U.S. v. Hare

• Decision Date: 29 March 2004
• Docket Number: No. 4:03CR3006.,4:03CR3006.
• Citation: 308 F.Supp.2d 955
• Parties: UNITED STATES of America, Plaintiff, v. Leonard W. HARE; Donald P. Fox; and Christopher W. Edwards, Defendants.
• Court: U.S. District Court — District of Nebraska

308 F.Supp.2d 955

UNITED STATES of America, Plaintiff, v. Leonard W. HARE; Donald P. Fox; and Christopher W. Edwards, Defendants.

No. 4:03CR3006.

United States District Court, D. Nebraska.

March 29, 2004.

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Lynnett M. Wagner, Assistant United States Attorney, Lincoln, NE, for Plaintiff.

Scott A. Calkins, Byam, Hoarty Law Firm, Omaha, NE, John C. Vanderslice, Assistant Federal Public Defender, Lincoln, NE, Arthur R. Langvardt, Langvardt, Valle Law Firm, Hastings, NE, for Defense.

MEMORANDUM AND ORDER

KOPF, District Judge.

The defendants, having been found in a vehicle with 100 kilos or more of marijuana, attack the character of the state trooper, Robert Pelster, who stopped their vehicle and found the drugs. Magistrate Judge Piester and I had previously ruled, after a full evidentiary hearing, that the stop and subsequent search and arrest (some of which was preserved on video tape) fully complied with the Fourth Amendment. The defendants, through their most able and inventive counsel, have now filed additional motions attempting to get the case thrown out or the evidence suppressed on other grounds.

Summarized and condensed, the defendants now claim that Pelster, a white man, unlawfully stopped them because they are black, and because they were driving a car with California license plates. Thus, they claim that their right to equal protection of the laws, under the Fourteenth Amendment,¹ and their right to travel, under the First Amendment, were violated. As a consequence, the defendants have moved to dismiss the case or suppress the evidence.²

Judge Piester granted the defendants wide-ranging discovery of records maintained by the Nebraska State Patrol. I later found that much of the discovery had been obtained improperly through ex parte applications for subpoenas duces tecum.³ United States v. Fox, 275 F.Supp.2d 1006 (D.Neb.2003) (Federal Rule of Criminal Procedure 17(c) does not ordinarily permit the use of ex parte applications by the government or the defense for subpoenas seeking pretrial production of documents unless the sole purpose of seeking the documents is for use at trial; in other words, ex parte applications should not ordinarily be used when the purpose of the document production is to engage in pretrial litigation) (collecting cases). Nevertheless, by then "the cat was out of the bag," and, as Judge Piester's evidentiary hearing was drawing near, I permitted additional discovery to proceed, albeit subject to a protective order. United States v. Fox, 276 F.Supp.2d 996 (D.Neb.2003) (after hearing both parties, granting the defendants additional discovery based upon a document that had been improperly obtained by a prior ex parte application for a subpoena duces tecum). As a result, the defendants were provided with most of the documents they sought.

After a long evidentiary hearing, generating more than 1000 pages of transcript, and in an exceedingly thoughtful 69-page report and recommendation, Judge Piester advises me to deny the defendants' motions. The defendants have filed objections to that report and recommendation.⁴ Although essentially protective, the government has also filed an objection.

After careful consideration, and de novo review, I agree with, and will adopt, Judge Piester's ultimate findings of fact, conclusions of law, and recommendations,⁵ and I will deny the defendants' objections. I also decide that the defendants failed to make a timely preliminary showing that their claims had merit. Hence, while my additional decision does not change the result, but rather buttresses Judge Piester's ruling, I will grant a portion of the government's objection. Judge Piester need not have proceeded to hold an extensive evidentiary hearing or grant the defendants "discovery." Instead, he should have recommended dismissal of the motions.

I will therefore deny the defendants' motions. Because an enormous amount of time and effort has already been invested in this relatively simple case, and Judge Piester has done a superb job of resolving the motions, my remarks will be brief.

I. The Government's Objection

The government mainly argues that while Judge Piester was ultimately correct in his ruling, he should never have allowed the defendants to engage in the broad discovery they were granted. Rather, the government argues that once the motions were filed, and before any discovery at all was allowed, Judge Piester should have decided whether the defendants had made the showing required by United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (in a case of alleged selective prosecution, in order to prevail on the merits the defendant must demonstrate that the action had a discriminatory effect and was motivated by a discriminatory purpose; in order to establish an entitlement to discovery in such a case, the defendant must first produce credible evidence that similarly situated defendants of other races could have been prosecuted but were not; evidence that every one of the 24 crack cocaine possession or conspiracy cases prosecuted in one court involved black defendants was not sufficient to warrant discovery). The government goes on to argue that had Judge Piester made this analysis, he would have found that the defendants had failed to make the required preliminary showing, and, accordingly, that the extensive discovery and the equally extended evidentiary hearing that followed were both unnecessary and improper. According to the government, Judge Piester should have simply recommended denial of the motions without further action. I agree with the government.

Despite the fact that Armstrong involves a selective prosecution case, the Eighth Circuit has applied Armstrong in selective enforcement cases like this one. See United States v. Bell, 86 F.3d 820, 822-23 (8th Cir.1996) (applying Armstrong in a criminal case where a black defendant claimed selective enforcement of Iowa's bicycle headlamp law; finding that even though all the arrests in this area were of black people, the defendant failed to show both that the enforcement had a discriminatory effect and that the enforcement was motivated by a discriminatory purpose). See also Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir.2003) (in a civil case where a black driver alleged that she was stopped by a white deputy sheriff for reasons of race instead of crossing the center line of the highway as claimed by the deputy, the court applied Armstrong and reversed the district court's failure to grant summary judgment for the defendant; Chief Judge Loken wrote: "When the claim is selective enforcement of the traffic laws or a racially-motivated arrest, the plaintiff must normally prove that similarly situated individuals were not stopped or arrested in order to show the requisite discriminatory effect and purpose.") Other courts have applied Armstrong to selective enforcement situations and have held that no discovery should be permitted unless the defendant can make a threshold showing that both the "effect" and "intent" prongs of Armstrong might reasonably be said to exist. See, e.g., United States v. Barlow, 310 F.3d 1007, 1012 (7th Cir.2002) (in a criminal case involving a black defendant who was arrested in a train station and charged with a federal drug crime, the Seventh Circuit held it was proper to deny discovery where, despite a weak statistical study showing that only blacks were intercepted at the train station, the defendant was unable to make a threshold showing, based upon reliable information, to meet both prongs of Armstrong; the court said: "Without evidence of both discriminatory effect and discriminatory intent on the agents' part, [the defendant] could not make the threshold showing required in Armstrong; the district court therefore did not abuse its discretion in denying [the defendant's] motion for discovery."), cert denied, 538 U.S. 1066, 123 S.Ct. 2236, 155 L.Ed.2d 1123 (2003); United States v. Alcaraz-Arellano, 302 F.Supp.2d 1217 (D.Kan.2004) (in a drug case involving a Hispanic defendant who was seeking discovery relating to his claim that he was stopped in his auto as a result of racial profiling the court held, pursuant to Armstrong, that the defendant had the preliminary burden to present evidence tending to show both disparate effect and discriminatory intent in order to obtain discovery; despite the fact that the record showed the deputy stopped more Hispanics than other officers in the sheriff's department, this evidence was insufficient to entitle the defendant to discovery). In short, Armstrong should have been initially applied by Judge Piester before he authorized the wide-ranging discovery permitted in this case.

By the time the defendants filed their selective enforcement motions, Judge Piester had heard the evidence on the motions to suppress regarding alleged Fourth Amendment violations. Nothing in that evidence or in the new motions or in the briefs in support of the new motions showed anything remotely probative of the assertion that Trooper Pelster's actions had both a discriminatory effect and were motivated by a discriminatory purpose.

Indeed, the only evidence the defendants relied upon related to the fact that in this case Pelster called for a drug dog, and the fact that in the majority of the 12 or 13 other cases where Pelster called for that same dog ("Duke"), the traffic offenders were members of a minority group.⁶ Such evidence is plainly insufficient. Although other explanations could be provided, four reasons illustrate this insufficiency.

First, given the strong evidence⁷ that had already been presented to Judge Piester at the time the defendants filed their new motions,⁸ which evidence clearly established that Pelster's actions in stopping, searching, and arresting these defendants were objectively justified...