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Case 1:19-cr-00830-AT Document 35 Filed 04/24/20 Page 30 of 34 one,” id., as the defendant must “overcome the strong presumption of regularity on the part of federal prosecutors, and ‘in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’” United States v. Sanders, 17 F. Supp. 2d 141, 144 (E.D.N.Y. 1998) (quoting Armstrong, 517 U.S. at 464), aff'd, 211 F.3d 711 (2d Cir. 2000). A defendant claiming selective prosecution must present “clear evidence” that the decision to prosecute not only (1) “had a discriminatory effect” but was also (2) “motivated by a discriminatory purpose.” Armstrong, 517 U.S. at 465; United States v. Alameh, 341 F.3d 167, 173 (2d Cir. 2003); United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992); United States v. Moon, 718 F.2d 1210, 1229 (2d Cir. 1983). “The discriminatory effect prong requires a showing that ‘similarly situated individuals of a different [classification] were not prosecuted.’” Alameh, 341 F.3d at 173 (quoting Armstrong, 517 U.S. at 465). In other words, the defendant must show that he has been “singled out” as a member of a protected class. Fares, 978 F.2d at 59 (quoting Moon, 718 F.2d at 1229). To establish discriminatory purpose, the defendant must show that the Government’s discriminatory “selection of the defendant for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.” /d. (internal quotation marks omitted; alteration incorporated). Where a defendant “has not shown that the Government prosecuted him because of” his protected status or conduct, his claim fails. /d. In order to obtain discovery on a selective prosecution claim, the defendant must offer “some evidence tending to show the existence of the essential elements of the defense.” Armstrong, 517 U.S. at 468 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)); United States v. Bass, 536 U.S. 862, 863 (2002) (per curiam) (to obtain discovery, a defendant accordingly first “must show some evidence of both discriminatory effect and discriminatory 25 DOJ-OGR- 00022092