The Fourth Circuit today affirmed the denial of discovery on a selective prosecution claim related to Project Exile, a federal-state partnership that targets convicted felons in possession of firearms in the Richmond, Virginia metropolitan area. Judge Duncan wrote the opinion in United States v. Venable, in which Judge Niemeyer and Judge King joined.
The opinion begins as follows:
Appellant James Venable was indicted by the United States Attorney’s Office for the Eastern District of Virginia (“United States Attorney’s Office”) on the charge of possessing a firearm while being a felon, in violation of 18 U.S.C. § 922(g)(1). Venable, an African American, moved to dismiss the indictment against him, claiming that the United States Attorney’s Office selected him for prosecution under a federal-state law enforcement initiative known as Project Exile because of his race, in violation of the equal protection component of the Fifth Amendment’s Due Process Clause. As part of the motion, Venable sought discovery into the criteria and procedures used by the government in deciding to prosecute him in federal court while two other individuals, both white, who were also felons in possession of the same firearms as him, were not. The district court concluded that Venable had failed to satisfy his rigorous burden to obtain discovery on his selective prosecution claim. On appeal, Venable requests that we reverse the district court’s order denying his motion for discovery and remand this case for discovery and an evidentiary hearing. For the reasons that follow, we affirm.