United States v. Daryle Sellers , 906 F.3d 848 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50061
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00722-TJH-3
DARYLE LAMONT SELLERS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding
Argued and Submitted March 8, 2018
Pasadena, California
Filed October 15, 2018
Before: Susan P. Graber * and Jacqueline H. Nguyen,
Circuit Judges, and Michael H. Simon, ** District Judge.
*
Judge Graber was drawn by lot to replace Judge Reinhardt. Ninth
Circuit General Order 3.2.h. She has read the briefs, reviewed the record,
and listened to the tape of oral argument held on March 8, 2018.
**
The Honorable Michael H. Simon, United States District Judge
for the District of Oregon, sitting by designation.
2 UNITED STATES V. SELLERS
Opinion by Judge Nguyen;
Concurrence by Judge Nguyen;
Dissent by Judge Graber
SUMMARY ***
Criminal Law
The panel vacated the district court’s order denying a
defendant’s motion seeking discovery on a claim of selective
enforcement, and remanded for limited post-judgment
proceedings, in a case in which the defendant was convicted
of conspiracy to interfere with commerce by robbery after he
was caught in a law enforcement reverse sting operation to
rob a fictitious stash house.
The panel held that the rigorous discovery standard set
forth for selective prosecution claims in United States v.
Armstrong, 517 U.S. 456 (1996), does not apply strictly to
requests for discovery on a selective enforcement claim in a
stash house reverse-string operation case. The panel held
that 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 a
selective enforcement claim like the defendant’s. The panel
wrote a defendant must have something more than mere
speculation to be entitled to discovery; and that the district
court should use its discretion—as it does for all discovery
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SELLERS 3
matters—to allow limited or broad discovery based on the
reliability and strength of the defendant’s showing. Because
the district court applied an incorrect legal standard, the
panel remanded to the district court to determine in the first
instance whether the defendant—who argued that the
evidence he presented regarding demographics of those
indicted based on reverse-sting operations entitles him to
discovery—has met the standard outlined today.
In a separate concurring opinion, Judge Nguyen wrote
that there is no legitimate dispute that these stash house
reverse-sting operations primarily affect people of color, but
the government has steadfastly resisted any defense attempt
to determine whether enforcement is racially biased. She
wrote that courts exercising their gatekeeping role in
determining whether discovery is warranted should
recognize that the choice of locations for these operations
may have evidentiary significance to a claim of
discriminatory effect and discriminatory intent.
Dissenting, Judge Graber wrote that this court need
not—and therefore should not—opine about the standard for
obtaining discovery in selective enforcement cases because,
under either a high or low standard, the defendant’s
evidentiary proffer is wanting as a matter of law.
4 UNITED STATES V. SELLERS
COUNSEL
Carlton F. Gunn (argued), Pasadena, California, for
Defendant-Appellant.
L. Ashley Aull (argued), Chief, Criminal Appeals Section;
Robyn K. Bacon, Assistant United States Attorney; Patrick
R. Fitzgerald, Chief, National Security Division; United
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.
OPINION
NGUYEN, Circuit Judge:
Daryle Lamont Sellers was convicted of conspiracy to
distribute cocaine and conspiracy to interfere with
commerce by robbery after he was caught in a law
enforcement reverse sting operation to rob a fictitious stash
house. 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. 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 United
States v. Armstrong, 517 U.S. 456 (1996).
UNITED STATES V. SELLERS 5
BACKGROUND
In 2012, the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) and Agent John Carr set up what is
known as a stash house reverse-sting operation near
downtown Los Angeles. These operations tend to follow a
common format: 1 An undercover agent poses as a
disgruntled drug courier who is looking for help robbing the
house where his employer is stashing (and guarding) a large
quantity of drugs. The agent describes the stash house to
individuals who have been targeted for the operation.
Usually, the targets of stash house reverse-sting operations
are identified using confidential informants. Informants are
supposed to identify targets that have committed stash house
robberies before or are capable of doing so.
The agent conducts a series of meetings with the targets
and presents them with the opportunity to rob the stash
house, and they devise a plan to do so. 2 There is no stash
house to rob, and there are no drugs—this is a ‘reverse-
sting,’ after all. But at the last meet-up, just before they are
set to leave and carry out the plan, the targets are arrested for
conspiracy to commit the robbery and associated crimes.
The details of the specific stash house reverse-sting
operation here, for the most part, are irrelevant to Sellers’s
selective enforcement claim, and so we state them only in
brief. In March 2012, a confidential informant staying at a
1
We described in detail one example of a stash house reverse-sting
operation in United States v. Black, 733 F.3d 294, 298–301 (9th Cir.
2013).
2
These meetings are supposed to serve as a “vetting process” to
ensure that the targeted individuals are willing and capable of
committing the stash house robbery.
6 UNITED STATES V. SELLERS
hotel in a predominantly black and Hispanic area of Los
Angeles targeted one of Sellers’s co-defendants for a stash
house reverse-sting operation, ostensibly because the
informant believed that the co-defendant was involved in
selling drugs. The co-defendant, who is black, was put in
touch with Agent Carr, and the stash house reverse-sting was
underway. On July 9, 2012, Sellers attended a planning
meeting for the robbery with the co-defendant, Agent Carr,
and others. Eventually, the stash house robbery was set for
July 16, and, after one final meeting confirming the plan, the
robbery crew (all of whom are black) was arrested.
Sellers and his co-defendants were indicted for
conspiracy to possess and distribute cocaine, conspiracy to
commit robbery, and possession of a firearm in furtherance
of these crimes. 3 Sellers moved to dismiss the indictment
for outrageous government misconduct 4 and sought
discovery on a claim of selective enforcement. 5 Sellers
presented data collected by an attorney in the Central District
of California showing that of 51 defendants indicted in stash
house reverse-sting operations between 2007 and 2013, at
least 39 were black or Hispanic. 6 Similarly, Agent Carr
3
See 18 U.S.C. §§ 924(c)(1)(A), 1951; 21 U.S.C. § 846.
4
We address Sellers’s appeal of the denial of his motion to dismiss
for outrageous government conduct and challenges to his sentence in a
simultaneously-filed memorandum disposition.
5
At times, Sellers has styled his claim as one of selective
prosecution, but it is more properly considered a claim for selective
enforcement since Sellers takes issue with how he was targeted at the
outset of the operation. The district court considered it as such, and
Sellers adopted this characterization on appeal. We follow suit.
6
No white defendants were identified; the remaining 12 were of
unknown races.
UNITED STATES V. SELLERS 7
testified that more than 55 of the approximately
60 individuals who have been indicted in his stash house
reverse-sting operations are people of color. Relying on the
standard set forth in Armstrong for obtaining discovery on
selective prosecution claims, the district court denied the
motion.
Sellers was convicted by a jury and sentenced to
96 months’ imprisonment. He timely appeals.
STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291.
Whether the district court applied the correct discovery
standard is a legal question that we review de novo. See
United States v. Washington, 797 F.2d 1461, 1470 n.12 (9th
Cir. 1986). We review the district court’s determination that
Sellers did not make the requisite discovery showing for
abuse of discretion. United States v. Arenas-Ortiz, 339 F.3d
1066, 1069 (9th Cir. 2003). 7 The court necessarily abuses
its discretion when it applies the wrong legal standard. See
United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir.
2009) (en banc) (citing Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990)).
7
We decline the government’s invitation to apply a plain error
standard of review. Sellers has consistently argued that there are
meaningful differences between Armstrong and his case, and the district
court expressly considered whether there are differences between
selective prosecution and selective enforcement claims. Sellers’s claim
was “properly presented” in the district court, and we are “free to address
it.” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379 (1995).
8 UNITED STATES V. SELLERS
DISCUSSION
I.
We are not working from an entirely blank slate.
Selective prosecution and selective enforcement claims are
undoubtedly related, see Lacey v. Maricopa County,
693 F.3d 896, 920 (9th Cir. 2012) (en banc), and the
Supreme Court addressed the threshold discovery showing
required for selective prosecution claims over two decades
ago in Armstrong. 517 U.S. at 458. 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. We first address Armstrong’s
discovery standard for selective prosecution cases and then
explain why we join the Third and Seventh Circuits in
declining to adopt it wholesale here.
A. Armstrong
To establish a claim of selective prosecution, a defendant
must show both discriminatory effect and discriminatory
purpose. Armstrong, 517 U.S. at 465. In Armstrong, the
Supreme Court “consider[ed] the showing necessary for a
defendant to be entitled to discovery on a claim” of selective
prosecution. Id. at 458. The Court adopted a “rigorous
standard,” id. at 468, whereby a defendant must show that
“the Government has failed to prosecute others who are
similarly situated to the defendant” as evidence of
discriminatory effect. Id. at 469.
The Court explained its rationale for such a high
standard. Id. at 464–68. It observed that “[i]n order to dispel
the presumption that a prosecutor has not violated equal
protection, a criminal defendant must present clear evidence
to the contrary.” Id. at 465 (internal quotation marks
UNITED STATES V. SELLERS 9
omitted). The Court instructed us to be “hesitant” and not
“unnecessarily impair” the prosecutor’s “constitutional
function.” Id. (internal quotation marks omitted). And it
was this “justification[] for a rigorous standard for the
elements of a selective-prosecution claim” that “require[d] a
correspondingly rigorous standard for discovery in aid of
such a claim.” Id. at 468.
Armstrong was thus premised on the notion that the
standard for discovery for a selective prosecution claim
should be nearly as rigorous as that for proving the claim
itself. In other words, the standard was intentionally hewn
closely to the claim’s merits requirements. See id.; see also
United States v. Hare, 820 F.3d 93, 99 (4th Cir. 2016) (“The
standard for obtaining discovery in support of a selective
prosecution claim is only slightly lower than for proving the
claim itself.” (internal quotation marks omitted)).
B. Material Differences Between Selective Prosecution
and Selective Enforcement
Selective prosecution is not selective enforcement—
especially not in the stash house reverse-sting context. There
are two main differences that warrant departure from the
Armstrong standard: First, law enforcement officers do not
enjoy the same strong presumption that they are
constitutionally enforcing the laws that prosecutors do.
Second, the nature of reverse-sting operations means that no
evidence of similarly situated individuals who were not
targeted exists.
1. Presumption of Regularity
“[T]he presumption of regularity supports . . .
prosecutorial decisions . . . .” Armstrong, 517 U.S. at 464
(internal quotation marks omitted). This presumption gives
10 UNITED STATES V. SELLERS
“a measure of protection (and confidentiality)” to
prosecutors’ “deliberative processes, which are covered by
strong privileges.” United States v. Davis, 793 F.3d 712, 720
(7th Cir. 2015) (en banc). Prosecutors occupy a “special
province” of the executive branch and have “broad
discretion” to enforce our nation’s laws, Armstrong,
517 U.S. at 464 (internal quotation marks omitted).
On the other hand, “[a]gents of the ATF and FBI are not
protected by a powerful privilege or covered by a
presumption of constitutional behavior.” Davis, 793 F.3d at
720. Criminal defendants are allowed discovery for various
aspects of law enforcement operations, including statements
made and actions taken by investigating agents. Agents’
investigatory decisions are regularly questioned at trial, and
their credibility is put before courts and juries. Thus, agents
occupy a different space and role in our system than
prosecutors; they are not charged with the same
constitutional functions, and their decisions are more often
scrutinized by—and in—courts.
Because the same presumption of regularity and
deference to prosecutorial decision-making policy concerns
do not apply in the selective enforcement context, we need
not apply as rigorous a standard here.
2. Nonexistent Evidence
In the selective prosecution context, statistical evidence
of differential treatment is ostensibly available. See
Armstrong, 517 U.S. at 466–67, 470. For instance,
comparing who was arrested with who was prosecuted, or
the demographics of those prosecuted in state and federal
courts for the same crime, may evince differential treatment
of similarly situated individuals. See id. That is not the case
in the context of selective enforcement. Asking a defendant
UNITED STATES V. SELLERS 11
claiming selective enforcement to prove who could have
been targeted by an informant, but was not, or who the ATF
could have investigated, but did not, is asking him to prove
a negative; there is simply no statistical record for a
defendant to point to. Cf. Chavez v. Ill. State Police,
251 F.3d 612, 640 (7th Cir. 2001) (“In a meritorious
selective prosecution claim, a criminal defendant would be
able to name others arrested for the same offense who were
not prosecuted by the arresting law enforcement agency;
conversely, plaintiffs who allege that they were stopped due
to racial profiling would not, barring some type of test
operation, be able to provide the names of other similarly
situated motorists who were not stopped.”).
This is especially true for stash house reverse-sting
operations, where no independent crime is committed; the
existence of the ‘crime’ is entirely dependent on law
enforcement approaching potential targets, and any
comparative statistics can only be derived by the government
and its informants choosing to approach and investigate
white individuals. See Hare, 820 F.3d at 101 (“In the stash
house sting context, a defendant would face considerable
difficulty obtaining credible evidence of similarly situated
individuals who were not investigated by ATF.”).
In Armstrong, the Supreme Court concluded that
requiring evidence about similarly situated defendants
would not “make a selective-prosecution claim impossible
to prove.” That is not the case here; comparative statistics
do not exist. As did the Court in Armstrong, we set the
12 UNITED STATES V. SELLERS
discovery standard accordingly and find that a lower
standard is warranted under these circumstances. 8
C. Davis and Washington
The Third and Seventh Circuits have already come to the
conclusion that Armstrong’s rigorous discovery standard
does not apply in the context of selective enforcement claims
involving stash house reverse-sting operations. See United
States v. Washington, 869 F.3d 193, 219–21 (3d Cir. 2017),
cert. denied, 138 S. Ct. 713 (2018); Davis, 793 F.3d at 719–
21. The Fourth Circuit has described the arguments for
doing so as “well taken.” Hare, 820 F.3d at 101 (citing
Davis). 9 We are now the fourth circuit to address this
question in the stash house reverse-sting context.
In United States v. Davis, the Seventh Circuit, sitting en
banc, emphasized that “Armstrong was about prosecutorial
discretion” and how “federal prosecutors deserve a strong
presumption of honest and constitutional behavior, which
cannot be overcome simply by a racial disproportion in the
outcome” because “disparate impact differs from
8
United States v. Arena-Ortiz, 339 F.3d 1066 (9th Cir. 2003), which
involved a selective prosecution claim, does not foreclose our
consideration of the difficulty of obtaining certain types of evidence. If
the discovery standard for these types of claims had already been set,
difficulty meeting the standard would not be a valid excuse for failing to
do so. See id. at 1070–71. But it is not, and we have leeway when
deciding the appropriate standard at the outset.
9
In Hare, the Fourth Circuit “assume[d]” that the defendants’
showing that all 32 of the defendants prosecuted in stash house reverse-
sting cases in the district were black was “sufficient to warrant discovery
into selective enforcement” but found that the defendants had already
received all of the discovery to which they would be entitled. 820 F.3d
at 98, 101.
UNITED STATES V. SELLERS 13
discriminatory intent.” 793 F.3d at 720. The court found
that “the sort of considerations that led to the outcome in
Armstrong do not apply to a contention that agents of the FBI
or ATF engaged in racial discrimination when selecting
targets for sting operations, or when deciding which suspects
to refer for prosecution.” Id. at 721. Thus, based on the
Davis defendant’s showing that 88 of the 94 defendants
prosecuted after stash house reverse-sting operations in the
district were black or Hispanic, the court held that
“information from supervisors or case agents of the FBI and
ATF” would be “outside the scope of Armstrong” and
discoverable. Id. at 715, 721–22; see also id. at 722 (“The
racial disproportion in stash-house prosecutions remains
troubling . . . and it is a legitimate reason for discovery.”).
In Washington, the Third Circuit discussed Davis at
length and ultimately “agree[d] with the Davis court that
district judges have more flexibility, outside of the
Armstrong[] framework, to permit and manage discovery on
claims” for selective enforcement related to stash house
reverse-sting operations. 869 F.3d at 213. The court found
that Armstrong was “grounded in part on the special
solicitude courts have shown to prosecutors’ discretion” that
“does not inevitably flow to the actions of law enforcement.”
Id. at 216, 219. The court also took note of the defendant’s
argument that the fact that “there are likely to be no records
of similarly situated individuals who were not arrested or
investigated . . . would transform the functional
impossibility of Armstrong[] into a complete impossibility.”
Id. at 216. The court held that so long as the defendant’s
proffer contains “reliable statistical evidence, or its
equivalent, . . . a defendant need not, at the initial stage,
provide ‘some evidence’ of discriminatory intent, or show
that . . . similarly situated persons of a different race or equal
protection classification were not arrested or investigated by
14 UNITED STATES V. SELLERS
law enforcement.” Id. at 221. The court remanded for the
district court to determine in the first instance whether the
defendant, who had shown that all of the defendants
prosecuted in connection with stash house reverse-sting
operations in the district were black, was entitled to any
additional discovery. Id. at 200, 222.
D. The Resulting Standard
Today we join the Third and Seventh Circuits and 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—as it does for all
discovery matters—to allow limited or broad discovery
based on the reliability and strength of the defendant’s
showing. 10
II.
Having set forth the applicable standard, we turn to
Sellers’s threshold showing in this case. Sellers argues that
the evidence he presented regarding the demographics of
those indicted based on stash house reverse-sting operations
10
Other tools in a district court’s tool box (such as in camera review)
may also aid the court’s decision as to whether discovery is warranted.
UNITED STATES V. SELLERS 15
entitles him to discovery on his selective enforcement claim.
Because the district court applied an incorrect legal standard,
we follow our normal practice of remanding to the district
court to determine in the first instance whether Sellers has
met the standard we outline today. See Kirkpatrick v.
Chappell, 872 F.3d 1047, 1058 (9th Cir. 2017) (“When a
district court applies the wrong legal standard . . . , we
ordinarily remand the case so that it may apply the correct
one in the first instance.”). It may be that Sellers does not
meet even a lower standard. Or it may be that he meets the
standard but is entitled to no more discovery than he already
received in connection with his entrapment defense. Or
Sellers may be entitled to ask the government to be more
forthcoming about its practices with regard to stash house
reverse-sting operations. We leave that to the district court
to decide.
The dissent, arguing that Sellers isn’t entitled to
discovery under any standard, purports to apply “some lesser
level of proof” for a claim of selective enforcement, Dissent
at 28, but then applies exactly the standard articulated in
Armstrong for a claim of selective prosecution. The cases
upon which it relies all involve selective prosecution claims.
See United States v. Bass, 536 U.S. 862 (2002) (per curiam)
(involving claim of selective prosecution in seeking the
death penalty); Arenas-Ortiz, 339 F.3d at 1068 (involving
“claim that the United States Attorney engaged in a pattern
of selective prosecution of Hispanic males” for illegal
reentry); United States v. Turner, 104 F.3d 1180, 1181 (9th
Cir. 1997) (involving contention that the defendants “had
been selected for prosecution on crack cocaine charges on
racial grounds”).
In conflating the standards for discovery in selective
prosecution and selective enforcement claims, the dissent
16 UNITED STATES V. SELLERS
overlooks the main reason for distinguishing them: the
presumption that prosecutors “properly discharged their
official duties” absent “clear evidence to the contrary.”
Armstrong, 517 U.S. at 464 (quoting United States v. Chem.
Found., Inc., 272 U.S. 1, 14–15 (1926)). Because “[t]he
justifications for a rigorous standard for the elements of a
selective prosecution claim” are not present in a selective
enforcement claim, the latter does not “require a
correspondingly rigorous standard for discovery in aid of
such a claim.” Id. at 468. Thus, obtaining discovery on a
selective enforcement claim does not “‘require some
evidence tending to show the existence of [both] essential
elements of the defense,’ discriminatory effect and
discriminatory intent,” id. at 468 (quoting United States v.
Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)),
notwithstanding that the defendant will eventually need to
show both elements to prevail on the claim, see Lacey v.
Maricopa County, 693 F.3d 896, 920 (9th Cir. 2012) (en
banc). See Dissent at 28 (“[A] litigant need not prove
entitlement to relief in order to obtain discovery.”).
Therefore, even if the dissent were correct that Sellers
presented no evidence of discriminatory effect, see Dissent
at 31, evidence of discriminatory intent may be enough to
warrant discovery. 11
11
Indeed, even in the selective prosecution context, the Supreme
Court left open the possibility that direct admissions by prosecutors of
discriminatory purpose (rather than the usual circumstantial evidence)
would entitle the defendant to discovery without showing some evidence
of discriminatory effect. Armstrong, 517 U.S. at 469 n.3.
UNITED STATES V. SELLERS 17
CONCLUSION
The order denying discovery is VACATED and the case
is REMANDED for limited post-judgment proceedings
consistent with this opinion. 12
NGUYEN, Circuit Judge, concurring:
For more than two decades, the government has engaged
in the controversial practice of stash house reverse stings, in
which “the government feels compelled to invent fake
crimes and imprison people for long periods of time for
agreeing to participate in them,” United States v. Black,
750 F.3d 1053, 1057 (9th Cir. 2014) (Reinhardt, J.,
dissenting from the denial of rehearing en banc). Despite
widespread criticism of this “tawdry” and “disreputable
tactic,” United States v. Lewis, 641 F.3d 773, 777 (7th Cir.
2011) (“We use the word ‘tawdry’ because the tired sting
operation seems to be directed at unsophisticated, and
perhaps desperate, defendants who easily snap at the bait put
out for them by [the government agent].”); United States v.
Kindle, 698 F.3d 401, 414 (7th Cir. 2012) (Posner, J.,
dissenting in part), vacated on reh’g en banc sub nom.
United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014), the
government has expanded fake stash house sting operations
from a single metropolitan area to cities nationwide. 1
12
Sellers’s conviction and sentence are otherwise unaffected by this
remand. Sellers’s conditional motion for remand (docket entry no. 61)
is DENIED as moot.
1
The Bureau of Alcohol, Tobacco, and Firearms (“ATF”) devised
this scheme in Miami in the early 1990s. Drug cartels moving huge
18 UNITED STATES V. SELLERS
While these operations do “not . . . reduc[e] the actual
flow of drugs,” 2 the government touts them as an important
tool “to catch people inclined to commit home invasions.”
United States v. Hudson, 3 F. Supp. 3d 772, 786 (C.D. Cal.
2014), rev’d sub nom. United States v. Dunlap, 593 F. App’x
619 (9th Cir. 2014). But when the government fails to target
known criminal enterprises or people suspected of engaging
in serious crimes, the practice is highly questionable and
raises troubling questions about race-based targeting.
There is no legitimate dispute that these stings primarily
affect people of color, but the government has steadfastly
resisted any defense attempt to determine whether
enforcement is racially biased. Courts exercising their
gatekeeping role in determining whether discovery is
warranted should recognize that the choice of locations for
these operations may have evidentiary significance to a
claim of discriminatory effect and discriminatory intent.
quantities of cocaine through South Florida attracted freelance
criminals who tried to poach the shipments, often resulting in shootouts
or attacks on innocent people. Brad Heath, ATF Uses Fake Drugs, Big
Bucks to Snare Suspects, USA Today, June 26, 2013,
https://www.usatoday.com/story/news/nation/2013/06/27/atf-stash-hou
ses-sting-usa-today-investigation/2457109. Over the next two decades,
reverse stash house stings proliferated, with operations in at least 22
states. Id.
2
A reverse sting “both eliminates one potential stash house robber
. . . and deters other criminals from joining stash house robberies . . . .
The greater security that fictitious stash house stings confer on real stash
houses . . . reduces their cost of self-protection, which is a principal cost
of the illegal-drug business.” Kindle, 698 F.3d at 416 (Posner, J.,
dissenting in part).
UNITED STATES V. SELLERS 19
I.
Stash house reverse stings have been widely criticized on
a number of race-neutral grounds. See United States v.
Conley, 875 F.3d 391, 402 (7th Cir. 2017) (commenting on
the “substantial body of criticism of similar stash house
cases both from this circuit and others”); United States v.
Washington, 869 F.3d 193, 197 (3d Cir. 2017) (“[R]everse
sting operations have grown increasingly controversial over
the years, even as they have grown safer and more refined.”);
see also United States v. Flowers, 712 F. App’x 492, 509
(6th Cir. 2017) (Stranch, J., concurring) (“This concerning
. . . tactic has rightly drawn criticism in news reporting,
scholarly writing, and from the judiciary.”). See generally
Marc D. Esterow, Note, Lead Us Not into Temptation: Stash
House Stings and the Outrageous Government Conduct
Defense, 8 Drexel L. Rev. Online 1, 28–33 (2016).
To begin with, the government need not pursue existing
criminal enterprises or individuals suspected of involvement
in any crime—let alone stash house robberies. Indeed, the
government typically outsources the selection of a target to
a confidential informant, introducing a host of biases and bad
incentives into the process. See, e.g., United States v. Black,
733 F.3d 294, 303 (9th Cir. 2013) (observing that the
government was “trolling for targets” when the confidential
informant “provocatively cast his bait in places defined only
by economic and social conditions”); see also United States
v. McLean, 199 F. Supp. 3d 926, 943 (E.D. Pa. 2016) (citing
“the inherently arbitrary way in which stash house sting
cases first ensnare suspects” as a reason that “enforcing a . . .
mandatory minimum would offend due process”); United
States v. Cambrelen, 29 F. Supp. 2d 120, 125–26 (E.D.N.Y.
1998) (finding the use of confidential informants “especially
troubling since those people are often in the process of
20 UNITED STATES V. SELLERS
negotiating down their own drug sentences or charges with
prosecutors, and have enormous incentive to inflate the drug
quantities involved in the cases they help prosecute”), aff’d,
5 F. App’x 30 (2d Cir. 2001).
Not surprisingly, given the way in which they are
selected, targets of stash house stings and their co-
conspirators sometimes have modest criminal résumés. See,
e.g., United States v. McKenzie, 656 F.3d 688, 692 (7th Cir.
2011) (“The crime proposed was . . . a ‘massive’ one; it is
somewhat baffling, then, that the young men who the
authorities recruited did not have ‘massive’ criminal
histories to match.”); see also United States v. Brown, 299 F.
Supp. 3d 976, 987 (N.D. Ill. 2018) (“ATF does not always
‘target existing criminal enterprises or have prior suspicion
of potential targets,’ and instead the stings often ‘ensnare
low-level crooks who jump at the bait of a criminal
windfall.’” (quoting Flowers, 712 F. App’x at 509 (Stranch,
J., concurring))). In such cases, the government is creating
hardened criminals out of individuals who might otherwise
lead productive lives.
The danger of . . . reverse stings is
substantially heightened when the
government takes aim at poor neighborhoods
and tempts their residents with the prospect
of making large amounts of money through
criminal activity. At the right moment and
when described in attractive enough terms,
such offers may lead astray otherwise law
abiding young men living in poverty, and
motivate them to make false or exaggerated
claims about their qualifications to serve as
participants in the proposed venture—
including claims about prior criminal
UNITED STATES V. SELLERS 21
experience that lack any substantial basis in
truth.
Black, 750 F.3d at 1056 (Reinhardt, J., dissenting from the
denial of rehearing en banc) (internal citation omitted).
Another serious problem with fictional stash house
operations is that “the government has virtually unfettered
ability to inflate the amount of drugs supposedly in the house
and thereby obtain a greater sentence for the defendant.”
United States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010).
It is no coincidence that in reverse stings across the country,
“the amount of the hypothetical cocaine to be stolen is
always purported to exist in quantities exceeding five
kilograms,” the amount that triggers a mandatory 10-year
minimum sentence. Esterow, supra, at 29. In addition,
targets “are often encouraged to bring items, such as guns,
zip ties, or duct tape, that will not only serve as evidence of
their intent to participate in the conspiracy, but will also
allow the charging of additional crimes.” Eda Katharine
Tinto, Undercover Policing, Overstated Culpability,
34 Cardozo L. Rev. 1401, 1447–48 (2013).
Controlling the fictitious amount of drugs allows the
government to enhance not only the target’s sentencing
exposure but also the attractiveness of joining the conspiracy
in the first place. See Hudson, 3 F. Supp. 3d at 786 (“[T]he
Government must make the robbery scheme tempting
enough to nab a potential criminal. The Government thus
sets the drug amount at a level . . . that no poverty-ridden
individual could pass up. . . . [T]his ruse is not meant to
simply skim off those individuals likely to commit similar
crimes; rather, it is designed to never fail.”). Similarly, the
government can “minimize the obstacles that a defendant
must overcome to obtain the drugs,” Briggs, 623 F.3d at 730,
22 UNITED STATES V. SELLERS
such as by making the stash house guards insignificant in
number or potency. “The ease with which the government
can manipulate these factors makes us wary of such
operations in general,” id., yet we continue to approve of
them, no matter how egregious.
II.
The government’s stated rationale for stash house stings
is to protect “normal” neighborhoods from the armed crime
associated with the drug trade. A normal neighborhood, as
the agent in this case explained, is a middle-class
neighborhood without security bars on the doors and
windows—in other words, safe and relatively affluent. Stash
houses are often placed in such neighborhoods to avoid
drawing the suspicion of law enforcement, and the risk of a
stash house robbery endangers any “innocent family” living
nearby.
Keeping neighborhoods safe from violent crime is
laudable, but the benefits and burdens of stash house stings
fall along racial lines. For reasons that transcend law
enforcement, the comfortable neighborhoods being
protected are overwhelmingly white. See, e.g., Steven
Raphael & Melissa Sills, Urban Crime, Race, and the
Criminal Justice System in the United States, in A
Companion to Urban Economics 515, 516 (Richard J. Arnott
& Daniel P. McMillen eds., 2006) (“[W]ithin large
metropolitan areas, the residents of poor, largely minority
neighborhoods suffer [from crime] disproportionately.”).
More troublingly, law enforcement agents—whether
consciously or not—appear to primarily target racial
minorities. Nationwide, “approximately 90% of the
individuals currently imprisoned as a result of [a] . . . stash
house sting are either African-American or Hispanic.”
UNITED STATES V. SELLERS 23
Esterow, supra, at 31. This consequence naturally flows
from operations conducted almost exclusively in minority
neighborhoods. Here, for example, the agent acknowledged
that he conducted stings in an area of Los Angeles that he
considered to be “predominantly African American and
Hispanic” rather than whiter and wealthier neighborhoods.
As a result, in the agent’s cases that led to prosecutions,
fewer than five of the roughly sixty defendants were white.
“[A]ctions having foreseeable and anticipated disparate
impact are relevant evidence to prove the ultimate fact,
forbidden purpose.” Columbus Bd. of Ed. v. Penick,
443 U.S. 449, 464 (1979).
In examining what constitutes evidence of
discriminatory effect, there is a significant difference
between selective enforcement and selective prosecution.
To show that similarly situated individuals of other races
were not prosecuted, a defendant would need to present
evidence that individuals of other races were potentially
liable for prosecution and that prosecutors knew this but did
not act on it—a difficult but not impossible task. See
Armstrong, 517 U.S. at 470 (“For instance, respondents
could have investigated whether similarly situated persons
of other races were prosecuted by the State of California and
were known to federal law enforcement officers, but were
not prosecuted in federal court.”). Because prosecutors do
not themselves investigate crimes, they are limited to
prosecuting only individuals whom law enforcement agents
have identified as probable criminals. Prosecutors’
discretion, though substantial, is finite.
Law enforcement agents, on the other hand, do not deal
with a closed universe of criminal suspects. When
conducting a reverse sting, literally anyone could be a target.
See Black, 733 F.3d at 315 (Noonan, J., dissenting) (“In the
24 UNITED STATES V. SELLERS
population of this country, there is an indefinite number of
persons who dream of clever and unlawful schemes to make
money. Does their dreamy amorality cast them all as fit
candidates for a sting by their government?”). There is no
reason to suspect that persons of a particular race are more
likely to agree to commit a stash house robbery unless one
believes that persons of that race are inherently more prone
to committing violent crime for profit—a dangerously racist
view that has no place in the law. If law enforcement agents
target potential stash house robbers in a race-neutral way,
then the racial breakdown of targeted individuals would
presumably closely mirror that in the community. If it
doesn’t, then that’s potentially indicative that the agents or
their informants are using discriminatory procedures.
In Armstrong, the Supreme Court expressed concern
with “the presumption that people of all races commit all
types of crimes” without considering “the premise that any
type of crime is the exclusive province of any particular
racial or ethnic group.” 517 U.S. at 469 (quoting United
States v. Armstrong, 48 F.3d 1508, 1516–17 (9th Cir. 1995)).
To support its assertion that some crimes are committed
primarily by individuals of a particular race, the Court cited
“presumably reliable statistics” showing the racial
composition of convicted perpetrators of three crimes. Id. at
469–70.
In the selective enforcement context, extrapolating the
incidence by race of particular crimes (or, as here, the
propensity to commit particular crimes) from conviction
rates makes sense only if police investigate crime in a
racially unbiased manner. 3 But all too often that isn’t true.
3
In addition, the Court’s extrapolation assumed that the judicial
system is unbiased. Yet it is well documented that defendants of color,
UNITED STATES V. SELLERS 25
See, e.g., Emma Pierson et al., A large-scale analysis of
racial disparities in police stops across the United States
(2017), https://5harad.com/papers/traffic-stops.pdf (finding
that black drivers are stopped more often than white drivers
relative to their share of the driving-age population, that
blacks and Hispanics are more likely to be ticketed,
searched, and arrested than similarly situated white drivers,
and that blacks and Hispanics are searched on the basis of
less evidence than whites).
We have found that “facially neutral policies ha[ving] a
foreseeably disproportionate impact on an identifiable
group” do not amount to an equal protection violation. Lee
v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001),
But I question 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. See Washington v.
Davis, 426 U.S. 229, 241 (1976) (“A prima facie case of
discriminatory purpose may be proved . . . by the absence of
[minorities] on a particular jury combined with the failure of
the jury commissioners to be informed of eligible [minority]
jurors in a community, or with racially non-neutral selection
procedures.” (internal citations omitted)); cf. McCleskey v.
Kemp, 481 U.S. 279, 294 (1987) (rejecting statistical
evidence of racial disparity in death penalty sentences to
show discriminatory intent because “each particular decision
to impose the death penalty is made by a petit jury selected
African Americans in particular, are more likely to be convicted than
similarly situated white defendants. See, e.g., Shamena Anwar et al., The
Impact of Jury Race in Criminal Trials, 127 Q.J. Econ. 1017 (2012);
Sheri Lynn Johnson, Black Innocence and the White Jury, 83 Mich. L.
Rev. 1611 (1985).
26 UNITED STATES V. SELLERS
from a properly constituted venire”). Even if, for the sake of
argument, stash house robberies are more likely to be
committed by persons of color than by whites for reasons
having nothing to do with race, 4 limiting reverse stings to
minority neighborhoods will still result in the systematic
overrepresentation of minority targets.
For example, consider a region with a population that is
two-thirds white and one-third minority and in which
0.002% of minorities and 0.001% of whites commit stash
house robberies. Although minorities in this fictitious region
are twice as likely as whites to commit stash house robberies,
there are twice as many whites as minorities in the
population as a whole. Consequently, the region has equal
numbers of minorities and whites who are stash house
robbers. If law enforcement agents use race-neutral
procedures to identify potential stash house robbers, then
half of the targets should be minorities and half should be
whites. But if agents limit their sting operations to
neighborhoods where minorities comprise 80% of the
population, then eight minorities will be targeted for every
white target.
4
To be clear, I wholly reject the notion that persons of color are
inherently more likely to commit certain crimes, i.e., that race or
ethnicity is a causal factor. There may be causal factors that are
correlated with race, leading to a higher incidence of perpetrators among
certain races. For example, if poverty is a causal factor of stash house
robberies and wealth is distributed unequally by race for unrelated
reasons—such as a history of racial oppression—then, setting aside other
causal factors, persons of races with a less-than-equal share of the
community’s wealth will commit stash house robberies at a greater rate
than persons of other races. Yet if the wealth inequality were remedied,
then the racial disparity among stash house robbers would disappear.
UNITED STATES V. SELLERS 27
III.
Evidence that law enforcement agents or their
confidential informants scoured disproportionately minority
neighborhoods in search of stash house reverse sting targets
is evidence of discriminatory effect. If the agents knew they
were limiting their operations to minority neighborhoods
and made no effort to stage operations elsewhere, without
more, that’s also potentially indicative of discriminatory
purpose. Whether this is enough evidence in this case to
entitle Sellers to additional discovery is for the district court
to resolve in the first instance.
Like many of my colleagues across the country, I am
greatly disturbed by the government’s practice and, in
particular, its disproportionate impact on people of color.
The government’s use of stash house reverse stings warrants
closer scrutiny.
GRABER, Circuit Judge, dissenting:
I respectfully dissent. 1 In my view, we need not—and
therefore should not—opine about the standard for obtaining
discovery in selective enforcement cases because, under
either a high or a low standard, Defendant’s evidentiary
proffer is wanting as a matter of law.
1
I concur in the memorandum disposition regarding the remaining
claims.
28 UNITED STATES V. SELLERS
I
The district court denied Defendant’s motion for
discovery on the claim of selective enforcement. We review
that decision for abuse of discretion. United States v.
Arenas-Ortiz, 339 F.3d 1066, 1069 (9th Cir. 2003). An error
of law is, of course, one form of abuse of discretion. Koon
v. United States, 518 U.S. 81, 100 (1996). But here, the
district court relied on correct legal principles and did not
otherwise commit an abuse of discretion.
I would assume, without deciding, that the high bar for
obtaining discovery for a claim of selective prosecution,
enunciated in United States v. Armstrong, 517 U.S. 456
(1996), does not apply to a motion to obtain discovery for a
claim of selective enforcement. That is, I would assume that
some lesser level of proof is required in order to obtain
discovery for a claim of selective enforcement, as the
majority opinion now holds. The basic elements of the two
types of claims—discriminatory effect and discriminatory
intent—are the same, as we held in Lacey v. Maricopa
County, 693 F.3d 896, 920 (9th Cir. 2012) (en banc); but a
litigant need not prove entitlement to relief in order to obtain
discovery. Rather, the question in each case is whether there
is enough evidence before the court to suggest that further
discovery is warranted. In both the prosecution and the
enforcement contexts, as well as under general discovery
principles, the court is not required to grant discovery with
respect to a speculative claim. Rivera v. NIBCO, Inc.,
364 F.3d 1057, 1072 (9th Cir. 2004).
The district court denied the motion primarily on the
ground that there was insufficient evidence of discriminatory
effect to raise an inference justifying discovery, rejecting
Defendant’s statistical proffer. The district court’s reasoning
and result are correct. The Supreme Court has instructed—
UNITED STATES V. SELLERS 29
an instruction that we have followed—that raw statistics
alone are not at all probative of discriminatory effect. That
is, they are irrelevant. 2
In United States v. Bass, 536 U.S. 862 (2002) (per
curiam), the defendant argued that the government had
elected to seek the death penalty, rather than a lesser
punishment, because of his race. In support of his request
for discovery, the defendant presented nationwide statistics
showing that the government charged African-Americans
with death-eligible offenses more than twice as often as it
charged whites with death-eligible offenses. Id. at 863. The
Supreme Court held that those statistics did not entitle the
defendant to discovery, not because the numbers were
insufficiently probative to warrant further exploration but—
more categorically—because “raw statistics regarding
overall charges say nothing about charges brought against
similarly situated defendants.” Id. at 864 (first emphasis
added). In other words, the raw statistics were not just
unpersuasive; they were irrelevant.
We have treated similar statistical evidence the same
way in cases both before and after Bass—cases that the
district court cited in reaching the conclusion that
Defendant’s evidence fell short. In United States v. Turner,
104 F.3d 1180, 1184–85 (9th Cir. 1997), for example, we
held that statistics pertaining to the number of overall
convictions for crack cocaine charges brought against
different groups did not entitle the defendants to discovery.
2
One can question the correctness of the Supreme Court’s holdings
on this point, but it is hard to quarrel with their clarity. And, as a circuit
court, “we are bound to follow a controlling Supreme Court precedent
until it is explicitly overruled by that Court,” whether we agree with its
reasoning or not. Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir.
2011) (en banc).
30 UNITED STATES V. SELLERS
We relied on Armstrong, explaining that sheer numbers,
without further evidence, “d[o] not advance a defense of
selective prosecution.” Id. A few years later, in Arenas-
Ortiz, 339 F.3d at 1070, we explained similarly that raw
statistics are probative only if paired with other evidence.
Those precedents, and Armstrong itself, do not teach
simply that generalized statistical evidence is frowned on in
this context. Nor do they teach that raw statistics are
insufficient only in cases involving prosecutors. Rather,
they stand for the principle that raw statistics concerning the
racial makeup of a group of defendants (or, here, a group of
suspects targeted by a law enforcement agency), without
other evidence, are irrelevant to proving the existence of a
discriminatory effect.
Given those precedents, I conclude that the district court
correctly rejected Defendant’s evidence as insufficient to
create an inference of discriminatory effect, because that
evidence consisted only of non-comparative raw statistics.
The evidence is insufficient whether we apply either a
rigorous Armstrong standard or the more forgiving standard
devised by the majority opinion. Because the statistics that
Defendant presented “say nothing,” Bass, 536 U.S. at 864,
they cannot, under any standard, entitle Defendant to
demand discovery.
Moreover, it is possible for a defendant to find some
comparative statistical information that would satisfy the
Supreme Court’s requirements. In this case, for instance, the
district court ordered production of the ATF manual insofar
as it describes “how to determine which persons to pursue as
potential targets.” Suppose that the manual states that agents
should pursue people who have been convicted of
distributing large quantities of heroin, or people who have
been released from prison in the past six months after having
UNITED STATES V. SELLERS 31
been incarcerated for robbery. In theory, at least, a
defendant could ascertain who is in the universe of intended
targets and determine whether there is disproportionate
enforcement.
But even if practical considerations made it impossible
to find such information, our precedent would not allow
discovery. We considered and rejected just such a challenge
in Arenas-Ortiz, 339 F.3d at 1070–71. There, the defendant
argued that the district court had erred in denying his request
for discovery because it would have been an “insuperable
task” to produce the requisite evidence. Id. As we explained
in rejecting that argument, “it is in the nature of a standard
that there will be times when that standard cannot be met.
Merely demonstrating that better evidence cannot be
obtained without discovery does not suddenly render
otherwise insufficient evidence sufficient.” Id. at 1071; see
also Armstrong, 517 U.S. at 470 (rejecting this court’s
concern about evidentiary obstacles that defendants would
face if required to produce evidence of differential treatment
of similarly situated members of other races).
In summary, we need not decide whether the standard for
obtaining discovery on a selective enforcement claim is
more generous than Armstrong’s standard for a selective
prosecution claim because the generalized evidence that
Defendant offered is insufficient to raise any inference of
discriminatory effect. The district court therefore
permissibly denied discovery for that reason. Accordingly,
the majority opinion is, at best, a gratuitous exercise and, at
worst, an advisory opinion.
II
The majority opinion misconstrues Armstrong by
conflating its two separate holdings. Nothing in the Court’s
32 UNITED STATES V. SELLERS
discussion of the level of proof appropriate to a particular
claim undercuts its holding that non-comparative statistical
evidence is no proof at all.
In Armstrong, the Supreme Court reversed our circuit’s
allowance of discovery in aid of a selective prosecution
claim. To understand the Supreme Court’s decision in
context, it is useful to begin with what we held and, thus,
what the Supreme Court rejected.
Our court held en banc that a defendant who seeks
discovery in connection with a claim of selective prosecution
need only demonstrate a “colorable basis” for believing that
wrongful discrimination took place. United States v.
Armstrong, 48 F.3d 1508, 1510 (9th Cir. 1995) (en banc).
The district court granted the defendants’ motion for
discovery when the defendants presented a study showing
that all 24 cases closed in 1991 and handled by the Federal
Public Defender’s Office for the Central District of
California, in which a particular drug crime was charged,
involved African-American defendants. Id. at 1511. The
district court ruled that the statistical data raised “a question
about the motivation of the Government” sufficient to justify
discovery to reveal the prosecutor’s “criteria” for bringing
that and similar cases. Id. at 1512. We agreed, id. at 1515–
19, and emphasized that
statistical disparities alone may suffice to
provide the evidence of discriminatory effect
and intent that will establish a prima facie
case of selective prosecution. . . . [W]e hold
that inadequately explained evidence of a
significant statistical disparity in the race of
those prosecuted suffices to show the
colorable basis of discriminatory intent and
UNITED STATES V. SELLERS 33
effect that warrants discovery on a selective
prosecution claim.
Id. at 1513–14 (citations and footnote omitted). We
expressly rejected a requirement for defendants “to compile
facts which are not easily obtainable by them, such as the
racial breakdown and offense characteristics of defendants
represented by other counsel.” Id. at 1514. The concurring
opinion stated that, at the discovery stage, only “some
evidence, tending to show selective prosecution, is required.
Where there is evidence of a large enough number of
prosecutions directed at a single race over a sufficiently long
period of time, eventually there becomes a point where that
evidence is sufficient to establish a colorable basis of
selective prosecution.” Id. at 1521 (Wallace, J., concurring).
With respect to the role of prosecutors, we reasoned that the
broad discretion they possess over charging decisions means
that they may be the only source of information
demonstrating discrimination, thereby justifying a generous
standard for discovery. Id. at 1514 (majority).
In summary, we held: (1) Only a “colorable basis” for
concluding that unlawful discrimination occurred is required
to support discovery. One rationale for that standard
(repeated by the majority opinion here, pp. 10–11) is that it
may be hard for defendants to obtain information, which is
largely in prosecutors’ hands. (2) Raw statistics, without
comparative numbers, sufficed to demonstrate a “colorable
basis.”
Against that backdrop, I read the Supreme Court’s
decision to follow the same two-part structure. The Court
first discussed the presumption that prosecutors discharge
their official duties properly, but also reaffirmed that a
prosecutor’s decision to pursue a case may not, under the
34 UNITED STATES V. SELLERS
Equal Protection Clause, be based on race. Armstrong,
517 U.S. at 463–66. Rather than supporting this court’s
loose discovery standard, though, the role of the prosecutor
justifies a high standard: “the showing necessary to obtain
discovery should itself be a significant barrier to the
litigation of insubstantial claims.” Id. at 464. The standard
should be “rigorous” and can be described with a variety of
phrases, including “substantial threshold showing.” Id. at
468.
After establishing a standard, the Court went on to
consider, second, whether the statistical information
supplied by the defendants sufficed; the Court answered that
separate question in the negative. The Court summarized its
evidentiary holding as follows:
In this case we consider what evidence
constitutes “some evidence tending to show
the existence” of the discriminatory effect
element. The Court of Appeals held that a
defendant may establish a colorable basis for
discriminatory effect without evidence that
the Government has failed to prosecute
others who are similarly situated to the
defendant. We think it was mistaken in this
view. The vast majority of the Courts of
Appeals require the defendant to produce
some evidence that similarly situated
defendants of other races could have been
prosecuted, but were not, and this
requirement is consistent with our equal
protection case law. As the three-judge panel
explained, “‘[s]elective prosecution’ implies
that a selection has taken place.”
UNITED STATES V. SELLERS 35
The Court of Appeals reached its decision
in part because it started “with the
presumption that people of all races commit
all types of crimes—not with the premise that
any type of crime is the exclusive province of
any particular racial or ethnic group.” It cited
no authority for this proposition, which
seems contradicted by the most recent
statistics of the United States Sentencing
Commission. . . . Presumptions at war with
presumably reliable statistics have no proper
place in the analysis of this issue.
Id. at 469–70 (citations omitted); see also id. at 465 (“To
establish a discriminatory effect in a race case, the claimant
must show that similarly situated individuals of a different
race were not prosecuted.” (emphasis added)); id. at 467
(“[The defendants] urge that cases such as Batson v.
Kentucky, 476 U.S. 79 (1986), and Hunter v. Underwood,
471 U.S. 222 (1985), cut against any absolute requirement
that there be a showing of failure to prosecute similarly
situated individuals. We disagree.”).
Turning to the statistics that the defendants offered to the
district court, the Court concluded that their “‘study’ did not
constitute ‘some evidence tending to show the existence of
the essential elements of’ a selective-prosecution claim. The
study failed to identify individuals who were not black and
could have been prosecuted for the offenses for which [the
defendants] were charged, but were not so prosecuted.” Id.
at 470 (citations omitted).
In short, the Supreme Court in Armstrong held: (1) To
justify discovery concerning a claim of selective
prosecution, a defendant must present some evidence
36 UNITED STATES V. SELLERS
tending to show a discriminatory effect and a discriminatory
purpose. One rationale for that rigorous standard is the
presumption that prosecutors perform their duties properly.
(2) Raw statistics, without comparative numbers, are
inadequate as a matter of law to permit an inference of
discriminatory effect.
Thus, Armstrong contains two distinct holdings. The
first sets a standard for how persuasive a litigant’s showing
must be to justify discovery. The second rejects,
categorically, the relevance of raw statistics. Ratcheting the
standard up or down has no bearing on the separate, second
holding, which rests not on the nature of prosecutors, as the
majority opinion avers, pp. 10, 15–16, but on the nature of
evidence that the Court deemed irrelevant. And it is entirely
clear from the Court’s discussion that the second,
evidentiary point (including the requirement to produce
comparative information) applies to all equal protection
claims. Armstrong, 517 U.S. at 465–68.
III
Finally, the majority writes that, even if my dissenting
opinion is correct in concluding that Defendant presented no
evidence of discriminatory effect, “evidence of
discriminatory intent may be enough to warrant discovery.”
Maj. op. at 16. Whatever other function that suggestion
serves, it cannot justify discovery here because there is no
evidence of discriminatory intent, either.
As the district court accurately observed, Defendant
offered no independent evidence of discriminatory intent.
Rather, Defendant asserted that the ATF’s adoption of
policies that had a discriminatory effect necessarily
demonstrated a racial animus. Given the absence of legally
UNITED STATES V. SELLERS 37
sufficient evidence of discriminatory effect, this
bootstrapping attempt fails.
Indeed, the record contradicts a claim of subjective
discriminatory purpose on the government’s part with
respect to Defendant. ATF agents testified that they pursued
violent offenders with experience in the drug trade. More
importantly, the government’s enforcement effort did not
target Defendant at all. Instead, a co-conspirator recruited
him into the conspiracy.
For the foregoing reasons, I respectfully dissent.