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United States v. Laneham

United States District Court, D. New Mexico

October 25, 2017

THE UNITED STATES OF AMERICA, Plaintiff,
v.
CEDRIC LANEHAM, Defendant.

          James D. Tierney Acting United States Attorney Norman Cairns David M. Walsh Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff United States.

          Todd Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC Albuquerque, New Mexico Attorney for the Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Cedric Laneham's Motion for Disclosure of Information, filed August 11, 2017 (Doc. 112)(“Motion”). The Court held a hearing on October 4, 2017. The primary issue is whether the Court should grant Cedric Laneham's request for extraneous discovery relating to his selective enforcement claim, which depends on whether Laneham has provided sufficient evidence that the United States' Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) acted with discriminatory intent and caused a discriminatory effect against African-Americans when it conducted a four-month operation in southeast Albuquerque, New Mexico, in 2016. The Court concludes that Laneham's statistical and anecdotal evidence fails to establish sufficient evidence that the ATF caused a discriminatory effect by treating similarly situated individuals differently than it treated African-Americans, or that the ATF agents or their confidential informants (“CIs”) acted with discriminatory intent against African-Americans. Consequently, the Court denies the Motion.

         FACTUAL BACKGROUND

         The Court sets forth the facts as Plaintiff United States of America alleges them in its Indictment, filed June 30, 2016 (Doc. 1), in the United States' Response to Defendant's Motion to Compel Discovery, filed August 28, 2017 (Doc. 115)(“Response”), at the evidentiary hearing held October 4, 2017, Transcript of Hearing (taken October 4, 2017)(“Tr.”), [1] and at the evidentiary hearing in a related case, see United States v. Casanova Motion Hearing Transcript (taken April 5, 2017), filed May 3, 2017, No. CR 16-2917 JAP (Doc. 51)(“Casanova Tr.”), bearing in mind that Laneham[2] is presumed innocent of all charges, Estelle v. Williams, 425 U.S. 501, 503 (1976)(“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” (citing Coffin v. United States, 156 U.S. 432, 453 (1895))). The Court recites the United States' version of the facts not out of any predisposition to believe the United States' side of the story, but because the Court does not have alternative accounts, [3] and it needs a cogent, internally consistent version of events for its analysis. See In re Winship, 397 U.S. 358, 365 (1970)(“[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).

         These findings of fact are solely for use in deciding whether to permit discovery. They do not bind, without more, the Court or the parties if Laneham proceeds to file a motion to dismiss without the requested discovery. Also, they do not, of course, bind the Court, the jury, or the parties in any jury trial.

         1. African-Americans comprised 5.4 percent of drug trafficking offenders and 5.9 percent of firearm-related offenders in the District of New Mexico between fiscal years 2006 and 2015. See Race Offenders in Each Primary Offense Category, District of New Mexico, Fiscal Years 2006-2016, https://isb.ussc.gov (follow “Demographic Data” hyperlink; then search “Race of Offenders in Each Primary Offensive Category”; then select “District of New Mexico” for fiscal years 2006-2015), filed August 11, 2017 (Doc. 112-1)(“DNM statistics”).

         2. African-Americans comprise 3.4 percent of Bernalillo County residents in 2016. See U.S. Census QuickFacts: Bernalillo County, https://www.census.gov/quickfacts/fact/table/ bernalillocountynewmexico/PST045216, viewed October 9, 2017.

         3. The ATF came to Albuquerque, New Mexico, because of its high violent crime rate.[4] See Tr. at 4:11-22 (Johnson).

         4. In developing a plan for an Albuquerque operation, the ATF spoke with the Albuquerque Police Department, Bernalillo County, New Mexico's Sheriff's Office, the United States Marshals, the Drug Enforcement Agency, the United States Attorneys for the District of New Mexico, and the Albuquerque District Attorney. See Tr. at 5:4-11 (Johnson).

         5. Based on those consultations, the ATF determined that “the most violent part of Albuquerque was the southeast quadrant.” Tr. at 5:11-14 (Johnson). Consequently, the ATF focused its operations on the southeast part of Albuquerque. See Tr. at 6:1-4 (Johnson).

         6. The targeted region was roughly the area south of Interstate 40, east of Interstate 25, “with Central Avenue being basically the main vein through that area.” Tr. at 6:8-13 (Johnson).

         7. The ATF did not decide to focus on southeast Albuquerque because of the area's demographics. See Tr. at 15:24-16:8 (Johnson).

         8. The ATF's Albuquerque operation lasted four months in 2016 and was known as the Surge. See Tr. at 3:13 (Johnson).

         9. In the Surge, the ATF “brought in undercovers and confidential informants into the city of Albuquerque to combat violent crime.” Tr. at 3:15-18 (Johnson).

         10. The ATF relied on five CIs, three of whom were black[5]; and nine primary undercover agents, one of whom was black. Tr. at 35:6-12 (Hotchkiss, Johnson).

         11. The ATF instructed the CIs to “try to meet individuals that stated they were engaged in violent crime.” Tr. at 7:3-5 (Johnson).

         12. When a CI met someone whom the CI believed would sell drugs or weapons, the CI would inform the ATF, and the ATF “would then vet that information” and determine whether that person was worth pursuing. Tr. at 7:8 (Johnson).

         13. If the ATF determined that the person was worth pursuing, they would try to “set up a transaction . . . where one of [the ATF] undercover agents along with the CI would go meet with the individual.” Tr. at 7:8-14 (Johnson).

         14. The ATF did not instruct the CIs on avoiding racial bias, nor did they train the CIs beyond how to operate their cell phones. See Casanova Tr. at 92:17-21 (Pori, Johnson).

         15. Johnson did not believe that the CIs were racially biased in choosing whom to target, because: (i) he had worked with all the CIs previously and had “never seen any sort of bias from any of them, ” see Tr. at 45:22-23 (Johnson); and (ii) the ATF can get a sense of what the CIs are up to because they have access to the CIs' call logs and text messages, and may ask a person that a CI contacted what the CI told him or her, see Tr. at 40:10-15 (Johnson).

         16. The ATF did not keep records of everyone with whom CIs made contact, nor did the ATF record their races. See Casanova Tr. at 66:20-22 (Johnson).

         17. There was no formal process or written guidelines for determining whom to pursue. See Casanova Tr. at 83:16-21 (Johnson).

         18. Instead, the ATF made “collaborative group decisions, ” Casanova Tr. at 83:11, that did not follow “a specific process” involving particular people, Casanova Tr. at 85:8-10, and the ATF did not make a record of those decisions, see Casanova Tr. at 85:14-17 (Pori, Johnson).

         19. In deciding whether to pursue someone, the ATF agents considered “all known factors, ” such as “known criminal history, criminal reputation, . . . [and] intelligence received from the Albuquerque Police Department, ” but there was no “set-in-stone criteria.” Tr. at 7:18-25 (Johnson).

         20. A person's race was “absolutely not” a factor. Tr. at 13-9:14 (Johnson).

         21. The ATF did not have any targets in mind before beginning its operation in Albuquerque, and instead “generated [targets] very fluidly” by following its CIs' connections towards someone ATF deemed worth arresting. Tr. at 9:2-13 (Johnson).

         22. The ATF did not arrest every individual that it could have arrested, and instead focused on “the worst of the worst.” Casanova Tr. at 80:25 (Johnson).

         23. Arresting an eighteen year old for possessing a half ounce of methamphetamine will not impact a city or change a neighborhood. See Casanova Tr. at 81:12-23 (Johnson).

         24. The ATF wanted to arrest the people who, if taken off the streets, would make the city safer. See Casanova Tr. at 81:12-23 (Johnson).

         25. The people that the ATF's CIs encountered in southeast Albuquerque were willing to interact with people of different races, which is not the case in many other cities. See Tr. 13:5-6 (Johnson).

         26. This dynamic occurred during the Surge, and no one told Johnson to expect that dynamic before beginning the Surge. See Tr. at 35:21-36:16 (Johnson).

         27. Johnson first learned of Cedric Laneham on April 29, 2016. See Tr. at 61:25 (Johnson).

         28. The ATF discovered that the criminal organization known as the Memphis Mob had members operating in Albuquerque, and that, based on police records, Laneham was one of the Memphis Mob's “highest ranking members” in Albuquerque. Tr. at 17:15-18:12 (Johnson).

         29. According to the Albuquerque Journal, the Memphis Mob is a Memphis-based gang that moved into Albuquerque in the mid-2000s to “set up a drug-trafficking network linked to Memphis.” T.J. Wilham, Cops Bust ‘Memphis Mob”, The Albuquerque Journal (Apr. 9, 2009), https://www.abqjournal.com/news/metro/0985859069newsmetro04-09-09.htm.

         30. One of the “big reasons” that the Memphis Mob moved into New Mexico was the “lax state laws.” Tr. at 29:20-23 (Johnson).

         31. Although the ATF knew about Laneham, it did not actively pursue him. See Tr. 19:24-25 (Johnson).

         32. In May, 2016, the ATF learned that another high-ranking Memphis Mob member, Brent Williams, was opening a smoke shop in southeast Albuquerque. See Tr. at 22:15-18 (Johnson).

         33. The ATF sent a CI to the smoke shop [to] “try to get further into the Memphis Mob organization.” Tr. at 19:3-8 (Johnson).

         34. While in the smoke shop, a man named Devell Devoual -- a co-Defendant in this case -- approached the CI and offered to sell the CI methamphetamine. See Tr. at 22:18-20 (Johnson).

         35. The CI took Devoual's cell phone number. See Tr. at 22:21-22 (Johnson). The CI gave the ATF the cell phone number, and an undercover agent called Devoual and arranged to buy methamphetamine on May 17, 2016. See Tr. at 23:15-21 (Johnson).

         36. The CI who visited the smoke shop is African-American. See Tr. at 59:2-6 (Hotchkiss, Johnson).

         37. Devoual is African-American. See Tr. at 42:14-16 (Hotchkiss, Johnson).

         38. Williams is African-American. See ATF Surge Defendants Spreadsheet (undated) at line 29, filed September 11, 2017 (Doc. 119-2).

         39. On May 17, 2016, the undercover agent met Devoual at ¶ 7-Eleven parking lot. See Tr. at 24:6-9 (Johnson).

         40. The undercover agent then followed Devoual's vehicle and another vehicle -- a Mitsubishi Gallant -- to a nearby street. See Tr. at 24:10-13 (Johnson).

         41. Devoual “exited his vehicle, got into the white Gallant, exited the white Gallant, [and] motion for the undercover [agent] to come over.” Tr. at 24:14-16 (Johnson).

         42. The undercover agent stepped into the white Gallant's back seat and saw a man who the ATF would later identify as Laneham sitting in the driver's seat. See Tr. at 24:16-18 (Johnson).

         43. Laneham had a handgun in his lap. See Tr. at 24:25-25:1 (Johnson).

         44. Laneham “handed the undercover [agent] a scale and a white plastic bag which contained a substance that he recognized to be methamphetamine.” Tr. at 24:19-21 (Johnson).

         45. The undercover agent weighed the methamphetamine, paid Laneham, and left. See Tr. at 24:21-25:1 (Johnson).

         46. The ATF identified Laneham as the man in the white Gallant by running his license plate, which led them to a residential address, and Laneham was “one of the individuals tied to that residence.” Tr. at 25:14-20 (Johnson).

         47. The ATF acquired Laneham's driver's license photograph and the undercover agent confirmed that Laneham was the man in the white Gallant. See Tr. at 25:20-24 (Johnson).

         48. On May 18, 2016, Johnson reviewed Laneham's criminal history “and learned that he had six felony convictions, at least three aggravated assault arrests, [and] numerous drug traffic arrests.” Tr. at 21:7-11 (Johnson).

         49. The ATF became interested in pursuing Laneham because of his criminal history. See Tr. at 30:12-18 (Johnson).

         50. The ATF arrested Laneham on July 6, 2016. See Tr. at 54:15 (Johnson).

         51. The United States charged Laneham for (i) conspiring with two others -- Devoual and Defendant Dwayne Cunningham -- to distribute 50 grams and more of a mixture and substance containing a detectable amount of methamphetamine; and (ii) distributing the mixture containing methamphetamine. See Indictment at 1-2.

         52. On June 7, 2016, a CI and an undercover agent arranged to meet a man named Yusef Casanova in a parking lot to purchase methamphetamine and a weapon. See United States v. Casanova, United States' Brief on the Issue of Discovery at 2-3, filed September 15, 2017 (Doc. 66).

         53. Casanova sold Johnson a shotgun, and Casanova explained that someone else would be arriving to deliver the methamphetamine. See Tr. at 53:21-25 (Johnson). Eventually a car arrived and an unidentified white male stepped out of the passenger side door and delivered a bag of what appeared to be methamphetamine. See Tr. at 53:1-11 (Johnson).

         54. The ATF did not arrest either Casanova or the white male at that time. See Tr. at 53:12-19 (Johnson).

         55. The ATF will typically not arrest people immediately after a deal with an undercover officer, because doing so would signal that the undercover agent is actually a law enforcement officer. See Tr. at 53:18-25 (Johnson).

         56. Despite recording and running the license plate number of the car carrying the white male who delivered the methamphetamine that Casanova sold to the undercover officer, the ATF was unable to identify him. See Tr. at 54:8-11 (Johnson).

         57. The ATF ran the unidentified white male's license plate, which led them to a photograph of the car's registered owner, who was not the unidentified white male. See Tr. at 57:1-7 (Johnson).

         58. The ATF searched law enforcement databases for people associated with the license plate. See Casanova Tr. at 27:16-21 (Johnson).

         59. The ATF did not speak with the registered owner or anyone associated with the license plate number. See Tr. at 57:22-24 (Hotchkiss, Johnson).

         60. The ATF reviewed photographs of Casanova's associates, but did not see the unidentified white male. See Tr. at 58:6-12 (Johnson).

         61. The ATF did not interview people about the unidentified white male, because, after the Casanova transaction, “[The ATF] had an operation going” with CIs and undercover agents still working, so “[The ATF] couldn't go out and be overt [by] trying to interview the registered owners.” Tr. at 62:5-14.

         62. Just the “operational security issue of [doing those interviews] would have put people in danger.” Tr. at 62:15-18 (Johnson).

         63. The ATF exhausted all investigative avenues available to try to identify the white male. See Casanova Tr. at 28:1-3 (Johnson).

         64. Of the 103 Surge Defendants, twenty-eight -- 27.1 percent -- were African-Americans. See ATF Surge Defendants Spreadsheet.

         PROCEDURAL BACKGROUND

         A federal grand jury indicted Laneham, along with his two co-Defendants, Devoual and Cunningham, on June 30, 2016. See Indictment at 1. The Indictment charges Laneham with two crimes. See Indictment at 1-3. First, it charges him with one count of conspiring to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1); (b)(1)(B); and 21 U.S.C. § 846. See Indictment at 1-2. Second, the Indictment charges Laneham with “unlawfully, knowingly and intentionally distribut[ing] a controlled substance, 50 grams and more of a mixture and substance containing a detectible amount of methamphetamine” in violation of 21 U.S.C. §§ 841(a)(1); (b)(1)(B); and 18 U.S.C. § 2. Indictment at 1-2.

         On July 12, 2016, the Honorable Karen B. Molzen, Chief Magistrate Judge entered a Detention Order denying Laneham's request to be released to a third-party custodian pending trial, determining that Laneham poses a serious risk of danger to the community and presents a serious flight risk. See Detention Order Pending Trial at 2, filed July 12, 2016 (Doc. 23)(“Detention Order”).

         Laneham appealed the order. See Opposed Motion for Review of Order of Detention Pending Trial, filed July 24, 2016 (Doc. 35)(“Motion to Review”). He argued that, although he has family in Memphis, Tennessee, he does not present a risk of non-appearance, because he has lived in Albuquerque for almost ten years and has two daughters who also live in Albuquerque. Motion to Review at 2. He stated that he works detailing cars. See Motion to Review at 2. Laneham also argued that he did not pose a danger to the community, because his current charges suggest that he is, “at most, a street-level drug dealer” whose detention “will do little, if anything to stem the tide of drugs in the community.” Motion to Review at 3.

         The Court denied Laneham's Motion to Review, determining that, although it could fashion conditions to mitigate Laneham's danger to the community, Laneham is a flight risk. See Memorandum Opinion and Order at 1, filed September 2, 2016 (Doc. 45)(“Detention Order”). The Court concluded that Laneham's gang connections in Memphis and the drug conspiracy charges suggest that Laneham may be capable of relying on a criminal network to flee Albuquerque. See Detention Order at 14-15. The Court also determined that Laneham does not have any strong ties to the community besides his two daughters and has a history of failing to appear in court. See Detention Order at 15.

         A month after the Court denied Laneham's Motion to Review, Laneham's court-appointed attorney, John C. Anderson, moved to withdraw, stating that his relationship with Laneham “ha[d] broken down to the point where there is no longer a functioning or productive attorney-client relationship.” Motion to Withdraw as Counsel and for Appointment of New Counsel, ¶ 3, at 2, filed October 5, 2016 (Doc. 52). The Court permitted Mr. Anderson to withdraw. See Order Granting Motion to Withdraw as Counsel and for Appointment of New Counsel, filed October 19, 2016 (Doc. 57). Laneham's next appointed attorney, Amy Sirignano, represented Laneham for seven months before moving to withdraw, explaining that “[a]n irreconcilable breakdown in the attorney-client relationship has occurred.” Sealed Motion to Withdrawal [sic] as Counsel, Request for Substitution of Court-Appointed Counsel ¶ 3, at 1, filed May 23, 2017 (Doc. 91). See Order Granting Motion to Withdraw as Counsel and Requests for Substitution of Counsel, filed June 9, 2017 (Doc 95)(allowing Ms. Sirignano to withdraw). Laneham's current counsel, Todd Hotchkiss, was appointed June 12, 2017.

         1. The Motion for Disclosure of Information.

         Laneham filed his Motion on August 8, 2017. In the Motion, Laneham asks the Court to order the United States to provide a variety of documents and information relating to the ATF's sting operations in Albuquerque:

1. A list of all cases brought by the United States Attorney's Office resulting from the 2016 ATF sting operation conducted in Bernalillo County, New Mexico (hereinafter “ATF sting”).
2. In every ATF sting case:
A. Each defendant's race and ethnicity;
B. A complete history of each defendant's prior criminal convictions and arrests;
C. A statement of the prior criminal investigations, if any, that ATF had conducted into each defendant before initiating confidential informant contact;
D. Home address, address of arrest, address of most recent pre-ATF sting convictions, addresses of ATF sting-related approaches, contacts, meetings, or recordings for each defendant;
3. The same information requested in ¶ 2 for all individuals who were investigated during the ATF sting operation, but who were not ultimately arrested and/or charged;
4. Any grant proposals or funding requests delineating the purpose and intended effect of the ATF sting operation;
5. Any policies, practices, or selection criteria which influenced or dictated target selection in the ATF sting cases;
6. What, if anything, any confidential informant was told about the criteria being used to target individuals in the ATF sting;
7. The numbers of confidential informants that the ATF used in the ATF sting and the number of those confidential informants who had knowledge of and/or contact with non-African-American or non-Latino persons who could be targeted;
8. All contemporaneous writings, records, and/or memorializations setting out the reasons the ATF gave for pursuing - or not pursuing - an individual for arrest in the ATF sting;
9. The charging selection criteria for the ATF sting;
10. All documents and communications, including all e-mails, memos, text messages, press releases, voicemail messages, audio and video recordings, between any persons employed or contracted by the ATF, related to: the investigation of any individuals pursuant to the ATF sting; the decision to investigate (or not to investigate) anyone pursuant to the ATF sting; the charging criteria for the AFT sting; the decision to charge (or not to charge) anyone as a result of the ATF sting; the race of any defendant in the ATF sting, and the decision to decline the charging of someone in the ATF sting. ...

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