All other issues of fact shall be determined by the court. . . ."Id. at 174-75; see United States v. Napper, 553 F. Supp. 231, 232 (E.D.N.Y. 1982) ("defendant does not have the right to present a selective prosecution claim to a jury"). Case law also establishes that the issue of whether the Government's misconduct is so outrageous as to require dismissal of an indictment is a question within the sole province of the court.

The issue of selective prosecution is a legal question that should be presented before the Court, not the jury. See Baez, 2023 WL 6364648, at *8-9 (precluding argument before the jury regarding First Amendment right to protest, and selective prosecution, as these arguments “would inappropriately shift the responsibility for making determinations of law from the Court to the jury” and potentially invite jury nullification); Householder, 645 F.Supp.3d at 849-50 (holding that “[b]ecause selective prosecution is a pretrial issue rather than a defense, the Court will not permit it to be asserted or suggested at trial”); United States v. Napper, 553 F.Supp. 231, 232 (E.D.N.Y. 1982) (“A selective prosecution claim is . . . a question of law properly determined only by the Court, and may not be argued before the fact-finders.”)

On the other hand, even if this foundational showing can be made, this question is one for the Court not for the jury. United States v. Napper, 553 F.Supp. 231, 232 (E.D.N.Y. 1982) (“If impermissible selective prosecution is demonstrated, the indictment itself is fatally defective regardless of any evidence proving guilt.

And, finally, Judge McAndrews' determination was material and necessary because “[i]f impermissible selective prosecution is demonstrated, the indictment itself is fatally defective.” United States v. Napper, 553 F.Supp. 231, 232 (E.D.N.Y.1982). Plaintiffs argue that the claims are not “identical” because “neither the § 1983 civil rights aspect of the selective prosecution nor the issuance of a writ of prohibition was before the state criminal court.”

Government also argues that a claim of vindictive prosecution is properly raised in a pretrial motion to dismiss and not a permissible argument to the jury. See United States v. Berrigan, 482 F.2d 171, 175 (3rd Cir. 1973); United States v. Dufresne, 58 Fed.Appx. 890, 895 (3rd Cir. 2003); United States v. Napper, 553 F. Supp. 231, 232 (E.D.N.Y. 1982). Additionally, the Government notes that the circumstances relating to the resignation of former U.S. Attorney Todd P. Graves is irrelevant to the factual issues of this case.

See Anne Bowen Poulin, Proscutorial Discretion Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am.Crim. L.Rev. 1071, 1094 n 103 (1997) (collecting cases in which discovery has been ordered). See also Branch Ministries, Inc. v. Richardson, 970 F. Supp. II, 18-19 (D.D.C. 1997) (directing IRS to provide to plaintiffs reports and statistics, policies on investigations, and IRS letter rulings and technical advice memoranda); United States v. Figueroa-Rocha, 1995 WL 253050, at *3 (N.D.Cal. Apr.27, 1995) (unpublished) (ordering in camera production of Department of Justice prosecution policies and other statistical reports); United States v. Napper, 553 F. Supp. 231, 234 (E.D.N.Y. 1982) (ordering production of statistics, policies, and communications with foreign officials either to court or opposing party); United States v. Kahl, 583 F.2d 1351, 1354-55 (5th Cir. 1978) (upholding an evidentiary hearing and in camera review of narratives of IRS investigations); United States v. Carson, 434 F. Supp. 806, 808 (D.Conn. 1977) (ordering evidentiary heating and in camera production of internal Department of Justice memoranda); United States v. Berrios, 501 F.2d 1207, 1212 (2d Cir. 1974) (upholding an in camera review of government memorandum recommending prosecution). Following in camera review of these items, the Court will conduct further hearings in this case to determine the appropriate manner in which to proceed on Mr. Gardner's motion for recovery under the Hyde Amendment.

Selective enforcement is not a defense to the substantive criminal charge. See United States v. Berrigan, 482 F.2d 171, 174-75 (3d Cir. 1973); see also United States v. Washington, 705 F.2d 489, 495 (D.C. Cir. 1983); United States Postal Service v. O'Brien, 644 F. Supp. 140, 145 (D.D.C. 1986); United States v. Napper, 553 F. Supp. 231, 232 (E.D.N.Y. 1982). It is in the nature of an injunction to the criminal proceeding based on an unconstitutional selection of the defendant.

Such a claim is unrelated to the determination of guilt or innocence. United States v. Napper, 553 F. Supp. 231 (E.D.N.Y. 1982). See also, Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927).