WILMA A. LEWIS, Chief District Judge.
THIS MATTER comes before the Court on Defendant Jaheem Benjamin's ("Benjamin") "Motion to Dismiss" (Dkt. No. 26); the Government's Opposition thereto (Dkt. No. 33); Benjamin's Reply to the Government's Opposition (Dkt. No. 36); and the oral arguments presented by the parties at a hearing before the Court. For the reasons set forth below, the Court will deny Benjamin's Motion to Dismiss.
On March 7, 2017, the Government filed an Amended Information against Benjamin charging him with the following: (1) Manufacture of Marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D); (2) Possession of Marijuana with Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) and; (3) Illegal Use of Utility Equipment, in violation of 14 V.I.C. §§ 1263(b) and (3). (Dkt. No. 12).
By way of background, the Government alleges as follows. On February 14, 2017, members of the Drug Enforcement Agency St. Croix Resident Office received an anonymous tip of a marijuana growth operation at a residence located at 92 Upper Love, Fredriksted, St. Croix. Officers traveled to the residence, encountered Benjamin, and explained to him that they were there to investigate marijuana being grown on the property. The officers requested consent from Benjamin to conduct a search. Benjamin allegedly consented and led officers to a shed behind the residence. Upon completing their search, officers seized 137 marijuana plants in various stages of growth, as well as marijuana cultivation equipment such as grow lights, ballasts, and several growing pots. Officers also seized a small quantity of processed marijuana from Benjamin's residence.
In the instant motion, Benjamin argues that dismissal of the charges against him is warranted because his rights under the Equal Protection Clause of the Fifth Amendment have been violated. (Dkt. No. 26 at 1). Benjamin contends that "[r]esidents of the Virgin Islands who grow marijuana are treated differently by federal prosecutors than similarly-situated marijuana growers who ply the same trade in states that have legalized the cultivation and sale of marijuana," and that such disparate treatment, i.e., "the essence of [] selective prosecution," renders his prosecution "illegal." Id.
Benjamin's selective prosecution claim rests, in part, on his argument that the Government's response to the legalization of marijuana by some states has effectively created a two-tiered system of justice for defendants charged with marijuana offenses—one that arbitrarily depends on a defendant's residency. Benjamin compares himself to Christian Hageseth—a resident of the state of Colorado where marijuana has been legalized—who operates a business that grows and sells marijuana for profit. Id. at 2-5. According to Benjamin, "[i]t is uncontroverted that when it comes to marijuana, the `executive branch has decided to enforce its laws against some individuals and not against others—the essence of selective prosecution—depending on where one resides . . . . [] Benjamin, who lives in St. Croix, finds himself under federal pre-trial supervision, while [] [a] Colorado marijuana dealer [is not]. This is a textbook example of a `selective prosecution.'" Id. at 6 (quoting United States v. Guess, 216 F.Supp.3d 689, 696 (E.D. Va. 2016)).
According to Benjamin, "marijuana cultivators in states that have legalized the drug . . . can operate with de facto immunity [from federal prosecution]," particularly due to the dictates of the "2013 Cole Memo" and the "Rohrabacher-Farr Amendment." Id. at 13. The 2013 Cole Memo states that as long as marijuana growers operating in a state which has legalized marijuana adhere to state law and do not implicate one of the eight enforcement priorities of the federal government, they would not be a focus of the Department of Justice's ("DOJ") prosecutorial resources.
Ultimately, however, a major thrust of Benjamin's claim for selective prosecution is his argument that, because the Virgin Islands is prevented from ever legalizing marijuana, his prosecution violates the Fifth Amendment. Id. at 14-19. To support this argument, Benjamin contends that because the Revised Organic Act of 1954 ("Revised Organic Act")
The Government contends that Benjamin's selective prosecution claim is without merit because his "prosecution is not made with a discriminatory purpose nor improper motive." (Dkt. No. 33 at 3). In support of its position in this regard, the Government argues, inter alia, that Benjamin is not similarly situated to marijuana growers in states like Colorado, where marijuana has been legalized; rather, his comparators would be individuals who live in states that have not legalized marijuana, but who have not been prosecuted. Id. at 4-6. The Government further argues that Benjamin cannot "prove that he is being prosecuted on any constitutionally protected ground," but that Benjamin's prosecution is "solely motivated by the strong evidence that [he] violated federal law by growing marijuana." Id. at 3. Accordingly, the Government asserts that the Motion to Dismiss should be denied.
In United States v. Armstrong, the Supreme Court stated that the Attorney General and U.S. Attorneys "retain broad discretion to enforce the [n]ation's criminal laws," since "they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to take care that the [l]aws be faithfully executed." 517 U.S. 456, 464 (1996) (internal citations and quotation marks omitted). Thus, a "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." Id. (internal citation and quotation marks omitted); United States v. Gist, 382 F. App'x 181, 183 (3d Cir. 2010) ("Prosecutors are presumed not to violate equal protection, and a defendant can rebut this presumption only by `clear evidence to the contrary.'") (citing Armstrong, 517 U.S. at 465). Further, `"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.'" Armstrong, 517 U.S. at 464 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)); see also United States v. Torquato, 602 F.2d 564, 569 (3d Cir. 1979) (finding that there exists for the government a "presumption that `a prosecution for violation of a criminal law is undertaken in good faith and in nondiscriminatory fashion for the purpose of fulfilling a duty to bring violators to justice.'") (quoting United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973) (en banc)).
However, prosecutorial discretion remains subject to constitutional constraints imposed by the Equal Protection component of the Due Process Clause of the Fifth Amendment, which requires that "the decision to prosecute may not be based on `an unjustifiable standard such as race, religion, or other arbitrary classification.'" Armstrong, 517 U.S. at 464 (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)); see also Gist, 382 F. App'x at 183; United States v. Minerd, 182 F.Supp.2d 459, 461-62 (W.D. Pa. 2002) ("Prosecutorial discretion, of course, is subject to constitutional constraints.") (internal citation and quotation marks omitted). Thus, "[i]n considering a claim of selective prosecution, the [Third Circuit] stated that although the government is permitted the conscious exercise of some selectivity in the enforcement of its criminal laws . . . any systematic discrimination in enforcement . . . or unjust and illegal discrimination between persons in similar circumstances . . . violates the equal protection clause and renders the prosecution invalid." Torquato, 602 F.2d at 568-69 (internal citations and quotation marks omitted).
A prosecution is unconstitutionally selective when "the federal prosecutorial policy had a discriminatory effect and [] was motivated by a discriminatory purpose." Armstrong, 517 U.S. at 465; United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) ("A decision to prosecute is selective and violates the right to equal protection when it is made on a discriminatory basis with an improper motive."). Thus, to establish a claim of selective prosecution, a defendant must prove two elements. First, a defendant must provide evidence of discriminatory effect by showing "that persons similarly situated have not been prosecuted." Id.; United States v. Vega, 317 F.Supp.2d 599, 603 (D.V.I. 2004) ("Disparate treatment occurs when others similarly situated are not prosecuted."). Second, a defendant must provide evidence that the decision to prosecute embodied an improper motive, wherein the prosecution was "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Id. ("To demonstrate selective prosecution, a defendant must show that he or she received disparate treatment and that the prosecution was improperly motivated.") (citing Wayte v. United States, 470 U.S. 598, 608 (1985)). "Arbitrary classification" includes instances where "the prosecution was intended to prevent [a defendant's] exercise of a fundamental right." Schoolcraft, 879 F.2d at 68. The burden of proving such discrimination is placed upon the defendant. See United States v. Malinowski, 472 F.2d 850, 860 (3d Cir. 1973).
In his Motion to Dismiss, Benjamin alleges that he is being "unfairly selected for federal prosecution." (Dkt. No. 26 at 5). To show that the Government's federal marijuana prosecution has a discriminatory effect, Benjamin compares himself to a commercial marijuana grower in Colorado, claiming that this individual and others like him are similarly situated to Benjamin but, unlike him, they have not been prosecuted by the federal government despite possessing similar, if not more, amounts of marijuana than what is being attributed to Benjamin here. Id. at 2-5.
The Court finds that Benjamin has failed to satisfy the first element needed to establish a selective prosecution claim, i.e., to demonstrate discriminatory effect by showing "that persons similarly situated have not been prosecuted." Schoolcraft, 879 F.2d at 68. Marijuana growers residing in states like Colorado are not similarly situated to Benjamin because they live in a state where marijuana is legalized under state law. In contrast, Benjamin lives in a territory where marijuana is not legalized under local law. Thus, federal policy regarding prosecutions of marijuana growers in Colorado does not provide an appropriate comparison for purposes of an Equal Protection claim. Rather, the relevant comparison for Benjamin would be with marijuana growers who reside in states where marijuana is not legalized under state law. Benjamin would have to establish that such individuals, unlike him, have not been prosecuted, notwithstanding circumstances similar to his. Id.; United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017), cert. denied, 138 S.Ct. 713, 199 L. Ed. 2d 582 (2018) (finding that a defendant asserting selective prosecution or selective enforcement "must provide `clear evidence' of discriminatory effect and discriminatory intent . . . Meeting this standard generally requires evidence that similarly situated individuals of different race or classification were not prosecuted, arrested, or otherwise investigated."); Vega, 317 F. Supp. 2d at 603 n.3 ("Disparate treatment occurs when others similarly situated are not prosecuted.").
The Court's conclusion in this regard is not affected by Benjamin's contention that he is denied equal protection by the Virgin Islands' inability to choose to legalize marijuana. (Dkt. No. 26 at 14-19). Any inability that the Virgin Islands may have in that regard—based on the provision in the Revised Organic Act that empowers the Legislature to enact laws "not inconsistent with any law of the United States applicable to the Virgin Islands . . ." Revised Organic Act of 1954, § 8— is grounded in the Virgin Islands' status as an unincorporated territory of the United States subject to the power of Congress under the Territorial Clause of the U.S. Constitution. U.S. CONST. art. IV, § 3.
While Benjamin's inability to establish discriminatory effect is sufficient to deny his claim of selective prosecution, Benjamin also fails to satisfy the second element necessary for a selective prosecution claim, i.e., establishing that the Government acted with "improper motive." "The mere fact that similarly situated parties are treated differently does not by itself establish malice . . . [r]ather, a plaintiff must show that a defendant acted with a malicious or bad faith intent to cause harm." Goodfellas, Inc. v. Dunkel, 2016 WL 6599977, at *9 (M.D. Pa. Nov. 8, 2016) (citing Zahra v. Town of Southold, 48 F.3d 674, 684 (2d Cir. 1995) and LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)). No such improper motive has been established here as there has been no showing that Benjamin's prosecution is based on "an unjustifiable standard such as race [or] religion," Armstrong, 517 U.S. at 464, or that he is being prosecuted to "prevent [his] exercise of a fundamental right." Schoolcraft, 879 F.2d at 68.
Courts have also found that a defendant's reliance on DOJ policies, such as the 2013 Cole Memo, to serve as evidence of the Government's selective prosecution of marijuana offenders "do[es] not satisfy [a] [d]efendant's burden of showing an impermissible motive by the Government," because they do not evince a discriminatory purpose but simply reflect the "list of priorities that the DOJ have provided to guide the Department's enforcement of the CSA against marijuana-related conduct." White, 2016 WL 4473803 at *4 (listing cases); see also United States v. Vawter, 2014 WL 5438382, at *8 (W.D. Mo. Oct. 24, 2014) (finding that defendant fails to show discriminatory purpose because such DOJ memoranda articulating enforcement policies relating to prosecution of marijuana offenders are "a rational exercise of prosecutorial discretion, and which the Court is not competent to address."); United States v. Taylor, 2014 WL 12676320, at *6 (W.D. Mich. Sept. 8, 2014) (finding that defendants' selective prosecution claim failed as "over read[ing] the [DOJ's] policy statements" because, contrary to defendant's contention that such statements evinced a DOJ policy to forego prosecution of marijuana distributors in legalized states, these statements are "simply [] a new array of considerations [for prosecutors] to consider in making choices about how to proceed" and prioritize cases to prosecute because "the federal government cannot possibly prosecute all criminal marijuana activity, let alone all criminal drug activity."). Benjamin's reliance on such policies fares no better here.
In view of the foregoing, Benjamin has failed to establish either discriminatory effect or improper motive—both of which are necessary for a claim of selective prosecution.
For the reasons stated above, the Court finds that Benjamin has failed to establish a selective prosecution claim in violation of his rights under the Fifth Amendment's Equal Protection Clause. Accordingly, the Court will deny Benjamin's Motion to Dismiss.
An appropriate Order accompanies this Memorandum Opinion.
Id. (emphasis added).
