United States v. York
| Decision Date | 18 March 2021 |
| Docket Number | Case No. 20-cr-40050-JPG |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JEFFREY YORK, Defendant. |
| Court | U.S. District Court — Southern District of Illinois |
This matter comes before the Court on defendant Jeffrey York's motion to compel discovery pertaining to a claim of selective enforcement and/or prosecution regarding the Federal Bureau of Investigation's ("FBI") "Operation Beach Apple" (Doc. 33). The Government has responded to the motion (Doc. 37), and York has replied to that response (Doc. 40).
York has been charged with attempted enticement of a minor to engage in criminal sexual activity in violation of 18 U.S.C. § 2422(b) (Count 1) and attempted use of interstate facilities to transmit information about a minor with the intent to entice a person to engage in criminal sexual activity in violation of 18 U.S.C. § 2425 (Count 2) (Doc. 17). The charges were the result of the FBI's "Operation Beach Apple" (hereinafter, simply "Beach Apple"), which York asserts in this motion violated the equal protection component of his Fifth Amendment due process rights. He believes Beach Apple, like other law enforcement sting operations relating to child sex crimes, unlawfully targeted men because of their sex and that, as a consequence, the Court must dismiss the charges against him. Importantly for the Court's analysis, he challenges the FBI's allegedly discriminatory investigation and referral for prosecution, but not the United States Attorney's decision to prosecute once the FBI referred his case. Def.'s Mot. 12 (Doc. 33).
In the pending motion, York seeks a raft of discovery regarding investigation and prosecution decisions to prove this theory. The Court sees no need to set forth verbatim each of his nineteen requests, which are available in his motion. A summary the categories of information he seeks relating to Beach Apple will do: a list of the criminal cases filed; personal information about and criminal history of those charged and those investigated but not charged; written justifications for arresting some but not other suspects; the number of and personal characteristics attributed to the fictitious minors used in the investigation; representations about the operation in funding proposals; participating law enforcement agents and what they were told about the operation; target selection policies and criteria; communications between law enforcement agents and targets; communications about the foregoing; undercover/sting/entrapment training materials and guidelines; internal oversight procedures; a detailed operation budget; and information about the approval of the operation. In his reply brief, York clarifies that at this point he simply wants the Court to begin an initial investigation into discriminatory enforcement and then proceed to more investigation if the initial investigation warrants it.
In support of his discovery request, York points to three things that he claims suggest a discriminatory effect and purpose of the Beach Apple investigation by the FBI: (1) the fact that all those prosecuted in Beach Apple and other sexual predator sting operations were men despite statistics showing a significant prevalence of female-perpetrated sexual victimization, (2) the undercover online profiles with whom the Beach Apple arrestees conversed were all straight girls or gay boys, who would be attractive only to men, and (3) the transcript of an FBI special agent's testimony stating that gay men tend to exchange photographs, sexual messages, andsexual activity relatively quickly compared to the general population.
The Government maintains that the FBI's investigations of sex abuse offenses against minors took a gender-neutral approach that had neither a discriminatory purpose nor a discriminatory effect. It further argues that the established tests to justify conducting discovery regarding discriminatory enforcement or prosecution based on race do not apply to discrimination based on gender in the kind of operation that snared York and that, even if they did, York cannot satisfy those tests. The Government contends that the evidence York cites to show discriminatory intent is based on a misunderstanding of the facts regarding FBI agents' online profiles and the testimony of the FBI special agent's testimony, and that the evidence York cites to show discriminatory effect relies on statistical analyses of people not shown to be an appropriate comparison group. Finally, the Government argues that York's requests are fatally overbroad and seek privileged material.
The Court begins by setting up the framework it will use to decide this motion. It will first discuss the seminal Supreme Court case regarding discovery relating to allegations of selective prosecution on the basis of race—United States v. Armstrong, 517 U.S. 456 (1996)—and then turn to more recent precedent from the Court of Appeals for the Seventh Circuit relating to allegations of selective enforcement on the basis of race—United States v. Davis, 793 F.3d 712 (7th Cir. 2015). It will then address how these race discrimination precedents impact this Court's consideration of alleged gender discrimination and whether discovery is warranted in this case.
The Court starts with the question of the appropriate standard for discovery when a defendant claims selective prosecution based on race, which was established in United States v. Armstrong, 517 U.S. 456 (1996). To be clear, the Armstrong standard is applicable to claims that the Department of Justice discriminated on the basis of race when making prosecutorial decisions; it does not apply in the same way to claims that law enforcement agencies discriminated in deciding who to target or investigate or who to refer to the United States Attorney's Office for prosecution. These are distinct stages of law enforcement activity, and the standard for one, while it may provide guidance, cannot be imported wholesale for the other.
In Armstrong, the Supreme Court held that in order to be entitled to discovery on a claim that a defendant was prosecuted based on race, the defendant must "show that the Government declined to prosecute similarly situated suspects of other races." Armstrong, 517 U.S. at 458. In Armstrong, two defendants were charged in federal court with crack cocaine offenses. Id. at 458-59. They sought discovery and dismissal of the indictment on the basis that they were selectively prosecuted because they were Black. Id. at 459. In support of their arguments, they submitted evidence that in all of the 24 drug conspiracy cases closed in 1991 by the Federal Public Defender's Office in the district, the defendants were Black; that there were as many Caucasian drug users and dealers as there were minority users and dealers in the community; that many non-Black crack cocaine offenders were prosecuted in state rather than federal court; and that crack cocaine offenders, nearly all of whom were Black, were punished more severely than powder cocaine offenders. Id. at 459, 460-61.
In examining the defendants' request for discovery, the Armstrong Court noted that the standard for proving selective prosecution is demanding and that there is a "'background presumption' that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims." Id. at 463-64 (internal citation omitted). This is because a selective prosecution claim asks the Judicial Branch to exercise power over—and possibly impair the performance of—the Executive Branch, which is vested with broad discretion to enforce federal laws and which is more competent to evaluate legitimate factors that go into deciding whether to prosecute a case. Id. at 464, 465. Consequently, courts should presume prosecutors have properly discharged their official duties unless there is "clear evidence to the contrary." Id. at 464. Generally, so long as a prosecutor has probable cause to believe a defendant committed a crime, he or she has discretion whether to prosecute and which crime to charge, subject only to constitutional restraints, e.g., he or she cannot base the decision on an impermissible factor such as race or religion in violation of the equal protection component of the Fifth Amendment Due Process Clause. Id.
To prove a selective prosecution claim, the defendant must "demonstrate that the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" Id. at 465 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). Consistent with ordinary equal protection principles, "[t]o establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." Armstrong, 517 U.S. at 465 (emphasis added) (citing Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (); Ah Sin v. Wittman, 198 U.S.500, 507-08 (1905) ()). To establish discriminatory purpose, the defendant must show the Government "selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." McCleskey v. Kemp, 481 U.S. 279, 298 (1987) (internal quotations omitted); accord Wayte, 470 U.S. at 610; Chavez v. Illinois State Police, 251 F.3d 612, 645 (7th Cir. 2001).
The Armstrong Court further held that because discovery for a selective prosecution claim is burdensome to the Government and may disclose its prosecution strategy, the standard is rigorous. Armstrong, 517 U.S. at 468. The Court therefore held that to obtain discovery a defendant must make "a credible showing of...
To continue reading
Request your trial