869 F.3d 193 (3rd Cir. 2017), 16-2795, United States v. Washington

Docket Nº:16-2795
Citation:869 F.3d 193
Opinion Judge:FUENTES, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. ASKIA WASHINGTON, a/k/a SKI, Askia Washington, Appellant
Attorney:Mark S. Greenberg, Esq. [Argued], Blue Bell, PA, Counsel for Appellant. Eric B. Henson, Esq. [Argued], Bernadette McKeon, Esq., Zane David Memeger, Esq., Office of United States Attorney, Philadelphia, PA, Counsel for the Appellee.
Judge Panel:Before: MCKEE, COWEN, and FUENTES, Circuit Judges. McKEE, Circuit Judge, concurring in part and dissenting in part.
Case Date:August 28, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
SUMMARY

Acting on apparent insider information from a drug courier, Washington and his co-conspirators planned to rob a Philadelphia property where they thought 10 kilograms of cocaine were stored. The “stash house” was a trap; the “courier” was an undercover ATF agent. The cocaine did not exist. Washington was convicted of Hobbs Act robbery and drug charges (18 U.S.C. 1951(a) and 21 U.S.C. 846) but... (see full summary)

 
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Page 193

869 F.3d 193 (3rd Cir. 2017)

UNITED STATES OF AMERICA

v.

ASKIA WASHINGTON, a/k/a SKI, Askia Washington, Appellant

No. 16-2795

United States Court of Appeals, Third Circuit

August 28, 2017

Argued February 7, 2017.

On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 2:13-cr-00171-002). District Judge: Honorable Joel H. Slomsky.

Mark S. Greenberg, Esq. [Argued], Blue Bell, PA, Counsel for Appellant.

Eric B. Henson, Esq. [Argued], Bernadette McKeon, Esq., Zane David Memeger, Esq., Office of United States Attorney, Philadelphia, PA, Counsel for the Appellee.

Before: MCKEE, COWEN, and FUENTES, Circuit Judges.

OPINION

FUENTES, Circuit Judge.

Defendant-appellant Askia Washington was ensnared by a " stash house reverse sting" operation--one which hit many of the by-now-familiar beats.1 Acting on what appeared to be insider information from a drug courier, Washington and his three co-conspirators planned to rob a Philadelphia property where they thought 10 kilograms of cocaine were being stored for distribution. But as they discovered on the day of the robbery, the " stash house" was a trap set by law enforcement. Their " courier" was an undercover federal agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ), which had developed the scenario from the ground up. The cocaine did not exist.

Under federal law on conspiracy and attempt, the government could, and did, prosecute the crew as if fantasy had been reality. Washington, the sole member to take his chances at trial, was convicted by a jury of two Hobbs Act robbery charges and two drug charges (18 U.S.C. § 1951(a) and 21 U.S.C. § 846), although he was acquitted on a gun charge.

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined. For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds. Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington, contributing to a total sentence of 264 months in prison--far more than even the ringleader of the conspiracy received. For another, and as Washington claimed on multiple occasions before the District Court--and now again on appeal--people of color are allegedly swept up in the stings in disproportionate numbers.

These elements of controversy are bound up in the three claims Washington now raises on appeal. Two are constitutional claims: Washington challenges his conviction and sentence by arguing that the use of the statutory mandatory minimum term violated his rights to due process, and he also alleges that the attorney who represented him at trial rendered constitutionally ineffective assistance. While stash-house reverse stings can raise constitutional concerns, the use of a mandatory minimum sentence on these particular facts did not deprive Washington of his right to due process. And while this is the rare case where a claim of ineffective assistance of counsel was properly raised on direct appeal instead of through a collateral attack, Washington has not shown prejudice sufficient to call into doubt the integrity of his trial. We thus conclude that both constitutional claims are without merit.

The remaining claim challenges the District Court's decision to deny Washington pretrial discovery on ATF's operations and enforcement statistics. Washington contends that, in denying his motion, the District Court erroneously relied on the hard-to-meet test for " selective prosecution" discovery developed by the Supreme Court in United States v. Armstrong 2 and United States v. Bass

3 (which we will refer to as " Armstrong/Bass " ). He encourages us to follow instead the en banc Seventh Circuit's recent opinion in United States v. Davis,4 which distinguished between claims of selective prosecution and selective law enforcement and appeared to endorse a relaxed discovery standard for the latter.

Like the Seventh Circuit, we conclude that the proposed distinction between enforcement and prosecution is well taken, and that the law supports greater flexibility when the discretionary decisions of law enforcement, rather than those of prosecutors, are targeted by a defendant's request for discovery. We therefore hold that a district court may exercise its discretion to grant limited discovery, or otherwise to conduct in camera analysis of government data before deciding whether limited discovery is warranted. A district court may do so even if a defendant seeking discovery on a selective enforcement claim has not otherwise met his or her full burden under Armstrong/Bass. Because the District Court in this case thought that its discretion was cabined by Armstrong/Bass, and because we cannot otherwise say that the same result would have occurred under the standard we announce today, we will vacate the orders denying discovery and remand for limited post-judgment proceedings. The judgment of conviction and sentence are otherwise unaffected by this remand.

I.

Background

A. The Plan 5

Codefendant and ringleader Dwight Berry came to the attention of the ATF in late 2012, when he made it known that he was interested in conducting robberies of drug users and dealers. In the course of asking around, Berry spoke to an acquaintance who, unbeknownst to him, was an ATF confidential informant (" CI" ). The CI alerted the ATF, which determined that Berry's criminal history fit its required profile for a sting operation and opened an investigation in February 2013, under the supervision of ATF Special Agent John Bowman. From here on out, many of the meetings and phone calls about the developing robbery plan would be surreptitiously recorded for playback at trial.

Meanwhile, the CI kept Berry on the line with word of a connection: a drug-courier friend who frequented a South Philadelphia stash house on his trips to and from New York. When Berry and the CI met again, they were joined by the supposed drug courier--in reality, undercover ATF Special Agent Patrick Edwards, a veteran of over a dozen robbery scenarios. In his role as the courier, Edwards reported seeing over 10 kilograms of cocaine (in the context of cocaine " bricks" ) inside a cooler during a trip to the stash house. Berry indicated that he knew of a crew who might be interested in participating in the robbery and that he was willing to engage in violence if necessary.

Washington first entered the picture about a week and a half after this encounter as one of two members of Berry's proposed robbery crew (the other man, never identified, apparently dropped out of the plan shortly afterwards). At another meeting in early March 2013 with Berry, Edwards, and the CI, Washington probed Edwards about the logistics of the robbery: what level of resistance they could expect, whether the house would be watched from the outside, and so on. Prompted by Edwards, the conspirators also discussed how to move and sell the stolen cocaine.6

In a subsequent phone discussion, Edwards pressed Berry on the professionalism of his crew. Berry, in an attempt to reassure, told Edwards that " [t]his is what [our crew] do[es]." 7 When Edwards singled out Washington for concern over a perceived lack of robbery experience, Berry said that Washington " rock[ed] out" and " put work in," which Edwards interpreted to mean that Washington was some sort of shooter or enforcer.8

On the day of the robbery, Washington and Berry met at Berry's mother's house, where Berry picked up two guns and hid them in an Eggo Waffles box. The group, which had added two new members--codefendants Antonio Ellis and Jermau Johnston--then gathered in the parking lot of the Philadelphia Airport Hilton to review its plan. (Washington's girlfriend was also present, although she did not participate and remained in her parked car.) Edwards went over the salient details once more, emphasizing the 10 kilograms of cocaine and explaining that no money would be found in the house.

In three cars--Berry, Ellis, and Johnston in a minivan; Washington and his girlfriend (the latter driving) following behind in a Chrysler 300; and Agent Edwards bringing up the rear--the crew made its way to the chosen address on Passyunk Avenue in southwest Philadelphia. As the caravan moved in, agents swooped down. All but Berry surrendered; Berry fled on foot but was apprehended shortly afterwards. From the minivan, law enforcement recovered two guns, ammo, gloves, and zip-ties. From Washington's Chrysler 300, they recovered a backpack, gloves, a mask, a lighter, and lighter fluid.

B. Procedural...

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