United States v. Armstrong

PETITIONER: United States
LOCATION: North Carolina General Assembly

DOCKET NO.: 95-157
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 517 US 456 (1996)
ARGUED: Feb 26, 1996
DECIDED: May 13, 1996

Barbara E. O'Connor - Argued the cause for the respondents
Drew S. Days, III - Argued the cause for the petitioner

Facts of the case

Christopher Lee Armstrong and others were indicted on federal charges of "conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same." The Federal Bureau of Alcohol, Tobacco, and Firearms had monitored Armstrong and others prior to their indictment and arrest. Armstrong filed a motion for discovery or dismissal, alleging that he was selected for prosecution because he was black. The District Court granted the discovery order. It ordered the government to provide statistics on similar cases from the last three years. The government indicated it would not comply. Subsequently, the District Court dismissed the case. The government appealed. The Court of Appeals affirmed the dismissal. It held that the proof requirements for a selective-prosecution claim do not require a defendant to demonstrate that the government has failed to prosecute others who are similarly situated.


Must criminal defendants who pursue selective-prosecution claims demonstrate people of other races were not prosecuted for similar crimes?

Media for United States v. Armstrong

Audio Transcription for Oral Argument - February 26, 1996 in United States v. Armstrong

William H. Rehnquist:

We'll hear argument next in Number 95-157, United States v. Christopher Lee Armstrong.

General Days, you may proceed whenever you're ready.

Drew S. Days, III:

Thank you, Mr. Chief Justice, and may it please the Court:

Selective prosecution claims are among the most difficult our courts have to face, for they require striking an especially delicate balance between protecting prosecutorial discretion and decisionmaking from improper, outside interferences and scrutiny while ensuring that the law is in force in conformity with the Constitution and the rule of law.

This Court has noted that judicial scrutiny of a prosecutor's charging decision imposes high costs on the criminal justice system, and that since tradition and experience have taught that most prosecutors will faithfully obey their duty, courts should properly be hesitant to examine the decision whether to prosecute.

But courts must also discharge their responsibility to ensure that the Government enforces the laws evenhandedly, rather than based upon invidious discrimination, but when the Government acts with an evil eye and an unequal hand, rather than in a manner faithful to equal protection and due process, both those directly affected by that conduct in the rule of law are its victims.

This Court's decisions, especially in Yick Wo and Wayte, have struck this balance on the merits by requiring that, absent proof of an explicitly discriminatory classification, a criminal defendant alleging selective prosecution must make two showings in order to prevail, first, that persons in similar circumstances have not been prosecuted and, second, that the difference in treatment is motivated by an intent to discriminate against the group to which the defendant belongs.

In other words, there has to be a showing of both discriminatory effect and discriminatory purport.

This case, however, presents for decision a question that this Court has yet to resolve, namely, what standards should Federal courts utilize in determining whether a criminal defendant alleging selective prosecution is entitled to discovery.

Sandra Day O'Connor:

General Days, do you agree that the standard on this discovery claim should be whether a colorable basis is made out for the claim?

Is that the standard?

Is that the standard most commonly used in the Federal courts?

Drew S. Days, III:

It is the locution that's used by most of the courts of appeals, Justice O'Connor.

Sandra Day O'Connor:

And do you accept that--

Drew S. Days, III:

Well, not completely--

Sandra Day O'Connor:

--or do you ask us to adopt some other standard?

Drew S. Days, III:

--Well, I think that, although the courts have used various formulations, the bottom line is that all the courts of appeals, with the exception of the Ninth Circuit, that have addressed this issue have required that there be a showing of individuals who are similarly situated to the defendant.

Sandra Day O'Connor:

Well, is it your argument that that showing is necessary to establish a colorable basis?

How do you articulate the standard that the court should apply?

Drew S. Days, III:

The colorable basis terminology that's used... there have been references to prima facie evidence.

We think that the best standard is one derived from this Court's decision in Wade v. United States, that there has to be a substantial threshold showing.

That is, there has to be something more than assertions and generalized proffers on information and belief.

There has to be concrete evidence that the court can look to that leads it to believe that there's some basis for thinking that there is selective prosecution at work.

William H. Rehnquist:

I take it you have some reservation about phrases like, a colorable basis, as giving any real guidance to what to look for in the details.

Drew S. Days, III:

Precisely right, Mr. Chief Justice.

Ruth Bader Ginsburg:

Well, can you tell us what the details would be?

In a case like this, just what evidence that's accessible to the defendant would be necessary to establish a basis for discovery?

Drew S. Days, III:

Justice Ginsburg, the respondents have made the suggestion that the evidence that they need is within the control of the Government, but that is simply not so.

Ruth Bader Ginsburg:

But at least would you seek--

Drew S. Days, III:

There were many things that the respondents could have done, and let me lay them out.