WILLIAM P. JOHNSON, Chief District Judge.
THIS MATTER comes before the Court following a hearing on the United States' Sealed Motion to Reconsider
Before the Court is the Government's Sealed Motion to Reconsider (Doc. 89) the Memorandum Opinion and Order by U.S. District Judge M. Christina Armijo (Doc. 73).
The selective enforcement claim is an Equal Protection challenge alleging that law enforcement officials selectively investigated or arrested defendants because of their race. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003). A selective enforcement defense requires that a defendant show a discriminatory intent by law enforcement and a discriminatory effect, in that similarly-situated individuals were not investigated or arrested based on race. United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001). If successfully asserted, it is not a defense based on innocence, but a complete defense that undermines the constitutionality of a defendant's prosecution to the extent that dismissal of the indictment(s) may be required. See, e.g., United States v. Alcaraz-Arellano, 441 F.3d 1252, 1265 (10th Cir. 2006). Before reaching the merits of the selective enforcement claim, a defendant is entitled to discovery material from the prosecution if he or she makes a threshold showing of "some evidence" of both discriminatory effect and discriminatory intent. Alcaraz-Arellano, 441 F.3d at 1264 (citing United States v. Armstrong, 517 U.S. 456, 463 (1996)).
This Court must determine whether discovery, even the limited discovery allowed here, was granted in error based on the total record developed in these cases. The Court must also decide if these two Defendants are entitled to more discovery materials from the Government or if the Government has complied with the discovery ordered by Judge Armijo. At this stage, the Court is not ruling on the final merits of the selective enforcement defense, but the Court must, to a lesser extent, examine whether the record establishes "some evidence" of discriminatory intent and discriminatory effect sufficient to support the discovery order.
In the summer of 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") conducted a four-month undercover operation in Albuquerque, known as the "Surge," that resulted in the arrests of 104 defendants who were charged in federal court.
Many of the Surge cases have already concluded; however, in addition to Defendants Jackson and Coleman, there are two other defendants in two separate cases who have raised selective enforcement claims. The first case is United States v. Laneham, No.16-cr-2930-JB, 2017 U.S. Dist. LEXIS 176486, pending before U.S. District Judge James O. Browning, and the second case is United States v. Casanova, No. 16-cr-2917-JAP, pending before Senior U.S. District Judge James A. Parker. In the Laneham case, Judge Browning ruled against Defendant Laneham on his request for discovery, finding that he failed to meet the required evidentiary burden in order to obtain the discovery he requested. 2017 U.S. Dist. LEXIS 176486. In the Casanova case, Judge Parker granted Defendant Casanova's discovery request in part and, after ordering the parties to confer and resolve discovery disputes, ruled that the United States must produce the NCIC reports created or obtained by ATF Agent Russell Johnson if those reports were "within the possession, custody, or control of the government." 16-CR-2917, Doc. 83 (Dec. 13, 2017). Counsel for Defendant Casanova has since filed a Motion to Dismiss Because of Selective Enforcement of the Criminal Law (Doc. 102), and a hearing on that motion is pending before Judge Parker.
Most of the litigation in the two cases involving Defendants Jackson and Coleman has revolved around Defendant's Motion to Compel Discovery Pertaining to Claim of Selective Enforcement, Doc. 29 (filed 4/19/17), and Defendant's Supplement to his Motion to Compel Discovery, Doc. 45 (filed 9/21/17), in which Defendants requested discovery items for their selective enforcement claims. After the initial request, Defendants and the Government reached a resolution as to some of the discovery items requested, and then Defendants filed the supplement to their discovery motion for the remaining items. Doc. 45, filed 9/21/17; Government Response, Doc. 47, filed 10/5/17. To determine whether Defendants Jackson and Coleman had made the proper showing to obtain these discovery items, an extensive evidentiary hearing was held in front of Judge Armijo on October 30, 2017, and December 13, 2017, during which the Government presented the testimony of two key ATF agents. Agents Russell Johnson and Richard Zayas testified about their roles in the ATF Surge in Albuquerque. The Government entered fifty-nine exhibits on the record (Ex. 1-56, 57, 59, 60), and Defendants entered sixteen exhibits (Ex. A-O, R).
In the Memorandum Opinion and Order (Doc. 73, filed 2/7/18), Judge Armijo granted defendants' discovery requests for Defendants' items numbered 1 and 3:
Doc. 73 at 3, 4, 26. After the undersigned judge was randomly assigned these two cases, the United States filed a Notice of Inability to Supply Further Discovery (Docs. 80, 81) on March 18 and 20, 2018, in which the Government indicated that it had complied with Judge Armijo's discovery order.
During the status conference on April 9, 2018 (Doc. 87), at which both Defendants Jackson and Coleman were present, the Court heard limited argument on the discovery dispute. Defendants maintained that the Government had not produced discovery to the extent ordered by Judge Armijo, while the Government asserted that it had complied and it could not produce more discovery. At that time, the Court resolved the remaining issues with the unsealing of certain exhibits for public viewing, but the Court was unable to resolve the discovery dispute without more information from the parties. Given that the two above-captioned cases had been randomly reassigned as a result of Judge Armijo's recusal and considering the undersigned judge's unfamiliarity with the record in these two cases, the Government was ordered to file a motion to reconsider, with Defendants Jackson and Coleman having the opportunity to respond in accordance with the local rules of this District. The Court set a briefing schedule for the parties (Doc. 88) and struck the Government's Notice of Inability to Supply Further Discovery (Docs. 80, 81, 86) from the record.
The Government filed the instant Sealed Motion to Reconsider on April 30, 2018 (Doc. 89), to which Defendants filed their joint response on June 25, 2018 (Doc. 97) and the Government submitted its sealed reply brief on July 13, 2018 (Doc. 101). The Court heard oral arguments from the Government and both Defendants regarding the Motion to Reconsider at the hearing on August 3, 2018. Doc. 108, Clerk's Minutes; Doc. 118, Transcript of Proceedings. The Government contends that Judge Armijo erred in granting discovery, and further, that it has complied with the discovery order and the production of the remaining discovery materials Defendants demand is unduly burdensome. Defendants argue that Judge Armijo did not err in granting discovery and that the Government is obligated to produce more materials under the discovery order, which Defendants contend is not unduly burdensome.
First, the Court reviews the law for selective enforcement claims and the record that was in front of Judge Armijo in order to address whether Judge Armijo committed legal error in granting discovery. Second, the Court examines the discovery dispute and its proper resolution.
A decision to prosecute or enforce the law that is "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification is a denial of equal protection." United States v. DeBerry, 430 F.3d 1294, 1299 (10th Cir. 2005) (citing Oyler v. Boles, 368 U.S. 448, 456 (1962)) (quotation marks omitted). The Equal Protection Clause thus provides different constitutional protection from law enforcement and government conduct than the protections of the Fourth Amendment. Marshall v. Columbia Lea Reg'l Hosp., 345 F. 3d. 1157, 1166 (10th Cir. 2003) ("[T]he right to equal protection may be violated even if the actions of the police are acceptable under the Fourth Amendment."); Whren v. United States, 517 U.S. 806, 813 (1996) ("[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment."). "Racially selective law enforcement violates this nation's constitutional values at the most fundamental level[,]"and was "one of the central evils addressed by the framers of the Fourteenth Amendment." United States v. Alcaraz-Arellano, 441 F.3d 1252, 1263 (10th Cir. 2006) (quoting Marshall, 345 F.3d at 1167). As the Tenth Circuit has explained, "[t]he ban on discriminatory prosecution is not limited to the states but also applies to the federal government under the Fifth Amendment's Due Process Clause." DeBerry, 430 F.3d at 1299 (citing Wayte v. United States, 470 U.S. 598, 608 n.9 (1985)).
A defense grounded in "a claim of racially selective law enforcement draw[s] on what the Supreme Court has called `ordinary equal protection standards.'" Marshall, 345 F. 3d. at 1168 (citation and quotation marks omitted)). To succeed on a claim of racially selective enforcement or prosecution, a defendant "must establish two elements: [1] the federal . . . policy had a discriminatory effect and [2] it was motivated by a discriminatory purpose." United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006) (quoting United States v. Armstrong, 517 U.S. 456, 465 (1996) (establishing the requirements for selective prosecution defense)). The Tenth Circuit has ruled that "[t]he elements are essentially the same" for a selective prosecution defense as for a selective enforcement defense, "which challenges the decision[s] and actions of the law enforcement officer[s], not the exercise of discretion by the prosecutor." Id. at 1262, 1264. As the Supreme Court of the United States explained the framework for selective prosecution in United States v. Armstrong, 517 U.S. 456 (1996), this "claim is not a defense on the merits to the criminal charge itself, but an independent assertion" that the defendant was stopped or arrested "for reasons forbidden by the Constitution." 517 U.S. at 463. A successful selective enforcement defense therefore is a "complete defense" in the sense of a challenge that undermines the constitutional integrity of a defendant's charge so extensively that dismissal of the indictment may be the appropriate remedy. See Schwartz v. N.M. Corr. Dep't Prob. & Parole, 384 F. App'x 726, 730 (10th Cir. 2010) ("Selective prosecution is generally a complete defense to a criminal charge." (citing Kramer v. Village of N. Fond du Lac, 384 F.3d 856, 862 (7th Cir. 2004) ("Selective prosecution and entrapment are complete defenses to a crime. If [a defendant] had successfully asserted either one of them at his trial, [he] would not have been convicted."))); accord Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (finding a violation of the Fourteenth Amendment in the application of the law to petitioners and ruling that "[t]he imprisonment of the petitioners is, therefore, illegal, and they must be discharged").
The standard of proof for selective prosecution and selective enforcement claims must be "demanding" because of the burden that judicial interference with law enforcement imposes upon the justice system as a whole. Alcarez-Arellano, 441 F.3d at 1264; Armstrong, 517 U.S. at 465 (stating the demanding standard "stems from a concern not to unnecessarily impair the performance of a core executive constitutional function"). Even procuring discovery for a claim of selective prosecution and enforcement places a large burden on the Government "to assemble from its own files documents which might corroborate or refute the defendant's claim." Armstrong, 517 U.S. at 468. The Supreme Court explained that "[e]xamining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement . . . and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." Id. at 465 (citation omitted). Additionally, "[c]harges of racial discrimination . . . may be easy to make and difficult to disprove." Marshall, 345 F.3d at 1167. Another relevant consideration is that imposing judicial oversight upon law enforcement actions may "induce police officers to protect themselves against false accusations in ways that are counterproductive to fair and effective enforcement of the laws, such as by directing law-enforcement resources away from minority neighborhoods." Alcarez-Arellano, 441 F.3d at 1264 (citing Marshall, 345 F.3d at 1167). Thus, "the standard for proving a selective-enforcement claim should be, as with selective-prosecution claims, `a demanding one.'" Id. (citing Marshall, 345 F.3d at 1167, and Armstrong, 517 US. at 463).
To satisfy the "discriminatory purpose" prong, a defendant must show "that discriminatory intent was a motivating factor in the decision to enforce the criminal law against the defendant." Alcaraz-Arellano, 441 F.3d at 1264. Discriminatory intent does not have to be the sole motivating purpose, but such intent must have been "a motivating factor in the decision. . . ." Marshall, 345 F.3d at 1168. Discriminatory purpose is not only the effect on the defendant, as it "implies more than . . . intent as awareness of consequences. 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." Wayte v. United States, 470 U.S. 598, 610 (1985) (citation omitted). Discriminatory intent may be proven through direct or circumstantial evidence. Alcarez-Arellano, 441 F.3d at 1264. Although the Tenth Circuit has stated that "[s]tatistical evidence can be used to show both discriminatory effect and discriminatory purpose[,]" Blackwell v. Strain, 496 F. App'x 836, 839-40 (10th Cir. 2012) (citing Marshall, 345 F.3d at 1168), the Supreme Court has acknowledged that "statistical proof normally must present a `stark' pattern to be accepted as the sole proof of discriminatory intent under the Constitution,. . . ." McCleskey v. Kemp, 481 U.S. 279, 293-94 (1987) (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)) (rejecting argument that statistical analysis demonstrated discriminatory purpose and upholding constitutionality of Georgia death sentencing process).
Regarding the "discriminatory effect" requirement, when a defendant's selective enforcement "claim is based on the investigative phase of the prosecution, . . . the defendant must . . . make a credible showing that a similarly-situated individual of another race could have been, but was not, arrested or referred for federal prosecution for the offense for which the defendant was arrested and referred." United States v. James, 257 F.3d 1173, 1179 (10th Cir. 2001). The defendant may satisfy this requirement "by identifying a similarly-situated individual or through the use of statistical evidence." Id. When a defendant uses statistical evidence to show a discriminatory effect, the statistical evidence should "include (1) reliable demographic information, (2) some manner of determining whether the data represents similarly situated individuals, and (3) information about the actual rate of occurrence of the suspected crime across relevant racial groups." United States v. Alabi, 597 F. App'x 991, 997 (10th Cir. 2015) (citing Marshall, 345 F.3d at 1168). In the context of selective prosecution, the Tenth Circuit adopted the Fourth Circuit's formulation that "defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them." DeBerry, 430 F.3d at 1301 (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)). In the investigative phase of an operation, therefore, defendants are similarly situated when their circumstances provide no "distinguishable legitimate" factors that might justify enforcing the law differently upon each of them. Accord United States v. Hare, 820 F.3d 93, 99 (4th Cir. 2016) (applying Olvis definition of "similarly situated" to selective enforcement and providing definition as: "their circumstances present no distinguishable legitimate [enforcement] factors that might justify making different [enforcement] decisions with respect to them"); see also United States v. Venable, 666 F.3d 893, 900-01 (4th Cir. 2012) (providing factors the district court should examine when determining whether individuals are similarly situated in selective prosecution case).
As the United States Supreme Court explained in Armstrong, the "justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim." 517 U.S. at 468. Echoing the Supreme Court's purposefully high discovery standards for selective prosecution, the Tenth Circuit adopted the Armstrong standard outright for discovery in a selective enforcement action in Alcarez-Arellano. 441 F.3d at 1264. Under the Tenth Circuit standard, a defendant seeking discovery for a selective enforcement defense must "produce `some evidence' of both discriminatory effect and discriminatory intent." Id. (citing Armstrong, 517 U.S. at 468) (stating "[i]n James we applied this standard to a claim of selective enforcement" (citing 257 F.3d at 1178-81)). In Armstrong, the Supreme Court noted the "some evidence" standard required for discovery was also described by appellate courts as a "`colorable basis,' `substantial threshold showing,', `substantial and concrete basis,' or `reasonable likelihood[.]'" 517 U.S. at 468. Therefore, "[a]lthough defendants seeking discovery need not establish a prima facie case of selective prosecution, they must satisfy a `rigorous standard.'" Alcarez-Arellano, 441 F.3d at 1264 (citing Armstrong, 517 U.S. at 468). In Armstrong, the Supreme Court stated that despite the Court of Appeals' "concern about the evidentiary obstacles defendants face . . . . the required threshold . . . adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution." 517 U.S. at 470. The Tenth Circuit has explained that "[f]or similar reasons discovery is limited[]" and discovery must "itself be a significant barrier to the litigation of insubstantial claims." Alcarez-Arellano, 441 F.3d at 1264 (citing James, 257 F.3d at 1178).
Federal Rule of Criminal Procedure 12(b) provides that a defense "must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits . . . [including] a defect in instituting the prosecution, including selective or vindictive prosecution." Fed. R. Crim. P. 12(b)(3)(a)(iv). The Tenth Circuit has explained that "[c]hallenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence. Rather, [a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (internal citations omitted). Therefore, in deciding whether Defendants should receive discovery to support their selective enforcement defense, this Court treats the proffered facts as true. This treatment, however, does not constitute fact-finding that binds this Court, the parties, or a jury outside of the issue of whether Defendants are entitled to discovery on the selective enforcement defense under Judge Armijo's Memorandum Opinion and Order (Doc. 73). Furthermore, the Court's treatment of the allegations against Defendants as true for the purpose of ruling on the discovery issue has no effect on the presumption of Defendants' innocence.
Although the Federal Rules of Criminal Procedure do not specifically provide for motions to reconsider, the Tenth Circuit has ruled that a district court may properly grant such a motion in a criminal case. United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014) (citation omitted) (applying law of the case grounds to motion to reconsider suppression ruling). The Tenth Circuit has provided that "[t]he law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (quotation and citation marks omitted). Defendants rely on the tenet that "[w]hen law of the case doctrine applies, three circumstances generally warrant departure from the prior ruling: (1) new and different evidence; (2) intervening controlling authority; or (3) a clearly erroneous prior decision which would work a manifest injustice." Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011). Defendants maintain that none of these three circumstances are present and that the Court must deny the Government's Motion to Reconsider.
The Government contends that the law of the case doctrine is not binding here, and the Court agrees that the "law of the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one judge to another." Id. at 1252; see United States v. Johnson, 12 F.3d 1540, 1544 (10th Cir. 1993) (applying this principle in criminal case). Thus, "district courts generally remain free to reconsider their earlier interlocutory orders." Been v. O.K. Indus., 495 F.3d 1217, 1225 (10th Cir. 2007) (providing that "the rule is a flexible one that allows courts to depart from erroneous prior rulings, as the underlying policy of the rule is one of efficiency, not restraint of judicial power" (internal citation omitted)). In Rimbert, the Circuit outright rejected the proposition that the "doctrine of law of the case should apply to constrain a successive district judge's ability to revisit discretionary, interlocutory decisions made by prior judges." 647 F.3d at 1251. Considering the transfer of a case before the entry of a final judgment, "the [law of the case] doctrine does not bind a judge to following rulings in the same case by another judge of coordinate jurisdiction as long as prejudice does not ensue to the party seeking the benefit of the doctrine." Id. (quoting Johnson, 12 F.3d at 1544 (applying to criminal case)). Even then, "[t]he relevant prejudice is limited to lack of sufficient notice that one judge is revisiting the decision of a prior judge and the opportunity to be heard with respect to the new ruling." Id. As the Circuit further commented in Rimbert, which reconsidered a Daubert ruling, "it was not manifestly unreasonable for the district court to, upon being assigned a new case, independently assure itself of the expert's reliability and to fulfill its gatekeeper function." Id. at 1253.
In this case, the discovery order constitutes an interlocutory order. Rodriguez v. IBP, Inc., 243 F.3d 1221, 1227 (10th Cir. 2001) (explaining that a final order "ends litigation on the merits and leaves nothing for the district court to do but execute the judgment. . . . Discovery orders generally are interlocutory and not immediately appealable"); see also Elephant Butte Irrigation Dist. v. U.S. Dep't of Interior, 538 F.3d 1299, 1306 (10th Cir. 2008) ("[E]very order short of a final decree is subject to reopening at the discretion of the district judge." (quotation omitted)). The parties clearly had notice that this Court is reconsidering Judge Armijo's Discovery Order, as the Court informed the parties of as much on the record at the status conference (Doc. 87), the parties briefed these issues for the Court (Docs. 89, 97, 101), and the parties all argued these issues on the record at the August 3, 2018 hearing (Doc. 108). Therefore, there is no reason that this Court cannot reconsider the interlocutory discovery order issued by Judge Armijo in her Memorandum Opinion and Order, as this Court is not bound to only the three grounds for reconsideration under the law of the case doctrine and there is no prejudice to the parties for lack of notice. Additionally, if the law of the case doctrine were binding upon the Court here, this is an instance in which reconsideration would be proper because "a clearly erroneous prior decision . . . would work a manifest injustice[,]" Rimbert, 647 F.3d at 1251, as this Court finds that Judge Armijo clearly erred in her prior decision granting discovery, which continues to work an injustice upon the Government through the unmanageable burden of continuing to provide discovery.
For the Government's Motion to Reconsider, the Court will review factual findings and legal conclusions in the Memorandum Opinion and Order by Judge Armijo (Doc. 73). The Court looks to the factual recitation by Judge Armijo, and where that recitation is inadequate or ambiguous, the Court has independently consulted the record. The Court finds no reason that the existing record is insufficient. As one of the issues within the Motion to Reconsider is whether the Court should re-conduct the evidentiary hearing and make new factual findings, it would be premature for the Court to set aside the facts as Judge Armijo determined them and as the record reflects before analyzing the issues by referencing the current record.
Defendants relied on three theories to show discriminatory intent, none of which were sufficient to show that ATF possessed a discriminatory purpose in investigating or arresting the Surge defendants. Defendants presented evidence on three theories: the social theory of homophily; the "prior misconduct" by some of the agents involved in this operation; and ATF's decision to target the southeast quadrant of the city. The Court agrees that Defendants failed to demonstrate discriminatory intent.
There was an evidentiary hearing in front of Judge Armijo on October 30, 2017, and December 13, 2017, at which time the Government put numerous Reports of Investigation on the record (Government's Exhibits 1-56) about individuals investigated and arrested in the Surge. Tr. 10/30/17, 57:13-14; see also Government's Exhibit 59 (summary of Exhibits 1-56; Tr. 10/30/17, 61:24). Regarding the selection of the confidential informants (CIs), Special Agent Russell Johnson, one of the two lead case agents in the operation, testified that ATF enlisted three black CIs and two Hispanic CIs. Tr. 10/30/17, 28:17-19. Agent Johnson stated that there were no white confidential informants available for the operation. Tr. 12/13/17, 244:12-15. He also testified that he selected CIs who had experience with this kind of operation, and they were CIs that the ATF had worked with in the past from various locations in the United States. Tr. 10/30/17, 28:25-29:1; see also Tr. 12/13/17 243:19-244:25.
In determining whether to target an individual by initiating investigation, Agent Johnson testified
Tr. 10/30/17, 29:2-15. Agent Johnson also provided as follows:
Tr. 10/30/17, 29:24-30:12; see Tr. 10/30/17, 52:21-23 ("Q. Now, in terms of ATF's criteria for selecting targets, was race any part of that criteria? A. No."). On cross-examination, Agent Johnson testified:
Tr. 10/30/17, 98:6-24. Agent Johnson clarified:
Tr. 10/30/17, 100:6-16.
Agent Johnson characterized the interactions in which the CI met one individual, who then introduced the CI and the undercover agent to another contact who provided the agent with firearms or drugs, as "conspiracies." Tr. 10/30/17, 20:30-31:5; 31:17-19 (describing conspiracies as "two or more people engaged in criminal activity together that we ultimately charged," but not necessarily charged as a conspiracy). Twenty-seven of the Surge defendants were "stand alone" defendants, and the rest of Surge defendants were associated with a "conspiracy." Tr. 10/30/17, 49:6-10. The Court admitted Exhibit 57, which is a comprehensive summary composed by Agent Johnson of the "conspiracies" that came out of individual meetings. Tr. 10/30/17, 31:15-43:15. There were twenty-six "conspiracies" in the Surge operation. Tr. 10/30/17, 30:22-25. Agent Johnson testified as follows:
Tr. 10/30/17, 30:16-31:5. Thus, ATF conducted transactions with initial targets, but agents also conducted transactions with other individuals that the initial target brought into the operation. Agent Johnson testified:
Tr. 10/30/17, 51:21-25. He explained further:
Tr. 10/30/17, 52:13-17.
Regarding the purpose of the operation, Agent Johnson testified:
Tr. 10/30/17, 102:13-17. Agent Johnson also testified:
Tr. 10/30/17, 96:22-97:1. When asked whether the CIs were "trained in avoiding implicit bias", Agent Johnson responded
Tr. 10/30/17, 92:13-21. Agent Johnson further testified on cross that
Tr. 10/30/17, 93:22-94:4. When asked whether he had ever received training on implicit bias, Agent Johnson testified:
Tr. 12/13/17, 252:2-24.
Agent Richard Zayas also testified about his role in selecting the agents, which was a process that allowed Agent Zayas to question the agents about their CIs. Tr. 12/13/17, 308:5-17. As Agent Zayas described the process,
Tr. 12/13/17, 308:4-14.
Tr. 12/13/17, 293:22-294:15. When asked about implicit or explicit bias, Agent Zayas testified to the effect that he has never received implicit bias training. Tr. 12/13/17, 299:18-301:2. In response to criticism that the Chicago stash house cases had brought in "an excessively large number of minorities," Agent Zayas responded "we're colorblind, we're race blind. As the information comes in to us, we evaluate that information. For us to bring race into the matter would mean that we would ignore information that's being brought to us. So we're race neutral." Tr. 12/13/17, 301:11-15. He further testified:
Tr. 12/13/17, 301:16-302:22 (objection omitted at 301:22-302:2).
Defendants assert that the selection of three black CIs "prefigures the selection of defendants and, in this foreshadowing, manifests the existence of selective enforcement." Doc. 29 at 23. Defendants rely heavily on the theory of homophily, which is a social theory of "intra-group affinity" (Doc. 29 at 23), meaning that "contact between similar people occurs at a higher rate than among dissimilar people." Doc. 73 at 13 (citing Miller McPherson, Lynn Smith-Lovin, and James M. Cook, Birds of a Feather: Homophily in Social Networks, Annu. Rev. Sociol. 2001 27:514-44, available at http://aris.ss.uci.edu/~lin/52.pdf (last visited Aug. 14, 2018) (hereinafter Birds of a Feather). Judge Armijo summarized Defendants' argument as being that "ATF recruited black confidential informants when they knew or should have known that black confidential informants would interact with more black drug or firearms dealers than with dealers of other races." Doc. 73 at 13. Defendants maintain that "for every Black `principal' a confidential informant targeted, a web of several Black codefendants was often spun[,]" Doc. 29 at 24, and that under the theory of homophily, the ATF's selection of three black CIs demonstrates a discriminatory purpose on the basis of race. Doc. 29 at 23 ("That a group of confidential informants, the majority of whom were Black, interacted with, developed relationships with, and ultimately targeted Black men in Albuquerque, is exactly what a sociologist, or anyone with common sense, and especially law enforcement, who presumably have experience with the use of confidential informants, would expect to happen.").
Judge Armijo relied on the numbers in Exhibit 57, which she determined reflect that "[o]f the twenty-six cases involving multiple suspects, fifteen involved a black confidential informant. Of these fifteen instances, seven involved one or more black suspects. At the same time, only two of the eleven multiple suspect cases involving non-black confidential informants involved black suspects." Doc. 73 at 17. She found that "[t]aken together, both Agent Johnson's testimony and the figures in Government's Exhibit 57 support Defendants' homophily theory. Nevertheless, even if the ATF knew of the potential impact of such preferences, this evidence is insufficient on its own to show that the ATF purposefully selected black confidential informants so as to target black people in Albuquerque." Doc. 73 at 17. Judge Armijo cited to the Supreme Court's ruling in Wayte v. United States, 470 U.S. 598 (1985), for the proposition that "[d]iscriminatory purpose . . . implies more than . . . intent as awareness of consequences. 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." 470 U.S. at 610. Notably, Judge Armijo did not expressly find that this evidence satisfied even the lower discovery standard of "some evidence." See Defendant's Response to Government's Motion to Reconsider, Doc. 97 at 18 (noting that Judge Armijo "did not explicitly state that [she] found `some evidence' of discriminatory intent and effect").
This Court cannot agree that, even if taken as true, evidence of homophily could support a finding of discriminatory intent by ATF agents in these circumstances. As the Supreme Court has explained, discriminatory purpose implies that the decision-maker "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." McCleskey v. Kemp, 481 U.S. 279, 298 (1987) (citing Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) and Wayte, 470 U.S. at 608-09) (rejecting defendant's claim that Georgia applied the death penalty statute against African Americans in violation of the Fourteenth Amendment). In McCleskey v. Kemp, the Supreme Court stated that "[f]or this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect." Id. Similarly, the Supreme Court denied a Fourteenth Amendment claim that a state veterans' preference statute discriminated against women because "nothing in the record demonstrates that this preference for veterans was originally devised or subsequently re-enacted because it would accomplish the collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service." Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). The Supreme Court has consistently ruled that a showing of discriminatory purpose for an Equal Protection claim requires proof that the action was intended to cause adverse effects upon a group. See, e.g., Wayte, 470 U.S. at 610 ("Even if the passive policy had a discriminatory effect, petitioner has not shown that the Government intended such a result. . . . Absent such a showing, his claim of selective prosecution fails.").
Defendants' evidence on the theory of homophily fails to credibly show "some evidence" that ATF selected three African American CIs to intentionally adversely affect the African American community in Albuquerque. Homophily is "a basic organizing principle" (Birds of a Feather at 416) that stands for the proposition that individuals demonstrate an affinity for contact with other individuals with whom they share characteristics, including race and ethnicity, but also including other characteristics: gender, age, education, religion, occupation, social class, behavior, and values (id. at 429), all of which are related to a number of factors: geography, family ties, and school/work/voluntary organizational foci. Id. at 429-31. Thus, homophily represents a theory of individual connections through social networks and, at most, it could show that the African American CIs had an affinity to approach others who were similar to them, but Defendants lack even some evidence that this was an adverse effect that ATF intended for African Americans in the Surge. See id. at 418 ("There are some subtle differences . . . but in general the patterns of homophily are remarkably robust over these widely varying types of relations.").
Additionally, the testimony cited above from Agent Johnson and Agent Zayas reflects that the agents lacked discriminatory intent. They testified that the selection of CIs was based on those CIs who were available and whether the CIs had worked an operation like the Surge before. Tr. 10/30/17, 28:25-29:1 (Johnson); Tr. 12/13/17 243:19-244:25 (Johnson); Tr. 12/13/17, 308:4-14 (Zayas); Tr. 12/13/17, 310:2-8 (Zayas). The Government has maintained that "the key characteristic of the selected confidential informants in the Albuquerque operation was not their race; it was their background of dealing or selling controlled substances." Doc. 32 at 7. Nothing in the record indicates express racial bias, such as statements by agents or CIs demonstrating racial animus during this operation. See Tr. 12/13/17, 301:11-15 (Zayas). Both Agent Johnson and Agent Zayas testified that they had never received implicit bias training. Tr. 12/13/17, 251:19-252:24 (Johnson); Tr. 12/13/17, 299:25-300:3 (Zayas). At most, the testimony and exhibits show a lack of training of the CIs on implicit bias (Tr. 10/30/17, 92:13-21; Tr. 10/30/17, 93:22-96:16), and although the agents answered questions about their understanding of implicit bias, there is nothing in the record representing that such training was required of agents or CIs. Tr. 12/13/17, 299:25-300:3 (Zayas) (stating he has not received implicit bias training during his twenty-eight years of work for ATF). Agent Zayas also rejected the notion that "front-loading" the CIs with African Americans would give the CIs "greater entrée into the Black community". Tr. 12/13/17, 302:11-22. He stated that it was the "color of money" that matters "when you work on the street." Tr. 12/13/17, 302:3-10. Based on the testimony of Agents Johnson and Zayas, there is no evidence in the record that either one of them intended to adversely affect African Americans in Albuquerque by selecting three African American CIs. The Court cannot accept Defendants' flawed proposition that ATF intended a discriminatory effect on African Americans in the Surge when the record shows that neither the agents nor the CIs ever received training to inform them of the possible effects implicit bias could have. Thus, even if the Court assumed without ruling that the effects of homophily are accepted as true, without even circumstantial evidence that ATF intended an adverse effect upon African Americans, Defendants only have evidence that goes to discriminatory effect and not discriminatory intent. Defendants have failed to transform the theory of homophily, which is based on passive affinities for similar individuals, into a theory sufficient to satisfy some evidence of discriminatory intent under Equal Protection standards. See Wayte, 470 U.S. at 610 ("Even if the passive policy had a discriminatory effect, petitioner has not shown that the Government intended such a result. . . . Absent such a showing, his claim of selective prosecution fails."); cf. United States v. Hare, 820 F.3d 92, 100 n.6 (4th Cir. 2016) (ruling that even "willful blindness does not evince discriminatory intent" in ATF stash house selective enforcement case and quoting Wayte, 470 U.S. at 610).
Finally, the Court disagrees that evidence regarding the "conspiracies" that developed out of individual meetings between CIs and targets supports a finding of circumstantial evidence of discriminatory intent.
Tr. 10/30/17, 52:13-17. This Court joins in the opinion that ATF cannot be held responsible for the decisions of individuals recruited by those already under investigation to join in criminal activity.
Thus, even if the Court accepted the theory of homophily as indisputably true, the social effects of the concept fall short of showing that ATF intended that "adverse consequences" affect African Americans specifically, and these effects fall short of even the lowered discovery standard of "some evidence" in these circumstances. The record does not establish "some evidence" that ATF selected three African American CIs "because of" and "not merely in spite of," McCleskey, 481 U.S. at 298, an adverse effect it would have on African Americans in the operation. The Court agrees with the previous ruling on this issue that the theory of homophily is insufficient for discriminatory intent, but further clarifies that evidence of homophily in these circumstances is insufficient to make a credible showing of even "some evidence" of discriminatory intent by ATF.
Defendants also attempted to show discriminatory intent through evidence of "prior misconduct" by ATF in other undercover operations. Doc. 73 at 18. Defendants assert that "[e]vidence of ATF's past behavior is highly relevant circumstantial evidence that may be used to infer intent, particularly when many of the agents involved in prior sullied operations were also involved in the Albuquerque ATF sting that led to [Defendants'] arrest[s]." Doc. 35 at 5. Much of Defendants' evidence and argument about "sullied operations" revolved around poor publicity about the "stash house" sting operations conducted by ATF, particularly in the Chicago area.
Judge Armijo found Defendants' argument on these grounds "unavailing" because the operation tactics used in Albuquerque were not the same kind used the stash house cases, and this Court agrees with her conclusion on this particular issue. Doc. 73 at 18; Tr. 12/13/17, 248:21-23 ("Q: All right. And none of the Surge cases reflect a stash house operation? A: That is correct." (Johnson)).
Finally, the defense argues that ATF purposefully targeted the southeast quadrant of the city because of its black population, which Judge Armijo also rejected as evidence of discriminatory intent. Doc. 73 at 19. While the parties disputed the statistics regarding the racial composition of the target area (Doc. 73 at 18-19), Judge Armijo relied on different statistics to determine that the African American composition of the southeast quadrant was 5.12%. Id. at 19 (citing ABQ i-team report admitted by the Government). Judge Armijo found that "Defendants' showing as to discriminatory intent based on selection of the target area is insufficient at this time." Id.
This Court agrees with Judge Armijo's finding that Defendants failed to show discriminatory intent because of ATF's strategic focus on the target area. Moreover, the Court is not convinced that the statistical racial composition of the southeast quadrant of Albuquerque is dispositive of this issue. Agent Johnson testified that ATF targeted Albuquerque for the Surge because of the "high level of violent crime that has plagued Albuquerque for years." Tr. 10/30/17, 23:9-14. This determination was based on ATF's analysis of crime statistics of cities across the country, although Agent Johnson did not identify who specifically made the determination to bring ATF to Albuquerque. Tr. 10/30/17, 24:13-24. On cross-examination, he testified that
Tr. 10/30/17, 79:21-25.
Tr. 10/30/17, 25:17-23; 26:12-17. Agent Zayas similarly testified regarding meeting with local law enforcement: "The information that they were bringing us was, the most violent area of the city was the southeast, also known as the War Zone." Tr. 12/13/17, 287:8-10.
ATF specifically came to Albuquerque to address the violent crime issue that has "plagued" the city for years.
Considering the three theories advanced by Defendants (homophily, "prior misconduct," and the target area), Judge Armijo noted that Defendants had not presented adequate evidence of discriminatory purpose by ATF. While Judge Armijo found that the theory of homophily was supported by the evidence, she ruled that evidence of homophily alone was insufficient to show discriminatory intent. Doc. 73 at 17. She rejected the other two theories that Defendants presented and this Court agrees with her conclusions. However, the Court is not convinced that, even taken as true, evidence of homophily would be evidence of discriminatory intent. While Judge Armijo may have taken a more generous position regarding the evidence on homophily, she also did not find that Defendants had shown some evidence of discriminatory intent sufficient for the discovery standard. Thus, although Judge Armijo did not expressly state that Defendants failed to show "some evidence" of discriminatory purpose for discovery, her analysis of the evidence supports this Court's conclusion that Defendants have failed to meet the threshold showing of discriminatory purpose at the discovery stage. Based on review of Judge Armijo's decision and the record that was before her, Defendants failed to make a credible showing of "some evidence" of discriminatory intent to satisfy the Tenth Circuit standard for obtaining discovery in a selective enforcement claim. Because of the lack of discriminatory intent, Judge Armijo erred in granting discovery, as some evidence of both discriminatory intent and discriminatory effect is required to succeed at the discovery stage. See Alcaraz-Arellano, 441 F.3d at 1265 (declining to examine discriminatory effect because defendant failed to show discriminatory intent, and ruling that district court did not abuse discretion in denying discovery).
Even if Defendants had produced some evidence establishing intentional discrimination by ATF agents, Defendants would also have to show some evidence of discriminatory effect. As the Tenth Circuit has explained, a defendant may make a "credible showing" of discriminatory effect by either "identifying a similarly-situated individual or through the use of statistical evidence." United States v. James, 257 F.3d 1173, 1179 (10th Cir. 2001) (citation omitted). Defendants relied on both types of evidence to show discriminatory effect. First, Defendants cited statistics in an attempt to show that African Americans are overrepresented in the Surge defendants; second, Defendants reference testimony and exhibits that they claim show at least one "similarly-situated individual" who was not investigated or arrested. Judge Armijo rejected the statistical evidence, but did not rule on whether the testimony and exhibits about the similarly-situated individuals were sufficient for discriminatory effect. This Court finds that Defendants have failed to make a credible showing of "some evidence" of discriminatory effect through testimony and exhibits about the investigation, or through statistical analysis.
Defendants cite statistics that they claim show, numerically, similarly-situated individuals were not prosecuted. Defendants point to two statistics:
Based on these statistics, Defendants argue that the fact that 27.2% of defendants from the Surge were African American demonstrates discriminatory effect. Doc. 29 at 5-6. Defendants assert that even considering that minorities are "overrepresented in the criminal justice system . . . . one might expect to see a slightly higher representation of Blacks in the Albuquerque ATF sting defendant class than a direct proportion of their representation within the population would produce—between five and seven, extrapolating." Doc. 29 at 5. Judge Armijo rejected reliance on either statistic, and this Court agrees with her conclusion on this issue.
Regarding the first statistic, the population of Bernalillo County that is African American is not central to showing a group of similarly situated individuals who were not investigated or arrested because Defendants offer no evidence that the demographic makeup of the targeted area is the same as the rest of Bernalillo County. Accord Laneham, 2017 U.S. Dist. LEXIS 176486, at *74 (rejecting the contention that "ATF's Surge Defendants should proportionally reflect Bernalillo County's demographics" as a matter of fact and of law). As noted above, the parties disputed the percentage of African American population in the southeast quadrant of the city, which supports the conclusion that the demographic makeup is different. Furthermore, Defendants' argument relies on the premise that individuals of all races commit the same crimes at proportional rates, which is an argument the Supreme Court rejected in Armstrong. 517 U.S. at 469-70 (expressly rejecting this presumption based on statistics from the United States Sentencing Commission); see, e.g., United States v. Venable, 666 F.3d 893, 903 (4th Cir. 2012) (rejecting statistics offered by defendant that showed in preceding three years, approximately 87% of firearms charges in certain operation were brought against black defendants because the statistics provided no "statistical evidence about the number of blacks who were actually committing firearms offenses or whether a greater percentage of whites could have been prosecuted for such crimes"). Defendants incorrectly assume that the proportion of black defendants caught in the Surge should reflect to a similar degree the proportion of black people in the general population. A statistic based on the racial composition of the entire county does not meet the criteria provided by the Tenth Circuit, which is that for statistics to be meaningful, they must include "a reliable measure of the demographics of the relevant population, a means of telling whether the data represent similarly situated individuals, and a point of comparison to the actual incidence of crime among different racial or ethnic segments of the population." Marshall, 345 F.3d at 1168 (citations omitted)). Without evidence on the racial composition within the target area, Defendants have not included a "reliable measure" against which to draw the comparison.
The second statistic, while more focused towards the right direction, is still insufficient to show a discriminatory effect because there is no evidence of a group of similarly situated individuals who commit drug and firearm crimes at the same rate in the southeast quadrant of Albuquerque as across the District of New Mexico. The United States Supreme Court provided in United States v. Bass, 536 U.S. 862 (2002), that "raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants." 536 U.S. at 864 (emphasis in original). Here, the statistics do not "address the critical issue of whether that particular group was treated differently than a similarly-situated group." James, 257 F.3d at 1179 ("[A] defendant cannot satisfy the discriminatory effect prong by providing statistical evidence which simply shows that the challenged government action tends to affect one particular group.").
The similarly situated individuals to Defendants would also have to be individuals with some history of violent crime, as that was a significant consideration by ATF, although this was not the exclusive criteria. Tr. 10/30/17, 102:13-17; Tr. 10/30/17, 100:8-24. The percentage of African Americans who are firearm and drug offenders in the District of New Mexico provides no point of reference for a similarly-situated individual, as it certainly cannot be said that all African American firearm and drug offenders in the District of New Mexico are "similarly-situated" regarding their criminal histories and other relevant factors that ATF considered, including consultation with local law officers. The statistics at issue here must at least include some individuals who had no real criminal history. Furthermore, because these statistics are state-wide, they lack geographic specificity and make the assumption that people across the state commit drug and firearm offenses at the same rate regardless of their geographic location— another assumption for which Defendants offer no support. See, e.g., United States v. Venable, 666 F.3d 893, 903 (4th Cir. 2012) (rejecting statistic that 87% of firearms prosecution in specific operation were against African Americans because the statistic did not provide "any evidence regarding the proportion of blacks residing within the relevant geographical area"). In fact, this argument contradicts the reason ATF came to Albuquerque in the first place, which was because of Albuquerque's high violent crime rate. Tr. 10/30/17, 23:21-24:22. The Court therefore agrees with Judge Armijo's rejection of these statistics as sufficient to show some evidence of discriminatory effect.
Defendants attempt to identify a similarly situated individual who was not investigated or arrested by ATF, but whose "circumstances present[ed] no distinguishable legitimate" factors to justify different enforcement treatment. United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005) (citation omitted). To this point, Defendants elicited testimony from Agent Johnson about the investigations in multiple cases where white or Hispanic individuals were not ultimately charged in federal court.
Regarding these eight individuals, there is insufficient evidence that they are adequately "similarly situated" to Defendants Jackson and Coleman, or that ATF failed to equally attempt to investigate these individuals. Agent Johnson's testimony reflects that ATF did attempt to identify the white male supplier in the case of Yusef Casanova, as Agent Johnson testified that
Tr. 10/30/17, 166:5-16; Tr. 10/30/17, 165:13-16 ("So it wasn't that we ran the tag, it wasn't him, moved on. You know, through addresses, past and present, of the registered owner, we tried to find associates that looked like the guy that brought the meth that day."); see Tr. 10/30/17, 163:22-167:14 (describing ATF's effort to identify the supplier in Casanova). In the case of Joseph Renteria, the record reflects that ATF tried repeatedly to conduct undercover narcotics purchases with him, but he failed to follow through or return telephone calls. Tr. 10/30/17, 180:8-21. Agent Johnson testified that "every effort was made to pursue him as a defendant" but that ATF was unsuccessful in setting up the contact. Id. In the case of Charles Gomez, ATF could not pursue charges because he sold the agents fake narcotics and then failed to return any telephone calls to the CIs. Tr. 10/30/17, 181:17-20; 182:21-24. ATF did not charge Richard Flores, a.k.a. "Silent," because after the narcotics deal fell through, he failed to reciprocate their multiple attempts to contact him. Tr. 10/30/17, 187: 9-19. In these cases, there was no way to bring charges against these individuals because they did not commit any crimes, in spite of ATF's efforts to investigate and setup undercover purchases. Tr. 10/30/17, 180:11-14 (Johnson) ("So if they choose not to answer the phone or to show up with narcotics, and we never hear from them again, that's not on us."). The record reflects that ATF adequately attempted to pursue or investigate these individuals identified by defense counsel in their brief. This Court cannot accept Defendants' representation that ATF discriminated against individuals who did conduct illegal narcotics and firearms purchases by not further investigating other individuals who, for whatever reason, did not do the same, despite ATF's efforts to pursue those individuals.
Regarding the remaining individuals identified by counsel in their brief, Defendants do not provide adequate proof of discriminatory effect because there is not enough evidence that these individuals were similarly situated to Defendants. As Judge Armijo pointed out, the strictness of the "similarly situated" standard is part of the high burden on a selective enforcement defense because it "seems to require that defendants be virtually identical (not merely similar) with other unprosecuted individuals." Doc. 73 at 20 (citing Thomas P. McCarty, United States v. Khan, 461 F.3d 477 (4th Cir. 2006): Discovering Whether "Similarly Situated" Individuals and the Selective Prosecution Defense Still Exist, 87 Neb. L. Rev. 538, 562 (2008)). In the Surge, the scope of similarly situated individuals is narrowed by a number of factors, including by the consideration of criminal history and the target area, as well as the goals of the operation to focus on firearms and narcotics trafficking by "the worst of the worst" criminals. Accord Laneham, 2017 U.S. Dist. LEXIS 176486, at *86 ("[I]n this case, the ATF was not looking for people who could be arrested for a particular crime; they were looking for people with certain criminal backgrounds who committed a particular crime."). In the case of Joseph Hall, ATF attempted to set up a narcotics purchase through the CI, but Mr. Hall failed to show or respond to telephone calls. Tr. 10/30/17, 176:22-177:2; Ex. 30. The CI later encountered Mr. Hall, and Defendants argue that ATF's failure to follow up on the later encounter is sufficient for discriminatory effect. Tr. 177:3-178:3; Doc. 97 at 13. The report of investigation (Ex. 30) reflects some of Joseph Hall's criminal background (although there is no finding of accuracy about the criminal history), but this is insufficient based on the flexible criteria, which was not exclusive to criminal history and considered the input of local law enforcement officers and the type of transaction at issue (and Mr. Hall notably did not conduct any transactions with agents). See Tr. 10/30/17, 29:2-15, 30:9-12; Tr. 12/13/17, 293:22-294:14. Also to this point, Agent Zayas testified to the following regarding the circumstances about why another identified individual, Ryan Lewis, was not charged in federal court:
Tr. 12/13/17, 282:5-14; see also Tr. 12/13/17, 238:17-21 ("My understanding of this investigation, we only purchased half an ounce of methamphetamine from Mr. Lewis, and looking at his criminal history on the document you provided, his criminal history wasn't extremely high."). Considering this testimony, Defendants have also failed to show how Mr. Lewis was sufficiently similarly situated to Defendants.
Next, Defendants point to the circumstances of Defendant Jackson's case to support its position that the defense has identified a similarly situated individual of another race who was not investigated by ATF. At the evidentiary hearing, Agent Johnson testified that Defendant Jackson sold two ounces of meth on two different occasions at his residence. Tr. 10/30/17, 149:4-17. At the first transaction, the surveillance team observed Defendant Jackson leave the residence and interact with someone in a Chrysler 300 parked down the road, and then Jackson returned to the residence and conducted the transaction. Tr. 10/30/17, 154:8-13; Exhibit L. At the second transaction, an occupant of the Chrysler 300 followed the CI and undercover agent into Defendant Jackson's house. Tr. 10/30/17, 154:14-17; Ex. L. Agents ran the license plates for two vehicles that were at the scene of both transactions, including the Chrysler 300. Tr. 10/30/17, 152:17-153:14. The vehicles came back registered to two names, which the record reflects may have been associated with one Hispanic individual, Tr. 12/13/17, 242:8-12, thought to reside nearby based on the registered addresses for the vehicles. Tr. 10/30/17, 152:17-153:14.
In response to the question of why "neither of those men who were at both of these alleged buys were ever pursued or became part of this ATF surge operation?" Agent Johnson responded:
Tr. 10/30/17, 153:15-154:1. Agent Johnson further testified:
Tr. 10/30/17, 154:20-25. Agent Johnson also stated:
Tr. 10/30/17, 149:25-150:9. Agent Zayas similarly testified:
Tr. 12/13/17, 282:15-24. Based on this testimony and review of Exhibit L, there is not sufficient evidence that the individual identified as the registered owner of the two vehicles was similarly situated to Defendant Jackson, in part because there was only circumstantial evidence at best that the individual in question was the source of supply to Defendant Jackson. As explained below, it is not within the province of the judiciary to direct law enforcement officers how to make decisions based on circumstantial evidence.
Furthermore, if the agents were never able to identify an individual, then there is no evidence of whether he or she was similarly situated to Defendants. This is the case with the unidentified individuals in the Bernadette Tapia
All of these determinations by ATF distill into one concept—law enforcement discretion about whether and how to investigate circumstantial evidence and pursue investigative targets in light of other variables. This Court rejects the invitation by Defendants to indulge in deconstructing law enforcement strategy to a degree that constitutes what the Supreme Court cautioned in United States v. Armstrong, which holds that "[e]xamining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." 517 U.S. at 465 (quoting Wayte v. United States, 470 U.S. 598, 607 (1985)). Although Armstrong dealt with selective prosecution,
Certainly, such analysis has a rightful role in examining prosecutorial and law enforcement actions. As the parties addressed on the record at the August 3, 2018 hearing, the hypothetical DWI check-point would present such a situation. In that hypothetical, it would be more than appropriate to examine law enforcement strategy if there were credible allegations that an officer let white drivers pass through a checkpoint while detaining black drivers, when both black and white drivers exhibited similar signs of driving under the influence. Such a scenario lends itself to a methodical, laboratory-type analysis involving discrete variables. The undercover operation in the Surge cases, however, is not comparable to a DWI checkpoint, as is evidenced by the thousands of pages of reports, exhibits, and transcripts that constitute the record and discovery materials in these cases. Furthermore, the Surge operation revolved around unpredictable, dangerous circumstances involving firearms, large quantities of narcotics, and gang-related activity, all of which have severe implications for officer safety during an undercover operation. See United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir. 1991) (recognizing firearms as "tools of the trade" for drug traffickers). The Court can contemplate situations in which defendants arrested after a widespread undercover operation would be able to show at least some evidence of discriminatory intent and discriminatory effect.
For these reasons, Defendants have failed to show some credible evidence of discriminatory effect. Judge Armijo rejected reliance on the district-wide statistics and the local demographic statistics, which this Court agrees were insufficient under the law outlined by the Tenth Circuit. Judge Armijo failed to make a finding on the record of whether the testimony and exhibits submitted by Defendants were adequate to identify a similarly situated individual, but this Court has concluded that this evidence is insufficient. For the detailed reasons provided for each of the eight individuals Defendants identified, as well as because of the risks of unfocused judicial overreach eschewed by the Supreme Court in Armstrong, this Court will not lay the heavy hand of hindsight criticism over strategic decisions by law enforcement officers engaged in undercover operations without evidence from Defendants that meets the standards enunciated by the United States Supreme Court and the Court of Appeals for the Tenth Circuit.
Judge Armijo granted discovery requests for items (1)
Tr. 10/30/17, 109:10-23. The record indicates that NCIC reports were often run when agents were conducting surveillance or when a CI provided information about a new individual. See, e.g., Tr. 10/30/17, 153:6-10; 157:5-6; 158:23-24; 176:13-16; 180:2-4; 182:15-16. The record does not indicate that an NCIC reports was consulted for every individual or that there were pre-identified circumstances that required an agent to obtain an NCIC report.
The NCIC reports, according to Defendants' position, provide insight into what information ATF agents knew about an individual's criminal and other history at the time of the decision to investigate. Doc. 45 at 9; Tr. 10/30/17, 14:10-12 ("Those queries will show us who was targeted, who was not targeted, who was ignored, who was pursued."). Defendants argued at the evidentiary hearing that the additional discovery is necessary to establish the similarly situated comparison group to carry their selective enforcement claim on the merits, on both the discriminatory effect and discriminatory intent prongs. Doc. 45 at 3-4. From these NCIC reports, Defendants assert that "[t]he statistician the defense plans to present in advancing a selective enforcement claim will be able to run a regression analysis between the defendant class and the SSCG [similarly situated comparison group], which can isolate the independent variable (i.e., race, age, sex, criminal history) having the greatest effect on the dependent variable (i.e., the likelihood of being charged in the ATF Surge cases)." Doc. 45 at 4. A statistical analysis, defendants contend, that was run from the NCIC reports would satisfy the Tenth Circuit's criteria for reliability of a comparison group because it is drawn from the pool of people that ATF was considering investigating or arresting in the Surge but declined to pursue. Doc. 45 at 4. Although the United States had already produced the Pretrial Services Report for the each of the ATF Surge defendants at the time Defendants made their supplemental request for these NCIC records, Defendants maintain that Pretrial Services Reports are not helpful to their statistician because ATF agents in the field consulted NCIC reports, not Pretrial Services Reports, in determining the criminal history of an individual and deciding whether or not to further pursue that person. Doc. 45 at 8; Tr. 10/30/17, 20:14-19. They assert that because ATF agents did not keep records on individuals not pursued, "[t]he most accurate replica of such documentation is to obtain all the investigative reports ran in relation to the ATF Surge, which the defense believes are logged by personal identification number and retrievable within the NCIC database." Doc. 45 at 12. Defendants summarized their position as, "[s]tated simply, in order to investigate, challenge, and impeach the ATF's claim regarding who it targeted, the defense needs to see the same NCIC reports that were reviewed by the ATF Agents when the Agents made their investigative decisions." Doc. 45 at 9.
Judge Armijo granted these two discovery requests from Defendants and reasoned that, given Agent Johnson's testimony about the lack of a "hard set" of "criteria", these NCIC records were necessary for Defendant's to build their SSCG. Doc. 73 at 27-28. She ruled that "[i]f, after receipt of the NCIC reports, Defendants can make a showing of discriminatory intent and discriminatory effect that meets the Alcarez-Arellano standard, the Court will consider a renewed motion regarding the remainder of their discovery requests." Id. at 29.
Defendants have maintained that the "standard required to obtain discovery on a selective enforcement claim is less rigorous than that required for a selective prosecution claim." Doc. 29 at 17-18 (citing United States v. Davis, 793 F.3d 712 (7th Cir. 2015)). The Third and Seventh Circuits have indeed adopted different standards and procedures for discovery in selective enforcement defenses. In United States v. Washington, 869 F.3d 193 (3d Cir. 2017), the Third Circuit ruled that "motions for discovery seeking information on putative claims of unconstitutional selective enforcement are not governed by strict application of the Armstrong/Bass framework." 869 F.3d at 220 ("[W]e therefore join the Davis court in finding Armstrong/Bass to be distinguishable on these facts.); id. at 220-21 (allowing "limited pretrial inquiry into the challenged law enforcement practice on a proffer that shows `some evidence' of discriminatory effect" (emphasis added)). The Washington court ruled, regarding the "selective enforcement discovery standard", that
869 F.3d at 221. If the district court finds that this standard is met, then the court may "conduct limited inquiries" into testimony, exhibits, and even the in camera review of materials. Id. at 221. The Third Circuit explained that this kind of limited discovery can be conducted in progressive stages and that the district court retains a broad degree of discretion in how to handle these materials. Id.
The Tenth Circuit, however, has not lowered the standards for discovery in a selective enforcement claim; in fact, Tenth Circuit law is clear that the standard articulated in Armstrong controls. The Tenth Circuit stated in Alcaraz-Arellano that the elements for selective enforcement and selective prosecution are "essentially the same." 441 F.3d at 1264; see also James, 257 F.2d at 1179 (applying selective prosecution standards to selective enforcement claim). In Alcarez-Arellano, the Circuit adopted the Armstrong discovery standard, ruling that "[a]lthough defendants seeking discovery need not establish a prima facie case . . . . they must satisfy a `rigorous standard[.]' They must produce `some evidence' of both discriminatory effect and discriminatory intent." 441 F.3d at 1264 (citing Armstrong, 517 U.S. at 468) (stating "[i]n James we applied this standard to a claim of selective enforcement" (citing 257 F.3d at 1178-81)). The Tenth Circuit does not provide that the district court may conduct limited discovery or authorize certain discovery requests when the required showing is not met by the evidence in the record. Furthermore, the required showing in the Tenth Circuit is not satisfied by a "proffer" that is "strong enough to support a reasonable inference" of discrimination—the Tenth Circuit intended a more "rigorous standard." Id. Thus, despite Defendants' urging that the discovery standard is lower for selective enforcement claims (see Doc. 29 at 17), the Tenth Circuit rule is clear, and this Court does not have authority to adopt the distinct approach of the Third and Seventh Circuits.
Thus, the partial discovery previously granted by Judge Armijo was granted in error.
Even if Defendants had shown some credible evidence of discriminatory intent, Defendants failed to show some evidence of discriminatory effect because they could not identify a similarly situated individual through statistical analysis, or through exhibits and testimony. Judge Armijo rejected reliance on the statistics that Defendants provided, and this Court agrees that those statistics are inadequate under Tenth Circuit law. After summarizing some of the evidence from the extensive record, Judge Armijo failed to make a finding of whether Defendants satisfied the showing for discriminatory effect based on the individuals identified by the defense as "similarly situated." This Court concludes that the testimony and exhibits in the record are insufficient to show some credible evidence that a similarly situated individual was not investigated or arrested on account of his or her race.
Defendants claim that the fact that Judge Armijo granted discovery means "it is reasonable to conclude that" she found the evidence sufficient to favor Defendants. Doc. 97 at 18. Defendants' logic, however, is flawed—first, because the absence of a clear finding on either prong does not allow this Court to reasonably conclude that the evidence must have favored Defendants in the preceding judge's opinion. As Defendants even state in their brief, "[t]he Defendants admit that the Court's order [Doc. 73] may not be a model in clarity, as the Court did not explicitly state that it found `some evidence' of intent and effect." Doc. 97 at 18. Given that there was no finding that Defendants met the discovery standard on either prong, and in light of this Court's review of the record, the Tenth Circuit law will not allow a "reasonable conclusion" that Defendants met the evidentiary burden in this case—this would not be a "rigorous standard."
Secondly, Defendants' logic is flawed because the legal analysis for this Motion to Reconsider is not retrospective, in that it does not start with the conclusion and work backwards to deduce that there must not have been any error. The Court rejects Defendants' suggestion that there is "an appropriately deferential standard of review" here. Doc. 97 at 18-19. This Court owes no deference to the legal ruling of a prior judge on an interlocutory discovery order, and it may reconsider to any degree the fact-finding and legal conclusions previously reached. See discussion supra Section I.C. Even if this Court were bound to the law of the case doctrine, the legal error in the discovery order is clear based on a review of the record, and the discovery order continues to work a manifest injustice upon the Government through the unmanageable burden of discovery that Defendants have requested (see discussion infra). As the existing record has proven exhaustive and extensive,
Regarding the prior legal ruling to grant partial discovery, however, the decision does not appear to have been based on law adopted by the Tenth Circuit. The discussion of Davis and Washington (Doc. 73 at 9-11), and criticism of the Armstrong evidentiary standards (id.), even if followed by recitation of the law under Alcarez-Arellano, make it difficult for this Court to find that the discovery ruling was based on Tenth Circuit law, and not that of the Third or Seventh Circuits. Additionally, citation to a Seventh Circuit district court case, in which the trial court applied the logic in Davis and allowed limited discovery of ATF's policies in a stash house case, precedes the legal ruling announcing the granting of the two discovery requests and creates the appearance of legal authority. Doc. 73 at 26. Given this context, and the absence of a finding that either prong was satisfied, it appears to this Court that the granting of even limited discovery was in error, as the Tenth Circuit law will not allow any discovery in the present cases.
The practical effects of this Court's finding that discovery was granted in error are limited, however, because the United States has complied to the fullest extent possible with the discovery order already.
Specifically, the defense maintains that request (3) includes every NCIC report search that was entered into the search system in relation to the Surge during the seven month period of March 1, 2016 to September 30, 2016. The Government contends that it is only required to turn over the NCIC reports in its physical possession in hardcopy form, which it has already done.
As the Government stated at the August 3 hearing, it maintains that
Tr. 8/3/17, 23:15-20. The Government contends that, by turning over all of the NCIC reports that were in its physical possession, it has complied with the Court's order. Doc. 89 at 24. The Government explains that it has turned over the "NCIC reports on all named defendants for which there is an NCIC report, thus the first defense request granted by the Court has been satisfied by the government. The government has further provided the defendants with all of the NCIC reports in the government's possession for individuals of interest who were not arrested or charged." Id. The Government asserts that it has therefore provided "all NCIC reports that were generated and maintained by the Government in hard copy form during the Surge whether for named defendants or for others who were identified." Id.
The Government also states that it cannot produce NCIC records in accordance with Defendants' position because it would be unduly burdensome to obtain these materials from the NCIC system, which is operated by the FBI and not by the United States Attorney's Office.
The Government posits that it would require a massive amount of manpower and machine power to attempt to gather all of the reports generated, but never physically printed, to the extent that FBI officials "were worried how the system would even handle generating these requests. It would be so massive they couldn't even begin to estimate the man hours." Tr. 8/3/18, 24:15-24. The gathering of these reports would require the system to run on weekends and at night so the system would not be overloaded, the effect of which could be that law enforcement officers in need of NCIC reports might find that the system was not functioning. Tr. 8/3/18, 24:15-24; Doc. 89-1, ¶ 16. [REDACTED/]
Finally, there are issues of privileged or sensitive information that would have to be redacted, along with some formulation for how to determine that the reports are actually products of searches related to the Surge, and, finally, how to recreate the reports in their 2016 versions. It seems that these tasks would either fall to the FBI, the United States Attorney's Office, or the Court itself.
Defendants contend that the discovery request requires the Government to produce any NCIC report that resulted from a query related to the Surge in the NCIC system by any agent who was working on the Surge operation, tangentially or part-time, regardless of whether the report was ever reduced to hard copy. Doc. 45 at 12. At the hearing in front of Judge Armijo, defense counsel summarized the usefulness of the NCIC report request as follows:
Tr. 10/30/17, 21:4-18. Defendants argue that the Government can produce these NCIC reports by using the identification or badge number for each agent who ran the report during the timeframe outlined. Tr. 8/3/17, 39:22-40:5. They assert that "[t]he Government effectively is trying to widen the playing field and say it's impossible for us to meet that. We're not even asking for them to widen the playing field. We're asking for them to run a limited search of these particular agents who had requested during a particular period of time NCIC reports." Tr. 8/3/18, 40:12-17.
The Court finds that the Government has complied to the fullest extent possible with the ordered discovery in item number (3) by producing all of the NCIC reports it has in its possession for all of the Surge defendants, including for all of the queried individuals who were not charged but whose NCIC reports were printed. As discovery was already granted in error, the Court will not propound that error by ordering the Government to produce more discovery. It is also notable that when granting partial discovery on the same requests, Judge Parker did not accept the broad construction that Defendants advocate here. Casanova, 16cr2917-JAP, Doc. 83. Judge Parker ruled that "the Court will order the government to produce those NCIC reports and transaction records that are in its possession and were created or obtained by Agent Johnson in relation to this operation. The Court will not, however, order the government to re-create NCIC reports that were not kept by ATF and are not in the possession of the Government." Id. at 3. Accordingly, this Court will not compel the Government to produce the records that are not within its possession if they were never printed from the NCIC database; if the Government has in fact produced all of the NCIC reports in its possession, then it has fully complied with the discovery order. Despite Defendants' contention that it is possible to do so, Defendants' request would impose an unmanageable burden on the Government, and is an unfeasible task that would usurp valuable Court and public resources. The affidavit of Ms. Zirkle demonstrates her knowledge on this point, and the Court finds her representations credible and persuasive.
These considerations are exactly what the United States Supreme Court cautioned about in United States v. Armstrong, and this is likely the type of extreme situation the Supreme Court envisioned when it stated that procuring discovery "imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution." 517 U.S. at 468. The Supreme Court and the Tenth Circuit have explained that the "demanding" standard in place for discovery "stems from a concern not to unnecessarily impair the performance of a core executive constitutional function." 517 U.S. at 465; Alcaraz-Arellano, 441 F.3d at 1264 (adopting the reasoning in Armstrong for selective enforcement discovery). In asking this Court to exercise power over a "special province," Armstrong, 517 U.S. at 464, of the executive branch by ordering the massive production of NCIC reports from FBI-administered databases—to the extent that those databases may be impaired to serve their intended functions to law enforcement—Defendants ask this Court to overreach without sufficient evidence of either discriminatory intent or discriminatory effect to satisfy the Equal Protection Clause's requirements.
Accordingly, for the reasons set forth in this Memorandum Opinion and Order, the United States' Sealed Motion to Reconsider (
For the same reasons discussed in this section, these statistics are flawed and do not show discriminatory intent, which is more difficult to show with statistics than discriminatory effect. The Tenth Circuit's reasoning in Blackwell is persuasive and offers guidance in this analysis because these statistics do not present such a strong correlation that they require the conclusion that discriminatory intent existed, as in Gomillion or Yick Wo. Judge Armijo properly considered the statistics under the discriminatory effect prong, which is why the Court has approached the analysis in this manner.
[REDACTED/]
[REDACTED/]
