United States of America, Plaintiff-appellee, v. Jerry Dashuan Lawrence, Defendant-appellant, 86 F.3d 1164 (9th Cir. 1996)

Before: GOODWIN and SCHROEDER, Circuit Judges, and ARMSTRONG,^*  District Judge.

MEMORANDUM^** 

Defendant Jerry Lawrence appeals his conviction under 18 U.S.C. § 922(g). He challenges the district court's denial of his pretrial motions for discovery and dismissal relating to a claim of selective, vindictive or arbitrary prosecution. We affirm.

We assume that Lawrence preserved his right to appeal the denial of the motion for discovery, as well as the denial of his motion to dismiss, when he entered his guilty plea. Under the standard recently applied by the Supreme Court in United States v. Armstrong, No. 95-157, 1996 WL 241682, at * 8-9 (U.S. May 13, 1996), Lawrence was required to produce some evidence tending to show the existence of the essential elements of his claim of vindictive, selective or arbitrary prosecution before he was entitled to any discovery. The record shows that the federal prosecutor initiated this prosecution after the referral of the case from the State of Oregon. Lawrence has produced no evidence tending to show that the prosecutor acted on the basis of vindictiveness for appellant's conduct in the state plea proceedings, or was motivated by Lawrence's race. The district court therefore properly denied the motions for discovery and dismissal.

AFFIRMED.