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A trial judge correctly denied a Lebanese immigrant’s discovery request for records he claimed would show that people of Arab descent were selectively prosecuted in the Southern District of New York after the Sept. 11 terror attacks, the 2nd U.S. Circuit Court of Appeals has ruled. In United States v. Alameh, 02-1514, the circuit upheld Southern District of New York Judge Kimba M. Wood’s refusal to allow Fadi Alameh five years’ worth of records on criminal prosecutions or investigations of aliens or citizens for immigration violations in the district. Alameh was ultimately convicted of unlawful procurement of naturalization for trying to become a citizen by paying an American woman $5,000 to marry him. In support of his wide-ranging discovery request, Alameh submitted affidavits from immigration attorneys saying that his prosecution was unique and that prosecutions of Middle Eastern immigrants had “dramatically increased,” particularly since Sept. 11, 2001. The defense also submitted a list of 400 names, classified by whether or not the people had Arab or Muslim sounding surnames. The list purported to show that Arab or Muslim people accounted for just 15 percent of immigration-related prosecutions before the terror attacks, but 85 percent after them. Denying the request, Wood said that the case against Alameh was “strong” and that, while he was indicted after Sept. 11, 2001, the bulk of the investigation had been conducted before the attacks. In his appeal to the 2nd Circuit, Alameh pressed his case for selective prosecution and the denial of his discovery request. Writing for the court, Judge Guido Calabresi said a defendant who tries to show selective prosecution must show “clear evidence” that the prosecution has a discriminatory effect and was driven by a discriminatory purpose. By comparison, Calabresi said, the threshold for discovery is that defendants need only present “‘some’ evidence of discriminatory effect and intent.” In United States v. Armstrong, 517 U.S. 456 (1996), he said, “the Supreme Court held that to show discriminatory effect, a defendant seeking discovery must adduce ‘some evidence that similarly situated defendants of other races could have been prosecuted, but were not.’” But the court “did not decide the question of what showing of discriminatory intent sufficed to support discovery,” he wrote. Calabresi said that Alameh had failed to meet the “some evidence” standard because his “statistical evidence suffers from serious methodological difficulties,” and the affidavits submitted by immigration lawyers “speak in generalities and offer only beliefs.” “Since the amount of evidence needed to support a selective prosecution claim on the merits is greater than that which justifies discovery, it follows that, when, as here, discovery was not warranted, defendant’s merits claim must also fail,” he said. “We therefore affirm the district court’s judgment on both matters.” Assistant U.S. Attorneys Michael G. McGovern and Meir Feder represented the government. Michael S. Pollok and David Tolchin represented Alameh.

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