Case o' Week: Sold on Sellers -- Sellers and Discovery on Selective Enforcement Claims

Carl Gunns for Nguyen win.  

United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), decision available here.

Players: Majority decision and concurrence by Judge Nguyen. 

The Honorable Judge Nguyen

  DJ Simon, concurring.
  Dissent by Judge Graber, drawn by lot to replace Judge Reinhardt. 
  (Judge Reinhardt, concurring in spirit, with the opinion and Judge Nguyen's terrific concurrence).

  Tremendous victory for former C.D. Cal. AFPD, now stalwart CJA counsel, Carl Gunn.  

Facts: Sellers, who is black, was arrested in an ATF stash house sting put together by ATF Agent John Carr, and was charged in federal court. Id. at *1-*2.

  Sellers sought discovery based on a claim of selective enforcement. Id. at *2. Sellers showed that 39 of 51 CD Cal defendants charged in reverse sting prosecutions were black or Hispanic. Id. 

ATF Agent John Carr

  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.  

   Sellers was convicted after a jury trial, and appealed.

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: The Sellers opinion is a lovely piece of legal writing by Judge Nguyen. It is a careful and measured analysis that methodically works through the difference between selective enforcement and selective prosecution, and that hews closely to previous discovery decisions in the Third and Seventh Circuits. Id. at *6.

  In her concurrence, however, Judge Nguyen cuts loose. 

  Unleashing a barrage of stats, in her concurrence Judge Nguyen explains exactly how fake stash house schemes target people of color – and ultimately 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 ever defended a client against these inane and unfair stash house prosecutions, this concurrence is a must-read.

How to Use: The Feds of NorCal rage for RICO, and are dying for death. What percentage of our tsunami of RICO and capital defendants are people of color? 95%? Higher?

  It is time for beloved data nerds to run some RICO regression models, and for capital counsel to shake loose some Sellers discovery from ATF, the FBI, Homeland Security, and local law enforcement.  

                                               

For Further Reading: Sellers confirms what we knew: the Honorable District Judge Edward Chen got it right. In 2017, Judge Chen ordered a broad swath of discovery on the ND Cal FPD’s selective enforcement claim in the notorious San Francisco “Safe Schools” prosecution. See “For Further Reading” at blog entry, here. 

The Honorable Judge Edward Chen

   The ND Cal United States Attorney's Office dismissed those "Safe Schools" indictments, rather than complying with Judge Chen’s remarkable discovery order. While these dismissals were welcome victories for our clients, the win left unaddressed many serious questions about this profoundly misguided prosecution.

   We’ll now get answers.

  The ACLU has recently filed a civil lawsuit on behalf of these Safe Schools defendants. See ACLU press release here. 

   Notably, the ACLU’s Cross suit was recently related back to the Mumphrey litigation (the original Safe Schools criminal case). See CV 18-06097 EMC (N.D. Cal. Oct. 16, 2018), Dkt. #22, Ord. relating case.

  This means that the whole "Safe Schools" mishigaas is now right back where it belongs: before Judge Chen. 

Image of the Honorable Judge Nguyen from https://www.scpr.org/news/2011/12/01/30139/key-senate-committee-approves-la-judge-ninth-circu/ 

Image of “Stash House” from http://lovewheels.site/stash-house/

Image of ATF Agent Carl Gunn from http://www.agingrebel.com/wp-content/uploads/2014/06/John-Carr1.jpg

Image of the Honorable Judge Edward Chen from https://www.law.com/therecorder/almID/1202766928888/how-judge-chen-put-himself-on-the-wrong-side-of-the-ninth-circuit-in-uber-case/

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Bad Facts Make Good Law -- Yuman-Hernandez and Sentencing Entrapment

 The Ninth delivers an opinion that has everything we could want: thoughtful clarification of a defense theory that helps ease our burden, rejection of a government approach that would make a defense functionally impossible, and a stern warning that the Circuit takes a “hard look” at a particularly troubling category of cases.

A win across the board (except, sadly, for the defendant himself). United States v. Yuman-Hernandez, 2013 WL 1395811(9th Cir. Apr. 8, 2013), decision available here.

Players: Decision by Judge Goodwin, joined by Judge Fletcher and visiting District Judge

Korman.

Facts: Yuman-Hernandez was convicted of conspiracy to rob a stash house and use of a firearm. Id. at *1. An agent, pretending to be a courier, met with the heavy and his “crew” – including Yuman-Hernandez – and planned a robbery of a (fake) stash house “containing” over 20 kg. of cocaine. Id. Yuman-Hernandez had an opportunity to withdraw, and didn’t. Id. He recruited a co-defendant. Id. He also drove the heavy, to get marijuana to trade for an assault rifle for the robbery. Id. A co-defendant testified the heavy told Yuman-Hernandez he’d get paid when the cocaine was sold. Id. At sentencing, the district court found Yuman-Hernandez had not met his burden to prove sentencing entrapment argument, and imposed the mand-min sentence of 180 months.

Issue(s): “Yuman–Hernandez appeals his . . . mandatory-minimum sentence, assigning error to the district court's rejection of his sentencing entrapment argument. He argued a lack of predisposition to commit an offense involving the amount of cocaine charged, and was thus entrapped.” Id. at *1.

Held: “Yuman–Hernandez takes issue with what he perceives to be a lack of evidence showing an affirmative predisposition to commit a crime involving twenty to twenty-five kilograms of cocaine. But Yuman–Hernandez ignores the fact that it was his burden to show a lack of predisposition. The district court's finding was reasonable in light of this burden. Yuman–Hernandez complains most forcefully that he was not financially capable of purchasing the amount of cocaine at issue. But his ability to purchase any given amount of cocaine is not relevant. Instead, the predisposition-capability concerned here is that to conspire with others to take the amount of cocaine involved by force. His argument fails even if the question is construed as whether he lacked predisposition to handle a large amount of cocaine. He was involved as a member of a stick-up crew; there is no indication he would have been expected to deal or otherwise offload the cocaine by himself after the robbery. Testimony showed [the heavy] intended to sell the cocaine himself and distribute the proceeds — Yuman-Hernandez needed only provide muscle. While the question of his capability to steal twenty to twenty-five kilograms as opposed to some smaller amount is less enlightening in this context, the cumulative evidence tended to not only rebut any argument that he lacked intent, but in fact show the affirmative existence of intent. Further, Yuman–Hernandez offered no evidence to suggest otherwise—a fatal error in light of his burden. Thus, the district court did not abuse its discretion in rejecting the sentencing entrapment argument.” Id. at *3.

Of Note: Loss for this defendant, but this great opinion is a defense win. Judge Goodwin untangles the confusion surrounding sentencing entrapment. He clarifies that in the context of fake stash house robberies, it is not the defendant’s burden to establish both a lack of intent and a lack of capability. Id. at *3. [I]n the case of fictitious stash house robberies, the defendant need only show a lack of intent or lack of capability to deal in the quantity of drugs charged.” Id. at *3.

   Judge Goodwin also explains that “outrageousness is not itself an independent prong of sentencing entrapment.” Id. Very important holding: a case needn’t be “outrageous” for sentencing entrapment to be a viable defense theory.      

How to Use: The Ninth gives sting operations with stash houses a “hard look.” Id. at *3. You should give Yuman-Hernandez a hard look if you have such a case, or any sentencing entrapment issue: it is a lead decision.

                                               

For Further Reading: Did you hear about the new Speedy Trial Act exclusion? Continue the trial, because we don’t have money to mount a defense? For a remarkable tale of sequestration’s impact on the biggest active terrorism case on American soil, see the New York Times article here. 

Image of “Stash House” from http://ffilms.org/wp-content/uploads/2012/06/Stash-House.jpg

Image of Uncle Sam and sequestration scissors from http://www.rand.org/blog/2013/02/the-state-of-the-union-2013.html

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Real Loss for Fake Stash House Defense - Spentz and Entrapment

Believe in a fake six foot rabbit and you get sent to the psych ward.

Believe in a fake stash house and you get years in federal prison. United States v. Spentz, 2011 WL 3195708 (9th Cir. July 28, 2011), decision available here.

Players: Decision by Judge Clifton, joined by Judges Wallace and Fernandez.

Facts: ATF set up a functioning tattoo shop to catch “violent criminals” by offering opportunities to commit crime. Id. at *1. Spentz and others came into the shop and met an undercover ATF agent, pretending to be a disgruntled drug courier. Id. The agent proposed that he, Spentz, and other men rob a stash house in which was stored $2.5 million worth of cocaine. Id. The agent warned the men the house was typically protected by two guards, one of them armed. Id.

No such stash house actually existed.

The agent, Spentz, and other defendants rendezvoused for the (fake) robbery, were promptly arrested, and then tried for a bevy of crimes including 18 USC § 1951(a), conspiracy to interfere with commerce through robbery, 21 USC § 846, conspiracy to possess with intent to distribute cocaine [which, by the way, didn’t exist], and § 924(c), use of a gun in the furtherance of another felony. Id.

The district court rejected the defense request for an entrapment instruction, holding there was insufficient evidence to merit the instruction and the instruction was inconsistent with the alternative defense strategy of claiming innocence. Id. at *2. The defendants were convicted. Id.

Issue(s): “This appeal presents the issue as to when, in a criminal trial, a district court must give the jury instructions requested by a defendant regarding an entrapment defense . . . . Defendants argue that the district court erred in refusing to provide an entrapment instruction to the jury.” Id. at *1.

Held: “There was . . . insufficient evidence presented at trial to support a finding by the jury that defendants were induced by the government to commit the crimes, one of the two necessary elements of an entrapment defense. As a result, we conclude that the district court did not err by refusing to give the entrapment instruction, and we affirm.” Id. at *1.

Of Note: To earn the entrapment defense, there must be evidence of inducement of inducement “plus something else – typically excessive pressure by the government upon the defendant or the government’s taking advantage of an alternative, non-criminal type of motive.” Id. at *3. In this case, the defense argued that the motive offered by the undercover agent was so overwhelming – $2.5 million at stake – and the risk so minor, that this incentive met the “something else” prong of inducement. Id. Judge Clifton is unpersuaded: “When the motivation presented by the government is the typical benefit from engaging in the proposed criminal act, there is no reason to be concerned that an innocent person is being entrapped.” Id. Spentz is a blow to one of the few hoped-for defenses in these hated fake stash-house cases, and foreshadows a grim future of fake federal crimes with huge promised fake payoffs used to lure our very real clients into an easy prosecution.

How to Use: A silver lining, if there is one, is that the Court in Spentz rejects one basis relied upon by the district court in refusing to give the entrapment instruction requested by the defense. “[A] criminal defendant may assert innocence and, in the alternative, entrapment.” Id. at *3 & n.2. Moreover, a defendant can assert an entrapment defense based solely on evidence arising from the government’s case. Id.

How, exactly, the defense can credibly run alternative theories of entrapment and straight innocence isn’t exactly clear from the opinion – but worth noting that it is at least theoretically possible.

For Further Reading: Spentz is not the only defendant snared in the Las Vegas fake tattoo parlor scheme run by ATF. The Nevada USAO boasts of a number of other convictions arising out ATF’s “Hustler’s” tattoo shop, with sentences up to fifteen years for real prosecutions of attempted robberies of fake stash houses. See press release here.

A number of federal districts (including the ND Cal) are plagued with these bureaucratically-created criminal conspiracies spawned by ATF – and while the agency has been busy inventing fake stash houses, it has simultaneously allowed a known criminal network funnel thousand of assault weapons to Mexican drug cartels (including weapons found where a Border agent was killed in 2010). See NYT article here.


Image of Harvey and James Stewart, and movie poster, from http://www.fusedfilm.com/2009/08/spielbergs-next-project-harvey/


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Throws Monkey Whrench into Pretext Searches - Cervantes

Ever suspect that the Exceptions have swallowed the Rule? That the Fourth Amendment is a quaint old ideal fatally eroded by Whren, pretext stops, and the convenient “community caretaking” concept?

Take heart.  United States v. Cervantes, 2012 WL 1700840 (9th Cir. May 16, 2012), decision available here.

Players: Decision by Judge Pregerson, joined by Judge D.W. Nelson. Dissent by Judge Ikuta. 

Big win for CD Cal AFPD Michael Tanaka.

Facts: Cops surveilling a suspected stash house saw a man enter, then leave with a large white box. Id. at *1. The man drove away, parked, and gave the box to Cervantes. Id. Cervantes drove on a freeway, and then through a residential neighborhood. Id. Cops thought this was “counter-surveillance” creating probable cause, but didn’t stop Cervantes. Id. 

 Cervantes then stopped at a residence and puttered about; three hours later he drove away. Id. Cops find a reason for a traffic stop, arrest Cervantes for driving without a license (he had one), and find two kilos of cocaine in the box after an impound search. Id. at *2. 

The district court upheld the search using, among other theories, the “community caretaking” function. Id.

Issue(s): “[T]he government contends that the officers had probable cause to search Cervantes's vehicle based on (1) [the officer’s] conclusory statement that the box in Cervantes's possession came from a ‘suspected narcotics stash house,’ and (2) [the officer’s] observation that Cervantes ‘did not take a direct route to his location.’” Id.

Held: “The government asks us to place heavy reliance on [the officer’s] conclusory statement that, based on [his] training and experience, the white box in Cervantes's possession came from a ‘suspected narcotics stash house.’ But in the absence of any underlying facts as to why [the officer] suspected the house was a ‘stash house,’ this statement is entitled to little, if any, weight in the probable cause analysis.” Id. “While [the officer’s] training and experience are factors to be considered, it is incumbent upon the arresting or searching officer to explain the nature of his expertise or experience and how it bears upon the facts which prompted the officer to arrest or search. Conclusory statements and a general claim of expertise will not suffice.” Id. at *3 (internal quotations and citation omitted). 

“The government also urges us to rely on [the officer’s] observation that Cervantes ‘“did not take a direct route to his location.” Cervantes's unremarkable driving practices, however, fall short of any indicia of criminal activity.” Id. at *3. “[The officer’s] observations regarding Cervantes's benign travel tactics, when coupled with [the officer’s] conclusory statement about the box in Cervantes's possession, are insufficient to establish probable cause. . . . This is only reinforced by [the officer’s request that [other officers] develop a lawful reason to stop Cervantes. Had probable cause existed to stop Cervantes, there would have been no need to develop an independent reason to pull Cervantes over.” Id. at *4.

Of Note: This is a good decision on probable cause for an auto search. It is a great decision, however, on the much-abused “community caretaking” exception. Id. at *4. In a compelling analysis, Judge Pregerson explains that the community caretaking exception cannot be a “ruse for general rummaging in order to discover incriminating evidence.” Id. The opinion surveys Ninth authority on the “community caretaking” concept, questions whether the cops in Cervantes even complied with the vehicle code, id. at *6, and ultimately rejects the community caretaking exception because -- in part -- the impoundment and search was a “pretext to search for narcotics.” Id. 

Cervantes is now the lead “community caretaking” opinion: very much worth a close read. 

How to Use: Read Cervantes, think Whren. In Whren, the Supremes endorsed that hated “pretext” concept – OK to use traffic stops as a pretext for what is really a Fourth Amendment search. 517 U.S. 806 (1996). 

In Cervantes, the Ninth weighs the cops’ pretextual stop against the government, in the context of both the probable cause analysis, id. at *4, and in the community caretaking analysis, id. at *6. Take a good look at Cervantes’ handling of Whren when wrestling with a pretext traffic search.  

                                               

For Further Reading: Whren makes for bad searches, protects bad cops, and makes for bad police-community relations. So correctly observes D.C. District Judge James Robertson, in a compelling little summary of what’s wrong with Whren. See “How Whren Protects Pretext,” available here.

Monkey wrench image from http://rantingsonthebay.blogspot.com/2011/08/hot-cocoa-in-august.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org




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Case o' The Week: Another "Black" Eye for ATF, but Conviction Survives -- US v. Black, Outrageous Gov't Conduct, and Stash Houses

The Hon. John T. Noonan, Jr.

“Massively involved in the manufacture of the crime, the ATF's actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court.”

   The good news? Judge Noonan, an experienced and respected Circuit Judge, correctly calls-out this ATF manufactured-crime scheme as a “disgrace.”

  The bad news? He’s writing in dissent. United States v. Black, 2013 WL 5734381 (9th Cir. Oct. 23, 2013), *20 (Noonan, J., dissenting), decision available here.

Players: Decision by Judge Fisher, joined by Judge Graber. Dissent by Judge Noonan.

Facts: ATF brought a Florida snitch to Arizona (where he had never been), and paid him $100 a day to troll seedy Glendale bars to find someone willing to rob a fake stash house. Id. at *2. This trolling snagged Simpson. The snitch introduced this defendant to an undercover agent. Id. Although Simpson first wanted to do the robbery with one fellow “goon,” the agent convinced Simpson to recruit others (including Black). Id. at *4. Simpson bragged about previous such robberies (though no later evidence ever supported these claims). Id. at *3-*4. Simpson’s “crew” ultimately showed up at a warehouse as directed by the undercover agent, were arrested, and were convicted of conspiring to possess cocaine with intent to distribute, and use of a firearm in furtherance of drug trafficking. Id. at *4. (Then-district) Judge Murguia denied the motion to dismiss the indictment for outrageous government conduct. Id. at *1.

Issue(s): Is it outrageous government conduct for agents to manufacture a crime, when there was no showing that “the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent because involved.” Id. at *17 (Noonan, J. dissenting) (citing Bonanno).

Held: “We . . . affirm the denial of the defendants’ motions to dismiss for outrageous government conduct. Although the initiation of the reverse sting operation here raises questions about possible overreaching . . . the defendants have not met the extremely high standard . . . of demonstrating that the facts underlying their arrest and prosecution are so extreme as to violate fundamental fairness or are so grossly shocking as to violate the universal sentence of justice.” Id. at *1 (internal quotations and citations omitted) (emphasis in original). 

  “We also affirm the district court’s rejection of sentencing entrapment.” Id.

Of Note: Much of Black is now standard (albeit disappointing) fare. What seems new is the Court’s tolerance of a crime truly scripted by ATF from start to finish, with defendants ensnared by a paid imported snitch trolling bars in “the bad parts of town.” Id. at *15. In a compelling dissent, Judge Noonan wonders why the majority abandons “good law” – the five-part test of Bonanno. Id. at *17. Judge Noonan worries that there is now no standard to control these reverse sting operations, and flatly rejects the majority’s heavy reliance on the defendants’ (unsubstantiated) boasting to the undercover agent as enough assurance to justify this tactic. Id. at *16-*17. Judge Noonan opines that this decision tolerates “ATF . . . actions [that] constitute conduct disgraceful to the federal government.” Id. at *20 (Noonan, J., dissenting).

How to Use: To be fair, author Judge Fisher is sensitive to dissenting Judge Noonan’s “compelling concerns.” Id. at *12 & n. 13. Judge Fisher hints heavily that the defendants’ video and tape-recorded boasts of prior robberies weighed strongly in the government’s favor, as the Court weighed whether the defendants were actually willing to undertake the robbery without the agents’ goading. Id. at *11. A case on similar facts, without those recordings, might be the stash house conviction that finally rings the outrageous conduct bell.

                                               

For Further Reading: Two weeks before Black was decided, Judge Silverman (joined by Judge Fisher) delivered a terrific stash house entrapment decision. UnitedStates v. Cortes, 2013 WL 5539622 (9th Cir. Oct. 9, 2013), blog here. Although Black involved a snitch, manufactured drug amounts, allegations of sentencing entrapment, a stash house robbery, and important new Apprendi rules in this context, Judge Silverman’s great Cortes case earned nary a cite in Judge Fisher’s Black opinion or in the related mem. dispo (that discusses entrapment instructions at the Black trial). See Black, 2013 WL 5738871 (mem.) A curious omission.

Image of the Hon. Judge John T. Noonan from http://www.flickr.com/photos/cmichel67/8964232516/sizes/o/in/photostream/

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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