In United States v. Rundo, --- F.4th ---, No. 24-932 (9th Cir. 2024), the Court reversed the district court’s judgment dismissing, based on a claim of selective prosecution, an indictment charging Robert Paul Rundo and Robert Boman with conspiracy to violate the Anti-Riot Act as well as with substantively violating the Act; reinstated the indictment; and remanded the case for trial.
The indictment alleged that Rundo was a founding member of the “Rise Above Movement” or “RAM,” a "combat-ready, militant group of a new nationalist white supremacy and identity movement.” It also alleged that Rundo and his colleagues, including Boman, attended a number of peaceful protests, when they chased down and violently attacked counter-protesters.
The district court granted the defense motion to dismiss for selective prosecution, concluding the government prosecuted RAM members such as Defendants while ignoring the violence of members of Antifa and related far left groups because RAM engaged in what the government and many believe is more offensive speech.
The Ninth Circuit reversed, finding the district court erred in virtually every aspect of its analysis.
To succeed in a selective prosecution claim, the defendant bears the burden to demonstrate that (1) other similarly situated individuals have not been prosecuted and (2) his prosecution was based on an impermissible motive.
On prong one, the Court held that Rundo did not meet his burden to establish that similarly situated individuals were not prosecuted, that the district court erred by comparing collective conduct to individual conduct when it referred broadly to “Antifa and far-left groups” and comparing them to “Defendants,” and that the district court erred in holding that the individual Antifa members it did discuss were similarly situated to Rundo.
Moving to the second prong, the Court concluded that Rundo failed to meet his burden to demonstrate that his prosecution was based on an impermissible motive.
