ATF Race-Discrimination Case Loses Some Fire

     CHICAGO (CN) - For the Bureau of Alcohol, Tobacco, Firearms and Explosives, the stash-house sting, in which an undercover operative entices suspects to rob nonexistent drug stash houses, has become something of a specialty.
     Though the agency claims that these operations have put some of the nation's most "violent, hardened criminals" in prison, with little actual risk, the tactic has come under increasing fire from a number of federal judges.
     More than 1,000 people have gone to prison in the agency's operations, but a federal judge who dismissed charges against two California defendants last year described the ATF as "trawling for crooks in seedy, poverty-ridden areas - all without an iota of suspicion that any particular person has committed similar conduct in the past."
     Seven Illinois suspects found similar relief Monday from the en banc Seventh Circuit.
     They were snared when an ATF agent posing as a disgruntled drug runner whispered about a stash house that supposedly contained 50 kilos of cocaine, worth more than $1 million.
     Paul Davis recruited six others to help him rob the stash house, and discussed the possibility of killing the stash-house guards and the undercover agent to eliminate witnesses.
     ATF agents arrested the seven at the assembly point for the planned robbery and charged them with conspiracy to distribute cocaine - even though no actual drugs were involved.
     Davis and the others, all of whom are black, sought to dismiss the claims against them by arguing that the ATF's sting operations target minorities.
     They told the court that the agency has conducted 20 stash-house stings in northern Illinois since 2006. Of the defendants in these cases, 75 were black and 19 were white, and 13 of the 19 white defendants were Hispanic, they added.
     These statistics "present a picture of stack discriminatory practices by the ATF and FBI who target, through the use of informants and undercover agents, select persons to present with the opportunity to commit a hypothetical ... lucrative crime," the defendants told the court.
     U.S. District Judge John Darrah entered a broad discovery order requiring the ATF to produce all documents regarding how the agency decides to conduct "phony stash house ripoffs."
     "The prosecution in this district has brought at least twenty purported phony stash house cases, with the overwhelming majority of the defendants named being individuals of color," Darrah explained. "In light of this information, it is necessary to permit Defendants discovery on the following issues."
     The en banc Seventh Circuit vacated Darrah's order, however, in large part Monday.
     Of particular importance to the eight-judge majority was U.S. v. Armstrong, Judge Frank Easterbrook, a Reagan-appointee, wrote for the court.
     Easterbrook described Armstrong as a 1996 decision in which the U.S. Supreme Court forbade discovery into prosecutorial selectivity, even where "every defendant in every crack-cocaine prosecution filed by a particular U.S. Attorney's office" was black (emphasis in original).
     "If, as the Supreme Court held, that evidence did not justify discovery into the way the prosecutor selected cases, then proof that in the Northern District of Illinois three-quarters of the defendants in stash-house cases have been black does not suffice," Easterbrook said.
     The court extended its analysis, however, because Armstrong challenged prosecutors' decisions, whereas Davis primarily targets the ATF and FBI's alleged practice of entrapping black and Hispanic defendants in stash-house investigation at a much higher rate than white defendants.
     In the end, agents are not protected by the powerful privilege prosecutors have, and may be held personally liable for withholding evidence, according to the ruling.
     Easterbrook called the racial disproportion in stash-house prosecutions "troubling," but found that Darrah's "vastly overbroad" discovery order amounts to "an abuse of discretion."
     "Instead of starting with a blunderbuss order, a district court should proceed in measured steps," Easterbrook said. "Logically the first question is whether there is any reason to believe that race played a role in the investigation of these seven defendants."
     If the lower court found plausible evidence that race played a role in the defendants' prosecutions, "it might be appropriate to require the FBI and ATF to disclose, in confidence, their criteria for stash-house stings," according to the ruling.
     "Analysis of the targeting criteria (and whether agents followed those rules in practice) could shed light on whether an initial suspicion of race discrimination in this case is justified," Easterbrook added.
     It is important that such an inquiry begin small, so that long investigations do not sidetrack prosecutions, according to the 20-page opinion. Uncovering evidence in the initial phase could warranted more discovery and enlarge the probe, Easterbrook said.
     Judge David Hamilton joined a dissent from Judge Illana Rovner on jurisdictional grounds.
     They noted that Darrah had agreed to dismiss the indictment without prejudice, since discovery orders are not appealable, thus allowing the government to appeal the dismissal and also contest the discovery issue.
     "For all of the prudential reasons that we do not permit civil litigants to manufacture appellate jurisdiction, we should not allow an appeal based on the sort of non-final dismissal that was fabricated here," Rovner said.
     The government expressly requested the dismissal as a "sanction" for its refusal to comply with the court's discovery order, but Darrah did not hold a sanctions hearing, and simply acceded to the government's request.
     Rovner said the majority's opinion has "permitted the government and the district court to do exactly what we have forbidden in the civil context: collaborate to produce a sham judgment for the purpose of facilitating review of an otherwise unappealable, interlocutory order, when the finality typically required for such an appeal is entirely absent."
     Defense counsel Alison Siegler declined to comment on the litigation at this time.
     When the federal prosecutor in Chicago sought dismissal of drug-conspiracy charges against 27 defendants in seven stash-house cases earlier this year, The New York Times characterized the unusual decision as a "partial retreat from drug prosecutions that spurred a national debate over possible entrapment and racial profiling."
     Davis and his co-defendants were not among these dismissals.