Case 1:16-cr-02362-MCA Document 29 Filed 04/19/17 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,

CR 16-2362 MCA

vs.
LONNIE JACKSON,
Defendant.

DEFENDANT’S MOTION TO COMPEL DISCOVERY PERTAINING TO
CLAIM OF SELECTIVE ENFORCEMENT1
COMES NOW the Defendant Lonnie Jackson, by and through undersigned counsel, John
F. Robbenhaar, Assistant Federal Public Defender, and respectfully moves this Court, pursuant
to the Fifth and Fourteenth Amendments of the United States Constitution, to compel the
disclosure of the following discovery items:
1. A list of all cases brought by the United States Attorney’s Office located in
Albuquerque, New Mexico, resulting from the 2016 ATF sting operation conducted
in Bernalillo County, New Mexico (hereinafter, “ATF sting”), as publicized in the
press release attached as Defendant’s Exhibit A;
2. In every ATF sting case:
a. Each defendant’s race and ethnicity;
b. A complete history of each defendant’s prior criminal convictions and arrests;
c. A statement of the prior criminal investigations, if any, that ATF had
conducted into each defendant before initiating confidential informant contact;
d. Addresses of CI approaches with all potential and ultimate targets;
3. The same information requested in ¶ 2 for all individuals who were investigated
during the ATF sting operation, but who were not ultimately arrested and/or charged;
1

This Motion is being filed in several cases in the District of New Mexico arising out of the ATF sting.

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4. Any grant proposals or funding requests delineating the purpose and intended effect
of the ATF sting operation;
5. The names of the agents involved in the sting;
6. The target selection criteria for the ATF sting;
7. Any policies, practices, or selection criteria that influenced or dictated target selection
in the ATF sting cases;
8. What, if anything, any confidential informant was told about the criteria being used to
target individuals in the ATF sting;
9. The number of confidential informants that the ATF used in the ATF sting, their races
and ethnicities, and the number of those confidential informants who had knowledge
of and/or contact with non-African American or non-Latino persons who could be
targeted;
10. All communications, including all e-mails, text messages, voicemail messages, audio
and video recordings, recorded phone calls, and social media communications,
between any confidential informant used in the ATF sting and any target of the ATF
sting, whether the target was ultimately arrested and charged or not;
11. All contemporaneous writings, records, and/or memorializations setting out the
reasons the ATF gave for pursuing – or not pursuing – an individual for arrest in the
ATF sting;
12. All documents and communications, including all e-mails, memos, text messages,
press releases, voicemail messages, audio and video recordings, between any persons
employed or contracted by the ATF, related to: the investigation of any individuals
pursuant to the ATF sting; the decision to investigate (or not to investigate) anyone
pursuant to the ATF sting; the charging criteria for the ATF sting; the decision to
charge (or not to charge) anyone as a result of the ATF sting; the race of any
defendant in the ATF sting, and the decision to decline charging someone in the ATF
sting. Such documents and communications include those made on personally owned
devices and/or personally maintained e-mail accounts or social media accounts;
13. All national and Phoenix Field Division ATF manuals, circulars, field notes,
correspondence, or any other material which discusses “stings” or entrapment
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operations, including protocols and/or directions to agents and confidential
informants regarding how to conduct such operations, how to determine which
persons to pursue as potential targets or ultimate defendants, how to ensure that
targets do not seek to quit or leave the conspiracy before an arrest can be made, and
how to ensure that agents and confidential informants are not targeting persons for
such operations on the basis of their race, color, ancestry, or national origin;
14. All documents containing information on how supervisors and managers of the
Phoenix Field Division ATF were to ensure and/or did ensure that their agents and
confidential informants were not targeting persons on the basis of their race, color,
ancestry, or national origin for these ATF sting cases, and what actions those
supervisors and managers took to determine whether agents were, in fact, targeting
persons for those reasons.
Undersigned counsel mailed a letter to AUSA Dave Walsh on January 4, 2017,
requesting production of the above-referenced discovery items. 2 See Defendant’s Exhibit B –
Discovery Request Letter. On January 24, 2017, defense counsel received a letter from AUSA
Walsh stating that the United States did not intend to comply with the defense’s discovery
request. See Defendant’s Exhibit C – USA’s Response to Discovery Request Letter. Pursuant to
paragraph 8 (page 5) of the Discovery Order issued in this case (Doc. 10), defense counsel now
moves this Court to order the disclosure of the requested items.
PROCEDURAL BACKGROUND
On May 24, 2016, a Grand Jury returned an Indictment (Doc. 2) against Lonnie Jackson,
charging him with distribution of 50 grams and more of a mixture and substance containing
methamphetamine. Mr. Jackson was arrested on this charge on July 6, 2016, and on July 11,
2016 he entered a plea of not guilty to all counts. See Doc. 9 – Clerk’s Minutes from
Arraignment. On the same date, Mr. Jackson was ordered detained pending trial, and he remains

2

With the exception of paragraphs 5, 6, and 10, which are newly-added requests. In addition, some of the requests
from the initial discovery request letter have been removed or modified, but the general nature of the requests
remains the same.

3

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in custody. See Doc. 11 – Detention Order Pending Trial.
FACTUAL BACKGROUND
Lonnie Jackson is a lifelong resident of Albuquerque, New Mexico, and lives in his
family home in a historically Black neighborhood (“Kirtkand Park”) near University Blvd. and
Gibson Blvd. SE. Mr. Jackson graduated from the Albuquerque High School in 1988 and has
four surviving siblings who reside in Albuquerque. Mr. Jackson has one child and, at the time of
his arrest, was acting as caregiver for his then –elderly mother (who has since passed away
subsequent to Mr. Jackson’s arrest). Mr. Jackson suffers from high blood pressure and diabetes,
has a permanently damaged left leg and ankle, and was deemed medically disabled in 2008 even
though he was not receiving benefits from social security. Mr. Jackson is 48 years old and is
African American.
In May 2016, Confidential Informant (CI) 11438 contacted Lonnie Jackson regarding the
possible purchase of methamphetamine. Discovery reveals numerous telephone calls and text
communications between the two, which allegedly resulted in two separate transactions, one on
April 27, 2016 and the second on May 24, 2016 (even though Mr. Jackson is formally charged
by Indictment only with the April incident). Regarding April 27, 2016, it is alleged that, after the
CI and the undercover agent (UC) arrived and entered Mr. Jackson’s home, a source of supply
arrived by car, and Mr. Jackson was surveilled meeting with this person at his car in the street.
Upon returning to the house, Mr. Jackson then allegedly sold the drugs to the CI and UC. The
pattern then essentially repeated itself on May 24, except this time it is alleged that Mr. Jackson
sold the controlled substances directly to the UC. It is alleged that Mr. Jackson sold two ounces
of methamphetamine on each occasion. The recordings reveal that the UC pressed Mr. Jackson
to locate and sell him illegal firearms, stating that he would take anything but that he prefers long

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arms. Outside of firearms being generally discussed in this conversation, Mr. Jackson never sold
any firearms in this case. As noted above, Mr. Jackson was arrested without incident
approximately six weeks later, on July 6.
Blacks are vastly overrepresented within the defendant class resulting from the
Albuquerque ATF sting.
Blacks represent 3.4% of the population of Bernalillo County, 3 the geographic area
encompassed by this sting, which resulted in a total of 104 federally-charged defendants. 4 Were
Blacks represented at a rate proportionate to their presence in the Bernalillo County population,
one would expect to see three or four Black defendants in the resulting defendant class.
It is commonly known and accepted, however, that minority populations – for whatever
reason – are overrepresented in the criminal justice system. United States Sentencing
Commission data bears this out. Between 2006 and 2015, in the United States District Court for
the District of New Mexico, 5 Blacks have constituted 5.4% of Drug Trafficking offenders and
5.9% of Firearms offenders. 6 See Defendant’s Exhibit D – Race of Offenders in Each Primary
Offense Category. So, one might expect to see a slightly higher representation of Blacks in the
Albuquerque ATF sting defendant class than a direct proportion of their representation within the
population would produce – between five and seven, extrapolating.
Out of the 104 federal defendants resulting from the Albuquerque ATF sting, 28 of them
are Black. See Defendant’s Exhibit E – Table of ATF Sting Defendant Data. 7 Blacks represent

3

Source: United States Census Bureau website (https://www.census.gov/quickfacts/table/PST045216/35001,00), as
of July 1, 2015.
4
See Exhibit A. Although the U.S. Attorney’s press release broadcast 104 federal defendants, defense counsel has
only been able to identify 103 individuals charged at the federal level. All statistical calculations pertaining to the
defendant class herein are, therefore, based on a defendant class of 103, not 104, as publicized.
5
The data available through the USSC Interactive Sourcebook does not allow for further refining, for example, by
county.
6
The indictments resulting from this sting all contain charges of drug trafficking or firearms offenses.
7
The information in this table is accurate, to the best of counsel’s knowledge, as of date of filing.

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27.2% of the defendants swept up in this sting. They are overrepresented within this defendant
class, compared to their presence in the Bernalillo County population, by a factor of eight.
Relative to their historical representation in the United States District Court for the District of
New Mexico, they are overrepresented within this defendant class by a factor of approximately
five.
1. The ATF has a history of running reckless, “tawdry,” and discriminatory
operations.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has a sordid history. Its dubious
investigative techniques have caught the unfavorable attention of Circuit Court Judges, national
newspapers, and the Department of Justice itself.
a. Operation Fast and Furious
Between 2006 and 2011, the ATF ran a series of drug operations in the Tucson and
Phoenix area where it “purposely allowed licensed firearms dealers to sell weapons to illegal
straw buyers, hoping to track the guns to Mexican drug cartel leaders and arrest them.” 8
During Operation Fast and Furious, the ATF monitored the sale of about 2,000 firearms,
of which only 710 were recovered as of February 2012. 9 A number of straw purchasers were
arrested and indicted; however, as of October 2011, none of the targeted high-level cartel figures
had been arrested. 10
Guns tracked by the ATF were found at crime scenes on both sides of the Mexico-United
States border, and the scene where United States Border Patrol Agent Brian Terry was killed in

8

Serrano, Richard (October 3, 2011). "Emails show top Justice Department officials knew of ATF gun
program". Los Angeles Times. Retrieved March 29, 2017.
9
"A Review of ATF's Operation Fast and Furious and Related Matters" (PDF). U.S. Department of Justice Office of
the Inspector General. November 2012. Retrieved March 29, 2017.
10
Serrano, supra note 8.

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December 2010. 11 According to Humberto Benítez Treviño, former Mexican Attorney General
and chair of the justice committee in the Chamber of Deputies, related firearms were found at
numerous crime scenes in Mexico where at least 150 Mexican civilians were maimed or killed. 12
b. Undercover Storefront Operations
In 2013, the Milwaukee Wisconsin Journal Sentinel published a series of articles entitled
“Backfire,” 13 describing numerous problems with the ATF’s undercover storefront operations in
Milwaukee and around the nation, including the theft of firearms, improper handling of sensitive
information, and the alleged targeting of persons with disabilities.
Critics of an undercover storefront operation in St. Louis complained that “the surge was
not really aimed at the worst – that it was not aimed at all.” 14 They characterized it as “a program
that opened an inviting door of crime to just anybody – and snared mainly low-level, black drug
users who were mentally incapacitated, drug addicted, homeless or just too desperate for money
to run away from a deal too good to be true.” 15
The Department of Justice conducted an investigation into five ATF undercover
storefront operations across the nation and issued a report of its findings. It faulted the St. Louis
location for setting up shop within sight of a Boys and Girls Club and failing to better investigate
a confidential informant who was using drugs, having sexual relationships with targets, and
patronizing prostitutes while working at an earlier storefront operation in Kansas City. 16 It also

11

Jonsson, Patrik. "How Mexican killers got US guns from 'Fast and Furious' operation". The Christian Science
Monitor. Retrieved March 29, 2017.
12
Murphy, Kim (March 11, 2011). "Mexico demands answers on guns". Los Angeles Times. Retrieved March 29,
2017.
13
Diedrich, John and Raquel Rutledge. "Backfire". Milwaukee Wisconsin Journal Sentinel. Retrieved March 29,
2017.
14
Patrick, Robert (January 31, 2015). "St. Louis ATF crime sweep went for the 'worst' - or did it?" St. Louis PostDispatch. Retrieved March 29, 2017.
15
Patrick, supra note 14.
16
"A Review of ATF's Undercover Storefront Operations" (PDF). U.S. Department of Justice Office of the
Inspector General. September 2016. Retrieved March 29, 2017.

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found, generally, that the ATF lacked adequate policies and guidance for its agents, needed to do
a better job defining the crime problem that the storefront was designed to address and
explaining how the strategy underlying it would lead to the apprehension of persons warranting
federal prosecution, and had failed to apply Section 504 of the Rehabilitation Act of 1973, which
prohibits discrimination against persons with disabilities.17
c. Phony Stash House Cases
Another questionable technique utilized by the ATF is the so-called “phony stash house”
plot. These phony stash house plots generally involve an undercover agent posing as a
disgruntled drug courier, who proposes robbing a fictional house stashed with drugs or money
and attempts to enlist others to join in the venture. Agents encourage the unwitting target to
recruit others to join in the robbery, and to bring as many guns as possible. Shortly before the
elaborate plan is to be executed, agents swarm in to arrest the unwitting participants, who then
face conspiracy and firearms charges. These phony stash house cases have been the target of
heavy criticism recently.
Many federal judges have condemned phony stash house stings in no uncertain terms. At
a sentencing hearing, Judge Joseph Irenas, a Senior District Court Judge for the District of New
Jersey, asked of the prosecutor, “So you want to throw him in jail for life for a crime that was –
never going to happen and that was a fairy tale?” 18 Senior Judge Edward Leavy of the Ninth
Circuit devoted five pages of a simple notice denying the right to appeal to a condemnation of
the sting tactic, writing “The infliction of a 121-month prison sentence on a defendant who, if

17

"DOJ OIG Releases Report on ATF's Undercover Storefront Operations" (PDF) U.S. Department of Justice Office
of the Inspector General. September 2016. Retrieved March 29, 2017.
18
Wisnieski, Adam (November 19, 2015). "Can law enforcement use 'fairy tales' to step up sentences?" CBS News.
Retrieved March 30, 2017.

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simply left alone by our government, would otherwise be free, is a manifest injustice.” 19
Judge Stephen Reinhardt of the Ninth Circuit, joined by Chief Judge Alex Kozinski,
mused, in a dissent to a denial of rehearing en banc, that:
In this era of mass incarceration, in which we already lock up more
of our population than any other nation on Earth, it is especially
curious that the government feels compelled to invent fake crimes
and imprison people for long periods of time for agreeing to
participate in them – people who, but for the government’s scheme,
might not have ever entered the world of major felonies.
United States v. Black, 750 F.3d 1053, 1057 (9th Cir. 2014). In the original Black opinion, Ninth
Circuit Judge John Noonan, appointed to the Ninth Circuit by Ronald Reagan in 1985, opened a
blistering dissent by writing:
“Lead us not into temptation” is part of a prayer familiar to many.
But few, I believe, would think of this prayer as addressed to the
government of the United States or would think it necessary to
address the government with such a request. The present case
creates a precedent and sets a framework in which such a prayer
addressed to the government becomes comprehensible and
probable. Today our court gives our approval to the government
tempting persons in the population at large currently engaged in
innocent activity and leading them into the commission of a serious
crime, which the government will then prosecute.
United States v. Black, 733 F.3d 294, 313 (9th Cir. 2013), and closed it with the equally forceful:
Massively involved in the manufacture of the crime, the ATF's
actions constitute conduct disgraceful to the federal government. It
is not a function of our government to entice into criminal activity
unsuspecting people engaged in lawful conduct; not a function to
invent a fiction in order to bait a trap for the innocent; not a function
to collect conspirators to carry out a script written by the
government. As the executive branch of our government has failed
to disavow this conduct, it becomes the duty of the judicial branch
to refuse to accept these actions as legitimate elements of a criminal
case in a federal court.

19

Wisnieski, Adam (November 18, 2015). "Can law enforcement use "fake" crimes to create criminals?" CBS
News. Retrieved March 30, 2017.

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Black, 733 F.3d, at 318.
In March 2014, California Central District Judge Otis Wright II issued a scathing order to
dismiss indictment for outrageous government conduct, in which he accused the ATF of
“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.” 20 He also noted that the stings had
done little to deter crime and instead were “ensnaring chronically unemployed individuals from
poverty-ridden areas,” 21 and that “[t]he time has come to remind the Executive Branch that the
Constitution charges it with law enforcement – not crime creation.” 22 Judge Wright’s dismissal
of the indictment was later overturned by the Ninth Circuit, but during the oral argument of that
appeal in late 2014, Ninth Circuit Judge William Fletcher observed “You guys are dragging half
a million dollars through a poor neighborhood . . . I think it’s a totally misguided policy.” 23
Photos that the ATF provided to the Albuquerque Journal for an article about the Albuquerque
ATF sting - of olive green mini-tanks and a squad of agents in combat gear and black masks –
represent a similarly cringe-inducing juxtaposition. 24
A federal judge in the Central District of California, Judge Manuel Real, similarly
accused the ATF of “trolling poor neighborhoods to . . . ensnare its poor citizens.” 25 Seventh
Circuit Judge Evans classified the stash house stings as “tawdry,” writing in an opinion, “[w]e
use the word “tawdry” because the tired sting operation seems to be directed at unsophisticated,

20

Eckholm, Erik (November 20, 2014). "More Judges Question Use of Fake Drugs in Sting Cases". The New York
Times. Retrieved March 30, 2017.
21
Eckholm, supra note 20.
22
Heath, Brad (March 18, 2014). "Federal judge blasts ATF stings". USA Today. Retrieved March 30, 2017. See
also United States v. Cedrick Marquet Hudson, et al., USDC DCAC, Case No. 2:13-cr-00126-JFW, Doc. 112, Order
Granting Motion to Dismiss Indictment for Outrageous Government Conduct.
23
Wisnieski, supra note 19.
24
Sandlin, Scott. "Firearm/drug crackdown targets 104 suspects". Albuquerque Journal. Retrieved March 31, 2017.
25
See United States v. Rene Flores et al., Ninth Circuit Court of Appeals, CA No. 14-50227, Doc. 8, p. 9 (p. 7 of
Transcript), ln. 15-16, Transcript of May 12, 2014 Proceedings.

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and perhaps desperate, defendants who easily snap at the bait put out for them by [agents].”
United States v. Lewis, 641 F.3d 773, 777 (7th Cir. 2011).
Seventh Circuit Judge Richard Posner characterized the stash house stings as a
“disreputable tactic,” and questioned whether they verged on entrapment. “Criminals do
sometimes change and get their lives back on track and we don't want the government pushing
them back into a life of crime.” United States v. Kindle, 698 F.3d 401, 414–16 (7th Cir. 2012),
reh'g en banc granted, opinion vacated (Jan. 16, 2013), on reh'g en banc sub nom. United States
v. Mayfield, 771 F.3d 417 (7th Cir. 2014). During the sentencing of a stash house defendant in
St. Louis, U.S. District Judge Audrey Fleissig “questioned the value of creating criminal
opportunities that defendants ‘hadn’t thought of.’” 26
Clearly, ATF’s phony stash house tactic is unpopular with many. But more importantly,
for our purposes, ATF has been found to overwhelmingly target racial minorities to participate in
these “disreputable” stings. U.S. District Judge John Darrah of the Northern District of Illinois
ordered the government to disclose documents on how individuals were targeted and who was
arrested in these stings, saying, “The prosecution in this district has brought at least 20 purported
phony stash house cases, with the overwhelming majority of the defendants named being
individuals of color.” 27 In an order granting discovery in United States v. Abraham Brown,
USDC NDIL, Case: 1:12-cr-00632, Doc. 153, U.S. District Court Judge Ruben Castillo said that
there was “a strong showing of potential bias” in the stash house stings. 28
The Chicago Tribune recently released a front-page article discussing ATF stash house
cases from the Chicago area. It wrote that a “nationally renowned expert concluded that ATF

26

Patrick, supra note 14.
Wisnieski, supra note 18.
28
Heath, Brad (August 1, 2013). "Judge: ATF stings may be targeting minorities". USA Today. Retrieved March 30,
2017.
27

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showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity
between minority and white defendants was so large that there was a ‘zero percent likelihood’ it
happened by chance.” 29 This expert, Jeffrey Fagan from Columbia Law School, ran three
statistical analyses and concluded that “[b]eing black significantly increased a person’s chance of
being targeted by the ATF.” 30
USA Today published a series of articles about the ATF stings in Chicago and other
cities around the nation. 31 As a result of its independent investigation, it found that the ATF
“overwhelmingly targeted racial and ethnic minorities as it expanded its use of controversial
drug sting operations,” noting that “[a]t least 91% of the people agents have locked up using
those stings were racial or ethnic minorities” and that “[t]hat rate is far higher than among people
arrested for big-city violent crimes, or for other federal robbery, drug and gun offenses.” 32 The
ATF said it could not confirm the numbers because it does not track the demographics of the
people it arrests. The article quoted Benjamin N. Cardozo School of Law professor Katharine
Tinto as saying, “When you have a possibly discriminatory effect, it should require you to go
back and look at the structure of the operation,” such as how ATF chooses its targets and where
it decides to conduct its operations.
d. The ATF Sting in Albuquerque
Apparently, the ATF has not done that. We are now presented with essentially the same
targeting techniques as the vilified stash-house cases, only without the stash house. In its
Albuquerque operation, the ATF appears simply to have invented yet another iteration of its
29

Meisner, Jason and Annie Sweeney (March 3, 2017). "ATF sting operation accused of using racial bias in finding
targets, with majority being minorities". Chicago Tribune. Retrieved March 30, 2017.
30
Meisner, supra note 29.
31
See, e.g., Heath, Brad (June 27, 2013). "ATF used fake drugs, big bucks to snare suspects". USA Today. Retrieved
March 30, 2017.
32
Heath, Brad (July 20, 2014). "Investigation: ATF drug stings targeted minorities". USA Today. Retrieved March
30, 2017.

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modus operandi of sweeping up poor, vulnerable, addicted minorities.
In fact, the defense suspects that at least three of the key players behind the phony stash
house stings played a role in the Albuquerque sting as well.
The discovery provided to the defense redacts all but the ATF agents’ first and last
initials. In some instances, an agent’s first name appears unredacted. Based on paper discovery,
combined with independent defense investigation, the defense suspects that at least three of the
ATF agents involved in the Chicago stash house stings – Carlos Valles, Michael Ramos, and
Richard Zayas – were also present in the Albuquerque sting. See Defendant’s Exhibit F – List of
undercover agents in Chicago stash house stings from United States v. David Cousins, et al.,
USDC NDIL, Case: 1:12-cr-00865, Doc. 265, Defendants’ Motion to Dismiss for Racially
Selective Law Enforcement.
Agent Carlos Valles has a checkered history. In addition to being involved in the ATF’s
Fast and Furious operation, he “played a major role[] in the Stash House cases in [Chicago] . . .
in which the ATF recruited a far greater percentage of people of color.” See United States v. Paul
Davis, Jr., et al., USDC NDIL, Case: 1:13-cr-00063, Doc. 434, p. 69 (p. 64 in footer), Motion to
Dismiss for Racially Selective Law Enforcement. In fact, the defendants in Davis cite to portions
of undercover recordings of Valles in a separate case to document their allegation that, “[i]n
[United States v.] Williams, ATF Agent Carlos Valles (who is Hispanic) said in no uncertain
terms that he was coming to defendants Antonio Williams and Mario Brown with the stash house
robbery proposition because Mr. Williams was Black.” (Ibid. at 66-67 (61-62 in footer)).
Agent Richard Zayas – the undercover agent involved in numerous cases brought by
A.T.F. in its notorious “sweep” in Albuquerque – has a similarly checkered past. Specifically,
Agent Zayas was found not credible under oath in a stash house case when he claimed that a

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defendant pointed a handgun at him. United States v. Ryan, 2009 U.S. Dist. LEXIS 88204, at *7
(D. Ariz. Sept. 24, 2009) (“I do not find that Special Agent Zayas is credible on this issue.”),
vacated on other grounds (mootness), Ryan, 09-CR-1145, Doc. 84 (D. Ariz. Nov. 19, 2009). 33
In addition to having been found not credible under oath, Agent Zayas is the architect
behind the infamous phony stash house cases. He helped originate the tactic, authored the
playbook on the tactic, and has travelled around the country leading trainings on the tactic. See
generally Davis, Doc. 434. Zayas, quite literally, “wrote the book” on these infamous stings,
which have been responsible for locking up a group of people nationwide comprised of 91%
minorities.
2. Confidential Informants utilized in the Albuquerque ATF sting
The defense has identified five confidential informants (CIs) whose CI numbers appear
consistently throughout the defendant class. Those numbers are 11438, 9097, 489, 3302, and
2478. Of the five CIs working this investigation, three are Black. The other two are Hispanic.
None are White.
Recordings of interactions between Black CIs and Black defendants evidence an acute
understanding of intraracial camaraderie and interracial mistrust. In Lonnie Jackson’s case, CI
11438 is African American and sets up the two purchases of controlled substances through
persistent text communications and telephone calls with Mr. Jackson. Some of the vernacular
utilized by the CI and Mr. Jackson can be seen as unique to the African American community
and would not be heard within or among other racial groups. The defendants in the “ATF Sting”
cases who were targeted by the CIs are keenly aware of the importance of race in their

33

In a minute order entered on November 19, 2009, the District Judge vacated “any arguable finding of fact that
wasn’t necessary to [the Magistrate Judge’s] ruling on the detention of the defendant. Specifically, any arguable
finding related to Agent Zayas.”

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interactions. For example, in one case, a Black defendant remarks that he does not do “black on
black crime” and observes that “Mexicans do not typically like black people.” 34
3. Areas of the city where defendants were targeted
This racially-stacked group of CIs, in turn, sought out targets in locations that would
virtually guarantee netting an inordinate number of minorities – and specifically, Blacks.
The Albuquerque office of the Federal Public Defender set out to investigate where the
CIs made their initial contact with each defendant. 35 It sent out an inquiry to all counsel
representing an ATF sting defendant, requesting the address where the CI in a case made initial
contact with the defendant.
Many of the initial contacts were made outside gas stations located in low-income areas
of Albuquerque. See Defendant’s Exhibit E. The CIs approached the defendants with offers of
deeply-discounted cigarettes for sale, engaged them in conversation, and eventually, offered to
pay them for any firearms or drugs that they could find for the CI. 36
Other target locations were even more unusual, however. One CI made initial contact
with the defendant at a soul food restaurant, Bucket Headz Southern Home Cookin’, located near
Gibson and San Pedro. Two separate cases list the point of original contact between the
defendant and the CI as a Black barbershop located near Zuni and Louisiana, Trendsettas
Barbershop and Boutique. In one case, the initial point of contact was Kirkland Park, a city park
located smack-dab in the middle of “The Kirk,” an approximately five-block by five-block
neighborhood in Albuquerque whose residents are predominantly African-American.
34

These remarks were pulled from discovery in a case represented by the Federal Public Defender’s Office. For the
sake of confidentiality, this individual’s name has not been released.
35
Instances where a defendant was recruited by another person – that person being the original target of the CI were not considered, because they would not shed any light on where, geographically, the CIs were seeking out
targets. Only “principal” targets were considered.
36
See, e.g., United States v. Julian Brown, USDC DNM, Case: 1:16-cr-03212-WJ, Docs. 20 and 23, Motion to
Identify Witness/Informant and Reply to Response to Motion.

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Incidentally, most of these targeting locations do not fall in high-crime areas of
Albuquerque, as evidenced by a heat map of crime in the city. 37 Furthermore, many of the highcrime parts of Albuquerque located in wealthier, predominantly White areas, such as the
Northeast Heights, appear not to have been infiltrated by the CIs at all.
4. Incidents of ATF declining to enforce on non-Blacks
The defense asks this Court to take judicial notice of Defendant’s Motion to Compel
Disclosure of Information (Doc. 29) in United States v. Yusef Casanova, USDC DNM Case
1:16-cr-02917-JAP, which details a specific instance of Mr. Casanova – a fellow Black
defendant resulting from the Albuquerque ATF sting – brokering an in-person methamphetamine
deal between a white male source of supply and an undercover ATF agent. In spite of Mr.
Casanova’s clearly less culpable role, and evidence of the white male’s identity and criminal
activity, Mr. Casanova is the sole object of the Indictment in his case, and to the best of
counsel’s knowledge, the white male source of supply was never arrested or charged as a result
of the ATF sting.
The defense is able to point to this specific instance because it was produced in
discovery. The defense seeks additional discovery, in part, to determine whether there were
other instances of similarly situated non-Black offenders whom the ATF declined to investigate,
target, or arrest.
ARGUMENT
1. The legal standard to obtain discovery pertaining to a potential claim of selective
enforcement merely requires the defense to present “some evidence tending to
show” each element of the claim.
United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996),

37

Crime Data in Albuquerque, based on data from SpotCrime.com and CrimeReports.com.

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governs the right to discovery on a claim of selective prosecution. To be successful on a claim of
selective prosecution, “[t]he claimant must demonstrate that the federal prosecutorial policy ‘had
a discriminatory effect and that it was motivated by a discriminatory purpose.’” Armstrong, 517
U.S. 456, 465 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).
Understandably, courts have recognized that the standard to obtain discovery on an issue
is lower than that required to prove a claim. “Obviously, a defendant need not prove his case in
order to justify discovery on an issue.” United States v. Jones, 159 F.3d 969, 978 (6th Cir. 1998).
To be entitled to discovery, the claimants bear the “burden of making a credible showing
of ‘some evidence’ on each element.” United States v. Olvis, 97 F.3d 739, 746 (4th Cir. 1996)
(quoting Armstrong, 517 U.S., at 468-469). The standard is, in fact, even lower than “some
evidence.” “In light of Armstrong's seemingly less stringent ‘some evidence tending to show’
standard, the defendants need not establish a prima facie case of selective prosecution to obtain
discovery on these issues.” United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001)
(quoting Armstrong, 517 U.S., at 468-469). To obtain discovery on a selective prosecution claim,
the defense must only present “some evidence tending to show the existence of the essential
elements of the defense, discriminatory effect and discriminatory intent.” Armstrong, 517 U.S.,
at 468 (emphasis added).
2. The standard required to obtain discovery on a selective enforcement claim is less
rigorous than that required for a selective prosecution claim.
Lonnie Jackson is advancing a claim of selective enforcement, not selective prosecution.
And while courts have recognized that the “presumption of regularity” applies to prosecutors,
that same presumption is not afforded to law enforcement agencies. Armstrong, at 464. As the
Seventh Circuit pointedly observed, “Agents of the ATF and FBI are not protected by a powerful
privilege or covered by a presumption of constitutional behavior. . . . [T]he sort of considerations
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that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF
engaged in racial discrimination when selecting targets for sting operations, or when deciding
which suspects to refer for prosecution.” United States v. Davis, 793 F.3d 712, 720-21 (7th Cir.
2015). Courts, therefore, apply a greater level of scrutiny to the criteria employed by law
enforcement in the selection of targets for investigation and arrest. The threshold for production
of discovery into their investigative techniques and targeting methods is lower than that required
to peek behind the curtain of prosecutorial charging decisions.
3. A selective enforcement claim is cognizable, and the remedy, if proven, is dismissal.
The “Constitution prohibits selective enforcement of the law based on considerations
such as race. . . . [T]he constitutional basis for objecting to intentionally discriminatory
application of laws is the Equal Protection clause . . . .” Whren v. United States, 517 U.S. 806,
813 (1996). See also Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (“Though the law itself
be fair on its face, and impartial in appearance, yet, if it is applied and administered by public
authority with an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their rights, the denial of
justice is still within the prohibition of the constitution.”)
“Racially selective action by law enforcement inflicts . . . substantial injury on the victim
and society: in addition to violating the victim's rights to equality and liberty, such
discriminatory conduct impugns the integrity of the criminal justice system and compromises
public confidence therein.” United States v. Mumphrey, 193 F. Supp. 3d 1040, 1055 (N.D. Cal.
2016) (concluding that dismissal of an indictment is a proper remedy for a selective enforcement
claim if proven).
Every circuit that has addressed a motion to dismiss for selective enforcement has

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addressed the merits of the claim – no circuit has held that selective enforcement cannot result in
dismissal. See, e.g., United States v. Davis, 793 F.3d 712, 720 (7th Cir. 2015) (en banc) (“If the
[law enforcement] agencies do [discriminate], they have violated the Constitution – and the fact
that the United States Attorney may have prosecuted every case the agencies presented, or
chosen 25% of them in a race-blind lottery, would not matter, since the constitutional problem
would have preceded the prosecutor’s role and could not be eliminated by the fact that things
didn’t get worse at a later step.”); Gibson v. Superintendent, 411 F.3d 427, 441 (“[I]f a person
can demonstrate that he was subjected to selective enforcement in violation of his Equal
Protection rights, his conviction will be invalid.”); United States v. Alcaraz-Arellano, 441 F.3d
1252, 1264 (10th Cir. 2006); United States v. James, 257 F.3d 1173, 1179 (10th Cir. 2001).
4. The defense has presented “some evidence tending to show” each element of a
selective enforcement claim.
A selective enforcement claim requires that the defendant demonstrate the presence of 1)
discriminatory effect and 2) discriminatory intent. To merit discovery for such a claim, a
defendant must only present “some evidence tending to show” the presence of both these
elements. Lonnie Jackson has done so. For purposes of the “effect” prong of this test, Mr.
Jackson can demonstrate, both with statistical evidence and with a documented example, that
non-Black, similarly-situated individuals could have been targeted for investigation and arrest,
but were not. Similarly, for the “intent” prong of this test, Lonnie Jackson can demonstrate
through the racial composition of the confidential informants, the areas of Albuquerque targeted
as part of the ATF sting, the racially charged remarks in the recordings, and the presence of ATF
agents who are also involved in other suspect ATF stings around the country, the circumstantial
presence of a discriminatory intent.

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a. The defense has presented “some evidence tending to show” discriminatory
effect.
To demonstrate discriminatory effect, a defendant is required to “produce some evidence
of differential treatment of similarly situated members of other races.” Armstrong, at 470.
i. The defense has demonstrated, through the use of statistical evidence,
and the identification of a specific instance, that similarly-situated
persons could have been targeted for investigation and arrest by the
ATF, but were not.
The “effect” prong of a selective enforcement claim requires that 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.” Jones, 159 F.3d at 977.
“The defendant may satisfy the “credible showing” requirement by identifying a
similarly-situated individual or through the use of statistical evidence.” United States v. James,
257 F.3d 1173, 1179 (10th Cir. 2001) (quoting Chavez v. Illinois State Police, 251 F.3d 612, 636
(7th Cir.2001)). Lonnie Jackson can both identify a similarly situated individual and demonstrate
with statistical evidence that other similarly situated persons could have been targeted and
arrested by the ATF, but were not.
1. Statistical evidence
The staggering disproportion of Blacks within the defendant class produced by the ATF
sting, alone, is not enough to demonstrate discriminatory effect. “Without an appropriate basis
for comparison, raw data about the percentage of black crack cocaine defendants proves nothing.
Such statistics could have relevance only if it could be presumed that crack cocaine violations
were committed proportionately by all races—a presumption the Supreme Court rejected in
Armstrong as ‘at war’ with unchallenged statistics.” United States v. Olvis, 97 F.3d 739, 745 (4th

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Cir. 1996). Without a basis for comparison, the government could simply argue that Blacks
commit crime in Bernalillo County at a rate eight times greater than their representation in the
population.
Fortunately, there is a highly-trustworthy basis for comparison that is readily available:
the United States Sentencing Commission Interactive Sourcebook. The data presented in
Defendant’s Exhibit D plainly demonstrate that Blacks in the District of New Mexico do not
commit firearms and drug trafficking offenses at the disproportionately high rate of 27.2% of all
defendants, as in this sting. Their commission of firearms and drug trafficking offenses is only
slightly elevated from a direct proportion of their 3.4% representation of the Bernalillo County
population – 5.9% and 5.4%, respectively. An overrepresentation within the class of firearms and
drug trafficking defendants produced by this sting of a factor of eight is, therefore, a clear-cut
case of discriminatory effect.
2. Identification of a specific instance
In Mr. Casanova’s case, in June 2016 ATF agents and undercover informants conducted
an investigation which began with an undercover informant hanging out at an Allsup’s gas
station and convenience store on Zuni Street near San Pablo in Albuquerque. The informant
ultimately approached an African-American resident nicknamed “Cash” and asked Cash if Cash
knew anyone could sell him guns or drugs. The operation then proceeded after Cash introduced
the confidential informant to Mr. Casanova, who is also African-American. The CI persuaded
Mr. Casanova to introduce him to an individual who could sell the informant methamphetamine.
A few days later, Mr. Casanova arranged a sale of one ounce of methamphetamine between a
white male dealer named John and the informant. Shockingly, after the white male dealer sold
the informant an ounce of methamphetamine, the white male dealer was not arrested and was

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allowed to leave the scene of the crime. Mr. Casanova, like Lonnie Jackson, was arrested,
charged in federal court, and is now in custody awaiting trial.
The actions of the ATF in allowing a white male supplier of an ounce of
methamphetamine to leave the scene of a drug transaction and go undeterred, even until today,
while a Black defendant who merely arranged the transaction was arrested, charged and
prosecuted, speaks volumes about the presence of discriminatory effect (and, for that matter,
discriminatory intent).
This is precisely what the Armstrong Court contemplated when it envisioned a scenario
requiring the production of discovery. As the Court observed, “[i]n the present case, if the claim
of selective prosecution were well-founded, it should not have been an insuperable task to prove
that persons of other races were being treated differently than respondents. For instance,
respondents could have investigated whether similarly situated persons of other races were
prosecuted by the State of California and were known to federal law enforcement officers, but
were not prosecuted in federal court.” Armstrong, at 470.
Even had the White male source of supply in Mr. Casanova’s case been prosecuted
alongside Mr. Casanova, Lonnie Jackson still would have a strong showing of entitlement to
discovery on the issue of selective enforcement. “The fact that law enforcement never
considered foregoing the prosecution of Billings, Jones's white co-defendant, in federal court
does not change our analysis. It would have been beyond foolish for law enforcement to have
done such a thing, considering that Jones's and Billings's cases involved the same events.”
United States v. Jones, 159 F.3d 969, 978 (6th Cir. 1998). Here, the ATF has shown itself to be
beyond foolish, foregoing the arrest of a White drug supplier in a case involving the exact same
events as a Black drug addict.

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b. The defense has presented “some evidence tending to show” discriminatory
intent.
“Discriminatory intent can be shown by either direct or circumstantial evidence.” United
States v. Deberry, 430 F.3d 1294, 1299 (10th Cir. 2005) (citing Batson v. Kentucky, 476 U.S. 79,
93 (1986)). The defense has presented ample circumstantial evidence demonstrating
discriminatory intent and seeks, through discovery, direct evidence of discriminatory intent.
Discovery of the ATF’s target selection criteria could resolve this issue. “Analysis of the
targeting criteria (and whether agents followed those rules in practice) could shed light on
whether an initial suspicion of race discrimination . . . is justified.” United States v. Davis, 793
F.3d 712, 723 (7th Cir. 2015). The ATF’s purported targeting criteria will enable the defense to
accurately construct a “similarly-situated” comparison group and thereby determine with
certainty whether the ATF targeted and arrested individuals in accordance with its targeting
criteria or – as the defense has demonstrated thus far – in accordance with skin color.
There is considerable circumstantial evidence tending to show discriminatory intent on
behalf of the ATF in the Albuquerque sting. For example, utilizing a group of confidential
informants that is 60% Black in a community that is 3.4% Black is – at best – disingenuous. That
a group of confidential informants, the majority of whom were Black, interacted with, developed
relationships with, and ultimately targeted Black men in Albuquerque, is exactly what a
sociologist, or anyone with common sense, and especially law enforcement, who presumably
have experience with the use of confidential informants, would expect to happen. The selection
of confidential informants, therefore, prefigures the selection of defendants and, in this
foreshadowing, manifests the existence of selective enforcement.
In fact, sociologists have a term for this type of intra-group affinity: homophily, which
stands for the proposition that similarity breeds connection. See, e.g., McPherson, Miller, Lynn
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Smith-Lovin, and James M Cook, Birds of a Feather: Homophily in Social Networks, Annu.
Rev. Sociol. 2001. 27:415–44 (“We find strong homophily on race and ethnicity in a wide
variety of relationships, ranging from the most intimate bonds of marriage and confiding, to the
more limited ties of schoolmate friendship and work relations, to the limited networks of
discussion about a particular topic, to the mere fact of appearing in public together or “knowing
about” someone else.” McPherson, at 420 (internal citations omitted)). 38 The strong existence of
homophily, even in simply “knowing about” someone else, explains why for every Black
“principal” a CI targeted, a web of several Black codefendants was often spun.
For this reason, the defense seeks, as part of its discovery request, all documents
containing information on how ATF ensured that their agents/confidential informants were not
targeting persons on the basis of their race, color, ancestry, or national origin for these ATF sting
cases, and what actions those supervisors and managers took to determine whether agents were,
in fact, targeting persons for those reasons.
In short, an agency with a troubled history took a traveling crew of agents with suspect
backgrounds, including ones with demonstrated instances of racial targeting, employed a
racially-stacked group of CIs, deployed them in areas of the city overwhelmingly concentrated
with minorities, and had them utilize their racial similarity as a means of breeding connection
and trust. This is discriminatory intent.
5. Courts have granted discovery in cases presenting similar or weaker evidence of
selective enforcement than that presented in this case.
Lonnie Jackson has far exceeded his legal burden of presenting “some evidence tending
to show” discriminatory effect and discriminatory intent to merit discovery on the issue of
selective enforcement. There exists precedent for the issuance of discovery orders on this issue,

38

Accessible at http://aris.ss.uci.edu/~lin/52.pdf. Retrieved March 31, 2017.

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even in cases lacking the strength of evidence that Mr. Jackson has set forth in this Motion.
The Seventh Circuit’s decision in United States v. Davis provides a case in point. In
Davis, the Seventh Circuit addressed both a claim of selective prosecution and selective
enforcement. In Davis, the defense relied exclusively on statistical evidence to make a showing
of selective enforcement, and did not present an identifiable instance of ATF declining to enforce
on a non-Black offender, as Lonnie Jackson has done. Further, the overrepresentation of Blacks
in the Chicago ATF stings discussed in Davis was nowhere near the stunning eight-fold
overrepresentation presented in this sting. Nevertheless, the Seventh Circuit observed that “[t]he
racial disproportion in stash-house prosecutions remains troubling . . . and it is a legitimate
reason for discovery . . . .” United States v. Davis, 793 F.3d 712, 722 (7th Cir. 2015). It is
precisely Albuquerque’s miniscule Black population that makes their 27.2% composition of this
defendant class so jarring – and impossible to attribute to chance. See also United States v.
Mumphrey, 193 F.Supp.3d 1040 (N.D. Cal. 2016), United States v. Jones, 159 F.3d 969 (6th Cir.
1998).
CONCLUSION
“Racially selective law enforcement violates this nation's constitutional values at the most
fundamental level; indeed, unequal application of criminal law to white and black persons was
one of the central evils addressed by the framers of the Fourteenth Amendment.” Marshall v.
Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003). Lonnie Jackson seeks to
vindicate these principles, has amply satisfied his burden and has presented evidence tending to
show that ATF's actions in this sting ran afoul of constitutional equal protection principles. That
is all he needs to show to warrant an order to compel discovery.
WHEREFORE, Lonnie Jackson, by and through undersigned counsel, respectfully

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requests that this Court order the disclosure of the above-listed items pertaining to the issue of
selective enforcement.

Respectfully Submitted,
FEDERAL PUBLIC DEFENDER
111 Lomas Blvd NW, Suite 501
Albuquerque, NM 87102
(505) 346-2489
email john_robbenhaar@fd.org
filed electronically on April 19, 2017
JOHN F. ROBBENHAAR
Assistant Federal Public Defender
Counsel for Mr. Jackson
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading was served on
Assistant United States Attorney Dave Walsh by operation of the Court=s CM/ECF electronic
filing system and pursuant to the CM/ECF Administrative Procedures Manual '' 1(a), 7(b)(2),
on April 19, 2017.
filed electronically on April 19, 2017
JOHN F. ROBBENHAAR

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