Id., 470 U.S. at 607, 105 S.Ct. at 1530 (internal quotations and citations omitted).

                This presumption that the prosecutor has acted properly may be overcome in a selective prosecution claim only upon a showing by the defendant that (1) the prosecutor's actions in bringing a case have a discriminatory effect and (2) that those actions were motivated by a discriminatory purpose.  Wayte v. United States, 470 U.S. at 608, 105 S.Ct. at 1531.   To prove discriminatory effect, a defendant must show that similarly situated individuals were not prosecuted.  Id.  To prove discriminatory purpose, a defendant must show that the government prosecuted him because of his exertion of a protected right.  Id.

                Though not specifically addressed in this circuit, almost every circuit court addressing the issue has held that a defendant must establish a prima facie case to receive an evidentiary hearing on a selective prosecution claim.^[2]

                Here, defendant has utterly failed to make the requisite showing for dismissal or for an evidentiary hearing.  He has failed to present any evidence that similarly situated individuals are not prosecuted or that the government has prosecuted him because of his exertion of a protected right.  Defendant's unsupported accusations and "beliefs" are woefully insufficient to carry his burden.

A.             Defendant Has Failed To Show A Discriminatory Effect.

                Defendant first argues that he is part of some vaguely defined group of persons who have omitted information on their financial disclosure forms and who, generally speaking, are not prosecuted, and that he has been singled out for prosecution by the OIC for improper reasons.  Def.'s Mem. Supp. of Mot. to Dismiss (“Def.'s Mem.”) at 4-7.  Defendant's argument fails on multiple grounds.

                First, defendant's vague definition of the group of which he is purportedly a member is frivolous.  Relying on unidentified hearsay (“we have been told that there is only one case identified in which criminal charges were filed for a failure to report required information on a financial disclosure form,” Def.'s Motion at 5), defendant appears to suggest that government officials who lie on financial forms are entitled to some constitutionally protected stature.

                Even if this court chooses to give credence to defendant's definition of the group in which he claims membership, defendant is flatly wrong when he claims he has been singled out from that group.  Contrary to defendant's representations, a cursory search reveals numerous reported prosecutions of other government officials -- with no connection to Mike Espy or this investigation -- for filing false financial disclosure reports.^[3]

                Defendant's analysis fails even more noticeably when one notes that his entire selective prosecution claim focuses on but one of the three counts on which he has been indicted - the false financial disclosure form - Count 1.  Of course, defendant faces two additional counts under § 1001 which are completely unrelated to this form but which defendant chooses to ignore.  In reality, this is a multiple false statement case, not a false financial disclosure form case.  Defendant can hardly argue in good faith that he is being selectively prosecuted under 18 U.S.C. § 1001 by ignoring two-thirds of the indictment filed against him.

                To show a true discrimination effect, defendant would have to show that from the group of public officials whom the government knows violated 18 U.S.C. § 1001, only he has been prosecuted while the others were not.  See generally Wayte.  Obviously, defendant has not and cannot meet this burden as federal prosecutors routinely prosecute false statement offenses regardless of any connection to Mike Espy.  See, e.g.,  False Statements, 34 Am. Crim. L. Rev. 567, 567 (1997) ("Section 1001 of Title 18 of the United States Code is a frequently used and far-reaching statute which criminalizes false statements made directly or indirectly to the federal government.").  Moreover, since the OIC was established on September 9, 1994, the following individuals have been prosecuted by this office for violating 18 U.S.C. § 1001: Richard Douglas, Jack Williams, Alvarez Ferrouillet, Jr., John Hemmingson, and Gary Black.  Thus, defendant's claim is contrary to the available  evidence and he must resort to bald assertions and conclusions all of which still miss the mark.

                In sum, defendant has presented no evidence that either he or other public officials who have violated § 1001, and refused to provide evidence against Mike Espy, have received disparate treatment. Thus, the first part of defendant's selective prosecution argument fails.

B.              Defendant has Failed to Establish Discriminatory Purpose.

                Defendant next asserts that his prosecution was improperly motivated by his refusal to cooperate in the OIC's investigation and to provide incriminating evidence against Mike Espy.  Def.'s Mem. at 7-8.

                To show discriminatory purpose, defendant must show that the OIC brought this prosecution because of defendant's exertion of a privileged right.  See Wayte, 470 U.S. at 610, 105 S.Ct. at 1532; see also, United States v. Smith, 953 F.2d 1060, 1063 (7th Cir. 1992) ("Unless the prosecutor acts on forbidden grounds such as race or speech, the court must respect the executive's selection from the menu of crimes with which the defendant could have been charged.").  Defendant presents not a shred of evidence to show the exertion of a “privileged right,” but rather requests that this Court draw the inference of an improper motive based upon the circumstances surrounding his indictment.

                Because he has not a scintilla of evidence that he is being prosecuted on any truly suspect grounds (e.g., race, religion or some other arbitrary classification), defendant advances the creative but ultimately fallacious argument that his prosecution resulted from his refusal to assist the OIC in its efforts to prosecute Mike Espy.  However, he submits no real evidence to support this wild allegation.  The OIC did not decide to prosecute defendant because of his refusal to assist the OIC.  Rather, the OIC possessed evidence that defendant committed three crimes and sought an indictment so charging defendant.

                In his attempt to support his position that the government possessed an improper motive, defendant provides two letters and an affidavit.  The first letter, prepared by former Associate Independent Counsel Blanche L. Bruce, states that defendant was not a subject of the OIC's investigation two and a half years ago on March 14, 1995.  This was a true and correct statement in March of 1995, at the beginning of the OIC's investigation.  During the course of its investigation, the OIC uncovered evidence that defendant violated criminal statutes and thus, requested a Grand Jury indictment.  This hardly is improper.

                Defendant also cites a letter dated September 10, 1997, written by defendant's prior counsel Hiram Eastland.  This letter can be disregarded since it is not a sworn declaration and was likely written as a form of retaliation for government's counsel's proper efforts to disqualify Mr. Eastland based on a real conflict of interest (which order had been granted only weeks prior).

                Lastly, the affidavit of another of defendant's former counsel, Jeffrey Jacobovitz, is not only inaccurate, it is wholly irrelevant to an accusation of selective prosecution.  The Jacobovitz affidavit was filed in opposition to the Motion to Disqualify Counsel which was granted by this

Court of August 21, 1997.  The affidavit reveals nothing supporting a claim that the OIC prosecuted defendant because of his exertion of a privileged right.

                Defendant has simply failed to present any evidence of improper motive on the part of the OIC but rather relies on bare accusations.  The case law demands more; thus, defendant's motion should be dismissed.^[4]

III.

CONCLUSION

                Defendant has failed to carry his demanding burden of making out a prima facie case let alone proving that other individuals similarly situated have not been prosecuted and that the OIC instigated his prosecution because of his refusal to cooperate in the OIC's investigation.  Nor can he carry this burden inasmuch as (1) the government does indict public officials for lying to government departments and their investigators and (2) the OIC indicted defendant because of his illegal conduct.  Defendant's motion for dismissal or for an evidentiary hearing should be denied.

                Moreover, as this argument is one of law now being decided by this Court, defendant should be precluded from raising this and related issues before the jury.  The United States' motion in limine should be granted.

Date:        November 10, 1997                                  Respectfully submitted,

                                                                                                OFFICE OF INDEPENDENT COUNSEL

                                                                                                In Re Alphonso Michael (Mike) Espy

                                                                                                __________________________________

                                                                                                William F. Fahey

                                                                                                Counsellor to the Independent Counsel

                                                                                                Joseph P. Guichet

                                                                                                Associate Independent Counsel

                                                                                                103 Oronoco Street, Suite 200

                                                                                                P.O. Box 26356

                                                                                                Alexandria, Virginia  22314

                                                                                                Tel:  (703) 706-0010

                                                                                                Fax:  (703) 706-0050