United States v. Smith ( 2000 )

[Not for Publication]
United States Court of Appeals
For the First Circuit
No. 00-1411
UNITED STATES OF AMERICA,
Appellee,
v.
DONALD G. SMITH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr, Senior Circuit Judge,
and Stahl, Circuit Judge.
George J. West for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Mary E.
Rogers, Assistant United States Attorney, were on brief for
appellee.
December 27, 2000
Per Curiam. Appellant Donald G. Smith claims that the
district court abused its discretion by denying his discovery
requests for information relating to possible sentencing-factor
manipulation and improper investigative techniques by the
government. Smith argues that the information he sought might
have enabled him to demonstrate an entitlement to a downward
departure. Cf. United States v. Coleman, 188 F.3d 354 (6th Cir.
1998) (en banc). As Smith failed to make the threshold showing
required for the requested relief, we affirm the district court
ruling.
Essentially, Smith contended that since there is
nothing in his background which would have suggested that he be
targeted for a federal drug investigation, he was entitled to
discover whether he and certain other persons, as to whose
investigations and arrests he likewise sought discovery, may
have been singled out by the government, either as members of
minority groups (Smith identifies himself as a black person) or
simply as targets for sentencing-factor manipulation. The
district court ruled that the predicate showing attempted by
Smith was premised upon mere surmise and conjecture. We review
for clear error. United States v. Montoya, 62 F.3d 1, 9 (1st
Cir. 1995).
The claim that Smith and others may have been targeted,
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either for selective prosecution or sentencing-factor
manipulation, by reason of their race, is unsupported by
anything remotely approaching the requisite “clear evidence”
needed to rebut the applicable presumption that the government
acted without discriminatory purpose. See Reno v. American-Arab
Anti-Discrimination Comm., 525 U.S. 471, 489-90 (1999). Nor has
Smith demonstrated that similarly situated persons were not
prosecuted. Consequently, the rigorous threshold standard for
obtaining the intrusive discovery relief here requested was
never met. United States v. Magana, 127 F.3d 1, 8 (1st Cir.
1997).
Affirmed.
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