U.S. v. Barlow, 01-1273.

• Decision Date: 18 November 2002
• Docket Number: No. 01-1273.,01-1273.
• Citation: 310 F.3d 1007
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrence BARLOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

310 F.3d 1007

UNITED STATES of America, Plaintiff-Appellee, v.Terrence BARLOW, Defendant-Appellant.

No. 01-1273.

United States Court of Appeals, Seventh Circuit.

Argued September 5, 2001.

Decided November 18, 2002.

Eric Sussman(argued), Office of the U.S. Atty., Crim. Div., Chicago, IL, for Plaintiff-Appellee.

Terence MacCarthy, Imani Chiphe(argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before CUDAHY, ROVNER, and DIANE P. WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Terrence Barlow, an African American man, was convicted of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c).Barlow sought to bar his prosecution on grounds of selective enforcement and filed a motion for discovery on this issue under United States v. Armstrong,517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687(1996), which the district court denied.On appeal, Barlow challenges the denial of his Armstrong motion and argues that the jury instructions given at his trial were faulty.We affirm.

Background

On October 29, 1999, Barlow approached the ticket counter at Chicago's Union Station and purchased two one-way tickets to Topeka, Kansas on Amtrak's Southwest Chief, one for himself and one for his friend, William Guidry.Drug Enforcement Administration ("DEA") Transportation Task Force Agents Eric Romano and Patrick Murphy, both working undercover in plain clothes, observed Barlow and Guidry in the waiting area of Union Station.Barlow and Guidry, each carrying a garment bag, kept glancing over their shoulders at the agents and whispering to one another.Their suspicions raised, the two agents followed Barlow and Guidry to the boarding area for the Southwest Chief and asked to speak with them.Romano and Murphy identified themselves as law enforcement officers and briefly interviewed Barlow and Guidry.The agents then asked for and received consent to search Barlow's and Guidry's bags.The agents found in Barlow's garment bag a package containing 485 grams of cocaine base and recovered loaded handguns from both men's luggage; they immediately placed Barlow and Guidry under arrest.

Barlow was indicted on one count of possession with intent to distribute cocaine base and one count of carrying a firearm in relation to a drug trafficking crime.He pleaded not guilty.Guidry did not face federal charges.

In May 2000 Barlow filed a motion for discovery and a hearing under United States v. Armstrong,517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687(1996), which articulates the standard a defendant must meet to obtain discovery on a claim that he was singled out for prosecution based on his race.In order to state a constitutional violation, a selective prosecution claim must meet the "ordinary equal protection standards" established by the Supreme Court's jurisprudence on racial discrimination.Id. at 465, 116 S.Ct. 1480.That is, the defendant must demonstrate that the prosecutorial policy in question had both a discriminatory effect and a discriminatory purpose.Id.

Barlow's motion contended that he had been "pursued, stopped, interviewed, and investigated by Drug Enforcement Administration agents based on his race."In his accompanying discovery request, Barlow requested "the names and races of all individuals stopped by all agents and officers detailed to the DEA Transportation Task Force during the years 1995-2000, including, but not limited to, date and time of stop; length of stop; reason for the stop; location of the stop; and outcome of the stop and name [sic] of all agents or officers involved in the stop; or records from which this data can be obtained."Essentially, Barlow contended that, in singling him out for an interview and search, the two agents had engaged in unconstitutional "racial profiling," a form of selective enforcement.

In support of his Armstrong motion, Barlow submitted the affidavit of Dr. John Lamberth, a psychologist and statistician, who has served as an expert witness on several racial profiling cases.With the goal of substantiating Barlow's claim, Dr. Lamberth supervised a field study of law enforcement activity in Union Station.

From February 28 through March 10, 2000, investigators working for Dr. Lamberth conducted surveillance in Union Station to determine whether race played a role in law enforcement decisions to approach or stop travelers.These investigators counted the total number of passengers who entered the departure gate for the Southwest Chief and the subset of African Americans in that group.They also recorded the race of those individuals from the total number of travelers who were approached by law enforcement agents.

Dr. Lamberth's investigators reported only one incident involving a law enforcement stop or interview.On February 29, 2000, the investigators observed an Amtrak porter point out an African American couple to an Amtrak police officer.The Amtrak police officer spoke to the couple, who were subsequently escorted from the waiting area by two uniformed officers and two plain-clothes officers.The investigators did not see law enforcement officials approach or interview any other passengers at any other time during their surveillance.

The only individuals known to have been approached by law enforcement officials in Union Station — Barlow and Guidry, and the couple — were African American.Dr. Lamberth opined that this pattern of law enforcement stops of individuals boarding the Southwest Chief at Union Station suggested that law enforcement agents could be engaging in racial profiling when approaching and stopping travelers.

The district court denied Barlow's motion without a hearing, finding "statistically indefensible" Dr. Lamberth's inclusion of Barlow and Guidry in the data pool for his ten-day study of law enforcement behavior in Union Station.Barlow's case proceeded to trial, and the jury returned a verdict of guilty on both counts.Barlow was sentenced to 151 months' imprisonment for possession with intent to distribute and 60 months' imprisonment on the firearm charge, to be served consecutively.

Analysis

A.Selective Enforcement Claim

Barlow first argues that the district court erred in denying his motion for discovery because he produced sufficient evidence to warrant further investigation of his claim that the DEA agents had engaged in racial profiling.We review the denial of a motion for discovery in a criminal case for abuse of discretion.United States v. Bastanipour,41 F.3d 1178, 1181(7th Cir.1994).

Barlow's motion for discovery invoked Armstrong, in which the Supreme Court defined the showing necessary for a defendant to obtain discovery on a selective prosecution claim.517 U.S. at 465, 116 S.Ct. 1480.Barlow complains not of selective prosecution, but of racial profiling, a selective law enforcement tactic.But the same analysis governs both types of claims: a defendant seeking discovery on a selective enforcement claim must meet the same "ordinary equal protection standards" that Armstrong outlines for selective prosecution claims.SeeArmstrong,517 U.S. at 465, 116 S.Ct. 1480;Chavez v. Ill. State Police,251 F.3d 612, 635-36(7th Cir.2001);United States v. Hayes,236 F.3d 891, 895(7th Cir.2001).To prevail on his motion, therefore, Barlow needed to demonstrate that the agents' actions had a discriminatory effect and that the agents had a discriminatory purpose when they approached him in Union Station.Armstrong,517 U.S. at 465, 116 S.Ct. 1480;Chavez,251 F.3d at 635-36;Hayes,236 F.3d at 895.

Law enforcement has a racially discriminatory effect when members of a protected racial group — in this case African Americans — receive less favorable treatment than nonmembers.SeeArmstrong,517 U.S. at 465, 116 S.Ct. 1480;Chavez,251 F.3d at 636;Hayes,236 F.3d at 895.In other words, to establish discriminatory effect, an African American claimant must demonstrate that a law or regulation was enforced against him, but not against similarly situated individuals of other races.Armstrong,517 U.S. at 465, 116 S.Ct. 1480;Chavez,251 F.3d at 636;Hayes,236 F.3d at 895.Barlow contended that the DEA agents had enforced the law selectively by choosing to approach, interview, and search African Americans but not Caucasians, i.e., by engaging in racial profiling.To obtain discovery on this claim, Barlow was required to present evidence that DEA agents chose not to approach whites to whom he was similarly situated.Armstrong,517 U.S. at 468-69, 116 S.Ct. 1480;Chavez,251 F.3d at 638;Hayes,236 F.3d at 895.A finding that DEA agents did not approach whites who rode the Southwest Chief as frequently as African American travelers would not automatically establish that the agents' investigatory tactics were discriminatory; Barlow needed to show also that at least some of these whites not approached were similarly situated to him.Armstrong,517 U.S. at 468-69, 116 S.Ct. 1480;Chavez,251 F.3d at 638;Hayes,236 F.3d at 895.

Barlow introduced Dr. Lamberth's statistical analysis in an attempt to demonstrate that the DEA agents had a practice of approaching African American travelers but not similarly situated white travelers.Statistical data has proven a useful tool in some high-profile state racial profiling cases.See, e.g., State v. Soto,324 N.J.Super. 66, 734 A.2d 350(1996)(statistical evidence that blacks were 4.85 times more likely than whites to be stopped for traffic violations established prima facie case of discriminatory effect).And although statistics alone rarely establish an equal protection violation, they may be sufficient to establish the discriminatory effect prong of the Armstrong test.Chavez,251 F.3d at 640.But such statistics must be relevant and reliable, id., and the ones Barlow provided were neither.

Dr. Lamberth's statistical...