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United States v. Jackson

United States District Court, D. New Mexico

February 7, 2018

UNITED STATES, Plaintiff
v.
LONNIE JACKSON, Defendant. and UNITED STATES, Plaintiff,
v.
DIAMOND COLEMAN Defendant.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO Chief United States District Judge

         THIS MATTER is before the Court on Defendants'[1] Motion to Compel Discovery pertaining to Claim of Selective Enforcement. [Doc. 2362:29; Doc. 2363:28] The Government responded [Doc.32], and Defendants replied. [Doc.35] After the Government provided some of the materials sought in Defendants' Motion, Defendants submitted a supplemental brief [Doc. 45], in which they outlined the remaining items sought, and the Government responded to the supplement. [Doc.47] Defendants filed a reply as well. [Doc.52] An evidentiary hearing was held on October 30, 2017 and December 13, 2017.

         The Court has considered the parties' submissions, the evidence presented at the hearings, and the relevant law, and is otherwise fully informed. For the following reasons, the Court GRANTS IN PART Defendants' Motion.

         I. Background and Summary of Requested Information

         Lonnie Jackson was indicted for distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). [Doc. 2] Diamond Coleman was indicted for distribution of methamphetamine, using and carrying a firearm during and in relation to a drug trafficking crime, and being a felon in possession of a firearm and ammunition. [Doc. 2363:2] Both Defendants were arrested during a “surge” operation in Albuquerque by the Bureau of Alcohol, Tobacco, and Firearms (ATF) in 2016. During the surge, the ATF was aided by five confidential informants, who were recruited from throughout the country. Three of the confidential informants were black and two were described as Hispanic. [12/13/17, 44:5-11] One hundred and four people were arrested as a result of the surge. Twenty-eight of those arrested are black, twelve are white, and sixty-four are Hispanic. [Def. Exh. O; Doc. 28-5; 10/13/17, 78:6-10]

         Defendants seek discovery of a wide range of materials relating to the surge and to a possible claim of selective enforcement. Defendants, who are black, argue that they are entitled to these materials because they have shown sufficient evidence of discriminatory intent behind and discriminatory effect of the ATF sting. [Doc. 29]

         In their original Motion to Compel Discovery, Defendants sought disclosure of fourteen types of information. [Doc. 29] A hearing on Defendants' Motion to Compel Discovery was originally scheduled for June 27, 2017. That hearing was continued on Defendants' motion so that the parties could meet and work out discovery without intervention. [Doc. 39; Doc. 40] The Government subsequently provided some of the information requested and objected to other requests. [Doc. 45-2] On September 21, 2017, Defendants filed a supplement to their motion requesting types of information which had not been provided. [Doc. 45] The Government responded. [Doc. 47]

         The current information sought by Defendants is:

1. The [National Crime Information Center (NCIC)] criminal history report relied on by the ATF during the investigation of the member of the Albuquerque ATF surge defendant class, in each of the 103 Albuquerque ATF surge cases. [Doc. 45, pg. 7]

         The Government argues that it has already provided pretrial services reports to the defense and that those reports should be sufficient. [Doc. 47, pg. 5] Defendants counter that they need to know what the agents knew at the time they made the decision to arrest (or not arrest) people encountered during the surge. [Doc. 52, pg. 8] The defense wants to use this information to show whether the criminal history that the ATF claims to have relied on was the deciding factor in arrest decisions, or not. [Doc. 45, pg. 10] Because Defendants already have NCIC reports for cases represented by the Federal Public Defender's office, they are requesting only the NCIC reports for defendants not represented by that office. [Doc. 45, pg. 9]

2. The address of the location where a confidential informant approached the initial target that ultimately led to the arrest of a member of the Albuquerque ATF Surge defendant class, in each of the 103 Albuquerque ATF surge cases. [Doc. 45, pg. 10]

         The Government argues that this information is immaterial and irrelevant. [Doc. 47, pg. 7] Defendants counter that the information is material because they want to know whether the location of first contact is consistent with the target area for the surge as described by the ATF. [Doc. 45, pg. 11; Doc. 52, pg. 10]

3. All NCIC criminal history reports requested or generated, related to the Albuquerque ATF Surge, by any law enforcement officer working on the Albuquerque ATF Surge, between March 1, 2016 and September 30, 2016. [Doc. 45, pg. 11-12]

         Defendants argue that this information is necessary so that they can see if, for example, white individuals with criminal histories within the target criteria were identified by the ATF but not pursued. [Doc. 45, pg. 12] The Government relies on its objection to #1 above. [Doc. 45-2] It also argued at the hearing that this request is overly burdensome, presented issues with privacy, and could lead to similar requests by other defendants. [10/30/17, 15:4 - 20:9]

4. Any grant proposals and funding requests, as well as any other documents or communication, delineating the purpose and intended effect of the Albuquerque ATF Surge operation. [Doc. 45, pg. 13]

         Defendants argue that they need this information to understand what ATF had in mind as the effect of the Surge and to see if ATF had instituted measures to avoid racial profiling in its operations. [Doc. 45, pg. 13] The Government argues that it did not receive any grant funding for the operation in Albuquerque in 2016, and further objects to providing funding requests as irrelevant. It asserts that it has provided any documentation it has regarding the purpose of the ATF Surge operation. [Doc. 45-2, pg. 3]

5. All documents and communications reflecting what, if anything, any confidential informant involved in the Albuquerque ATF Surge was told about which individuals or class of individuals to target/not to target. [Doc. 45, pg. 14]

         Defendants argue that, although the ATF maintains that the confidential informants were only told which geographic area to target, it does not make sense that they were not also told which individuals to target. [Doc. 45, pg. 14] Thus, they seek any information about what the confidential informants were told about whom to target within the specified geographic area. The Government argues that it did not use individual target selection criteria, but rather focused on a geographic area. It further asserts that information about the target geographic area was disclosed already. [Doc. 47, pg. 7-8; Doc. 45-2, pg. 3]

6. All communications between any confidential informant involved in the Albuquerque ATF Surge and any target of the Albuquerque ATF Surge, whether the target was ultimately arrested and charged or not, to include all communications from any and all phones utilized by the confidential informant, business or personal, official or unofficial, as well as all emails, text messages, voicemail messages, audio and video recordings, recorded phone calls, and social media communications. [Doc. 45, pg. 15]

         Again, Defendants want to be able to compare the communications with defendants to those who were not arrested, to see if race was the deciding factor in the arrest decision. [Doc. 45, pg. 15] The Government objects to this request as overbroad and irrelevant. [Doc. 45-2, pg. 4]

7. All documents and communications . . . between any persons employed or contracted by the ATF, related to: the area of town to target, the decision to target (or not to target) anyone pursuant to the ATF Surge, the decision to pursue (or not to pursue) any target of the ATF Surge, the decision to arrest (or not to arrest) anyone pursuant to the ATF Surge; the charging criteria for the ATF Surge; the decision to charge (or not to charge) anyone as a result of the ATF Surge; and the race of any target, potential target, and/or defendant in the ATF Surge. . . . [Doc. 45, pg. 17]

         The Government objects to this request as overbroad and irrelevant. [Doc. 45-2, pg. 4]

8. All training manuals utilized in or influencing the manner of execution of the Albuquerque ATF Surge. [Doc. 45, pg. 17]

         The Government objects to this request as overbroad and irrelevant. [Doc. 45-2, pg. 4]

9. All documents, communications, meeting notes, data, studies, and reports relied upon in selecting the so-called SE quadrant of Albuquerque as the target area. [Doc. 45, pg. 17-18]

         The Government maintains that, to the extent such materials exist, they have been provided already. [Doc. 45-2, pg. 5]

10. All TLOxp reports requested or generated, related to the Albuquerque ATF Surge, by any law enforcement officer working on the Albuquerque ATF Surge, between March 21, 2016, and September 30, 2016. [Doc. 45, pg. 18]

         Defendants argue that this information is relevant to determining whether there were some non-black individuals who fit the target criteria but who were not pursued. [Doc. 45, pg. 19] The Government maintains that this information does not exist. [Doc. 45-2, pg. 5]

11. Any and all contemporaneous reports created or generated during the investigation into Yusef Casanova's white male methamphetamine supplier, to include vehicle registration reports, driver's license information, and NCIC reports. [Doc. 45, pg. 19]

         The parties differ on the facts of the encounter with Mr. Casanova, and thus on what materials were generated during the investigation. [Doc. 45-2, pg. 5; Doc. 45, pg. 19]

12. All documents and communications reflecting what, if anything, any confidential informant involved in the Albuquerque ATF Surge was told about which areas of the city to target/not to target. [Doc. 45, pg. 20]

         The Government maintains that this information does not exist. [Doc. 45-2, pg. 5]

         II. Discussion

         1. The Discovery Standard

         “Racially selective law enforcement violates this nation's constitutional values at the most fundamental level; indeed, unequal application of criminal law to white and Black persons was one of the central evils addressed by the framers of the Fourteenth Amendment.” Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003). Our Tenth Circuit Court of Appeals has outlined what a plaintiff alleging selective enforcement must prove:

The requirements for a claim of racially selective law enforcement draw on what the Supreme Court has called “ordinary equal protection standards.” The plaintiff must demonstrate that the defendant's actions [1] had a discriminatory effect and [2] were motivated by a discriminatory purpose. . . . The discriminatory purpose need ...

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