Prosecutorial discretion

Georgetown Law Journal, Jun 1998 by Sheer, Lara Beth

715. Compare U.S. v. Hoover, 727 F.2d 387, 389 (Sth Cir. 1984) (proof that only three union members prosecuted out of 300 persons who failed to report for work sufficient to meet first prong of selective prosecution test) and U.S. v. Hazel, 696 F.2d 473, 475 (6th Cir. 1983) (proof that only two outspoken members of tax protest group prosecuted for tax violations when 34 other blameworthy members not prosecuted sufficient to satisfy first prong of selective prosecution test) with U.S.

v. Lopez, 71 F.3d 954, 963 (Ist Cir. 1995) (prosecution of multiple false loan applications totalling considerable sum not selective when government sufficiently refuted defendant's claims that similarly situated persons normally pursued civilly), cert. denied, 116 S. Ct. 2529 (1996); St. German of Alaska Eastern Orthodox Catholic Church v. U.S., 840 F.2d 1087, 1096 (2d Cir. 1988) (prosecution of taxpayer not selective when defendant unable to demonstrate single instance when IRS failed to investigate religious organization for soliciting donation of depressed real estate); U.S. v. Olvis, 97 F.3d 739, 744-45 (4th Cir.1996) (defendant failed to establish that government did not prosecute similarly situated individuals of a different race when individuals of a different race had significantly different prosecutorial profiles, and when there were about 50 other black conspirators whom prosecutors chose not to indict); U.S. v. Cooks, 52 F.3d 101, 105 (5th Cir. 1995) (prosecution of African-American defendant in federal rather than state court to obtain stiffer sentence not selective where evidence showed increase in minority prosecutions but no evidence showed similarly situated white defendants more often prosecuted in state rather than federal court); U.S. v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996) (prosecution for Lacey Act violations not selective when government presented evidence of inability to link other parties to interstate transport of illegally obtained catfish); U.S. v. Brown, 9 F.3d 1374, 1376 (8th Cir. 1993) (prosecution of African-American defendant not selective although penalties for possession of crack cocaine as compared to powder cocaine have disparate effect on African-Americans when defendant failed to establish that others similarly situated were not prosecuted); U.S. v. Estrada-Plata, 57 F.3d 757, 760-61 (9th Cir. 1995) (prosecution's use of "fast-track" plea bargaining policy for deported alien found in U.S. after felony conviction not selective when no evidence similarly situated illegal aliens given more significant time to evaluate plea offer); U.S. v. Furman, 31 F.3d 1034, 1037 (lOth Cir. 1994) (prosecution of bank director for fraud not selective when eight others also prosecuted in connection with alleged fraud); Jones v. White, 992 F.2d 1548, 1572-73 (llth Cir. 1993) (prosecution of "habitual offenders" not selective because based on random application of statute, likely attributable to negligence or error; no violation of equal protection rights) and Juluke v. Hodel, 811 F.2d 1553, 1561-62 (D.C. Cir. 1987) (prosecution for violating parcels regulation near White House not selective when defendants did not voluntarily comply with officers' request as did others not prosecuted).