Several decades ago, law enforcement agents perceived a rise in robberies at “stash houses” so they began to conduct “reverse sting” operations. The idea being that persons at a “stash houses” were particularly vulnerable to being robbed because they traded in cash and would be unwilling to involve law enforcement due to the illegal nature of activity at these houses. A “stash house” may sound like an official or menacing term, but it is simply law enforcement nomenclature for a place where items (drugs, cash, etc.) of the drug trade are kept.
Courts have long been suspicious of these types of sting operations. As the Tenth Circuit noted in Quinn v. Young, 780 F.3d 998, 1008 (10th Cir. 2015), “sting operations present unique questions relating to suspect culpability, particularly regarding the question of intent.” The Ninth Circuit boldly acknowledged the “troubling aspects” of a reverse sting designed “to find and arrest crews engaging in violent robberies of drug stash houses,” including “[t]he risk inherent in targeting ... a generalized population.” UnitedStates v. Black, 733 F.3d 294, 298 (9th Cir. 2013) ("The Black cases arise from a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values.").
Empirical data showed that the “generalized population” most commonly targeted in these operations were racial minorities. But the rub for defense lawyers has been discovering any information about “selective prosecution” or “selective enforcement” by the government. That has been true because of two Supreme Court cases in particular that placed the hurdle higher than any particular defendant has been able to clear. In United States v. Armstrong, 517 U.S. 456 (1996) and United States v.Bass, 536 U.S. 862 (2002) (per curiam), the Supreme Court held that to obtain discovery, a defendant had the burden to present “some evidence” of discriminatory effect and discriminatory intent of the government action, and the defendant’s showing must be credible and cannot generally be satisfied with nationwide statistics.
Two weeks ago, the Third Circuit in United States v. Washington, No. 16-2795(Aug. 28, 2017) took on this standard, noting that “Armstrong/Bass has proven to be a demanding gatekeeper,” and that “the lived experience, … has resembled less a challenge and more a rout, as practical and logistical hurdles abound – especially proving a negative.” If you represent a defendant charged as a result of a stash house sting, Washington is worth your time to read.
Relying upon the logic of a Seventh Circuit opinion in United States v. Davis, 793 F.3d 712 (7th Cir. 2015), the Third Circuit noted in Washington the difference between law enforcement and prosecution. In other words, the decision a prosecutor may make about who to charge is different than the decision of law enforcement on who to target. In the latter instance, “there are likely to be no records of similarly situated individuals who were not arrested or investigated – would transform the functional impossibility of Armstrong/Bass into a complete impossibility.” The Third Circuit determined that motions for discovery seeking information on putative claims of unconstitutional selective enforcement are not governed by the strict application of the Armstrong/Bass framework. Rather, a defendant who raises a claim of selective law enforcement may rely upon a proffer that shows some evidence of discriminatory effect, including reliable statistical evidence, and need not show some evidence at the initial stage of discriminatory intent.
Washington thus relaxed the legal standard for defendants seeking discovery from law enforcement agencies. It is, of course, not binding law in this Circuit. And Tenth Circuit precedent may not be helpful to these claims. In 2006, the Tenth Circuit in United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006) found that to establish a discriminatory effect in a selective prosecution race case the claimant must show that similarly-situated individuals of a different race were not prosecuted,” and that “the elements are essentially the same for a selective enforcement claim.” But as the Third and Seventh Circuits have recently shown, the lived experiences of these stash house sting operations has been to foreclose any possibility that defendants can acquire the basic information in discovery to even raise the claim. In light of these cases, and Washington in particular, defense lawyers now have new authority to rely upon to aggressively seek discovery of discriminatory practices in stash house sting operations.
-- Rich Federico
-- Rich Federico