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United States v. Casanova

United States District Court, D. New Mexico

February 11, 2019



         Defendant Yusef Casanova is charged in a three-count Superseding Indictment (Doc. 35) with (1) distribution of 5 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1); and (3) possession of an unregistered firearm with a barrel length less than 16 inches and an overall length of less than 26 inches in violation of 26 U.S.C. §§ 5861(d) and 5871. On July 24, 2018, Defendant filed DEFENDANT'S OPPOSED MOTION TO DISMISS FOR THE SELECTIVE ENFORCEMENT OF THE LAW (Doc. 101) (Motion), alleging racially-based targeting by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). After an extensive discovery process, [1] the Motion has been fully briefed.[2] The Court heard evidence and argument from counsel at a two-day hearing beginning on January 14, 2019 and concluding on January 15, 2019. At the hearing, Assistant United States Attorneys James Tierney, Kimberly Brawley, and Samuel Hurtado appeared on behalf of Plaintiff United States of America. Defendant was present in the courtroom and was represented by Assistant Federal Public Defenders Brian Pori and Melissa Morris. Based on the arguments in the pleadings and the evidence in the exhibits and testimony presented at the hearing, the Court will deny the Motion.

         I. BACKGROUND

         Defendant was arrested in June 2016 as the result of an ATF operation known as the Surge, the purpose of which was to reduce violent crime in Albuquerque. The Surge was an undercover operation in which ATF brought five convicted felons into the city and paid them to assist ATF in identifying potential criminals by acting as confidential informants (CIs). ATF initially limited the Surge to areas within the southeastern quadrant of Albuquerque, which had the city's highest rates of violent crime. Later, agents shifted their enforcement efforts to high-crime parts of western and southwestern Albuquerque, so that law enforcement could execute warrants resulting from the southeastern operation without jeopardizing the undercover status of the CIs or ATF agents.

         ATF selected the Surge locations based on consultations with local law enforcement, including the local United States Attorney's Office, the Second Judicial District Attorney's Office, local ATF and Drug Enforcement Administration agents, the Albuquerque Police Department, and the Bernalillo County Sheriff's Office. The regions were chosen due to their high crime rates and their dense populations, with substantial levels of foot traffic that would enable the CIs to interact with potential targets without appearing suspicious. ATF was not aware of and did not consider the racial or ethnic demographics of the selected enforcement areas. The parties seem to agree that these parts of town probably have higher percentages of minority residents than some other parts of Albuquerque, but there is no evidence in the record as to the demographics of the specific areas.

         ATF agents, who were to participate in the operation, chose the CIs largely based on the performance of the CIs during previous enforcement operations. Three of these CIs were black and two were Hispanic; none were white, and none were from the Albuquerque area. Lead ATF Special Agent Russell Johnson (SA Johnson) was aware of theories of implicit bias and of prior allegations of racial bias in other ATF sting operations. Nevertheless, ATF had no written tactical plan, guidelines, or targeting selection criteria for the Surge operation. The CIs were told to approach people in the target area, attempt to purchase drugs and firearms, and obtain contact information and any other potential means of identification for people who appeared to be interested in committing drug or gun crimes. The CIs were given no training or guidance on whom to approach or how to avoid bias in targeting.

         After an initial encounter with a prospective target, the CIs were to report back to ATF agents with the information they had gathered. ATF then attempted to identify the individuals approached by the CIs and to ascertain whether those individuals were likely to be seriously involved in drug or firearms crimes. ATF used databases of addresses and phone numbers, vehicle information, social media, and information from local law enforcement to identify potential targets. Once a person had been identified, ATF investigated the person's criminal history through prior convictions, police reported conduct, and reputation. If the investigation revealed a history of serious crime, ATF would authorize the CI to attempt to arrange a drug or firearm transaction between the targeted individual and an undercover agent. The CIs could continue to pursue a target only if agents authorized them to do so.

         Although ATF agents determined whether to target someone based on that person's prior criminal history, the Surge also resulted in the arrest of numerous defendants without prior documented involvement in serious crime. These defendants were not initially targeted by ATF, but they were arrested after they conspired with the original target of the ATF investigation, became involved in the criminal undertaking, and were identified by ATF agents. In total, 102 defendants were arrested and charged due to the Surge operation. See Government's Exhibit 57; Defendant's Exhibit A.[3] Of these defendants, approximately 11 were white (11%), 63 were Hispanic (62%), 27 were black (26%), and one was Native American (1%). See Government's Exhibits 1-57; Defendant's Exhibit A.[4] In contrast to these figures, census data shows that the population of Bernalillo County is approximately 50.1% Hispanic, 38.9% non-Hispanic white, and only 3.4% black. Defendant asserts that black defendants typically make up approximately 5% of the defendants federally prosecuted for drug and firearm offenses in the District of New Mexico.[5]

         Twenty-seven of the Surge defendants-two white, sixteen Hispanic, and nine black- were solitary arrests. See Government's Exhibit 57; Defendant's Exhibit A.[6] The other seventy-five defendants were arrested as conspirators, where one individual had been targeted by ATF but the targeted person had then involved others who were also arrested. See Government's Exhibit 57. Of the conspiracy cases, approximately nine defendants, or 12%, were white, forty-seven or 63% were Hispanic, one was Native American (1%), and eighteen, 24%, were black. See Government's Exhibit 57; Defendant's Exhibit A.[7] However, these seventy-five arrests were the result of only twenty-six initial targeting operations. See Government's Exhibit 57; Defendant's Exhibit A. One of the targeted individuals was white (4%), seventeen were Hispanic (65%), and eight were black (31%). See Government's Exhibit 17; Government's Exhibit 57; Defendant's Exhibit A.[8] The defendants who were not the original targets of ATF did not necessarily have a serious criminal history, and they might not have been pursued separately. However, they were arrested anyway if they were identified during the operation and probable cause existed for the arrest.

         Some individuals were identified by ATF but were not arrested because they did not participate in criminal activity. See Government's Exhibit 58; Defendant's Exhibit A. Others did commit a crime, but then could not be arrested because they were not identified by ATF. See Government's Exhibit 58; Defendant's Exhibit A. It is difficult to quantify those not identified or not arrested because ATF did not keep records of all investigations. However, the available evidence shows that during the undercover operations in which the Surge defendants were arrested, ATF agents also took notice of at least ninety-seven other people. See Government's Exhibit 58; Defendant's Exhibit A.[9] Fourteen of these other individuals were arrested by ATF, but then prosecution was either declined or referred to the state. See Id. Seventy-one did not participate in any criminal activity, so there was no probable cause for their arrest. See Id. Eight were reported by defendants as sources of supply but did not interact with agents and were not identified, so they also could not have been arrested. See Id. It appears that of the ninety-seven, agents observed four people participating in criminal activity who were not arrested. See Id. Of these four, two were black, one was Hispanic, and one was white. See Id. None of the four were identified by ATF. See id.

         One of those not identified and not arrested was Defendant's methamphetamine supplier; a white man. In Defendant's case, one of the black CIs first approached a black man named Joseph Mosley, also known as “Cash, ” at a gas station in the southeastern targeted region. The CI asked if Mr. Mosley knew anyone who could sell the CI firearms or two ounces of methamphetamine. Mr. Mosley said that he could sell methamphetamine to the CI, and ATF agents authorized further investigation. However, Mr. Mosley never produced any drugs. Instead, he gave the CI the phone number of a man named Curtis and asked for a finder's fee if Curtis was able to supply the CI with drugs. The CI spoke to Curtis over the phone several times but was not able to arrange an in-person meeting.

         Mr. Mosley then gave the CI a phone number for Defendant, as another possible source of drugs and firearms. ATF agents identified Defendant through his phone number, which was connected to his social media accounts. Agents then obtained Defendant's criminal record, which was extensive, from NCIC and authorized the CI to pursue Defendant. The CI contacted Defendant by phone, and Defendant expressed interest in arranging a sale of methamphetamine. Defendant also said that he had one firearm he could sell, and he could get more. Defendant informed the CI that he personally did not sell methamphetamine, but that he had a good supplier with whom he had spent time in prison.

         On June 7, 2016, the CI and an undercover ATF agent met with Defendant to purchase the firearm and methamphetamine in a transaction that was captured on video. Defendant sold a sawed-off rifle to the agent, along with a magazine and ammunition. The CI, the agent, and Defendant then waited for Defendant's methamphetamine supplier to arrive. Defendant telephoned the supplier repeatedly. After about 20 minutes, the supplier, who was a white male, arrived as a passenger in a small grey car. The supplier got out of the small grey car and walked past the agent as the agent introduced himself. The agent testified that the supplier did not give a name in response, but Defendant contends that the supplier replied that his name was “John.”[10]The supplier then got into Defendant's car with Defendant. Next, Defendant exited his vehicle, got into the agent's car, and gave the methamphetamine to the agent. The agent gave Defendant $600. Defendant got out of the agent's car and back into his own car with “John.” “John” then got out of Defendant's car and got back into the grey car, which left. Defendant left separately in his own car. The agent and the CI left together in the agent's car.

         After this transaction, ATF agents attempted to identify the supplier so that they could arrest him. Agents first focused on the license plate of the grey car, which had been captured by surveillance. However, the supplier was not the registered owner of the vehicle and agents were not able to link the owner to anyone appearing to be “John.” ATF did not attempt to interview the registered owner because that could have jeopardized the undercover nature of the ongoing Surge operation. Instead, ATF consulted with local law enforcement and investigated known associates of Defendant. These efforts were unsuccessful; the methamphetamine supplier was never identified, and consequently he was not charged. Mr. Mosley and Curtis were not charged because they did not participate in any drug or firearm transactions and had no in-person contact with the undercover agent. A warrant was issued for Defendant's arrest, but at that time he was already in custody on state charges. By the time ATF agents located Defendant and transferred him into federal custody, Defendant was already represented by counsel. Hence, ATF agents were unable to interview Defendant as to his supplier's identity or attempt to obtain from Defendant a phone number or other potential means of identification for the supplier.

         Defendant is a black man. He argues that the Court should dismiss the charges against him because ATF selectively enforced the law by targeting black people, so that Defendant's race made it more likely that he would be identified, pursued, and arrested than if he had been white. ...

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