United States v. Brown

• Decision Date: 12 March 2018
• Docket Number: No. 12 CR 887,No. 12 CR 632,12 CR 632,12 CR 887
• Citation: 299 F.Supp.3d 976
• Parties: UNITED STATES of America v. Abraham BROWN, et al., United States of America v. Antonio Williams, et al.
• Court: U.S. District Court — Northern District of Illinois

299 F.Supp.3d 976

UNITED STATES of America

v.Abraham BROWN, et al.,

United States of America

v.Antonio Williams, et al.,

No. 12 CR 632

No. 12 CR 887

United States District Court, N.D. Illinois, Eastern Division.

Signed March 12, 2018

Michael James Ferrara, Yasmin Noelle Best, AUSA, United States Attorney's Office, Chicago, IL, Pretrial Services, for United States of America.

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén Castillo

Since 2006, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the "ATF") has engaged in sting operations wherein undercover agents present individuals in this District with an opportunity to rob a fictitious drug stash house. See generally United States v. Mayfield , 771 F.3d 417, 419–24 (7th Cir. 2014) ; United States v. Lewis , 641 F.3d 773, 777 (7th Cir. 2011). These two long-pending consolidated criminal cases, which are part of what is commonly referred to as the "false stash house cases," have served to undermine legitimate law enforcement efforts in this country. It is undisputed that between 2006 and 2013, the defendants charged in this District in the ATF false stash house cases were 78.7 black, 9.6 percent Hispanic, and 11.7 percent white. During this same period, the District's adult population was approximately 18 percent black, 11 percent Hispanic, and 63 percent white.¹ These numbers generate great disrespect for law enforcement efforts. Disrespect for the law simply cannot be tolerated during these difficult times. It is time for these false stash house cases to end and be relegated to the dark corridors of our past. To put it simply, our criminal justice system should not tolerate false stash house cases in 2018.

No one feels stronger than this Court about the problems this District has continuously had with firearm violence. During this Court's three decades of public service, it has consistently pointed out and stressed the deadly toll firearms have taken in Chicago and throughout the country. In fact, during this Court's 11 years of service on the United States Sentencing Commission, it strongly advocated for and accomplished the strengthening of penalties for firearm trafficking.

This Court understands that dedicated federal agents, who often place themselves in life-risking situations, sincerely believed that they would recover deadly firearms from the violent streets of our District in these stash house sting operations. However, to paraphrase Supreme Court Justice Louis Brandeis, to declare that in the administration of the criminal law "the end justifies the means" is to declare that the government may violate fundamental principles of common fairness to secure the conviction of an alleged criminal. See Olmstead v. United States , 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). That is not where our criminal law should be in 2018.² Our society simply cannot accept a "win at all costs" mentality in the delicate world of criminal law enforcement, which is ultimately dependent on proactive citizen involvement.

Our nation's current tragic pattern of weapons violence does not justify the problematic consequences presented by the government's use of false stash house cases as an investigative technique. The answer to our nation's current tragic pattern of weapons violence lies in stricter firearms regulations, especially with respect to automatic, multi-round weapons, and traditional law enforcement investigative techniques. The Court is mindful that this city just passed the 89th anniversary of the infamous St. Valentine's Day massacre, which killed seven Chicagoans with automatic weapon fire. Yet, even during the low points of the great violence caused by the alcohol wars of Prohibition, the ATF did not seek to use "false alcohol warehouse" tactics against any ethnic organized crime groups to promote public safety. Instead, the ATF used solid investigative work to garner the great public respect of the Elliot Ness era that still lives today as the gold standard of law enforcement. This type of work inspires great public cooperation with law enforcement, unlike the false drug stash house cases before the Court.

The problems with the false stash house cases start at the beginning and do not get any better at the end. The typical false stash house case commences with the recruitment of a confidential informant (or "CI"). Most of the time these are individuals with criminal justice problems. In today's world, they tend to be black or Hispanic—two groups that unfortunately dominate both our federal and local American criminal justice systems. These principally minority confidential informants are told by federal agents to tell their friends and associates that there are places with a large quantity of drugs that can be robbed. The hope is that the informants will organize robbery crews that will result in significant arrests of violent criminals and seizure of weapons. Sometimes these cases work out in that fashion.

However, all too often, the government's lucrative trap attracts potential defendants with minor criminal records who might otherwise have never attempted a fictitious crime of this nature. It is no surprise that many of these potential defendants with minor criminal records are also minorities, like their so-called confidential informant friends and associates. At the end, many of these defendants face sentencing guideline ranges that have been significantly inflated by the government's false drug house scenarios. See United States v. Washington , 869 F.3d 193, 222–23 (3d Cir. 2017), cert denied. , ––– U.S. ––––, 138 S.Ct. 713, 199 L.Ed.2d 582 (2018) (remanding for potential post-judgment discovery to challenge a 264–month sentence in fictitious cocaine robbery scenario that triggered a very real 20–year mandatory minimum sentence). The Washington case in particular is representative of a broad point of view held by judges who are held in high esteem by this Court. For example, Judge Theodore McKee, the former Chief Judge of the U.S. Court of Appeals for the Third Circuit, has pointedly noted that "the potential for abuse and mischief that is endemic to fictitious stash-house stings should not be ignored." Id. at 223 (collecting cases). Judge McKee specifically noted that "[a]s is all too often the case, not only do stash-house stings risk ensnaring those who might otherwise not have committed crimes, but also the resulting convictions regularly give rise to particularly dubious applications of the Sentencing Guidelines and mandatory minimum sentences." Id. at 226.

The inherent problems of this District's false stash house cases must be seen through the lens of our country's sad history of racism. Every time our country's law enforcement system can be perceived as contributing to that sad history, our justice system suffers and needlessly alienates minority communities who no longer wish to come forward as witnesses or victims. This Court spent more than ten years working as a member of the United States Sentencing Commission before it could reduce the needless disparity between the penalties for crack and powder cocaine, which were correctly revised because they were perceived as discriminatory toward black defendants. This country cannot afford such self-inflicted wounds in light of its sad history of racism. Viewed in this context, the false stash house cases are no different than the extraordinary powder/crack sentencing disparities that previously existed.

In these two cases, Defendants move to dismiss the indictments filed against them on grounds of racial profiling, arguing that ATF wrongfully targeted black and Hispanic individuals for participation in the stings.³ (United States v. Brown ("Brown "), No. 12 CR 632, R. 518; United States v. Williams ("Williams "), No. 12 CR 887, R. 338.) These cases are deeply troubling and are emblematic of problems that have plagued our criminal justice system for decades. As this Court recognized nearly two decades ago, "[r]acial profiling of any kind is anathema to our criminal justice system because it eviscerates the core integrity that is necessary to operate that system effectively in our diverse democracy." Martinez v. Vill. of Mt. Prospect , 92 F.Supp.2d 780, 782 (N.D. Ill. 2000). These words carry as much force today as they did nearly two decades ago.

These sting operations have used tremendous public resources to investigate and prosecute a large number of principally minority individuals for fictitious crimes. "In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth, it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them[.]" United States v. Black , 750 F.3d 1053, 1057 (9th Cir. 2014). Over and over again, these "tawdry" stings have been "directed at unsophisticated, and perhaps desperate defendants ... who easily take the all-too-tempting bait put out for them by the government." United States v. Conley , 875 F.3d 391, 402–03 (7th Cir. 2017) (citations and internal quotation marks omitted).

Like our colleague in the U.S. Court of Appeals for the Sixth Circuit, this Court finds "the concept of these stash house sting operations at odds with the pride we take in presenting American criminal justice as a system that treats defendants fairly and equally under the law." United States v. Flowers , 712 Fed.Appx. 492, 511, 2017 WL 4785960, at *15 (6th Cir. 2017) (Stranch, J., concurring). It is unclear to the Court why, with all the tactics available to them, federal law enforcement agents would adopt a narrative tinged with racial overtones to conduct sting operations involving serious federal charges. Even if law enforcement agents stay on the right side of the line, this is dangerous territory. It hardly needs to be stated that agents of the federal government should not be injecting the issue of race into...