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Volume 8 no. 5-6 SUPREME COURT RULES IN CRACK COCAINE CASE
On May 13, 1996, the Supreme Court ruled 8-1 in United States v. Armstrong et.al. (No. 95-157) that Armstrong and other defendants had no grounds to obtain discovery of certain Government materials to support their claim of selective prosecution based on race, because the defendants failed to show that "the Government declined to prosecute similarly situated suspects of other races."
BACKGROUND/LOWER COURT ACTION
After being indicted in federal court for federal criminal offenses involving conspiracy to distribute crack cocaine (cocaine base), and federal firearm offenses, Armstrong and the other defendants filed a motion for discovery and/or dismissal of the indictment, alleging that they were selected for prosecution because they are African-American. Discovery is the process of obtaining information which by right can be requested from another party prior to trial. The discovery motion sought to ascertain the following information:
- "The race of other individuals prosecuted for crack distribution either under federal statutes or under state statutes applicable to the distribution of cocaine base;
- "the race of individuals who had been arrested in federal or joint federal-state investigations;
- "the race of individuals who 'use, distribute, or possess with intent to distribute cocaine base,' and
- "the standards regarding which crack cases will be accepted for federal prosecution and when such cases will be referred or left to the state authorities for prosecution."
In support of their motion, the defendants submitted an affidavit showing that in every one of the 24 crack distribution and conspiracy cases closed by the prosecutor's office during 1991, the defendant was black.
The prosecutors opposed the discovery motion, asserting that defendants had neither alleged nor demonstrated "that the Government...acted unfairly or...prosecuted non-black defendants or failed to prosecute them."
The District Court granted the discovery motion and instructed the Government to "provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, identify the race of the defendants in those cases, identify what levels of law enforcement were involved in the investigations of those cases, and explain its criteria for deciding to prosecute those defendants for federal cocaine offenses." The Government asked the District Court to reconsider its disc overy order positing that they were not singling out blacks for cocaine prosecution. They submitted an affidavit in which an Assistant U.S. Attorney stated that the decision to prosecute in these crack related cases met the general criteria for prosecuti on of such cases: more than 100 grams of crack, multiple sales involving multiple defendants, suggesting "a fairly substantial crack cocaine ring."
The Government also cited a 1989 Drug Enforcement Administration report which found that, "large-scale, interstate trafficking networks controlled by Jamaicans, Haitians, and Black street gangs dominate the manufacture and distribution of crack."
The defendants, responded with an affidavit from the Board of Directors of the L.A. Criminal court Bar Association Indigent Defense panel claiming that "there are an equal number of Caucasian users and dealers." Additional evidence submitted by defendan ts showed that persons convicted of Federal crack violations are issued more severe sentences than if convicted of possession of powder cocaine. The Anti-Drug Abuse Act of 1986 considers one gram of crack as the equivalent of 100 grams of powder cocaine, and thus possession of 50 grams of crack cocaine and 5,000 grams of powder cocaine are equally subject to minimum ten year prison sentences.
The defendants also pointed out the differences between potential state and federal sentences for possession of crack cocaine; they claimed that the Government's decision to pursue federal charges "was a momentous one" in that "the minimum and maximum s entences imposed by federal law are far higher than those established by California law. This unexplained difference between state and federal crack cocaine sentences further convinced the defendants that they had been selectively prosecuted. In respons e to the defendants claims, the district judge reviewed the criteria used in deciding whether a crack cocaine case would be filed in a state versus a federal court. The chart below illustrates the differences between the defendants' potential state and f ederal crack cocaine sentences. For example, if Armstrong's case was filed in state court he could receive a maximum of 9 years in prison; however, in federal court, the minimum sentence is 55 years and the maximum sentence is life in prison. (Please no te: These sentences below include "enhancements, as provided by law, for prior convictions and for firearms violations.")
The District Court denied the Government's motion for reconsideration. The Government refused to comply with the discovery order and the case against Armstrong was dismissed.
COURT OF APPEALS (NINTH CIRCUIT)
A divided three-judge panel of the Court of Appeals for the Ninth circuit reversed the lower court decision and held that the respondents failed to meet the requirements to obtain discovery which must "provide a colorable basis for believing that others similarly situated have not been prosecuted." The Court of Appeals then voted to rehear the case en banc and affirmed the lower court ruling holding that the burden of proof does not lie with the defendant, i.e., "a defendant is not required to demonstra te that the government has failed to prosecute others who are similarly situated." The Government appealed to the Supreme Court.
SUPREME COURT
The Supreme Court in a majority by Chief Justice Rehnquist with Justices O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer all agreeing in the result, reversed the Ninth Circuit ruling and remanded the case to the lower court. The Court hel d that in order for a defendant to be entitled to discovery based on a claim of selective prosecution because of race, he or she must meet the threshold requirement of showing that the Government did not prosecute "similarly situated suspects of other ra ces."
The Rehnquist opinion rests on two bases: first, his reading of the scope of Federal Rule of Criminal Procedure 16, which governs discovery in criminal cases and second, requirements for a selective-prosecution claim established by Yick Wo V. Hopkins, 11 8 U.S. 356, 373 (1886) and Ah Sin v. Wittman 198 U.S. 500 (1905).
Federal Rule of Criminal Procedure 16 provides, in pertinent part:
"Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or custody or control of the government, and which are mater ial to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.
According to the Court "material to the preparation of the defendant's defense" refers to information the defendant could use to "refute the Government's arguments that the defendant committed the crime charged." Armstrong and other defendants were not ch allenging the criminal charge of possession of crack cocaine, i.e., "the case-in-chief". The respondents were requesting information to prove that they were selectively prosecuted because of their race. The Court held that "Rule 16...authorizes defendan ts to examine Government documents material to the preparation of their defense against the Government's case-in-chief, but not to the preparation of selective-prosecution claims." The Court posits that a selective-prosecution claim is not a defense on th e merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.
The requirements for selective prosecution established by Yick Wo and Ah Sin respectively assert that: 1) "[t]he claimant must demonstrate that the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory pu rpose'"; and 2) to establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.
The Court criticized the Court of Appeals for reaching its decision in part on the "presumption that people of all races commit all types of crimes-not with the premise that any type of crime is the exclusive province of any particular racial or ethnic g roup." The Court goes on to cite United States Sentencing Commission statistics' which show that "more than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black,...93.4% of convicted LSD dealers were white,...and 91% of those co nvicted for pornography or prostitution were white,..."
The opinion states in pertinent part:
"In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents.... We think the required threshold- a credi ble showing of different treatment of similarly situated persons- adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution."
CONCURRING OPINION(S)
Justice Souter concurred with all aspects of Court's opinion except "in its discussion of the Federal Rule of Criminal Procedure 16." Souter emphasized that the Court's holding that "Rule 16...authorizes defendants to examine Government documents mater ial to the preparation of their defense against the Government's 'case-in-chief'" only applies to cases that involve selective prosecution claims.
In concurrence with the Court's opinion, Justice Ginsburg contended:
"As I see it, the Court has decided a precise issue: whether the phrase 'defendant's defense', as used in Rule 16..., encompasses allegations of selective prosecution. I agree with the Court, for reasons the opinion states, that [Rule 16]...does not ap ply to selective prosecution claims....With the caveat that I do not read today's opinion as precedent foreclosing issues not tendered for review, I join the Court's opinion."
Justice Breyer, concurring in part and concurring in the judgement, agreed that the defendants' discovery request failed to "satisf[y] the Rule's requirement that the discovery be 'material to the preparation of the defendant's defense.'" Breyer, howeve r, expressed his disagreement with the Court's interpretation of Federal Criminal Procedure 16:
"I write separately because, in my view, Federal Rule of Criminal Procedure 16 does not limit a defendant's discovery rights to documents related to the Government's case-in-chief.... A 'defendant's defense' can take many forms, including (1) a simple r esponse to the Government's case-in-chief, (2) an affirmative defense unrelated to the merits (such as a Speedy Trial act claim), (3) an unrelated claim of constitutional right, (4) a foreseeable surrebuttal to a likely Government rebuttal, and others. T he Rule's language does not limit its scope to the first item on this list. To interpret the Rule in this limited way creates a legal distinction that, from a discovery perspective, is arbitrary. It threatens to create two full parallel sets of criminal discovery principles. And, as far as I can tell, the interpretation lacks legal support."
DISSENTING OPINION
Justice Stevens disagreed with the "Court's apparent conclusion that no inquiry was permissible." Justice Stevens maintains:
"The District Judge's order should be evaluated in light of three circumstances that underscore the need for judicial vigilance over certain types of drug prosecutions. First, the Anti-Drug Abuse Act of 1986 and subsequent legislation established a regim e of extremely high penalties for the possession and distribution of so-called "crack" cocaine. Those provisions treat one gram of crack as the equivalent of 100 grams of powder cocaine. The distribution of 50 grams of crack is thus punishable by the sam e mandatory minimum sentence of 10 years in prison that applies to the distribution of 5,000 grams of powder cocaine....
"Second, the disparity between treatment of crack cocaine and powder cocaine is matched by the disparity between the severity of the punishment imposed by federal law and that imposed by state law for the same conduct....
"Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Ei ghty-eight percent of such defendants were black."
In response to the question of whether or not the respondents had a right to discovery Justice Stevens asserts:
"I thought it was agreed that defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one. Certainly evidence based on a drug counselor's personal observations or on an attorney's practice in two sets of court, state and federal, can 'ten[d] to show the existence' of a selective prosecution.
"Even if respondents failed to carry their burden of showing that there were individuals who were not black but who could have been prosecuted in federal court for the same offenses, it does not follow that the District Court abused its discretion in orde ring discovery. There can be no doubt that such individuals exist,and indeed the Government has never denied the same. In those circumstances, I fail to see why the District Court was unable to take judicial notice of this obvious fact and demand inform ation from the Government's files to support or refute respondents' evidence.... But as discussed above, in the case of crack far greater number of whites are believed guilty of using the substance. The District Court, therefore, was entitled to find the evidence before her significant and to require some explanation from the Government."
  
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