Re: United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018): Selective Enforcement / Discovery
Players: Decision and concurrence by Judge Nguyen. DJ Simon, concurring Dissent by Judge Graber. Tremendous victory for former AFPD Carl Gunn.
Facts: Sellers, who is black, was arrested in an ATF stash house sting and indicted. Id. at *1-*2. He sought discovery based on a claim of selective enforcement. Id. at *2. Seller showed that 39 of 51 CD Cal defendants charged in reverse sting prosecutions were black or Hispanic. Id. ATF Agent John Carr testified that 55 of the 60 defendants indicted in his stash house efforts were people of color. Id. The court denied the discovery motion, based on the Supreme Court’s 1996 Armstrong decision. Id.
Issue(s): “Sellers argues that he was targeted based on his race, and presents evidence that an overwhelming majority of the defendants targeted by law enforcement in similar investigations are African-Americans or Hispanics. To succeed on his selective enforcement claim, Sellers must show that the enforcement had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is.” Id. at *1. “The question we face is whether Armstrong’s standard is equally applicable to claims for selective enforcement, particularly in the stash house reverse-sting context.” Id. at *3.
Held: “We hold that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under . . . Armstrong.” Id. “Today we . . . hold that Armstrong’s rigorous discovery standard for selective prosecution cases does not apply strictly to discovery requests in selective enforcement claims like Sellers’s. Contrary to Armstrong’s requirements for selective prosecution claims, a defendant need not proffer evidence that similarly situated individuals of a different race were not investigated or arrested to receive discovery on his selective enforcement claim in a stash house reverse-sting operation case. 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 . . . to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.” Id. at *6 (emphases in original). Id. at *6,
Of Note: Sellers is a lovely piece of legal writing: a careful holding that hews closely to decisions from the Third and Seventh. Id. at *6. In her concurrence, however, Judge Nguyen cuts loose. Unleashing a barrage of stats, she explains exactly how fake stash house schemes target people of color – and have little impact on real crime
rates. Id. at *10. She “question[s] whether conducting stash house operations almost exclusively in neighborhoods known to be black and Hispanic, and excluding neighborhoods known to be white, is in fact a ‘facially neutral’ policy.” Id. at *11. If you’ve defended a stash house client, this concurrence is a must read.
How to Use: NorCal Feds rage for RICO, and are dying for death. What percentage of our RICO and capital defendants are people of color? Time to run some RICO regression models, and seek Sellers discovery.
For Further Reading: Sellers confirms what we knew: Judge Edward Chen got it right, when he ordered discovery on the selective enforcement claim in the “Safe Schools” prosecution. See “For Further Reading” at http://circuit9.blogspot.com/2017/01/case-o-week-slings-and-arrows-of.html The ND Cal USAO dismissed those indictments, rather than complying with this order. A remarkable victory, but it left unaddressed many serious questions. We’ll now get answers. The ACLU has filed a civil lawsuit on behalf of the Safe Schools defendants. See https://www.aclunc.org/news/aclu-sues-san-francisco-police-department-unconstitutionally-targeting-black-people-arrest. The civil suit has been related back to the Safe Schools case: the litigation is now back where it belongs, before Judge Chen.
Source: Steven Kalar, Federal Public Defender, N.D. Cal. FPD