dissenting:
I would affirm both the district court’s denial of A1 Jibori’s selective prosecution motion and his conviction.
The district court properly concluded that the government did not selectively prosecute A1 Jibori because of his national origin. Al Jibori has offered no substantial evidence other than the Sack affidavit to show that he has been selectively prosecuted, and nothing in the Sack affidavit suggests that “the government’s selection of [Al Jibori] for prosecution has been invidious or in bad faith.” United States v. Fares, 978 F.2d 52, 59 (2d Cir.1992).
According to the Sack affidavit, the INS recommended A1 Jibori’s prosecution for two reasons. First, the INS was “seeking to increase preventive law enforcement efforts ... at Kennedy Airport.” Second, A1 Jibori was “from the same region” and “had used a comparable means of entry into the United States” as another individual, Ahmad Mohammad Ajaj, who had earlier been convicted of passport fraud and was subsequently convicted for his involvement in the February 1993 bombing of the World Trade Center. Sack stated that he authorized A1 Jibori’s prosecution based on this information.
These reasons do not make out a prima facie showing of invidiousness or bad faith. At most, the affidavit proves that A1 Jibori’s Middle Eastern origin was one of two characteristics A1 Jibori shared with Ajaj. While the majority dismisses the second shared characteristic — the use of an altered Swedish passport to gain entry into the United States — as “superficial,” there is no evidence to suggest that the coincidence of Middle Eastern origin and the use of an altered Swedish passport is so commonplace that the government acted in bad faith in relying upon it.
Nor does anything in the Sack affidavit require us to remand to gather additional evidence from the government. A defendant is not entitled, to discovery on the issue of invidiousness or bad faith without “some evidence tending to show the existence” of discriminatory intent on the government’s part. United States v. Armstrong, — U.S. -, -, 116 S.Ct. 1480, 1488, 134 L.Ed.2d 687 (1996) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). The majority instead asks the government to provide additional evidence supporting its decision to prosecute in the hope that it might unearth something “warranting denial of A1 Jibori’s motion.” I disagree. First, the burdens of proof and production rest not with the government but with the defendant, at least until the defendant has made a prima facie showing of selective prosecution. See Fares, 978 F.2d at 59. I do not believe — and the majority does not state — that A1 Jibori has made such a showing. Second, I believe that granting additional discovery is unwise. Any similarities between A1 Jibori and Ajaj or between A1 Jibori and the INS’s terrorist profile not yet disclosed are likely to be highly sensitive facts that we should not require the government to reveal, whether to the public or to the court for in camera review, unless we have good reason to believe that the government is acting in bad faith. A1 Jibori has given us no such reason. Likewise, we should not require the government to release its terrorist profile or its policy on investigating or prosecuting passport fraud at Kennedy Airport.
The Supreme Court has emphasized that “the decision to prosecute is particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). “Examining the basis of a prosecution ... threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prose-cutorial effectiveness by revealing the Government’s enforcement policy.” Id. There is consequently a strong presumption that a prosecutor has not engaged in discriminatory conduct, which may be overcome only by “clear evidence to the contrary.” Armstrong, — U.S. at -, 116 S.Ct. at 1486. This case illustrates the dangers of granting discovery on unsubstantiated selective prose*28cution motions. Having offered virtually no evidence in support of his claim, Al Jibori has managed to expose part of the government’s strategy in screening potential security threats entering the United States. The majority would now put the government in the position of disclosing further pieces in its strategy simply to corroborate its own intuition that the government did not act in bad faith.
Since I also believe that there was sufficient evidence to convict, I would affirm the judgment of the district court.