United States v. Mills

• Decision Date: 12 July 2019
• Docket Number: Case No. 16-cr-20460
• Parties: UNITED STATES of America, Plaintiff, v. Edwin MILLS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

389 F.Supp.3d 520

UNITED STATES of America, Plaintiff,

v.Edwin MILLS, et al., Defendants.

Case No. 16-cr-20460

United States District Court, E.D. Michigan, Southern Division.

Signed July 12, 2019

Louis Crisostomo, Linda Aouate, United States Attorney's Office, Aldous Brant Cook, U.S. Department of Justice, Detroit, MI, for Plaintiff.

Gerald J. Gleeson, II, Miller Canfield Paddock & Stone, PLC, Troy, MI, Jean deSales Barrett, Ruhnke & Barrett, Montclair, NJ, Federal Defender, Federal Defender Office, Michael A. Rataj, Sanford A. Schulman, Christopher W. Quinn, II, Detroit, MI, Jacqueline K. Walsh, Walsh & Larranaga, Seattle, WA, Judith S. Gracey, The Gracey Law Firm, Keego Harbor, MI, Richard H. Morgan, Jr., Law Office of Richard H. Morgan Jr., Pontiac, MI, Avraham C. Moskowitz, Moskowitz, Book and Walsh, LLP, New York, NY, Stephen T. Rabaut, Clinton Township, MI, Michael O. Sheehan, Sheehan and Reeve, New Haven, CT, Sanford Plotkin, Sanford Plotkin, P.C., Ann Arbor, MI, James A. Waske, Southfield, MI, John M. McManus, McManus Law, Royal Oak, MI, Vincent J. Toussaint, Toussaint Law, Southfield, MI, for Defendants.

OPINION & ORDER DENYING DEFENDANT CARLO WILSON'S MOTION TO COMPEL DISCOVERY REGARDING SELECTIVE ENFORCEMENT CLAIM (Dkt. 941)

MARK A. GOLDSMITH, United States District Judge

This matter is before the Court on Defendant Carlo Wilson's motion to compel discovery in anticipation of filing a motion to strike the notice of intent to seek the death penalty based on a racially selective law enforcement claim (Dkt. 941).¹ The Government filed a response in opposition to the motion (Dkt. 946), to which Wilson replied (Dkt. 949).² For the reasons stated below, the Court denies the motion.

I. BACKGROUND

Because the Court has previously described the factual and procedural background of this case in greater detail in other opinions, it need not do so again for purposes of the present motion. See, e.g., United States v. Mills, 378 F. Supp. 3d 563 (E.D. Mich. 2019) (denying motions to dismiss); United States v. Mills, No. 16-cr-20460, 2019 WL 1915762 (E.D. Mich. Apr. 30, 2019) (denying motions for bills of particulars); United States v. Mills, 367 F. Supp. 3d 664 (E.D. Mich. 2019) (granting in part and denying in part motion to preclude rap lyrics and videos).

II. DISCUSSION

In his motion, Wilson contends that the Detroit Field Office of the FBI "engages in racially selective investigations of murders committed in relation to criminal enterprises under 18 U.S.C. §§ 1962 and 1959 and 21 U.S.C. § 848, and criminal groups of more than one person under 18 U.S.C. § 924(j) or any other criminal statute with a penalty of death," which supposedly includes its investigation of his case. Def. Mot. at 9; see also Def. Reply at 2 ("[T]he FBI's Detroit field office engaged in a racially selective investigation of Mr. Wilson—part of a pattern of racially selective investigations of murders involving criminal groups of two or more persons—in violation of Mr. Wilson's Fifth Amendment rights."). To demonstrate that his selective enforcement claim has merit, Wilson requests a court order compelling the Government to produce the following discovery:

(1) A list by case name, number, and race of each defendant charged in any offense under 18 U.S.C. § 1962 in which an overt act of murder was alleged brought by any U.S. Attorney's Office in the State of Michigan from 2008 to the present.

(2) A list by case name, number, and race of each defendant charged in any offense under 18 U.S.C. § 1959(a)(1) or 21 U.S.C. § 848(e) brought by any U.S. Attorney's Office in the State of Michigan from 2008 to the present.

(3) A list by case name, number, and race of each defendant charged in any multi-defendant case for any offenses under federal law for which there is a possible penalty of death.

(4) For each case listed in (1), (2), and (3), a statement of prior criminal contact that the federal agency responsible for the investigation had with each defendant.

(5) All national and Detroit field office FBI manuals, circulars, field notes, correspondence or any other material which discuss "enterprise," as that term is defined in 18 U.S.C. § 1961(4), or "continuing criminal enterprise," as that term is defined in 21 U.S.C. § 848(c) ; and which discuss "gangs"; and which discuss any criminal group which the FBI chooses to not categorize as an "enterprise," "continuing criminal enterprise," or "gang"; including directions to agents regarding how to pursue investigations of "enterprises," "continuing criminal enterprises," "gangs," and other uncategorized criminal groups and how to determine which "enterprises," "continuing criminal enterprises," "gangs," and other criminal groups to pursue.

(6) Data from 2008 to the present outlining the number of "enterprises," "continuing criminal enterprises," "gangs," and other criminal groups that the FBI's Detroit field office is investigating or has investigated for violations of 18 U.S.C. § 1962 wherein murder is involved, violations of 18 U.S.C. § 1959(a)(1), violations of 21 U.S.C. § 848(e), violations of 18 U.S.C. § 924(j), or violations of any other federal criminal law in which a penalty of death may apply.

(7) Data from 2008 to the present identifying the racial composition of each "enterprise," "continuing criminal enterprise," "gang," and other criminal group described in (6) above.

(8) All documents that contain information on how supervisors and managers of the FBI's Detroit field office were to ensure and/or did ensure or check to decide that its agents were not targeting persons on the basis of their race, color, ancestry, or national origin for investigations of murders committed by individuals associated with "enterprises," "gangs," or other criminal groups and what actions the FBI's Detroit field office took to determine whether agents were not targeting persons for such investigations on the basis of their race, color, ancestry, or national origin.

(9) The factual basis in each case produced in response to (1), (2), and (3) regarding decisions made to pursue or initiate an investigation against any of the individuals listed as defendants in these cases.

(10) From 2008 to the present, all documents containing instructions given about the responsibilities of Assistant United States Attorneys to ensure that defendants in cases brought by the Office of the United States Attorney for both the western and eastern districts of Michigan have not been targeted due to their race, color, ancestry, or national origin and that such prosecutions have not been brought with any discriminatory intent on the basis of the defendant's race, color, ancestry, or national origin.

(11) From 2008 to the present, all documents that contain information about all actions taken about the responsibilities of Assistant United States Attorneys to ensure that defendants in cases brought by the Office of the United States Attorney for both the western and eastern districts of Michigan have not been targeted due to their race, color, ancestry, or national origin and that such prosecutions have not been brought with any discriminatory intent on the basis of the defendant's race, color, ancestry, or national origin.

Def Mot. at 18-20. To the extent he is not entitled to all of the broad discovery he has requested, Wilson alternatively requests that the Court conduct an evidentiary hearing to determine the scope of discovery to be produced. Id. at 1, 20. For the reasons discussed below, the Court denies Wilson's requests.

The "Constitution prohibits selective enforcement of the law based on considerations such as race." Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; see also Wayte v. United States, 470 U.S. 598, 608 & n.9, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (ban on discriminatory law enforcement applies to the federal government under the Fifth Amendment). In contrast to a selective prosecution claim, in which a defendant asserts that "the prosecutor has brought the charge for reasons forbidden by the Constitution," United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), a selective enforcement claim is directed at the "actions of law enforcement and those affiliated with law-enforcement personnel," United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 713, 199 L.Ed.2d 582 (2018). Nevertheless, substantive claims of selective enforcement are evaluated under the same two-part test as selective prosecution claims, which requires a defendant to present "clear evidence" of both a discriminatory purpose and a discriminatory effect. See Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 ; Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000) (citing Futernick v. Sumpter Twp., 78 F.3d 1051, 1056 (6th Cir. 1996) ); see also Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th Cir. 2005) (citing Wayte, 470 U.S. at 608, 105 S.Ct. 1524 ); United States v. Jones, 159 F.3d 969, 976-977 (6th Cir. 1998) ; accord Washington, 869 F.3d at 214.

In Armstrong, the Supreme Court held that a defendant seeking to obtain discovery on a selective prosecution claim need not establish a prima facie case, but he or she must still satisfy a "rigorous standard" by producing "some evidence" of both discriminatory purpose and discriminatory effect. 517 U.S. at 468-470, 116 S.Ct. 1480 ; accord United States v. Bass, 536 U.S. 862, 863, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) (per curiam) ("[A] defendant who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent."). The phrase "some evidence," when used in this context, must include a showing that "similarly situated defendants of other races could have been prosecuted, but were not." Armstrong, 517 U.S. at 469, 116 S.Ct. 1480 ; Bass, 536 U.S. at 864, 122 S.Ct. 2389 ("Under Armstrong, therefore, because respondent failed to submit relevant...