“To succeed on a claim of selective prosecution, the defendant - TopicsExpress



          

“To succeed on a claim of selective prosecution, the defendant has a two-part burden. He must establish both ‘that others similarly situated have not been prosecuted and that the allegedly discriminatory prosecution . . . was based on an impermissible motive.’” United States v. Greene, 698 F.2d 1364, 1368 (9th Cir.1983) (quoting United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981)). Vindictive prosecution claims may raise due process questions, see United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982) (“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.”), equal protection issues, see United States v. Choate, 619 F.2d 21, 23 (9th Cir.), cert. denied, 449 U.S. 951, 101 S.Ct. 354, 66 L.Ed.2d 214 (1980) (where a criminal defendant can establish that his selection was deliberately based on an unjustifiable standard, such as race, religion, or other arbitrary classification), or, in the strange world of forfeitures, Eighth Amendment issues. See Note, Shouldn’t the Punishment Fit the Crime?: United States v. One 1986 Mercedes Benz, and $2,710.00 in United States Currency, and Cynthia Parker, 55 Brooklyn L.Rev. 417 (1989). But see United States v. Tax Lot 1500, 861 F.2d 232 (9th Cir.1988) (finding the proportionality requirement of the Eighth Amendment inapplicable to an in rem civil forfeiture proceeding), cert. denied, ___ U.S. ___, 110 S.Ct. 364, 107 L.Ed.2d 351 (1989).” U.S. v. ONE 1985 MERCEDES, 917 F.2d 415 (9th Cir. 1990). “... we note along with the Eleventh Circuit that denial of individual rights by arbitrary and capricious government conduct also poses a threat to our government’s integrity. U.S. v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1548-49 (11th Cir. 1987).” 28
Posted on: Sat, 27 Dec 2014 12:31:02 +0000

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