United States v. Jackson
| Decision Date | 17 December 2018 |
| Docket Number | No. 16-CR-2362-WJ,No. 16-CR-2363-WJ,16-CR-2362-WJ,16-CR-2363-WJ |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. LONNIE JACKSON, and DIAMOND COLEMAN, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court following a hearing on the United States' Sealed Motion to Reconsider (Doc. 88, filed 4/30/18, see Footnote 4). Having reviewed the pleadings, heard the arguments of counsel, and considered the applicable law, the Court has determined that the Government's Motion is well-taken, and is therefore is GRANTED IN PART to the extent that the Court finds it was legal error for the former presiding judge to order discovery on the selective enforcement claim, but the Motion is DENIED IN PART in that the Court will not conduct a new evidentiary hearing on the selective enforcement claim. The Government's Motion is further GRANTED IN PART in that the Court finds that the Government has complied to the fullest extent possible with the discovery ordered by the former presiding judge regarding the selective enforcement claim.
Before the Court is the Government's Sealed Motion to Reconsider (Doc. 89) the Memorandum Opinion and Order by U.S. District Judge M. Christina Armijo (Doc. 73).2 In that opinion, Judge Armijo granted certain discovery requests by Defendants that they assert would supply evidence to support their selective enforcement defense. In response to the issues raised by both parties at the status conference on April 9, 2018, the Court directed the Government to file the present Motion to Reconsider so the Court could comprehensively examine the underlying facts and the issues arising out of the discovery order. Docs. 87, 91.
The selective enforcement claim is an Equal Protection challenge alleging that law enforcement officials selectively investigated or arrested defendants because of their race. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003). A selective enforcement defense requires that a defendant show a discriminatory intent by law enforcement and a discriminatory effect, in that similarly-situated individuals were not investigated or arrested based on race. United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001). If successfully asserted, it is not a defense based on innocence, but a complete defense that undermines the constitutionality of a defendant's prosecution to the extent that dismissal of the indictment(s) may be required. See, e.g., United States v. Alcaraz-Arellano, 441 F.3d 1252, 1265 (10th Cir. 2006). Before reaching the merits of the selective enforcement claim, a defendant is entitled to discovery material from the prosecution if he or she makes a threshold showing of "some evidence" of both discriminatory effect and discriminatory intent. Alcaraz-Arellano, 441 F.3d at 1264 (citing United States v. Armstrong, 517 U.S. 456, 463 (1996)).
This Court must determine whether discovery, even the limited discovery allowed here, was granted in error based on the total record developed in these cases. The Court must also decide if these two Defendants are entitled to more discovery materials from the Government or if the Government has complied with the discovery ordered by Judge Armijo. At this stage, the Court is not ruling on the final merits of the selective enforcement defense, but the Court must, to a lesser extent, examine whether the record establishes "some evidence" of discriminatory intent and discriminatory effect sufficient to support the discovery order.
In the summer of 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") conducted a four-month undercover operation in Albuquerque, known as the "Surge," that resulted in the arrests of 104 defendants who were charged in federal court.3 Doc. 73 at 2. The ATF Surge cases were assigned randomly among the district judges in the District of New Mexico. Twenty-eight of the ATF Surge defendants are African American, twelve are white, and sixty-four are Hispanic. Doc. 73 at 2. Defendants Jackson and Coleman are both African American, and their cases have been consolidated solely for the purpose of raising this selective enforcement defense. Doc. 73 at 1 n1. Lonnie Jackson ("Jackson") is charged with distributing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Doc. 2362:2.4 Diamond Coleman ("Coleman") is charged with multiple counts of distributing methamphetamine, using and carrying a firearm during and in relation to a drug trafficking crime, and being a felon inpossession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and (c), and 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and (C). Doc. 2363:3.
Many of the Surge cases have already concluded; however, in addition to Defendants Jackson and Coleman, there are two other defendants in two separate cases who have raised selective enforcement claims. The first case is United States v. Laneham, No.16-cr-2930-JB, 2017 U.S. Dist. LEXIS 176486, pending before U.S. District Judge James O. Browning, and the second case is United States v. Casanova, No. 16-cr-2917-JAP, pending before Senior U.S. District Judge James A. Parker. In the Laneham case, Judge Browning ruled against Defendant Laneham on his request for discovery, finding that he failed to meet the required evidentiary burden in order to obtain the discovery he requested. 2017 U.S. Dist. LEXIS 176486. In the Casanova case, Judge Parker granted Defendant Casanova's discovery request in part and, after ordering the parties to confer and resolve discovery disputes, ruled that the United States must produce the NCIC reports created or obtained by ATF Agent Russell Johnson if those reports were "within the possession, custody, or control of the government." 16-CR-2917, Doc. 83 (Dec. 13, 2017). Counsel for Defendant Casanova has since filed a Motion to Dismiss Because of Selective Enforcement of the Criminal Law (Doc. 102), and a hearing on that motion is pending before Judge Parker.
Most of the litigation in the two cases involving Defendants Jackson and Coleman has revolved around Defendant's Motion to Compel Discovery Pertaining to Claim of Selective Enforcement, Doc. 29 (filed 4/19/17), and Defendant's Supplement to his Motion to Compel Discovery, Doc. 45 (filed 9/21/17), in which Defendants requested discovery items for their selective enforcement claims. After the initial request, Defendants and the Government reached a resolution as to some of the discovery items requested, and then Defendants filed the supplementto their discovery motion for the remaining items. Doc. 45, filed 9/21/17; Government Response, Doc. 47, filed 10/5/17. To determine whether Defendants Jackson and Coleman had made the proper showing to obtain these discovery items, an extensive evidentiary hearing was held in front of Judge Armijo on October 30, 2017, and December 13, 2017, during which the Government presented the testimony of two key ATF agents. Agents Russell Johnson and Richard Zayas testified about their roles in the ATF Surge in Albuquerque. The Government entered fifty-nine exhibits on the record (Ex. 1-56, 57, 59, 60), and Defendants entered sixteen exhibits (Ex. A-O, R).
In the Memorandum Opinion and Order (Doc. 73, filed 2/7/18), Judge Armijo granted defendants' discovery requests for Defendants' items numbered 1 and 3:
Doc. 73 at 3, 4, 26. After the undersigned judge was randomly assigned these two cases, the United States filed a Notice of Inability to Supply Further Discovery (Docs. 80, 81) on March 18 and 20, 2018, in which the Government indicated that it had complied with Judge Armijo's discovery order.
During the status conference on April 9, 2018 (Doc. 87), at which both Defendants Jackson and Coleman were present, the Court heard limited argument on the discovery dispute. Defendants maintained that the Government had not produced discovery to the extent ordered by Judge Armijo, while the Government asserted that it had complied and it could not produce more discovery. At that time, the Court resolved the remaining issues with the unsealing of certainexhibits for public viewing, but the Court was unable to resolve the discovery dispute without more information from the parties. Given that the two above-captioned cases had been randomly reassigned as a result of Judge Armijo's recusal and considering the undersigned judge's unfamiliarity with the record in these two cases, the Government was ordered to file a motion to reconsider, with Defendants Jackson and Coleman having the opportunity to respond in accordance with the local rules of this District. The Court set a briefing schedule for the parties (Doc. 88) and struck the Government's Notice of Inability to Supply Further Discovery (Docs. 80, 81, 86) from the record.
The Government filed the instant Sealed Motion to Reconsider on April 30, 2018 (Doc. 89), to which Defendants filed their joint response on June 25, 2018 (Doc. 97) and the Government submitted its sealed reply brief on July 13, 2018 (Doc. 101). The Court heard oral arguments from the Government and both Defendants regarding the Motion to Reconsider at the hearing on August 3, 2018. Doc. 108, Clerk's Minutes; Doc. 118, Transcript of Proceedings. The Government contends that Judge Armijo erred in granting discovery, and further, that it has complied with the discovery order and the production of the remaining discovery materials Defendants demand is unduly burdensome....
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