United States v. Moon
1) Discriminatory selection;
2) Improper purpose.
· Facts: Reverend Moon alleges selective prosecution for tax evasion based on the exercise of his First Amendment right to declare himself the messiah and conduct mass weddings. He files a motion to dismiss on that basis.
· “The person asserting such a claim bears the burden of establishing prima facie both: 1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against, he has been singled out for prosecution, and 2) that the government’s discriminatory selection of him 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.” United States v. Moon
· Prima facie standards means you must simply bring ANY evidence to compel the prosecution to rebut the presumption.
o Prosecution does not end and will likely go forward, but there is a chilling effect.
· Moon fails to present any evidence of an improper basis. It is not enough to chronicle ill-will expressed by Congress and impute potential that potential bias to the executive.
· “Naked suspicion cannot serve as a substitute [for an] evidentiary showing”
· If the threshold for selective prosecution is lowered, you make it easier for people to challenge any decision to prosecute (all prosecutions are in some way selective) and make it impossible for law enforcement community to perform its functions.