CA1: Selya and selective prosecution

US v. Lewis, No. 07-1249.  Okay, this is a selective prosecution appeal.  Since Selya writes it and the defendant is a black Muslim accused of fairly innocuous false statements on the forms one must fill out when one gets a gun, who also might have gone to some countries with less than sterling reputations we know where it is going.  In the past three years nobody else had been prosecuted for this in the Disitrct, and the USAO seems (this isn't clear) to have deviated from its normal practice.  And, as Selya always does when send someone to jail, he used big words so that he can seem really smart.

Because it is pretty obvious that Selya isn’t take the thing seriously, I find it difficult to take anything that he says seriously.  But, as any good lawyer must do, he must try pretend that the court has some coherent theory of justice interwoven within its rhetoric.  To give you an idea of where Selya is coming from look at this choice line:

We live in an era in which the incidence of violent crime is high and terrorism is a persistent threat. In that climate, a false statement in a firearms application raises a modicum of concern, and the level of concern escalates almost exponentially as the number of weapons and the number of false statements grow.

This case comes to the First on an appeal from a denial of a motion for discovery in aid of his selective prosecution argument.

Keep reading. 

Selya first leans on the “law of the circuit” “rule” regarding standards of review  He says “The fact that our earlier cases have not formally adopted a standard of review does not excuse us from following the law of the circuit rule.”  I don’t believe this “meta rule” is actually the law in the First Circuit.  In fact, various Courts of Appeal take a narrower view of this issue, holding that only explicit adoptions of a rule “absolutely” bind future panels.  (There are actually some “splits”  on this issue (if they can be called that), between circuits.)  Whatever the case, since Selya isn’t taking this issue too seriously, and I am not getting paid to do this, I won’t provide the cites for these things at the moment.  Rest assured, Selya doesn’t provide citations for his really broad version of his “law of the circuit” rule, either. He uses the words 1) talismanic; and 2) isthmian.

Going on to the substance, the defendant argues that the First should really (even under an abuse of discretion standard) “parse out the district court's determination regarding what constitutes a similarly situated pool of offenders and review that determination de novo.”  But, Selya says that THIS is fact-intensive and therefore deference must be paid to the District Court. 

But, this isn’t good enough.  He prattles on about how prosecutors must be accorded deference in their charging decisions and how they enjoy a presumption of “regularity” and “good faith.”  And why is this such presumption so great?  Because “In particular, the presumption enhances the efficacy of prosecutorial strivings to enforce the law while at the same time limiting courts' abilities to circumscribe executive authority in areas outside the realm of judicial competence.”  Ah, I see.  So the executive’s decisions as to what people it wants to put into a hole, regardless of the objections need to be respected.  Strangely, the defendant is raising what appears to be a form of equal protection challenge in which (if it came up in the injunctive context) would require the government to meet a very high burden (“strict scrutiny” is what the kids call it these days.)  No matter.  Deference to the executive it is.  At least in Selya’s world.

So, despite the fact that the defendant is arguing that he was selected for prosecution because of his religion, race, and political beliefs, the defendant has to present evidence not just that he is a Muslim, black, and the subject of an indictment, but also as to the subjective motivations of various prosecutors.  And this evidence needs to be “clear evidence.”   Clear evidence is greater than “substantial evidence” which is what then-Judge Mukasey said that the government needed to present in order to detain any American (regardless of whether they passed the bar) indefinitely without any further judicial review.  Under the lower, clear evidence standard, Judge Mukasey, further argued that any forms of interrogation of any American (even if they summered at a good firm) were permissible.

Selya then tries to come up with a definition of “similarly situated” to explain how the defendant isn’t really being singled out for his race or religion.  Despite jettisoning principles of equal protection, Selya says “in the selective prosecution context, classic equal protection principles light our path and limn the attributes of one who is similarly situated... A similarly situated offender is one outside the protected class who has committed roughly the same crime under roughly the same circumstances but against whom the law has not been enforced.”  After laying this out he gets mushy and talks about how the District Court needs to analyze everything and concludes “In this case, the district court took account of these precepts and configured the pool of similarly situated offenders with reference to the nature and numerosity of the offenses and the incidence of possible links to terrorism.”  Then, once he concludes that he was treated the same as “similarly-situated” offenders he rejects any suggestion that the US Attorneys office deviated from its own policies (even though there seems to be some indication of this).

Then he talks about credibility of witnesses, which is rather predictable and not worth the time.