What is the test for making a claim of selective prosecution?

Ness contends that, at a pretrial hearing, he made a nonfrivolous prima facie showing that he was a victim of selective prosecution, but was improperly denied the discovery and hearing necessary to prove his claim. Hence, Ness argues that his case should be remanded for an evidentiary hearing on that issue. See United States v. Oaks, 508 F.2d 1403 (9th Cir.1974). Ness is mistaken both as to the sufficiency of his showing and as to the adequacy of the pretrial procedures afforded him.

To succeed on a claim of selective prosecution a defendant has the burden of establishing that others similarly situated have not been prosecuted and that the allegedly discriminatory prosecution of the defendant was based on an impermissible motive. See United States v. Wilson, 639 F.2d 500, 503-04 (9th Cir.1981). Ness failed to make an adequate prima facie showing on either prong of that test.