United States v. Correa-Gomez, 169 F.Supp.2d 748 (E.D.Ky. 2001) (Judge Wilhoit)

In U.S. v. Armstrong, 517 U.S. 456 (1996), the Supreme Court held that, to prove a selective prosecution case, the claimant must prove two elements: first, he must demonstrate that the Federal prosecutorial policy had a discriminatory effect; and, second, that it was motivated by a discriminatory purpose.

Since Armstrong, there have been few cases which have found that the Government did engage in selective prosecution; and, indeed, because proof of a discriminatory purpose is so difficult to achieve, many commentators have suggested that Armstrong renders many meritorious claims to selective prosecution impossible to prove. See, e.g., Richard H. McAdams, "Race and Selective Prosecution: Discovering the Pitfalls of Armstrong", 73 Chi. Kent L.Rev. 605, 606 (1998); Melissa L. Jampol, "Goodbye to the Defense of Selective Prosecution", 87 J.Crim.L. & Criminology 932 (1997); Note, "Race-Based Selective Prosecution", 110 Harv.L.Rev. 165 (1996). See also, Randall Kennedy, "Race Crime and the Law" 357-59 (1967).

The instant case is noted as a rare example of a judicial finding of selective prosecution.

The defendant, who owned a chain of restaurants in Kentucky, was charged with seven counts of inducing illegal aliens to enter the United States and harboring them during their tenure as his employees, in violation of 8 U.S.C. § 1324(a)(1)(A). He moved to dismiss his indictment on the grounds of selective prosecution. In Armstrong, the Supreme Court held that "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." (Armstrong, id., at 464).

After a number of hearings on the defendant's claim, the Court ordered the Government to produce the records of all INS raids within the Eastern District of Kentucky from 1996 to 2000. In response to that order, the Government produced charts showing that, during the relevant time period, the INS had conducted seventeen raids against businesses within the District. As explained by Judge Wilhoit: "Fourteen of [those] businesses, more than eighty-two percent, are either publically held corporations or are owned and managed by non-Hispanics. The raids of these businesses resulted in the apprehension of 218 illegal aliens. . . . The sum total of these raids [was] six fines, six warnings and zero criminal prosecutions." (Id., at 752).

As the Government itself conceded, part of the reason for the lack of criminal prosecutions in the seventeen previous raids was the fact that an illegal alien's presentation of paperwork that appears genuine is a valid affirmative defense to a criminal charge under § 1324(a)(1)(A). In fact, citing Garcia v. Secretary of Labor, 10 F.3d 276, 283-84 (5th Cir. 1993), Judge Wilhoit noted that "[i]f an employer proves that he checked the required documents and retained the attested verification forms, he has established a ‘rebuttable presumption' that he did so in ‘good faith'." (Id.)

Judge Wilhoit then noted that "[t]he benefit of this rebuttable presumption has been extended to every business owner prior to Mr. Correa-Gomez. . . . Yet, in proceeding against Mr. Correa-Gomez as a criminal, the government has elected to not give him the same benefit of the doubt that it has extended to other, similarly situated, non-Hispanic business owners." (Id., at 753).

To prove a claim of selective prosecution, the defendant, of course, still had to prove both discriminatory effect and discriminatory purpose; but Judge Wilhoit concluded that the defendant had met both of those burdens. "Discriminatory effect is proven by showing that ‘similarly situated individuals of a different race were not prosecuted'" (id., at 750) - a fact which he deemed was evident from the Government's own charts of the 17 previous raids. Judge Wilhoit was particularly perturbed by the Government's admission that it had decided to seek a different punishment in its case against Mr. Correa-Gomez: "Most stunning, however, is the government's admission that INS officials affirmatively predetermined the appropriate punishment for offenses which had not yet been uncovered. The discriminatory effect of such a prosecutorial policy is disenchantingly evident." (Id., at 754).

Proof of discriminatory purpose is more difficult because "it involves an inquiry into whether the government acts ‘because of' the defendant's status rather than ‘in spite of' his status." (Id., at 753). However, Judge Wilhoit concluded, "[w]here direct evidence of discriminatory purpose is unavailable, the alleged unconstitutional purpose must be examined in the context of: 1) disparate impact; 2) historical background; 3) specific events leading up to the challenged decision; and 4) any associated legislative or administrative history." (Id., at 751, citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-67 (1977)).

Applying those factors to this case, Judge Wilhoit held: "While there is no legislative or administrative history associated with the decision to prosecute [Mr. Correa-Gomez], the impact, background and events leading up to this prosecution are viewed as significant by the Court. Reviewing the government's disclosures, it becomes apparent that this defendant is not unlike those defendants whom the government has chosen to simply fine or warn. . . . The stark and dramatic differences between this case and previous cases demonstrates that something other than the allegation of his employment of illegal aliens motivated the government's decision to prosecute Mr. Correa-Gomez. When a facially neutral law is applied in a selective and inequitable manner, the very foundation of the rule of law is challenged." (Id., at 753).

The Government of course attempted to defend the non-discriminatory purpose of its criminal case against Mr. Correa-Gomez, by pointing to some esoteric distinctions and justifications of its prosecution. Barely pausing, Judge Wilhoit dismissed those arguments outright, stating: "These hindsight justifications are illusory and belittle the travesty of immigration enforcement." (Id., at 754). Based on all those findings, Judge Wilhoit granted the defendant's motion to dismiss his indictment with prejudice!