Conley v. United States

• Decision Date: 21 July 2021
• Docket Number: No. 20-2439,20-2439
• Citation: 5 F.4th 781
• Parties: Tracy CONLEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

5 F.4th 781

Tracy CONLEY, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 20-2439

United States Court of Appeals, Seventh Circuit.

Argued May 26, 2021

Decided July 21, 2021

Michael T. Brody, Leigh J. Jahnig, Attorneys, Jenner & Block LLP, Chicago, IL, for Petitioner-Appellant.

Andrianna D. Kastanek, Meghan Morrissey, Attorneys, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before Easterbrook, Rovner, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Tracy Conley has invoked 28 U.S.C. § 2255 to vacate convictions arising from his participation in a "fake stash house" sting orchestrated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Conley asserts that his convictions were obtained unlawfully through racially selective law enforcement and outrageous government conduct, in violation of his Fifth Amendment equal protection and due process rights, respectively. The district court denied Conley's motion, and we affirm. We disagree with the district court's decision to require "clear and convincing" evidence for Conley's selective enforcement claim, but his evidence cannot meet even the less-demanding standard of preponderance of the evidence. This circuit has not recognized a defense for "outrageous government conduct," and even if we did, ATF's conduct in Conley's case would not satisfy the standard other circuits have applied. Regardless of the wisdom of this fake stash house sting, it did not violate Conley's constitutional rights.

I. Background

Our opinion affirming Conley's convictions on direct appeal sets out the facts of his case. United States v. Conley , 875 F.3d 391 (7th Cir. 2017). Here we focus on the facts relevant to his selective enforcement and outrageous conduct theories. On November 1, 2011, Conley found himself stranded at a gas station without money for gas. There he ran into three acquaintances—Anthony Adams, David Flowers, and Anwar Trapp—who successfully recruited Conley to help rob a cocaine stash house later that day. Adams, David, and Trapp had themselves been recruited recently for the robbery by David's brother, Myreon Flowers.

Myreon had been tipped off a week earlier about the supposed stash house by a man claiming to be a disgruntled courier for a drug cartel. The courier told Myreon that the stash house contained fifty kilograms of cocaine, and that to steal it, Myreon should assemble an armed team to overpower the cartel guards. Myreon jumped at the opportunity, bragging about how easy the robbery would be compared to others he had pulled off. Myreon quickly assembled a crew, recruiting his brother David Flowers and their cousins Anwar Trapp and Dwayne Jones. David also recruited Anthony Adams, who in turn suggested recruiting Conley.

The supposed cartel courier was an undercover ATF agent. There was no stash house or real drugs, just a convincing ruse designed to ensnare Myreon and his crew in a conspiracy to steal fifty kilograms of cocaine at gunpoint. It turns out the FBI had originally focused on Myreon through an investigation into the Belizean Bloods, a Chicago street gang. Confidential sources had told the FBI that Myreon was an active member of a Belizean Bloods armed robbery crew, as well as a murder suspect. Based on that information, the FBI had referred Myreon to the ATF as a potential target for a stash house sting, and the ATF obliged.

On November 1, Myreon's group, including Conley, met in Adams's basement to plan the robbery. Conley not only agreed to participate but volunteered for a frontline role as one of two armed robbers who would confront the guards and steal the cocaine. Conley even asked the group whether they should kill the cartel courier (i.e., the undercover agent) but fortunately was told not to harm him. Later that day, the group met the undercover agent at a secluded parking lot near the supposed stash house. Conley and the others were dressed in dark clothing, wearing latex gloves, and equipped with walkie-talkies and a toolbox containing three guns for the robbery. Myreon told Conley, Adams, and another member to get into a van that would take them to the stash house for the robbery. As soon as they were all in the van, the undercover agent gave the arrest signal.

A jury convicted Conley of conspiring and attempting to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 ; possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) ; and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Conley to fifteen years in prison, which included a ten-year mandatory minimum based on the large amount of non-existent drugs he agreed to steal—an amount the ATF made up just to trigger that ten-year minimum.

On direct appeal, we affirmed the denial of Conley's motion for acquittal. United States v. Conley , 875 F.3d 391 (7th Cir. 2017). We found that sufficient evidence supported his convictions, id. at 397–402, and that he could not argue entrapment because the ATF recruited neither Conley nor those who recruited him. Id. at 402.

Conley then filed his § 2255 motion in the district court seeking to set aside his convictions on two new grounds. First, he asserts that federal agents intentionally targeted him for the sting because he is Black, in violation of the equal protection component of the Fifth Amendment. Second, Conley asserts that even though he cannot show entrapment, the ATF's conduct in executing this fake stash house sting was so outrageous that prosecuting him violated his due process rights. The district court denied Conley's § 2255 motion but granted a certificate of appealability on both claims. Conley v. United States , No. 18 C 7122, 2020 WL 4226676, at *8 (N.D. Ill. July 23, 2020).

Judge Coleman denied Conley's selective-enforcement claim by relying exclusively on then-Chief Judge Castillo's denial of a nearly identical claim brought by fake stash house defendants in United States v. Brown , 299 F. Supp. 3d 976 (N.D. Ill. 2018). See Conley , 2020 WL 4226676, at *4–6. Judge Coleman certified the issue for appeal, however, "based on the uncertainty of the applicable evidentiary standard" governing a selective-enforcement claim in this circuit. Id. at *6. As for outrageous government conduct, Judge Coleman denied Conley's claim because this circuit has repeatedly rejected the existence of such a defense. Id. at *3–4. Again, however, Judge Coleman certified Conley's appeal on this issue: "If there ever was a situation in which the conduct of law enforcement agents was so outrageous that a criminal defendant's due process rights have been violated, this is it." Id. at *4.

While this appeal was pending, Judge Coleman granted Conley's motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). Conley's release from prison does not remove our jurisdiction over his § 2255 motion or render it moot. A movant under § 2255 must be "in custody." 28 U.S.C. § 2255(a). But Conley "was in custody when he filed [his] motion" for § 2255 relief, "and that is all that is required...." Torzala v. United States , 545 F.3d 517, 521 (7th Cir. 2008), citing Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Moreover, despite his release from prison, Conley is still subject to a three-year term of supervised release, which is "a form of custody," Clarke v. United States , 703 F.3d 1098, 1101 (7th Cir. 2013), and carries collateral consequences sufficient to prevent his motion from being moot. See Spencer , 523 U.S. at 7, 118 S.Ct. 978 ("An incarcerated convict's (or a parolee's ) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole ) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.") (emphases added).

II. Controversy Surrounding Fake Stash House Stings

Before turning to the merits, we provide some background on the ATF's controversial and now-abandoned practice of conducting fake stash house stings in Chicago. As we noted in Conley's direct appeal, there is a "substantial body of criticism of similar stash house cases both from this circuit and others." Conley , 875 F.3d at 402. We have described the tactic as " ‘tawdry,’ noting in particular how these operations are ‘directed at unsophisticated, and perhaps desperate defendants’ like Conley who easily take the all-too-tempting bait put out for them by the government." Id. at 402–03, quoting United States v. Lewis , 641 F.3d 773, 777 (7th Cir. 2011).

These stings are troubling in several ways. First, the agents in these stings blindly encourage the initial target to rope in a large group of co-conspirators who otherwise may have stayed out of trouble. See United States v. Washington , 869 F.3d 193, 225 (3d Cir. 2017) (McKee, J., dissenting) (defendant "was not even the intended target of this operation. Despite his criminal past, [he] was not necessarily destined to commit future crimes.... ‘we don't want the government pushing [criminals] back into a life of crime.’ "), quoting United States v. Kindle , 698 F.3d 401, 415–16 (7th Cir. 2012) (Posner, J., dissenting), on reh'g en banc sub nom. United States v. Mayfield , 771 F.3d 417 (7th Cir. 2014).

Second, the vast majority of defendants caught in these stings have been poor people of color. See Brown , 299 F. Supp. 3d at 986 ("These sting operations have used tremendous public resources to investigate and prosecute a large number of principally minority individuals for fictitious crimes."); see also United States v. Black , 750 F.3d 1053, 1057 (9th Cir. 2014) (Reinhardt, J., dissenting from denial of rehearing en banc) ("In this era of mass incarceration, in which we already lock up more of our population than any other...