What is the current state of the law regarding determinations on the merits of a selective prosecution claim?

The Moody opinion, however, did not review a discovery determination. It reviewed a determination on the merits of a selective prosecution claim. Moody, 778 F.2d at 1385-1386. The decisions the Moody opinion cites as utilizing a clearly erroneous standard similarly involve determinations on the merits of the defendants' claims, not determinations regarding the defendants' requests for discovery. See, e.g., United States v. Stewart, 770 F.2d 825, 829 n. 2 (9th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 888, 88 L.Ed.2d 922 (1986).