United States v. Barlow, Terrence ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1273
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRENCE BARLOW,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 825—James B. Zagel, Judge.
____________
ARGUED SEPTEMBER 5, 2001—DECIDED NOVEMBER 18, 2002
____________
Before CUDAHY, ROVNER, and DIANE P. WOOD, Circuit
Judges.
ROVNER, Circuit Judge. Terrence Barlow, an African
American man, was convicted of possession with intent to
distribute cocaine base in violation of 21 U.S.C. § 841(a)(1)
and carrying a firearm during a drug trafficking crime
in violation of 18 U.S.C. § 924(c). Barlow sought to bar
his prosecution on grounds of selective enforcement and
filed a motion for discovery on this issue under United
States v. Armstrong, 517 U.S. 456 (1996), which the dis-
trict court denied. On appeal, Barlow challenges the denial
2 No. 01-1273
of his Armstrong motion and argues that the jury instruc-
tions given at his trial were faulty. We affirm.
Background
On October 29, 1999, Barlow approached the ticket coun-
ter at Chicago’s Union Station and purchased two one-way
tickets to Topeka, Kansas on Amtrak’s Southwest Chief,
one for himself and one for his friend, William Guidry. Drug
Enforcement Administration (“DEA”) Transportation Task
Force Agents Eric Romano and Patrick Murphy, both
working undercover in plain clothes, observed Barlow and
Guidry in the waiting area of Union Station. Barlow and
Guidry, each carrying a garment bag, kept glancing over
their shoulders at the agents and whispering to one an-
other. Their suspicions raised, the two agents followed
Barlow and Guidry to the boarding area for the South-
west Chief and asked to speak with them. Romano and
Murphy identified themselves as law enforcement offi-
cers and briefly interviewed Barlow and Guidry. The
agents then asked for and received consent to search
Barlow’s and Guidry’s bags. The agents found in Barlow’s
garment bag a package containing 485 grams of cocaine
base and recovered loaded handguns from both men’s lug-
gage; they immediately placed Barlow and Guidry under
arrest.
Barlow was indicted on one count of possession with in-
tent to distribute cocaine base and one count of carrying
a firearm in relation to a drug trafficking crime. He pleaded
not guilty. Guidry did not face federal charges.
In May 2000 Barlow filed a motion for discovery and
a hearing under United States v. Armstrong, 517 U.S. 456
(1996), which articulates the standard a defendant must
No. 01-1273 3
meet to obtain discovery on a claim that he was singled
out for prosecution based on his race. In order to state
a constitutional violation, a selective prosecution claim
must meet the “ordinary equal protection standards” estab-
lished by the Supreme Court’s jurisprudence on racial
discrimination. Id. at 465. That is, the defendant must
demonstrate that the prosecutorial policy in question had
both a discriminatory effect and a discriminatory pur-
pose. Id.
Barlow’s motion contended that he had been “pursued,
stopped, interviewed, and investigated by Drug Enforce-
ment Administration agents based on his race.” In his
accompanying discovery request, Barlow requested “the
names and races of all individuals stopped by all agents
and officers detailed to the DEA Transportation Task
Force during the years 1995-2000, including, but not lim-
ited to, date and time of stop; length of stop; reason for
the stop; location of the stop; and outcome of the stop
and name [sic] of all agents or officers involved in the stop;
or records from which this data can be obtained.” Essen-
tially, Barlow contended that, in singling him out for an
interview and search, the two agents had engaged in un-
constitutional “racial profiling,” a form of selective enforce-
ment.
In support of his Armstrong motion, Barlow submitted
the affidavit of Dr. John Lamberth, a psychologist and
statistician, who has served as an expert witness on sev-
eral racial profiling cases. With the goal of substantiat-
ing Barlow’s claim, Dr. Lamberth supervised a field study
of law enforcement activity in Union Station.
From February 28 through March 10, 2000, investigators
working for Dr. Lamberth conducted surveillance in Union
Station to determine whether race played a role in law en-
4 No. 01-1273
forcement decisions to approach or stop travelers. These
investigators counted the total number of passengers
who entered the departure gate for the Southwest Chief
and the subset of African Americans in that group. They
also recorded the race of those individuals from the total
number of travelers who were approached by law enforce-
ment agents.
Dr. Lamberth’s investigators reported only one incident
involving a law enforcement stop or interview. On Febru-
ary 29, 2000, the investigators observed an Amtrak por-
ter point out an African American couple to an Amtrak
police officer. The Amtrak police officer spoke to the couple,
who were subsequently escorted from the waiting area
by two uniformed officers and two plain-clothes officers.
The investigators did not see law enforcement officials
approach or interview any other passengers at any other
time during their surveillance.
The only individuals known to have been approached
by law enforcement officials in Union Station—Barlow
and Guidry, and the couple—were African American. Dr.
Lamberth opined that this pattern of law enforcement
stops of individuals boarding the Southwest Chief at
Union Station suggested that law enforcement agents
could be engaging in racial profiling when approaching
and stopping travelers.
The district court denied Barlow’s motion without a
hearing, finding “statistically indefensible” Dr. Lamberth’s
inclusion of Barlow and Guidry in the data pool for his
ten-day study of law enforcement behavior in Union Sta-
tion. Barlow’s case proceeded to trial, and the jury returned
a verdict of guilty on both counts. Barlow was sentenced
to 151 months’ imprisonment for possession with intent
No. 01-1273 5
to distribute and 60 months’ imprisonment on the fire-
arm charge, to be served consecutively.
Analysis
A. Selective Enforcement Claim
Barlow first argues that the district court erred in deny-
ing his motion for discovery because he produced suffi-
cient evidence to warrant further investigation of his claim
that the DEA agents had engaged in racial profiling. We
review the denial of a motion for discovery in a criminal
case for abuse of discretion. United States v. Bastanipour,
41 F.3d 1178, 1181 (7th Cir. 1994).
Barlow’s motion for discovery invoked Armstrong, in
which the Supreme Court defined the showing necessary
for a defendant to obtain discovery on a selective prosecu-
tion claim. 517 U.S. at 465. Barlow complains not of se-
lective prosecution, but of racial profiling, a selective
law enforcement tactic. But the same analysis governs
both types of claims: a defendant seeking discovery on a
selective enforcement claim must meet the same “ordin-
ary equal protection standards” that Armstrong outlines
for selective prosecution claims. See Armstrong, 517 U.S.
at 465; Chavez v. Ill. State Police, 251 F.3d 612, 635-36
(7th Cir. 2001); United States v. Hayes, 236 F.3d 891, 895
(7th Cir. 2001). To prevail on his motion, therefore, Barlow
needed to demonstrate that the agents’ actions had a
discriminatory effect and that the agents had a discrim-
inatory purpose when they approached him in Union
Station. Armstrong, 517 U.S. at 465; Chavez, 251 F.3d
at 635-36; Hayes, 236 F.3d at 895.
Law enforcement has a racially discriminatory effect
when members of a protected racial group—in this case
6 No. 01-1273
African Americans—receive less favorable treatment than
nonmembers. See Armstrong, 517 U.S. at 465; Chavez, 251
F.3d at 636; Hayes, 236 F.3d at 895. In other words, to
establish discriminatory effect, an African American claim-
ant must demonstrate that a law or regulation was en-
forced against him, but not against similarly situated
individuals of other races. Armstrong, 517 U.S. at 465;
Chavez, 251 F.3d at 636; Hayes, 236 F.3d at 895. Barlow
contended that the DEA agents had enforced the law
selectively by choosing to approach, interview, and search
African Americans but not Caucasians, i.e., by engaging
in racial profiling. To obtain discovery on this claim, Bar-
low was required to present evidence that DEA agents
chose not to approach whites to whom he was similarly
situated. Armstrong, 517 U.S. at 468-69; Chavez, 251 F.3d
at 638; Hayes, 236 F.3d at 895. A finding that DEA agents
did not approach whites who rode the Southwest Chief
as frequently as African American travelers would not
automatically establish that the agents’ investigatory tac-
tics were discriminatory; Barlow needed to show also that
at least some of these whites not approached were similar-
ly situated to him. Armstrong, 517 U.S. at 468-69; Chavez,
251 F.3d at 638; Hayes, 236 F.3d at 895.
Barlow introduced Dr. Lamberth’s statistical analysis
in an attempt to demonstrate that the DEA agents had a
practice of approaching African American travelers but
not similarly situated white travelers. Statistical data
has proven a useful tool in some high-profile state racial
profiling cases. See, e.g., State v. Soto, 734 A.2d 350 (N.J.
1996) (statistical evidence that blacks were 4.85 times
more likely than whites to be stopped for traffic viola-
tions established prima facie case of discriminatory effect).
And although statistics alone rarely establish an equal
protection violation, they may be sufficient to establish the
No. 01-1273 7
discriminatory effect prong of the Armstrong test. Chavez,
251 F.3d at 640. But such statistics must be relevant and
reliable, id., and the ones Barlow provided were neither.
Dr. Lamberth’s statistical conclusions rely heavily upon
the fact that, in the ten days his investigators observed
the Southwest Chief waiting area, law enforcement offi-
cials intercepted only two individuals—an African Amer-
ican couple. But the African American couple was ap-
proached by a uniformed Amtrak police officer where-
as Barlow was approached by two plain-clothes DEA
Transportation Task Force agents. Barlow leveled his al-
legations against the DEA, not Amtrak; observations of
Amtrak’s law enforcement activities are irrelevant to a
claim that the DEA engaged in racial profiling. Moreover,
Dr. Lamberth’s investigators could provide no informa-
tion as to why the Amtrak officer approached the African
American couple; Barlow has not even established that
the officer did so for a law enforcement purpose.
Even more problematic is Dr. Lamberth’s flawed statisti-
cal methodology: Dr. Lamberth’s investigators counted 726
travelers between February 28 and March 10, 2000, of
whom 119, or 16.4%, were African American. Only two of
the 726 travelers were approached by law enforcement
agents, and both were African American. But Dr. Lamberth
did not simply calculate the statistical significance of the
fact that two out of two travelers approached were African
American. He added Barlow and Guidry to the subset of
travelers who had been approached by law enforcement
and calculated that the probability that all four individ-
uals approached would be African American to be less
than 8 times in 10,000, which he considered a “highly
statistically significant” result. But the incident involv-
ing Barlow and Guidry occurred on October 29, 1999,
8 No. 01-1273
months before Dr. Lamberth’s investigators began their
surveillance in Union Station. Presumably, travelers other
than Barlow and Guidry entered the Southwest Chief
departure gate on October 29th. We do not know, however,
whether law enforcement officials approached additional
travelers that day, or, if they did, the race of these travel-
ers. For all we or Dr. Lamberth know, several white indi-
viduals could have been approached that day in addition
to Barlow and Guidry; if other individuals of any race
were approached that day, their addition to the data pool
could drastically alter Dr. Lamberth’s statistical results.
Barlow argues that Dr. Lamberth’s conclusions were
sound, pointing out that Dr. Lamberth was an expert wit-
ness in Soto, and that the New Jersey court in Soto ac-
cepted his noncontemporaneous statistical analysis as evi-
dence of racial profiling. But Dr. Lamberth did not use
the same methodology here as he did in Soto. 734 A.2d
at 352-53. Soto involved claims that the New Jersey State
Police engaged in selective enforcement in traffic stops be-
tween April 1988 and May 1991. Id. at 352. Dr. Lamberth
conducted his research two years after the time period
relevant to the selective enforcement claims had ended:
In June 1993 he recorded the number of drivers stopped
by police on the New Jersey Turnpike and the subset of
those drivers who were African American. His statistical
analysis of these numbers suggested that the state police
used racial profiling when enforcing traffic laws. Id. at 352-
53. Given that there was no evidence that traffic patterns
had changed between 1991 and 1993, the court accepted
Dr. Lamberth’s 1993 statistics as evidence that the stops
between 1988 and 1991 resulted from selective enforce-
ment. Id. at 352, 360-61. Significantly, Dr. Lamberth did
not add the allegedly discriminatory stops from 1988 to
1991 to the pool for his June 1993 traffic survey, id. at 352;
No. 01-1273 9
instead he relied on the 1993 data only as a baseline by
which to evaluate the period relevant to the defendants’
claims. Id. at 352-53. In Barlow’s case, on the other hand,
Dr. Lamberth did not merely use the ten-day observation
period to evaluate the possibility that the DEA agents
engaged in racial profiling when they approached Barlow
and Guidry; instead he added Barlow and Guidry to the
pool of travelers observed during the ten-day period, there-
by altering the significance of his data.
Even if we accept Dr. Lamberth’s conclusions as statisti-
cally valid, however, Barlow has still presented no evi-
dence that he received less favorable treatment than sim-
ilarly situated white travelers. To meet his burden under
Armstrong, Barlow needed to present evidence that the
DEA agents observed whites engaging in the same behav-
ior as Barlow—i.e., looking nervously over their shoul-
ders—but chose not to approach them. 517 U.S. at 465. But
Dr. Lamberth’s data tells us nothing about the behavior
of the white travelers in Union Station; we therefore have
no basis for concluding that any of these white travelers
were similarly situated to Barlow.
Moreover, Barlow has not demonstrated that the DEA
agents acted with discriminatory purpose when they
approached him. Chavez, 251 F.3d at 645. The agents
made no racial comments during their encounter with
Barlow, and there is no evidence of a DEA Transportation
Task Force policy, either actual or de facto, encouraging
racial profiling. Without evidence of both discriminatory
effect and discriminatory intent on the agents’ part, Bar-
low could not make the threshold showing required in
Armstrong; the district court therefore did not abuse its
discretion in denying Barlow’s motion for discovery.
10 No. 01-1273
B. Apprendi claim
Barlow also argues that his conviction must be reversed
because the district court instructed the jury that the gov-
ernment had to prove only that Barlow knew that he was
carrying some kind of prohibited drug, not that he knew
specifically that he was carrying cocaine base. Barlow
contends that the Supreme Court’s decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000), requires that a jury find
beyond a reasonable doubt that a defendant knew the
exact substance involved in a drug offense. But Apprendi
does not alter the fact that actual knowledge of the iden-
tity of a drug is not an element of 22 U.S.C. § 841(a).
United States v. Carrera, 259 F.3d 818, 830 (7th Cir. 2001).
Section 841(a) requires only that the defendant know
that he possesses a controlled substance; it does not re-
quire that he know the type of controlled substance he
possesses. United States v. Martinez, 301 F.3d 860, 865 (7th
Cir. 2002); Carrera, 259 F.3d at 830. The district court’s
jury instructions did not violate Apprendi.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-18-02