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Case 1:19-cr-00830-AT Document35 Filed 04/24/20 Page 33 of 34 prosecutors not “objective evidence” warranting discovery); Moon, 718 F.2d at 1230 (“to engage in a collateral inquiry respecting prosecutorial motive, there must be more than mere suspicion or surmise”). Thomas’s failure to make an evidentiary showing in support of the first required prong means that his motion for discovery on his selective prosecution claim must be denied. See, e.g., Bass, 536 US. at 863. As to the second required prong, Thomas has failed to even allege, let alone establish, that the decision to prosecute him was motivated by a discriminatory purpose. To make such a showing, a defendant must establish that the Government’s “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.” Fares, 978 F.2d at 59 (internal quotation marks omitted; alteration incorporated). Thomas has not put forth any evidence whatsoever that the Government’s decision to prosecute Thomas was based on anything other than his guilt. Instead, Thomas challenges the Government’s decision to prosecute him at all, based on his wholly unsupported claim that the criminal conduct with which he is charged is “rampant” within the BOP. (Mot. 7). But the mere fact that other people were not prosecuted for committing the crime that Thomas committed does not mean that the Government harbored discriminatory intent in prosecuting Thomas.® 8 Even if Thomas had not failed to carry his burden on his discovery motion (and he has failed), he would still not be entitled to put such evidence or argument regarding selective prosecution before a jury because the “selective prosecution defense is an issue for the court rather than the jury.” Regan, 103 F.3d at 1082. The Second Circuit’s directive makes sense. A claim of improper prosecutorial motive, whatever its ground or grounds, “is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” Armstrong, 517 U.S. at 463. Instead, it is self- evidently “unrelated to factual innocence of the crime charged,” which is the sole issue to be decided by the jury, and, as a result, the Court alone must resolve a claim of selective prosecution. Regan, 103 F.3d at 1082; see also United States v. Rosado, 728 F.2d 89, 93 (2d Cir. 1984) (criticizing admission of evidence about the propriety of a prosecution “for turning the trial away 28 DOJ-OGR-00022095