Criminal Defense Lawyers

Selective Prosecution Claim: Federal Defense Strategies When You’re Being Targeted

You Think Your Being Targeted – Here’s What That Means

You know you’re not the only one who did this. You’ve seen the others – same conduct, same situation, no charges. But the federal goverment decided to make YOU the example.

Your not imagining it. Your probably right that something’s wrong here. The question ain’t whether it feels unfair – its whether you can prove it in federal court, and more importantly, weather you got time left to do anything about it.

Look, here’s the deal: selective prosecution is a real legal defense in federal criminal cases. When properly raised and supported, it can lead too the dismissal of you’re case before trial. But – and this is important – it almost never works. We’re talking less then 1% success rate for outright dismissal. That doesn’t mean its worthless, though. Even a “failed” selective prosecution claim can cut years off your sentance and change how the jury sees the goverment’s case.

The problem? You probly have 14-21 days from arraignment to file this claim, or you loose it forever. Federal Rule of Criminal Procedure 12(b) requires selective prosecution claims to be filed before trial, and most scheduling orders set tighter deadlines then that. If your reading this three weeks after arraignment, you might of already waived the defense. Check you’re scheduling order. Right now. Seriously.

You Think You’re Being Targeted – The First 14 Days

The clock started when you was arraigned. Maybe you didn’t even know what a selective prosecution claim was back then. Maybe your first lawyer didn’t mention it. Doesn’t matter – the deadline’s still their, ticking away irregardless of whether anyone told you about it.

Here’s what selective prosecution actually means in federal court: its when the goverment charges YOU for conduct that lots of other people do, but their not getting charged. The targeting has too be based on a discriminatory reason – your race, you’re political views, you’re religion, or because you exercised a constitutional right. It ain’t enough that you think the prosecutor doesn’t like you personally. The discrimination has to violate the Equal Protection Clause of the Fifth Amendment.

Real talk: this is different from vindictive prosecution, which we’ll get to later. Vindictive prosecution is when prosecutors charge you (or add charges) because you refused a plea deal or went to trial on a seperate case. That’s retaliation for exercising you’re rights.

Selective prosecution is broader – its about being singled out from a whole class of people who could of been prosecuted but weren’t.

The March 2025 analysis of political prosecutions makes clear that timing is everything. Under Rule 12(b), you must raise this claim before trial. Miss that deadline, and your done. Most federal judges interpret “before trial” strictly. Once jury selection starts, its to late. And here’s what nobody tells you: most scheduling orders require all pretrial motions within 14-21 days of arraignment. That’s your real deadline.

So what do you do in these next 14 days?

First, talk to a federal criminal defense lawyer who actually understands selective prosecution. Not you’re buddy’s lawyer who does state DUIs. Not a civil attorney. You need someone whose handled United States v. Armstrong issues before. Second, start gathering evidence – we’ll get to exactly what evidence in a minute. Third, make a decision: are you fighting this thing, or are you gonna take whatever plea their offering?

Because once you file a selective prosecution motion, the goverment knows your not folding. The dynamics change. Your committed to litigating, which means your commited to the cost – and we’re talking $150,000 to $300,000 in legal fees for a full selective prosecution defense. That’s not a typo. Discovery experts, statistical analysists, former AUSAs as witnesses – it adds up fast. Make sure you’re ready for that fight before you start it.

What the Law Actually Requires (And Why Its Nearly Impossible)

Lets be honest about what your facing.

The legal standard for selective prosecution came from the Supreme Court’s 1996 decision in United States v. Armstrong, and its designed to make you lose. I don’t mean that cynically – the Court explicitly said that selective prosecution claims ask judges to “exercise judicial power over a ‘special province’ of the Executive.” Translation: prosecutors get to decide who to charge, and courts ain’t gonna second-guess that unless you got rock-solid proof of discrimination.

The two-prong test requires you too prove both: (1) discriminatory effect – that similarly situated people of a different race, religion, or political view wasn’t prosecuted; and (2) discriminatory intent – that the goverment chose to prosecute you because of your race, religion, or political views, not for some legit law enforcement reason. Both prongs. Clear evidence. Before you even get discovery.

And here’s the Catch-22 that will drive you crazy: to get discovery from the goverment (the documents that would prove your claim), you first have to present “some evidence” that discrimination occured. But how do you get evidence of the goverment’s charging patterns without discovery?

Your supposed to just know that the US Attorney’s office prosecuted you but not others? How would you even find that out?

The June 2025 Congressional Research Service report on federal prosecutorial discretion emphasizes that defendants must present “clear evidence” to support there claim. Not suspicions. Not hunches. Not “it seems unfair.” Clear evidence. Statistical data showing disparate prosecution rates. Documents revealing bias. Proof that others committed the same conduct with similar circumstances and wasn’t charged.

Here’s were it gets even harder: “similarly situated” doesn’t mean what you think it means. You can’t just say “my neighbor did the same thing and didn’t get charged.” The courts require the comparison to be nearly identical. Same federal district. Same time period. Similar criminal history (or lack therof). Same loss amount or conduct severity. Even the same prosecutor’s office. Prosecutors exploit tiny differences too defeat comparisons. Your case involved $50,000 in fraud? The person you wanna compare too involved $48,000? Different. You had a prior misdemeanor from 10 years ago? They was totally clean? Different.

Its maddening.

The UNC School of Goverment Defender Manual explains that because a selective prosecution claim is not a defense too the merits of the criminal charge, its treated as a procedural bar. That means even if you prove the goverment selectively prosecuted you, your still admitting you did the conduct. Your just saying they shouldn’t be allowed to prosecute you for it. Judges hate this. Their thinking: “So you did commit the crime, but you want me too dismiss the case because other criminals didn’t get caught?” Its a tough sell.

Based off the July 2024 LACBA analysis, to prevail on a selective prosecution claim, you gotta prove that the prosecution policy had both a discriminatory effect and was motivated by a discriminatory purpose. The intent prong is brutal. Even if you can show statistical disparities (hard enough), proving the prosecutor’s motive requires getting inside their head. Did they charge you because your Black? Because your a political opponent? Because you criticized them publicly? Without an email saying “let’s get this guy for political reasons,” how do you prove that?

Real world success rate? Less then 1%. Maybe way less. I’ve seen estimates as low as 0.1%. The scholarly article titled “Goodbye to the Defense of Selective Prosecution” basically argues that Armstrong killed this defense for all practical purposes.

But here’s the thing – that doesn’t mean you shouldn’t raise it.

When This Defense Actually Works (Types of Cases)

Alright, so if selective prosecution claims almost never succeed, when do they actually have a shot? Based off recent cases and current enforcement patterns, certain case types give you better odds then others. Not good odds – just better then impossible.

Political Cases (2025 Shift): If your prosecution is obviously political – you ran for office, you criticized the administration, you was involved in a controversial cause – judges in 2025 are paying more attention. The March 2025 analysis notes increased judicial willingness too consider selective prosecution in explicity political cases. The bar is still high, but at least judges ain’t dismissing these claims out of hand anymore. If you can show that people on the opposite political side did similar conduct without prosecution, you got a fighting chance.

Cases Below District Thresholds: Here’s something no one talks about: US Attorneys’ offices have informal dollar thresholds for prosecuting certain crimes. In Manhattan (SDNY), they typically won’t prosecute wire fraud under $250,000. In some districts, bank fraud under $500,000 doesn’t get federal attention – they leave it too state prosecutors or don’t prosecute at all. If your facing federal charges for conduct that’s below the normal prosecution threshold for you’re district, that’s circumstantial evidence of selective targeting.

Why did they make a exception for you?

I mean, think about it: if the SDNY usually ignores $100,000 fraud cases, but their prosecuting yours, what changed? Either your particularly sympathetic victim (powerful political connections), or your particularly unsympathetic (they wanna make a example). That disparity is evidence of selection, even if it ain’t proof of discriminatory intent.

Racial Disparities in Drug Cases: Armstrong itself was a crack cocaine case where the defendants argued that the goverment only prosecuted Black defendants in federal court (with harsh mandatory minimums) while prosecuting white defendants in state court (with lighter sentences). They lost on the discovery motion, but the underlying theory remains valid. If you can show racial disparities in who gets charged federally vs. state, or who gets charged at all, you got the foundation of a claim.

The challenge is getting the statistical data.

Immigration Cases in Border Districts: Some federal districts prosecute every single illegal reentry case. Others prosecute almost none, leaving it to administrative deportation. If your in a district that normally doesn’t prosecute these cases but their prosecuting yours, ask why. Did you criticize ICE? Did you help other immigrants? Is their a pattern of prosecuting people with certain political views or affiliations? The selective enforcement in immigration creates more opportunity for selective prosecution defenses then in other areas.

But here’s what don’t work: “I’m the only one who got caught.” That ain’t selective prosecution – that’s just bad luck. Selective prosecution requires proof that others did the same thing, the goverment knew about it, and chose not to prosecute them for discriminatory reasons. If the goverment didn’t know about the others, or if they just haven’t gotten around to prosecuting them yet, you got nothing.

The April 2025 Ninth Circuit decision highlighted the ongoing challenges defendants face when claiming selective prosecution in federal cases. Even in cases where discrimination seems obvious, the evidentiary burden remains extremely high. The Court emphasized that defendants must present specific facts, not mere allegations, which establish a colorable basis for the claim.

Building Your Selective Prosecution Case (Evidence You Can Actually Get)

So how do you get evidence when the goverment won’t give you discovery until you already have evidence? Welcome too the Armstrong Catch-22.

But their’s workarounds. Your not helpless. You just gotta do the investigative work that most defendants don’t know about.

PACER Mining – Start Tonight: PACER is the Public Access to Court Electronic Records system. For a small fee (10 cents per page), you can search federal court records in you’re district. Here’s what you do: search for cases involving the same statute you was charged under, in the same district, in the same timeframe (last 2-3 years). Look at the docket sheets. Who got charged? What was the conduct? What was the amounts involved? How did the cases resolve?

Your looking for cases where the conduct was similar or worse then yours, but the defendant wasn’t prosecuted (case dismissed early) or got a better deal. Pay attention to defendant names – do they suggest a different race or ethnicity? Look at the charging dates – is their a pattern of prosecuting people of your background while giving passes too others? This is tedious work, but its work you can do. You don’t need the goverment’s permission to search public records.

Example: Your charged with PPP loan fraud for a $75,000 loan. You search PACER for “PPP” + “fraud” + your district + 2023-2025. You find 30 prosecutions. You notice something – 25 of them involve defendants with names suggesting they’re minorities. The 5 white-sounding names? Those cases got dismissed or resulted in pretrial diversion. Now you got some evidence of disparate treatment.

Not proof yet – but enough to potentially meet the Armstrong threshold for discovery.

FOIA Requests – Get Prosecution Statistics: The Freedom of Information Act lets you request data from federal agencies. You can ask the US Attorney’s office for statistics on prosecutions under specific statutes. How many people was investigated for you’re offense in the last 3 years? How many was charged? What was the demographics? What was the average loss amounts in cases that was prosecuted vs. cases that wasn’t?

Real talk: their gonna fight this request. They’ll claim prosecutorial privilege, deliberative process privilege, law enforcement exemptions. But sometimes they have to produce aggregate data that don’t reveal specific deliberations. Even partial data helps. And the fact that they fought your request so hard? That’s something you can point to when arguing for court-ordered discovery.

Former AUSA Expert Witnesses – The Nuclear Option: Here’s a strategy most defendants don’t know about: hire a former Assistant US Attorney from you’re district as a expert witness. Someone who worked in that office for 10-15 years and knows how charging decisions really get made. They can testify about the office’s normal practices. “In my 12 years as a AUSA in the Southern District, we never prosecuted bank fraud cases under $500,000 unless their was aggravating circumstances. This defendant’s case has no aggravating factors, which suggests it was selected for reasons other then the normal prosecution criteria.”

This ain’t cheap – expect too pay $30,000 to $60,000 for a expert report and testimony. But it addresses the Armstrong Catch-22. The goverment won’t give you data about their charging patterns? Fine. Bring in someone who worked their and knows the patterns firsthand. The expert’s testimony, combined with you’re PACER research, might be enough “some evidence” to compel discovery.

Statistical Experts – Show the Disparity: If you can gather enough data (from PACER, FOIA, public records), hire a statistical expert to analyze it. Your not just presenting numbers – your presenting a expert opinion that the disparities are statistically significant and can’t be explained by legitimate factors. The expert can control for variables like loss amount, criminal history, cooperation, etc.

If the disparity persists after controlling for legitimate factors, you got evidence of discriminatory effect.

This is were you really prove “similarly situated” individuals was treated differently. The goverment will argue every comparison is different – different loss amount, different jurisdiction, different facts. A good statistical expert can show that even after accounting for all those differences, a statistically significant disparity remains. That’s powerful.

Social Media and Public Statements – Proving Intent: The discriminatory intent prong is often harder then discriminatory effect. But prosecutors sometimes make it easy for you. Did the US Attorney give a press conference about your case? Did they mention you’re political affiliation, race, or other protected characteristic? Did they put out a press release that seems to make a example of you?

Search the prosecutor’s public statements, social media, news interviews. Have they made comments suggesting bias against people like you? Have they publicly announced targeting of specific groups? In 2025, with everybody on Twitter and giving interviews, prosecutors sometimes reveal their thinking in ways that help your case.

Its all public record. Use it.

Comparative Case Analysis – Build Your Chart: Create a detailed chart comparing your case too others. Include columns for: defendant name, race (if discernible), statute charged, loss amount, criminal history, disposition, sentence. If you can show 20 cases where white defendants with similar conduct got pretrial diversion, but minorities got indicted, that’s you’re discriminatory effect evidence. If the only difference that explains the disparity is race, you got something.

The key is being thorough. One or two comparisons ain’t enough – prosecutors will distinguish them. But 15-20 cases showing a consistent pattern? That’s harder too dismiss as coincidence. And look – this work takes time. Your probably not gonna do it all yourself in 14 days. But you can start it, and you can hire lawyers and investigators who know how to finish it.

The point is: evidence exists. You just gotta know where to look.

The Sentencing Backdoor (When “Losing” Still Wins)

Okay, so lets say you file the selective prosecution motion. You did the PACER research. You hired the experts. You spent $100,000 on this fight.

And the judge denies you’re motion. You didn’t get the case dismissed. Did you waste all that money?

No.

Because here’s what the September 2022 Fried Frank analysis explains: even if the selective prosecution claim fails pre-trial, it can still make a difference at sentencing. Federal judges are required under 18 U.S.C. § 3553(a) too consider “the history and characteristics of the defendant” and “the need to avoid unwarranted sentence disparities.” If you was selectively prosecuted – even if you couldn’t prove it to the legal standard for dismissal – that’s a sentencing factor.

Think about it from the judge’s perspective at sentencing. The goverment wants 10 years. You’re lawyer argues: “Your Honor, we presented evidence that 15 other defendants in this district committed similar conduct with similar loss amounts. None of them was prosecuted. The only difference is that my client is Black / Republican / criticized the administration. While we couldn’t meet the high bar for dismissal, this selective prosecution is a mitigating factor that warrants a lower sentence.”

Judges got discretion at sentencing. If they think you got a raw deal – that you was unfairly targeted even if it don’t rise to a constitutional violation – they can account for that. I’ve seen cases where a failed selective prosecution motion still resulted in the judge sentencing below the guidelines range. The judge can’t say “I’m sentencing you below the guidelines because you was selectively prosecuted,” but they can say “considering all the circumstances, including the history of this prosecution, a lower sentence is appropriate.”

That “failed” motion might save you 3-5 years. Is that worth the $100,000 you spent on it? If your facing 15 years, and the motion cuts it too 10 years, you just bought 5 years of freedom for $100,000. That’s $20,000 per year of freedom.

Lots of people would take that deal.

Plea Bargaining Leverage: Even before you get to sentencing, a credible selective prosecution claim changes the plea negotiations. Prosecutors know that if this goes too trial with a selective prosecution defense, the jury’s gonna hear about how others wasn’t prosecuted. That’s bad optics for the goverment. Even if the judge already denied the dismissal motion, you preserved the issue for the jury.

Prosecutors might offer a better plea deal just to avoid the publicity of a trial where your defense is “the goverment is targeting me for discriminatory reasons.” Especially in political cases or cases with racial overtones, the goverment don’t want that narrative in the media. Your selective prosecution claim becomes leverage. “Drop it to this charge, or we’re taking this to trial and making selective prosecution the centerpeice of our defense.”

Jury Nullification – The Unspoken Strategy: Here’s something nobody talks about openly: even if the judge denied your selective prosecution motion, the evidence supporting that claim can still come in at trial as context. And when a jury hears that evidence – that others did the same thing and wasn’t prosecuted, that you was targeted for your race or political views – sometimes they acquit even when the evidence of guilt is clear.

Its called jury nullification.

Legally, selective prosecution ain’t a defense to the crime itself. If you committed wire fraud, you committed wire fraud, irregardless of whether others did too. But juries don’t always follow the law when they think the law is being applied unfairly. If they believe you was persecuted rather then prosecuted, they might acquit or convict on lesser charges. Judges won’t instruct juries about nullification, but it happens.

This is the nuclear option. Your basically telling the jury: “Yes, I did what their charging, but the goverment is corrupt and targeting me unfairly, so you should let me go anyway.” Its risky. Some juries will react badly too this. But in the right case – political prosecution, obvious racial targeting, sympathetic defendant – it can work.

Vindictive Prosecution (The Easier Alternative)

Before we finish, lets talk about you’re other option: vindictive prosecution. This is different from selective prosecution, and in some ways its easier too prove. Vindictive prosecution is when the goverment charges you (or adds charges, or increases charges) to punish you for exercising a constitutional or statutory right.

Common scenarios: You refused a plea deal, so the prosecutor added more charges. You went to trial on a related case, so they brought new charges on conduct they previously ignored. You filed a complaint against the prosecutor, and suddenly your under investigation. You invoked you’re right too remain silent, and they piled on charges.

That’s vindictive prosecution.

The key difference: with selective prosecution, you gotta prove the goverment treated similarly situated people differently based on a discriminatory reason. With vindictive prosecution, you just gotta prove the goverment punished you for exercising a right. You don’t need comparative data about how other defendants was treated. You just need evidence that the prosecutor’s actions was retaliatory.

The evidentiary burden is lower. You don’t need to show “clear evidence” like with selective prosecution. You need to show a presumption of vindictiveness – that the timing and circumstances create a appearance of retaliation. If charges was added after you refused a plea deal, the timing itself creates the presumption. Then the burden shifts to the goverment to show legitimate reasons for the new charges.

Like selective prosecution, vindictive prosecution must be raised before trial under Rule 12(b). Same deadline problem. But if you was charged after refusing a plea, after going to trial on another case, or after asserting your rights, you should raise both defenses – selective prosecution and vindictive prosecution. Their not mutually exclusive.

Give yourself two bites at the apple.

The March 2025 analysis discusses how these defenses work together in political cases. If your a political defendant who refused a plea deal, you might have both claims: selective prosecution (targeted for political views) and vindictive prosecution (punished for refusing to plead). Raise both. See which one sticks.

What You Must Do Right Now

Enough theory. Here’s you’re action plan for the next 72 hours:

• Hour 1-2: Find you’re scheduling order. Its the document the court issued after arraignment setting deadlines for motions. Look for the pretrial motion deadline. If its passed, your probably out of luck. If its coming up in the next 2 weeks, you got work to do. If you can’t find the scheduling order, call the clerk’s office or check PACER.
• Hour 3-8: Start PACER research tonight. Create an account at pacer.gov if you don’t have one. Search you’re district for cases under the same statute. Document everything – case numbers, defendant names, amounts involved, dispositions. Build that comparison chart. This is evidence you can gather without the goverment’s permission.
• Day 2: Consult with a federal criminal defense attorney who has experience with selective prosecution claims. Not your buddy’s lawyer. Not a state court attorney. Someone whose actually litigated Armstrong issues. Ask them: Do I have a colorable claim? Can we meet the deadline? What will this cost? Be prepared for the answer to be $150,000-$300,000 for a full selective prosecution defense.
• Day 3: Make the decision. Are you fighting or pleading? If your fighting, your lawyer needs to start drafting the motion immediantly. If your pleading, you need to negotiate before you lose the leverage that the selective prosecution claim provides. Don’t wait. The clock is ticking, and every day you delay is a day closer too waiving this defense forever.

And look – I get it. This is overwhelming. Your facing federal charges, your life is falling apart, and now your supposed too become a legal researcher and statistical analyst? But the alternative is letting the goverment get away with targeting you while others walk free.

If you really was selectively prosecuted, you owe it too yourself to fight back. Even if the claim ultimately fails, you’ll have fought. You’ll have made them work for it. And you might just save yourself years in federal prison.

The goverment made you a example. Now make them prove they had the right too do that.

Check your scheduling order today. Start you’re PACER research tonight. Call a federal defense attorney tommorow.

Right now. Before its to late.