United States v. Daryle Sellers
906 F.3d 848 (2018)
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Rule of Law:
The rigorous discovery standard for selective prosecution claims under United States v. Armstrong does not strictly apply to requests for discovery on selective enforcement claims in stash house reverse-sting operations, allowing for a lower threshold showing from defendants to obtain discovery.
Facts:
- In March 2012, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Agent John Carr initiated a stash house reverse-sting operation near downtown Los Angeles.
- A confidential informant, staying in a predominantly black and Hispanic area of Los Angeles, targeted one of Sellers's co-defendants, a black individual, who was ostensibly believed to be involved in selling drugs.
- The co-defendant was put in touch with Agent Carr, and a fictitious stash house robbery operation was set into motion.
- On July 9, 2012, Daryle Lamont Sellers attended a planning meeting for the robbery with the co-defendant, Agent Carr, and others.
- The stash house robbery was scheduled for July 16, and after a final planning meeting, Sellers and the entire robbery crew, all of whom are black, were arrested.
- Sellers presented data showing that of 51 defendants indicted in stash house reverse-sting operations between 2007 and 2013, at least 39 were black or Hispanic, and Agent Carr testified that over 55 of approximately 60 individuals indicted in his operations were people of color.
Procedural Posture:
- Daryle Lamont 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 in the United States District Court for the Central District of California.
- Sellers moved to dismiss the indictment for outrageous government misconduct and sought discovery on a claim of selective enforcement.
- The district court denied Sellers's motion for discovery, applying the standard set forth in United States v. Armstrong.
- Sellers was convicted by a jury and sentenced to 96 months’ imprisonment.
- Sellers timely appealed the district court's denial of his discovery motion to the United States Court of Appeals for the Ninth Circuit (appellant).
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Issue:
Does the rigorous discovery standard established in United States v. Armstrong for selective prosecution claims apply to a defendant's request for discovery on a selective enforcement claim in a stash house reverse-sting operation case?
Opinions:
Majority - Judge Nguyen
No, the rigorous discovery standard established in United States v. Armstrong for selective prosecution claims does not strictly apply to a defendant's request for discovery on a selective enforcement claim in a stash house reverse-sting operation case. The court held that Armstrong's rigorous discovery standard for selective prosecution claims is not strictly applicable to selective enforcement claims, particularly in the stash house reverse-sting context, for two main reasons. First, law enforcement officers do not enjoy the same strong presumption of constitutional behavior as prosecutors, whose deliberative processes are covered by strong privileges. Second, the nature of reverse-sting operations means that evidence of similarly situated individuals who were not targeted, which is crucial under Armstrong, is simply nonexistent for defendants. The court explicitly joined the Third and Seventh Circuits in declining to adopt Armstrong's standard wholesale in this context, citing United States v. Davis and United States v. Washington. A defendant, therefore, does not need to proffer evidence that similarly-situated individuals of a different race were not investigated or arrested. Instead, a defendant needs 'something more than mere speculation,' and the district court should use its discretion to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.
Concurring - Judge Nguyen
Yes, courts should recognize that the choice of locations for stash house reverse-sting operations may have evidentiary significance to a claim of discriminatory effect and intent, supporting a less rigorous discovery standard. Judge Nguyen emphasized the widespread criticism of stash house reverse-sting operations, noting that they often target unsophisticated individuals, allow the government to inflate drug quantities for sentencing, and disproportionately affect people of color. She argued that these operations frequently occur in minority neighborhoods, leading to a racial imbalance among targets. While prosecutors deal with a closed universe of identified criminals, law enforcement agents conducting reverse stings can target 'literally anyone,' making race-neutral procedures essential. She questioned whether limiting operations to predominantly black and Hispanic neighborhoods is a 'facially neutral' policy, especially given the documented racial disparities in policing and the notion that 'facially neutral policies ha[ving] a foreseeably disproportionate impact on an identifiable group' do not amount to an equal protection violation. She concludes that evidence of disproportionately minority neighborhood targeting is evidence of discriminatory effect and potentially intent.
Dissenting - Judge Graber
No, the defendant's evidentiary proffer is insufficient to warrant discovery under any standard, including a lower one, because it consists only of non-comparative raw statistics, which the Supreme Court in United States v. Bass (2002) deemed irrelevant to proving discriminatory effect. Judge Graber argued that the court did not need to establish a new discovery standard because Sellers's evidence of discriminatory effect, consisting solely of 'raw statistics' regarding the racial makeup of defendants in such operations, was irrelevant as a matter of law. She cited United States v. Bass and United States v. Arenas-Ortiz, which instruct that raw statistics alone are not probative of discriminatory effect unless paired with comparative evidence of similarly situated individuals of other races who were not prosecuted. The dissent contended that Armstrong contains two distinct holdings: one on the rigor of the standard and another on the categorical irrelevance of raw statistics without comparative data, and this second holding is independent of the presumption afforded to prosecutors. Furthermore, she found no independent evidence of discriminatory intent, noting the government did not target Sellers but rather a co-conspirator recruited him, contradicting any claim of subjective discriminatory purpose.
Analysis:
This case significantly lowers the bar for defendants seeking discovery on selective enforcement claims arising from reverse-sting operations, particularly those alleging racial bias. By distinguishing selective enforcement from selective prosecution, the Ninth Circuit acknowledges the unique challenges defendants face in proving discriminatory intent and effect when law enforcement actively creates the 'crime.' This ruling empowers defendants to challenge potentially discriminatory law enforcement tactics and pushes courts to more closely scrutinize sting operations, especially those with observed racial disparities. It could lead to more transparency and potential reforms in how such operations are conducted, impacting law enforcement agencies like the ATF and potentially influencing future cases involving government-initiated 'crimes' and racial targeting allegations.
