Appeals Court Judge Tears Into ATF's Life-Wrecking, Discriminatory Stash House Stings

from the more-of-this-please dept

The ATF’s stash house stings are one of the worst things about federal law enforcement. And it’s a crowded field! Sure, the FBI routinely engages in something approaching entrapment when it turns people with self-esteem problems and/or serious mental health issues into terrorists. But the FBI can’t tell a judge how much terrorism to charge defendants with. The ATF stings — involving imaginary drugs hidden in fictitious stash houses — give the government the ability to trigger mandatory minimum sentences simply by claiming the fake stash of drugs was more than five kilos — automatically setting up defendants for 20-year prison terms.

Another victim of the ATF’s stash house stings is fighting his conviction in court. Daryle Lamont Sellers hopes to prove the ATF’s stash house stings are racially-biased. There’s some evidence this is the case. Researchers found sting operations in Chicago netted a disproportionate number of minority suspects. A review of hundreds of court cases by the USA Today showed the ATF targeted minorities 91% of the time.

Sellers says the ATF is engaging in selective enforcement. To do that, he needs information the ATF has on hand, but is refusing to hand over. The Ninth Circuit Appeals Court has declared Sellers should have access to this information because the claim he’s making isn’t the same as selective prosecution, which requires Sellers to show more than he has in this case. From the decision [PDF]:

To succeed on his selective enforcement claim, Sellers must show that the enforcement had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is. We hold that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 517 U.S. 456 (1996).

This is good news for Sellers. And it’s potentially good news for others roped in by ATF stings. If he obtains information showing discriminatory motivation, minority suspects are going to have another way to fight these charges in court.

But the entire opinion is worth reading past the opening declaration in favor of Sellers. Judge Jacqueline Nguyen tees off on the ATF in her concurring opinion, pointing out biased enforcement is only a small part of stash house sting operations’ problems.

While these operations do “not . . . reduc[e] the actual flow of drugs,”2 the government touts them as an important tool “to catch people inclined to commit home invasions.” United States v. Hudson, 3 F. Supp. 3d 772, 786 (C.D. Cal. 2014), rev’d sub nom. United States v. Dunlap, 593 F. App’x 619 (9th Cir. 2014). But when the government fails to target known criminal enterprises or people suspected of engaging in serious crimes, the practice is highly questionable and raises troubling questions about race-based targeting.

There is no legitimate dispute that these stings primarily affect people of color, but the government has steadfastly resisted any defense attempt to determine whether enforcement is racially biased.

She goes on to point out the government outsources the target selection to informants — ones who have their own interests to serve and protect. This makes it clear the ATF is searching for dangerous criminals to talk into fake stash house robberies. It’s more than willing to take whoever — which more often than not is a minority with no history of violent crime or armed robbery. From there, the government gets to decide how many years of a suspect’s life it’s willing to try to take away. Invariably, every fake drug stash is large enough to demand 20-year minimum sentences.

Then she gets right to the heart of the matter: of course the ATF’s sting operations are racially-biased. They’re based on a bunch of lies, which gives the ATF the opportunity to pick anyone as its fall guy. But the agency always seems to end up arresting the same sort of people.

Law enforcement agents, on the other hand, do not deal with a closed universe of criminal suspects. When conducting a reverse sting, literally anyone could be a target. See Black, 733 F.3d at 315 (Noonan, J., dissenting) (“In the population of this country, there is an indefinite number of persons who dream of clever and unlawful schemes to make money. Does their dreamy amorality cast them all as fit candidates for a sting by their government?”). There is no reason to suspect that persons of a particular race are more likely to agree to commit a stash house robbery unless one believes that persons of that race are inherently more prone to committing violent crime for profit—a dangerously racist view that has no place in the law. If law enforcement agents target potential stash house robbers in a race-neutral way, then the racial breakdown of targeted individuals would presumably closely mirror that in the community. If it doesn’t, then that’s potentially indicative that the agents or their informants are using discriminatory procedures.

This is what the ATF does dozens of times a year. It takes fake drugs and fake stash houses and turns them into real prison sentences. And, so far, it’s been getting away with it. But it sounds like courts are beginning to tire of locking people up for unwittingly engaging in the ATF’s charades. At some point, this will all come crashing down on the feds, but until then dangerous criminals will continue to walk the streets while down-on-their-luck nobodies serve their prison terms for them.

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Comments on “Appeals Court Judge Tears Into ATF's Life-Wrecking, Discriminatory Stash House Stings”

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42 Comments
Anonymous Coward says:

Re: Bull$hit

@@@ “Until the ATF is disbanded…”

yeah, since the courts fully endorse the existence, legality, and mission of ATF — all else the courts do in adjudicating ATF actions is just a charade.

There is no Constitutional authority for ATF to exist at all. Thus it is an outlaw organization.

(oh right, i forgot about the Commerce Clause & General Welfare Clause … which permit the Feds to do whatever they want; but then why even bother a written detailed constitution– just give the Feds plenary authority to do as they choose)

David says:

Well, here is the problem:

If you have one population group where 4% are likely to commit a crime, and one population group where 6% are likely to commit a crime, in the interest of most effective policing, in which ratio should you check (traffic stops, stash house entrapments, well you shouldn’t but you get the drift) those population groups?

The most effective way of policing (in terms of finding perpetrators) is to check the second group 100% of the time. At least, until not getting checked at all increases the crime rate among the unchecked group to match that of the checked group.

That is, of course, the ultimate in racial profiling. If you want other strategies to be optimal (and make no mistake: prohibited or not enforcement will gravitate towards what is optimal for them), you need a metric different from “net the most culprits”. The situation is actually even worse since the metric is actually “net the most convictions” and for that it is quite more important that the target does not have the means to raise a competent defense and thus has to take whatever plea deal they get.

You can easily get 10 convictions for innocent poor with the same effort you need for getting one conviction for a guilty rich person.

When the metrics are broken, getting law enforcement to do the right thing against their own interests is an uphill battle.

Anonymous Anonymous Coward (profile) says:

Re: Well, here is the problem:

Isn’t the point of law enforcement to catch and prosecute people who actually commit crimes? Not someone thinking about commiting crimes, but those who actually commit crimes. Now there could be some exceptions where the police stumble upon and actualy crime in the planning stages, but I would think they would set up and catch the criminals in the act in those instances.

When the entire enterprise is made up, what crime was actually commited?

Anonymous Coward says:

Re: Re: Well, here is the problem:

Yes, the point is law enforcement. However, the metrics for how well they enforced the law are easily gamed, because they are measured not on actual crimes solved/prevented, but on number of successful convictions. It is hardly surprising that law enforcement would seek to optimize their number of convictions. It is very bad that unscrupulous members of law enforcement chose to optimize that number through inventing crimes rather than through prioritizing resolution of real crimes.

Coyne Tibbets (profile) says:

Re: Well, here is the problem:

If you have one population group where 4% are likely to commit a crime, and one population group where 6% are likely to commit a crime, […] check the second group 100% of the time.

Okay, that’s a point.

But what if the first group was 6% and the second 4% (i.e. more like reality). Would you still check the second group more? Even if you’ve fished out the second, smaller, fishing hole: would you stubbornly keep fishing there rather than move on to the first hole?

Anonymous Coward says:

Re: Well, here is the problem:

“If you have one population group where 4% are likely to commit a crime, and one population group where 6% are likely to commit a crime ….. The most effective way of policing is to check the second group 100% of the time.”

This is obviously incorrect.

Statistically, one can not support your claim. What does “more likely” even mean in this context?
Predicting crime rates based upon past arrest records is a bit silly isn’t it? Even if it is based upon conviction rates that still is a bit silly due to the overwhelming percentage of plea bargains and a disgraceful lack of public defender funding.

Anonymous Coward says:

Re: Well, here is the problem:

The numbers automatically fuck themselves to uselessness if you allow heavy bias to be introduced. If you decide to only check people with red hair for smuggling drugs and let the ones with other hair color go unchecked eventually your numbers will shift to 100% of the convictions from red haired drug smugglers and 0% from everybody else – because you never checked anybody else in the interests of ‘efficiency’!

That One Guy (profile) says:

Re: Re: Well, here is the problem:

Sounds like a perfect case of confirmation bias just waiting to happen.

‘We know that Group A has more criminals than Group B, and as such we will devote significantly more resources to watching them and looking for any illegal actions(even if we have to ‘nudge’ things along at times).’

Some time and no few arrests passes.

‘As the evidence shows the overwhelming majority of the crimes we deal with involve people from Group A, confirming our previous suspicion that Group A has far more criminals than Group B, and is therefore much more deserving of current and future attention than other groups with lower instances of criminal activity.’

Christenson says:

Re: You missed something ELSE important...

What if the enforcement group (ATF) has a 50% chance of committing a crime, but faces no penalties???

See various cases where the gubmn’t was selling the weapons used by the violent mexican drug gang, for example…or Little Rock PD, where perjury allows arbitrary home invasions.

That One Guy (profile) says:

Re: Re: Re: If the drugs are fictional why not the prison sentence?

Absolutely correct, and wouldn’t that just completely undermine their fictional drug busts?

"According to the ATF there was five kilos of drugs in the house, which requires a mandatory minimum of 20 years behind bars. However, as there was in fact zero kilos of drugs in the house, and taking my clues from the ATF I find the defendant guilty of attempting to steal zero kilos of drugs, and sentence them to a fictional 20 years in prison, which is to say you’re free to go about your life, no prison time needed."

John Smith says:

Re: Re: Re:2 Sup liar

That is not the same “John Smith” as me.

It seems I have some cyberstalkers on this page who are ADDRESSING something over and over again, now to the point of trying to mislead people and incite them.

There has been police involvement over this for several years, and now they have “probable scause” to investigate any potential ties to the people who post here.

Seems I struck a nerve somewhere to the point where people are now reacting like this.

That One Guy (profile) says:

Re: Re: Re:3 Really, the difference is clear as day

Let’s see, both ‘John Smiths’ make impotent threats about police/legal involvement, both post under the same name, and both make statements implying that other people who post here might find themselves under investigation for being just downright meanies.

Oh yeah, I can definitely see the striking difference, and totally believe that the two are from different people.

John Smth says:

Re: Re: Re:

Some of my cyberstalkers are still going ballistic over something I posted a while ago, to the point where they are now impersonating me on this site and tryint to incite others against me.

There ahs been police involvement relating to this for several years now. Everything of this nature gets reported then it’s up to law enforcement from there.

odd that someone posting comments here would be so fixated on passing remarks that supposedly involve no one, to the point of risking identity-theft and stalking charges or anonymous-harassment charges (a federal felony 47 USC 223(h)).

Agammamon says:

One question that the judge really needs to ask – hard – is why the *AFT* is running *drug stings*.

That’s not alcohol, tobacco, nor firearms. Not even explosives. Yeah, I know – there’s a firearm involved. But the ATF’s reason for existing is crimes involving the illegal production, illegal sale, and production/sale of illegal firearms. Not every crime where a firearm might be present.

Seems to me that this sort of thing should, legally, be outside their remit. Especially since its within the remit of more general law enforcement agencies and we even created one with that specific remit – the DEA.

Somebody should be asking hard questions about why the ATF is spending its budget running guns into Mexico and busting penny-ante drug-house robberies.

Anonymous Coward says:

It’s really a pity that people seem to think the government should be able to get away with this if only it were done more often, to more differently-pigmented-integument persons.

By any moral standard, the skin-color of the victim ought to be irrelevant. The real problem is–why isn’t everyone shouting “entrapment!”? The plan and equipment for the crime were supplied by government agents.

IMO this is a terrible waste of government resources. If imaginary drugs can turn any crime into a drug-related offense, why not arrest jaywalkers for “crossing traffic lines to possess imaginary controlled substances”? Same statutory sentence, MUCH cheaper to prosecute. Or hoover up after local shoplifting convictions, piling on charges of “pilfering 2 liters of artificial Coke and 5 kg of imaginary coke from the corner market.” The heavy-lifting investigation has already been done by the local beat cops.

Paul Brinker (profile) says:

Re: Re:

Entrapment is different then what you think it is.

Say a cop, with a shirt, and badge, orders you to unholster your lawful concealed carry weapon, then arrests you for brandishing a concealed weapon in public.

This is entrapment, someone under the color of law gives you an order and you do it, then you get arrested for obeying the order.

The AFT are not giving orders under the color of law, they are “Normal” people saying, “Wanna hit up that house, its full of drugs, Here is a gun (blanks), I heard they are loaded, at least 20 kilos”

That One Guy (profile) says:

Re: Fake drugs...

“For attempted theft of 5 kilos of fake drugs, I hereby sentence you to 20 years in fake prison. You are ordered to glue a set of plastic ‘prison bars’ to whichever bedroom you are using at the time, and shall consider that your cell for the duration of your sentence, albeit one you are free to enter and leave at your discretion. Case dismissed.”

Anonymous Coward says:

Spent seventeen years in federal prison as a result of one of these stash house stings. Luckily, President Obama commutted my 24-year prison sentence or else I’d still be serving times. The courts, ATF, along with the US Attorney’s Office has know the real deal about these stings for more than 20 years now. It’s all a scam. A means to an end. Social engineering at its finest–while also appearing efficient and generating arrest statistics. 1984 is here–the dawn of an age where “thought crimes” actually result in the arrest and detention of American citizens. For decades upon decades at a time.

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