or dismissal, even though the government argued that the defendants failed to allege or show that they had failed to prosecute non-African-American defendants.

The case was dismissed when the government refused to comply with the discovery order. On appeal, the U.S. Circuit Court ruled that the defendants did not need to sustain their selective prosecution claim by proving that the government had failed to prosecute similarly situated individuals.



  • William Hubbs Rehnquist (Author)
  • Sandra Day O'Connor
  • Antonin Scalia
  • Anthony M. Kennedy
  • David H. Souter
  • Clarence Thomas
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Federal prosecutors are entitled to a general presumption that they are properly exercising the broad discretion accorded to them, unless a defendant introduces clear evidence to the contrary. The Fifth Amendment's equal protection guarantee requires that race, religion, and other arbitrary classifications are not the basis for prosecuting an individual, but someone bringing a constitutional claim under this provision must show both discriminatory effect and discriminatory purpose or motivation.

The discriminatory effect element involves a showing that the government did not prosecute similarly situated individuals of another race. This is comparable to similar rules regarding state prosecutions. Courts should recognize that federal prosecutors, like state prosecutors, must shoulder substantial costs when they are responding to discovery based on a prima facie case of selective prosecution. Therefore, a high standard of proof for the elements of a prima facie case is appropriate in order to find an entitlement to discovery. The defendants in this case did not provide credible evidence that non-African-American defendants could have been prosecuted by the federal government for the same offenses but were not.


  • John Paul Stevens (Author)

Trial courts have a better understanding of the circumstances surrounding a particular case and should have greater discretion than this strict rule permits. They should be able to analyze the factual details giving rise to the claim of selective prosecution and act on their suspicion that federal prosecutors may have behaved improperly. While the defendants in this case did not produce sufficient evidence to establish a right to discovery, the trial court judge should have been permitted to order a response from the prosecution, based on her independent analysis of the facts. This action was not an abuse of discretion and should not have been disturbed on appeal.

Prosecutions involving crack cocaine are especially likely to be problematic in this regard. The punishments attached to crimes involving this substance are more severe than for most drug offenses, and they are also more severe at the federal level than the state level. There is also empirical evidence suggesting that African-Americans are disproportionately punished by these laws and thus more often subject to the elevated penalties. In many situations, African-Americans are prosecuted in federal court, while whites charged with the same offense are prosecuted in the state court, despite the lack of a clear distinction between the cases. The trial court judge was entitled to investigate the government's choice of forum more closely, even though the defendants did not meet their burden of production.


  • David H. Souter (Author)


  • Ruth Bader Ginsburg (Author)


  • Stephen G. Breyer (Author)

Case Commentary

This rule might not apply in situations when a prosecutor directly admits a discriminatory purpose, although that is unlikely to happen.

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