517 U.S. 456116 S.Ct. 1480134 L.Ed.2d 687
UNITED STATESv.ARMSTRONG et al.Certiorari to the United States Court of Appeals for the Ninth Circuit.
No. 95-157.
Supreme Court of the United States
Argued February 26, 1996
Decided May 13, 1996

Syllabus*
In response to their indictment on ``crack'' cocaine and other federal  charges, respondents filed a motion for discovery or for dismissal,  alleging that they were selected for prosecution because they are black.  The District Court granted the motion over the Government's argument,  among others, that there was no evidence or allegation that it had  failed to prosecute nonblack defendants.  When the Government indicated  it would not comply with the discovery order, the court dismissed the case.  The en banc Ninth Circuit affirmed, holding that the proof requirements for a selective-prosecution claim do not compel a defendant  to demonstrate that the Government has failed to prosecute others who  are similarly situated.
Held:  For a defendant to be entitled to discovery on a claim that he  was singled out for prosecution on the basis of his race, he must make a  threshold showing that the Government declined to prosecute similarly  situated suspects of other races.  Pp. 4-14.
(a) Contrary to respondents' contention, Federal Rule of Criminal  Procedure 16, which governs discovery in criminal cases, does not  support the result reached by the Ninth Circuit in this case.  Rule 16(a)(1)(C) -- which, inter alia, requires the government to permit discovery of documents that are "material to the preparation of the  . . . defense" or "intended for use by the government as evidence in  chief"--applies only to the preparation of the "defense" against the  Government's case in chief, not to the preparation of  selective-prosecution claims.  This reading creates a perceptible  symmetry between the types of documents referred to in the Rule.  Moreover, its correctness is established beyond peradventure by Rule  16(a)(2), which, as relevant here, exempts from discovery the work  product of government attorneys and agents made in connection with the case's investigation. Respondents' construction of "defense" as including selective-prosecution claims is implausible: It creates the  anomaly of a defendant's being able to examine all government work  product under Rule 16(a)(1)(C), except that which is most pertinent, the  work product in connection with his own case, under Rule 16(a)(2).  Pp.  4-6.
(b) Under the equal protection component of the Fifth Amendment's Due  Process Clause, the decision whether to prosecute may not be based on an  arbitrary classification such as race or religion.  Oyler v. Boles, 368  U. S. 448, 456.  In order to prove a selective-prosecution claim, the  claimant must demonstrate that the prosecutorial policy had a  discriminatory effect and was motivated by a discriminatory purpose.  Ibid.  To establish a discriminatory effect in a race case, the claimant  must show that similarly situated individuals of a different race were  not prosecuted.  Ah Sin v. Wittman, 198 U. S. 500.  Batson v. Kentucky,  476 U. S. 79, and Hunter v. Underwood, 471 U. S. 222, distinguished.  Although Ah Sin involved federal review of a state conviction, a similar  rule applies where the power of a federal court is invoked to challenge  an exercise of one of the core powers of the Executive Branch of the  Federal Government, the power to prosecute.  Discovery imposes many of  the costs present when the Government must respond to a prima facie case  of selective prosecution.  Assuming that discovery is available on an appropriate showing in aid of a selective-prosecution claim, see Wade v.  United States, 504 U. S. 181, the justifications for a rigorous standard  of proof for the elements of such a case thus require a correspondingly  rigorous standard for discovery in aid of it.  Thus, in order to  establish entitlement to such discovery, a defendant must produce  credible evidence that similarly situated defendants of other races  could have been prosecuted, but were not.  In this case, respondents  have not met this required threshold.  Pp. 6-14.  48 F. 3d 1508,  reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor,  Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, and in which  Breyer, J., joined in part.  Souter, J., and Ginsburg, J., filed  concurring opinions.  Breyer, J., filed an opinion concurring in part  and concurring in the judgment.  Stevens, J., filed a dissenting  opinion.
Chief Justice Rehnquist delivered the opinion of the Court.


1
In this case, we consider the showing necessary for a defendant  to be entitled to discovery on a claim that the prosecuting attorney  singled him out for prosecution on the basis of his race.  We conclude  that respondents failed to satisfy the threshold showing: They failed to  show that the Government declined to prosecute similarly situated  suspects of other races.


2
In April 1992, respondents were indicted in the United States District Court for the Central District of California on charges of  conspiring to possess with intent to distribute more than 50 grams of  cocaine base (crack) and conspiring to distribute the same, in violation  of 21 U. S. C. Section(s) 841 and 846 (1988 ed. and Supp. IV), and  federal firearms offenses.  For three months prior to the indictment,  agents of the Federal Bureau of Alcohol, Tobacco, and Firearms and the  Narcotics Division of the Inglewood, California, Police Department had  infiltrated a suspected crack distribution ring by using three  confidential informants.  On seven separate occasions during this  period, the informants had bought a total of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales.  The agents searched the hotel room in which the sales were transacted, arrested respondents Armstrong and Hampton in the room, and  found more crack and a loaded gun.  The agents later arrested the other  respondents as part of the ring.


3
In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were  selected for federal prosecution because they are black.  In support of  their motion, they offered only an affidavit by a "Paralegal  Specialist," employed by the Office of the Federal Public Defender  representing one of the respondents.  The only allegation in the  affidavit was that, in every one of the 24 Section(s) 841 or 846 cases  closed by the office during 1991, the defendant was black.  Accompanying  the affidavit was a "study" listing the 24 defendants, their race,  whether they were prosecuted for dealing cocaine as well as crack, and  the status of each case.1


4
The Government opposed the discovery motion, arguing, among other things, that there was no evidence or allegation "that the Government has acted unfairly or has prosecuted non-black defendants or  failed to prosecute them."  App. 150.  The District Court granted the  motion.  It ordered the Government (1) to provide a list of all cases  from the last three years in which the Government charged both cocaine  and firearms offenses, (2) to identify the race of the defendants in  those cases, (3) to identify what levels of law enforcement were  involved in the investigations of those cases, and (4) to explain its  criteria for deciding to prosecute those defendants for federal cocaine offenses. Id., at 161-162.


5
The Government moved for reconsideration of the District Court's  discovery order.  With this motion it submitted affidavits and other  evidence to explain why it had chosen to prosecute respondents and why  respondents' study did not support the inference that the Government was  singling out blacks for cocaine prosecution.  The federal and local  agents participating in the case alleged in affidavits that race played  no role in their investigation.  An Assistant United States Attorney explained in an affidavit that the decision to prosecute met the general  criteria for prosecution, because


6
"there was over 100 grams of cocaine base involved, over      twice  the threshold necessary for a ten year mandatory      minimum sentence; there  were multiple sales involving      multiple defendants, thereby indicating a  fairly substantial      crack cocaine ring; . . . there were multiple federal      firearms violations intertwined with the narcotics      trafficking; the  overall evidence in the case was extremely      strong, including audio and  videotapes of defendants; . . .      and several of the defendants had  criminal histories      including narcotics and firearms violations."  Id.,  at 81.


7
The Government also submitted sections of a published 1989 Drug  Enforcement Administration report which concluded that "[l]arge-scale,  interstate trafficking networks controlled by Jamaicans, Haitians and  Black street gangs dominate the manufacture and distribution of crack."  J. Featherly & E. Hill, Crack Cocaine Overview 1989; App. 103.


8
In response, one of respondents' attorneys submitted an affidavit alleging that an intake coordinator at a drug treatment center  had told her that there are "an equal number of caucasian users and  dealers to minority users and dealers."  Id., at 138. Respondents also  submitted an affidavit from a criminal defense attorney alleging that in  his experience many nonblacks are prosecuted in state court for crack  offenses, id., at 141, and a newspaper article reporting that Federal  "crack criminals . . . are being punished far more severely than if they  had been caught with powder cocaine, and almost every single one of them is black," Newton, Harsher Crack Sentences Criticized as Racial Inequity, Los Angeles Times, Nov. 23, 1992, p. 1; App. 208-210.


9
The District Court denied the motion for reconsideration. When  the Government indicated it would not comply with the court's discovery  order, the court dismissed the case.2


10
A divided three-judge panel of the Court of Appeals for the Ninth Circuit reversed, holding that, because of the proof requirements  for a selective-prosecution claim, defendants must "`provide a colorable  basis for believing that `others similarly situated have not been  prosecuted'" to obtain discovery.  21 F. 3d 1431, 1436 (1994) (quoting  United States v. Wayte, 710 F. 2d 1385, 1387 (CA9 1983), aff'd, 470 U.  S. 598 (1985)).  The Court of Appeals voted to rehear the case en banc,  and the en banc panel affirmed the District Court's order of dismissal,  holding that "a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated."  48 F. 3d 1508, 1516 (1995) (emphasis deleted).  We granted certiorari to  determine the appropriate standard for discovery for a  selective-prosecution claim.  516 U. S. ___ (1995).


11
Neither the District Court nor the Court of Appeals mentioned Federal Rule of Criminal Procedure 16, which by its terms governs discovery in criminal cases.  Both parties now discuss the Rule in their  briefs, and respondents contend that it supports the result reached by  the Court of Appeals.  Rule 16 provides, in pertinent part:


12
"Upon request of the defendant the government shall permit      the  defendant to inspect and copy or photograph books,      papers, documents,  photographs, tangible objects, buildings      or places, or copies or  portions thereof, which are within      the possession, custody or control of  the government, and      which are material to the preparation of the  defendant's      defense or are intended for use by the government as      evidence in chief at the trial, or were obtained from or      belong to the  defendant."  Fed. Rule Crim. Proc.      16(a)(1)(C).


13
Respondents argue that documents "within the possession . . . of  the government" that discuss the government's prosecution strategy for  cocaine cases are "material" to respondents' selective-prosecution  claim.  Respondents argue that the Rule applies because any claim that  "results in nonconviction" if successful is a "defense" for the Rule's  purposes, and a successful selective-prosecution claim has that effect.  Tr. of Oral Arg. 30.


14
We reject this argument, because we conclude that in the context  of Rule 16 "the defendant's defense" means the defendant's response to  the Government's case-in-chief.  While it might be argued that as a  general matter, the concept of a "defense" includes any claim that is a  "sword," challenging the prosecution's conduct of the case, the term may  encompass only the narrower class of "shield" claims, which refute the Government's arguments that the defendant committed the crime charged.  "defense" means an argument in response to the prosecution's  case-in-chief, there is a perceptible symmetry between documents  "material to the preparation of the defendant's defense," and, in the  very next phrase, documents "intended for use by the government as  evidence in chief at the trial." If this symmetry were not persuasive  enough, paragraph (a)(2) of Rule 16 establishes beyond peradventure that  "defense" in section (a)(1)(C) can refer only to defenses in response to  the Government's case-in-chief.  Rule 16(a)(2), as relevant here, exempts from defense inspection "reports, memoranda, or other internal  government documents made by the attorney for the government or other  government agents in connection with the investigation or prosecution of  the case." Under Rule 16(a)(1)(C), a defendant may examine documents  material to his defense, but, under Rule 16(a)(2), he may not examine  Government work product in connection with his case.  If a selective-prosecution claim is a "defense," Rule 16(a)(1)(C) gives the  defendant the right to examine Government work product in every  prosecution except his own. Because respondents' construction of  "defense" creates the anomaly of a defendant's being able to examine all  Government work product except the most pertinent, we find their  construction implausible.  We hold that Rule 16(a)(1)(C) authorizes  defendants to examine Government documents material to the preparation  of their defense against the Government's case-in-chief, but not to the  preparation of selective-prosecution claims.


15
In Wade v. United States, 504 U. S. 181 (1992), we considered whether a federal court may review a Government decision not to file a  motion to reduce a defendant's sentence for substantial assistance to  the prosecution, to determine whether the Government based its decision  on the defendant's race or religion.  In holding that such a decision  was reviewable, we assumed that discovery would be available if the  defendant could make the appropriate threshold showing, although we  concluded that the defendant in that case did not make such a showing.  See id., at 186.  We proceed on a like assumption here.


16
A selective-prosecution claim is not a defense on the merits to  the criminal charge itself, but an independent assertion that the  prosecutor has brought the charge for reasons forbidden by the  Constitution.  Our cases delineating the necessary elements to prove a  claim of selective prosecution have taken great pains to explain that  the standard is a demanding one.  These cases afford a "background  presumption," cf. United States v. Mezzanatto, 513 U. S. ___, ___ (1995)  (slip op., at 8) that the showing necessary to obtain discovery should  itself be a significant barrier to the litigation of insubstantial  claims.


17
A selective-prosecution claim asks a court to exercise judicial  power over a "special province" of the Executive. Heckler v. Chaney,  470 U. S. 821, 832 (1985).  The Attorney General and United States  Attorneys retain "`broad discretion'" to enforce the Nation's criminal  laws. Wayte v. United States, 470 U. S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U. S. 368, 380, n. 11 (1982)).  They have this  latitude because they are designated by statute as the President's  delegates to help him discharge his constitutional responsibility to  "take Care that the Laws be faithfully executed."  U. S. Const., Art. II, Section(s) 3; see 28 U. S. C. Section(s) 516, 547.  As a result,  "[t]he presumption of regularity supports" their prosecutorial decisions  and "in the absence of clear evidence to the contrary, courts presume  that they have properly discharged their official duties."  United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926).  In the  ordinary case, "so long as the prosecutor has probable cause to believe  that the accused committed an offense defined by statute, the decision  whether or not to prosecute, and what charge to file or bring before a  grand jury, generally rests entirely in his discretion."  Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978).


18
Of course, a prosecutor's discretion is "subject to constitutional constraints."  United States v. Batchelder, 442 U. S.  114, 125 (1979). One of these constraints, imposed by the equal  protection component of the Due Process Clause of the Fifth Amendment,  Bolling v. Sharpe, 347 U. S. 497, 500 (1954), is that the decision  whether to prosecute may not be based on "an unjustifiable standard such  as race, religion, or other arbitrary classification," Oyler v. Boles,  368 U. S. 448, 456 (1962). A defendant may demonstrate that the  administration of a criminal law is "directed so exclusively against a  particular class of persons . . . with a mind so unequal and oppressive"  that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886).


19
In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "clear  evidence to the contrary."  Chemical Foundation, supra, at 14-15.  We  explained in Wayte why courts are "properly hesitant to examine the  decision whether to prosecute."  470 U. S., at 608.  Judicial deference  to the decisions of these executive officers rests in part on an  assessment of the relative competence of prosecutors and courts.  "Such  factors as the strength of the case, the prosecution's general  deterrence value, the Government's enforcement priorities, and the  case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to  undertake."  Id., at 607. It also stems from a concern not to  unnecessarily impair the performance of a core executive constitutional  function.  "Examining the basis of a prosecution delays the criminal  proceeding, threatens to chill law enforcement by subjecting the  prosecutor's motives and decisionmaking to outside inquiry, and may  undermine prosecutorial effectiveness by revealing the Government's enforcement policy."  Ibid.


20
The requirements for a selective-prosecution claim draw on "ordinary equal protection standards."  Id., at 608.  The claimant must  demonstrate that the federal prosecutorial policy "had a discriminatory  effect and that it was motivated by a discriminatory purpose."  Ibid.;  accord, Oyler, supra, at 456. To establish a discriminatory effect in a  race case, the claimant must show that similarly situated individuals of  a different race were not prosecuted.  This requirement has been  established in our case law since Ah Sin v. Wittman, 198 U. S. 500   (1905).  Ah Sin, a subject of China, petitioned a California state court  for a writ of habeas corpus, seeking discharge from imprisonment under a  San Francisco county ordinance prohibiting persons from setting up  gambling tables in rooms barricaded to stop police from entering.  Id.,  at 503.  He alleged in his habeas petition "that the ordinance is  enforced `solely and exclusively against persons of the Chinese race and  not otherwise.'" Id., at 507.  We rejected his contention that this  averment made out a claim under the Equal Protection Clause, because it  did not allege "that the conditions and practices to which the ordinance  was directed did not exist exclusively among the Chinese, or that there  were other offenders against the ordinance than the Chinese as to whom  it was not enforced."  Id., at 507-508.


21
The similarly situated requirement does not make a selective-prosecution claim impossible to prove.  Twenty years before Ah  Sin, we invalidated an ordinance, also adopted by San Francisco, that  prohibited the operation of laundries in wooden buildings.  Yick Wo, 118  U. S., at 374.  The plaintiff in error successfully demonstrated that  the ordinance was applied against Chinese nationals but not against  other laundry-shop operators. The authorities had denied the  applications of 200 Chinese subjects for permits to operate shops in  wooden buildings, but granted the applications of 80 individuals who  were not Chinese subjects to operate laundries in wooden buildings  "under similar conditions."  Ibid.  We explained in Ah Sin why the  similarly situated requirement is necessary:


22
"No latitude of intention should be indulged in a case like      this.  There should be certainty to every intent.  Plaintiff      in error  seeks to set aside a criminal law of the State, not      on the ground that  it is unconstitutional on its face, not      that it is discriminatory in  tendency and ultimate actual      operation as the ordinance was which was  passed on in the      Yick Wo case, but that it was made so by the manner of  its      administration.  This is a matter of proof, and no fact      should be  omitted to make it out completely, when the power      of a Federal court is  invoked to interfere with the course      of criminal justice of a State."  198 U. S., at 508 (emphasis      added).


23
Although Ah Sin involved federal review of a state conviction,  we think a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute.


24
Respondents urge that cases such as Batson v. Kentucky, 476 U.  S. 79 (1986), and Hunter v. Underwood, 471 U. S. 222 (1985), cut against  any absolute requirement that there be a showing of failure to prosecute  similarly situated individuals.  We disagree.  In Hunter, we invalidated  a state law disenfranchising persons convicted of crimes involving moral  turpitude.  Id., at 233.  Our holding was consistent with ordinary equal  protection principles, including the similarly situated requirement.  There was convincing direct evidence that the State had enacted the provision for the purpose of disenfranchising blacks, id., at 229-231,  and indisputable evidence that the state law had a discriminatory effect  on blacks as compared to similarly situated whites: Blacks were "`by  even the most modest estimates at least 1.7 times as likely as whites to  suffer disfranchisement under'" the law in question.  Id., at 227   (quoting Underwood v. Hunter, 730 F. 2d 614, 620 (CA11 1984)).  Hunter  thus affords no support for respondent's position.


25
In Batson, we considered "[t]he standards for assessing a prima  facie case in the context of discriminatory selection of the venire" in  a criminal trial.  476 U. S., at 96.  We required a criminal defendant  to show "that the prosecutor has exercised peremptory challenges to  remove from the venire members of the defendant's race" and that this  fact, the potential for abuse inherent in a peremptory strike, and "any  other relevant circumstances raise an inference that the prosecutor used  that practice to exclude the veniremen from the petit jury on account of  their race."  Ibid.  During jury selection, the entire res gestae take  place in front of the trial judge.  Because the judge has before him the  entire venire, he is well situated to detect whether a challenge to the  seating of one juror is part of a "pattern" of singling out members of a  single race for peremptory challenges.  See id., at 97.  He is in a  position to discern whether a challenge to a black juror has evidentiary significance; the significance may differ if the venire consists mostly  of blacks or of whites.  Similarly, if the defendant makes out a prima  facie case, the prosecutor is called upon to justify only decisions made  in the very case then before the court.  See id., at 97-98.  The trial  judge need not review prosecutorial conduct in relation to other venires  in other cases.


26
Having reviewed the requirements to prove a selective-prosecution claim, we turn to the showing necessary to obtain  discovery in support of such a claim.  If discovery is ordered, the  Government must assemble from its own files documents which might  corroborate or refute the defendant's claim.  Discovery thus imposes  many of the costs present when the Government must respond to a prima  facie case of selective prosecution.  It will divert prosecutors'  resources and may disclose the Government's prosecutorial strategy.  The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous  standard for discovery in aid of such a claim.


27
The parties, and the Courts of Appeals which have considered the  requisite showing to establish entitlement to discovery, describe this  showing with a variety of phrases, like "colorable basis," "substantial  threshold showing," Tr. of Oral Arg. 5, "substantial and concrete  basis," or "reasonable likelihood," Brief for Respondents Martin et al.  30.  However, the many labels for this showing conceal the degree of  consensus about the evidence necessary to meet it.  The Courts of  Appeals "require some evidence tending to show the existence of the essential elements of the defense," discriminatory effect and discriminatory intent.  United States v. Berrios, 501 F. 2d 1207, 1211   (CA2 1974).


28
In this case we consider what evidence constitutes "some evidence tending to show the existence" of the discriminatory effect  element. The Court of Appeals held that a defendant may establish a  colorable basis for discriminatory effect without evidence that the  Government has failed to prosecute others who are similarly situated to  the defendant. 48 F. 3d, at 1516.  We think it was mistaken in this  view.  The vast majority of the Courts of Appeals require the defendant  to produce some evidence that similarly situated defendants of other  races could have been prosecuted, but were not, and this requirement is  consistent with our equal protection case law.  United States v. Parham,  16 F. 3d 844, 846-847 (CA8 1994); United States v. Fares, 978 F. 2d 52, 59-60 (CA2 1992); United States v. Peete, 919 F. 2d 1168, 1176 (CA6  1990); C. E. Carlson, Inc. v. SEC, 859 F. 2d 1429, 1437-1438 (CA10  1988); United States v. Greenwood, 796 F. 2d 49, 52-53 (CA4 1986);  United States v. Mitchell, 778 F. 2d 1271, 1277 (CA7 1985).  As the  three-judge panel explained, "`[s]elective prosecution' implies that a  selection has taken place."  21 F. 3d, at 1436.3


29
The Court of Appeals reached its decision in part because it started "with the presumption that people of all races commit all types  of crimes-not with the premise that any type of crime is the exclusive  province of any particular racial or ethnic group." 48 F. 3d, at  1516-1517.  It cited no authority for this proposition, which seems  contradicted by the most recent statistics of the United States  Sentencing Commission.  Those statistics show that: More than 90% of the  persons sentenced in 1994 for crack cocaine trafficking were black,  United States Sentencing Comm'n, 1994 Annual Report 107 (Table 45);  93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table  13).  Presumptions at war with presumably reliable statistics have no  proper place in the analysis of this issue.


30
The Court of Appeals also expressed concern about the "evidentiary obstacles defendants face."  48 F. 3d, at 1514.  But all of  its sister Circuits that have confronted the issue have required that  defendants produce some evidence of differential treatment of similarly  situated members of other races or protected classes.  In the present  case, if the claim of selective prosecution were well founded, it should  not have been an insuperable task to prove that persons of other races  were being treated differently than respondents.  For instance, respondents could have investigated whether similarly situated persons  of other races were prosecuted by the State of California, were known to  federal law enforcement officers, but were not prosecuted in federal  court.  We think the required threshold-a credible showing of different  treatment of similarly situated persons-adequately balances the  Government's interest in vigorous prosecution and the defendant's  interest in avoiding selective prosecution.


31
In the case before us, respondents' "study" did not constitute  "some evidence tending to show the existence of the essential elements  of" a selective-prosecution claim.  Berrios, supra, at 1211.  The study  failed to identify individuals who were not black, could have been  prosecuted for the offenses for which respondents were charged, but were  not so prosecuted.  This omission was not remedied by respondents'  evidence in opposition to the Government's motion for reconsideration.  The newspaper article, which discussed the discriminatory effect of  federal drug sentencing laws, was not relevant to an allegation of discrimination in decisions to prosecute.  Respondents' affidavits,  which recounted one attorney's conversation with a drug treatment center  employee and the experience of another attorney defending drug  prosecutions in state court, recounted hearsay and reported personal  conclusions based on anecdotal evidence.  The judgment of the Court of  Appeals is therefore reversed, and the case is remanded for proceedings  consistent with this opinion.


32
It is so ordered.


33
djq  Justice Souter, concurring.


34
I join the Court's opinion, but in its discussion of Federal Rule of Criminal Procedure 16 only to the extent of its application to  the issue in this case.


35
djq  Justice Ginsburg, concurring.


36
I do not understand the Court to have created a "major limitation" on the scope of discovery available under Federal Rule of  Criminal Procedure 16.  See post, at 5 (Breyer, J., concurring in part  and concurring in judgment).  As I see it, the Court has decided a  precise issue: whether the phrase "defendant's defense," as used in Rule  with the Court, for reasons the opinion states, that subsection  not called upon to decide here whether Rule 16(a)(1)(C) applies in any  other context, for example, to affirmative defenses unrelated to the merits.  With the caveat that I do not read today's opinion as precedent  foreclosing issues not tendered for review, I join the Court's opinion.


37
djq  Justice Breyer, concurring in part and concurring in the judgment.


38
I write separately because, in my view, Federal Rule of Criminal  Procedure 16 does not limit a defendant's discovery rights to documents  related to the Government's case-in-chief (ante, at 5).  The Rule says  that "the government shall permit the defendant to inspect and copy"  certain physical items (I shall summarily call them "documents") "which  are material to the preparation of the defendant's defense."  Fed. Rule  including (1) a simple response to the Government's case-in-chief, (2)  an affirmative defense unrelated to the merits (such as a Speedy Trial  Act claim), (3) an unrelated claim of constitutional right, (4) a  foreseeable surrebuttal to a likely Government rebuttal, and others. The  Rule's language does not limit its scope to the first item on this list.  To interpret the Rule in this limited way creates a legal distinction  that, from a discovery perspective, is arbitrary.  It threatens to  create two full parallel sets of criminal discovery principles.  And, as  far as I can tell, the interpretation lacks legal support.


39
The Court bases its interpretation upon what it says is a "perceptible symmetry," ante, at 6, between two phrases in Rule defense," and the next phrase, "intended for use by the government as  evidence in chief at the trial."  To test the Court's argument, consider  these two phrases in context.  The Rule says:


40
"Upon request of the defendant the government shall permit      the  defendant to inspect and copy [documents and other      items] . . . which  are material to the preparation of the      defendant's defense or [2]  are intended for use by the      government as evidence in chief at the  trial, or [3] were      obtained from or belong to the defendant." Fed. Rule


41
Though symmetry may reside in the eye of the beholder, I can find no relevant symmetry here.  Rather, the language suggests a simple  three-part categorization of the documents and other physical items that  the Rule requires the Government to make available to the defendant.  From a purely linguistic perspective, there is no more reason to import  into the first category a case-in-chief-related limitation (from the  second category) than some kind of defendant's-belongings-related limitation (from the third category).


42
Rule 16 creates these three categories for a reason that belies  "symmetry"--namely to specify two sets of items (the Government's  case-in-chief evidence, the defendant's belongings) that the Government  must make available to the defendant without a preliminary showing of  "materiality."  The Rule's first category creates a residual  classification (items "material to the preparation of the defendant's  defense") that require a preliminary "materiality" showing.  The  Committee thought, however, that "[l]imiting the rule to situations in  which the defendant can show that the evidence is material seems unwise.  . . . For this reason subdivision (a)(1)(C) also contains language to  compel disclosure if the government intends to use the property as  evidence at the trial or if the property was obtained from or belongs to  the defendant."  Advisory Committee's Notes on Fed. Rule Crim. Proc. 16,  18 U. S. C. App., p. 762 (second and third categories added to specify  that, without a special showing of materiality, certain items are almost  always "material") (citing 1 C. Wright, Federal Practice and Procedure  Section(s) 254, p. 510, n. 58, p. 513, n. 70 (1969)).  Nothing in the  Notes, or in the Rule's language, suggests that the residual category of items "material to the preparation of the defendant's defense," means to  cover only those items related to the case-in-chief.


43
The only other reason the majority advances in support of its "case-in-chief" limitation concerns a later part of the Rule, paragraph  16(a)(2).  As relevant here, that paragraph exempts Government attorney  work product from certain of Rule 16's disclosure requirements.  In the  majority's view, since (1) a defendant asserting a valid "selective  prosecution" defense would likely need prosecution work product to make  his case, but (2) the Rule exempts prosecution work product from  discovery, then (3) the Rule must have some kind of implicit limitation   (such as a "case-in-chief" limitation) that makes it irrelevant to  defense efforts to assert "selective prosecution" defenses.


44
The majority's conclusion, however, does not follow from its premises. For one thing, Rule 16's work-product exception may itself  contain implicit exceptions.  After all, "[t]he privilege derived from  the work-product doctrine is not absolute."  United States v. Nobles,  422 U. S. 225, 239 (1975); see also 8 C. Wright, A. Miller & R. Marcus,  Federal Practice and Procedure Section(s) 2022, p. 324 (2d ed. 1994) (in  civil context, work product "is discoverable only on a substantial  showing of `necessity or justification'") (quoting Hickman v. Taylor,  329 U. S. 495, 510 (1947)); J. Ghent, Development, Since Hickman v. Taylor, of Attorney's "Work Product" Doctrine, 35 A.L.R. 3d 412, 465-469, Section(s) 25 (1971) (in civil context, work product protection  is not absolute, but is a "qualified privilege or immunity").  To the  extent such a reading permits a defendant to obtain "work product" in an  appropriate case (say, with a strong prima facie showing of selective  prosecution), the Court's problem does not exist.  Of course, to read  the work product exception as containing some such implicit exception  itself represents a departure from the Rule's literal language.  But, is it not far easier to believe the Rule's authors intended some such small  implicit exception to an exception, consistent with the language and  purpose of the Rule, than that they intended the very large exception  created by the Court?


45
For another thing, even if one reads the work  product exception literally, the Court's problem disappears as long as courts can supplement Rule 16 discovery with discovery based upon other  legal principles.  The language of the work product exception suggests  the possibility of such supplementation, for it says, not that work  product is "exemp[t]" from discovery, ante, at 6, but that "this rule"  does not authorize discovery of the prosecutor's work product.  Fed.  Rule Civ. Proc. 16(a)(2). The Advisory Committee's Notes make clear  that the Committee believed that other rules of law may authorize (or  require) discovery not mentioned in the Rule.  See, e.g., Advisory Committee's Notes on Rule 16, 18 U. S. C. App., p. 762, 763 (discussion  of Brady v. Maryland, 373 U. S. 83 (1963), which the Rule does not  codify); 18 U. S. C. App., p. 761 ("[Rule 16] is intended to prescribe  the minimum amount of discovery to which the parties are entitled.  It  is not intended to limit the judge's discretion to order broader  discovery in appropriate cases"); see also 2 C. Wright, Federal Practice  and Procedure Section(s) 254, p. 81, and n. 60 (2d ed. 1982) ("Because  Brady is based on the Constitution, it overrides court-made rules of procedure.  Thus the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the  prosecutor's duty to disclose material that is within Brady" (footnotes  omitted).  Of course, the majority, in a sense, reads the Rule as  permitting supplementation, but it does more.  It goes well beyond the  added (say, constitutionally related) rule supplementation needed to  overcome its problem; instead, it shrinks the Rule by unnecessarily  creating a major limitation on its scope.Finally, and in any event, here  the defendants sought discovery of information that is not work product.  See ante, at 2-3.  Thus, we need not decide whether in an appropriate  case it would be necessary to find an implicit exception to the language of Rule 16(a)(2), or to find an independent constitutional source for  the discovery, or to look for some other basis.


46
In sum, neither the alleged "symmetry" in the structure of Rule  the majority's limitation of discovery under Rule 16(a)(1)(C) to  documents related to the government's "case-in-chief."  Rather, the  language and legislative history make clear that the Rule's drafters  meant it to provide a broad authorization for defendants' discovery, to  be supplemented if necessary in an appropriate case.  Whether or not one  can also find a basis for this kind of discovery in other sources of whether the defendants' discovery request satisfied the Rule's requirement that the discovery be "material to the preparation of the  defendant's defense."I believe that the defendants' request did not  satisfy this threshold. Were the "selective prosecution" defense valid  in this case--i.e., were there "clear evidence," United States v.  Chemical Foundation, Inc., 272 U. S. 1, 14 (1926), that the Federal  Government's prosecutorial policy "had a discriminatory effect and . . .  was motivated by a discriminatory purpose," Wayte v. United States, 470  U. S. 598, 608 (1985), it should have been fairly easy for the  defendants to find, not only instances in which the Federal Government  prosecuted African Americans, but also some instances in which the  Federal Government did not prosecute similarly situated caucasians.  The defendants' failure to do so, for the reasons the Court sets forth,  amounts to a failure to make the necessary threshold showing in respect  to materiality.  See 2 C. Wright, Federal Practice and Procedure  Section(s) 254, pp. 66-67 (2d ed. 1982); United States v. Balk, 706 F.  2d 1056, 1060 (CA9 1983); United States v. Johnson, 577 F. 2d 1304, 1309   (CA5 1978); United States v. Murdock, 548 F. 2d 599, 600 (CA5 1977).


47
djq  Justice Stevens, dissenting.


48
Federal prosecutors are respected members of a respected profession. Despite an occasional misstep, the excellence of their work  abundantly justifies the presumption that "they have properly discharged  their official duties."  United States v. Chemical Foundation, Inc., 272  U. S. 1, 14-15 (1926). Nevertheless, the possibility that political or  racial animosity may infect a decision to institute criminal proceedings  cannot be ignored.  Oyler v. Boles, 368 U. S. 448, 456 (1962).  For that reason, it has long been settled that the prosecutor's broad discretion  to determine when criminal charges should be filed is not completely  unbridled.  As the Court notes, however, the scope of judicial review of  particular exercises of that discretion is not fully defined.  See ante,  at 13, n. 3.


49
The United States Attorney for the Central District of California is a member and an officer of the bar of that District Court.  As such, she has a duty to the judges of that Court to maintain the  standards of the profession in the performance of her official  functions.  If a District Judge has reason to suspect that she, or a  member of her staff, has singled out particular defendants for  prosecution on the basis of their race, it is surely appropriate for the  Judge to determine whether there is a factual basis for such a concern.  I agree with the Court that Rule 16 of the Federal Rules of Criminal  Procedure is not the source of the District Court's power to make the  necessary inquiry.  I disagree, however, with its implicit assumption  that a different, relatively rigid rule needs to be crafted to regulate the use of this seldom-exercised inherent judicial power.  See Advisory  Committee's Notes on Rule 16, 18 U. S. C. App., p. 761 (Rule 16 is "not  intended to limit the judge's discretion to order broader discovery in  appropriate cases").


50
The Court correctly concludes that in this case the facts presented to the District Court in support of respondents' claim that  they had been singled out for prosecution because of their race were not  sufficient to prove that defense.  Moreover, I agree with the Court that  their showing was not strong enough to give them a right to discovery,  either under Rule 16 or under the District Court's inherent power to  order discovery in appropriate circumstances.  Like Chief Judge Wallace  of the Court of Appeals, however, I am persuaded that the District Judge  did not abuse her discretion when she concluded that the factual showing  was sufficiently disturbing to require some response from the United States Attorney's Office.  See 48 F. 3d 1508, 1520-1521 (CA9 1995).  Perhaps the discovery order was broader than necessary, but I cannot  agree with the Court's apparent conclusion that no inquiry was  permissible.


51
The District Judge's order should be evaluated in light of three  circumstances that underscore the need for judicial vigilance over  certain types of drug prosecutions.  First, the Anti-Drug Abuse Act of  1986 and subsequent legislation established a regime of extremely high  penalties for the possession and distribution of so-called "crack"  cocaine.4 Those provisions treat one gram of crack as the equivalent  of 100 grams of powder cocaine.  The distribution of 50 grams of crack is thus punishable by the same mandatory minimum sentence of 10 years in  prison that applies to the distribution of 5,000 grams of powder  cocaine.5  The Sentencing Guidelines extend this ratio to penalty  levels above the mandatory minimums: for any given quantity of crack,  the guideline range is the same as if the offense had involved 100 times  that amount in powder cocaine.6 These penalties result in sentences  for crack offenders that average three to eight times longer than  sentences for comparable powder offenders.7  United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing  Policy 145 (Feb. 1995) (hereinafter Special Report).


52
Second, the disparity between the treatment of crack cocaine and  powder cocaine is matched by the disparity between the severity of the  punishment imposed by federal law and that imposed by state law for the  same conduct.  For a variety of reasons, often including the absence of  mandatory minimums, the existence of parole, and lower baseline  penalties, terms of imprisonment for drug offenses tend to be  substantially lower in state systems than in the federal system.  The  difference is especially marked in the case of crack offenses.  The  majority of States draw no distinction between types of cocaine in their penalty schemes; of those that do, none has established as stark a differential as the Federal Government.  See id., at x, 129-138. For  example, if respondent Hampton is found guilty, his federal sentence  might be as long as a mandatory life term.  Had he been tried in state  court, his sentence could have been as short as 12 years, less worktime  credits of half that amount.8


53
Finally, it is undisputed that the brunt of the elevated federal  penalties falls heavily on blacks.  While 65% of the persons who have  used crack are white, in 1993 they represented only 4% of the federal  offenders convicted of trafficking in crack.  Eighty-eight percent of  such defendants were black.  Id., at 39, 161.  During the first 18  months of full guideline implementation, the sentencing disparity  between black and white defendants grew from preguideline levels: blacks  on average received sentences over 40% longer than whites.  See Bureau  of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 6-7 (Dec. 1993).  Those figures represent a major threat to the  integrity of federal sentencing reform, whose main purpose was the  elimination of disparity (especially racial) in sentencing.  The  Sentencing Commission acknowledges that the heightened crack penalties  are a "primary cause of the growing disparity between sentences for  Black and White federal defendants."  Special Report 163.


54
The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern  about the fairness of charging practices for crack offenses.  Evidence  tending to prove that black defendants charged with distribution of  crack in the Central District of California are prosecuted in federal  court, whereas members of other races charged with similar offenses are  prosecuted in state court, warrants close scrutiny by the federal judges  in that District.  In my view, the District Judge, who has sat on both the federal and the state benches in Los Angeles, acted well within her  discretion to call for the development of facts that would demonstrate  what standards, if any, governed the choice of forum where similarly  situated offenders are prosecuted.


55
Respondents submitted a study showing that of all cases involving crack offenses that were closed by the Federal Public Defender's Office in 1991, 24 out of 24 involved black defendants. To  supplement this evidence, they submitted affidavits from two of the  attorneys in the defense team.  The first reported a statement from an  intake coordinator at a local drug treatment center that, in his  experience, an equal number of crack users and dealers were caucasian as  belonged to minorities.  App. 138. The second was from David R. Reed,  counsel for respondent Armstrong.  Reed was both an active  court-appointed attorney in the Central District of California and one  of the directors of the leading association of criminal defense lawyers  who practice before the Los Angeles County courts.  Reed stated that he  did not recall "ever handling a [crack] cocaine case involving non-black  defendants" in federal court, nor had he even heard of one.  Id., at  140.  He further stated that "[t]here are many crack cocaine sales cases  prosecuted in state court that do involve racial groups other than  blacks."  Id., at 141 (emphasis in original).


56
The majority discounts the probative value of the affidavits, claiming that they recounted "hearsay" and reported "personal conclusions based on anecdotal evidence."  Ante, at 14.  But the Reed  affidavit plainly contained more than mere hearsay; Reed offered  information based on his own extensive experience in both federal and  state courts.  Given the breadth of his background, he was well  qualified to compare the practices of federal and state prosecutors.  In  any event, the Government never objected to the admission of either  affidavit on hearsay or any other grounds.  See 48 F. 3d, at 1518, n. 8.  It was certainly within the District Court's discretion to credit the  affidavits of two members of the bar of that Court, at least one of whom  had presumably acquired a reputation by his frequent appearances there,  and both of whose statements were made on pains of perjury.


57
The criticism that the affidavits were based on "anecdotal evidence" is also unpersuasive.  I thought it was agreed that defendants  do not need to prepare sophisticated statistical studies in order to  receive mere discovery in cases like this one.  Certainly evidence based  on a drug counselor's personal observations or on an attorney's practice  in two sets of courts, state and federal, can "ten[d] to show the  existence" of a selective prosecution.  Ante, at 12.


58
Even if respondents failed to carry their burden of showing that  there were individuals who were not black but who could have been  prosecuted in federal court for the same offenses, it does not follow  that the District Court abused its discretion in ordering discovery.  There can be no doubt that such individuals exist, and indeed the  Government has never denied the same.  In those circumstances, I fail to  see why the District Court was unable to take judicial notice of this  obvious fact and demand information from the Government's files to  support or refute respondents' evidence.  The presumption that some  whites are prosecuted in state court is not "contradicted" by the  statistics the majority cites, which show only that high percentages of blacks are convicted of certain federal crimes, while high percentages  of whites are convicted of other federal crimes.  See ante, at 13.  Those figures are entirely consistent with the allegation of selective  prosecution.  The relevant comparison, rather, would be with the  percentages of blacks and whites who commit those crimes.  But, as  discussed above, in the case of crack far greater numbers of whites are  believed guilty of using the substance.  The District Court, therefore,  was entitled to find the evidence before her significant and to require  some explanation from the Government.9


59
In sum, I agree with the Sentencing Commission that "[w]hile the  exercise of discretion by prosecutors and investigators has an impact on  sentences in almost all cases to some extent, because of the 100-to-1  quantity ratio and federal mandatory minimum penalties, discretionary  decisions in cocaine cases often have dramatic effects."  Special Report  138.10  The severity of the penalty heightens both the danger of  arbitrary enforcement and the need for careful scrutiny of any colorable  claim of discriminatory enforcement.  Cf. McCleskey v. Kemp, 481 U. S. 279, 366 (1987) (Stevens, J., dissenting).  In this case, the evidence  was sufficiently disturbing to persuade the District Judge to order  discovery that might help explain the conspicuous racial pattern of  cases before her Court.  I cannot accept the majority's conclusion that  the District Judge either exceeded her power or abused her discretion  when she did so.  I therefore respectfully dissent.



*
 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience  of the reader.  See United States v. Detroit Lumber Co., 200 U. S. 321,  337.


1
 Other defendants had introduced this study in support of similar discovery motions in at least two other Central District cocaine prosecutions.  App. 83.  Both motions were denied.  One District Judge  explained from the bench that the 23-person sample before him was  "statistically insignificant," and that the evidence did not indicate  "whether there is a bias in the distribution of crime that says black  people use crack cocaine, hispanic people use powdered cocaine,  caucasian people use whatever it is they use."  Id., at 119, 120.


2
 We have never determined whether dismissal of the  indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the  basis of his race. Here, "it was the government itself that suggested  dismissal of the indictments to the district court so that an appeal  might lie."  48 F. 3d 1508, 1510 (CA9 1995).


3
 We reserve the question whether a defendant must satisfy  the similarly situated requirement in a case "involving direct admissions by [prosecutors] of discriminatory purpose."  Brief for United States 15.


4
 100 Stat. 3207, 21 U. S. C. Section(s) 841 et seq.


5
 Compare 21 U. S. C. Section(s) 841(b)(1)(A)(iii) with Section(s) 841(b)(1)(A)(ii). Similarly, a mandatory 5-year sentence is  prescribed for distribution of 500 grams of cocaine or 5 grams of crack.  Compare Section(s) 841(b)(1)(B)(ii) with Section(s) 841(b)(1)(B)(iii).  Simple possession of 5 grams of crack also produces a mandatory 5-year  sentence.  The maximum sentence for possession of any quantity of other  drugs is one year.  Section(s) 844(a).
With one prior felony drug offense, the sentence for distribution of 50 grams of crack is a mandatory 20 years to life. Section(s) 841(b)(1)(A).  With two prior felony drug offenses, the sentence is a mandatory life term without parole.  Ibid.


6
 See United States Sentencing Commission, Guidelines Manual


7
 Under the guidelines, penalties increase at a slower rate  than drug quantities.  For example, 5 grams of heroin result in a base offense level of 14 (15-21 months) while 10 grams of heroin (double the  amount) result in an offense level of 16 (21-27 months).  USSG  translate into sentences that are 100 times as long.


8
 Hampton was charged with conspiracy to distribute, four  counts of crack distribution, and the use or carrying of a firearm in relation to a drug crime.  According to an information filed by the  Government, Hampton had three prior convictions for felony drug  offenses.  See Information Establishing Prior Felony Narcotics  Convictions (June 24, 1992).  Therefore, he potentially faces a  mandatory life sentence on the drug charges alone.
Under California law at the time of the offenses, possession for sale of cocaine base involving 50 grams carried a penalty of imprisonment for either three, four, or five years.  Cal. Health & Safety Code Ann. Section(s) 11351.5 (West 1988).  If the defendant had  no prior convictions, he could be granted probation. Section(s) 11370.  For each prior felony drug conviction, the defendant received an  additional 3-year sentence. Section(s) 11370.2.  Thus, with three priors  and the possibility of worktime reductions, see Cal. Penal Code Ann.  Section(s) 2933 (West Supp. 1996), Hampton could have served as little  as six years under California law.  Since the time of the offenses, California has raised several of these penalties, but the new punishments could not be applied to respondents.


9
 Also telling was the Government's response to respondents' evidentiary showing.  It submitted a list of more than 3,500 defendants  who had been charged with federal narcotics violations over the previous  3 years.  It also offered the names of 11 nonblack defendants whom it  had prosecuted for crack offenses. All 11, however, were members of  other racial or ethnic minorities.  See 48 F. 3d, at 1511.  The District  Court was authorized to draw adverse inferences from the Government's inability to produce a single example of a white defendant, especially  when the very purpose of its exercise was to allay the Court's concerns  about the evidence of racially selective prosecutions.  As another court  has said: "Statistics are not, of course, the whole answer, but nothing  is as emphatic as zero . . . ."  United States v. Hinds County School  Bd., 417 F. 2d 852, 858 (CA5 1969) (per curiam).


10
 For this and other reasons, the Sentencing Commission in  its Special Report to Congress "strongly recommend[ed] against a 100-to-1 quantity ratio."  Special Report 198.  The Commission shortly  thereafter, by a 4-to-3 vote, amended the guidelines so as to equalize  the treatment of crack and other forms of cocaine, and proposed  modification of the statutory mandatory minimum penalties for crack  offenses. See Statement of Commission Majority in Support of Recommended  Changes in Cocaine and Federal Sentencing Policy (May 1, 1995).  In  October 1995, Congress overrode the Sentencing Commission's guideline  amendments.  See Pub. L. 104-38, 109 Stat. 334.  Nevertheless, Congress  at the same time directed the Commission to submit recommendations regarding changes to the statutory and guideline penalties for cocaine  distribution, including specifically "revision of the drug quantity  ratio of crack cocaine to powder cocaine." Section(s) 2(a).


