Sunday, October 21, 2018

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 

Image of “Stash House” from

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


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