United States v. Sellers

• Decision Date: 15 October 2018
• Docket Number: No. 16-50061,16-50061
• Citation: 906 F.3d 848
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daryle Lamont SELLERS, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

906 F.3d 848

UNITED STATES of America, Plaintiff-Appellee,

v.Daryle Lamont SELLERS, Defendant-Appellant

No. 16-50061

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2018, Pasadena, California

Filed October 15, 2018

Carlton F. Gunn (argued), Pasadena, California, for Defendant-Appellant.

L. Ashley Aull (argued), Chief, Criminal Appeals Section; Robyn K. Bacon, Assistant United States Attorney; Patrick R. Fitzgerald, Chief, National Security Division; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee.

Before: Susan P. Graber^* and Jacqueline H. Nguyen, Circuit Judges, and Michael H. Simon,^** District Judge.

Concurrence by Judge Nguyen ;

Dissent by Judge Graber

NGUYEN, Circuit Judge:

Daryle Lamont Sellers was convicted of conspiracy to distribute cocaine and conspiracy to interfere with commerce by robbery after he was caught in a law enforcement reverse sting operation to rob a fictitious stash house. Sellers argues that he was targeted based on his race, and presents evidence that an overwhelming majority of the defendants targeted by law enforcement in similar investigations are African-Americans or Hispanics. To succeed on his selective enforcement claim, Sellers must show that the enforcement had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is. We hold that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong , 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996).

BACKGROUND

In 2012, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and Agent John Carr set up what is known as a stash house reverse-sting operation near downtown Los Angeles. These operations tend to follow a common format:¹ An undercover agent poses as a disgruntled drug courier who is looking for help robbing the house where his employer is stashing (and guarding) a large quantity of drugs. The agent describes the stash house to individuals who have been targeted for the operation. Usually, the targets of stash house reverse-sting operations are identified using confidential informants. Informants are supposed to identify targets that have committed stash house robberies before or are capable of doing so.

The agent conducts a series of meetings with the targets and presents them with the opportunity to rob the stash house, and they devise a plan to do so.² There is no stash house to rob, and there are no drugs—this is a ‘reverse-sting,’ after all. But at the last meet-up, just before they are set to leave and carry out the plan, the targets are arrested for conspiracy to commit the robbery and associated crimes.

The details of the specific stash house reverse-sting operation here, for the most part, are irrelevant to Sellers’s selective enforcement claim, and so we state them only in brief. In March 2012, a confidential informant staying at a hotel in a predominantly black and Hispanic area of Los Angeles targeted one of Sellers’s co-defendants for a stash house reverse-sting operation, ostensibly because the informant believed that the co-defendant was involved in selling drugs. The co-defendant, who is black, was put in touch with Agent Carr, and the stash house reverse-sting was underway. On July 9, 2012, Sellers attended a planning meeting for the robbery with the co-defendant, Agent Carr, and others. Eventually, the stash house robbery was set for July 16, and, after one final meeting confirming the plan, the robbery crew (all of whom are black) was arrested.

Sellers and his co-defendants were indicted for conspiracy to possess and distribute cocaine, conspiracy to commit robbery, and possession of a firearm in furtherance of these crimes.³ Sellers moved to dismiss the indictment for outrageous government misconduct⁴ and sought discovery on a claim of selective enforcement.⁵ Sellers presented data collected by an attorney in the Central District of California showing that of 51 defendants indicted in stash house reverse-sting operations between 2007 and 2013, at least 39 were black or Hispanic.⁶ Similarly, Agent Carr testified that more than 55 of the approximately 60 individuals who have been indicted in his stash house reverse-sting operations are people of color. Relying on the standard set forth in Armstrong for obtaining discovery on selective prosecution claims, the district court denied the motion.

Sellers was convicted by a jury and sentenced to 96 months’ imprisonment. He timely appeals.

STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. Whether the district court applied the correct discovery standard is a legal question that we review de novo. See United States v. Washington , 797 F.2d 1461, 1470 n.12 (9th Cir. 1986). We review the district court’s determination that Sellers did not make the requisite discovery showing for abuse of discretion.

United States v. Arenas-Ortiz , 339 F.3d 1066, 1069 (9th Cir. 2003).⁷ The court necessarily abuses its discretion when it applies the wrong legal standard. See United States v. Hinkson , 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc) (citing Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ).

DISCUSSION

I.

We are not working from an entirely blank slate. Selective prosecution and selective enforcement claims are undoubtedly related, see Lacey v. Maricopa County , 693 F.3d 896, 920 (9th Cir. 2012) (en banc), and the Supreme Court addressed the threshold discovery showing required for selective prosecution claims over two decades ago in Armstrong . 517 U.S. at 458, 116 S.Ct. 1480. The question we face is whether Armstrong ’s standard is equally applicable to claims for selective enforcement, particularly in the stash house reverse-sting context. We first address Armstrong ’s discovery standard for selective prosecution cases and then explain why we join the Third and Seventh Circuits in declining to adopt it wholesale here.

A. Armstrong

To establish a claim of selective prosecution, a defendant must show both discriminatory effect and discriminatory purpose. Armstrong , 517 U.S. at 465, 116 S.Ct. 1480. In Armstrong , the Supreme Court "consider[ed] the showing necessary for a defendant to be entitled to discovery on a claim" of selective prosecution. Id. at 458, 116 S.Ct. 1480. The Court adopted a "rigorous standard," id. at 468, 116 S.Ct. 1480, whereby a defendant must show that "the Government has failed to prosecute others who are similarly situated to the defendant" as evidence of discriminatory effect. Id. at 469, 116 S.Ct. 1480.

The Court explained its rationale for such a high standard. Id. at 464–68, 116 S.Ct. 1480. It observed that "[i]n order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary." Id. at 465, 116 S.Ct. 1480 (internal quotation marks omitted). The Court instructed us to be "hesitant" and not "unnecessarily impair" the prosecutor’s "constitutional function." Id. (internal quotation marks omitted). And it was this "justification[ ] for a rigorous standard for the elements of a selective-prosecution claim" that "require[d] a correspondingly rigorous standard for discovery in aid of such a claim." Id. at 468, 116 S.Ct. 1480.

Armstrong was thus premised on the notion that the standard for discovery for a selective prosecution claim should be nearly as rigorous as that for proving the claim itself. In other words, the standard was intentionally hewn closely to the claim’s merits requirements. See id. ; see also United States v. Hare , 820 F.3d 93, 99 (4th Cir. 2016) ("The standard for obtaining discovery in support of a selective prosecution claim is only slightly lower than for proving the claim itself." (internal quotation marks omitted) ).

B. Material Differences Between Selective Prosecution and Selective Enforcement

Selective prosecution is not selective enforcement—especially not in the stash house reverse-sting context. There are two main differences that warrant departure from the Armstrong standard: First, law enforcement officers do not enjoy the same strong presumption that they are constitutionally enforcing the laws that prosecutors do. Second, the nature of reverse-sting operations means that no evidence of similarly situated individuals who were not targeted exists.

1. Presumption of Regularity

"[T]he presumption of regularity supports ... prosecutorial decisions ...." Armstrong , 517 U.S. at 464, 116 S.Ct. 1480 (internal quotation marks omitted). This presumption gives "a measure of protection (and confidentiality)" to prosecutors’ "deliberative processes, which are covered by strong privileges." United States v. Davis , 793 F.3d 712, 720 (7th Cir. 2015) (en banc). Prosecutors occupy a "special province" of the executive branch and have "broad discretion" to enforce our nation’s laws, Armstrong , 517 U.S. at 464, 116 S.Ct. 1480 (internal quotation marks omitted).

On the other hand, "[a]gents of the ATF and FBI are not protected by a powerful privilege or covered by a presumption of constitutional behavior." Davis , 793 F.3d at 720. Criminal defendants are allowed discovery for various aspects of law enforcement operations, including statements made and actions taken by investigating agents. Agents’ investigatory decisions are regularly questioned at trial, and their credibility is put before courts and juries. Thus, agents occupy a different space and role in our system than prosecutors; they are not charged with the same constitutional functions, and their decisions are more often scrutinized by—and in—courts.

Because the same presumption of regularity and...