United States of America v. Pablo Berrios et al.

United States Court of Appeals, Second Circuit
501 F.2d 1207 (1974)

ELI5:

Rule of Law:

To obtain discovery for a selective prosecution defense, a defendant must make a colorable showing of both discriminatory effect and discriminatory purpose. If such a showing is made, the proper procedure is for the trial court to first conduct an in-camera review of the requested government documents to determine their relevance before ordering any disclosure to the defense.

Facts:

Pablo Berrios was a Teamsters Union official who had a 1971 state court conviction for arson.
Federal law, 29 U.S.C. § 504, prohibits a person convicted of arson from serving as a union officer for five years following the conviction.
Despite the law and his conviction, Berrios served as a Trustee and member of the Executive Board of Teamsters Union Local 840.
Berrios was an outspoken supporter of presidential candidate Senator McGovern against President Nixon in 1972.
At the same time, Berrios was leading an effort to unionize the Marriott Restaurant Chain, an enterprise with close financial and personal ties to President Nixon.
The federal government initiated a prosecution against Berrios for violating § 504.
Three other union officials were also charged for knowingly permitting Berrios to hold office.

Procedural Posture:

Pablo Berrios and three others were indicted in the U.S. District Court.
Berrios filed a motion for a hearing on the defense of selective prosecution.
The district court ordered the government to produce its internal memorandum recommending prosecution for the court's in-camera review and for subsequent release of non-confidential portions to the defense.
The government refused to produce the memorandum under the terms of the court's order.
As a sanction for the government's refusal, the district court dismissed the indictment against all defendants.
The government, as appellant, appealed the dismissal to the United States Court of Appeals for the Second Circuit.

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Issue:

Did the district court abuse its discretion by dismissing an indictment because the government refused to comply with an order compelling production of an internal prosecution memorandum for the court's review and subsequent release of relevant portions to the defense?

Opinions:

Majority - Mansfield, J.

No, the district court abused its discretion by ordering the dismissal. While a district court has discretion to order an in-camera review of government documents upon a defendant's preliminary showing for a selective prosecution defense, it is an error to order disclosure to the defense before the court first determines the material's relevance. To support a selective prosecution defense, a defendant has the heavy burden of making a prima facie showing of two elements: (1) that he has been singled out for prosecution while others similarly situated have not been prosecuted, and (2) that the government's selection of him was invidious or in bad faith, based on impermissible considerations like the exercise of constitutional rights. Here, Berrios's claim was based on his counsel's 'belief' and lacked concrete evidence of others who violated the statute but were not prosecuted, making it a 'fishing expedition.' Although the trial judge's decision to review the memorandum himself was within his discretion, ordering its potential release to the defense before establishing its relevance to the selective prosecution claim was an overstep. The proper procedure is for the court to review the material in private (in camera) to screen for relevance, protecting the government's interest in the confidentiality of internal documents while ensuring the defendant's right to present a defense.

Analysis:

This case establishes a critical procedural framework for handling discovery requests in selective prosecution claims, balancing a defendant's constitutional rights against the government's qualified privilege for internal prosecutorial documents (work product). It sets the precedent that a defendant cannot use a weak, unsubstantiated claim of selective prosecution as a 'fishing expedition' to gain broad access to sensitive government files. By mandating an initial in-camera review by the trial judge as a filtering mechanism, the ruling protects the integrity of prosecutorial deliberations while still allowing defendants with a 'colorable' claim a path to obtain necessary evidence. This approach has become the standard procedure in federal courts for managing such discovery disputes.

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