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Ninth Circuit:
Defense Fails to Show Selective Prosecution in Riot Case
Opinion Says Defendants, Who Argued That Then-President Trump’s Promise to Prosecute ‘Anarchists’ in George Floyd Protests Was Political Targeting, Failed to Justify Discovery in Furtherance of Claim
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals held yesterday that two defendants, who were charged with arson relating to the burning of a police car during a Santa Monica protest over the death of George Floyd, failed to show that they were entitled to discovery in furtherance of a selective prosecution defense based on statements by then-President Donald Trump indicating that ‘anarchist agitators’ who destroyed property would be prosecuted.
Saying that the defendants failed to prove the necessary “discriminatory effect” of the decision to prosecute them, the court found that District Court Judge Fernando M. Olguin of the Central District of California had erred in ordering discovery relating to their selective prosecution claims.
Raising the defense were Nathan Wilson and Christopher Beasley, each of whom was arrested for igniting a patrol car on May 31, 2020, five days after Floyd’s death.
Citing statements by Trump and then-Attorney General William Barr directing the U.S. Attorney’s Office to be aggressive in charging violent demonstrators with federal crimes, Wilson and Beasley argued that they were unconstitutionally being targeted based on alleged anti-government viewpoints. They requested the dismissal of the indictment or, in the alternative, discovery on the selective prosecution claim.
District Court Proceedings
Olguin, an appointee of President Barack Obama, in granting discovery, said that the defendants had sufficiently shown discriminatory intent and effect to justify further investigation into the claim.
He accepted the defendants’ suggestion that their prosecutions must be compared to a “control group” consisting of “all individuals” who could be federally charged with arson within the Central District of California. Pointing out that the four George Floyd protest cases brought in the district were the first stand-alone arson charges brought since 2007, Olguin concluded that the defendants met their burden as to discriminatory effect.
As to discriminatory intent, the judge said that “there is evidence that the DOJ adopted a policy of targeting for federal prosecution those allegedly involved in criminal activity during the George Floyd protests.”
In lieu of complying with the discovery order, the prosecution asked Olguin to dismiss the indictments, saying the government would rather seek appellate review than produce any documents.
The defendants objected to the request, saying it was “a transparent attempt to enlist the Court in the government’s effort to subvert the rules, and to recast an unappealable discovery order as an appealable order dismissing the indictment.” Olguin responded that the appropriate remedy for failure to comply with the discovery order was to set a hearing for the U.S. Attorney’s Office to “show cause as to why it should not be held in contempt.”
However, he nonetheless elected to dismiss the indictment, without prejudice, saying:
“The court sees no point in going through the process of holding the government in contempt in order to provide it with the basis for an appealable order. Accordingly, the court will dismiss the Indictment without prejudice subject to refiling, if appropriate, at a later time.”
The prosecution timely appealed.
Forrest’s View
Circuit Judge Danielle J. Forrest, a Trump appointee, authored yesterday’s opinion, reversing the discovery order and dismissal. Circuit Judge Patrick J. Bumatay and District Court Judge James Donato of the Northern District of California, sitting by designation, concurred in the opinion but each wrote separately.
Forrest addressed the defendants’ assertion that the court lacks jurisdiction. She pointed out that, under 18 U.S.C. §3731, “we have jurisdiction over Government appeals from…an order ‘dismissing an indictment’ ” and was unpersuaded that the provision is inapplicable because the dismissal was ordered “without prejudice.”
Writing that “[t]his is not a close call,” the judge concluded:
“Nothing in the text of § 3731 indicates that appellate jurisdiction exists only for final decisions or orders. This contrasts with the statute governing appellate jurisdiction in civil cases, which does limit our jurisdiction to appeals ‘from all final decisions of the district courts.’….[T]he plain language of § 3731 makes multiple non-final decisions appealable. Thus, § 3731 is ‘a statutory exception to the final judgment rule.’ ”
Selective Prosecution
As to the selective prosecution claim, she said:
“A defendant seeking ‘discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent.’…. Here, the district court correctly articulated this governing test but erred in applying it.”
Turning to the “discriminatory effect” element, she explained that “a defendant must ‘produce some evidence that similarly situated defendants…could have been prosecuted, but were not.’ ”
Rejecting the view that that the comparison class accepted by Olguin represented “similarly situated” defendants, Forrest remarked:
“Defendants did not offer evidence, and the district court did not make any findings, about the nature of the proposed comparators other than that they committed a shared crime in a shared location. There are no facts indicating, for example, which of the other arsons identified were eligible for federal prosecution or if the arsons involved government property, were committed by defendants with criminal records, were committed by defendants in connection with the expression of ideas, or were publicly touted by the defendants….This is insufficient to satisfy the ‘rigorous’ standard that must be met before ordering the Government to produce selective prosecution discovery.”
Saying that “we resolve this case on the discriminatory-effect factor alone and decline to address whether Defendants presented evidence of discriminatory intent,” the jurist declared that “Defendants failed to meet their burden to produce some evidence that similarly situated individuals could have been prosecuted but were not.”
Bumatay’s View
Bumatay, also a Trump appointee, said:
“While I join the majority opinion showing that the district court botched the discriminatory-effect analysis, it’s worth explaining why the district court’s discriminatory purpose analysis was also flawed.”
He continued:
“When the government expressly targets arsonists, terrorists, violent anarchists, and the like, it is not evidence of discriminatory intent for a selective prosecution claim. Instead, it’s simply evidence of intent to enforce the law. And the Constitution makes clear that the decision to prioritize and prosecute certain crimes falls within the discretion of the Executive Branch.”
The jurist added:
“[J]ust because a prosecution follows political protests makes no difference. Indeed, violence is not immune from prosecution merely because it is cloaked in political ideology. In other words, even if the Defendants here have shown that the government selected them for prosecution based on their ‘anti-government extremist’ violence, that’s fine. That’s because those who engage in violence for any reason are not a part of any protected class and the government is free to bring down the hammer of the justice system on them.”
Donato’s View
Donato, an Obama appointee, wrote:
“I…agree that, on the facts in the record before us, the District Court abused its discretion in granting defendants Nathan Wilson and Christopher Beasley’s request for discovery and then dismissing the indictment. I write separately to state my understanding of the standard a defendant must meet to be entitled to discovery on a selective-prosecution claim.”
He argued:
“The constitutional protections remain just as robust irrespective of whether the charged conduct involves violence, the destruction of property, or other mayhem. Perpetrators of violent conduct should be prosecuted, but the Constitution commands that prosecutors may not charge only those perpetrators whose race, religion, or political viewpoints are disfavored by the government.”
Saying “I see no reason why defendants may not seek to renew a selective-prosecution discovery request and claim with proper evidence,” he remarked:
“In this case, it is undisputed that the 2020 charges filed against Wilson and Beasley were the first stand-alone prosecutions for arson by the United States Attorney for the Central District of California since 2007. It is also undisputed that defendants were prosecuted after the then-President and Attorney General made public statements blaming the violence at George Floyd protests on individuals with leftist viewpoints such as antifa and anarchism, and threatening them with severe criminal penalties and long jail sentences. In these circumstances, the District Court could reasonably request a word of explanation from the prosecutors.”
The case is U.S. v. Wilson, 23-50016.
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