United States v. Venable, No. 11-4216

Decided: January 18, 2012

Gary Wayne Turner and Michelle Lynn Zechmann burglarized a home and stole eleven firearms. Turner was charged with burglary, grand larceny, and being a felon in possession of a firearm—all under state law—and cooperated with officers by admitting to the crime and showing officers where he had sold several of the guns: the home of an African American male named “James.”

Officers approached the residence of James Venable and, after Venable was assured he would not be arrested for the firearms, entered the home and retrieved the stolen guns. The next day, officers went to Zechmann’s home to arrest her on the same state law charges. However, Venable arrived and began shouting and causing a scene, including stating that he had just been released from the local penitentiary. This lead to an investigation of Venable’s criminal history and a subsequent arrest as a felon in possession of a firearm.

Both Zechmann and Turner pleaded guilty to the state law charges; Turner was sentenced to serve time in prison but Zechmann’s sentence was suspended with an agreement to seek rehabilitation and a promise of good behavior. Venable’s case, however, was referred to the local U.S. Attorney who in turn charged him with a federal crime for being a felon in possession of a firearm.

Venable was black; Zechmann and Turner were white. Thus, Venable filed for dismissal of the federal indictment as racially motivated in violation of the Fifth Amendment and for discovery as to the government’s decision to prosecute him under federal law rather than state law. Despite a presentation of various statistics showing a sizable disparity between charges along racial lines, the district court found that Venable had not met the burden to establish a potential selective prosecution claim and denied his motions.

To satisfy the high burden required to show selective prosecution, “a defendant must ‘establish both (1) that similarly situated individuals of a different race were not prosecuted, and (2) that the decision to prosecute was invidious or in bad faith.’” Applying its reasoning from United States v. Olvis, 97 F.3d 739 (4th Cir. 1996), the Fourth Circuit held on appeal that Venable did not show that he and the white defendants were similarly situated. The court noted that while Zechmann and Turner were charged by county authorities, Venable was arrested by city police who then chose to refer his case to federal prosecutors. Also, though Venable provided statistical data showing that African Americans were charged federally at a staggeringly higher rate than Caucasians, he did not show that his particular prosecution was “invidious or in bad faith.” His conviction was therefore affirmed.

Full Opinion

-C. Alexander Cable

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