Opinion and Order Denying Defendant’s Motion to Dismiss for Selective Prosecution [32] — No. 2:24-cr-20400 (Dkt. 44, E.D. Mich.)

Summary

An Opinion and Order Denying Defendant's Motion to Dismiss for Selective Prosecution [32], ECF No. 44 filed September 15, 2025 in the Eastern District of Michigan (Case 2:24-cr-20400-NGE-DRG), United States v. Reginald Eburuche, by Judge Nancy G. Edmunds. A jury convicted the defendant of bank fraud under 18 U.S.C. § 1344(2) on May 29, 2025, and he then argued that the Department of Justice treats similarly situated Paycheck Protection Program defendants differently by race or ethnicity, citing four Michigan companies that settled civilly. The court holds the motion untimely and waived, since it was filed three weeks after conviction on facts discoverable before trial, and also fails on the merits for lack of clear evidence. It denies the requests for discovery and an evidentiary hearing.

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Case 2:24-cr-20400-NGE-DRG ECF No. 44, PageID.638 Filed 09/15/25 Page 1 of 5




                          UNITED STATES DISTRICT COURT
                          EASTERN DISTRICT OF MICHIGAN
                               SOUTHERN DIVISION


UNITED STATES OF AMERICA,
       Plaintiff,                                       Case No. 24-20400
v.                                                      Honorable Nancy G. Edmunds
REGINALD EBURUCHE,

       Defendant.
_______________________________/

               OPINION AND ORDER DENYING DEFENDANT’S MOTION
                  TO DISMISS FOR SELECTIVE PROSECUTION [32]

       On May 29, 2025, a jury convicted Defendant Reginald Eburuche of bank fraud

in violation of 18 U.S.C. § 1344(2). The matter is now before the Court on Defendant’s

motion to dismiss his conviction due to selective prosecution. (ECF No. 32.) Defendant

maintains there is a disparity in how similarly situated defendants accused of submitting

false applications for Paycheck Protection Program (PPP) assistance are treated by the

Department of Justice based on their race or ethnicity. For the reasons stated below,

the Court concludes that Defendant’s motion is both untimely and fails to support a

claim with clear evidence. For those reasons, Defendant’s motion to dismiss is DENIED.

       Following his conviction, Defendant contends that he learned of four Michigan

companies that were offered the opportunity to settle allegations that they made false

statements to obtain PPP loans and avoid criminal charges. After civil settlements were

reached in those cases, the companies paid back the funds they had obtained.

Defendant was not offered this same opportunity. Rather, he paid back the money he

obtained and was still criminally indicted. Defendant alleges that in selecting who to


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prosecute, the government discriminates based on race and ethnicity by allowing

“wealthier, white men and/or corporations” to resolve allegations of fraud by civil

settlement.

I.      Defendant’s Motion is Untimely

        “A selective-prosecution claim is not a defense on the merits to the criminal

charge itself, but an independent assertion that the prosecutor has brought the charge

for reasons forbidden by the Constitution.” United States v. Armstrong, 517 U.S. 456,

463 (1996). As the claim asserts a “defect in instituting the prosecution,” it must be

raised by motion prior to trial if the basis for the motion is then reasonably available.

Fed. R. Crim. P. 12(b)(3)(A)(iv); United States v. Edwards, 783 F. App'x 540, 546 (6th

Cir. 2019). Failure to timely raise the claim results in waiver absent a showing of good

cause. Fed. R. Crim. P. 12(c)(3); Parris v. United States, No. 04-CR-80260, 2009 WL

454630, at *5 (E.D. Mich. Feb. 24, 2009). Here, Defendant filed his motion to dismiss on

grounds of selective prosecution three weeks after he was convicted at trial. The similar

situations Defendant identifies in his motion were all discoverable prior to his trial and

he has shown no cause to excuse his procedural default.

        The Court finds that Defendant has waived his right to pursue this claim.

     II. Defendant Has Not Met the Standards for Alleging Selective Prosecution

        Even if Defendant’s selective prosecution claim is not procedurally defaulted, it

fails on the merits. “Selective-prosecution occurs when impermissible considerations

motivate the prosecution of an individual but otherwise ‘similarly situated individuals’

who could have been charged ‘were not similarly prosecuted.’” Edwards, 783 F. App'x

546 (citing United States v. Jones, 159 F.3d 969, 977 (6th Cir. 1998)). To succeed on



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such a claim, a defendant must “present clear evidence” that (1) the government had a

discriminatory intent, and (2) the prosecutorial policy had a discriminatory effect.

Edwards, 783 F. App'x at 546 (citing Armstrong, 517 U.S. at 465).

       A. Discriminatory Intent

       Defendant argues that the government had discriminatory intent in selecting to

prosecute him “for the impermissible purpose of randomly enforcing the statute against

single business owners of color.” (ECF No. 32, PageID.133.) As evidence, Defendant

points out that he is the only person selected for prosecution from “a broad universe of

individuals who have engaged in similar conduct but who have avoided criminal

prosecution.” (Id. at PageID.133-34.) Defendant, however, fails to offer affirmative proof

of discriminatory intent and relies solely on a theory of discriminatory effect. Defendant

cites out-of-circuit authority which states that “under some circumstances proof of

discriminatory impact ‘may for all practical purposes demonstrate unconstitutionality

because in various circumstances the discrimination is very difficult to explain on

nonracial grounds.’” United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987)

(vacated on other grounds) (citing Washington v. Davis, 426 U.S. 229, 242 (1976)).

Though Gordon recognized the possibility of relying on discriminatory impact to show

intent, it did not apply the theory to the facts under consideration. The defendant in

Gordon offered affirmative proof of discriminatory intent in the form of a statement by

the Department of Justice explaining that certain investigations were part of a new

policy. The Eleventh Circuit found that when the other evidence was viewed together

with the DOJ statement about its new policy, it suggested a pattern of discriminatory

activity by the Government. Id. at 1540.



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       The Sixth Circuit has recognized that in all but the most severe cases, the

general rule requires a defendant to independently show that discriminatory intent exists

separate from the requirement of showing discriminatory effect. See United States v.

Thorpe, 471 F.3d 652, 660–65 (6th Cir. 2006) (citing Yick Wo v. Hopkins, 118 U.S. 356

(1886) as an exception to the general rule requiring separate evidence of discriminatory

intent. In Yick Wo, the City of San Francisco applied an ordinance prohibiting the

operation of laundries in wooden buildings against Chinese nationals only, denying all

200 permit applications submitted by Chinese nationals, but granting all 80 permit

applications submitted by non-Chinese nationals).

       Defendant has failed to articulate any support for alleged discriminatory intent by

the Government.

       B. Discriminatory Effect

       To show discriminatory effect, defendants must produce at least “some evidence”

that comparators engaged in the same conduct “under the same circumstances” but

were treated differently. See United States v. Darwich, 574 F. App'x 582, 589 (6th Cir.

2014) (“Regarding discriminatory effect, [defendant] alleges that the Government chose

not to prosecute the more culpable Caucasian and African–American participants in the

fraud scheme…. However, [defendant] presents no evidence indicating any of these

individuals were similarly situated as is required to establish discriminatory effect.”).

       First, Defendant fails to identify the race or ethnicity of the owners of the

businesses he claims to be similarly situated but treated differently. Second, all four

cases Defendant identifies in his motion to dismiss are qui tam actions, where an

interested third party with insider knowledge of the fraud referred them to the



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government. Qui tam cases are fundamentally different because they generally would

not be discovered but-for the insider’s disclosures. Third, the amount of money involved

in the comparator cases is much less than Defendant’s case. The Government points

out that, collectively, the four companies identified by Defendant obtained six PPP

loans, the aggregate value of which totaled less than $1,000,000. This is significantly

less than Defendant’s $1,700,000 loan.

      Defendant fails to produce sufficient evidence to show discriminatory effect.

      C. Request for Discovery and/or Evidentiary Hearing

      Defendant requests that the Court allow him to conduct discovery to further

support his claim. To obtain discovery or an evidentiary hearing, a defendant must

make a “credible showing” of both discriminatory effect and intent. Armstrong, 517 U.S.

at 468. As set forth above, Defendant has shown neither. The standard is “demanding”

because discovery in this area “will divert prosecutors’ resources and may disclose the

Government’s prosecutorial strategy.” Id.

      Similarly, an evidentiary hearing is warranted only if the motion contains sufficient

facts to “take the question past the frivolous state and raise[] a reasonable doubt as

to the prosecutor’s purpose.” United States v. Hazel, 696 F.2d 473, 475 (6th Cir. 1983).

      For the reasons discussed herein, Defendant’s motion to dismiss for selective

prosecution (ECF No. 32) is DENIED.

      SO ORDERED.

                                         s/Nancy G. Edmunds
                                         Nancy G. Edmunds
                                         United States District Judge

Dated: September 15, 2025



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