Tuesday, October 16, 2018
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Selective Enforcement Discovery Available Upon Minimal Showing—Ninth Circuit
By a MetNews Staff Writer
A defendant convicted of conspiracy to interfere with commerce by robbery, as a result of a reverse sting operation, was denied discovery in connection with a selective enforcement claim under the wrong legal standard, the Ninth U.S. Circuit Court of Appeals said yesterday, holding that it was only necessary to show “something” indicating he was targeted by race.
The strict showing necessary for gaining discovery where selective prosecution, rather than enforcement, is alleged does not apply, the majority said, vacating the order denying discovery and remanding the matter for a determination as to whether discovery is warranted under the test it laid down.
Circuit Judge Jacqueline H. Nguyen wrote both the majority opinion and a concurrence. Circuit Judge Susan P. Graber dissented after replacing the late Circuit Judge Stephen Reinhardt, who had heard oral arguments in the case before his death in March.
‘Rteverse Sting Operations’
As Nguyen explained reverse sting operations:
“The agent conducts a series of meetings with the targets and presents them with the opportunity to rob the stash house, and they devise a plan to do so. There is no stash house to rob, and there are no drugs—this is a ‘reverse-sting,’ after all. But at the last meet-up, just before they are set to leave and carry out the plan, the targets are arrested for conspiracy to commit the robbery and associated crimes.”
In yesterday’s case, defendant Daryle L. Sellers was enlisted by U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) agent John Carr. Upon being convicted for his part in the make-believe caper, Sellers contended that the government had targeted him on the basis of his race.
Sellers—along with the other men caught in Carr’s operation, conducted in a predominately African-American and Hispanic Los Angeles neighborhood —is African-American.
Distinction Drawn
Carlton F. Gunn of Pasadena, counsel on appeal for the defendant, at oral argument stressed the difference between prosecutors and law enforcement agents. He declared:
“Recall one of the key premises of Armstrong and the cases that follow it is that while there is a presumption of regularity for prosecutors—they’re officers of the court, we respect them, we don’t intrude on their decisions—we intrude on the decisions of law enforcement officers—if that’s the right word—all the time. Their credibility is always up for grabs in court hearing, and courts often find them not credible….”
U.S. v. Armstrong is a 1996 Supreme Court opinion which set forth the stringent standard for a defendant to obtain discovery for a selective prosecution claim. There, the high court required a defendant to show that the government had failed to prosecute similarly-situated defendants of other races before he was entitled to discovery.
(To succeed in either a selective enforcement or a selective prosecution claim, the defendant must prove the same elements: a discriminatory effect and a discriminatory motivation.)
Gunn’s point was favorably received by Nguyen. She wrote:
“Because the same presumption of regularity and deference to prosecutorial decision-making policy concerns do not apply in the selective enforcement context, we need not apply as rigorous a standard here.”
Reverse Sting Operations
Reverse sting operations do not lend themselves to such a strict showing, she said, explaining:
“Asking a defendant claiming selective enforcement to prove who could have been targeted by an informant, but was not, or who the ATF could have investigated, but did not, is asking him to prove a negative; there is simply no statistical record for a defendant to point to….
“This is especially true for stash house reverse-sting operations, where no independent crime is committed; the existence of the ‘crime’ is entirely dependent on law enforcement approaching potential targets, and any comparative statistics can only be derived by the government and its informants choosing to approach and investigate white individuals.”
The court adopted a rule similar to that in the Third and Seventh U.S. Circuit Courts. The jurist wrote:
“While a defendant must have something more than mere speculation to be entitled to discovery, what that something looks like will vary from case to case. The district court should use its discretion—as it does for all discovery matters—to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.”
Concurring Opinion
Nguyen focused her concurrence in large part on what she described as the disparate effect of reverse sting operations. She said:
“There is no legitimate dispute that these stings primarily affect people of color, but the government has steadfastly resisted any defense attempt to determine whether enforcement is racially biased. Courts exercising their gatekeeping role in determining whether discovery is warranted should recognize that the choice of locations for these operations may have evidentiary significance to a claim of discriminatory effect and discriminatory intent.”
She added:
“Like many of my colleagues across the country, I am greatly disturbed by the government’s practice and, in particular, its disproportionate impact on people of color. The government’s use of stash house reverse stings warrants closer scrutiny.”
Graber’s Dissent
Graber would have affirmed the ruling by District Judge Terry J. Hatter of the Central District of California. She wrote:
“I would assume, without deciding, that the high bar for obtaining discovery for a claim of selective prosecution, enunciated in United States v. Armstrong…, does not apply to a motion to obtain discovery for a claim of selective enforcement.”
Sellers had relied on evidence that the ATF’s reverse sting operations statistically targeted far more African-Americans and Hispanics than persons of other races.
The jurist dismissed these statistics, citing the Supreme Court’s opinion in United States v. Bass (2002), which states:
“Even assuming that the Armstrong requirement can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decisionmakers in respondent’s case), raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants.”
Hatter Was Right
Graber declared:
“I conclude that the district court correctly rejected Defendant’s evidence as insufficient to create an inference of discriminatory effect, because that evidence consisted only of non-comparative raw statistics. The evidence is insufficient whether we apply either a rigorous Armstrong standard or the more forgiving standard devised by the majority opinion. Because the statistics that Defendant presented ‘say nothing,’…they cannot, under any standard, entitle Defendant to demand discovery.”
The case is United States v. Sellers, No. 16-50061.
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