The opinion of the court was delivered by: RICHARD ARCARA, District Judge
Defendant is charged in a one count indictment with a violation
of 18 U.S.C. § 242, alleging that he deprived another person of
her civil rights under color of law. More specifically, it is
alleged that on July 21, 2004 at the Rainbow Bridge border
crossing, defendant, a Border Protection Officer, assaulted Zhao
Yan, a Chinese national, by macing her, kicking her in the head
and striking her head onto the pavement. Immediately prior to his
encounter with Zhao Yan, defendant had intercepted a man who was
attempting to smuggle several pounds of marijuana into the United
States. Defendant contends that he believed that Zhao Yan and two
other women were with the smuggler and that he simply attempted
to apprehend them.
On September 30, 2004 defendant filed an omnibus motion seeking, inter
alia, dismissal of the indictment on the grounds of selective prosecution. On January 10, 2005 Magistrate Judge Hugh B. Scott issued a
Report and Recommendation recommending, among other things, that defendant's
motion to dismiss the indictment be denied.
On January 31, 2005, defendant filed objections to the
Magistrate Judge's recommendation that the motion to dismiss
based on selective prosecution should be denied. The defendant
did not object to the remainder of the Report and Recommendation.
The government filed a response to the defendant's objections on
February 22, 2005. Oral argument was scheduled for May 4, 2005,
but was deemed submitted on that date without argument.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de
novo determination of those portions of the Report and
Recommendation to which objections have been made. Upon a de
novo review of the Report and Recommendation, and after
reviewing the submissions from the parties, the Court adopts the
proposed findings of the Report and Recommendation.
The United States Supreme Court in United States v. Anderson,
517 U.S. 456
, 463, 116 S.Ct. 1480
, 1486 (1996), stated that a
selective prosecution claim is not a defense on the merits to the
underlying criminal charge, but "an independent assertion that
the prosecutor has brought the charge for reasons forbidden by
the Constitution." Id. The standard to establish such a claim, or even to obtain discovery on such a claim, is a
demanding one, as
[t]he presumption of regularity supports . . .
prosecutorial decisions and in the absence of clear
evidence to the contrary, courts presume that
[prosecutors] have properly discharged their official
Id. at 464 (internal citation and quotations omitted). However,
a prosecutor's discretion is not unfettered and "the decision
whether to prosecute may not be based on an unjustifiable
standard such as race, religion or other arbitrary
classification." Id. at 464 (internal citations and quotations
In order to establish a claim of selective prosecution, the
defendant must show:
(1) that, while others similarly situated have not
generally been proceeded against because of conduct
of the type forming the basis of the charge against
him, he has been singled out for prosecution, and
(2) that the government's discriminatory selection of
him for prosecution has been invidious or in bad
faith, i.e., based on such impermissible
considerations as race, religion or the desire to
prevent his exercise of constitutional rights.
United States v. Berrios, 501 F.2d 1207
, 1211 (2d Cir. 1974).
These two prongs are sometimes referred to as "discriminatory
effect" and "discriminatory purpose or intent." See Wayte v.
United States, 470 U.S. 598
, 608, 105 S.Ct. 1524, 1531 (1985). The defendant here fails to satisfy either prong of
the test for a claim of selective prosecution.
Defendant must demonstrate that others similarly situated to
him have generally not been prosecuted for conduct similar to
that for which he is being prosecuted. As defendant notes,
similarly situated does not mean identically situated and others
must have committed "the same basic crime in substantially the
same manner as the defendant." United States v. Smith,
231 F.3d 800 (11th Cir. 2000).
In support of his motion to dismiss the indictment, defendant
claims that eleven officers were "involved" in the incident at
the Rainbow Bridge. See Motion to Dismiss and Memorandum in
Support (Dkt # 12, Attachment 9) at 1. In his reply to the
government's response to his motion, defendant provides a list of
only four "witnesses" to the incident. See Reply (Dkt # 19) at
11. There is no evidence, however, that any other officer engaged
in conduct similar to defendant's alleged conduct.
Two of the officers defendant names as witnesses, Arcuri and
Zinnerman, were interviewed by the investigating agents, and the
agents' summaries of Arcuri's and Zinnerman's statements were
included in the affidavit in support of the criminal complaint
against defendant. Both Arcuri and Zinnerman stated that they
responded to defendant's call for assistance, that they observed defendant struggling with Zhao Yan, that they
attempted to assist defendant in restraining Zhao Yan and that
they witnessed defendant shove her into a wall, administer pepper
spray into her face, kick her in the head and strike her head
onto the pavement. Defendant has provided no evidence that any
other officer engaged in conduct similar to that of which he is
Defendant has failed, therefore, to demonstrate that other
officers engaged in conduct similar to his ...