Defender’s Office has handled 77 cases in which the defendant was charged with violating 18 U.S.C.§ 922(g)(1). 91% of those defendants were black (70 out of 77). By contrast, in the last year, thePublic Defender’s Office for Miami-Dade County has handled 5,692 cases in which the defendantwas charged with violating Fla. Stat. § 790.23(1), which similarly proscribes possession of a firearm by a convicted felon. 77% of those defendants were black (4410 out of 5692;
Exhibit A).Moreover, according to the Department of Justice Bureau of Justice Statistics, in 2006 (the mostrecent year for which data is available), just 49% of felony defendants in Miami-Dade County were black (
Exhibit B, at page 36).
“A defendant seeking to establish impermissibly selective vindictive prosecution must meeta substantial burden. He must show both that (i) others who have committed the same acts have not been prosecuted, and (ii) that the reason he was prosecuted was a ‘constitutionally impermissiblemotive such as racial  discrimination or retaliation for his exercise of constitutional rights’.”
United States v. Lamberti
, 847 F.2d 1531, 1535 (11th Cir. 1988) (quoting
Owen v. Wainwright
, 806 F.2d1519, 1523 (11th Cir. 1986)). Mr. Jones must demonstrate each of these elements by clear andconvincing evidence.
See United States v. Smith
, 231 F.3d 800, 808 (11th Cir. 2000). Mr. Jonesseeks dismissal of the indictment on two independent grounds: (1) his federal prosecution is inretaliation for his exercise of his right to trial; and (2) the US Attorney’s policy for § 922(g) prosecutions is impermissibly motivated by race.According to the US Census Bureau, Miami-Dade County is 19.5% African-American.
Case 1:10-cr-20844-DLG Document 22 Entered on FLSD Docket 01/04/2011 Page 3 of 7