United States District Court, D. Nebraska
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE.
22, 2018, a grand jury charged defendant Samuel Villalba
(“Villalba”) in a three-count indictment (Filing
No. 27) with (1) falsely representing the Social Security
number of another person as his own, in violation of 42
U.S.C. § 408(a)(7)(B); (2) misusing an identification
document, in violation of 18 U.S.C. § 1546(a); and (3)
falsely claiming U.S. citizenship to obtain a benefit or
service and to unlawfully engage in employment in the United
States, in violation of 18 U.S.C. § 1015(e). On July 20,
2018, Villalba, who describes himself as an undocumented
immigrant, moved to dismiss the case against him (Filing No.
38), alleging selective or vindictive  prosecution
“on the basis of race and/or national origin, which has
a discriminatory effect and intent.” See Fed.
R. Crim. P. 12(b)(3)(A)(iv). More specifically, Villalba
complains that he was charged with several crimes, but his
employer, who has “a known practice of hiring
undocumented immigrants, ” was not. Villalba
alternatively seeks additional discovery related to his
allegations of discrimination.
prevail on his selective-prosecution claim, Villalba
“must show (1) he was singled out for prosecution while
others similarly situated were not prosecuted for similar
conduct, and (2) the decision to prosecute him was based on
an impermissible motive such as race, religion, or an attempt
by the defendant to secure other constitutional
rights.” United States v. Rodriguez, 581 F.3d
775, 815 (8th Cir. 2009). His “burden is a heavy
one.” United States v. Kelley, 152 F.3d 881,
886 (8th Cir. 1998) (quoting United States v.
Matter, 818 F.2d 653, 654-55 (8th Cir. 1987)).
general, the government has broad discretion in deciding who
to investigate and prosecute for violating criminal statutes.
See, e.g., Flowers v. City of
Minneapolis, 558 F.3d 794, 798 (8th Cir. 2009)
(explaining such decisions are “ill-suited to judicial
review”). Absent a prima facie “showing of
intentional and purposeful discrimination, ” the Court
presumes the prosecution has “been undertaken in good
faith.” United States v. Parham, 16 F.3d 844,
846 (8th Cir. 1994). Villalba faces a correspondingly high
bar in showing he is entitled to obtain “discovery in
aid of such a claim” because discovery “will
divert prosecutors' resources and may disclose the
Government's prosecutorial strategy.” United
States v. Armstrong, 517 U.S. 456, 468 (1996).
motion to dismiss for selective prosecution was referred to a
magistrate judge  pursuant to 28 U.S.C. § 636(b)(1)(B).
On August 30, 2018, the magistrate judge issued a Findings
and Recommendation (Filing No. 52) recommending the Court
dismiss Villalba's motion because his “general,
non-specific allegations” fail to show that he was
similarly situated to his employer in all relevant respects
and that the government acted with discriminatory intent in
choosing to prosecute him.
objects (Filing No. 56) to the magistrate judge's
findings and recommendation. According to Villalba, the
magistrate judge erred in (1) concluding he was not engaged
in the same conduct or committing the same crime as his
employer, (2) describing his allegations as general, and (3)
finding he offered “no evidence” of
discriminatory motive. Villalba's objections are
conducted the required de novo review of Villalba's
objections and the record in this case, see 28
U.S.C. § 636(b)(1), the Court finds the magistrate
judge's findings and recommendation should be accepted.
The Court agrees with the magistrate judge that Villalba has
not made a sufficient showing of selective prosecution to
warrant dismissal or discovery. See, e.g.,
Armstrong, 517 U.S. at 468-69; United States v.
Peterson, 652 F.3d 979, 982 (8th Cir. 2011) (per
curiam). More precisely, Villalba has neither shown that he
and his employer “were similarly situated ‘in all
relevant respects, '” Gilani v. Matthews,
843 F.3d 342, 348 (8th Cir. 2016) (quoting Flowers,
558 F.3d at 798), nor shown sufficient evidence of
“intentional and purposeful discrimination” by
the government, Parham, 16 F.3d at 846.
are similarly situated when their circumstances present no
distinguishable legitimate prosecutorial factors that might
justify making different prosecutorial decisions with respect
to them.” United States v. Venable, 666 F.3d
893, 900-01 (4th Cir. 2012). Villalba has not made such a
showing. Instead, he relies on an unduly high level of
generality, a dubious hypothetical about an uncharged
conspiracy, and unsupported conclusions that are inconsistent
with the wide latitude prosecutors have in determining who to
charge and how to charge them. See Flowers, 558 F.3d
any impermissible motive, Villalba takes issue with the
magistrate judge's statement that he “presented no
evidence to demonstrate any discriminatory intent of the
government.” Pointing to “[t]he chain of events
that lead [sic] to [his] arrest and prosecution” and
the testimony from the investigating agent that there was a
pattern of illegal employment at Villalba's employer,
Villalba says he presented some evidence of discrimination,
even if it is “insufficient evidence in the eyes of the
Court.” Although Villalba quibbles with the magistrate
judge's use of the phrase “no evidence, ” the
Court's review of the magistrate judge's thorough
analysis makes clear that the magistrate judge considered
Villalba's proffered evidence but found it insufficient
to demonstrate any discriminatory motive or purpose behind
the charges against Villalba. The magistrate judge did not
err in reaching that sensible conclusion. See
Peterson, 652 F.3d at 982. Accordingly, IT IS ORDERED:
1. Samuel Villalba's objections (Filing No. 56) are
2. The magistrate judge's Findings and Recommendation
(Filing No. 52) are accepted with respect to Villalba's
Motion to Dismiss based on Selective Prosecution or
alternatively, for Additional Discovery (Filing No. 38).
3. That motion is denied.