PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 11-4216
JAMES E. VENABLE, a/k/a James
Eugene Venable,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:08-cr-00199-REP-1)
Argued: December 9, 2011
Decided: January 18, 2012
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Niemeyer and Judge King joined.
COUNSEL
ARGUED: Patrick Risdon Hanes, WILLIAMS MULLEN,
Richmond, Virginia, for Appellant. Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Rich-
mond, Virginia, for Appellee. ON BRIEF: Joseph R. Pope,
2 UNITED STATES v. VENABLE
WILLIAMS MULLEN, Richmond, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Vir-
ginia, Brandon M. Santos, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
Appellant James Venable was indicted by the United States
Attorney’s Office for the Eastern District of Virginia ("United
States Attorney’s Office") on the charge of possessing a fire-
arm while being a felon, in violation of 18 U.S.C. § 922(g)(1).
Venable, an African American, moved to dismiss the indict-
ment against him, claiming that the United States Attorney’s
Office selected him for prosecution under a federal-state law
enforcement initiative known as Project Exile because of his
race, in violation of the equal protection component of the
Fifth Amendment’s Due Process Clause. As part of the
motion, Venable sought discovery into the criteria and proce-
dures used by the government in deciding to prosecute him in
federal court while two other individuals, both white, who
were also felons in possession of the same firearms as him,
were not. The district court concluded that Venable had failed
to satisfy his rigorous burden to obtain discovery on his selec-
tive prosecution claim. On appeal, Venable requests that we
reverse the district court’s order denying his motion for dis-
covery and remand this case for discovery and an evidentiary
hearing. For the reasons that follow, we affirm.
I.
A.
We begin by reciting the relevant facts. We first set forth
the events leading up to the arrests of Venable, and the two
UNITED STATES v. VENABLE 3
individuals Venable claims are similarly situated to him, Gary
Wayne Turner and Michele Lynn Zechman. Because Ven-
able’s selective prosecution claim (including his request for
discovery in support of that claim) rests on the allegation that
Turner and Zechman, who were not prosecuted in federal
court, are similarly situated to him, we next describe the facts
pertaining to Turner’s and Zechman’s prosecutions in state
court on the one hand, and Venable’s prosecution in federal
court on the other.
1.
On January 8, 2008, Turner and Zechman burglarized a
home in Campbell County, Virginia, and stole eleven fire-
arms. For Turner’s role in the burglary and larceny of the fire-
arms, Campbell County authorities sought to indict him on
January 24, 2008, on the following state law charges: (1) stat-
utory burglary, in violation of Virginia Code § 18.2-91; (2)
grand larceny, in violation of Virginia Code § 18.2-95; and
(3) possession of a firearm by a felon, in violation of Virginia
Code § 18.2-308.2.
On January 28, 2008, Captain L.T. Guthrie from the Camp-
bell County Sherriff’s Office contacted Richmond Police
Detectives Daniel O’Connell and Jack P. Larry to enlist the
Richmond Police Department’s assistance in arresting Turner
pursuant to arrest warrants issued for the burglary. Captain
Guthrie and Detectives O’Connell and Larry responded to
Turner’s residence and arrested him. After he was taken into
custody, the three officers interviewed Turner about his
involvement with the burglary. Turner cooperated with the
officers, implicated himself in the burglary, and agreed to take
them to the location where he had sold eight of the firearms.
Turner directed the officers to the residence of an African
American male named "James."
While Captain Guthrie remained with Turner, Detectives
O’Connell and Larry knocked on the door of the house where
4 UNITED STATES v. VENABLE
"James" lived. An African American male, later identified as
Venable, opened the door. The detectives advised Venable
that they were aware that he was in possession of stolen fire-
arms. After Venable confirmed that the detectives were not
going to arrest him for possession of stolen firearms, he coop-
erated with the Detectives and agreed to relinquish the fire-
arms. At that time, the police were not aware of Venable’s
felon status, nor did they charge or arrest him.
The next day, January 29, 2008, Campbell County authori-
ties charged Zechman with the same three state law offenses
as Turner. At the time of the offense, Turner and Zechman
resided together in Richmond at the same address. That day,
Detectives O’Connell and Larry returned to Turner’s and
Zechman’s residence to arrest Zechman on those charges. As
the detectives spoke with Zechman, Venable exited a vehicle
and began to approach the detectives and Zechman. The
detectives cut him off before he reached the side of the resi-
dence where Zechman was standing, at which point Venable
began yelling; Venable angrily demanded to know who told
the police he had purchased the firearms. The detectives
informed Venable that he needed to calm down, but Venable
continued to be vocally hostile. At one point, Venable com-
mented that he had just left the penitentiary, prompting Detec-
tive O’Connell to relate to him that the officers had given him
a break the previous night if he was a convicted felon. Ven-
able responded that his felon status was beside the point.
Shortly thereafter, Venable got back into his car and left
Zechman’s residence.
After arresting Zechman, the detectives checked Venable’s
criminal history, noted that he had prior felony convictions,
and obtained a search warrant for Venable’s residence (based
on his criminal record and a box of .45 caliber ammunition
that the detectives had seen inside his house the previous
night). The detectives returned to Venable’s residence, and he
told them to leave unless they had a warrant. The detectives
UNITED STATES v. VENABLE 5
showed Venable the warrant, recovered the ammunition, and
arrested him.
2.
State prosecutors in Campbell County, located in the West-
ern District of Virginia, obtained indictments against Turner
and Zechman on April 30, 2008, on charges of statutory bur-
glary, grand larceny, and possession of a firearm by a con-
victed felon.1 Both eventually pleaded guilty to the charges,
Zechman on August 7, 2008, and Turner on November 4,
2009. On December 18, 2008, Zechman was sentenced to five
years for statutory burglary, two years for grand larceny, and
one year for possession of a firearm by a convicted felon. All
three of Zechman’s sentences were suspended on condition
that she complete a rehabilitation program. In addition, Zech-
man was ordered to be on good behavior for a period of ten
years and to comply with supervised probation for a period of
three years. On January 28, 2010, Turner was sentenced to
five years of incarceration with five years suspended for statu-
tory burglary, five years of incarceration with five years sus-
pended for grand larceny, and five years of incarceration for
possession of a firearm by a convicted felon. Turner is cur-
rently serving his sentence with the Virginia Department of
Corrections. Turner was also sentenced to supervised proba-
tion following his release.
3.
On January 29, 2008, the Commonwealth Attorney’s
Office for the City of Richmond ("Richmond Commonwealth
Attorney’s Office") indicted Venable on the charge of posses-
sion of a firearm by a felon, in violation of Virginia Code
§ 18.2-308.2. Venable was to be tried in the Circuit Court for
the City of Richmond. Under a program commonly referred
1
Campbell County authorities expressed that they wanted to vindicate
the rights of the owner of the firearms.
6 UNITED STATES v. VENABLE
to as "Project Exile," however, the Richmond Commonwealth
Attorney’s Office presented Venable’s case to the Richmond
Division of the United States Attorney’s Office for review
and possible federal prosecution. On April 17, 2008, a crimi-
nal complaint was filed in the Clerk’s Office of the United
States District Court for the Eastern District of Virginia, Rich-
mond Division, charging Venable with possession of a fire-
arm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).2
The next day, April 18, 2008, the state charge against Venable
was nolle prossed in the Circuit Court for the City of Rich-
mond. On April 21, 2008, the United States Attorney’s office
filed an indictment in the Eastern District of Virginia, charg-
ing Venable with violating § 922(g)(1). Venable was placed
in federal custody on April 22, 2008.
Project Exile is a federal-state law enforcement initiative
jointly run by the Richmond Commonwealth Attorney’s
Office and the United States Attorney’s Office.3 The project
was implemented in Richmond in 1997 with the goal of
reducing Richmond’s high rates of violent crime by prosecut-
ing firearm-related crimes federally whenever possible. Proj-
ect Exile now targets the Richmond, Virginia metropolitan
area, including the city of Richmond and Chesterfield and
Henrico counties. It specifically targets convicted felons who
possess guns. Under Project Exile, local police officers are
encouraged to contact a federal agent whenever they encoun-
ter a gun in performing their duties, and, together with the
federal agent, to determine whether federal law has been vio-
lated. In those cases in which the conduct alleged also consti-
tutes a federal crime, local law enforcement officials and the
2
Section 922(g) lists various categories of individuals for whom it is
unlawful to, inter alia, "possess in or affecting commerce, any firearm or
ammunition." The category under (g)(1) is any person "who has been con-
victed in any court of, a crime punishable by imprisonment for a term
exceeding one year."
3
Project Exile also involves the Bureau of Alcohol, Tobacco, and Fire-
arms; the Federal Bureau of Investigation; the Richmond Police Depart-
ment, and the Virginia State Police.
UNITED STATES v. VENABLE 7
Richmond Commonwealth Attorney’s Office refer the matter
to the United States Attorney’s Office for review. Following
that review, the United States Attorney’s Office decides
which cases to accept for federal prosecution. If the United
States Attorney’s Office obtains an indictment charging the
defendant with federal firearm-related crimes, then the Rich-
mond Commonwealth Attorney’s Office drops the state
charges, and the case proceeds in federal court. The Rich-
mond Commonwealth Attorney’s Office provides a prosecu-
tor to assist with the federal prosecution.
B.
1.
Before his trial in federal district court, Venable filed
numerous pro se motions seeking to dismiss his indictment,
including a "Motion to Dismiss based on Racial Discrimina-
tion" filed on August 6, 2008, which the district court denied
on August 8, 2008. On August 11, 2008, a jury found Venable
guilty of violating § 922(g)(1). The district court sentenced
Venable to sixty months of incarceration, a downward vari-
ance from the Guidelines range, and three years of supervised
release.
Venable appealed his conviction to this court, claiming that
the district court violated his Sixth Amendment right to coun-
sel in not obtaining a voluntary and knowing waiver and forc-
ing him to proceed pro se. United States v. Venable, 373 F.
App’x. 402, 403 (4th Cir. 2010). We agreed, reversed his con-
viction and remanded the case to the district court. Id. at 407.
The United States elected to retry Venable.
Venable moved to dismiss the indictment, claiming that the
United States Attorney’s Office selected him for prosecution
under the Project Exile program because of his race in viola-
tion of the equal protection component of the Fifth Amend-
ment’s Due Process Clause. Venable also filed a motion for
8 UNITED STATES v. VENABLE
discovery respecting Project Exile and the decision to prose-
cute him under its auspices. In support of his motions for dis-
missal and discovery, Venable argued the following: (1)
Turner and Zechman, who stole the firearms and then pos-
sessed and sold them in the City of Richmond, were not pros-
ecuted federally because they are white; and (2) a grossly
disproportionate number of African American defendants as
compared with white defendants were prosecuted for firearms
offenses in the Richmond Division of the United States Attor-
ney’s Office in the years preceding Venable’s prosecution.
On October 5, 2010, the district court held a hearing during
which Venable presented evidence in the form of testimony
and exhibits in order to satisfy his burden to gain discovery
into the government’s records. He offered printouts from the
Circuit Court of Campbell County detailing the charges and
dispositions of the charges against Turner and Zechman.
Venable further offered a printout of Turner’s criminal his-
tory in the Circuit Court of the City of Richmond. The bulk
of Venable’s documentary evidence was contained in a
spreadsheet he designated, "Compilation of District Court
Records 2005 to 2007" (the "Spreadsheet"). The Spreadsheet
has seven relevant columns: Case Number, Name of the
Defendant, Charges, United States Code Section, Disposition,
Counsel, and Race of the Defendant. Pamela Bishop, a parale-
gal investigator with the Office of the Federal Public
Defender in Richmond, Virginia, testified in the district court
that the 178-page Spreadsheet compiles all of the publicly
available federal cases that had been filed in the Eastern Dis-
trict of Virginia, Richmond Division, for 2005, 2006, and
2007. From this information, Bishop determined the percent-
age of African Americans charged with violating
§ 922(g)—or § 924(a), which provides various penalties for
violating § 922(g)—by the Richmond Division of the United
States Attorney’s Office by year. For 2005, of the 114 indi-
viduals charged, 106 were African American, resulting in a
percentage of 92.98 percent. For 2006, of the 112 individuals
UNITED STATES v. VENABLE 9
charged, 98 were African American, resulting in a percentage
of 87.5 percent. Finally, for 2007, of the 90 individuals
charged, 70 were African American, resulting in a percentage
of 77.78 percent. For the three combined years, of the 316
individuals charged, 274 were African American, resulting in
an overall percentage of 86.71 percent.
Finally, Venable introduced statistics compiled from the
Circuit Courts of Chesterfield, Hanover, and Henrico coun-
ties, Virginia, and the city of Richmond, Virginia detailing the
number of African American, white, and American Indian
defendants who were charged with violating Va. Code § 18.2-
308.2, the state law provision prohibiting felons from carrying
firearms. The statistics detailed the numbers of defendants
who had their charges dismissed, who were found guilty, who
had their charges nolle prossed, and who were found not
guilty, all in the years 2005 through 2007. The Supreme Court
of Virginia compiled the information at the request of the
Office of the Federal Public Defender. Venable offered the
statistics as a representation of those white individuals who
could have been prosecuted by the federal government in the
Richmond Division of the United States Attorney’s Office but
were not.
Citing the defendant’s rigorous burden in obtaining discov-
ery from the government’s records on its prosecutorial deci-
sions, the government declined to present any evidence and
rested on Venable’s burden. However, it then put forth argu-
ments in opposition to Venable’s motion and discovery
requests premised on what the district found to be "an under-
standing of Project Exile not supported by evidence in the
record." J.A. 601. The government elected not to explain the
criteria used by the United States Attorney’s Office and the
Richmond Commonwealth Attorney’s Office in selecting
those defendants to be prosecuted under Project Exile. The
district court afforded the government more time to decide
whether it would offer testimony or evidence about Project
Exile, and specifically, how the government administers it, its
10 UNITED STATES v. VENABLE
rationale, its workings, and the criteria employed for accept-
ing and prosecuting cases under it. The government then filed
a supplemental response to Venable’s motion to dismiss in
which it explained the origins, goal, and generalized organiza-
tion and functioning of Project Exile. Although the govern-
ment declined to discuss the specific factors considered in the
decision to prosecute Venable, it asserted that a review of his
case reveals that his prosecution complied with the charging
policies found in the United States Attorneys’ Manual.
2.
In ruling on Venable’s motion to dismiss the indictment on
grounds of selective prosecution, the district court began by
noting that a prior Eastern District of Virginia decision had
expressed concern that because there was little information
regarding the specific process by which defendants are
selected for prosecution under Project Exile, one could cast
some doubt on the assertion that race played no role in select-
ing defendants for federal prosecution under the program. See
United States v. Jones, 36 F. Supp. 2d 304 (E.D. Va. 1999).
Here, the district court continued, it had provided every
opportunity to the United States Attorney’s Office to present
evidence "respecting Project Exile, its processes, its rationale,
how it is utilized, and the criteria used to select City of Rich-
mond cases for federal prosecution. The Government, how-
ever, within its right, chose to rest on the contention that the
defendant had not met his burden." J.A. 610. The district
court continued:
It would have been preferable to have had the Gov-
ernment make a fuller explanation about how gener-
ally cases are selected for inclusion in Project Exile
and then are prosecuted in federal court. That is sig-
nificantly so given the expressions of concerns in
Jones and the significant percentage of Project Exile
defendants who are African-American. But, the
United States Attorney’s Office obdurately declined
UNITED STATES v. VENABLE 11
to take that course. Hence, the motion must be
decided on the existing record, which, unfortunately,
leaves a considerable distaste because it is almost
certain that the Government could have made a good
affirmative showing had it not so woodenly
embraced executive prerogative. That course did a
considerable disservice to the record.
J.A. 610. In view of the record, the district court denied Ven-
able’s motion to dismiss the indictment, as well as his motion
for discovery on his selective prosecution claim. Venable now
appeals.
II.
Venable argues that the district court erred by denying him
discovery on his motion to dismiss the indictment against him
on selective prosecution grounds. We review de novo a dis-
trict 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).
A selective prosecution claim is an "assertion that the pros-
ecutor had brought the charge for reasons forbidden by the
Constitution." United States v. Armstrong, 517 U.S. 456, 463
(1996). The government ordinarily has wide latitude in decid-
ing whether to prosecute. However, equal protection forbids
basing the decision "on an unjustifiable standard such as race,
religion or other arbitrary classification." Id. at 464 (internal
quotations omitted).
The burden on a party seeking to dismiss an indictment on
the basis of selective prosecution is high. "In order to dispel
the presumption that a prosecutor has not violated equal pro-
tection, a criminal defendant must present clear evidence to
the contrary," demonstrating that the government was moti-
vated by a discriminatory purpose to adopt a prosecutorial
policy with a discriminatory effect. Id. at 465 (internal quota-
12 UNITED STATES v. VENABLE
tions omitted). To make this showing, a defendant must "es-
tablish both (1) that 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 citations and
quotations omitted). Because discovery imposes high costs on
the government, the standard for obtaining discovery in sup-
port of a selective prosecution claim is only slightly lower
than for a dismissal of the indictment; rather than presenting
clear evidence, the "defendant must produce ‘some evidence’
making a ‘credible showing’ of both discriminatory effect and
discriminatory intent." Id. (quoting Armstrong, 517 U.S. at
470).
Thus, to obtain discovery, Venable must produce some evi-
dence making a credible showing that (1) similarly situated
individuals of a different race were not prosecuted; and (2) the
decision to prosecute was invidious or in bad faith. See Olvis,
97 F.3d at 743. We consider each element in turn.
A.
Defendants are similarly situated when their circumstances
present no distinguishable legitimate prosecutorial factors that
might justify making different prosecutorial decisions with
respect to them. Olvis, 97 F.3d at 744. "Generally, in deter-
mining whether persons are similarly situated for equal pro-
tection purposes, a court must examine all relevant factors."
Id. Of particular significance here, the district court cannot
only consider the other persons’ "relative culpability," but
must "take into account several factors that play important
and legitimate roles in prosecutorial decisions." Id. Examples
of such factors include: (1) a prosecutor’s decision to offer
immunity to an equally culpable defendant because that
defendant may choose to cooperate and expose more criminal
activity; (2) the strength of the evidence against a particular
defendant; (3) the defendant’s role in the crime; (4) whether
the defendant is being prosecuted by state authorities; (5) the
UNITED STATES v. VENABLE 13
defendant’s candor and willingness to plead guilty; (6) the
amount of resources required to convict a defendant; (7) the
extent of prosecutorial resources; (8) the potential impact of
a prosecution on related investigations and prosecutions; and
(9) prosecutorial priorities for addressing specific types of
illegal conduct. Id. Our analysis of these factors is not to be
conducted in a mechanistic fashion, however, because
"[m]aking decisions based on the myriad of potentially rele-
vant factors and their permutations require the very profes-
sional judgment that is conferred upon and expected from
prosecutors in discharging their responsibilities." Id. As such,
we have rejected a "narrow approach to relevant factors to be
considered when deciding whether persons are similarly situ-
ated for prosecutorial decisions." Id.
Applying the fact-focused Olvis test to the circumstances
here, we conclude that Venable has failed to establish the first
element of his selective prosecution claim; in other words, he
has failed to produce any evidence making a credible showing
that he was similarly situated to the white defendants (Turner
and Zechman) who were not prosecuted federally. He can
therefore not meet his burden of proof with respect to discrim-
inatory effect.
It is largely dispositive here that different prosecutors in
different jurisdictions under differing sovereigns made the
different prosecutorial decisions as to Turner and Zechman on
the one hand, and Venable on the other. This consideration is
a permutation of the fourth Olvis factor: whether the defen-
dant is being prosecuted by state authorities. Both Turner and
Zechman were prosecuted by Campbell County authori-
ties—geographically located in the Western District of Vir-
ginia, who expressed that they wanted to vindicate the rights
of the owner of the firearms. Venable was originally charged
by the Richmond Commonwealth Attorney’s Office, geo-
graphically located in the Eastern District of Virginia, and
was prosecuted federally only because the Richmond Com-
monwealth Attorney’s Office presented his case to the United
14 UNITED STATES v. VENABLE
States Attorney’s Office pursuant to Project Exile, which
solely applies to the Eastern District. Because Campbell
County sits in the Western District, Turner’s and Zechman’s
cases could therefore not have been so presented. Venable’s
argument that the United States Attorney’s Office in Rich-
mond was aware of Turner’s and Zechman’s violations misses
the point: individuals can be "similarly situated" only if they
were prosecuted by the same sovereign. Here, the United
States Attorney’s Office, which exercised its prosecutorial
discretion to prosecute Venable federally pursuant to Project
Exile, never had occasion to exercise its prosecutorial discre-
tion with respect to Turner and Zechman under the auspices
of that program. Although it may be true that the United
States Attorney’s Office could have determined that either
Turner or Zechman, or both, should have been prosecuted
federally for offenses they may have committed within the
Eastern District of Virginia, that would have involved an
exercise of discretion outside the ambit of Project Exile.
Turning briefly to the remaining Olvis factors, we note that
the first Olvis factor—a prosecutor’s decision to offer immu-
nity—does not bear on this case: nothing in the record sug-
gests that the United States Attorney’s Office offered
immunity to either Turner or Zechman in exchange for their
cooperation in the case or to expose further criminal activity.
With respect to the second factor, the strength of the evidence,
Venable brought forth almost no information relevant to the
case against Zechman. By contrast, the strength of the evi-
dence against Venable and Turner appears to be in equipoise:
the record strongly implicates both defendants with respect to
the offenses with which they were charged. Thus, Venable
and Turner, but not Venable and Zechman, appear to be simi-
larly situated under the second factor. The third factor, the
defendant’s role in the crime, is the sole factor militating in
favor of Venable’s claim: as relevant to the § 922(g) offense,
which criminalizes possession of a firearm by a convicted
felon, Venable, Turner, and Zechman each have that status,
and were therefore identically situated in that regard. With
UNITED STATES v. VENABLE 15
respect to the fifth Olvis factor, the defendant’s candor and
willingness to plead guilty, we note that unlike Venable, who
was obstreperous towards law enforcement and did not plead
guilty, Turner and Zechman appear to have immediately
pleaded guilty and cooperated with law enforcement. Indeed,
it was that cooperation that led the police to Venable.
The sixth, seventh, eight, and ninth factors—the amount of
resources required to convict the defendant, the extent of pro-
secutorial resources, the potential impact of a prosecution on
related investigations and prosecutions, and prosecutorial pri-
orities for addressing specific types of illegal conduct—are all
affected by Project Exile’s role in this case. Venable’s case
was referred to the United States Attorney’s Office by state
authorities in Richmond pursuant to a well-established, long-
standing, federal-state law enforcement initiative, for which
Richmond authorities provide resources, including a prosecu-
tor to assist with federal prosecutions. By contrast, Turner and
Zechman could not have been prosecuted under that initiative,
and Campbell County does not provide any resources for fed-
eral prosecutions in the Eastern District. Moreover, as noted
above, Campbell County authorities expressed an interest in
vindicating the rights of property owners within their county;
federal prosecution could be viewed as impeding the vindica-
tion of that interest. Finally, Project Exile reflects prosecu-
torial priorities for addressing a specific type of illegal
conduct: cases involving firearm-related offenses which are
referred to federal authorities by local and state authorities.
Again, it bears note that in order to prosecute Turner and
Zechman, the United States Attorney’s Office for the Eastern
District of Virginia would have had to reach outside the Proj-
ect Exile referral process, outside the geographic reach of
Project Exile, and outside its own district.
In sum, given all of the circumstances and differentiating
factors between Venable’s case on the one hand, and Turner’s
and Zechman’s cases on the other hand, Venable has failed to
make a credible showing that a similarly situated defendant of
16 UNITED STATES v. VENABLE
another race has evaded prosecution under Project Exile in
order to obtain discovery on his selective prosecution claim.
B.
We note as well that even if Venable had produced some
evidence establishing that similarly situated individuals of a
different race were not prosecuted, in order to obtain discov-
ery on his selective prosecution claim he would also have to
produce some evidence establishing that the decision to prose-
cute him was invidious or in bad faith. For the reasons dis-
cussed below, he falls short in this regard as well.
In order for a decision to prosecute to be "invidious or in
bad faith," thereby reflecting discriminatory intent, the gov-
ernment must be more than aware that a federal prosecutorial
policy may result in the prosecution of one group more than
another because discriminatory intent implies that the govern-
ment "selected or reaffirmed a particular course of action at
least in part ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon an identifiable group." Wayte v. United States,
470 U.S. 598, 610 (1985) (internal quotations omitted). We
have held that, absent an appropriate basis for comparison,
statistical evidence of racial disparity alone cannot establish
any element of a discrimination claim. Olvis, 97 F.3d at 745.
"This is consistent," we have observed, "with the general rule
that in cases involving discretionary judgments essential to
the criminal justice process, statistical evidence of racial dis-
parity is insufficient to infer that prosecutors in a particular
case acted with a discriminatory purpose." Id. at 746 (internal
quotations omitted). Notably, there is not "a presumption that
unexplained statistical evidence of racial disparity proves
racial animus." Id. Instead, it is the defendant who bears the
burden of making a credible showing that the statistical evi-
dence amounts to some evidence of discriminatory intent. Id.
In Olvis, we found fault with a statistical study that showed
that in the Norfolk-Newport News, Virginia, area, "of all the
UNITED STATES v. VENABLE 17
federal crack cocaine trafficking prosecutions in federal court
since 1992 in which the defendant’s race was apparent, over
90 percent involved black defendants." 97 F.3d at 745. We
determined that the study "provide[d] no statistical evidence
on the number of blacks who were actually committing crack
cocaine offenses or whether a greater percentage of whites
could have been prosecuted for such crimes." Id. Without an
appropriate basis for comparison, the percentage of African
American crack cocaine defendants proved nothing, unless it
could be presumed that crack cocaine violations were com-
mitted proportionately by all races, an assumption rejected by
the Supreme Court in Armstrong. See 517 U.S. at 470.
Just as in Olvis, the statistical evidence provided by Ven-
able, showing that for the three years preceding his prosecu-
tion—2005, 2006, and 2007—approximately 87 percent of
the firearms prosecutions under Project Exile were brought by
black defendants, contains no appropriate basis for compari-
son. It provides no statistical evidence about the number of
blacks who were actually committing firearms offenses or
whether a greater percentage of whites could have been prose-
cuted for such crimes. It does not even provide any evidence
regarding the proportion of blacks residing within the relevant
geographical area.
Moreover, even were we to accept Venable’s statistical evi-
dence as probative of discriminatory intent, we are unper-
suaded by the additional facts that Venable points to as
evidence that the prosecution against him was invidious or in
bad faith. First, we reject his assertion, for which he offers no
supporting evidence, that the circumstances surrounding his
arrest and indictment "raise[ ] questions concerning whether
the Government’s decision to prosecute him under Project
Exile was affected by race." Appellant’s Br. 18. Second, his
contentions that the government’s arguments explaining why
Venable’s selective prosecution claim should fail are "incon-
sistent," Appellant’s Br. 18, and that the government chose
not to prosecute two "far more culpable" white individuals,
18 UNITED STATES v. VENABLE
Appellant’s Br. 19, simply rehash his meritless argument that
other similarly situated individuals were not prosecuted.
In sum, on the record presented, Venable has failed to carry
his burden of producing some evidence to make a credible
showing of both discriminatory effect and intent.4
4
Finally, we feel compelled to note that advocates, including govern-
ment lawyers, do themselves a disservice when their briefs contain disre-
spectful or uncivil language directed against the district court, the
reviewing court, opposing counsel, parties, or witnesses. See, e.g., Dranow
v. United States, 307 F.2d 545, 549 (8th Cir. 1962) ("In light of the too
numerous decisions of this and other Courts of Appeals, it should not be
necessary for us to repeat, [a] brief should not contain language disrespect-
ful to the court nor to opposing counsel and ordinarily a brief containing
such scurrilous and scandalous matter should be stricken from the files."
(internal quotations omitted)); 36 C.J.S. Federal Courts § 557 (2011)
("Abusive, scandalous, scurrilous, . . . or disrespectful language . . . should
not be inserted in the brief."); 4 C.J.S. Appeal and Error § 734 (2011)
("The appellate brief should not contain disrespectful, scandalous, or abu-
sive language directed against the court of review, trial judge, opposing
counsel, or parties or witnesses. A brief in no case can be used as a vehicle
for the conveyance of . . . insult, disrespect or professional discourtesy of
any nature . . . invectives are not argument, and have no place in legal dis-
cussion."). Unfortunately, the government’s brief is replete with such lan-
guage: it disdains the district court’s "abrupt handling" of Appellant’s first
case, Appellee’s Br. 19; sarcastically refers to Appellant’s previous coun-
sel’s "new-found appreciation for defendant’s mental abilities," Appellee’s
Br. 21; criticizes the district court’s "oblique language" on an issue unre-
lated to this appeal, Appellee’s Br. 22; states that the district court opinion
in Jones "revealed a crabby and complaining reaction to Project Exile,"
Appellee’s Br. 57; insinuates that the district court’s concerns "require[ ]
a belief in the absurd that is similar in kind to embracing paranormal con-
spiracy theories," Appellee’s Br. 59; and accuses Appellant of being a
"charlatan" and "exploit[ing] his identity as an African-American," Appel-
lee’s Br. 61. The government is reminded that such disrespectful and
uncivil language will not be tolerated by this court. See Ruston v. Dallas
County Tex., 320 F. App’x. 262, 263 (5th Cir. 2009) (striking pleadings
because they "contain abusive and disrespectful language"); Carter v.
Daniels, 91 F. App’x. 83, 84 (10th Cir. 2004) (finding party’s "language
in his brief intemperate and disrespectful of this court and the district
court," and cautioning party that it may be subject to sanctions if it contin-
UNITED STATES v. VENABLE 19
III.
For the foregoing reasons we affirm the judgment of the
district court.
AFFIRMED
ues to file such pleadings); Hamad v. Desahazo, 1996 WL 556788, at *1
(5th Cir. 1996)(unpublished) (warning party that "the use of abusive and
uncivil language, as displayed in his appellate brief, will not be tolerated
by this court" and directing him to "review all pending appeals to make
sure that they do not contain such language").