United States v. Ford
| Decision Date | 22 August 2016 |
| Docket Number | No. 3:14-cr-00045-HZ,3:14-cr-00045-HZ |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TAQUARIUS KAREAM FORD, Defendant. |
| Court | U.S. District Court — District of Oregon |
Leah K. Bolstad
United States Attorney's Office, District of Oregon
Portland, OR 97204
Glen H. Ujifusa
Multnomah County District Attorney's Office
600 Multnomah County Courthouse
1021 SW 4th Ave.
Portland, OR 97204
Attorneys for Plaintiff
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Laurie Bender
Laurie Bender, PC
735 SW Fifth Avenue
2nd Floor
Portland, OR 97204
Attorney for Defendant
Defendant Taquarius Ford is a black male is charged with three counts related to his alleged involvement in sex trafficking, including two counts of sex trafficking by force, fraud, and coercion. Ford believes his charges result from the selective enforcement and prosecution of black males for sex trafficking in the District of Oregon. Ford moves the Court for an order directing the United States Attorney's Office and its agents to disclose and produce materials, documents, and information related to the enforcement and prosecution of federal and state sex trafficking and prostitution offenses. Ford offers statistics and other information about disparate prosecution and sentencing of black males for all crimes generally, and specific information regarding sex trafficking prosecutions in Oregon. But none of this information is enough to entitle Ford to discovery on his claim. The Supreme Court set a clear standard for such discovery in United States v. Armstrong, and because Ford has not shown some evidence of discriminatory effect or discriminatory intent on the part of law enforcement or the United States Attorney's Office, his motion is denied.
Ford is charged with three counts of sex trafficking and conspiracy charges alleging force, fraud, and coercion in violation of 18 USC §§1591(a)(1) and (b)(1) and §§1594(a) and (c). Ford is also charged with Obstruction of the Enforcement of 18 USC §1591(d), and Tampering with a Witness, Victim or Informant under 18 USC §§1512(b)(1) and 1512(b)(3). There is also acriminal forfeiture allegation. Ford's Co-defendant Konia Prinster, a white female, is a cooperating witness.
Ford contends the requested discovery will show that he and black males in general, are not only prosecuted far more often under felony sex trafficking statutes, but also that similarly situated non-black, non-male persons are either not targeted at all or are prosecuted under statutes and plea agreements that do not impose lengthy or mandatory minimum sentences. Specifically, Ford alleges that "law enforcement and the Government selectively targeted, arrested, charged, convicted, and sentenced black males for serious sex trafficking charges, while typically giving the white male buyer, white female prostitute or 'madam,' and, to a far lesser extent, black female prostitute and or 'madam,' arrestees diversion with dismissals, rehabilitation, and/or, in the more egregious cases, probation." Memorandum in Support of Motion for Discovery on the Issue of Racial Profiling and Selective Enforcement and/or Prosecution at 10 ("Def. Memo."), ECF 170.
As delegates of the Executive, enforcement and prosecution of the nation's criminal laws rest on the discretion of United States Attorneys. United States v. Armstrong, 517 U.S. 456, 464 (1996). A United States Attorney violates the Constitution by charging a defendant based on "an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456 (1962). "[I]n the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). To allow discovery for a selective prosecution claim is to "exercise judicial power over a special province of the Executive." Armstrong, 517 U.S. at 464 (citing Heckler v. Chaney, 470 U.S. 821, 832 (1985)) (internal quotations omitted).
The standard controlling a motion seeking discovery for a selective prosecution or enforcement claim is not found in the Federal Rules. Specifically, Rule 16 of the Federal Rules of Criminal Procedure is not applicable in such motions because Rule 16 only applies to discovery of documents that are "material to the preparation of the . . . defense" or "intended for use by the government as evidence in chief . . . ." Armstrong, 517 U.S. at 462. "[A] selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." Id. at 463.
For a selective-prosecution claim to succeed on the merits, a defendant must show (1) discriminatory effect and (2) discriminatory purpose or intent. Id. at 465. On the first element, Armstrong also requires evidence of similarly situated persons being treated differently. Id. at 470. This is necessary to balance "the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution." Id.
The "rigorous standard for the elements of a selective-prosecution claim [] require a correspondingly rigorous standard for discovery in aid of such a claim." Id. Thus, to win a motion for discovery, a defendant must produce "some evidence tending to show the existence of the essential elements of the defense," which include both "discriminatory effect and discriminatory intent." Id.1
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"To meet the first requirement, of discriminatory effect, [defendant] must show that similarly situated individuals of a different ethnic origin were not prosecuted." United States v. Arenas-Ortiz, 339 F.3d 1066, 1068 (9th Cir. 2003) (internal quotations omitted); see also Armstrong, 517 U.S. at 464-465 (). Armstrong recognized this as a high burden, but "if the claim of selective prosecution [is] well founded, it should not [be] an insuperable task to prove that persons of other races [are] being treated differently." Id. at 470.
Ford offers numerous statistics purporting to show that "law enforcement and the Government selectively targeted, arrested, charged, convicted, and sentenced black males . . . ." Def. Memo at 10. Ford presents a wide range of statistics, beginning with national statistics related to crime in general. Ford points out that 52.2% of country-wide death penalty defendants between 1972 and 2004 were black, and 31.5% of defendants convicted of crimes requiring mandatory minimum sentences in 2010 were black. Def. Memo. at 19, 20. Narrowing his focus, Ford then offers Oregon statistics relating to prosecutions of black males under a wide variety of criminal statutes, with brief attention paid to sex trafficking specifically. Ford notes that 85% of federally indicted sex trafficking defendants in Oregon between 2009 and 2015 were black, and (from an admittedly small sample of 16 individuals) 93.75% of sex trafficking defendants in Multnomah County between 2010 and 2014 were black. Id. at 32, 35. These statistics do notshow whether, in the District of Oregon, black males are selectively prosecuted for sex trafficking.
It is well-established that statistical evidence of racial disparity is insufficient to establish any element of a discrimination claim. See, e.g., Armstrong, 517 U.S. at 459-460 (); United States v. Hare, No. 14-4758, 14-4770, 14-4832, 2016 WL 1567051, at *4 (4th Cir. Apr. 19, 2016) (); Arenas-Ortiz, 339 F.3d at 1069 (). As the Government succinctly responds, "[a]t best, defendant['s] race-based case numbers reveal that [the Oregon USAO] has prosecuted more black sex traffickers than white sex traffickers and more men than women." Govn't Resp. at 8, ECF 180.
Ford relies heavily on United States v. Davis to argue that statistical data alone could meet the "some evidence" requirement of Armstrong. The defendants in Davis sought discovery related to "stash house" stings. United States v. Davis, 793 F.3d 712, 714 (7th Cir. 2015). The defendants noted that of 20 stash house stings prosecuted, 75 defendants were black, 13 were Hispanic, and 6 were white. Id. at 715. The district court judge granted the discovery motion, holding that Id. The request was broad and included, among other information, a decade's worth of race data for every defendant investigated or prosecuted in stash house stings, all national and local law enforcement materialsrelating to protocols for stash house stings, all instructions from the U.S. Attorney to prosecutors relating to race's role (or lack thereof) in prosecutions, and much more. Id. at 721.
Ford characterizes Davis as allowing discovery where "the defendants only had statistical evidence," and "curtail[ing] but uph[olding]" that discovery on appeal. Def. Memo. at 16. The Seventh Circuit, however, did much more than that. The panel deemed the discovery request "vastly overbroad," and held that discovery pertaining to the exercise of prosecutorial discretion was "blocked by Armstrong." Davis, 793 F.3d at 722. Only then did the court clarify that "some of the...
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