United States of America v. Darrell Gist

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3749
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UNITED STATES OF AMERICA
v.
DARRELL GIST,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 07-cr-00387)
District Judge: Honorable A. Richard Caputo
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Submitted Under Third Circuit LAR 34.1(a)
May 21, 2010
Before: FUENTES, HARDIMAN and NYGAARD, Circuit Judges.
(Filed:May 26, 2010)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.

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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have1
appellate jurisdiction under 28 U.S.C. § 1291.
2
Darrell Gist appeals his judgment after a jury convicted him of: (1) assault, in
violation of 18 U.S.C. § 113(a); (2) possession of an object designed and intended to be
used as a weapon, in violation of 18 U.S.C. § 1791(a)(2) and (d)(1)(B); and (3) making a
false statement in a matter within United States jurisdiction, in violation of 18 U.S.C.
§ 1001(a). We will affirm.1
I.
Because we write for the parties, we recount only the facts essential to our
decision.
Gist attacked a fellow prisoner, Juan Amaya, in a restroom of the United States
Penitentiary (USP) at Canaan, Pennsylvania. Prior to the attack, Gist used a makeshift
knife to inflict superficial puncture wounds on himself. After Amaya left the restroom,
Gist fell to the floor in an attempt to pose as the victim of the assault and remained there
until prison personnel arrived. Gist refused to identify his alleged attacker when
questioned.
Prior to trial, Gist moved to dismiss the indictment, claiming selective and
vindictive prosecution. In conjunction with his motion, Gist requested a subpoena
requiring production of: “all data relative to USP Canaan’s policy and practice concerning
referrals for prosecution of inmates for fighting . . . . In each instance, identify the race of

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3
the inmates involved and whether the instance was referred for prosecution.” The District
Court found that Gist did not make a sufficient showing of selective or vindictive
prosecution to warrant discovery and denied Gist’s motion to dismiss his indictment.
We review the District Court’s denial of discovery in relation to a selective-
prosecution claim for abuse of discretion. United States v. Hedaithy, 392 F.3d 580, 605
(3d Cir. 2004). “An abuse of discretion exists where the district court’s decision rests
upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper
application of law to fact.” Id. at 605-06 (quoting Int’l Union, United Auto., Aerospace
and Agric’l Implement Workers v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir. 1987)).
On the merits, “[i]n both vindictive and selective prosecution claims, we review the
district court’s determinations of fact under the clearly erroneous standard. The district
court’s application of legal precepts in these claims are given plenary review.” United
States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir. 1989) (citations omitted).
II.
Gist, an African-American, claims selective prosecution based on racial animus.
Although prosecutors enjoy wide discretion, they may not prosecute based on a
defendant’s “race, religion, or other arbitrary classification.” United States v. Armstrong,
517 U.S. 456, 464 (1996) (citations and quotation marks omitted). To establish that a
prosecution is unlawfully discriminatory in this way, “[t]he claimant must demonstrate
that the federal prosecutorial policy ha[s] a discriminatory effect and that it [is] motivated

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Gist has also adduced prison records relating to two assaults by non-African-2
American inmates. Contrary to Gist’s previous claim, the District Court noted that
criminal charges were filed in connection with both incidents, and Gist does not challenge
this finding on appeal.
4
by a discriminatory purpose.” Id. at 465 (citation and quotation marks omitted).
Prosecutors are presumed not to violate equal protection, and a defendant can rebut this
presumption only by “clear evidence to the contrary.” Id. To be entitled to discovery on
a selective prosecution claim, a defendant must meet “a correspondingly rigorous
standard,” id. at 468—that of providing, without discovery, “some evidence tending to
show the existence of the discriminatory effect element.” Id. at 469. In other words, a
defendant must make “a credible showing of different treatment of similarly situated
persons.” Id. at 470.
Here, we find no error in the District Court’s decision to deny Gist’s discovery
request. The evidence in support of Gist’s selective prosecution claim consists of
affidavits from himself and three other inmates at USP Canaan, alleging in general terms
that racial discrimination and selective prosecution are rampant there. These allegations2
do not amount to “a credible showing” of discrimination because they are devoid of detail
and do nothing to show that prison personnel treated Gist less favorably than similarly
situated inmates. More fundamentally, Gist points to no evidence that the prosecutor in
his case—the United States Attorney for the Middle District of Pennsylvania—was

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Gist does not complain that he was not informed of his Miranda rights, and the3
record does not indicate whether he was so informed. We do not address the question of
whether prison staff were required to do so here.
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motivated by any racial animus. Accordingly, the District Court did not abuse its
discretion in denying Gist discovery on his claim of selective prosecution.
Having determined that Gist was not entitled to discovery on his claim of selective
prosecution on the facts of this case, it follows a fortiori that the District Court did not err
in denying Gist’s motion to dismiss the indictment because of selective prosecution.
III.
Gist next argues that the District Court erred in denying his motition to dismiss the
indictment because of vindictive prosecution. According to Gist, he was prosecuted in
retaliation for exercising his right to remain silent when he refused to identify the inmate
who attacked him and inflicted his stab wounds. The Supreme Court has held:3
To punish a person because he has done what the law plainly allows him to
do is a due process violation of the most basic sort. . . . For while an
individual certainly may be penalized for violating the law, he just as
certainly may not be punished for exercising a protected statutory or
constitutional right.
United States v. Goodwin, 457 U.S. 368, 372 (1982) (citation and quotation marks
omitted). “The defendant bears the initial burden of proof in a vindictive prosecution
claim and is required to establish the appearance of vindictiveness. The burden then
shifts to the prosecution to show that the prosecutor’s decision to prosecute was
justified.” Schoolcraft, 879 F.2d at 68.

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Gist claims he made a threshold showing of vindictiveness through his affidavit
stating that prison staff threatened him with punishment if he refused to speak about the
circumstances surrounding his stabbing and/or the identity of the perpetrator. We
disagree for two independent reasons. First, prison officials suspected that Gist’s wounds
were self-inflicted, so any threats were consistent with punishing Gist for violating the
law rather than for exercising his right to remain silent. Cf. Goodwin, 457 U.S. at 372.
Second, as was the case with Gist’s selective prosecution claim, his argument that prison
officials threatened him with retaliation sheds no light on whether the United States
Attorney’s Office prosecuted him with a retaliatory motive. Accordingly, the District
Court did not err in denying Gist’s motion to dismiss for vindictive prosecution.
IV.
In sum, because Gist has failed to show that he was prosecuted because of racial
animus or the exercise of legally protected rights, we will affirm his judgment of
conviction.

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