United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, District Judge.
On February 6, 2014, a grand jury returned an indictment charging Wigberto Viera, a/k/a "Roberto, " a/k/a "Wiz, " Louie Santiago, a/k/a "Lionel, " a/k/a "L, " a/k/a "Leonel, " Ernesto Colon, Eduardo Dejesus, and Eva Figueroa with conspiracy to distribute narcotics, and conspiracy to commit Hobbs Act robbery. Viera, Colon, Dejesus, and Figueroa were also charged with possession of a firearm during the charged conspiracies, and Santiago with brandishing a firearm during the charged conspiracies. The charges arose from a sting operation conducted by the Drug Enforcement Administration ("DEA"), which culminated in the defendants' arrest on January 8, 2014.
Defendants Viera and Colon (together "Defendants") move to compel discovery under Rule 16 of the Federal Rules of Criminal Procedure and the Constitution. Doc. 93. The moving Defendants contend the requested discovery is necessary to file a subsequent pretrial motion to dismiss the indictment on the basis of selective prosecution and enforcement in violation of their Equal Protection rights under the Fifth and Fourteenth Amendments of the United States Constitution. Docs. 94, 95. Santiago requests permission to join in the instant motion. Doc. 99.
For the reasons discussed below, Defendants' motion is DENIED.
A. Discovery Pursuant to Rule 16
To the extent Defendants seeks to compel discovery under Rule 16, Defendants' motion is denied. The Supreme Court in United States v. Armstrong, 517 U.S. 456, 463 (1996), held "that Rule 16(a)(1)(C) authorizes defendants 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." As such, Defendants cannot compel discovery under Rule 16.
B. Discovery Pursuant to U.S. v. Armstrong
While prosecutors have "broad discretion to enforce the Nation's criminal laws, " this discretion is "subject to constitutional constraints." Id. at 464. The equal protection clause of the Fifth Amendment prohibits the government from using "unjustifiable standard such as race, religion, or other arbitrary classification" as a basis for prosecution. Id. "A defendant may demonstrate that the administration of a criminal law is directed so exclusively against a particular class of persons with a mind so unequal and oppressive' that the system of prosecution amounts to a practical denial' of equal protection of the law." Id. at 464-65 (citing Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886)). To prove a claim for selective prosecution, "[t]he claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose." Id. at 465. "To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." Id.
"The standard for obtaining discovery on a selective prosecution claim, " while "not identical to the standard applied to the merits, " is "correspondingly rigorous." United States v. Thompson, No. 13 Cr. 378 (AJN), 2013 WL 6246489, at *5 (S.D.N.Y. Dec. 3, 2013) (citing Armstrong, 517 U.S. at 468 ("the rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.")). For a defendant to be entitled to discovery on the issue of selective prosecution, a defendant must produce "some evidence tending to show the existence" of discriminatory effect and intent, including "that similarly situated defendants of other races could have been prosecuted, but were not[.]" Armstrong, 517 U.S. at 468-69; see also United States v. Al Jibori, 90 F.3d 22, 25 (2d Cir. 1996) ("Under the Armstrong standard a defendant must make at least a credible showing of different treatment of similarly situated persons to establish a colorable basis for a finding of discriminatory effect and consequently to become eligible for discovery.") (internal citations and quotations omitted); Thompson, 2013 WL 6246489, at *5.
Here, Defendants rely on two categories of information to meet Armstrong 's standard. First, Defendants identify statistical information regarding (1) the racial composition of defendants charged in "phony-stash house" cases pending in the Southern District of New York; (2) the general racial composition of Manhattan, the Bronx and the Southern District of New York based on the 2010 census data; (3) the United States Sentencing Commission's data on the racial composition of offenders convicted from 2006 through 2012 under the robbery guideline that Defendants allege covers the kind of charges at issue in "phony-stash house" cases; (4) the New York State Division of Criminal Justice Services' data on the number of violent-felony offenses in New York State from 2009 through 2013; (5) the number of felony robbery convictions in New York State in 2013; and (6) the New York State Department of Corrections' ("DOCS") data on the racial composition of the state prison population as of January 2014. Declaration of John Diaz ("Diaz Decl.") ¶¶ 14-17, 23-27; Defs.' Mem. at 5-8. Second, Defendants rely on two draft transcripts from another "phony-stash house" case pending in the Southern District of New York, United States v. Rodriguez, 13 Cr. 87 (CM),  where the DEA's confidential informant ("CI-2") explicitly refers to the defendant's and the defendant's coconspirators' race. Diaz Decl. ¶¶ 18-22; Defs.' Mem. at 5.
1. Statistical Evidence
Regarding the first category of information, Defendants contend that these statistics- showing that the Southern District of New York is "predominately white" and that "white people also commit crimes" but that the individuals targeted in "phony-stash house" in this district are all people of color-sufficiently shows "some evidence" of discriminatory effect and intent to warrant discovery. Defs.' Mem. at 11. However, Defendants do not identify, directly or through circumstantial evidence, individuals that participated in similar criminal conduct but were not prosecuted as required under Armstrong. See Armstrong, 517 U.S. at 469-70 (denying discovery to defendants claiming they were racially selected for crack cocaine prosecutions where defendants' evidence consisted of an affidavit listing 24 crack cocaine cases as all involving African American defendants because the lists did not show that "similarly situated persons of other races" were not prosecuted in federal court and "failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted."); United States v. Bass, 536 U.S. 862, 863-64 (2002) (per curiam) (finding defendants "failed to submit relevant evidence that similarly situated persons were treated ...