United States v. Brian Foster

• Court: Court of Appeals for the Third Circuit
• Decided: April 2, 2025
• Docket: 24-1538
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 24-1538 _____________

UNITED STATES OF AMERICA

v.

BRIAN FOSTER, Appellant _____________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:23-cr-00166-001) District Judge: Hon. Malachy E. Mannion _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 3, 2024 _____________

Before: SHWARTZ, MATEY, and McKEE, Circuit Judges

(Filed: April 2, 2025) _____________

OPINION * _____________

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, *

does not constitute binding precedent. MATEY, Circuit Judge.

Brian Foster pleaded guilty to possessing a weapon while incarcerated. He appeals

the District Court’s denial of his request for discovery to support a selective enforcement

claim. Because the District Court acted within its discretion to deny further discovery on

this collateral issue, we will affirm.

I

While serving his sentence for homicide at FCI Schuylkill, a corrections officer

inspected Foster and found a piece of clear plexiglass sharpened to a point with a tape

handle inside Foster’s pants pocket. Foster acknowledged that the plexiglass was a

weapon, and he was indicted for possessing contraband in violation of 18 U.S.C. §

1791(a)(2), (b)(3).

Rather than defend against the charge directly, Foster alleged that FCI Schuylkill

officials selectively enforce prison contraband laws based on race. In support of a motion

for discovery on this theory, Foster claimed that over a three-year period the United

States prosecuted thirty-nine FCI Schuylkill inmates for contraband-only offenses. Of

those inmates, thirty were black, eight were hispanic, and one was white. He argued that

when contrasted against the nationwide racial composition of inmates, his statistics

permit an inference that contraband investigations at FCI Schuylkill are conducted on the

basis of race. Foster asked the District Court to compel the United States to produce from

the same three-year period: 1) all incident reports related to possession of a weapon or

drugs; 2) all forms referring the same incidents to the United States Attorney’s Office; 3)

all discipline reports related to the same incidents; 4) the race data related to the inmates

2 involved in the same incidents; and 5) the prison policies on officials’ discretion to refer

such incidents for prosecution.

The United States voluntarily produced several of the items Foster requested.

These materials clarified that only 18% of FCI Schuylkill’s 1,027 inmates were white.

The United States also confirmed that Foster identified all contraband-only prosecutions

that occurred during his chosen period. And the United States provided FCI Schuylkill’s

policy to refer all contraband offenses for prosecution. Based on this additional

information, the United States opposed the rest of Foster’s discovery requests as overly

broad and unreasonable.

The District Court denied Foster’s motion. The Court concluded that Foster’s

proffer indicates “a racial disparity in the rate of prosecution” for contraband-only

offenses. App. 145. But it found insignificant the sole prosecution of a white inmate

based on the low population of white inmates housed at FCI Schuylkill, and the small

sample of total prosecutions (some thirty-nine). The District Court also noted that prison-

contraband prosecutions leave little room for bias as the facility limits investigations to

inmates who have chosen to possess contraband. On balance, the District Court

concluded it could not reasonably infer that prison officials declined to refer contraband

offenses because the offending inmates were white.

3 Foster subsequently entered a conditional guilty plea, reserving the right to appeal

the denial of his motion for discovery. 1

II

The Fifth Amendment prohibits federal investigations of alleged criminal conduct

“based on ‘an unjustifiable standard such as race, religion, or other arbitrary

classification.’” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Oyler v.

Boles, 368 U.S. 448, 456 (1962)); see United States v. Washington, 869 F.3d 193, 214

(3d Cir. 2017). A defendant may collaterally attack his indictment with “clear evidence”

that investigations or prosecutions were not pursued against similarly situated offenders

based on some impermissible consideration. Armstrong, 517 U.S. at 465 (quoting United

States v. Chemical Found., Inc., 272 U.S. 1, 14 (1926)).

A district court may permit limited discovery on a selective enforcement claim if

shown evidence of discriminatory effect through “reliable statistical evidence, or its

equivalent,” that is “strong enough to support a reasonable inference of discriminatory

intent.” Washington, 869 F.3d at 221. But it must also consider “judicial economy and the

need to avoid protracted pretrial litigation.” Id. We review only whether the District

Court’s weighing of Foster’s proffer was “arbitrary, fanciful[,] or clearly unreasonable.”

See United States v. Collins, 36 F.4th 487, 494 (3d Cir. 2022) (quoting Democratic Nat’l

Comm. v. Republican Nat’l Comm., 673 F.3d 192, 201 (3d Cir. 2012)).

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s discovery ruling for abuse of discretion. See United States v. Washington, 869 F.3d 193, 213 (3d Cir. 2017). 4 It was not. The District Court reasonably noted Foster’s proffer did not account for

either the small sample size offered, see, e.g., Blunt v. Lower Merion Sch. Dist., 767 F.3d

247, 276 (3d Cir. 2014), or the self-selection of inmates who chose to possess contraband.

And unlike the Washington defendant, whose decision to engage in unconsummated

criminal activity was not alone dispositive, Foster completed his crime before the

investigation began. See Washington, 869 F.3d at 222. Additionally, the strength of

Foster’s initial proffer diminished when the United States voluntarily produced data

showing that white inmates are a substantial minority of FCI Schuylkill’s population and

a policy indicating investigators lacked discretion. See id. at 221 (“[T]he end ‘goal’ of

such a discovery motion is a valid claim of selective enforcement under the heightened

substantive standards.”). The District Court therefore “operate[d] within its discretion to

deny additional discovery.” Id.

***

For these reasons, we will affirm the District Court’s order denying Foster’s

discovery motion.

5 McKEE, Circuit Judge, concurring.

I agree that Foster has not produced sufficient evidence to support a finding of

selective enforcement, but my reasoning differs somewhat from that of my colleagues.

I.

In United States v. Washington, we examined “the distinction between ‘selective

prosecution’ and ‘selective enforcement’” claims. 1 We explained that selective

prosecution claims focus on “the actions of prosecutors (in their capacity as

prosecutors),” whereas selective enforcement claims focus on “the actions of law

enforcement and those affiliated with law-enforcement personnel.” 2 Both “[s]ubstantive

claims . . . are generally evaluated under the same-two part test”—“[a] defendant

challenging a criminal prosecution at either the law enforcement or prosecution inflection

points must provide ‘clear evidence’ of discriminatory effect and discriminatory intent.” 3

However, the standard for obtaining discovery to support each claim is distinct. 4

Under the Armstrong/Bass test 5 that applies to selective prosecution claims, a

defendant must make a “credible” showing with “‘[s]ome evidence’ . . . that similarly

situated persons were not prosecuted.” 6 In contrast, although “courts contemplating

motions for discovery on selective enforcement claims must still be guided by the spirit

1 United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017). 2 Id. at 214. 3 Id. 4 Id. at 220–21. 5 This test derives from United States v. Armstrong, 517 U.S. 456 (1996) and United States v. Bass, 536 U.S. 862 (2002). Id. at 197. 6 Id. at 214–15. 1 of Armstrong/Bass,” that test does not apply to selective enforcement claims. 7 Rather, in

selective enforcement claims:

a district court retains the discretion to conduct a limited pretrial inquiry into the challenged law-enforcement practice on a proffer that shows “some evidence” of discriminatory effect. The proffer must contain reliable statistical evidence, or its equivalent, and may be based in part on patterns of prosecutorial decisions . . . . Distinct from what is required under Armstrong/Bass, a defendant need not, at the initial stage, provide “some evidence” of discriminatory intent, or show that (on the effect prong) similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement. However, the proffer must be strong enough to support a reasonable inference of discriminatory intent and non-enforcement. 8

Foster argues that the evidence he produced of a statistical difference between the

racial/ethnic makeup of the thirty-nine contraband defendants and the racial/ethnic

makeup of the population of FCI Schuylkill supports a reasonable inference of

discriminatory intent and non-enforcement. Although the District Court accepted the

evidence, it refused to conclude that it supported a reasonable inference of selective

enforcement because the District Court believed that the sample size of thirty-nine

defendants was too small to be reliable.

The sample size is obviously quite small, but that does not necessarily negate its

ability to support a reasonable inference. Fundamentally, all statistical samples are quite

small relative to the universe they attempt to represent. That is the beauty and

significance of statistical sampling. It allows a reliable conclusion about a larger

population based upon a small (but representative) sampling of that population.

7 Id. at 220. 8 Id. at 220–21 (emphasis added). 2 Although “[c]onsiderations such as small sample size may . . . detract from the value of

[statistical] evidence,” 9 if the statistical sample here actually consisted of thirty-nine

similarly situated defendants, I might be willing to assume that it was adequate to support

Foster’s conclusion.

However, in Washington, we explained that “the proffer must contain reliable

statistical evidence, or its equivalent.” 10 The government argues on appeal that Foster’s

“limited proffer” did not establish a reasonable inference because it “included both

questionable and inaccurate data.” 11 I agree. Foster’s evidence has the following flaws:

A. Foster’s data collection methods were questionable.

Foster identified thirty-nine contraband defendants based on an ECF search but

admitted there could have been additional defendants that he missed because their cases

were either miscoded on ECF or filed under seal. Foster offered no evidence of the race

of three defendants but assumed they were coded as White. He also assumed that seven

of the eight White defendants were Hispanic based on their last names and a website of

unverified accuracy called “namecensus.com.” 12

B. Foster’s choice of data to compare was questionable.

Foster initially compared the thirty-nine contraband defendants to the population

of the BOP at large. Only after the government provided information about the

9 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977). 10 Washington, 869 F.3d at 221. 11 Answering Br. 16. 12 The government initially affirmed Foster’s assertion that there were thirty-nine contraband defendants of whom thirty were Black, eight were Hispanic, and one was White. Thus, it might be possible to overlook these particular flaws in this data. 3 population of FCI Schuylkill did he change his comparison so that it was based on the

relevant institution.

Although everyone in his dataset was charged with possessing contraband in

violation of 18 U.S.C. § 1791(a)(2), the statute defines several different kinds of

“prohibited objects,” including weapons, controlled substances, cellphones, and

currency. 13 While some individuals in Foster’s dataset were charged with possessing

weapons, many others were charged with possessing controlled substances or cellphones.

Foster failed to distinguish between these three categories of contraband defendants.

Foster was charged with weapons contraband. It is not only conceivable that

prison officials might treat possession of each category of prohibited objects differently,

it is understandable and perhaps even likely. For example, corrections officials could be

granted discretion in how they enforce prohibitions against possessing currency but be

required to refer weapons contraband for prosecution.

If we look at weapons only contraband, then one out of only sixteen defendants

was White as opposed to one out of thirty-nine. This sixteen-person dataset is even less

reliable and less statistically significant than Foster’s original dataset. Given the already

small sample size, this reduction in relevant data further undermines the reliability of

C. Foster’s selected time period was questionable.

13 18 U.S.C. § 1791(d)(1)(A)–(D). The statute further distinguishes among numerous types of controlled substances such as methamphetamine, marijuana, and alcoholic beverages. 4 Foster did not explain why his statistical inquiry relied upon a three-year time

period and there is no reason why we should conclude that even a statistically valid

analysis of the three years relied upon would yield a “fair” statistical conclusion.

Although Foster was indicted on June 20, 2023, he continued the three-year

dataset until July 19, 2023. There is no explanation of why the dataset continued after his

suit began.

If we cannot consider cases after Foster’s indictment, the number of weapons

contraband cases drops from sixteen to fourteen, and our dataset is further reduced to one

White defendant out of the fourteen. There is absolutely no reason to conclude that a

dataset that small can support a reliable inference of selective enforcement.

D. Foster’s number of contraband defendants was inaccurate.

Originally, Foster identified thirty-nine contraband defendants. In his reply brief,

however, he noted that a superseding indictment had eliminated one of the thirty-nine but

failed to identify the eliminated defendant’s name, race, or contraband category.

Considering this already very small dataset, I am not willing to assume that this change

would have no bearing on the reliability of Foster’s conclusion about the likelihood of

selective enforcement.

5 II.

As a result of the many flaws in the data, it is impossible to conclude that Foster

proffered “reliable statistical evidence, or its equivalent.” 14 Foster could have

strengthened his proffer by providing additional evidence, including expert analysis to

explain and substantiate his argument about the validity of his dataset. 15 Absent more

than appears on this record, we are in no position to hold that the District Court abused its

discretion in rejecting Foster’s claims of selective enforcement. I therefore agree with the

majority’s conclusion that we must affirm the District Court’s order.

14 Washington, 869 F.3d at 221. 15 Courts may also “consider the product of earlier investigations in deciding whether to conduct pretrial discovery on the individual claims they happen to confront.” Washington, 869 F.3d at 221. If previous investigations or lawsuits involving FCI Schuylkill revealed selective enforcement or racial bias, this evidence could strengthen a motion for discovery. Moreover, an affidavit from Foster, or another inmate at the prison who witnessed selective enforcement, could also bolster his motion. 6