A federal court in California has denied a defendant’s motion to compel discovery on his claim that he had been the subject of selective criminal prosecution for hazardous materials transportation violations. United States v. Ibrahim, No. 3:11-cr-00811 (N.D. Cal. motion denied 2/15/13).

The United States has charged MedChem Corp. and owner Hasan Ibrahim with illegally exporting chemicals, including hazardous materials, medical equipment and diagnostics to a Saudi business without required shipping papers. According to the criminal complaint, the company and its owner “willfully attempt[ed] to cause to be placed in, upon, and in proximity to a civil aircraft used, operated, and employed in foreign air commerce, a destructive substance . . . , and otherwise cause[d] such aircraft to be made hazardous to use, likely endangering the safety of such aircraft.” The allegations also include failure to properly label packages containing hazardous materials.

Ibrahim asserted that the United States had selectively prosecuted him and his company because he is a Muslim of Palestinian origin. Ibrahim and MedChem sought discovery on the selective prosecution question, and the government objected. The court agreed that under the Fifth Amendment “prosecutors cannot base decisions to prosecute on “an unjustifiable standard such as race, religion, or other arbitrary classification.” But it said that the defendant was required to produce evidence that the government had not prosecuted similarly situated persons who were not part of the defendant’s religious or national origin group.

Although most violations of these provisions are handled administratively and few criminal prosecutions for the kinds of violations alleged against MedChem and Ibrahim had occurred, the court found that the rarity of prosecution did not demonstrate an improper basis for prosecution. Because the standard of proof is “rigorous,” and because Ibrahim could not identify other similarly situated non- Muslims or non-Palestinians who had not been prosecuted, the court denied the defendants’ request for discovery on their selective prosecution claims.