What is the test to sustain a claim of selective or discriminatory prosecution?

9 The reference is to United States v. Oaks, 527 F.2d 937 (9th Cir.1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). Oaks held that "[t]o sustain a claim of selective or discriminatory prosecution, a defendant bears the burden of proving first that 'others similarly situated generally have not been prosecuted' for similar conduct, and second that 'his selection was based on an impermissible ground such as race, religion or his exercise of his first amendment right to free speech.' " Id. at 940, quoting United States v. Scott, 521 F.2d 1188 (9th Cir.1975).