United States District Court, D. New Mexico
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.
Bruce Hotchkiss Todd B. Hotchkiss, Attorney at Law, LLC
Albuquerque, New Mexico Attorney for the Defendant.
MEMORANDUM OPINION AND ORDER
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.
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.”),  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 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,  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
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
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
African-Americans comprise 3.4 percent of Bernalillo County
residents in 2016. See U.S. Census QuickFacts:
bernalillocountynewmexico/PST045216, viewed October 9, 2017.
ATF came to Albuquerque, New Mexico, because of its high
violent crime rate. See Tr. at 4:11-22 (Johnson).
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).
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).
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
ATF did not decide to focus on southeast Albuquerque because
of the area's demographics. See Tr. at
ATF's Albuquerque operation lasted four months in 2016
and was known as the Surge. See Tr. at 3:13
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).
ATF relied on five CIs, three of whom were
black; and nine primary undercover agents, one
of whom was black. Tr. at 35:6-12 (Hotchkiss, Johnson).
ATF instructed the CIs to “try to meet individuals that
stated they were engaged in violent crime.” Tr. at
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).
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).
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).
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
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).
There was no formal process or written guidelines for
determining whom to pursue. See Casanova Tr. at
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,
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).
person's race was “absolutely not” a factor.
Tr. at 13-9:14 (Johnson).
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).
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).
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
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).
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).
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).
Johnson first learned of Cedric Laneham on April 29, 2016.
See Tr. at 61:25 (Johnson).
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).
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),
of the “big reasons” that the Memphis Mob moved
into New Mexico was the “lax state laws.” Tr. at
Although the ATF knew about Laneham, it did not actively
pursue him. See Tr. 19:24-25 (Johnson).
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
ATF sent a CI to the smoke shop [to] “try to get
further into the Memphis Mob organization.” Tr. at
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
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
CI who visited the smoke shop is African-American.
See Tr. at 59:2-6 (Hotchkiss, Johnson).
Devoual is African-American. See Tr. at 42:14-16
Williams is African-American. See ATF Surge
Defendants Spreadsheet (undated) at line 29, filed September
11, 2017 (Doc. 119-2).
May 17, 2016, the undercover agent met Devoual at ¶
7-Eleven parking lot. See Tr. at 24:6-9 (Johnson).
undercover agent then followed Devoual's vehicle and
another vehicle -- a Mitsubishi Gallant -- to a nearby
street. See Tr. at 24:10-13 (Johnson).
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
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
Laneham had a handgun in his lap. See Tr. at
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
undercover agent weighed the methamphetamine, paid Laneham,
and left. See Tr. at 24:21-25:1 (Johnson).
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).
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).
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).
ATF became interested in pursuing Laneham because of his
criminal history. See Tr. at 30:12-18 (Johnson).
ATF arrested Laneham on July 6, 2016. See Tr. at
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.
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).
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
ATF did not arrest either Casanova or the white male at that
time. See Tr. at 53:12-19 (Johnson).
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).
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
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).
ATF searched law enforcement databases for people associated
with the license plate. See Casanova Tr. at 27:16-21
ATF did not speak with the registered owner or anyone
associated with the license plate number. See Tr. at
57:22-24 (Hotchkiss, Johnson).
ATF reviewed photographs of Casanova's associates, but
did not see the unidentified white male. See Tr. at
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.
Just the “operational security issue of [doing those
interviews] would have put people in danger.” Tr. at
ATF exhausted all investigative avenues available to try to
identify the white male. See Casanova Tr. at 28:1-3
the 103 Surge Defendants, twenty-eight -- 27.1 percent --
were African-Americans. See ATF Surge Defendants
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.
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”).
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.
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
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.
The Motion for Disclosure of Information.
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
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
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
6. What, if anything, any confidential informant was told
about the criteria being used to target individuals in the
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
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
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. ...