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United States v. Jackson

United States District Court, D. New Mexico

December 17, 2018



         THIS MATTER comes before the Court following a hearing on the United States' Sealed Motion to Reconsider (Doc. 89, filed 4/30/18). Having reviewed the pleadings, heard the arguments of counsel, and considered the applicable law, the Court has determined that the Government's Motion is well-taken, and is therefore is GRANTED IN PART to the extent that the Court finds it was legal error for the former presiding judge to order discovery on the selective enforcement claim, but the Motion is DENIED IN PART in that the Court will not conduct a new evidentiary hearing on the selective enforcement claim. The Government's Motion is further GRANTED IN PART in that the Court finds that the Government has complied to the fullest extent possible with the discovery ordered by the former presiding judge regarding the selective enforcement claim.


         Before the Court is the Government's Sealed Motion to Reconsider (Doc. 89) the Memorandum Opinion and Order by U.S. District Judge M. Christina Armijo (Doc. 73).[2] In that opinion, Judge Armijo granted certain discovery requests by Defendants that they assert would supply evidence to support their selective enforcement defense. In response to the issues raised by both parties at the status conference on April 9, 2018, the Court directed the Government to file the present Motion to Reconsider so the Court could comprehensively examine the underlying facts and the issues arising out of the discovery order. Docs. 87, 91.

         The selective enforcement claim is an Equal Protection challenge alleging that law enforcement officials selectively investigated or arrested defendants because of their race. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003). A selective enforcement defense requires that a defendant show a discriminatory intent by law enforcement and a discriminatory effect, in that similarly-situated individuals were not investigated or arrested based on race. United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001). If successfully asserted, it is not a defense based on innocence, but a complete defense that undermines the constitutionality of a defendant's prosecution to the extent that dismissal of the indictment(s) may be required. See, e.g., United States v. Alcaraz-Arellano, 441 F.3d 1252, 1265 (10th Cir. 2006). Before reaching the merits of the selective enforcement claim, a defendant is entitled to discovery material from the prosecution if he or she makes a threshold showing of “some evidence” of both discriminatory effect and discriminatory intent. Alcaraz-Arellano, 441 F.3d at 1264 (citing United States v. Armstrong, 517 U.S. 456, 463 (1996)).

         This Court must determine whether discovery, even the limited discovery allowed here, was granted in error based on the total record developed in these cases. The Court must also decide if these two Defendants are entitled to more discovery materials from the Government or if the Government has complied with the discovery ordered by Judge Armijo. At this stage, the Court is not ruling on the final merits of the selective enforcement defense, but the Court must, to a lesser extent, examine whether the record establishes “some evidence” of discriminatory intent and discriminatory effect sufficient to support the discovery order.


         In the summer of 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) conducted a four-month undercover operation in Albuquerque, known as the “Surge, ” that resulted in the arrests of 104 defendants who were charged in federal court.[3] Doc. 73 at 2. The ATF Surge cases were assigned randomly among the district judges in the District of New Mexico. Twenty-eight of the ATF Surge defendants are African American, twelve are white, and sixty-four are Hispanic. Doc. 73 at 2. Defendants Jackson and Coleman are both African American, and their cases have been consolidated solely for the purpose of raising this selective enforcement defense. Doc. 73 at 1 n1. Lonnie Jackson (“Jackson”) is charged with distributing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Doc. 2362:2.[4] Diamond Coleman (“Coleman”) is charged with multiple counts of distributing methamphetamine, using and carrying a firearm during and in relation to a drug trafficking crime, and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and (c), and 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and (C). Doc. 2363:3.

         Many of the Surge cases have already concluded; however, in addition to Defendants Jackson and Coleman, there are two other defendants in two separate cases who have raised selective enforcement claims. The first case is United States v. Laneham, No.16-cr-2930-JB, 2017 U.S. Dist. LEXIS 176486, pending before U.S. District Judge James O. Browning, and the second case is United States v. Casanova, No. 16-cr-2917-JAP, pending before Senior U.S. District Judge James A. Parker. In the Laneham case, Judge Browning ruled against Defendant Laneham on his request for discovery, finding that he failed to meet the required evidentiary burden in order to obtain the discovery he requested. 2017 U.S. Dist. LEXIS 176486. In the Casanova case, Judge Parker granted Defendant Casanova's discovery request in part and, after ordering the parties to confer and resolve discovery disputes, ruled that the United States must produce the NCIC reports created or obtained by ATF Agent Russell Johnson if those reports were “within the possession, custody, or control of the government.” 16-CR-2917, Doc. 83 (Dec. 13, 2017). Counsel for Defendant Casanova has since filed a Motion to Dismiss Because of Selective Enforcement of the Criminal Law (Doc. 102), and a hearing on that motion is pending before Judge Parker.

         Most of the litigation in the two cases involving Defendants Jackson and Coleman has revolved around Defendant's Motion to Compel Discovery Pertaining to Claim of Selective Enforcement, Doc. 29 (filed 4/19/17), and Defendant's Supplement to his Motion to Compel Discovery, Doc. 45 (filed 9/21/17), in which Defendants requested discovery items for their selective enforcement claims. After the initial request, Defendants and the Government reached a resolution as to some of the discovery items requested, and then Defendants filed the supplement to their discovery motion for the remaining items. Doc. 45, filed 9/21/17; Government Response, Doc. 47, filed 10/5/17. To determine whether Defendants Jackson and Coleman had made the proper showing to obtain these discovery items, an extensive evidentiary hearing was held in front of Judge Armijo on October 30, 2017, and December 13, 2017, during which the Government presented the testimony of two key ATF agents. Agents Russell Johnson and Richard Zayas testified about their roles in the ATF Surge in Albuquerque. The Government entered fifty-nine exhibits on the record (Ex. 1-56, 57, 59, 60), and Defendants entered sixteen exhibits (Ex. A-O, R).

         In the Memorandum Opinion and Order (Doc. 73, filed 2/7/18), Judge Armijo granted defendants' discovery requests for Defendants' items numbered 1 and 3:

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.
3) All NCIC criminal 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. 73 at 3, 4, 26. After the undersigned judge was randomly assigned these two cases, the United States filed a Notice of Inability to Supply Further Discovery (Docs. 80, 81) on March 18 and 20, 2018, in which the Government indicated that it had complied with Judge Armijo's discovery order.

         During the status conference on April 9, 2018 (Doc. 87), at which both Defendants Jackson and Coleman were present, the Court heard limited argument on the discovery dispute. Defendants maintained that the Government had not produced discovery to the extent ordered by Judge Armijo, while the Government asserted that it had complied and it could not produce more discovery. At that time, the Court resolved the remaining issues with the unsealing of certain exhibits for public viewing, but the Court was unable to resolve the discovery dispute without more information from the parties. Given that the two above-captioned cases had been randomly reassigned as a result of Judge Armijo's recusal and considering the undersigned judge's unfamiliarity with the record in these two cases, the Government was ordered to file a motion to reconsider, with Defendants Jackson and Coleman having the opportunity to respond in accordance with the local rules of this District. The Court set a briefing schedule for the parties (Doc. 88) and struck the Government's Notice of Inability to Supply Further Discovery (Docs. 80, 81, 86) from the record.

         The Government filed the instant Sealed Motion to Reconsider on April 30, 2018 (Doc. 89), to which Defendants filed their joint response on June 25, 2018 (Doc. 97) and the Government submitted its sealed reply brief on July 13, 2018 (Doc. 101). The Court heard oral arguments from the Government and both Defendants regarding the Motion to Reconsider at the hearing on August 3, 2018. Doc. 108, Clerk's Minutes; Doc. 118, Transcript of Proceedings. The Government contends that Judge Armijo erred in granting discovery, and further, that it has complied with the discovery order and the production of the remaining discovery materials Defendants demand is unduly burdensome. Defendants argue that Judge Armijo did not err in granting discovery and that the Government is obligated to produce more materials under the discovery order, which Defendants contend is not unduly burdensome.

         First, the Court reviews the law for selective enforcement claims and the record that was in front of Judge Armijo in order to address whether Judge Armijo committed legal error in granting discovery. Second, the Court examines the discovery dispute and its proper resolution.


         I. Legal authorities

         A. Selective enforcement defense elements and discovery standards

         A decision to prosecute or enforce the law that is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification is a denial of equal protection.” United States v. DeBerry, 430 F.3d 1294, 1299 (10th Cir. 2005) (citing Oyler v. Boles, 368 U.S. 448, 456 (1962)) (quotation marks omitted). The Equal Protection Clause thus provides different constitutional protection from law enforcement and government conduct than the protections of the Fourth Amendment. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d. 1157, 1166 (10th Cir. 2003) (“[T]he right to equal protection may be violated even if the actions of the police are acceptable under the Fourth Amendment.”); Whren v. United States, 517 U.S. 806, 813 (1996) (“[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.”). “Racially selective law enforcement violates this nation's constitutional values at the most fundamental level[, ]”and was “one of the central evils addressed by the framers of the Fourteenth Amendment.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1263 (10th Cir. 2006) (quoting Marshall, 345 F.3d at 1167). As the Tenth Circuit has explained, “[t]he ban on discriminatory prosecution is not limited to the states but also applies to the federal government under the Fifth Amendment's Due Process Clause.” DeBerry, 430 F.3d at 1299 (citing Wayte v. United States, 470 U.S. 598, 608 n.9 (1985)).

         A defense grounded in “a claim of racially selective law enforcement draw[s] on what the Supreme Court has called ‘ordinary equal protection standards.'” Marshall, 345 F.3d. at 1168 (citation and quotation marks omitted)). To succeed on a claim of racially selective enforcement or prosecution, a defendant “must establish two elements: [1] the federal . . . policy had a discriminatory effect and [2] it was motivated by a discriminatory purpose.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006) (quoting United States v. Armstrong, 517 U.S. 456, 465 (1996) (establishing the requirements for selective prosecution defense)). The Tenth Circuit has ruled that “[t]he elements are essentially the same” for a selective prosecution defense as for a selective enforcement defense, “which challenges the decision[s] and actions of the law enforcement officer[s], not the exercise of discretion by the prosecutor.” Id. at 1262, 1264. As the Supreme Court of the United States explained the framework for selective prosecution in United States v. Armstrong, 517 U.S. 456 (1996), this “claim is not a defense on the merits to the criminal charge itself, but an independent assertion” that the defendant was stopped or arrested “for reasons forbidden by the Constitution.” 517 U.S. at 463. A successful selective enforcement defense therefore is a “complete defense” in the sense of a challenge that undermines the constitutional integrity of a defendant's charge so extensively that dismissal of the indictment may be the appropriate remedy. See Schwartz v. N.M. Corr. Dep't Prob. & Parole, 384 Fed.Appx. 726, 730 (10th Cir. 2010) (“Selective prosecution is generally a complete defense to a criminal charge.” (citing Kramer v. Village of N. Fond du Lac, 384 F.3d 856, 862 (7th Cir. 2004) (“Selective prosecution and entrapment are complete defenses to a crime. If [a defendant] had successfully asserted either one of them at his trial, [he] would not have been convicted.”))); accord Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (finding a violation of the Fourteenth Amendment in the application of the law to petitioners and ruling that “[t]he imprisonment of the petitioners is, therefore, illegal, and they must be discharged”).

         The standard of proof for selective prosecution and selective enforcement claims must be “demanding” because of the burden that judicial interference with law enforcement imposes upon the justice system as a whole. Alcarez-Arellano, 441 F.3d at 1264; Armstrong, 517 U.S. at 465 (stating the demanding standard “stems from a concern not to unnecessarily impair the performance of a core executive constitutional function”). Even procuring discovery for a claim of selective prosecution and enforcement places a large burden on the Government “to assemble from its own files documents which might corroborate or refute the defendant's claim.” Armstrong, 517 U.S. at 468. The Supreme Court explained that “[e]xamining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement . . . and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.” Id. at 465 (citation omitted). Additionally, “[c]harges of racial discrimination . . . may be easy to make and difficult to disprove.” Marshall, 345 F.3d at 1167. Another relevant consideration is that imposing judicial oversight upon law enforcement actions may “induce police officers to protect themselves against false accusations in ways that are counterproductive to fair and effective enforcement of the laws, such as by directing law-enforcement resources away from minority neighborhoods.” Alcarez-Arellano, 441 F.3d at 1264 (citing Marshall, 345 F.3d at 1167). Thus, “the standard for proving a selective-enforcement claim should be, as with selective-prosecution claims, ‘a demanding one.'” Id. (citing Marshall, 345 F.3d at 1167, and Armstrong, 517 US. at 463).

         To satisfy the “discriminatory purpose” prong, a defendant must show “that discriminatory intent was a motivating factor in the decision to enforce the criminal law against the defendant.” Alcaraz-Arellano, 441 F.3d at 1264. Discriminatory intent does not have to be the sole motivating purpose, but such intent must have been “a motivating factor in the decision . . . .” Marshall, 345 F.3d at 1168. Discriminatory purpose is not only the effect on the defendant, as it “implies more than . . . intent as awareness of consequences. It implies that the decisionmaker . . . 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.” Wayte v. United States, 470 U.S. 598, 610 (1985) (citation omitted). Discriminatory intent may be proven through direct or circumstantial evidence. Alcarez-Arellano, 441 F.3d at 1264. Although the Tenth Circuit has stated that “[s]tatistical evidence can be used to show both discriminatory effect and discriminatory purpose[, ]” Blackwell v. Strain, 496 Fed.Appx. 836');">496 Fed.Appx. 836, 839-40 (10th Cir. 2012) (citing Marshall, 345 F.3d at 1168), the Supreme Court has acknowledged that “statistical proof normally must present a ‘stark' pattern to be accepted as the sole proof of discriminatory intent under the Constitution, . . . .” McCleskey v. Kemp, 481 U.S. 279, 293-94 (1987) (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)) (rejecting argument that statistical analysis demonstrated discriminatory purpose and upholding constitutionality of Georgia death sentencing process).

         Regarding the “discriminatory effect” requirement, when a defendant's selective enforcement “claim is based on the investigative phase of the prosecution, . . . the defendant must . . . make a credible showing that a similarly-situated individual of another race could have been, but was not, arrested or referred for federal prosecution for the offense for which the defendant was arrested and referred.” United States v. James, 257 F.3d 1173, 1179 (10th Cir. 2001). The defendant may satisfy this requirement “by identifying a similarly-situated individual or through the use of statistical evidence.” Id. When a defendant uses statistical evidence to show a discriminatory effect, the statistical evidence should “include (1) reliable demographic information, (2) some manner of determining whether the data represents similarly situated individuals, and (3) information about the actual rate of occurrence of the suspected crime across relevant racial groups.” United States v. Alabi, 597 Fed.Appx. 991, 997 (10th Cir. 2015) (citing Marshall, 345 F.3d at 1168). In the context of selective prosecution, the Tenth Circuit adopted the Fourth Circuit's formulation that “defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” DeBerry, 430 F.3d at 1301 (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)). In the investigative phase of an operation, therefore, defendants are similarly situated when their circumstances provide no “distinguishable legitimate” factors that might justify enforcing the law differently upon each of them. Accord United States v. Hare, 820 F.3d 93, 99 (4th Cir. 2016) (applying Olvis definition of “similarly situated” to selective enforcement and providing definition as: “their circumstances present no distinguishable legitimate [enforcement] factors that might justify making different [enforcement] decisions with respect to them”); see also United States v. Venable, 666 F.3d 893, 900-01 (4th Cir. 2012) (providing factors the district court should examine when determining whether individuals are similarly situated in selective prosecution case).

         As the United States Supreme Court explained in Armstrong, the “justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.” 517 U.S. at 468. Echoing the Supreme Court's purposefully high discovery standards for selective prosecution, the Tenth Circuit adopted the Armstrong standard outright for discovery in a selective enforcement action in Alcarez-Arellano. 441 F.3d at 1264. Under the Tenth Circuit standard, a defendant seeking discovery for a selective enforcement defense must “produce ‘some evidence' of both discriminatory effect and discriminatory intent.” Id. (citing Armstrong, 517 U.S. at 468) (stating “[i]n James we applied this standard to a claim of selective enforcement” (citing 257 F.3d at 1178-81)). In Armstrong, the Supreme Court noted the “some evidence” standard required for discovery was also described by appellate courts as a “‘colorable basis,' ‘substantial threshold showing, ', ‘substantial and concrete basis,' or ‘reasonable likelihood[.]'” 517 U.S. at 468. Therefore, “[a]lthough defendants seeking discovery need not establish a prima facie case of selective prosecution, they must satisfy a ‘rigorous standard.'” Alcarez-Arellano, 441 F.3d at 1264 (citing Armstrong, 517 U.S. at 468). In Armstrong, the Supreme Court stated that despite the Court of Appeals' “concern about the evidentiary obstacles defendants face . . . . the required threshold . . . adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution.” 517 U.S. at 470. The Tenth Circuit has explained that “[f]or similar reasons discovery is limited[]” and discovery must “itself be a significant barrier to the litigation of insubstantial claims.” Alcarez-Arellano, 441 F.3d at 1264 (citing James, 257 F.3d at 1178).

         B. Pretrial defense motions

         Federal Rule of Criminal Procedure 12(b) provides that a defense “must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits . . . [including] a defect in instituting the prosecution, including selective or vindictive prosecution.” Fed. R. Crim. P. 12(b)(3)(a)(iv). The Tenth Circuit has explained that “[c]hallenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence. Rather, [a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (internal citations omitted). Therefore, in deciding whether Defendants should receive discovery to support their selective enforcement defense, this Court treats the proffered facts as true. This treatment, however, does not constitute fact-finding that binds this Court, the parties, or a jury outside of the issue of whether Defendants are entitled to discovery on the selective enforcement defense under Judge Armijo's Memorandum Opinion and Order (Doc. 73). Furthermore, the Court's treatment of the allegations against Defendants as true for the purpose of ruling on the discovery issue has no effect on the presumption of Defendants' innocence.

         C. Standard for reconsideration of an interlocutory order

         Although the Federal Rules of Criminal Procedure do not specifically provide for motions to reconsider, the Tenth Circuit has ruled that a district court may properly grant such a motion in a criminal case. United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014) (citation omitted) (applying law of the case grounds to motion to reconsider suppression ruling). The Tenth Circuit has provided that “[t]he law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (quotation and citation marks omitted). Defendants rely on the tenet that “[w]hen law of the case doctrine applies, three circumstances generally warrant departure from the prior ruling: (1) new and different evidence; (2) intervening controlling authority; or (3) a clearly erroneous prior decision which would work a manifest injustice.” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011). Defendants maintain that none of these three circumstances are present and that the Court must deny the Government's Motion to Reconsider.

         The Government contends that the law of the case doctrine is not binding here, and the Court agrees that the “law of the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one judge to another.” Id. at 1252; see United States v. Johnson, 12 F.3d 1540, 1544 (10th Cir. 1993) (applying this principle in criminal case). Thus, “district courts generally remain free to reconsider their earlier interlocutory orders.” Been v. O.K. Indus., 495 F.3d 1217, 1225 (10th Cir. 2007) (providing that “the rule is a flexible one that allows courts to depart from erroneous prior rulings, as the underlying policy of the rule is one of efficiency, not restraint of judicial power” (internal citation omitted)). In Rimbert, the Circuit outright rejected the proposition that the “doctrine of law of the case should apply to constrain a successive district judge's ability to revisit discretionary, interlocutory decisions made by prior judges.” 647 F.3d at 1251. Considering the transfer of a case before the entry of a final judgment, “the [law of the case] doctrine does not bind a judge to following rulings in the same case by another judge of coordinate jurisdiction as long as prejudice does not ensue to the party seeking the benefit of the doctrine.” Id. (quoting Johnson, 12 F.3d at 1544 (applying to criminal case)). Even then, “[t]he relevant prejudice is limited to lack of sufficient notice that one judge is revisiting the decision of a prior judge and the opportunity to be heard with respect to the new ruling.” Id. As the Circuit further commented in Rimbert, which reconsidered a Daubert ruling, “it was not manifestly unreasonable for the district court to, upon being assigned a new case, independently assure itself of the expert's reliability and to fulfill its gatekeeper function.” Id. at 1253.

         In this case, the discovery order constitutes an interlocutory order. Rodriguez v. IBP, Inc., 243 F.3d 1221, 1227 (10th Cir. 2001) (explaining that a final order “ends litigation on the merits and leaves nothing for the district court to do but execute the judgment . . . . Discovery orders generally are interlocutory and not immediately appealable”); see also Elephant Butte Irrigation Dist. v. U.S. Dep't of Interior, 538 F.3d 1299, 1306 (10th Cir. 2008) (“[E]very order short of a final decree is subject to reopening at the discretion of the district judge.” (quotation omitted)). The parties clearly had notice that this Court is reconsidering Judge Armijo's Discovery Order, as the Court informed the parties of as much on the record at the status conference (Doc. 87), the parties briefed these issues for the Court (Docs. 89, 97, 101), and the parties all argued these issues on the record at the August 3, 2018 hearing (Doc. 108). Therefore, there is no reason that this Court cannot reconsider the interlocutory discovery order issued by Judge Armijo in her Memorandum Opinion and Order, as this Court is not bound to only the three grounds for reconsideration under the law of the case doctrine and there is no prejudice to the parties for lack of notice. Additionally, if the law of the case doctrine were binding upon the Court here, this is an instance in which reconsideration would be proper because “a clearly erroneous prior decision . . . would work a manifest injustice[, ]” Rimbert, 647 F.3d at 1251, as this Court finds that Judge Armijo clearly erred in her prior decision granting discovery, which continues to work an injustice upon the Government through the unmanageable burden of continuing to provide discovery.


         Summary of evidence and legal application

          For the Government's Motion to Reconsider, the Court will review factual findings and legal conclusions in the Memorandum Opinion and Order by Judge Armijo (Doc. 73). The Court looks to the factual recitation by Judge Armijo, and where that recitation is inadequate or ambiguous, the Court has independently consulted the record. The Court finds no reason that the existing record is insufficient. As one of the issues within the Motion to Reconsider is whether the Court should re-conduct the evidentiary hearing and make new factual findings, it would be premature for the Court to set aside the facts as Judge Armijo determined them and as the record reflects before analyzing the issues by referencing the current record.


         Discriminatory intent

          Defendants relied on three theories to show discriminatory intent, none of which were sufficient to show that ATF possessed a discriminatory purpose in investigating or arresting the Surge defendants. Defendants presented evidence on three theories: the social theory of homophily; the “prior misconduct” by some of the agents involved in this operation; and ATF's decision to target the southeast quadrant of the city. The Court agrees that Defendants failed to demonstrate discriminatory intent.


         There was an evidentiary hearing in front of Judge Armijo on October 30, 2017, and December 13, 2017, at which time the Government put numerous Reports of Investigation on the record (Government's Exhibits 1-56) about individuals investigated and arrested in the Surge. Tr. 10/30/17, 57:13-14; see also Government's Exhibit 59 (summary of Exhibits 1-56; Tr. 10/30/17, 61:24). Regarding the selection of the confidential informants (CIs), Special Agent Russell Johnson, one of the two lead case agents in the operation, testified that ATF enlisted three black CIs and two Hispanic CIs. Tr. 10/30/17, 28:17-19. Agent Johnson stated that there were no white confidential informants available for the operation. Tr. 12/13/17, 244:12-15. He also testified that he selected CIs who had experience with this kind of operation, and they were CIs that the ATF had worked with in the past from various locations in the United States. Tr. 10/30/17, 28:25-29:1; see also Tr. 12/13/17 243:19-244:25.

         In determining whether to target an individual by initiating investigation, Agent Johnson testified

[t]here was not an official decision-making process. We'd look at the information that the CIs would provide. What is this particular individual involved in? Is it firearms? Is it narcotics? We'd look at criminal history; outside factors; talk to local police officers that we worked with as a part of the operation. So there wasn't a hard set, okay, this is the criteria, you've got to check these boxes. It was all on a case-by-case basis, depending on the information we received.

Tr. 10/30/17, 29:2-15. Agent Johnson also provided as follows:

Q. Were there targets who were not known to ATF initially, who surfaced during the operation?
A. Yes. There was a lot of targets. You know, the confidential informants might meet a guy who said, “I have guns or narcotics, ” and then a deal might not ever materialize. There were guys, you know, not to use “come and go, ” but guys that would pop up just randomly one day, that the CI ran into. So fluid is a very good way to describe the day-to-day operations. There wasn't a hard set plan on any given day.
Q. And I believe you testified to this before, but was the criteria, essentially criminal history criteria, was that set in stone?
A. No.

Tr. 10/30/17, 29:24-30:12; see Tr. 10/30/17, 52:21-23 (“Q. Now, in terms of ATF's criteria for selecting targets, was race any part of that criteria? A. No.”). On cross-examination, Agent Johnson testified:

Q. And then you would make a decision if that person was what you-I'm going to use the term that you've used in the past-“a righteous target”?
A. Yes.
Q. And what do you mean by “a righteous target”?
A. Somebody that we want to pursue further, to see if they're involved in the activity that they told the CI they're actually involved in.
Q. And you base that on their criminal history?
A. Whether it's the criminal history; what our local or state or federal counterparts know about the individual or the area; if it's a specific neighborhood and there's an individual with that same moniker that supposedly is involved in different things. It was a case-by-case basis.
Q. And at that point, you would decide if someone was worth pursuing or not, correct?
A. If we wanted to possibly attempt to arrange a transaction.

Tr. 10/30/17, 98:6-24. Agent Johnson clarified:

But when I say “a righteous target, ” when we decide to start a case with an individual, we start somewhere. We started with Diamond Coleman. We started with Lonnie Jackson. We started with Yusef Casanova. If they bring somebody else into the picture, you know, that's not on us. And earlier testimony regarding conspiracies, if they bring in Eulalio Rangel or somebody else who has a criminal history that's lighter than theirs, we didn't choose for that person to show up. So when we're talking about why we pursued certain individuals, it's when we initiated a case.

Tr. 10/30/17, 100:6-16.

         Agent Johnson characterized the interactions in which the CI met one individual, who then introduced the CI and the undercover agent to another contact who provided the agent with firearms or drugs, as “conspiracies.” Tr. 10/30/17, 20:30-31:5; 31:17-19 (describing conspiracies as “two or more people engaged in criminal activity together that we ultimately charged, ” but not necessarily charged as a conspiracy). Twenty-seven of the Surge defendants were “stand alone” defendants, and the rest of Surge defendants were associated with a “conspiracy.” Tr. 10/30/17, 49:6-10. The Court admitted Exhibit 57, which is a comprehensive summary composed by Agent Johnson of the “conspiracies” that came out of individual meetings. Tr. 10/30/17, 31:15-43:15. There were twenty-six “conspiracies” in the Surge operation. Tr. 10/30/17, 30:22-25. Agent Johnson testified as follows:

Q. And so explain to me how the CI process works in the context of how the CIs operated in terms of identifying targets and then potentially identifying other targets based on the initial targets.
A. We would interview or debrief the CIs on a daily basis, myself and other agents. The CIs would provide us the information regarding an individual they met. We saw at least 26 times throughout the operation, based on there being at least 26 multi-defendant cases, where the CI would meet one individual. We, as undercovers, would meet with that individual. That individual would then introduce us to other people. And so a lot of the cases involved started with one particular target, and then based on the target's actions, he would bring other targets into the operations.

Tr. 10/30/17, 30:16-31:5. Thus, ATF conducted transactions with initial targets, but agents also conducted transactions with other individuals that the initial target brought into the operation.

         Agent Johnson testified:

The conspiracies are determined by the targets, and we have no control over that, and we don't worry about, you know, who they're going to bring, as long as individuals they bring-you know, they're supposed to bring narcotics. If they bring that, then we pursue.

Tr. 10/30/17, 51:21-25. He explained further:

The defendants make the decision on who they bring to transactions or who they choose to associate with for illegal activity. We don't make that choice for them. We don't tell them who to bring. They bring individuals that they associate with for whatever reason they choose.

Tr. 10/30/17, 52:13-17.

         Regarding the purpose of the operation, Agent Johnson testified:

Q. And you were to go out and get people who you considered to be violent criminals, correct?
A. Involved in illegal activity, to include firearms trafficking, narcotics trafficking, which led to and was a part of the violence in this city.

Tr. 10/30/17, 102:13-17. Agent Johnson also testified:

Q. Did you have any policies or statements or summaries of how you and ATF, as part of this enhanced enforcement initiative, define the term “violent criminal”? A. No. As I testified earlier, there was not a set in stone checklist.

Tr. 10/30/17, 96:22-97:1. When asked whether the CIs were “trained in avoiding implicit bias”, ...

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