US v. Sellers, No. 16-50061 (10-15-18)(Nguyen w/Simon; Nguyen concurring; Graber dissenting).  In a significant discovery opinion, the panel majority held that in 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 US v. Armstrong, 517 US 456 (1996). The 9^th emphasizes the difference between selective prosecution and selective enforcement (9). The 9^th stresses that the police do not enjoy the enforcement presumption of prosecutors and that discovery of similarly situated individuals is impossible to obtain by any other means. The 9^th joins the 3^rd and 7^th Circuits in this distinction.  (12). The order denying discovery is vacated and the case is remanded for the limited purpose of such discovery under the articulated 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 requirement 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.[note omitted]” (14)

In a concurring opinion, Nguyen emphatically states that there is no legitimate dispute that stash house reverse-sting operations primarily impact minorities.  The government refuses to disclose any information as to whether such operations could be racially biased.  She stresses –hints?—that a district court in assessing discovery claims as evidentiary gatekeeper should recognize that selection of location of such operations should have evidentiary significance.

Dissenting, Graber argues that the majority should not discuss the standard for selective enforcement, because under any standard, defendant’s proffer was insufficient.

Congrats to CJA Attorney Carl Gunn for this win.

 The decision is here:

 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/15/16-50061.pdf