What is the burden of proving that others similarly situated have not been prosecuted?

As mentioned above, to successfully bring a claim, a defendant bears the burden of showing both (1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive. Bourgeois, 964 F.2d at 938. With respect to (1), the court should isolate the factor allegedly subject to the impermissible discrimination so that the similarly situated class is analogous to the defendant without the one impermissible factor. United States v. Aguilar, 883 F.2d 662, 707 (9th Cir.1989) (large organized smugglers of illegal aliens operating for profit similarly situated to defendant which was large organized "sanctuary movement").

The second factor, improper motive, is essentially the requirement of a showing of discriminatory purpose or intent. Wayte v. United States, 470 U.S. at 608, 105 S.Ct. at 1531. Discriminatory purpose implies more than intent as awareness of consequences. Id., 470 U.S. at 610, 105 S.Ct. at 1532. It implies that the decisionmaker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Id. The identifiable group is typically a race, religion, or group of persons exercising a constitutional right. Id., 470 U.S. at 608, 105 S.Ct. at 1531.