PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                                      No. 96-4009
ANTHONY L. OLVIS, a/k/a Tony;
ANGELA D. PALMER,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-95-38-NN)

Argued: June 6, 1996

Decided: October 11, 1996

Before ERVIN, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Ervin and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: William Graham Otis, Senior Litigation Counsel, Alexan-
dria, Virginia, for Appellant. James Stephen Ellenson, Newport
News, Virginia, for Appellee Olvis; Sterling Harrisbe Weaver, Sr.,
Portsmouth, Virginia, for Appellee Palmer. ON BRIEF: Helen F.
Fahey, United States Attorney, Justin W. Williams, Assistant United
States Attorney/Chief, Criminal Division, Michael R. Smythers,
Executive Assistant United States Attorney, Alexandria, Virginia, for
Appellant.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

After uncovering a large and violent crack cocaine conspiracy in
the Williamsburg, Virginia area, the United States indicted 25 persons
in three separate indictments. All 25 are black, and of the approxi-
mately 55 unindicted persons who were also involved in the conspir-
acy, 50 are black and 5 are white.

Two of the blacks who were indicted, Anthony L. Olvis and
Angela D. Palmer, moved to dismiss their indictment, claiming that
they had been selected for prosecution because of their race in viola-
tion of the equal protection component of the Fifth Amendment's Due
Process Clause. On Olvis' and Palmer's argument that five unindicted
white persons were similarly situated to them and their demonstration
that more than 90% of those indicted in the Norfolk-Newport News
area since 1992 for crack cocaine trafficking are black, the district
court ordered discovery into the government's criteria for prosecu-
tion. When the government refused, arguing that such discovery was
unwarranted, the district court dismissed the indictment against Olvis
and Palmer.

Because the defendants did not satisfy the "rigorous" standard
recently articulated by the Supreme Court to obtain discovery for
selective-prosecution claims, we conclude that the district court erred
in ordering discovery. Accordingly, we reverse the court's dismissal
order and remand with instructions to reinstate the indictment and for
further proceedings.

I

In 1992, drug enforcement officers began investigating Anthony
Olvis and other individuals involved in distributing crack cocaine and
marijuana in Williamsburg, portions of James City and York Coun-

                    2
ties, and an area of Newport News, Virginia. Investigators believed
that Olvis had managed to become "untouchable," insulating himself
from prosecution by employing a network of street dealers whom he
replaced as they were arrested. Moreover, according to law enforce-
ment authorities, Olvis' activities had grown increasingly violent,
with shootings becoming "mixed in with the street level activity."
Indeed, at the time of the indictment in this case, police believed that
Olvis' drug conspiracy was linked to several unsolved murders. The
government accordingly claims that it had a keen interest in prosecut-
ing Olvis and his colleagues.

Of more than 80 persons allegedly involved in the drug trafficking
activities, the government prosecuted 25 through 3 indictments.*
Olvis and Angela Palmer, who assisted Olvis in laundering his drug
proceeds by taking title to vehicles in her name, were indicted in
August 1995 for conspiracy to distribute crack cocaine and money
laundering. Olvis was also indicted for possession with intent to dis-
tribute crack cocaine and use of a firearm in relation to drug traffick-
ing. Palmer was indicted additionally for perjury and obstruction of
justice.

In support of their motion to dismiss on selective-prosecution
grounds, Olvis and Palmer noted that all 25 defendants that the gov-
ernment indicted are black. While recognizing that"a number of peo-
ple that have been granted immunity are also black," the defendants
argued that grand jury testimony revealed that "at least three whites
have been granted immunity who are at least or more culpable than
the black defendants, and at least two other whites have not been
charged."

In opposition to the dismissal motion, the government insisted that
the unindicted white individuals, "like the many unindicted black per-
sons Olvis neglect[ed] to list," were not similarly situated to Olvis or
Palmer. The government's chief prosecutors submitted two affidavits,
stating that the government's decisions about whom to indict were
_________________________________________________________________
*In addition to this case, indictments were obtained in United States
v. Terry D. Jones, et al., Criminal Action No. 95-37 (E.D. Va.), and
United States v. Marty L. Wright, et al., Criminal Action Nos. 95-39 and
95-44 (E.D. Va.).

                     3
based "solely on the evidence or other race-neutral criteria such as a
prior disposition in state court, more limited participation in the con-
spiracy, or the government's need for a particular individual's cooper-
ation."

At the hearing on the motion, counsel for Olvis and Palmer recited
statistical evidence that more than 90% of those who had been tried
since 1992 for crack cocaine offenses in the district court's Norfolk
and Newport News divisions are black. They claimed that the defen-
dant's race was known in 285 of the 312 crack cocaine cases tried
since 1992, and that 260 of those 285 cases involved black defen-
dants.

The government presented testimony from Kevin Comstock, an
Assistant United States Attorney, and Lieutenant Delmas Linhart, an
officer in the James City County Police Department and special dep-
uty with the FBI. In his testimony Comstock indicated that the per-
centage of blacks indicted for crack cocaine offenses was high
because blacks primarily were involved in the distribution of crack
cocaine in the Norfolk-Newport News area. He explained,

          I don't choose individuals to violate the law. They choose
          to violate the law themselves. And when they violate the
          law, if we can prove it, we prosecute[ ] them, regardless of
          their race, regardless of their sex, regardless of where they
          were born, or in what family they were raised in.

Lt. Linhart testified similarly that race played no part in the govern-
ment's selection of whom to prosecute. He noted that the Colonial
Narcotics Enforcement Task Force, of which he was a member, pur-
sued the Olvis organization because Olvis had managed to insulate
himself from the police and his organization was becoming increas-
ingly violent. And Lt. Linhart added that Angela Palmer had been
offered the opportunity to become a cooperating witness, but that, in
the investigators' judgment, she had lied before the grand jury and
had otherwise failed to cooperate.

Lt. Linhart also explained why each white conspirator cited in the
defendants' motion had not been indicted. Mary Deroja, who was
romantically involved with an alleged gang member and drove his car

                    4
for him, had approached the authorities and agreed to assist in their
investigation by working undercover. Denny Petrie had not yet been
prosecuted because the government, after executing a search warrant
on his home, still lacked sufficient evidence to indict him. Lonnie
Beverly and his black partner, Eddie Phillips, had been approached
about becoming witnesses at a time when the authorities knew little
about them; only subsequently did enforcement officers learn that
Beverly was the driver and Phillips the gunman in a drive-by shooting
of an unoccupied car, information that might have disqualified them
from receiving immunity. Lt. Linhart testified, moreover, that Beverly
has since proven truthful and cooperative. As for the remaining two
unindicted white persons, Linhart testified that the government had
never heard of "Floyd," a white male referred to once in an ambigu-
ous manner by a witness before the grand jury, nor did it have any
evidence that Jeffrey Branscome was a seller, rather than merely a
user, of drugs.

The district court concluded that the defendants had made a "non-
frivolous showing in raising a claim of selective prosecution," and
ordered the government to respond to defendants' formal requests for
discovery into its criteria for selecting whom to prosecute. The court
found that Olvis, Palmer, and the unindicted white conspirators were
"similarly situated" for a selective-prosecution claim and that the
defendants' statistical data made a "nonfrivolous showing of discrimi-
natory intent."

The government moved for reconsideration of the district court's
order, submitting an additional affidavit from Lt. Linhart which
detailed the shootings and murders associated with the "largest drug
ring in Hampton Roads' history." Lt. Linhart's affidavit pointed out
that all but one of the shootings' victims were black and that there
were more than ten unindicted black conspirators for every unindicted
white conspirator. The affidavit added that after the indictments had
been publicly announced, Lt. Linhart received several phone calls
from black citizens in the predominantly black neighborhoods in
which the gangs operated, expressing their appreciation for the
arrests.

The district court denied the government's motion for reconsidera-
tion. And when the government refused to comply with its discovery
order, the court dismissed the indictment against Olvis and Palmer.

                    5
This appeal followed.

II

When acting on probable cause that a crime has been committed,
a government prosecutor generally enjoys unfettered discretion in the
decision whether to prosecute. See Bordenkircher v. Hayes, 434 U.S.
357, 364 (1978). Because law enforcement is "a core executive con-
stitutional function," United States v. Armstrong, 116 S. Ct. 1480,
1486 (1996), judicial intrusion into prosecutorial decisions is justified
only when the Constitution requires it, see United States v.
Batchelder, 442 U.S. 114, 125 (1979).

The equal protection component of the Fifth Amendment's Due
Process Clause forbids the government from deciding to prosecute
based on a defendant's race. See Armstrong, 116 S. Ct. at 1486; see
also Oyler v. Boles, 368 U.S. 448, 456 (1962). Because of the great
danger of unnecessarily impairing the performance of a core execu-
tive constitutional function and the "presumption of regularity" that
supports prosecutorial decisions, a defendant must support a
selective-prosecution claim with "clear evidence." Armstrong, 116 S.
Ct. at 1486 (quoting United States v. Chemical Found., Inc., 272 U.S.
1, 14-15 (1926)). The standard is intended to be a"demanding" and
"rigorous" one. Id. at 1486, 1488.

To establish a selective-prosecution claim, a defendant must dem-
onstrate that the prosecution "had a discriminatory effect and that it
was motivated by a discriminatory purpose." Wayte v. United States,
470 U.S. 598, 608 (1985). This requires the defendant to establish
both (1) that "similarly situated individuals of a different race were
not prosecuted," Armstrong, 116 S. Ct. at 1487, and (2) that the deci-
sion to prosecute was "invidious or in bad faith," United States v.
Greenwood, 796 F.2d 49, 52 (4th Cir. 1986) (quoting United States
v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)).

Similarly, to obtain discovery in support of a selective-prosecution
claim, a defendant must produce "some evidence" making a "credible
showing" of both discriminatory effect and discriminatory intent.
Armstrong, 116 S. Ct. at 1488-89. Just as the standard for ultimately
proving a selective prosecution claim is a rigorous one, so too is the

                     6
evidentiary threshold for obtaining discovery from the government to
support such a claim. Id. at 1488. A significant barrier to discovery
is necessary because discovery "imposes many of the costs present
when the Government must respond to a prima facie case of selective
prosecution"; it diverts governmental resources and discloses prosecu-
torial strategies. Id. Thus, the Supreme Court recently admonished in
Armstrong, "the showing necessary to obtain discovery should itself
be a significant barrier to the litigation of insubstantial claims." Id. at
1486.

While we ordinarily defer to a district court's decision to order dis-
covery, the Supreme Court emphasized in Armstrong that for a selec-
tive prosecution claim, the justifications for a rigorous standard of
proof to establish a claim require "a correspondingly rigorous stan-
dard for discovery in aid of such a claim." 116 S. Ct. at 1488. Thus,
when 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. Cf.
Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996) (legal ade-
quacy of evidence to establish probable cause is reviewed de novo);
Towler v. Sayles, 76 F.3d 579, 581 (4th Cir. 1996) (legal adequacy of
evidence on appeal from judgment as a matter of law is reviewed de
novo).

III

The district court in this case concluded that Olvis and Palmer had
satisfied the discriminatory effect prong of their selective-prosecution
claim because the unindicted white conspirators were similarly situ-
ated to them. Focusing only on the evidence of the conspirators' crim-
inal activity, the court found all to have "similar involvement" in the
conspiracy and dismissed the government's proffered distinctions
among the conspirators as "unpersuasive." Thus, the court reasoned
that the government's inconsistency in granting some members of the
conspiracy immunity and prosecuting others "call[ed] into question
the legitimacy of the entire prosecution."

Generally, in determining whether persons are similarly situated
for equal protection purposes, a court must examine all relevant fac-
tors. See Ah Sin v. Wittman, 198 U.S. 500, 507-08 (1905); see also

                     7
Attorney General of the United States v. Irish People, Inc., 684 F.2d
928, 946 (D.C. Cir. 1982) ("Discrimination cannot exist in a vacuum;
it can be found only in the unequal treatment of people in similar cir-
cumstances"), cert. denied, 459 U.S. 1172 (1983). And this principle
applies to the analysis of allegedly discriminatory criminal prosecu-
tions:

          The goal of identifying a similarly situated class of law
          breakers is to isolate the factor allegedly subject to imper-
          missible discrimination. . . . If all other things are equal, the
          prosecution of only those persons [to whom the factor
          applies] . . . gives rise to an inference of discrimination. But
          where the comparison group has less in common with
          defendant, then [other] factors . . . may very well play a part
          in the prosecution.

United States v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989).

By considering only the conspirators' relative culpability, the dis-
trict court in this case failed to take into account several factors that
play important and legitimate roles in prosecutorial decisions. See
Oyler, 368 U.S. at 456 (prosecutorial exercise of selectivity in
enforcement without more does not violate Constitution). A prosecu-
tor may, for example, legitimately offer immunity to a potential
defendant who is equally "involved" as others simply because that
defendant may choose to cooperate and expose yet more criminal
activity. Prosecutorial decisions may also be legitimately influenced
by such factors as the strength of the evidence against a particular
defendant, the defendant's role in the crime, whether the defendant is
being prosecuted by state authorities, the defendant's candor and will-
ingness to plead guilty, the amount of resources required to convict
a defendant, the extent of prosecutorial resources, the potential impact
of a prosecution on related investigations and prosecutions, and pro-
secutorial priorities for addressing specific types of illegal conduct.

Making decisions based on the myriad of potentially relevant fac-
tors and their permutations require the very professional judgment
that is conferred upon and expected from prosecutors in discharging
their responsibilities. See McCleskey v. Kemp , 481 U.S. 279, 297
(1987). In rejecting the district court's narrow approach to relevant

                     8
factors to be considered when deciding whether persons are similarly
situated for prosecutorial decisions, we hold that defendants are simi-
larly situated when their circumstances present no distinguishable
legitimate prosecutorial factors that might justify making different
prosecutorial decisions with respect to them.

Applying our fact-focused test to the circumstances of this case, we
conclude that the defendants did not establish the first element of their
selective-prosecution claim. We begin with the observation that Olvis
is alleged to be the head of an organization that has distributed
cocaine continuously for over four years and has become increasingly
violent. While Palmer does not project the same prosecutorial profile,
she is being prosecuted because investigators in this case believe that
she committed perjury before the grand jury and she has otherwise
refused to cooperate with law enforcement authorities.

Compared to Olvis and Palmer, the white conspirators projected
significantly different prosecutorial profiles. Mary Deroja came for-
ward and offered to go undercover to assist the investigation, and in
doing so she offered to put herself at significant risk. Although Denny
Petrie was a government target, a search of his residence failed to pro-
duce sufficient evidence to prosecute him. Lonnie Beverly, who is
white, along with Eddie Phillips, his black partner, agreed to become
witnesses before the government uncovered the extent of their illegal
activities. Nevertheless, Beverly continues to be truthful and helpful
to the prosecution. And the government has no information about a
white person named Floyd, whose last name is unknown, nor evi-
dence that Jeffrey Branscome was a drug dealer. Moreover, in addi-
tion to presenting these particularized factors that distinguish the
defendants' circumstances from those of the unindicted conspirators,
the government notes that there were approximately 50 black conspir-
ators whom prosecutors chose not to indict. We find no merit, based
on all of these legitimate considerations, to the contention that Olvis
and Palmer were situated similarly to the unindicted white conspira-
tors for making prosecutorial decisions.

As further evidence of their argument that the government's pro-
secutorial decisions had a discriminatory effect, Olvis and Palmer
presented an informal statistical study conducted by their attorneys.
The study showed that in the Norfolk-Newport News area, of all the

                    9
federal crack cocaine trafficking prosecutions in federal court since
1992 in which the defendant's race was apparent, over 90% involved
black defendants.

While the district court viewed the defendants' informal study as
probative of only the discriminatory intent prong of a selective-
prosecution claim, the Supreme Court in Armstrong considered a sim-
ilar study under the discriminatory effect prong. See 116 S. Ct. at
1488-89. Regardless of the purpose for which the defendant's study
is offered, however, we do not believe that it advances the defen-
dants' selective-prosecution claim.

Olvis' and Palmer's study provides no statistical evidence on the
number of blacks who were actually committing crack cocaine
offenses or whether a greater percentage of whites could have been
prosecuted for such crimes. The study suffers from the same fatal
defect that the Court recognized in Armstrong , where the proffered
study had failed "to identify individuals who were not black, could
have been prosecuted for the offenses for which respondents were
charged, but were not so prosecuted." 116 S. Ct. at 1489. Without an
appropriate basis for comparison, raw data about the percentage of
black crack cocaine defendants proves nothing. Such statistics could
have relevance only if it could be presumed that crack cocaine viola-
tions were committed proportionately by all races -- a presumption
the Supreme Court rejected in Armstrong as"at war" with unchal-
lenged statistics. Id.

Just as the Supreme Court held in Armstrong, when faced with a
similar study, we conclude that the defendants' statistical study
offered in this case "did not constitute `some evidence tending to
show the existence of the essential elements of' a selective-
prosecution claim," 116 S. Ct. at 1489 (quoting Berrios, 501 F.2d at
1211).

IV

The district court summarily concluded in this case that Olvis and
Palmer satisfied the second prong of the selective-prosecution claim
-- that the government acted with discriminatory intent -- relying
solely upon the statistical evidence they presented. The court

                    10
explained that "[i]nadequately explained evidence of statistical dispar-
ity, as presented in this case, is a nonfrivolous showing of discrimina-
tory intent" and found "instructive," but"advisory," a similar type of
analysis conducted by the Ninth Circuit in United States v.
Armstrong, 48 F.3d 1508 (9th Cir. 1995). Unfortunately, when the
district court decided this case, it did not have the benefit of the
Supreme Court's recent decision rejecting the Ninth Circuit's analysis
in Armstrong. 116 S. Ct. at 1488. In reversing the court of appeals'
discovery order, the Supreme Court specifically held that absent an
appropriate basis for comparison, statistical evidence alone cannot
establish any element of a discrimination claim. Id. at 1488-89. Even
if the study had a basis for comparison that showed discriminatory
effect, it would not necessarily prove discriminatory intent. This is
consistent with the general rule that in cases involving discretionary
judgments "essential to the criminal justice process," statistical evi-
dence of racial disparity is insufficient to infer that prosecutors in a
particular case acted with a discriminatory purpose. See McCleskey,
481 U.S. at 297 (holding that statistical evidence that race played a
role in other death penalty cases was insufficient to create inference
that prosecutors sought death penalty against particular defendant
because of his race).

In considering the defendants' informal study, the district court
also erred in apparently imposing a duty on the government to "ex-
plain [the] evidence of statistical disparity" that Olvis and Palmer had
presented. The court noted that the defendants' informal study, if left
unexplained, demonstrated discriminatory intent. By creating a pre-
sumption that unexplained statistical evidence of racial disparity
proves racial animus, the court imposed on the government the bur-
den of disproving such animus. As already noted, however, the defen-
dants bear the burden of establishing all elements of their selective-
prosecution claim and, to obtain discovery on such a claim, the bur-
den of making a credible showing of "some evidence" on each ele-
ment. By ruling that defendants can meet these demanding burdens
by presenting a study of the type they presented in this case and
thereby shifting to the government the onus of dispelling a presump-
tion of discrimination would open virtually every prosecution to a
claim for selective prosecution.

                    11
V

On the record presented to the district court, we conclude that Olvis
and Palmer have failed to carry their burden of producing some evi-
dence to make a credible showing of both discriminatory effect and
discriminatory intent. Accordingly, the district court erred in ordering
the United States to provide discovery on its criteria for selecting
whom to prosecute. We reverse the district court's dismissal order
and remand this case with instructions to reinstate the indictment and
for further proceedings.

REVERSED AND REMANDED

                    12
