U.S. v. Armstrong
| Decision Date | 20 April 1994 |
| Docket Number | Nos. 93-50031,93-50057,s. 93-50031 |
| Citation | 21 F.3d 1431 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant, and Robert Rozelle, Aaron Hampton; Freddie Mack; Shelton Auntwan Martin, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lawrence H. Cho and Miriam A. Krinski, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellant.
David Dudley, Los Angeles, CA, for defendant-appellee Armstrong.
Timothy C. Lannen, Los Angeles, CA, for defendant-appellee Hampton.
Barbara O'Connor, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellee Martin.
Joseph F. Walsh, Los Angeles, CA, for defendant-appellee Rozelle.
Appeal from the United States District Court for the Central District of California.
Before: HARLINGTON WOOD, Jr., * REINHARDT, and RYMER, Circuit Judges.
The opinion and dissent filed January 21, 1994, slip op. 599, and appearing at 14 F.3d 1387 (9th Cir.1994), are withdrawn. A new opinion and dissent are filed in their place, and the petitions for rehearing and suggestions for rehearing en banc are dismissed as moot without prejudice.
A federal grand jury indicted defendants Christopher Armstrong, Aaron Hampton, Freddie Mack, Shelton Martin, and Robert Rozelle for conspiring to distribute cocaine base in violation of 21 U.S.C. Sec. 846 (1988). Some of the defendants also were indicted on substantive cocaine base charges under 21 U.S.C. Sec. 841(a)(1) (1988), and using a firearm in connection with drug trafficking under 18 U.S.C. Sec. 924(c) (1988 & Supp. III 1991). The defendants moved for discovery on whether the government selected the defendants for prosecution because of their race, and the district court granted the motion. After denying the government's motion to reconsider, the district court dismissed the indictments as a sanction for failure to comply with the discovery order, but stayed the execution of the dismissals pending appeal by the government.
We have jurisdiction to hear the government's appeal from the final judgment of the district court pursuant to 28 U.S.C. Sec. 1291 (1988) and 18 U.S.C. Sec. 3731 (1988). For the reasons stated, we reverse.
A task force composed of Inglewood Narcotics Division detectives and Bureau of Alcohol, Tobacco, and Firearms (ATF) agents used three confidential informants from February through April of 1992 to infiltrate a cocaine base 1 distribution ring. On seven occasions from February 13, 1992, to April 6, 1992, the informants purchased cocaine base totalling approximately 124.3 grams from the defendants. The informants also reported the use of multiple firearms by the defendants during the sales.
On April 8, 1992, task force police executed search warrants on the hotel room in which the informants made their purchases, as well as on residences belonging to some of the defendants. The officers arrested defendants Armstrong and Hampton in the hotel room, discovering 9.29 additional grams of cocaine base and a loaded gun. The officers subsequently arrested defendants Mack, Martin, and Rozelle pursuant to bench warrants the district court issued. Ultimately, the task force police seized multiple firearms and approximately 135 grams of cocaine base as a result of the investigation. All of the defendants are black.
The government sought indictments against all defendants in federal court. On April 21, a grand jury indicted all defendants for conspiracy to distribute cocaine base under 21 U.S.C. Sec. 846. The indictment also charged some defendants with substantive cocaine base violations of 21 U.S.C. Sec. 841(a)(1), and usage of a firearm in connection with drug trafficking in violation of 18 U.S.C. Sec. 924(c). The federal statutes at issue provide for more stringent penalties than their California counterparts. 2
On July 20, 1992, defendant Martin filed a Motion for Discovery and/or Dismissal of Indictment for Selective Prosecution, claiming that the government was prosecuting him because of his race. Defendants Armstrong, Mack, Hampton, and Rozelle all timely joined defendant Martin's motion. The district court held a hearing on the motion on September 8, 1992.
At the hearing, the defendants offered as evidence of selective enforcement an affidavit from a paralegal employed by the Office of the Federal Public Defender. The affidavit, which included a statement and a chart, asserts that in the 24 cases closed by the Federal Public Defender's Office in 1991 involving cocaine base violations of 21 U.S.C. Sec. 841 and/or 21 U.S.C. Sec. 846, the defendant in each case was black. The defendants for some reason did not offer an affidavit from the Federal Public Defender or any supervising attorney, or for that matter any other evidence at all, but instead relied solely on the affidavit from the paralegal employee. As a result, the government contended that the defendants failed to meet the showing required to compel discovery.
Nevertheless, on September 8, 1992, the district court disagreed with the government and granted the motion for discovery on the issue of selective prosecution. The district court ordered the government to: (1) provide a list of all cases from the prior three years in which the government charged both cocaine base offenses and firearms offenses; (2) identify the race of the defendants in those cases; (3) identify whether state, federal, or joint law enforcement authorities investigated each case; and (4) explain the criteria used by the U.S. Attorney's Office for deciding whether to bring cocaine base cases federally.
On September 16, 1992, the government filed a motion for reconsideration of the discovery order. In support of its motion for reconsideration, the government submitted sworn declarations of a Special Agent of the Drug Enforcement Administration with 21 years experience, a Special Agent of the Bureau of Alcohol, Tobacco, and Firearms with three years experience at the ATF and another three years as a narcotics officer, a narcotics detective from the Inglewood Police Department with 10 years on the force and three years experience in the narcotics unit, and two experienced Assistant United States Attorneys stating that: (1) the Office of the Federal Public Defender represented at least five non-black cocaine base defendants during the relevant time period; (2) the government prosecuted many non-black cocaine base defendants during 1991, the period at issue in the report prepared by the paralegal employed by the Office of the Federal Public Defender; (3) the county district attorney's offices prosecute many black cocaine base offenders; (4) the government based its decision to charge on the existence of federal firearms and narcotics violations that met the guidelines of the United States Attorney's Office, the strength of the evidence, the deterrence value, the federal interest, the suspects' criminal history, and other race-neutral criteria; and (5) socio-economic factors account for the prevalence of drugs in certain communities, as illustrated by black gangs in the south-central Los Angeles area predominantly controlling the supply of cocaine base.
In response to the government's motion for reconsideration, the defendants offered two additional declarations. The first, made by one of the defense attorneys, states that she had spoken with a halfway house intake coordinator who told her that in his experience in treating cocaine base addiction, the number of Caucasian and minority users and dealers is equal. The other declaration, made by another defense attorney, asserts that (1) he has represented only blacks in federal court on cocaine base charges; (2) he has never heard of non-blacks being prosecuted in federal court on cocaine base charges; and (3) in his conversations with unnamed state court judges, prosecutors, and defense attorneys, he has come to believe that the state prosecutes many non-black cocaine base offenders in state court. The defendants also submitted an article from the Los Angeles Times, which contends that blacks disproportionately commit cocaine base offenses. See Jim Newton, Harsher Crack Sentences Criticized as Racial Inequality, Los Angeles Times, Nov. 23, 1992, at A1, A20.
After a hearing on the motion for reconsideration, on December 29, 1992, the district court denied the motion. The government notified the district court on January 5, 1993 of its intention to challenge the discovery order and the denial of the reconsideration motion. As a sanction for failure to comply with the order, the district court dismissed the indictments of all defendants. The district court stayed the execution of the dismissals pending this appeal.
The parties did not discuss the relationship between two decisions of this court published within days of each other, United States v. Redondo-Lemos, 955 F.2d 1296 (9th Cir.1992), which was finalized on May 11, 1992, and United States v. Bourgeois, 964 F.2d 935 (9th Cir.1992), decided on May 19, 1992. Bourgeois and Redondo-Lemos, both thoughtful opinions, examined somewhat differently the process by which defendants can obtain discovery on a claim for selective prosecution.
In Redondo-Lemos, the defendant was caught transporting 695 pounds of marijuana into the United States from Mexico. The defendant pled guilty to a violation of 21 U.S.C. Sec. 841(a)(1) in exchange for the government's promise to recommend that the district court impose only the mandatory minimum sentence of five years imprisonment. The district court, without any motion by the defendant, held that the United States Attorney's Office was selectively enforcing the drug...
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U.S. v. Armstrong
...not prosecuted, and that other evidence adduced by Armstrong was too flimsy to be accorded any weight. United States v. Armstrong, 21 F.3d 1431 (9th Cir.1994). We went en banc in part to resolve the tension between Bourgeois ("colorable basis" founded on specific facts required for discover......
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U.S. v. Armstrong
...must "`provide a colorable basis for believing that `others similarly situated have not been prosecuted'" to obtain discovery. 21 F. 3d 1431, 1436 (1994) (quoting United States v. Wayte, 710 F. 2d 1385, 1387 (CA9 1983), aff'd, 470 U. S. 598 (1985)). The Court of Appeals voted to rehear the ......
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U.S. v. Blackley
...prosecution implies that a selection has taken place." Armstrong, 517 U.S. at ___, 116 S.Ct. at 1488 (citing United States v. Armstrong, 21 F.3d 1431, 1436 (9th Cir.1994)). This court has found at least one claim analogous to Mr. Blackley's. In United States v. Mavroules, 819 F.Supp. 1109, ......
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Selective prosecution and the federalization of criminal law: the need for meaningful judicial review of prosecutorial discretion.
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