United States v. Lewis

United States Court of Appeals
For the First Circuit

No. 07-1249

UNITED STATES OF AMERICA,

Appellee,

v.

SAMUEL J. LEWIS, A/K/A
SHAHEED LEWIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Gelpí,* District Judge.

Timothy G. Watkins, Federal Defender Office, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

February 22, 2008

*
Of the District of Puerto Rico, sitting by designation.
 SELYA, Senior Circuit Judge. A claim of selective

prosecution depends in large part on a defendant's ability to prove

that the government has treated him differently from similarly

situated offenders. The appeal before us turns on what factors

courts should take into account in configuring the pool of

similarly situated offenders for purposes of this comparison. The

tale follows.

In the underlying case, the government charged defendant-

appellant Samuel J. Lewis, also known as Shaheed Lewis, with making

false statements on multiple federal firearms applications. The

defendant moved to dismiss the indictment on selective prosecution

grounds, asserting that the government had elected to prosecute him

but not others who were similarly situated because he is African-

American and Muslim. Relatedly, he moved for discovery in aid of

his selective prosecution theory and for an evidentiary hearing.

The district court denied all of these motions.

Following his conviction on various counts, the defendant

appeals from the denial of his pretrial motions. The issue on

appeal boils down to whether discovery should have been permitted

— an issue that hinges largely on whether the defendant mustered

some evidence that the government had eschewed prosecution of

similarly situated offenders. Discerning no error in the trial

court's configuration of the pool of similarly situated offenders

-2-
and no abuse of discretion in its refusal to allow discovery, we

affirm the judgment below.

The facts are not particularly complicated. The

defendant is an African-American Muslim man who, up until the

events in question here, had an unblemished record. Over a three-

year span from November of 2000 to October of 2003, the situation

changed.

During that period, the defendant obtained approximately

thirty-two firearms. From August of 2002 through September of

2003, he procured no fewer than fifteen of those guns by providing

— or so the government alleged — false residence addresses on a

government form (ATF Form 4473) comprising part of the standard

federal firearms application.1 In two additional instances he

allegedly acted as a straw purchaser, buying a gun for a friend but

representing on the application that he was acting for himself.

Knowingly making a misrepresentation in the procurement of a

firearm constitutes a federal felony. See 18 U.S.C. §§ 922(a)(6),

924(a)(1)(A).

The frequency of the defendant's arms purchases raised a

red flag with the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (ATF). That federal agency, in concert with the inter-

1
Each of these purchases was within the purview of the Gun
Control Act of 1968, 18 U.S.C. §§ 921-930. That statute requires
gun dealers to keep records of the information collected by means
of ATF Form 4473.

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agency Joint Terrorism Task Force, launched an investigation. The

investigators discovered obvious discrepancies relating to the

residence addresses listed by the defendant in the various

applications. They also learned that the defendant reportedly had

changed his first name to Shaheed (which in Arabic means, among

other things, "martyr"), that he had stated that he wished to move

to a country in which there was a war or a crisis, and that he had

mused about wanting to die in a jihad. One of the witnesses whom

the investigators interviewed related that, in the course of firing

a high-velocity weapon at a shooting range, the defendant had

threatened him.

The witnesses also revealed that the defendant had

visited either Syria or Somalia for approximately one month in

2003. Following up on this lead, the investigators unearthed

independent evidence that the defendant had reported his passport

missing. This is reputedly a familiar stratagem used to obtain a

"clean" passport after visiting countries associated with

terrorism.

Like other federal agencies, the ATF issues procedures to

guide its agents in their investigation of criminal activity. The

ATF's guidelines caution agents to evaluate informant credibility

through "[a]ll reasonable efforts" before "committing substantial

resources or taking significant enforcement action" in reliance on

information from an informant "of unknown or untested reliability."

-4-
Treas. Dep't, ATF Order 3210.7B, at 17 (June 28, 1989). The three

principal witnesses interviewed by the investigators included the

defendant's ex-wife, his current wife's ex-husband (who supposedly

learned relevant information through conversations with a thirteen-

year-old child), and an employee of a shooting range frequented by

the defendant.

The probe culminated in a multi-count indictment. The

bill, which originally contained twenty-one counts, was eventually

winnowed to seventeen. Fifteen of these counts charged the

defendant with making false statements about his place of residence

on federal firearms applications in violation of 18 U.S.C. §

924(a)(1)(A). The remaining two counts charged him with illegally

acting as a straw purchaser in violation of 18 U.S.C. § 922 (a)(6).

In due season, the defendant moved (i) to dismiss the

charges on the ground of selective prosecution, (ii) to allow

discovery in aid of the foregoing motion, and (iii) for an

evidentiary hearing. The government opposed the motions and, as

part of its opposition, submitted the affidavit of an ATF agent who

described the results of the investigation in some detail. The

district court denied the motions, concluding that the defendant

had failed to present sufficient evidence of disparate treatment to

warrant further inquiry. United States v. Lewis, Crim. No. 05-

40001 (D. Mass. May 11, 2006) [2006 WL 4385752, at *7].

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 After a trial, a petit jury convicted the defendant on

the fifteen "false statement" counts. At the same time, the jury

acquitted him on the two "straw purchaser" counts. The district

court sentenced the defendant to fifteen months in prison and three

years of supervised release. This timely appeal ensued.

This is a rifle-shot appeal: the defendant candidly

states that "[t]he district court's denial of defendant's request

for further discovery in aid of his selective prosecution claim is

the subject of this appeal." Appellant's Br. at 2. Moreover, this

issue is the only one to which he devotes any developed

argumentation. Consequently, his appeal stands or falls on the

supportability vel non of the lower court's denial of the discovery

motion.2

Our cases have used an abuse of discretion standard for

appellate review of a claim that a trial court erred in refusing to

allow discovery in aid of a selective prosecution defense. See,

e.g., United States v. Magana, 127 F.3d 1, 9 (1st Cir. 1997);

United States v. Penagaricano-Soler, 911 F.2d 833, 838 (1st Cir.

1990). Subject only to a few narrow exceptions (none of which is

applicable here), the "law of the circuit" rule binds a court

2
This makes perfect sense: the quantum of evidence that would
be needed to authorize discovery is less than the quantum of
evidence needed to dismiss the indictment on selective prosecution
grounds. See United States v. Armstrong, 517 U.S. 456, 465, 468
(1996). By the same token, if the defendant's initial proffer is
insufficient to justify a discovery order, there would be no need
for an evidentiary hearing.

-6-
within a particular circuit to follow circuit precedent directly or

closely on point. See United States v. Guzmán, 419 F.3d 27, 31

(1st Cir. 2005); United States v. Chhien, 266 F.3d 1, 11 (1st Cir.

2001). That rule would seem to dictate that an abuse of discretion

standard should be employed in reviewing the denial of the

defendant's discovery motion.

In seeming defiance of the law of the circuit rule, the

defendant cajoles us to ignore circuit precedent in this instance

and instead undertake de novo review. His cajolery has two

ostensible justifications. First, he sings a siren song to the

effect that we are not bound by our past opinions because we have

not "explicitly" adopted the abuse of discretion standard in any of

them. Second, he suggests that the better standard of review is

not abuse of discretion but, rather, the de novo review standard

employed by two of our sister circuits in comparable cases. See,

e.g., United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001);

United States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996).3 We find

neither of these blandishments appealing.

The defendant's first initiative holds no weight. 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

3
This aspect of the defendant's argument ignores the fact that
no fewer than five other circuits have recently endorsed abuse of
discretion review in this context. See United States v. Thorpe,
471 F.3d 652, 657 (6th Cir. 2006) (collecting cases).

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rule. That rule is rooted in the need for consistency within a

circuit; its force does not depend on a prior panel's use of

talismanic phrases. So long as a prior panel, in a holding

directly or closely on point, makes clear its choice of a rule of

law, that choice is binding on newly constituted panels within the

circuit, subject only to the isthmian exceptions noted in our

earlier decisions.

The defendant's second initiative is even less

attractive. The law of the circuit rule does not depend on whether

courts outside the circuit march in absolute lockstep with in-

circuit precedent. Thus, the emergence of a minority view, without

more, does not open an escape hatch that justifies a newly

constituted panel in repudiating an unbroken skein of circuit

precedents. See, e.g., United States v. Rodriguez, 311 F.3d 435,

438-39 (1st Cir. 2002). We therefore reject the defendant's

importunings and review the denial of his discovery motion for

abuse of discretion.

The defendant, ably represented, has a fallback position

related to the standard of review. He argues that, in applying an

abuse of discretion standard, we ought to parse out the district

court's determination regarding what constitutes a similarly

situated pool of offenders and review that determination de novo.

This argument has some theoretical underpinnings.

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 As we have explained in other cases, the abuse of

discretion standard is not monolithic. See Roger Edwards, LLC v.

Fiddes & Son Ltd., 427 F.3d 129, 132 (1st Cir. 2005); United States

v. McIntosh, 380 F.3d 548, 553-54 (1st Cir. 2004). In practice,

that standard contemplates de novo review of abstract questions of

law,4 clear error review of findings of fact, and deferential

review of judgment calls. Roger Edwards, 427 F.3d at 132.

This nuanced formulation of the standard of review does

not help the defendant. The fact-intensive inquiry involved in

determining who constitutes a similarly situated individual belies

the defendant's assertion that the issue is invariably law-

dominated. See United States v. Armstrong, 517 U.S. 456, 466

(1996) (stating that all facts must be considered to determine who

is similarly situated); cf. Cordi-Allen v. Conlon, 494 F.3d 245,

251 (1st Cir. 2007) (explicating same proposition in civil "class

of one" equal protection case). Here, moreover, all roads lead to

Rome; as we explain below, the configuration of the class is

sufficiently clear-cut that the precise standard of review makes no

difference.

With these preliminary skirmishings behind us, we grapple

with the merits of the defendant's assertion that he made a

4
The understanding, of course, is that a mistake of law is
always an abuse of discretion. See, e.g., Rosario-Urdaz v. Rivera-
Hernández, 350 F.3d 219, 221 (1st Cir. 2003); United States v.
Snyder, 136 F.3d 65, 67 (1st Cir. 1998).

-9-
sufficient showing to justify discovery in aid of his selective

prosecution theory. We approach this assertion mindful that

federal prosecutors must be afforded substantial discretion not

only in determining whether to prosecute a suspected violation of

federal law but also in deciding what charges should be lodged.

See Armstrong, 517 U.S. at 464; Wayte v. United States, 470 U.S.

598, 607 (1985). Once made, these decisions enjoy a presumption of

regularity (which includes a presumption of good faith). See

Armstrong, 517 U.S. at 464; United States v. Graham, 146 F.3d 6, 9

(1st Cir. 1998).

That presumption of regularity should not lightly be

discarded for it serves important policy interests. 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. See Wayte, 470 U.S. at 607-08; United States

v. Bourgeois, 964 F.2d 935, 939 (9th Cir. 1992). It is, therefore,

unsurprising that the presumption is formidable; it can be overcome

only by a proffer of "clear evidence" that the prosecutor acted

impermissibly in pursuing a case. Armstrong, 517 U.S. at 465.

A showing of selective prosecution can, of course,

undercut the presumption of regularity. The essence of such a

showing is that a prosecutor has pursued a case for a

constitutionally impermissible reason, such as the defendant's

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race, religion, or other characteristic cognizable under equal

protection principles. Wayte, 470 U.S. at 608. Carrying this

burden entails a binary showing: the defendant must adduce clear

evidence of both the discriminatory effect of the prosecution and

the prosecutor's discriminatory intent. Armstrong, 517 U.S. at

465.

The evidentiary threshold that a defendant must cross in

order to obtain discovery in aid of a selective prosecution claim

is somewhat below "clear evidence," but it is nonetheless fairly

high. Id. at 468. To cross this lower threshold, a defendant must

present "some evidence" tending to show both discriminatory effect

and discriminatory intent. Id. (citing United States v. Berrios,

501 F.2d 1207, 1211 (2d Cir. 1974)). It follows that discovery

will not be allowed unless the defendant's evidence supports each

of the two furcula of his selective prosecution theory: failure on

one branch dooms the discovery motion as a whole. See, e.g.,

United States v. Bass, 536 U.S. 862, 863-64 (2002) (per curiam).

"Some evidence" is admittedly a protean standard. For

this purpose, the evidence in support of the asserted

discriminatory effect must comprise a credible showing that

similarly situated individuals who do not share the protected

characteristic were not prosecuted. Armstrong, 517 U.S. at 469.

Similarly, the evidence in support of the asserted discriminatory

intent must consist of a credible showing that the government chose

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to prosecute "at least in part because of, not merely in spite of,"

the defendant's protected characteristic. Wayte, 470 U.S. at 610

(quoting Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 258

(1979)).

In the case at hand, the defendant claims selective

prosecution based on an amalgam of race and religion — he is an

African-American Muslim — and alleges that his prosecution had a

discriminatory effect and was spurred by discriminatory intent.

The district court disagreed. In denying his discovery

motion, the court applied the standards alluded to above. It

determined that the pool of offenders situated similarly to the

defendant consisted of non-African-Americans and/or non-Muslims who

had committed multiple misrepresentation offenses in connection

with firearms paperwork, who posed a danger of violence, and who

may have had links to terrorism. Lewis, 2006 WL 4385752, at *7.

After canvassing the evidence that had been submitted, the court

found that the defendant had misconceived the dimensions of the

pool of similarly situated offenders and that, by failing to tender

any proof that non-African-Americans and/or non-Muslims in the

appropriate pool had been spared from prosecution, the defendant

had failed to cross the discovery threshold. Id. Finally, despite

the government's reliance on the three witnesses whose credibility

the defendant questioned, the court found that the evidence was not

so flimsy as to constitute a showing of discriminatory intent. Id.

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 The defendant mounts two primary challenges to the

district court's decision. First, he calumnizes the court's

configuration of the pool of similarly situated offenders. Second,

he faults the court for neglecting to find that he had made a

sufficient showing of discriminatory intent. We approach these

challenges one by one.

We start with discriminatory effect. The defendant

insists that the district court framed the contours of the pool of

similarly situated offenders too narrowly and, based on this

cramped configuration, erroneously concluded that the defendant had

not provided any evidence of discriminatory effect. Specifically

he asserts that the appropriate pool should be composed of non-

African-American, non-Muslim persons who have submitted inaccurate

paperwork in connection with federal firearms applications. He

mentions that by considering two additional criteria — multiple

violations and potential terrorist connections — the court

incorrectly circumscribed the pool of similarly situated offenders

and, in the process, set the bar for discovery too high.

Refined to bare essence, the defendant's thesis is that

the pool of similarly situated offenders should be populated by

those who have committed the same basic offense — no more and no

less. On the assumption that this approach was correct, he

introduced a series of analyses showing that over a three-year

period no one else had been prosecuted in the District of

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Massachusetts for a weapons-related offense as picayune as

misstating an address on a federal firearms application (at least

when neither the purchaser of the gun nor its intended user had a

prior criminal record). Building on this foundation, he argues

that statistical probability indicates that while white non-Muslims

quite probably have committed such minor infractions, they have not

been prosecuted. And, finally, he asserts that in any event his

prosecution is inconsistent with the normal practices followed by

the U.S. Attorney's Office in the District of Massachusetts —

practices that emphasize prosecution of crimes with different

characteristics.

The government's response is terse and to the point. It

says that a broader array of circumstances must be factored into

the mix. Once that is done, the defendant's prosecution may seem

unique, but the sheer number of misrepresentation offenses and the

concomitant evidence of terrorism links distinguish this case and

make prosecution permissible. In other words, it insists that the

district court properly considered these distinguishing factors in

configuring the pool of similarly situated offenders. Finally, it

asserts that the defendant's evidence of prosecutorial priorities

shows only what crimes had been prosecuted in the past, not some

hard-and-fast institutional rule about which crimes should be

prosecuted.

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 Prosecutorial decisions are often highly ramified, and

courts must be chary of relying on raw statistics as purported

proof of selective prosecutions. See Bass, 536 U.S. at 864; see

also United States v. Thorpe, 471 F.3d 652, 658 (6th Cir. 2006)

(applying this principle); United States v. Hedaithy, 392 F.3d 580,

607-08 (3d Cir. 2004) (same). Before reaching any questions

related to the defendant's statistical evidence, however, we must

elucidate the proper interpretation and application of the term

"similarly situated." Only then can we judge the relevancy of the

statistical proffer.

Although we have not previously provided a distinct

definition of the term "similarly situated" in the selective

prosecution context, classic equal protection principles light our

path and limn the attributes of one who is similarly situated. See

Armstrong, 517 U.S. at 465. 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. See id. at 469. In configuring the pool of

similarly situated offenders, "no fact should be omitted to make it

out completely." Id. at 466 (quoting Ah Sin v. Wittman, 198 U.S.

500, 508 (1905)) (emphasis in original).

To be sure, this statement cannot be taken literally.

The focus of an inquiring court must be on factors that are at

least arguably material to the decision as to whether or not to

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prosecute. Material prosecutorial factors are those that are

relevant — that is, that have some meaningful relationship either

to the charges at issue or to the accused — and that might be

considered by a reasonable prosecutor. Cf. Cordi-Allen, 494 F.3d

at 250-51 (requiring comparators to be similarly situated "in all

relevant aspects" in a civil "class of one" context); Perkins v.

Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996) (stating

in employment discrimination context that comparator must be

similarly situated in "material" respects). Unrelated, irrelevant,

or trivial factors cannot meet the materiality requirement and,

therefore, cannot be built into the configuration of the pool.

The bottom line, then, is that a district court should

assess every material fact in rendering its judgment as to which

offenders should be deemed similarly situated. See Olvis, 97 F.3d

at 744 (explaining that "defendants are similarly situated when

their circumstances present no distinguishable legitimate

prosecutorial factors that might justify making different

prosecutorial decisions with respect to them").

A multiplicity of factors legitimately may influence the

government's decision to prosecute one individual but not another.

See Wayte, 470 U.S. at 607; see also Magana, 127 F.3d at 9 (listing

representative factors). These may include, inter alia, the

comparability of the crimes, the similarities in the manner in

which the crimes were committed, the relative efficacy of each

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prosecution as a deterrent, and the equivalency of the evidence

against each prospective defendant. See United States v. Smith,

231 F.3d 800, 810 (11th Cir. 2000); see also United States v.

Peterson, 233 F.3d 101, 105 (1st Cir. 2000) (considering

individuals' relative levels of participation in illegal scheme).

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. While the defendant

labors to persuade us that this configuration is too specific, we

are not convinced. Each of the items that the district court

factored into the configuration calculus is relevant and material.

Those criteria are, therefore, appropriate.

In reaching this conclusion, we do not write on a

pristine page. Other courts have affirmed that prosecutors may

permissibly consider specific factors such as those at issue here

in deciding whom to prosecute. The Eleventh Circuit, for instance,

has acknowledged that the government may lawfully single out an

offender for prosecution because he has violated a law over and

over again. See Smith, 231 F.3d at 812 (concluding that a

prosecutor may "legitimately place a higher priority on prosecuting

someone who commits an offense three, six or seven times, than

someone who commits [that] offense once or twice, especially when

the offense is a non-violent one").

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 By like token, courts have upheld the government's

decision to prosecute more readily when the specter of terrorism is

implicated. See, e.g., United States v. Khan, 461 F.3d 477, 498

(4th Cir. 2006) (affirming denial of discovery in selective

prosecution case); cf. Reno v. Am.-Arab Anti-Discrim. Comm., 525

U.S. 471, 491-92 (1999) (holding that consideration of terrorist

links in deportation context is not sufficient to constitute

selective deportation); Kandamar v. Gonzales, 464 F.3d 65, 74 (1st

Cir. 2006) (similar).

That ends this aspect of the matter. Here, the record

reveals with conspicuous clarity that the defendant committed

multiple violations of the firearms laws and that he did so in the

shadow of evidence raising plausible concerns about his possible

terrorist connections. The prosecutor had statements from at least

three witnesses, together with independent evidence, to buttress

these suspicions.5 On this substantial record, there is no

principled way that we can find an abuse of discretion in the

district court's configuration of the pool of similarly situated

offenders.

5
We reject out of hand the defendant's effort to incorporate
witnesses' credibility as part of his argument as to why potential
terrorism links should not be included in the definition of
similarly situated offenders. That position conflates
discriminatory effect and discriminatory intent and, thus, confuses
the two prongs of the discovery test.

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 Once we have determined that the district court properly

configured the pool of similarly situated offenders, the rest is

child's play. The record reveals no indication that any similarly

situated white or non-Muslim person escaped prosecution. By like

token, the record does not reveal that the prosecutors acted

contrary to U.S. Attorney's guidelines or practices anent the

prosecution of similarly situated offenders. Consequently, the

trial court's holding that the defendant failed to present some

evidence capable of demonstrating discriminatory effect is

unassailable.

This brings us to the defendant's second argument: that

the district court erred in accepting the credibility of the three

witnesses whose statements influenced the government's decision to

prosecute. Because the government relied on those witnesses in

derogation of its standard practice, this thesis runs, its use of

the information gleaned from them must have been a front for

discriminatory intent.

The government counters that in this instance multiple

sources provided similar types of information. It says that,

taking account of this cross-corroboration, it appropriately

concluded that the witnesses possessed sufficient credibility.

Thus, the government argues, the district court committed no error

in concluding that the prosecutors' actions did not evince any

discriminatory intent.

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 We need not linger long over these conflicting

contentions. The witness credibility arguments go to the second

prong of the discovery inquiry: the presence or absence of

discriminatory intent. Here, however, the defendant has failed to

make the threshold showing required under the first prong of the

test; he has failed to adduce some evidence that the prosecution

manifested a discriminatory effect. For that reason, his appeal of

the denial of the discovery motion founders, and further

consideration of the evidence pertaining to discriminatory intent

would serve no useful purpose. See Bass, 536 U.S. at 863.

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.

When information about multiple guns and multiple false statements

is enmeshed with information suggesting terrorist links,

prosecutors can scarcely be criticized for moving forward. This

prosecution may be unique — but that is because the compendium of

material facts on which it rests is unique.

We need go no further. For the reasons elucidated above,

we conclude without serious question that the district court did

not abuse its discretion in denying the discovery motion. On this

record, no credible claim of selective prosecution could lie.

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Affirmed.

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