[Not for Publication] United States Court of Appeals For the First Circuit

No. 00-1411 UNITED STATES OF AMERICA,

Appellee,

v.

DONALD G. SMITH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr, Senior Circuit Judge,

and Stahl, Circuit Judge.

George J. West for appellant. Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Mary E. Rogers, Assistant United States Attorney, were on brief for appellee. December 27, 2000 Per Curiam. Appellant Donald G. Smith claims that the

district court abused its discretion by denying his discovery

requests for information relating to possible sentencing-factor

manipulation and improper investigative techniques by the

government. Smith argues that the information he sought might

have enabled him to demonstrate an entitlement to a downward

departure. Cf. United States v. Coleman,

(6th Cir.

1998) (en banc). As Smith failed to make the threshold showing

required for the requested relief, we affirm the district court

ruling.

Essentially, Smith contended that since there is

nothing in his background which would have suggested that he be

targeted for a federal drug investigation, he was entitled to

discover whether he and certain other persons, as to whose

investigations and arrests he likewise sought discovery, may

have been singled out by the government, either as members of

minority groups (Smith identifies himself as a black person) or

simply as targets for sentencing-factor manipulation. The

district court ruled that the predicate showing attempted by

Smith was premised upon mere surmise and conjecture. We review

for clear error. United States v. Montoya,

(1st

Cir. 1995).

The claim that Smith and others may have been targeted,

3 either for selective prosecution or sentencing-factor

manipulation, by reason of their race, is unsupported by

anything remotely approaching the requisite “clear evidence”

needed to rebut the applicable presumption that the government

acted without discriminatory purpose. See Reno v. American-Arab

Anti-Discrimination Comm.,

(1999). Nor has

Smith demonstrated that similarly situated persons were not

prosecuted. Consequently, the rigorous threshold standard for

obtaining the intrusive discovery relief here requested was

never met. United States v. Magana,

(1st Cir.

1997).

Affirmed.

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