UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4799
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARY DURDEN BRADDOCK; ROY WILSON BRADDOCK,
Defendants - Appellants.
No. 10-4802
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN LEVINER,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Florence. Cameron McGowan Currie,
District Judge. (4:09-cr-01173-CMC-3; 4:09-cr-01173-CMC-5)
Submitted: December 21, 2010 Decided: February 3, 2011
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lionel S. Lofton, LOFTON AND LOFTON, Charleston, South Carolina;
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellants. William N. Nettles, United
States Attorney, Nathan S. Williams, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Mary Durden Braddock, Roy Wilson Braddock, and
Jonathan Leviner appeal from their convictions following guilty
pleas to offenses relating to illegal cockfighting and gambling
activities. 1 On appeal, they challenge the district court’s
denial of their motion to dismiss for selective prosecution or,
in the alternative, for discovery in support of their selective
prosecution claim. Finding no reversible error, we affirm.
We review de novo a district court’s denial of a
motion to dismiss an indictment where the denial depends on a
question of law. United States v. Hatcher, 560 F.3d 222, 224
(4th Cir. 2009). The government ordinarily has wide latitude in
deciding whether to prosecute; however, equal protection forbids
basing the decision “on ‘an unjustifiable standard such as race,
religion, or other arbitrary classification.’” United States v.
Armstrong, 517 U.S. 456, 464 (1996) (quoting Oyler v. Boles, 368
U.S. 448, 456 (1962)). “In order to dispel the presumption that
a prosecutor has not violated equal protection, a criminal
defendant must present ‘clear evidence to the contrary,’”
1
Mary Braddock and Roy Braddock each were convicted of one
count of conspiracy to violate the Animal Welfare Act and to
engage in an illegal gambling business, in violation of 18
U.S.C. § 371 (2006). Leviner was convicted of one count of
knowingly sponsoring or exhibiting an animal in an animal
fighting venture, in violation of 7 U.S.C. § 2156(a)(1) (2006)
and 18 U.S.C. § 2 (2006).
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demonstrating that the government was motivated by a
discriminatory purpose to adopt a prosecutorial policy with a
discriminatory effect. Id. at 465. To make this showing, a
defendant must establish that (1) “similarly situated
individuals of a different race were not prosecuted”; and
(2) “that the decision to prosecute was invidious or in bad
faith.” United States v. Olvis, 97 F.3d 739, 743 (4th Cir.
1996) (internal quotation marks and citations omitted).
We also review de novo a district court’s disposition
of a motion for discovery in support of a selective prosecution
claim. United States v. Lighty, 616 F.3d 321, 370 (4th Cir.
2010). Because discovery imposes high costs on the government,
the standard for obtaining discovery in support of a selective
prosecution claim is only slightly lower than for a dismissal;
rather than presenting clear evidence, the defendant must
produce some evidence demonstrating discriminatory effect and
discriminatory intent. Olvis, 97 F.3d at 743.
Appellants argue that the district court should have
dismissed the indictment or granted leave to obtain discovery
because they, as Caucasians, were prosecuted federally, while
two Hispanic co-conspirators and thirty-six Hispanic people
arrested in connection with another cockfighting ring in Hampton
County, South Carolina, faced only state charges. For the
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reasons that follow, we disagree, and thus hold that the
district court did not err when it dismissed Appellants’ motion.
First, Appellants did not show that they were
similarly situated to the Hispanic defendants who were not
prosecuted federally. “[D]efendants are similarly situated when
their circumstances present no distinguishable legitimate
prosecutorial factors that might justify making different
prosecutorial decisions with respect to them.” Id. at 744.
Here, Appellants were engaged in a fairly sophisticated
interstate cockfighting venture that was dissolved by way of a
federal undercover investigation. The evidence Appellants
produced from the other cockfighting ring, on the other hand,
shows only that the defendants were involved in one instance of
cockfighting, which did not necessarily involve any use of
interstate commerce as required by the statutes under which
Appellants were charged. The only similarities that Appellants
established were that both their case and the Hampton County
case involved cockfighting and the South Carolina Department of
Natural Resources, a state agency. Such superficial
similarities are insufficient to show that individuals
prosecuted differently were similarly situated. 2
2
Although Appellants argue that they were selectively
prosecuted as compared to their Hispanic co-conspirators, they
made no attempt to show that they and their co-conspirators were
(Continued)
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Additionally, Appellants did not show that the
Government’s decision to prosecute them was invidious or in bad
faith. Instead, in their motion to dismiss and on appeal,
Appellants contend that the only logical conclusion to be drawn
from the fact that Appellants were prosecuted federally and the
Hispanic defendants were not is that the decision was invidious
and in bad faith. This conclusory argument is not evidence that
the prosecutor acted in bad faith or with discriminatory intent.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
similarly situated. We therefore hold that Appellants also
failed to satisfy their burden with respect to the Hispanic co-
conspirators.
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