517 U.S. 456 (1996)
In April 1992, respondents were indicted in the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack), conspiring to distribute the same, and related federal firearms offenses.1 Federal and local agents, using confidential informants, made a series of purchases of crack from respondents and observed firearms during several transactions.2 Respondents were arrested and evidence, including additional crack and a loaded gun, was recovered.3
In response to the indictment respondents moved for discovery or dismissal, alleging selective prosecution on racial grounds.4 They submitted an affidavit from a paralegal specialist at the Office of the Federal Public Defender stating that, in every one of 24 § 841 or § 846 cases closed by that office during 1991, the defendant was black, and a study listing those 24 cases with limited information about race and case status.5 The Government opposed discovery, noting that respondents offered no evidence that the Government had prosecuted nonblack defendants differently or had failed to prosecute them.6
The District Court ordered expansive discovery: a list of all cases from the prior three years in which the Government charged both cocaine and firearms offenses, the race of defendants in those cases, the levels of law enforcement involved, and the Government's criteria for deciding to prosecute federal cocaine offenses.7 The Government moved for reconsideration and submitted affidavits and other evidence explaining the basis for prosecuting respondents and disputing the inference of selective prosecution.8 Agents and an Assistant United States Attorney averred that race played no role in the investigation and that the case met ordinary prosecutorial criteria given the quantity of crack, multiple sales, firearms violations, strong evidence, and defendants' criminal histories.9 The Government also submitted a published DEA study discussing the dominance of particular groups in large-scale crack trafficking.10
The District Court denied reconsideration and, when the Government refused to comply with the discovery order, dismissed the indictment.11 A divided Ninth Circuit panel reversed; the en banc Ninth Circuit affirmed the dismissal, holding that a defendant need not show the Government failed to prosecute similarly situated others to obtain discovery.12 The Supreme Court granted certiorari to decide the appropriate standard for discovery on a selective-prosecution claim.13
Whether a defendant claiming selective prosecution on the basis of race must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races to obtain discovery?14
A defendant seeking discovery on a selective-prosecution claim must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races.15 This requirement follows from the elements of a selective-prosecution claim, which demand proof of both discriminatory effect and discriminatory purpose under equal protection principles, and from the need to protect prosecutorial discretion from undue judicial intrusion.16
Yes. Respondents' evidence consisted solely of a study showing that all 24 defendants in the federal crack cases closed by the Federal Public Defender's office in 1991 were black, together with affidavits containing anecdotal references to state-court prosecutions.17 That evidence identified no nonblack individuals who were similarly situated in terms of drug quantity, firearms involvement, or criminal history yet were not federally prosecuted.18 The Government's affidavits, by contrast, detailed that the decision to prosecute respondents rested on ordinary criteria including the amount of crack, multiple transactions, presence of firearms, strength of the evidence, and prior records.19
Because respondents supplied no credible evidence that similarly situated nonblack suspects had been treated differently, they failed to meet the threshold required for discovery.20
Related opinions on this issue
I join the Court's opinion, but only insofar as the Court's discussion of Federal Rule of Criminal Procedure 16 is limited to the issue presented in this case.23
I join the Court's opinion.24 I do not read the opinion to create a broad limitation on discovery under Rule 16 beyond the precise question presented: whether the phrase "defendant's defense" in Rule 16(a)(1)(C) encompasses allegations of selective prosecution.25 I agree with the Court that it does not for the reasons stated in the opinion.26
I join the opinion with the caveat that it should not be read as foreclosing other questions not presented for review.27
I concur in part and join the judgment, but I write separately because I do not agree that Rule 16 limits a defendant's discovery rights to documents related only to the Government's case in chief.28 The phrase "material to the preparation of the defendant's defense" is broad and can encompass a range of matters including affirmative defenses, unrelated constitutional claims, and other defenses not strictly responsive to the Government's case in chief.29
The Rule's three categories—items material to preparation of the defendant's defense, items intended for use by the Government as evidence in chief, and items obtained from or belonging to the defendant—appear to form a three-part classification rather than an invitation to import a narrow case-in-chief limitation into the first category.30 Even accepting the majority's analytical approach, however, I agree with the Court that respondents here failed to meet the threshold showing necessary for discovery.31 If the selective-prosecution claim were well founded, it should have been feasible for respondents to identify nonblack individuals who could have been prosecuted federally for similar conduct but were not.32
Federal prosecutors enjoy a presumption of proper discharge of official duties, but the possibility that racial or political animus may affect charging decisions cannot be ignored.33 The District Court here, in light of several circumstances, concluded that respondents' evidentiary showing warranted further investigation.34 The court's exercise of discretion should be evaluated against (1) the extreme severity of federal penalties for crack offenses created by the Anti–Drug Abuse Act of 1986 and related provisions, which equate a small amount of crack with much larger quantities of powder cocaine and produce dramatically longer federal sentences; (2) the disparity between federal and state penalties for similar conduct, which can be substantial and often much harsher in the federal system, especially for crack; and (3) the undisputed racial disparity in enforcement: a disproportionate number of federal crack offenders are black, even though crack use and involvement are not limited to blacks.35
Respondents submitted a study showing that 24 of 24 defendants in § 841 or § 846 cases closed by the Federal Public Defender's Office in 1991 were black, and affidavits by attorneys with substantial experience in both federal and state courts stating that they had observed nonblack crack cases handled in state court but not in federal court.36 The majority characterizes these affidavits as anecdotal or hearsay, but at least one affidavit reported firsthand observations by a practicing federal and state defense attorney and was not objected to by the Government.37 The District Court was entitled to credit such affidavits and to order limited discovery to test the Government's explanation for the apparent pattern.38
Even if respondents failed to identify by name nonblack individuals they contend should have been federally prosecuted, the District Court could properly take judicial notice that such nonblack defendants exist and require the Government to explain its prosecutorial choices.39 Given the severe consequences of federal crack prosecutions and the documented racial disparities, it was within the District Judge's discretion to demand an explanation from the Government.40 The Court errs in concluding that the District Court exceeded its power or abused its discretion in ordering discovery.41