                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-4799


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARY DURDEN BRADDOCK; ROY WILSON BRADDOCK,

                Defendants - Appellants.



                             No. 10-4802


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JONATHAN LEVINER,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Florence.        Cameron McGowan Currie,
District Judge. (4:09-cr-01173-CMC-3; 4:09-cr-01173-CMC-5)


Submitted:   December 21, 2010             Decided:   February 3, 2011


Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Lionel S. Lofton, LOFTON AND LOFTON, Charleston, South Carolina;
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellants.      William N. Nettles, United
States Attorney, Nathan S. Williams, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Mary     Durden       Braddock,     Roy     Wilson    Braddock,      and

Jonathan Leviner appeal from their convictions following guilty

pleas to offenses relating to illegal cockfighting and gambling

activities. 1      On    appeal, they challenge the district court’s

denial of their motion to dismiss for selective prosecution or,

in the alternative, for discovery in support of their selective

prosecution claim.        Finding no reversible error, we affirm.

            We   review     de    novo   a   district    court’s       denial   of   a

motion to dismiss an indictment where the denial depends on a

question of law.          United States v. Hatcher, 560 F.3d 222, 224

(4th Cir. 2009).         The government ordinarily has wide latitude in

deciding whether to prosecute; however, equal protection forbids

basing the decision “on ‘an unjustifiable standard such as race,

religion, or other arbitrary classification.’”                   United States v.

Armstrong, 517 U.S. 456, 464 (1996) (quoting Oyler v. Boles, 368

U.S. 448, 456 (1962)).            “In order to dispel the presumption that

a   prosecutor     has    not     violated    equal   protection,       a   criminal

defendant     must      present    ‘clear     evidence    to     the    contrary,’”

      1
       Mary Braddock and Roy Braddock each were convicted of one
count of conspiracy to violate the Animal Welfare Act and to
engage in an illegal gambling business, in violation of 18
U.S.C. § 371 (2006).    Leviner was convicted of one count of
knowingly sponsoring or exhibiting an animal in an animal
fighting venture, in violation of 7 U.S.C. § 2156(a)(1) (2006)
and 18 U.S.C. § 2 (2006).



                                         3
demonstrating         that     the     government             was     motivated        by     a

discriminatory purpose to adopt a prosecutorial policy with a

discriminatory effect.            Id. at 465.             To make this showing, a

defendant     must         establish     that           (1)     “similarly           situated

individuals      of    a     different   race       were       not        prosecuted”;      and

(2) “that   the       decision    to   prosecute         was    invidious       or    in    bad

faith.”     United States v. Olvis, 97 F.3d 739, 743 (4th Cir.

1996) (internal quotation marks and citations omitted).

            We also review de novo a district court’s disposition

of a motion for discovery in support of a selective prosecution

claim.    United States v. Lighty, 616 F.3d 321, 370 (4th Cir.

2010).    Because discovery imposes high costs on the government,

the standard for obtaining discovery in support of a selective

prosecution claim is only slightly lower than for a dismissal;

rather    than    presenting         clear       evidence,          the    defendant       must

produce some      evidence       demonstrating          discriminatory          effect      and

discriminatory intent.           Olvis, 97 F.3d at 743.

            Appellants argue that the district court should have

dismissed the indictment or granted leave to obtain discovery

because they, as Caucasians, were prosecuted federally, while

two   Hispanic    co-conspirators            and    thirty-six            Hispanic     people

arrested in connection with another cockfighting ring in Hampton

County,   South       Carolina,      faced       only   state       charges.         For    the



                                             4
reasons     that   follow,       we    disagree,         and     thus    hold        that    the

district court did not err when it dismissed Appellants’ motion.

             First,      Appellants         did     not        show     that       they     were

similarly    situated      to    the     Hispanic         defendants         who     were    not

prosecuted federally.           “[D]efendants are similarly situated when

their     circumstances         present       no        distinguishable            legitimate

prosecutorial      factors       that       might       justify       making         different

prosecutorial      decisions      with      respect       to    them.”         Id.    at    744.

Here,     Appellants      were        engaged      in     a     fairly       sophisticated

interstate cockfighting venture that was dissolved by way of a

federal     undercover     investigation.                 The     evidence         Appellants

produced from the other cockfighting ring, on the other hand,

shows only that the defendants were involved in one instance of

cockfighting,      which    did       not   necessarily          involve       any     use   of

interstate    commerce      as    required         by    the    statutes       under       which

Appellants were charged.              The only similarities that Appellants

established were that both their case and the Hampton County

case involved cockfighting and the South Carolina Department of

Natural     Resources,       a        state       agency.             Such      superficial

similarities       are     insufficient            to     show        that      individuals

prosecuted differently were similarly situated. 2


     2
        Although Appellants argue that they were selectively
prosecuted as compared to their Hispanic co-conspirators, they
made no attempt to show that they and their co-conspirators were
(Continued)
                                              5
            Additionally,      Appellants      did   not        show     that    the

Government’s decision to prosecute them was invidious or in bad

faith.     Instead,    in    their   motion   to   dismiss      and     on   appeal,

Appellants contend that the only logical conclusion to be drawn

from the fact that Appellants were prosecuted federally and the

Hispanic defendants were not is that the decision was invidious

and in bad faith.      This conclusory argument is not evidence that

the prosecutor acted in bad faith or with discriminatory intent.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions   are    adequately      presented    in     the    materials

before   the   court   and    argument     would   not    aid    the    decisional

process.

                                                                             AFFIRMED




similarly situated.    We therefore hold that Appellants also
failed to satisfy their burden with respect to the Hispanic co-
conspirators.



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