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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

 

EASTERN DIVISION
UNITED STATES OF AMERICA 
No. 12 CR 632
v. 
Chief Judge Ruben Castillo
ABRAHANI BROWN, et 
UNITED STATES OF AMERICA 
o. 12 CR 887
v. 
Chief Judge Rub?n Castillo
ANTONIO WILLIAMS, et (.11., 

DEMORANDUM OPINION AND ORDER

Since 2006, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the has
engaged in sting operations wherein undercover agents present individuals in this District with
an opportunity to rob a fictitious drug stash house. See generally United States v. May?eid, 771
F.3d 417, 419?24 (7th Cir. 2014); United States v. Lewis, 641 F.3d 773, 777 (7th Cir. 2011).
These two long-pending consolidated criminal cases, which are part of What is commonly
referred to as the ?false stash house cases,? have served to undermine legitimate law enforcement
efforts in this country. It is undisputed that between 2006 and 201.3, the defendants charged in
this District in the ATF false stash house cases were 78.7 black, 9.6 percent Hispanic, and 11.7
percent white. During this same period, the District?s adult population was approximately 18
percent black, 11 percent Hispanic, and 63 percent White.I These numbers generate great
disrespect for law enforcement efforts. Disrespect for the law simply cannot be tolerated during

these dif?cult times. it is time for these false stash house cases to end and be relegated to the

 

I These statistics Were calculated from 2010 census data for the 18 counties that make up this District.

1

 

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dark corridors of our past. To put it simply, our criminal justice system should not tolerate false
stash house cases in 2018.

No one feels stronger than this Court about the problems this District has continuously
had with ?rearm violence. During this Court?s three decades of public service, it has consistently
pointed out and stressed the deadly toll ?rearms have taken in Chicago and throughout the
country. in fact, during this Court?s 11 years of service on the United States Sentencing
Commission, it strongly advocated for and accomplished the strengthening of penalties for
?rearm traf?cking.

This Court understands that dedicated federal agents, who often place themselves in life?
risking situations, sincerely believed that they would recover deadly ?rearms from the violent
streets of our District in these stash house sting operations. However, to paraphrase Supreme
Court Justice Louis Brandeis, to declare that in the administration of the criminal law ?the end
justi?es the means? is to declare that the government may violate fundamental principles of
common fairness to secure the conviction of an alleged criminal. See Olmstead v. United States,
277 U.S. 43 8, 485 (1928) (Brandeis, ., dissenting). That is not where our criminal law should be
in Our society simply cannot accept a ?win at all costs? mentality in the delicate world of
criminal law enforcement, which is ultimately dependent on proactive citizen involvement.

Our nation?s current tragic pattern of weapons violence does not justify the problematic
consequences presented by the govermnent?s use of false stash house cases as an investigative
technique. The answer to our nation?s current tragic pattern of weapons violence lies in stricter
?rearms regulations, especially with respect to automatic, multi?round weapons, and traditional

law enforcement investigative techniques. The Court is mindful that this city just passed the 89th

 

2 Counsei for the government represented during orai arguments in this case that, thankfully, the government is no
longer charging individuals in faise stash house cases in this District. (See Evid. Hr? Tr. at 527-28.)

2

 

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anniversary of the infamous St. Valentine?s Day massacre, which killed seven Chicagoans with
automatic. weapon ?re. Yet, even during the low points of the great violence caused by the
alcohol wars of Prohibition, the ATP did not seek to use ?false alcohol warehouse? tactics
against any ethnic organized crime groups to promote public safety. Instead, the ATP used solid
investigative work to garner the great public respect of the Elliot Ness era that still lives today as
the gold standard of law enforcement. This type of work inspires great public cooperation with
law enforcement, unlike the false drug stash house cases before the Court.

The problems with the false stash house cases start at the beginning and do not get any
better at the end. The typical false stash house case commences with the recruitment of a
con?dential informant (or Most of the time these are individuals with criminal justice
problems. In today?s world, they tend to be black or Hispanic?two groups that unfortunately
dominate both our federal and local American criminal justice systems. These principally
minority con?dential informants are told by federal agents to tell their friends and associates that
there are places with a large quantity of drugs that can be robbed. The hope is that the informants
will organize robbery crews that will result in signi?cant arrests of violent criminals and seizure
of weapons. Sometimes these cases work out in that fashion. However, all too often, the
government?s lucrative trap attracts potential defendants with minor criminal records who might
otherwise have never attempted a ?ctitious crime of this nature. It is no surprise that many of
these potential defendants with minor criminal records are also minorities, like their so?called
con?dential informant friends and associates. At the end, many of these defendants face
sentencing guideline ranges that have been signi?cantly inflated by the government?s-false drug
house scenarios. See United States v. Washington, 869 F.3d 193, 222-23 (3d Cir. 2017), cert

denied, 2018 WL 311803 an. 8, 2018) (remanding for potential post?judgment discovery to

 

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challenge a 264?month sentence in ?ctitious cocaine robbery scenario that triggered a very real
20?year mandatory minimum sentence). The Washington case in particular is representative of a
broad point of view held by judges who are held in high esteem by this Court. For example,
Judge Theodore McKee, the former Chief Judge of the US. Court of Appeals for the Third
Circuit, has pointedly noted that ?the potential for abuse and mischief that is endemic to ?ctitious
stash~house stings should not be ignored.? Id. at 223 (collecting cases). Judge McKee
speci?cally noted that is all too often the case, not only do stash?house stings risk ensnaring
those who might otherwise not. have committed crimes, but also the resulting convictions
regularly give rise to particularly dubious applications of the Sentencing Guidelines and
mandatory minimum sentences.? Id. at 226.

The inherent problems of this District?s false stash house cases must be seen through the
lens of our country?s sad history of racism. Every time our country?s law enforcement system
can be perceived as contributing to that sad history, our justice system suffers and needlessly
alienates minority communities who no longer wish to come forward as witnesses or victims.
This Court spent more than ten years working as a member of the United States Sentencing
Commission before it could reduce the needless disparity between the penalties for crack and
powder cocaine, which were correctly revised because they were perceived as discriminatory
toward black defendants. This country cannot afford such self-in?icted wounds in light of its sad
history of racism. Viewed in this context, the false stash house cases are no different than the
extraordinary powder/crack sentencing disparities that previously existed.

In these two cases, Defendants move to dismiss the indictments ?led against them on

grounds of racial pro?ling, arguing that ATP wrongfully targeted black and Hispanic individuals

 

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for participation in the stings.3 (United States 12. Brown (?Brown?), No. 12 CR 632, R. 518;
United States v. Williams (?Williams?), No. 12 CR 887, -R. 338.) These cases are deeply
troubling and are emblematic of problems that have plagued our criminal justice system for
decades. As this Court recognized nearly two decades ago, ?[r]acial pro?ling of any kind is
anathema to our criminal justice system because it eviscerates the core integrity that is necessary
to operate that system effectively in our diverse democracy.? Martinez v. Vill. of Mt. Prospect,
92 F. Supp. 2d 780, 782 (N .D. 111. 2000). These words carry as much force today as they did
nearly two decades ago. These sting operations have used tremendous public resources to
investigate and prosecute a large number of principally minority individuals for ?ctitious crimes.
?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 
United States 12. Black, 750 F.3d 1053, 1057 (9th Cir. 2014). Over and over again, these ?tawdry?
stings have been ?directed at unsophisticated, and perhaps desperate defendants . . . who easily
take the all-too?teinpting bait put out for them by the government.? United States v. Conley, 875
F.3d 391, 402-03 (7th Cir. 2017) (citations and internal quotation marks omitted),.

Like our colleague in the U.S. Courtof Appeals for the Sixth Circuit, this Court ?nds
?the concept of these stash house sting operations at odds with the pride we take in presenting
American criminal justice as a system that treats defendants fairly and equally under the law.?
United States v. Flowers, No. 15-3988, 2017 WL 4785960, at *15 (6th Cir. Oct. 24, 2017)

(Stranch, J., concurring). It is unclear to the Court why, with all the tactics available to them,

 

3 The defendants in Brown are Abraham Brown, Kenneth Taylor, Al?ed Washington, Christopher Davis, and
Dwaine Jones. The defendants in Williams are Antonio Williams, John Hummens, and Howard Lee. The defense of
these cases has been handled in a coordinated fashion, and nearly identical sets of motions to dismiss and other
documents have been ?led in the two cases. The Court refers to the cases collectively throughout this opinion.

5

 

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federal law enforcement agents would adopt a narrative tinged with racial overtones to conduct
sting operations involving serious federal charges. Even if law enforcement agents stay on the
right side of the line, this is dangerous territory. It hardly needs to be stated that agents of the
federal government should not be injecting the issue of race into their criminal investigations in
any way, shape, or form.

Fortunately for the government, the question before this Court is not whether the
practices used in these sting operations are honorable or fair. Instead, the sole question presented
to the Court in these cases is whether law enforcement agents violated the Due Process Clause of
the Fifth Amendment in pursuing these investigations. At ?rst blush, the evidence submitted by
Defendantswincluding the sheer number of non-white individuals prosecuted as a result of the
sting operations?mpresents troublesome indicia of discrimination. But this Court is not permitted
to simply accept matters at ?rst blush. The Court must dig deeper to test the reliability and
weight of the evidence that has been submitted. In doing so, the Court concludes that Defendants
have failed to meet the heavy burden that currently must be satisfied to obtain dismissal of a
federal criminal indictment. Therefore, the motions to dismiss must be reluctantly denied.

BACKGROUND

?According to the standard ATF script for the [stash house] sting, a fictional drug courier
was disgruntled with his organization and wanted to rob one of its stash houses. [The target of
the investigation] was to meet with the courier to discuss logistics, then recruit a crew, gather
weapons, and help the courier carry out the robbery.? May?eld, 771 F.3d at 421. As a result of
the sting operations, a host of defendants in this District and elsewhere have been convicted of
?conspiring to distribute cocaine that didn?t actually existw?cocaine they planned to liberate from

a fictional stash house guarded by members of an imaginary Mexican cartel.? Lewis, 641 F.3d at

 

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777. ?Though it might seem odd, the fact that the stash house, the drugs?and indeed the 'whole
plot?was fake is irrelevant,? because ?[t]he crime of conspiracy is the agreement 
United States 12. Carson, 579 F.3d 804, 810 (7th Cir. 2009).

These sting operations have withstood a number of challenges in the courts, including in
the U.S. Court of Appeals for the Seventh Circuit. See, e. g, Conley, 875 F.3d at 400-01
(upholding conviction arising from ?ctitious stash house sting even though the evidence against
the defendant was ?meager,? Where evidence showed that the defendant had attended one
meeting Where co-conspirators outlined their plan to rob the stash house, including the need to
bring ?rearms); Flowers, 2017 WL 4785960, at *3 (rejecting defendant?s argument that ATF
agents engaged in outrageous conduct by ?luring the impoverished. . . defendants? into
committing a ?ctitious stash house robbery); United States v. Dunlap, 593 F. App?x 619, 621
(9th Cir. 2014) (holding that ATP agents? actions in conducting stash house sting operation did
not ?violate fundamental fairness or shock the universal sense of justice? so as to warrant
dismissal of the indictment); United States v. Blitclz, 773 F.3d 837, 845 (7th Cir. 2014) (?Where
the government does nothing more than make a stash house robbery available, there is no
inducement under the law of entrapment?).

But at the same time, the stings have ?drawn criticism in news reporting, scholarly
writing, and from the judiciary.? Flowers, 2017 WL 4785960, at *14 (Stranch, J., concurring);
see also Conley, 875 F.3d at 402 (noting the ?substantial body of criticism of . . . stash house
cases both from this circuit and others?). ATP protocols provide that the stings, referred to Within
the agency as ?home invasion investigations,? are intended to ?concentrate on identifying

persons and in?ltrating groups that collectively and/or as a community focus their criminal

 

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activities on executing robberies, by means of force, for personal gain.? (Brown, R. 51 1?2, ATP
Order at 3.) Agents conducting the stings are directed to ?target persons who show a propensity
of doing harm to the public through Violent behavior/armed robberies and whose activities have
been documented either through criminal history, criminal reputation, or self-incrimination.?
(Id) But critics have noted that the ATP does not always ?target existing criminal enterprises or
have prior suspicion of potential targets,? and instead the stings often ?ensnare low~1evel crooks
who jump at the bait of a criminal windfall.? Flowers, 2017 WL 4785960, at *14 (citation
omitted). As is the case here, many of those caught in the snare are individuals living in low"
. income minority communities.
I. The Brown investigation

The events underlying the Brown case began in April 2012, when Chicago ATF agents
began a ?rearms investigation in Chicago?s Englewood neighborhood. (Brown, R. 555-1, Report
of Investig. at 144.)5 According to the complaint, between April and August 2012, a con?dential
informant working with the ATF purchased more than 20 ?rearms from Dwaine Jones in a series
of controlled buys. (Id, R. 1, Compl. 1[ 5; id, R. 555~1, Report of Investig. at 144.) Jones was
known to associate with the Gangster Disciples, a ?Violent street gang? in Chicago. United States
v. Ellis, 622 F.3d 784, 788 (7th Cir. 2010); see also United States v. Smith, 223 F.3d 554, 560-61

(7th Cir. 2000) (describing the history of the Gangster Disciples street gang, which ?operated a

 

4 The ?stash house sting? operation was the brainchild of ATP Agent Richard Zayas, who has ?made a career of
coordinating the stings, having worked on or been involved with over 100 similar scenarios across the country.?
Flowers, 2017 WL 4785960, at For decades, Agent Zayas led trainings for ATP agents on how to conduct the
stings, and some of his training materials have been submitted as an exhibit to the motion to dismiss. (See Brown, R.
511?3, Zayas Training Materials.)

5 The Court notes that the page numbers listed for record cites throughout this opinion refer to the page numbers
assigned at the time the document was electronically ?led with the Clerk of Court, not to the internal page numbers
contained within the documents.

 

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massive drug distribution business in the Chicago area?). He had no prior felony convictions but
had arrests for assault, aggravated battery, and theft. (Brown, R. 51b5, Takedown Mem. at 95.)

In July 2012, the con?dential informant reported to ATF agents that, during an
unrecorded conversation, Jones raised the possibility of committing an armed robbery and asked
the informant whether he knew about any good targets. (Id, R. l, Compl. 11 5.) During a
controlled buy with Jones in Englewood the following day in which he sold the informant
another ?rearm, the informant, working at the instruction of ATP agents, told Jones about a
fictitious stash house that could be robbed. (Id 1] 6; Id, R. 555-1, Tr. at 153-54.) Jones responded
that he knew some men who could commit the robbery. (Id R. l, Compl. 6.) During another
controlled buy a few days later, Jones told the informant that he had ?told a couple 0? my guys?
about the stash house and that they were interested in committing the robbery. (Id, R. 555-1, Tr.
at 164.)

Later that same month, the informant introduced Jones to the undercover agent, Dave
Gomez, who was posing as a disgruntled courier for a drug cartel. (Id, R. l, Compl. 1[ 8.) During
a recorded conversation, Agent Gomez told Jones that he was looking for a ?professional crew?
to rob twenty kilograms or more of cocaine from a stash house that was guarded by three men
with guns. (Id, R. l, Compl.1[ 8; id, R. 5554, Tr. at 184, 186, 190.) Jones said that he had not
personally committed an armed robbery, but that, in his words, the people that hang with, they
done this shit before.? (Id, R. 555-1, Tr. at l84.) Jones told Agent Gomez he would bring him
three or four men. (Id at 192-93 .) Jones also mentioned during this meeting that the police were
looking for him and his ?guys? because they had recently committed a shooting and had

accidentally shot and severely injured an innocent bystander. (Id at 17738.)

 

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The next day, Jones brought Abraham Brown and Kenneth Taylor to meet with Agent
Gomez. (Id, R. l, Compl. fl 10; Gov?t?s EX. Tr. at 21?66.) ATF records show that both
Brown and Taylor were affiliated with the Gangster Disciples street gang. (Id, R. 555?1,
Records at 228.) Brown?s criminal history included convictions for attempted armed robbery,
residential burglary, and aggravated unlawful restraint. (Id, R. 1, Compl. 12 n.4; id, R. 511-5,
Takedown Mem. at 96.) Taylor?s criminal history included convictions for a drug offense and for
possessing a ?rearm after a felony conviction. (Id, R. 1., Compl. 12 n5.) After Jones
introduced Brown and Taylor to Agent Gomez, Jones left the meeting. (Gov?t?s EX. 4E, Tr. at
22.) Agent Gomez then explained the robbery scenario, and asked Brown and Taylor if they had
committed a robbery before. (Id. at 2326.) Taylor replied, ?That?s what I do,? and explained that
he did not rob people on the street, but always committed robberies in houses. (Id. at 29.) Brown
explained that the ?rst time he went to prison was for an armed robbery, stating, what
I do,? and later stated, ?I?m a burglar too.? (Id. at 26?27, 57.) Brown also stated that he had
previously robbed a drug dealer of ?a brick,? or kilogram, of cocaine. (Id. at 53.) Taylor stated
that he had previously committed a home invasion robbery and had stolen drugs, guns, and
money. (Id) Taylor also stated that he had committed robberies in Chicago with a group of ?my
other guys,? and had gotten ?half 0? bricks.? (Id. at 5 3.) Brown stated that, if necessary, they
would ?eliminate? everyone inside the stash house. (Id. at 29.)

On August 1, 2012, Brown, Taylor, and Jones met Agent Gomez again, this time with
another crew member Brown had recruited, later identified as Alfred Washington. (Id, R. 1,
Compl. 15.) Law enforcement records show that Washington was also af?liated with the

Gangster Disciples street gang, and that he had a prior drug conviction. (Id, R. 55 5 Records at

 

6 It appears that this document (a transcript of one of the recorded conversations) was inadvertently not uploaded at
the time the government ?led its voluminous exhibits. The Court refers to it by the document number assigned by
the government.

10

 

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230; rd, R. l, Compl. 15 116.) During the meeting, Brown informed Agent Gomez that he and
the other men were ?all family,? and that to support themselves they ?do the crime shit.? (Id, R.
555?1, Tr. at 354?55.) Brown stated that he regularly robbed ?cribs and shit,? but that he had not
done a or armed robbery?msince the prior year, because in his words, only try to do
big scores.? (Id. at 259.) Brown and Washington also discussed home invasion robberies they
had committed together. (Id at 260.) Brown stated that committing robberies was ?how we eat.?
(Id at 261.) Later in the conversation, Brown and Washington discussed a home invasion
robbery they had recently committed with Brown?s cousin, later identi?ed as Christopher Davis,
who they said was skilled at bypassing home alarm systems. (Id. at 279-80.) The men then
discussed further details of the stash house robbery, including a plan by Brown to pose as police
officers to confuse the cartel members. (Id at 281-87.) Brown stated that if things got ?ugly? the
cartel members would be ?permanently sleepin?.? (Id. at 288.) Brown stated that he already had a
buyer lined up to purchase ?at least? 10?15 kilograms of the cocaine they expected to obtain from
the robbery. (Id. at 248.)

On August 14, 2012, Brown, Taylor, Washington, and Jones met Agent Gomez at a
prearranged location so that they could commit the robbery. (Id, R. 1, Compl. 24, 26.) Brown
brought a ?fth crew member, Davis, who was Brown?s cousin. (Id. 11 26; id, R. 555?1, Tr. at
397-98.) Law enforcement records show that Davis was also known to af?liate with the Gangster
Disciples and had convictions for burglary, residential burglary, and drug possession. (Id, R. 1,
Compl. 11 26 Daring the meeting, Brown stated, ?We got a hell of a crew,? adding, don?t
know if I can even put this same crew together again, so I?m hopin? that it do go down today.?
(Id. R. 55 5-1, Tr. at 381.) Brown, Taylor, and Washington told Agent Gomez that they had

brought a total of three guns, ?two handguns . . . and one big one,? which were stored in Jones?s

ll

 

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van. (Id, R. 555?1, Tr. at 417.) Shortly thereafter, agents arrived and arrested the men. (Id, R. 1,
Compl. '11 28.) Inside Jones?s van, agents found two loaded 9-millimeter handguns, a sawed-off
shotgun, masks, and zip ties. (Id 11 29.)

As a result of these events, Brown, Taylor, Washington, Jones, and Davis were charged
with conspiracy, attempt to commit Hobbs Act robbery in violation of 18 U.S .C. 1951(a), and
possession of a ?rearm in furtherance of a crime of violence in violation of 18 U.S.C. 
(Id, R. 45, Indictment.) .l ones has since pled guilty to two counts of the indictment in exchange
for a plea agreement. (Id, R. 115, Min. Entry; id, R. 116, Plea Agreement.) The charges against
the other Brown Defendants remain pending.

II. The Williams Investigation

The events underlying the Williams case began in the fall of 2012, when ATF agents
from around the country came to Chicago as part of a law enforcement ?surge? targeting
Chicago neighborhoods that were experiencing a rash of violent crime. (Williams, R. 354~1 
Gov?t?s Disc. Resps. at 43?44, 52; Brown, R. 511-5, Takedown Mem. at 111, 130.) The Williams
investigation focused on an area near East 63rd Street and South Martin Luther King Drive on
Chicago?s south side.3 (Id, R. 354?1, Gov?t?s Disc. Resps. at 43-44 11.1.) In November 2012, a
con?dential informant working with the ATP brought agents information about a man he knew
as ?Tweet.? (Id, R. 1, Compl. 1] 8; id, R. 354?1, Report of Investig. at 462.) According to the
informant, ?Tweet? had spoken to the informant earlier in the day (during an unrecorded

conversation) and had discussed armed robberies he had recently committed, and had expressed

 

7 Defendants were initially charged with certain drug offenses in addition to the charges outlined above, but as to all
Defendants other than I ones, the drug charges were later voluntarily dismissed by the government. (Brown, R. 288,
Gov?t?s Mot. to Dismiss; id, R. 294, Order.)

3 Two other stash houses cases pending in this District, United States v. Payne, 12 CR 854 (N .D. 111. ?led Nov. 5,
2012), and United States v. Cousins, 12 CR 865 (N .D. 111. ?led Nov. 6, 2012), also arose from the fall 2012 law
enforcement surge. (See R. 354-1, Gov?t?s Disc. Resps. at 43 

12

 

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an interest in conducting more robberies. (Id, R. 1, Comp]. 8; id, R. 354-1, Report of Investig.
at 462.) Working at the direction of ATP, the informant told ?Tweet? that he had an associate
with information about a potential robbery of narcotics. (Id. R. 354?1 Report of Investig. at
462.) ATP agents used law enforcement databases to identify ?Tweet? as Antonio Williams. (Id)
Law enforcement records showed that Williams was known to af?liate with the Gangster
Disciples and had ?ve felony convictions, including convictions for aggravated assault with a
deadly weapon and unlaw?il use of a weapon following a felony conviction, as well as an arrest
for drug traf?cking. (Id; id, R. 332?5, Takedown Mom. at 126.)

On November 2012, ATP Agent Carl Valles, posing as adngruntled drug courier, met
with Williams at 63rd and King Drive. (Id, R. 354?1, Tr. at 464?71.) At the beginning of the
conversation, Agent Valles asked Williams, ?you ready to do this lick?? Williams replied, ?Hell
(Id. at 465.) Agent Valles asked, ?You gotta crew,? and Williams responded, ?Yea, they
right there, right now,? as they all lived in the immediate area. (Id. at 466.) After Agent Valles
explained that the robbery would target a cartel stash house containing eight to ten kilograms of
cocaine and guarded by two men with guns, Williams responded that he had ?guns like a
motherfucker,? including and and that if necessary, he would ?come to the
door shoo[t]in? (Id) Williams said he had a group available to do the robbery, which included
his uncle and others he knew from the area. (Id. at 466-6 8.) Williams described the robbery
opportunity as ?beautiful? and told Agent Valles that ?it [was] an honor? to be involved. (Id. at
467.) At the end of the conversation, the two agreed to meet soon with other members of the

robbery crew.9 (Id. at 470.)

 

9 On November 8, 2012, Agent Valles met with Williams and two individuals introduced to him by Williams to
discuss details of the planned robbery, but these two individuals never showed up on the date of the takedown and
are not defendants in this case. (See Williams, R. 3544, Tr. at 522?61; I'd, R. 1, Compl. 35?37.)

13

 

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On November 12, 2012, Agent Valles met with Williams and his uncle, who agents later
identi?ed as John Hummens. (Id, R. 1, Compl. 40; id R. 354?1, Tr. at 473-90.) During the
meeting, the men discussed the details of how they would oarry out the robbery, and Hummons
told Agent Valles, like doin? this shit . . . we can just get rich.? (Id, R. 354-1, Tr. at 476-86.)
A third man had driven Williams and Hummons to the meeting, and Hummons explained that
this third man would act as the driver during the robbery. (Id at 488~89; I'd, R. 1, Comp]. 40.)
Agent Valles asked to speak to the driver, later identified as Howard Lee, but Williams and
Hammons said that they would explain the details of the robbery to him so that there was no
need for him to meet Agent Valles. (Id, R. 354-1, Tr. at 488.)

On November 14, 2012, Lee drove Williams and Hummons to meet Agent Valles and a
second undercover ATF agent so that the men could commit the robbery. (R. l, Compl. 52-
54; id, R. 354?1, Tr. at 495?510.) The second undercover agent spoke to Lee and con?rmed that
he understood the details of the robbery. (Id, R. 354?1, Tr. at 496-97.) Hummons, Lee, and
Williams all con?rmed that they were ready to commit the robbery, with Hummons adding, ?If
you guys wanna go now, I?ll do it my motha? fuckin? self.? (Id. at 496.) Shortly thereafter, agents
arrived and arrested the men. (Id, R. l, Compl. 64; id, R. 2, Min. Entry.) A search of Lee?s car
revealed a 9~millimeter semi?automatic handgun loaded with 16 rounds of ammunition. (Id, R.

1, Comp]. 65.)

14

 

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Following their arrest, all three Defendants made statements implicating themselves in
the planned robbery. 1? (Id 6769.) Lee gave a written statement in which he admitted that he
and Williams had a mutual friend who made a living by committing robberies, including robbing
drug dealers ?for their drugs and money.? (Id, R. 35 4-1, Lee?s Statement at 513.) Lee stated that
had been the driver for the ?iend during previous robberies, and that the friend had recruited Lee
to drive for Williams during the planned stash house robbery. (Id at 514?17.) As a result of these
events, Williams, Lee, and Hummons were charged with conspiracy, attempt to commit Hobbs
Act robbery, and possession of a ?rearm in furtherance of a crime of violence.11 (Id, R. 24,
Indictment; id, R. 162, Order.)

Racial Profiling Defense

Defendants first raised the issue of racial pro?ling in a discovery motion ?led more than
four years ago. (See Williams, R. 50.) In July 2013, this Court granted Defendants discovery
relevant to this potential defense over the government?s objection. (Id, R. 69, Order.) Over the
course of the next two years, this Court ordered signi?cant additional discovery from the
government, including information pertaining to the con?dential informants, as well as law
enforcement strategies used in the stings. (See, e. g, id, R. 140, Order; id, R. 143, Order; id, R.

164, Order; id, R. 191, Min. Entry; id, R. 232, Min. Entry.) The government estimates that as a

 

?0 Defendants moved to suppress inculpatory statements they made while being transported to the ATP office in a
police vehicle, which had been bugged with an audio device. See United States v. Wz'liiams, 15 F. Supp. 3d 821, 825,
831?33 (NI). Ill. 2014), abrogated by United States v. Paxton, 848 F.3d 803 (7th Cir. 201?). Hummens also moved
to suppress a statement he later made at the ATE of?ce under a ?fruit of the poisonous tree? analysis. Id The Court
granted the motion to suppress the secretly recorded statements, but denied the motion with respect to Hommons?
statement at the ATF office. Id at 831?33. The matter has not been revisited in light of the pending motions to
dismiss, but the Seventh Circuit has since abrogated this Court?s reasoning in suppressing the secretly recorded
statements. See Paxton, 848 F.3d at 809-13.

1? Lee has indicated his intent to plead guilty, and a change-of?plea hearing has been tentatively scheduled for March
2018. (R. 416, Min. Entry.) Lee has not formally joined in the motion to dismiss, although the Court has deferred
holding his plea hearing until the motion is resolved.

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result of the Court?s orders, more than 5,000 pages of materials have been disclosed. (Id, R. 364,
Gov?t?s Resp. to Mot. for Renewed Disc. at 2.)

In 2014, the Court also granted Defendants? motion for the appointment of an expert,
Professor Jeffrey Fagan, to conduct a statistical analysis of the stash house cases in this District
to determine whether there were statistically signi?cant racial anomalies. (See Brown, R. 269,
Order.) To assist Professor Pagan in obtaining the data necessary to conduct his analysis, the
Court presided over protracted third-party subpoena proceedings involving the Illinois State
Police (See, e. g, Williams, R. 186, Order; id, R. 208, Order; id, R. 214, Order; id, R.
226, Order.) This process resulted in an extensive amount of crime data being turned over to
Professor Fagan for use in his analysis. (See Williams, R. 338-2, Fagan?s Report at 5-6.)

In May 2016, Professor Fagan completed his report, and he opines that the racial makeup
of the stash house defendants in all cases prosecuted in this District shows a strong statistical
anomaly when compared to a control group he constructed from the ISP data. (See id.) In
September 2016, Defendants ?led the present motion (as did the defendants in the other pending
stash house cases), relying heavily on Professor Fagan?s report to argue that the ATP targeted
them because of their race in violation of the Fifth Amendment. 12 (Id, R. 338.) In Defendants?

view, Professor Fagan?s report de?nitively establishes discriminatory effect, in that there

 

?2 The Court notes that Defendants do not assert any claim of ?outrageous government conduct.? See United States
v. Russell, 411 US. 423, 431 (1973) (observing that the Court ?may someday be presented with a situation in which
the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the
government ?mn invoking judicial processes to obtain a conviction?). Although the Supreme Court has not ?closed
the door entirely? on this defense, the Seventh Circuit has long declined to recognize it. United States v. Smith, 792
F.3d 760, 765?66 (7th Cir. 2015); see also United States v. Stallwarth, 656 F.3d 721, 730 (7th Cir. 2011)
(?Outrageous government conduct is not a defense in this circuit?); United States v. White, 519 F.3d 342, 346 (7th
Cir. 2008) circuit clearly and consistently has refused to recognize any defense based on . . . outrageous
government conduct.? (internal quotation marks omitted)). In 2014, the defendants in United States v. Alexander, 11
CR 148, asserted the defense in a motion to dismiss, but the court denied the motion ?nding that the defense was not
viable under the law of this Circuit. Alexander, R. 236. The Eighth and Ninth Circuits do recognize the defense, but
both have concluded that the circumstances surrounding a standard ATP phony stash house sting do not amount to a
due process violation. See United States v. Combs, 827 F.3d 790, 795 (8th Cir. 2016); United States v. Dunlap, 593
F. App?x 619, 620?22 (9th Cir. Dec. 4, 2014).

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was a clear pattern of racial disparities in whom the ATP chose to target, and (2) discriminatory
intent, in that those racial disparities are inexplicable on grounds other than race.? (Id. at 7.) In a
nutshell, Defendants believe that Professor Fagan?s analysis leads to ?the inescapable conclusion
that the ATP selected the stash house defendants on the basis of race.? (Id) They argue that the
charges should be dismissed on grounds of selective enforcement/racial pro?ling. (Id)

In January 2017, the government?s expert, Professor Max Schanzenbach, completed his
rebuttal report. (Id, R. 354?1, Schanzenbach?s Report.) Professor Schanzenbach opines that there
are numerous problems with Professor Fagan?s analysis. (Id) Among other issues, he concludes
that Professor Fagan?s comparison group is far too broad. (Id. at In his view, the 290,000
individuals identified by Professor Pagan from the ISP data were not similarly situated to the
stash house defendants because there was no indication that these individuals were actually
?available to the ATP as possible targets? or that they were ?likely willing to participate in a
stash house robbery.? (Id. at 5-6.) He also opines that only the initial targets of the stash house
stings should have been used in the comparative analysis, not the entire defendant population,
because most of the defendants were recruited by the targets and not by the in Professor
Schanzenbach?s View, the inclusion of all 94 defendants in the comparative analysis
fundamentally skewed Professor Fagan?s results. (Id. at 18421.) In February 2017, the
government filed a response to Defendants? motion to dismiss, relying heavily on Professor
Schanzenbach?s report and arguing that Defendants have failed to prove that the indictments in
these two cases were the product of racial profiling. (Id, R. 354, Gov?t?s Resp.) In August 2017,

Defendants filed a reply brief, accompanied by a reply report prepared by Professor Pagan

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responding to some of Professor Schanzenbaeh?s criticisms.13 (Id, R. 378, Reply; id, R. 378?3,
Fagan?s Reply Report.) A two~day evidentiary hearing was held in December 2017 before the
nine district judges presiding over the 12 pending stash house cases, at which both experts
testified in detail regarding their opinions reached in these cases. (Brown, R. 654, Min. Entry; id,
R. 655, Min. Entry; see also Evid. Hr?g Tr. at 1-541.)
LEGAL STANDARD

Under Federal Rule of Criminal Procedure 12(b), party may raise by pretrial motion
any defense, objection, or request that the court can determine without a trial on the merits.? FED.
R. CRIM. P. This includes motions alleging ?a defect in instituting the prosecution? due
to ?selective or vindictive prosecution.? FED. R. CRIM. P. ?Challenging an
indictment is not a means of testing the strength or weakness of the government?s case, or the
sufficiency of the government?s evidence.? United States v. Moore, 563 F.3d 583, 586 (7th Cir.
2009) (citation omitted); see also United States v. Khan, No. 2017 WL 2362572,
at *18 (N .D. 111. May 31, 2017) an indictment may be dismissed if subj act to a defense
that raises only a question of law, a defense relating to the strength of the government?s evidence
ordinarily must wait for trial.? (citation omitted)). Therefore, in deciding such a motion, the
Court must accept the allegations in the indictment as true. Moore, 563 F.3d at 586.

ANALYSIS

?The Attorney General and United States Attorneys retain broad discretion to enforce the
Nation?s criminal laws.? United States 12. 517 U.S. 456, 464 (1996) (citation and
internal quotation marks omitted); see also United States v. Russell, 411 U.S. 423, 435 (1973)

(?The execution of the federal laws under our Constitution is con?ded primarily to the Executive

 

?3 This Court previously granted Defendants leave to ?le an amended reply brief and a document correcting portions
of the reply report prepared by Professor Fagan. (Williams, R. 403, Reply; id. R. 407, Corr. to Fagan?s Reply
Report.) The Court has considered these corrected documents in reaching this opinion.

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Branch of the Thus, a ?presumption of regularity? attaches to prosecutorial
decisions, and ?in the absence of clear evidence to the contrary, courts presume that
[prosecutors] have properly discharged their of?cial duties.? 51?? U.S. at 464
(citation omitted). In the usual case, ?so long as the prosecutor has probable cause to believe that
the accused committed an offense de?ned by statute, the decision whether or not to prosecute,
and what charge to ?le or bring before a grand jury, generally rests entirely in his discretion.? Id.
(citation omitted).

Nevertheless, this discretion is ?subject to applicable constitutional and statutory
limitations and to judicially fashioned rules to enforce those limitations.? Russell, 411 U.S. at
435. One such constraint, imposed by the equal protection component of the Due Process Clause
of the Fifth Amendment, is that ?a decision whether to prosecute may not be based on an
unjustifiable standard such as race, religion, or other arbitrary classi?cation.? 517
U.S. at 464 (citation and internal quotation marks omitted); see aZso Washington v. Davis, 426
U.S. 229, 239 (1976) (observing that the Fifth Amendment contains ?an equal protection
component prohibiting the United States from invidiously discriminating between individuals or
groups?). A claim of selective prosecution is governed by ?ordinary equal protection standards.?
517 U.S. at 465. To establish an equal protection violation in this context, the
defendant must demonstrate that the administration of the criminal law was ?directed so
exclusively against a particular class of persons . . . with a mind so unequal and oppressive that
the system of prosecution amounts to a practical denial of equal protection of the law.? Id. at
464-65 (citation and internal quotation marks omitted). The defendant must come forward with
?clear evidence? showing that the decision to prosecute ?had a discriminatory effect and that it

was motivated by a discriminatory purpose.? Id. at 465. This high standard stems from a desire

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to avoid unnecessary interference in the functions of the Executive Branch. Id. ?Examining the
basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by
subjecting the prosecutor?s motives and decisionmaking to outside inquiry, and may undermine
prosecutorial effectiveness by revealing the Government?s enforcement policy.? Id.

A claim of selective enforcement is generally governed by the same standards. United
States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 2002). A defendant asserting a claim of selective
enforcement must establish that ?a law or regulation was enforced against him, but not against
similarly situated individuals of other races.? Barlow, 310 F.3d at 1010. But ?it is considerably
harder? to prove a selective enforcement claim. United States v. Hare, 820 F.3d 93, 100 (4th Cir.
2016) (citation omitted). That is because a meritorious selective prosecution claim, a
criminal defendant would be able to name others arrested for the same offense who were not
prosecuted by the arresting law enforcement agency.? Chavez 12. Illinois State Police, 251 F.3d
612, 640 (7th Cir. 2001). By contrast, a litigant alleging, for example, ?that they were stopped
[by police] due to racial pro?ling would not, barring some type of test operation, be able to
provides the names of other similarly situated motorists who were not stopped.? Id. see also
Hare, 820 F.3d at 100 (noting argument that in a selective enforcement claim, ?there are less
likely to be records of similarly situated individuals who were never investigated or arrested?).

In an appeal of a discovery order in another stash house case, the Seventh Circuit
explained another important distinction between selective prosecution and selective enforcement
claims: Selective enforcement claims are directed at-wrongful conduct by law enforcement
agents, and unlike prosecutors, they ?are not protected by a powerful privilege or covered by a
presumption of constitutional behavior.? United States v. Davis, 793 F.3d 712, 7 20 (7th Cir.

2015) (en bane); see also Chavez, 251 F.3d at 640 constitutional implications of

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interfering with the prosecutorial function [are] a factor at the heart of a criminal defendant?s
claim of selective prosecution, but [are] not directly at issue in a plaintiff?s civil claim of racial
profiling?). As the Seventh Circuit explained, if law enforcement agents offered stash house
robbery opportunities ?to black and Hispanic suspects, yet not to those similarly situated in
criminal background and interests but of other ethnicity,? then they engaged in unconstitutional
race discrimination. Davis, 793 F.3d at 720. it would not matter that the United States Attorney?s
Office ?prosecuted every case the agencies presented, or chose[] 25% of them in a race?blind
lottery,? because ?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.? Id. Thus, if
Defendants prove that law enforcement agents would not have pursued these investigations had
they been white, dismissal of the charges is warranted. Id. at 722~23. ?If not, there would not be
a basis to attribute this prosecution to the defendants" race,? and the case must proceed to a
resolution of the charges. Id.
I. Applicable Standard of Proof

The ?rst issue the Court must resolve is what standard of proof Defendants must satisfy
to obtain dismissal of the indictment. The government argues that the ?clear and convincing
evidence? standard adopted by the US. Supreme Court in is applicable, whereas
Defendants believe that an ordinary preponderance of the evidence standard applies. (See
Williams, R. 338, Defs.? Mot. at 18?19; Brown, R. 555, Gov?t?s Resp. at 15?16; id, R. 630,
Defs.? Reply at 8?10; id, R. 643, Gov?t?s Surreply at 1-3.) Defendants do not cite any direct
authority for the proposition that the preponderance standard applies when resolving a motion to
dismiss a federal criminal indictment, but they believe that comments by the Seventh Circuit in

Davis explaining the distinctions between selective enforcement claims and selective prosecution

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claims means that the higher standard adopted in is inapplicable. (Williams, R. 33 8,
Defs.? Mot. at 18?19; I'd, R. 378, Defs.? Reply at 7~10.)

It is true that this case does not directly implicate prosecutorial discretion, as Defendants7
argument is that the ATP, rather than the US. Attorneys? Of?ce, discriminated against them.
is thus not directly on point. But at the same time, the Court does not find it
appropriate to adopt a mere ?preponderance of the evidence? standard in deciding Defendants?
motion. Applying such a low standard would be inconsistent with the substantial discretion
afforded to the executive branch in enforcing the laws of this nation. See Russell, 411 US. at
435. The Supreme Court recognized this deference in a case where a criminal defendant argued
that the death penalty was being implemented in a racially discriminatory manner in Georgia.
See McCleskey v. Kemp, 481 U.S. 279, 297 (1987). The Supreme Court noted that the defendant
was challenging a discretionary judgment ?at the heart? of the criminal justice system, explaining
as follows:

One of society?s most basic tasks is that of protecting the lives of its citizens and

one of the most basic ways in which it achieves the task is through criminal laws

. . . . Implementation of these laws necessarily requires discretionary judgments.

Because discretion is essential to the criminal justice process, we would demand

exceptionally clear proof before we would infer that the discretion has been

abused.
Id. (emphasis added).

The same reasoning applies here. Defendants are challenging decisions ?at the heart? of
the criminal justice system: the decision of law enforcement agents to pursue an investigation
pertaining to the violation of federal law. As Defendants themselves acknowledge, such
decisions inherently involve discretionary judgments that take into account a variety of factors.

(See Williams, R. 378, Defs.? Reply at 64.) Most of these factors, including enforcement

priorities and how best to achieve them, are beyond the scope of judicial review. See 

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517 U.S. at 465; Russell, 411 U.S. at 435. Defendants are correct that the Seventh Circuit in
Davis neted the different standard that applies to resolving a motion for discovery in connection
with a claim of selective enforcement. See 793 F.3d at 720. But Davis did not directly address
what standard governs resolution of a substantive claim of selective enforcement. In another
recent stash house case, the Third Circuit expressly noted this distinction, and held that
substantive claims of selective enforcement continue to be governed by the ?clear evidence?
standard. Washington, 869 F.3d at 214. The court explained:

Substantive claims of selective prosecution and selective enforcement are

generally evaluated under the same two?part test, which is derived from a line of

seminal Supreme Court cases about the collision between equal protection
principles and the criminal justice system. A defendant challenging a criminal
prosecution at either the law enforcement or prosecution in?ection points must
provide ?clear evidence? of discriminatory effect and discriminatory intent[.]
Id. (emphasis in original). The court discussed Davis, including the language Defendants point to
here, but concluded that Davis did not answer the question of what standard governs a
substantive claim of selective enforcement. Id. at 218 (?Davis does not explicitly discuss the
discriminatory purpose! intent prong of the traditional analysis. Davis might
therefore be fairly described as an opinion entirely about discriminatory effect as a gateway to
discovery?).

This Court reads Davis the same way: it recognized a lower standard for granting
discovery on a selective enforcement claim, but it did not address the standard for resolving a
motion to dismiss on grounds of selective enforcement on the merits. In the absence of clear
direction from the Supreme Court or the Seventh Circuit that a lower evidentiary burden applies
to a substantive claim of selective enforcement in these unique and troublesome stash house

cases, this Court must reluctantly follow the Supreme Court?s admonition in McCieskey and will

require clear evidence before concluding that federal law enforcement agents abused their

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discretion in pursuing these investigations.14 This Court emphasizes that this discussion may be
different if the Court were writing this opinion from chambers on the 26th ?oor of the federal
courthouse rather than the 25th floor, or from chambers on the shores of the Potomac River
rather than Lake Michigan. This Court firmly believes that McCleskey was wrongly decided, 15
especially as it related to the use of the death penalty, yet this Court is obligated to follow the
dictates of McCZeskcy until it is overruled by the Supreme Court.
II. Daubert

Before turning to the merits, the Court must next address the threshold issues of the
parties? expert reports, which are a key component of their respective positions in this case. The
admissibility of expert testimony is governed by Federal Rules of Evidence 702 and 703 and the
US. Supreme Court?s decision in Dauben? v. Merrell Dow Pharmaceuticals, Inc., 509 US. 579
(1993). Brown 12. Burlington N. Santa Fe Ry. Ca, 765 F.3d 765, 771 (7th Cir. 2014). The

proponent of the expert?s testimony bears the burden of demonstrating that it satis?es the

 

?4 Defendants seek to distinguish Mc Cleskey, arguing that it was based solely on a desire to avoid interference with
prosecutorial discretion. (See Brown, R. 63 O, Defs.? Reply at 48.) Unfortunately, McCleskey was broadly written and
was not solely about prosecutorial discretion. Instead, the Supreme Court explained that raw statistical data would
not properly account for the many discretionary judgments made in connection with a decision to impose the death
penalty, including those made by each individualjury based on a variety of permissible factors. 481 US. at 294-95.
The Supreme Court explained:

[E]ach particular decision to impose the death penalty is made by a petit jury selected ?om a
properly constituted yenire. Each jury is unique in its composition, and the Constitution requires
that its decision rest on consideration of innumerable factors that vary according to the
characteristics of the individual defendant and the facts of the particular capital offense. Thus, the
application of an inference drawn horn the general statistics to a speci?c decision in a trial and
sentencing simply is not comparable to the application of an inference drawn ?om general
statistics to a speci?c venire?selection or Title VII case. In those cases, the statistics relate to fewer
entities, and fewer variables are relevant to the challenged decisions.

Id. (internal citations omitted). The Court must read McCleskey to urge caution whenever the judiciary is examining
a discretionary judgment ?at the heart? of the criminal justice system, as the Court is here. Id. at 297.

?5 Notably, McCZeskey was a 5-4 opinion, and Justice Lewis Powell, who authored the majority opinion, later
publicly stated that he came to regret his decision and would change his vote if he could. See

994/0 


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Dauberr? standard. Gopalramam v. Hewlett?Packard Ca, 877 F.3d 771, 782 (7th Cir. 2017).
Under Dauben?, ?the district court must engage in a three?step analysis before admitting expert
testimony. It must determine whether the witness is quali?ed; whether the expert?s methodology
is scienti?cally reliable; and whether the testimony will assist the trier of fact to understand the
evidence or to determine a fact in issue.? Id. at 779 (citation and internal quotation marks
omitted). On the question of reliability, courts consider a variety of factors, including: 
whether the proffered theory can be and has been tested; (2) whether the theory has been
subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of
error; and (4) whether the theory has been accepted in the relevant scientific community.? Id.
(citation omitted). Other ?benchmarks? for determining reliability include: whether
maintenance standards and controls exist; (6) whether the testimony relates to matters growing
naturally and directly out of research they have conducted independent of the litigation, or
developed expressly for purposes of testifying; (7) [W]hether the expert has unjustifiably
extrapolated from an accepted premise to an unfounded conclusion; (8) [w]hether the expert has
adequately accounted for obvious alternative explanations; (9) [W]hether the expert is being as
careful as he would be in his regular professional work outside his paid litigation consulting; and
(10) [w]hether the ?eld of expertise claimed by the expert is known to reach reliable results for
the type of opinion the expert would give.? Id. at 779~80 (citation. and internal quotation marks
omitted). This list is ?neither exhaustive nor mandatory,? however, and instead ?the reliability
analysis should be geared toward the precise sort of testimony at issue and not any fixed
evaluative factors.? Id. at 780 (citations and internal quotation marks omitted).

In the end, the inquiry is a ?exible one that provides wide latitude for the Court to serve

its role as ?gatekeeper.? C. W. Textron, Inc, 807 F.3d 827, 83465 (7th Cir. 2015). ?[T]he key

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to the gate is not the ultimate correctness of the expert?s conclusions,? but rather ?the soundness
and care with which the expert arrived at her opinion.? Id. at 834 (citation and internal quotation
marks omitted). ?[R]ej ection of expert testimony is the exception rather than the rule.? FED. R.
EVID. 702, advisory committee notes (2000 Amendments). The Court?s evaluation under
Daubert is not intended to ?take the place of the jury to decide ultimate issues of credibility and
accuracy.? Lapsley v. Xz?ek, Inc, 689 F.3d 802, 805 (7th Cir. 2012). ?If the proposed expert
testimony meets the Daaberr threshold of relevance and reliability, the accuracy of the actual
evidence is to be tested before the jury with the familiar tools of ?vigorous cross-examination,
presentation of contrary evidence, and care?ll instruction on the burden of proof.? Id. (quoting
Daabert, 509 U.S. at 596).

When the Court rather than a jury is the fact?nder on a particular issue, ?the judge need
not conduct a Daaberz? (or Rule 702) analysis before presentation of the evidence,? but still ?must
determine admissibility at some point.? Kansas City S. Ry. Co. v. Say Island Levee Drainage
Dist, 831 F.3d 892, 900 (7th Cir. 2016); see also Estate of Staller v. [fretted States, 811 F.3d 890,
895 n.3 (7th Cir. 2016) the fact?nder and the gatekeeper are the same, the court does
not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns
out not to meet the standard of reliability established by Rule 702.? (citation omitted)). Once the
Court has ?ful?lled its gatekeeping function? under Daabert, ?it becomes a trier of fact that
needs to assess the evidence itself?not just the methodology underlying that evidence.?
Kawasaki Kisen Kaisha, Ltd. v. Plano Molding C0. 782 F.3d 353, 360 (7th Cir. 2015). In effect,
the Court takes on the ?essential role as the arbiter of the weight and credibility of expert
testimony.? Id. (citation omitted). Neither side has formally moved to exclude the other?s expert,

but for the sake of completeness the Court considers each factor in the Daabert analysis.

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A. Professor Fagan?s Report
1. Professor Fagan?s quali?cations as an expert

In assessing an expert?s quali?cations, the Court should consider the expert?s full range
of education, experience, and training. FED. R. EVID. 702,16 Elec. USA v. Whirlpool, 661 F.
Supp. 2d 940, 951 (N .D. 111. 2009). Professor Fagan is a professor of law at Columbia Law
School, a professor of epidemiology at Columbia, and a senior research scholar at Yale Law
School. (Williams, R. 338-2, Fagan?s Report at 49.) Among his many other credentials, he was
the Director of the Center for Community and Law at Columbia Law School from 2003?09 and
again from 2011?15, and from 1996-2006 he was the founding director of the Center for
Violence Research and Prevention at Columbia?s Mailman School of Public Health. (Id at 50.)
Prior to his appointment at Columbia, he was a professor of criminal justice at Rutgers?The State
University of New Jersey, and an associate professor at John Jay College of Criminal Justice at
the City University of New York. (Id) He has co~authored three books and published numerous
articles on law and social policy in peer~reviewed journals, law reviews, and other scholarly
publications on criminal justice, criminology, and other topics. (Id. at 51-61.) He has served on
committees of the American Society of Criminology, the National Academy of Science, and the
National Science Foundation. (Id. at 49.) He is also a fellow of the American Society of
Criminology. (Id) He has previously served as an expert witness in litigation alleging Fourth and
Fourteenth Amendment civil rights violations resulting ?om racially selective police
enforcement in the conduct of investigative stops by police in New York City, and from 2012?1 5
he advised the Boston Police Department in its review of its practices. (Id) The Court ?nds
Professor Fagan to be well quali?ed to provide empirical research and to opine on the

discriminatory effect of ATP ?3 practices in this case.

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2. Reliability of Professor Fagan?s methodology

Rule 702 requires that the expert explain the methodologies and principles that support
his or her opinions; in other words, the expert cannot simply assert a ?bottom line.? Minix v.
Canorecci, 597 F.3d 824, 835 (7th Cir. 2010). To be reliable, the expert?s opinion must be
?reasoned and founded on data,? and must also ?utilize the methods of the relevant discipline.?
Bielskis 12. Louisville Ladder, Inc, 663 F.3d 887, 894 (7th Cir. 2011). In effect, ?[t]he goal of
Daubert is to assure that experts employ the same ?intellectual rigor? in their courtroom
testimony as would be employed by an expert in the relevant field.? Jenkins v. Bartlett, 487 F.3d
482, 489 (7th Cir. 2007) (citation omitted?.

To reach his opinions in this case, Professor Fagan obtained criminal history records for
each of the 94 stash house defendants and coded them for race, criminal history, and other
factors. (Williams, R. 33 8?2, Fagan?s Report at 5 .) He then conducted a detailed statistical
analysis of the stash house defendants with respect to race, criminal history, and other factors.
(Id. at 15-20.) He also obtained extensive crime data from the ISP meeting certain parameters.
(Id. at 6.) Once individuals were identified from these criteria, he constructed a complete
criminal history for each individual using a search of ISP databases, which included variables
such as race, gender, age, number of prison sentences, and other criminal history factors. (Id. at
7, 9.) He conducted a comparison of the stash house defendants and the pool of other individuals,
who he calls ?potential eligibles,? with respect to race, criminal history, and other factors. (Id. at
21-23.) This included conducting a series of empirical tests for assessing Defendants? selective
enforcement claims in this case: a disparate treatment test, a second test incorporating a principle

known as augmented inverse probability weighting, and a third test using propensity score

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matching. 16 (Id. at 23 -30.) From these tests he reached certain results, which in his opinion
demonstrate a pattern of discrimination by the ATP in the stash house stings. (Id. at 31?37.) For
purposes of Daubert, the Court finds that Professor Fagan?s methods were properly based on
accepted statistical principles.

In the government?s View, ?The Pagan Report is flawed from top to bottom. It starts with
the wrong comparison group, then performs elaborate statistical analyses based on core
assumptions that are simply mistaken.? (Brown, R. 555, Gov?t?s Resp. at 37.) The government
argues that Professor Fagan?s report ?fail[ed] to . . . make the most elementary comparisons,?
and ?has no value as causal explanation and is therefore inadmissible in a federal court.? (Id. at
27 (citations omitted).) But the Court finds that these criticisms go more to the weight of
Professor Fagan?s opinions than to their admissibility. For purposes of Daubert, Professor
Fagan?s opinions are properly grounded in established statistical principles and his extensive
knowledge of the field of criminology. Whether there are any weaknesses in his opinions and
how much weight they should be given are matters for this Court to decide separately. See
Kawasaki Kisen Kaisha, Ltd, 782 F.3d at 360.

3. Whether Professor Fagan?s report will assist the trier of fact
Next, the Court must decide whether Professor Pagan?s testimony will assist the trier of

fact in determining a relevant fact at issue in the case. The Court ?nds that this inquiry is

 

15 Professor agan describes probability weighting as again using ?a logistic regression equation. The distinction in
this analysis is that the procedure ?rst estimates one logistic regression model to predict the statusw?in this case,
race?and then uses another logistic regression model to predict the outcomes given the results of the ?rst

model. . . . If a predictor is statistically signi?cant, it is presumed to be not independent of the outcome, but instead a
predictor of that outcome.? (Williams, R. 338-2, agan?s Report at 28.) He describes propensity score matching as
follows: or each person in the ?treatment? group?Black or non?White people?one or more persons is selected
from the ?control? group?White people?that are matched to the ?rst group on all characteristics except race. This
simulates random assignment to a treatment group?race?by matching persons on numerous predictors of
treatment assignment . . . . The average treatment effect (ATE) is computed by taking the average of the difference
in probability of selection between the observed and potential outcomes (Stash House defendant v. potential
eligible) for each subject.? (Id. at 29.)

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satis?ed. Professor Pagan provides a statistical analysis of the stash house Defendants and a
comparison to what he deems to be a ?similarly situated? group of individuals. Making this
comparison is a key component of Defendants? racial pro?ling claim, and this Court does not
have the ability to gather its own extensive crime data or conduct detailed statistical analyses
based on that data. Accordingly, the Court ?nds that Professor Fagan?s report and testimony will
assist the Court in resolving Defendants? racial profiling defense.

B. Professor Schanzenbach?s Report

1. Professor Schanzenbach?s qualifications as an expert

Professor Schanzenbach is a professor of law at Northwestern University School of Law.
(Brown, R. 555-1, Schanzenbach?s Report at 33.) He holds a law degree ?om Yale Law School
and a in economics, also from Yale. (Id) Among his many credentials, he previously
served as the director of the Searle Center on Law, Regulation, and Economic Growth, and
served as a board member on the American Law and Economics Association and other scholarly
organizations. (Id. at 37?38.) He has published books and articles in peer~revievved journals, law
reviews, and other scholarly publications involving empirical studies of sentencing disparities
and other topics. (Id. at 33?35 .) The Court concludes that Professor Schanzenbach is quali?ed to
offer opinions about the statistical analysis conducted by Professor Pagan.

2. Reliability of Professor Schanzenbach?s methodology

To reach his opinions in this case, Professor Schanzenbach reviewed a variety of
materials, including detailed information from all 24 sting operations, Professor agan?s report,
Defendants? motion to dismiss, and the thousands of pages of discovery materials turned over by
the government in this case. (Brown, R. 555-1, Schanzenbach?s Report at 2.) From there he

conducted a detailed analysis of Professor Fagan?s report, including testing various assumptions

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on which Professor Fagan?s report is based. (Id. at 34.) He also conducted his own binomial
statistical analysis comparing the stash house defendants to the racial makeup of a smaller group
that he believes is more similarly situated to the stash house defendants than the broad group of
?potential eligibles? de?ned by Professor Pagan. (Id. at 8.) From there he offers various opinions
about the validity of Professor agan?s results, and offers his own opinion about Whether there is
statistically signi?cant evidence of racial pro?ling by the ATP. (Id. at 8?9, 13?26.) For purposes
of the Daubert inquiry, the Court ?nds that Professor Schanzenbach?s analysis is reliably based
on accepted scientific methods and his comprehensive review of the data relevant to this case.

3. Whether Professor Schanzenbach?s report Will assist the trier
of fact

The Court also ?nds that Professor Schanzenbach?s testimony Will assist the trier of fact.
Defendants? motion to dismiss relies heavily on the opinions offered by Professor Pagan. Testing
the validity and strength of Professor Fagan?s conclusions is a necessary component of resolving
the motion to dismiss. Through his extensive knowledge of statistical principles, Professor
Schanzenbach can provide the necessary adversarial testing of Professor Fagan?s report.
Therefore, the Court finds that the third prong for admissibility is satisfied. The Court will
consider the weight and persuasiveness of both experts? reports in connection with its analysis of
the merits below.

HI. Merits

A. Discriminatory Effect

The first element of a selective enforcement claim is discriminatory effect. 
517 US. at 464?65; Barlow, 310 F.3d at 1010. To establish discriminatory effect in this case,
Defendants point to Professor Fagan?s report, which in their view provides de?nitive proof that

the ATP discriminated against black and Hispanic individuals in conducting the stash house

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investigations. (Williams, R. 33 8, Defs.? Mot. at 18-28.) In Chavez, the Seventh Circuit expressly
recognized that a litigant may rely on statistics to show discriminatory effect. 251 P.3d at 63 8
(?While few opinions directly acknowledge that statistics may be used to prove discriminatory
effect, the [Supreme] Court has repeatedly relied on statistics to do just that?). The Seventh
Circuit reaffinned, however, that ?[t]he statistics proffered must address the crucial question of
whether one class is being treated differently from another class that is otherwise similarly
situated.? Id. That is because ?raw statistics regarding overall charges say nothing about charges .
brought against similarly situated defendants.? United States v. Bass, 536 US. 862, 864 (2002)
(emphasis omitted); "see also Barlow, 310 P.3d at 1012 (rejecting selective enforcement defense
because defense expert?s statistical data failed to provide a basis for concluding that individuals
who were not stopped by police were similarly situated to the defendant). Additionally,
?statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence,
they may be rebutted.? Chavez, 251 P.3d at 638 (citation omitted). ?In short, their usefulness
depends on all of the surrounding facts and circumstances.? Id.

The statistics compiled by Professor Pagan show that between 2006 and 2013, the
defendants prosecuted in the ATP false stash house cases in this District were 78.7 percent black,
9.6 percent Hispanic, and 11.7 percent white. (Williams, R. 33 8?2, Pagan?s Report at 15.) To
create a comparison group, Professor Pagan gathered the names of individuals in an eight?county
area (Cook, Lake, Will, DuPage, Kane, Kendall, LaSalle, and Winnebago) who had one or more
state convictions for a broad set of offenses, including murder, rape, robbery, aggravated assault,

arson, narcotics, and firearms offenses, between 2000 and 2013.17(Id. at 5?9; Evid. Hr?g Tr. at

 

?7 The Court did not grant Defendants access to information about every individual contained in the ISP data with
only an arrest, given the massive scope of such a data set, but Professor Pagan testi?ed that this did not impact his
analysis. (See Evid. Hr? Tr. at 38.)

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21 -22.) He drew these criteria from the ATP manuals, as well as from a statement made by a
prosecutor during oral arguments before the Seventh Circuit in Davis de?ning what, in her view,
was the proper comparison group. 18 (Evid. Tr. at 25-26; Gov?t?s Hr? EX. Davis CA Audio
at 11:17 42:12.) For each such individual, he gathered information about their race, gender, and
age, as well as a complete criminal history showing their arrests, case outcomes, sentences, and
periods of custodial con?nement. 19 (Williams, R. 33 8-2, Fagan?s Report at 7.) He concluded that
the proper comparison pool was roughly 55 percent black, 17 percent Hispanic, and 27 percent
white. (Id at 17?18.)

Professor Pagan conducted a series of tests ?to determine whether race predicts selection
into the Stash House defendant pool.? (Id. at 23.) This included conducting several regression
analyses to ?see if there are particular types of information, such as demographic factors or
criminal history, that explain whether and why the selection of Stash House defendants is based
on race or ethnicity.? (Id. at 25.) For each model, ?all defendants were pooled for the analyses.?
(Id. at 24.) He explains that each instance, the outcome of interest is selection as a

defendant.? (Id) Professor Pagan also used Augmented Inverse Probability Weighting ?to

 

13 Professor Pagan originally testi?ed that he obtained the additional criteria from ?memoranda encouraging ATF to
expand their eligibility criteria to search for people based on those particular offense categories in
addition to what?s in the manual.? (Evid. Hr? Tr. at 27.) At a later point in the hearing, he stated that he had been
mistaken in his earlier testimony and that there were no such memoranda; instead, he had obtained the additional
targeting criteria from statements made by the prosecutor during oral arguments in Davis. (Id. at 78 It is
axiomatic that arguments made by counsel are not evidence, United States v. Diaz, 533 F.3d 574, 578 (7th Cir.
2008), and a comment made by one prosecutor years after the stash house iHVestigations were over is rather weak
evidence of the targeting criteria used by ATP. However, for purposes of this opinion, the Court will accept
Defendants? argument that Professor Pagan made a valid decision to incorporate the prosecutor?s statement into his
analysis.

19 The ISP data did not contain information about Hispanic ethnicity, so Professor Pagan used a convention,
employed by the US. Census Bureau and other entities, for estimating Hispanic ethnicity using last names.
(Williams, 33 8~2, Fagan?s Report at 8-9; see also Evid. Hr?g Tr. at 40-42.) In effect, he treated individuals as
Hispanic if the probability that they were Hispanic exceeded a certain threshold based on data pertaining to common
Hispanic surnames. (Williams, R. 33 8?2, Pagan?s Report at 8.) ?Hispanic means that, based on their last
name, a person is more than 60% likely to be Hispanic.? (Id) The experts agreed that there is some level of error
inherent in using this convention, usually involving the misclassi?cation of Hispanics as white. (See id. Tr. at 42?
44, 397; see also I'd, R. 555?1, Schanzenbach?s Report at 21?22.)

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estimate a first predictor of race (the treatment) adjusted for the covariates, and then the effects
of the adjusted treatment variable on the outcome (selection into the Stash House Program)? (Id.
at 33.) He also used Propensity Score Matching, which ?takes into account all background
characteristics covariates) other than race that might be correlated with race.? (Id. at 35.) In
this test, the 94 stash house defendants were ?matched on their propensity score? to members of
the comparison group. (Id) Based on the results of these tests, Professor Pagan opines that ?after
controlling for criminal propensity, race remains statistically signi?cant, meaning that the ATP is
selecting defendants on the basis of race.? (Id. at 30.) In his view, ?the probability of selection of
a cohort of Stash House Program defendants with their observed racial and ethnic composition
from among a large pool of similarly situated potential eligibles is less than (Id. at 37.)

It must be recognized at the outset that constructing a comparison group in a selective
enforcement case is an extremely difficult task. See Hare, 820 F.3d at 100; Chavez, 251 P.3d at
640. The government itself recognized that ?the similarly situated group . . . is dif?cult to
define.? (Evid. Hr? Tr. at 201.) The record re?ects that Professor Pagan made a commendable
effort to gather and analyze a large amount of data in an attempt to construct a proper
comparison group. Ultimately, however, the Court does not find his report to be persuasive
evidence of race discrimination. Critically, Professor Fagan?s analysis rests on certain
presumptions that are not adequately supported by the record. His analysis presumes, among
other things, that the ATP selected each of the stash house defendants for participation in the
stings, and that the 94 stash house defendants were drawn independently of each other. As
Professor Schanzenbach points out, when these assumptions ?are relaxed or removed, the results
no longer support an inference of racial discrimination.? (Brown, R. 55 51, Schanzenbach?s

Report at 13.)

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1. Assumptions about Defendants

Critical to Professor Fagan?s entire analysis in an assumption that the ATP selected each
of the 94 stash house defendants for participation in the stings. Professor Schanzenbach
convincingly explains that ?[t]reating all 94 individuals as a ?choice? or ?random draw? made by
the ATP wrongly increases the sample size and statistically attributes choices to the ATP that it
did not make.? (Id. at 16.) Defendants believe that Professor Fagan?s assumption was appropriate
because the ATP ?owned? the entire stash house operation, such that, in their view, the agency is
legally responsible for the race of all participants and not just the initial targets.20 (See, 
Brown, R. 630, Defs.? Reply at 24.) Ultimately, the Court is unconvinced by this argument.

As a factual matter, the bulk of the 94 defendants were not recruited by ATP. Instead, the
record re?ects that the stash house investigations began with the selection of one or more
initial targets, based on information provided to them by con?dential informants. The remaining
defendants were recruited by the targets themselves, or by other members of the conspiracy who
were, in turn, recruited by the targets. In fact, the record re?ects that the ATP never even met 32

of the 94 one-third of the total defendant group?until the day of their arrest.

 

20 Professor Pagan used this same terminology?that the ?owns? the stash house stings?to explain why he
analyzed all 94 stash house defendants together rather than just analyzing the initial targets. (See Brown, R. 603?3,
Fagan?s Reply Report at 34 close examination of the recruitment of the defendants shows, in fact, that the ATP
?owns? the entire case, and therefore the correct unit of analysis is each of the 94 defendants?); Evid. Hr? Tr. at
101-02 would have to make a judgment call, and the judgment call is whether or not to cluster the defendants
or by the cases. Our position was that the ATP agents . . . owned all the defendants in the Cases because they had had
extensive contact?63 out of 94?with individuals prior to the stash house operation?). Professor Fagan?s
assumption that the ATP ?owns? the stash house stings does not appear to be based on his expertise in criminology
or statistics, but rather, on a legal argument advanced by Defendants. At one point during the evidentiary hearing he
explained that ?my position that we took in my report was that before one of these operations was launched, that the
ATF undercover of?cer, agent . . . knew of and approved each of the members of the conspiracy . . . and so they
were aware of the criminal histories or criminal activity of those defendants.? (Evid. Hr?g Tr. at 94.) There is little
evidence in the record to support this assumption, and in fact it is contradicted by Defendants? own brief, which
recognizes that the ATF did not meet a full 31 of the defendants until the day of their arrest. (Brown, R. 630, Defs.?
Reply at 27.) Defendants do not argue in their brief that ATP was actually aware of the criminal histories of these
individuals, but rather, that agents ?rati?ed? the choice of the initial target when they let these individuals participate
in the stings. (Id) The Court notes that Professor Pagan aclmowiedged at the hearing that although he read ?several?
of the takedown memoranda, he did not read them for all 24 cases. (See Evid. Hr?g Tr. at 146.)

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(Evid. Hi" Tr. at 100?01 Brown, R. 630, Defs.? Reply at 27.) Additionally, two of the stash
house cases, involving a total of 14 defendants, were not initiated by the ATP at all. Instead,
those investigations were initiated by the Federal Bureau of Investigation based on
information provided by its own con?dential informants.21 (See Williams, R. 354-1, Gov?t?s Ex.
3, Tr. at 94?100; Brown, R. 511-5, Takedown Mom. at 78?83; Flowers, R. 1, Compl. Till 1?53;
Davis, R. 1, Comp. 1-20; Evid. Hr?g Tr. at 49, 491?92.) The record re?ects that the ATP did
not become involved in these two cases until a?er the selection of the initial targets had already
been made. (Brown, R. 511-5, Takedown Mom. at 78-83; Flowers, R. 1, Compl. 111i 1?53; Davis,
R. 1, Compl. L20.) In the Court?s view, ATF cannot be said to have ?selected? individuals it
never met or individuals targeted by another governmental agency under any ordinary meaning
of that term. See Barlow, 310 F.3d at 1011 (rejecting the defendant?s statistical evidence where
some individuals in the comparison group had been ?approached by a uniformed Amtrak police
officer whereas [Defendant] was approached by two plain-clothes DEA Transportation Task
Force agents. [Defendant] leveled his allegations against the DEA, not Amtrak; observations of
Amtrak?s law enforcement activities are irrelevant to a claim that the DEA engaged in racial
profiling.? (emphasis in original)).

Defendants make arguments about ?apparent agency? and the ATP ?owning? the stash
house stings, but these are legal arguments, and legal arguments do not affect probabilities.
Professor Fagan?s report is about probabilities. (See, age, Brown, R. 6033, Fagan?s Reply
Report at 21?22 (opining on the ?probability of randomly selecting defendants with this racial
composition?); Evid. Hr? Tr. at 54 (?We found it extremely unlikely to select a pool of

defendants who were non?white, meaning black and Hispanic, compared to a pool of 

 

21 Those cases were United States v. Davis, 13 CR 63, and United States 1). Flowers, 11 CR 779. (See Pl/illiams, R.
354?1, Gov?t?s EX. 3 at 94?100.)

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As he explained at the hearing, his report describes?in very simple terms?the odds of a person
randomly choosing certain color jelly beans by reaching into a jar containing jelly beans of
various colors.22 (Evid. Hr? Tr. at 48?49, 54?56.) He attributes the high concentration of ?jelly
beans? of a certain color to purposeful selection. (See id. at 54 (?We found evidencewusing the
jelly bean analogy, the probability of a draw that was 91.5 percent versus 72.2 percent of the
eligibles population, we found the probability of that being next to zero?); id. at 55 
probability of a draw that looked at . . . this disparity in the two distributions was almost zero,
which is a hint of discrimination in the selection But this analysis necessarily
presumes that the person (here, ATP) actually reached into the jar to make the draw. If the
person did not reach into the jar, and instead was handed a number of elly beans by someone
else, it would be wrong to assume that the person made a choice with respect to those jelly beans,
or that the selection was non?random. But that is the fundamental premise underlying Professor
Fagan?s entire report.

With respect to the FBI cases, for example, Professor Pagan explained that he felt it was
appropriate to consider the 14 defendants indicted in those cases, all of whom were black, as a
?selection? made by ATP because ?once the ATP agents took over the case, they could easily
have rejected those persons if they didn?t meet the ATP criteria.? (Id. at 50.) This ignores the
realities of these cases, which is that ATP did not meet with up to a third of the defendant group
until the day of the arrest. (Evid. Hr? Tr. at 100?01; Brown, R. 630, Defs.? Reply at 27.) But

putting that aside, Professor Pagan is essentially stating that ATP could have put certain jelly

 

22 The Court does not equate human beings to jelly beans, nor is there an intent to make light of the very serious
interests at stake in this case. However, Professor Fagan?s jelly bean analogy provides a useful simpli?cation of
complex statistical principles.

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beans back in the jar had it chosen to do so; even assuming this was the case, it would not reveal
anything about the probability of selecting particular jelly beans from the jar in the ?rst place.23
On a different record, it might be appropriate to attribute the race of other members of the
conspiracy to the ATP. Suppose, for example, that Williams brought two potential recruits to a
meeting with Agent Valles, one white and one black. Suppose further that Agent Valles told
Williams that the white recruit did not fit the bill for the robbery and refused to let him
participate, while at the same time accepting the black recruit into the conspiracy. If this pattern
was repeated throughout the stash house investigations, with ATP picking and choosing among
prospective members of the conspiracies, it would provide strong evidence that the ATP
exercised actual authority over the selection of defendants beyond the initial target, and
potentially did so on a racially discriminatory basis. But there is no evidence before the Court to
suggest that any potential crew member brought to a meeting in the 24 cases?white or blackm?
was rejected by the ATP. (See Brown, R. 511-5, Takedown Mem. at l~152.) At most, the record

shows that the ATP simply accepted the selections of the initial target and continued to

 

23 Professor Fagan did not run any tests omitting the 14 defendants from the FBI cases but he acknowledged that
omitting them would have made the defendant pool ?whiter.? (Evid. Hr? Tr. at 50-51, 122.) Professor Fagan
testi?ed at the hearing that Professor Schanzenbach ran those tests and ?still found evidence of racial discrimination
against black defendants,? (Id. at 51), but this is not an accurate summary of Professor Schanzenbach?s ?ndings.
Professor Schanzenbach made clear in his testimony that he ran various tests solely to determine how ?sensitive?
Professor Fagan?s ?ndings were-and he found them to be extremely sensitive, meaning that any slight change in
the assumptions led to a significant change in the results. (Id at 40 9, 413.) He tested one assumption at a time,
including omitting the 14 defendants from the FBI cases, but accepted all other assumptions applied by Professor
Pagan, including that clustering at the case leVel was unnecessary. (Brown, R. Schanzenbach?s Report at 17.)
As explained herein, a number of Professor Fagan?s conventions are problematic, including the lack of clustering
and the decision to analyze all 94 defendants rather than just the initial targets. Professor Schanzenbach did not ?nd
evidence of discrimination at any level when he clustered by case level or analyzed just the initial targets. (Id; Evid.
Hr?g Tr. at 349.) There was a separate question raised at the hearing as to whether ?ndings can ever be ?statistically
significant? at the 10 percent level, as Professor Schanzenbach found in some instances. (See Evid17, 421?23.) Although Defendants argued at the hearing that 10 percent is a sufficient marker of statistical
signi?cance (see id. at 535-3 6), Professor Pagan himself acknowledged that ?ndings at the 10 percent level would
only be si gnificant if they were part of a ?pattern of ?ndings which include more stringent levels . . . 1 percent and 5
percent.? (Id. at 45 9-60.) He acknowledged that a member of an editorial board where I?ve reviewed hundreds
and hundreds of articlesarticle that said we?re going to base our ?nding on a ?nding of .10, I would
say, no, I don?t think that?s reliable.? (Tr. at 460.) This was one of the few points of agreement between the experts,
as Professor Schanzenbach also opined that findings solely at the 10 percent level would be a ?hard sell in the social
science literature.? (Id. at 426.)

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perpetuate the stings. Under these circumstances, the Court does not ?nd it appropriate to treat
defendants other than the initial target as ?selections? made by the ATP.

At the hearing, Defendants suggested that it was ?foreseeable? to ATP that the
conspiracies would form along racial lines. (Evid. Hr?g Tr. at 108, 112.) it is not clear that the
concept of foreseeability, which arises from negligence jurisprudence, would apply to a claim
alleging purposeful race discrimination under the Fifth Amendment. See Pars. Adm ?r of Mass. v.
Feeney, 442 U.S. 256, 278-79 (1979) (holding that state of?cials could not be held liable solely
because a veterans preference law had a foreseeable negative impact on women); United States
12. Bd. ofSch. Comm ?rs, 637 F.2d 1101, 1119 (7th Cir. 1980) (?Disparate impact and foreseeable
consequences, without more, do not establish a constitutional violation.? (citation and internal
alteration omitted)); Wade Cicero, 172., No. 83 2760, 1985 WL 2717, at *7 n3 (N .D. 111.
Sept. 24, 1985) (?In Feeney, the [Supreme] Court held that regardless of the presumption in
common law that a person intends the natural and foreseeable consequences of his or her actions,
such an awareness of consequences was not a ?discrirninatory purpose? that violated the Equal
Protection Clause?). Defendants made only a passing reference to foreseeability in their
voluminous briefs (see Williams, R. 378, Defs.? Reply at 29), and Professor Fagan acknowledged
that he did not conduct a statistical analysis to determine how the selection of the con?dential 
informants and/or the initial targets would in?uence the racial makeup of the conspiracy under a
foreseeability theory.24 (See Evid. Tr. at 109.) Although there is certainly racial
homogeneity in many of the conspiracies, some do involve defendants of different races.

According to Professor Fagan?s report, United States 12. Carson, No. 06 CR 930, involved one

 

24 The Court notes that despite a suggestion to the contrary by defense counsel at the hearing (see Evid. Tr. at
47 6), Defendants had information about the race of the con?dential informants in their possession since the early
stages of this case. (See Brown, R. 261, Order at 810, 12?13; id, R. 171, Order at 2; Williams, R. 354?1, Gov?t?s
Disc. Resps. at 60-69.)

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Hispanic defendant and two white defendants, and United States v. Elias, No 13 CR 476,
involves ?ve Hispanic defendants, one white defendant, and three black defendants. (See
Williams, R. 338?2, Fagan?s Report at 13?14.) Without statistical evidence or legal analysis to
support Defendants? foreseeability argument, the Court cannot conclude that ATP engaged in
race discrimination on this ground. See United States v. Laneham, No. CV 16~2930 B, 2017 WL
4857437, at *31 (D.N.M. Oct. 25, 2017) (rejecting argument of stash house defendant that 
selection of certain CIs ?virtually guaranteed? the ?investigation and prosecution of individuals
of the same racial and cultural background,? because, although it was ?a plausible premise,? the
defendant failed to provide evidence showing ?how severely?if at all?the use of three African-
Americans out of ?ve Cis would affect the racial makeup of the people with whom the CIs make
connections?).

On the question of attributing the race of other members of the conspiracy to the ATE, a
recent opinion from the Seventh Circuit is instructive. In Conley, which also involved a fictitious
stash house sting conducted by the ATP, the defendant raised a defense of entrapment, arguing
that he was not predisposed to commit a stash house robbery and was unfairly lured into
committing the offense by the conduct of ATF agents. 875 F.3d at 401-02. The defendant was
not the initial target of the sting, however, and was instead recruited by another member of the
conspiracy. Id. The Seventh Circuit rejected the defendant?s entrapment argument because it was
?Conley?s co?conspirators, and not the government, [who] recruited him? into the conspiracy,
and ?[t]here is no defense to entrapment by a private individual.? Id. at 402. The court explained:
?Although the government has control over its conduct when interacting with the ?rst alleged
entrappee . . . the government agency cannot possibly control what types of conduct have been

used to induce conduct in someone several actors down a chain.? Id.

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Similarly, the Fourth Circuit recently rejected a claim of outrageous government conduct
in a fictitious stash house case because the defendants raising the challenge ?were not targeted by
ATP but recruited by [the initial target], whom ATP targeted based on information that he was
an activeaarmed drug trafficker.? Hare, 820 F.3d at 103. The court further concluded that ?it was
not outrageous for the government to infer that [the initial target] would recruit people who were
willing and had the requisite experience to rob an armed stash house.? Id. This inference was
?bolstered? by the defendants? own conduct in assenting to the plan in the ATP agent?s presence
and in planning the speci?cs of how the robbery would be executed. Id. Other courts have
reached the same conclusion?that law enforcement agents do not ?select? stash house robbery
crew members who were recruited by other members of the conspiracy. See United States v.
Lamar, No. 14 CR 726, 2015 WL 4720282, at *9 7, 2015) (?Because co?
conspirators-?and not DEA agents or informantsmapproached these 76 defendants, it is clear
that they were not targeted on the basis of any alleged discriminatory policy or practice of the
United States v. Colon, 71 F. Supp. 3d 269, 277, 282-83 (D. Conn. 2014) (rejecting
equal protection claim of defendants in phony stash house case because ?there is no evidence
that the government did anything to select any of the seven defendants except for the two [initial
targets], who themselves chose their own 

The Court finds this reasoning persuasive. in Brown and Williams, the ATP targeted
Jones and Williams, both of whom came to the attention based on information provided
by its confidential informants. Jones was known to af?liate with the Gangster Disciples, and the
ATP had good reason to believe he was actively involved in dangerous criminal activity, as he
had recently sold more than 20 firearms to a con?dential informant working with the ATP.

(Brown, R. 555-1, Report of Investig. at 144; rd, R. 511?5, Takedown Mem. at 95.) Williams

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was also known to affiliate with the Gangster Disciples and had ?ve prior felony convictions,
including convictions for aggravated assault with a deadly weapon and unlawful use of a weapon
following a felony conviction. (Williams, R. 332?5, Takedown Mem. at 126.) It was not
unreasonable for the ATP to assume that ones and Williams would ?recruit people who were
willing and had the requisite experience to rob an armed stash house.? Hare, 820 F.3d at 103.
The many damaging statements made by the men they recruited further bolstered the
reasonableness of this assumption. See I'd.

For these reasons, the Court ?nds an insuf?cient basis in the record to attribute the race
of defendants other than the initial target to the ATP . Professor Fagan?s entire report relies
heavily on the race of defendants who were not actually selected by ATP agents, and it does not
provide any analysis speci?c to just the initial targets. As Professor Schanzenbach explained,
considering only the initial targets would ?significantly reduce the sample size? and would also
change the racial composition, making the defendant group somewhat whiter,25 and both of these
things are signi?cant ?for statistical inference (Evid. Hr?g Tr. at 297 -98.) Indeed,
Professor Pagan himself acknowledged that it may have been impossible to conduct a reliable
statistical analysis with such a small sample. (Evid. Hr?g Tr. at 103 analyzing the 24, I
can?t say. 24 is a low number. You would get a very unstable result?). For this reason, the Court
?nds it difficult to rely on Professor Fagan?s findings.

Another of Professor Fagan?s critical assumptions is that the stash house defendants were
drawn independently of each other, in other words, that ?the selection of one defendant did not
in?uence the selection of any other (Brown, R. 555?1, Schanzenbach?s Report at

19.) Professor Schanzenbach convincingly explains that independence is assumed when in

 

25 Professor Schanzenbach reports that the initiai targets were 75 percent black, 16.6 percent white, and 8.3 percent
Hispanic. (It. Hr?g Ex. 5.)

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fact the data are grouped and correlated, a naive regression assuming independence can lead to
an erroneous conclusion that the results are statistically signi?cant.? (Id. at 1920.) Professor
Pagan believes that his assumption of independence was appropriate because ?the [stash house]
cases are often made up of individuals with weak ties to each other.? (Id, R. 603?3, Fagan?s
Reply Report at 5; see also Evid. Hr?g Tr. at 119 really wasn?t evidence that these are
clustered groups of like-minded or behaviorally similar But the record
does not bear this out.

Taking Brown as an example, the ATF presented the stash house robbery idea to Jones,
who in turn recruited Brown and Taylor; they in turn recruited Washington and Davis. (Id. R. l,
Compl. 1m 8~10.) Law enforcement records show that Brown, Taylor, and Washington were all
affiliated with the Gangster Disciples, and Brown and Washington admitted on the undercover
recordings to having committed past home invasion robberies with Davis, who was Brown?s
cousin. (Id. 8-26; id, R. 555~1, Records at 22980; tel, R. 511?5, Takedown Mem. at 95?96.)
Similarly, in Williams, the initial ATP target, Williams, recruited his uncle, Hummons, and Lee,
a friend?of-a?friend from his neighborhood. (Williams, R. 354~1, Tr. at 466-68; id, R. 354-1,
Lee?s Statement at 513.) In short, the record reflects that these Defendants were interrelated.
Indeed, Professor Fagan acknowledged at the hearing that two individuals have ?strong ties? if
they commit crimes together. (Evid. Hr? Tr. at 216.)

Professor Fagan offers various conclusions about the ?probability of randomly selecting
defendants with this racial composition,? (id, R. 6033;, Fagan?s Reply Report at 20-21
(emphasis added)), but the record does not show that each of the 94 defendants was in fact
randomly selected. Treating each defendant as an independent ?draw? for statistical purposes, as

Professor Pagan did, led to an overstatement of the racial anomalies associated with the stash

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house stings. (Id, R. 555?1, Schanzenbach?s Report at 18?20; Evid. Hr? Tr. at 324?27.) Because
of these concerns, the Court cannot rely on Professor Fagan?s ?ndings about the probability of
selecting the stash house defendants from among the comparison group.
2. Construction of the Comparison Group .

The Court also has concerns about the comparison group constructed by Professor Pagan.
The sheer number of people in the group, as he de?ned it, demonstrates the breadth of his
analysis. (Brown, R. 510?2, Fagan?s Report at 4~10.) He opines that ATP could have selected
anyone among a group of 292,000 individuals living in an eight?county area to participate in the
stings. (Id. at 8, 17.) But it seems implausible to assume that nearly 300,000 people?which is .
approximately 10 percent of the population of men aged 14 to 49 living in the relevant counties
during the relevant period?would have been willing to commit a stash house robbery had they
been given the opportunity. (See R. 555 Schanzenbach?s Report at 3.) By its very nature, a
stash house robbery is a highly dangerous crime that requires access to ?rearms, the potential use
of deadly force, and a signi?cant risk to one?s own safety.26 The offense also requires the
participant to have suf?cient knowledge of and contact with the illegal drug trade to sell a
substantial amount of cocaine after the robbery. These factors have caused one judge on the
Seventh Circuit to observe that ordinarily law~abiding person? would be willing to commit
a stash house robbery. May?eld, 771 F.3d at 444 (Easterbrook, J. dissenting). In fact, among the
group of potential eligibles identified by Professor Pagan, there were only 8,254 arrests for

armed robbery and 541 arrests for home invasion with a ?rearm (and signi?cantly fewer

 

2?5 As one of the Defendants in DeJesus put it, ?To go in a house full of guys that are strapped, that?s suicide.?
(Williams, R. 354?1, Tr. at 639.)

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convictions)? suggesting that it is a far smaller subset of individuals who would be willing to
use ?rearms and violence to commit a robbery of potentially violent drug dealers if given the
opportunity.28 (See Jt. Hr?g Ex. 5.) Indeed, Professor Fagan acknowledged in a prior paper that
?[r]obbery is not a crime that is committed casually, nor are robbers a random sample of the
criminal population.? (Evid. Hr? Tr. at 182.)

Professor Fagan also took a very broad view of the relevant years for constructing the
comparison group. Although no stash house stings were conducted until 2006, he included in the
comparison group anyone with a conviction for the relevant offenses in 2000 or later. He
testi?ed at the evidentiary hearing that he ?backed it up to 2000 so that we would have some
opportunity to observe and measure [the potential eligibles?] criminal activity prior to the period
of the stash house recruitments.? (Id. at 21.) This may have been a valid decision in terms of
criminology, but using data from as far back as 2000 led to a potential overin?ation of the
comparison pool. By way of example, someone with one criminal conviction from 2000 was
counted as available for selection each year of the stash house sting operations, even though, by

Professor Fagan?s own admission, at the time the stash house investigations were underway they

 

27 The Court accepts Professor Fagan?s criticism that home invasion with a firearm do as not present an exact match
with a stash house robbery, given that a portion?he estimates approximately 16 or 17 percent?involve domestic
disputes rather than a ?nancial motive. (Evid. Hr?g Tr. at 230.) But there is some amount of guesswork in all of
these comparisons, since this case involves a very unusual offense; as Professor Schanzenbach aptly noted, there is
no ?stash house robbery? offense reported in the crime data. (Id. at 253, 256, 374.) The Court considers the data
pertaining to home invasions only in the overall context of the other offenses identi?ed by Professor Sehanzenbach.
(See Brown, R. 555?1, Schanzenbach?s Report at 7; It. Hr?g Ex. 5.)

23 To the extent Defendants have relied on employment discrimination case law in their briefs, that body of law also
holds that ?interest? is an important factor that must be taken into account when constructing a comparison group.
See EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 302 (7th Cir. 1991) (holding that identifying the proper
comparison group ?means not only identifying quali?ed potential applicants for the job at issue but also identifying
interested potential applicants? (emphasis in original)); EEOC v. Sears, Roebuck Ca, 839 F.2d 302, 322-27 (7th
Cir. 1988) (af?rming district court?s determination that plaintiff?s regression statistics were unpersuasive in pelt
because they failed to take into account relative lack of interest in the jobs at issue); Bennett v. Roberts, No. 96 
6917, 2001 WL 290188, at *5 (ND. 111. Mar. 16, 2001), 295 F.3d 687 (7th Cir. 2002) (?Interest in the jobs at
issue and evidence of quali?cations for those jobs are ordinarily important considerations for proof of discrimination
and relevant to statistical analysis that ?nds such discrimination. 

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may have been deceased, in prison, or no longer involved in criminal activity. (See id. at 174,
25 0-52.)

Controlling for the recency of criminal activity by those in the comparison group would
have offered some predictor of whether they were willing and able to commit a stash house
robbery in the years the stings were being conducted. It'also would have correlated more closely
with ATP criteria, which required that targets be ?currently involved in criminal activity.? (Id. at
235; Brown, R. 511-2, ATP Order at 5.) This information was contained in the data Professor
Fagan was provided, but he chose not to use it in his analysis. (Evid. Hr? Tr. at 224, 290.)
Without an adequate basis for concluding that the 290,000 individuals in the comparison group
were actually available for selection by the ATF and willing to commit a stash house sting
between 2006 and 2013, it is dif?cult for this Court to rely on Dr. Fagan?s ?ndings to meet the
required evidentiary threshold. See Hare, 820 F.3d at 100 (observing that proper comparison
group for analyzing racial disparities in stash house sting operations would be individuals who
would have been ?receptive to a stash house robbery scenario? and who had the means of
in?ltrating?); Colon, 71 F. Supp. 3d at 283 (rejecting racial pro?ling claim of stash house
defendants because defendants failed to make comparison to similarly situated individuals?~?
?that is, individuals who were not Hispanic, who had similar prior criminal involvement, and
whom the ATP could have targeted but did not?).

Professor Fagan also took a very broad view of the proper geographic scope for
constructing the comparison group. For instance, he included all of LaSalle County in his
analysis because one defendant in one case brought in 2007 lived in LaSalle' County. (Evid. Hr?g
Tr. at 206?07.) Despite this rather tenuous link to the stash house sting operations, he assumed

that for each sting, including those involving a predominately black gang in Chicago?s

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Englewood neighborhood, the ATP was just as likely to have drawn a participant from rural
LaSalle County, located nearly 100 miles from Chicago. (See id. at 206-09.) This would appear
to con?ict with his opinion that ?most people don?t travel very far from their homes or from
wherever their current residence is to commit a crime.? (Id. at 221.) The inclusion of LaSalle
County alone dramatically increased the number of whites in the comparison pool, as that county
has a population that is 95 percent white. (See Defs.? Hr?g EX. 4.)

Assuming that Professor Pagan did not have access to detailed neighborhood information
for the potential eligibles,29 at a minimum he could have run a regression at the county level. In
other words, he could have compared the racial makeup of potential eligibles from the particular
county where the stash house investigation in question was operated to the stash house
defendants in those cases. This would have more closely approximated the pool that was
geographically available for selection by the ATP in connection with a given case. It also would
have taken into account, at least to some extent, the segregated living patterns within northern
Illinois, which have resulted in signi?cant racial variations in the eight counties Professor Fagan

used for his comparison.30 (See Evid. Hr?g Tr. at 27 7 Without a more re?ned geographic

 

25? At the evidentiary hearing, a number of comments were made about the fact that the home addresses of the
eligibles group were not available to Professor Fagan. (See, e. g, Evid. Hr?g Tr. at 15 4?55, 219.) To clarify the
record, the Court did order ISP to turn over this data; however, the mforrnation was apparently not tracked for all
cases and in Professor Fagan?s view the data provided to him was ?just not usable.? (Id. at 219 see also Williams, R.
23 9, Mot. at 12.) The Court had also ordered ISP to turn over data showing the location of each arrest, but it was
later revealed that ISP did not collect this data. (See Williams, R. 239, Mot. at 12?13; id, R. 244, Resp. at 7.)
Ultimately, Professm Fagan concluded that criminal propensity was an adequate proxy for geography and that he
could proceed without speci?c geographic information. (Evid Hr?g Tr. at 219 number of prior arrests and
convictions for violent crimes . . . would correlate with being in a high crime neighborhood, and then that to us was
a suf?cient geographic 

3? According to a document submitted by the defense summarizing census data, Cook County?s population is 24
percent black, 58 percent white, and 21 percent Hispanic. (Defs.? Hr?g Ex. 4.) The remaining counties are
overwhelmingly white. DuPage County?s population is 4 percent black, 82 percent white, and 11 percent Hispanic.
(Id) Kane County?s population is 5 percent black, 77 percent white, and 26 percent Hispanic. (Isl) Kendall County?s
population is 5 percent black, 87 percent white, and 13 percent Hispanic. (Id) Lake County?s population is 6 percent
black, 80 percent white, and 17 percent Hispanic. (Id) LaSalie County?s population is 2 percent black, 95 percent
white, and 6 percent Hispanic. (151.) Will County?s population is 11 percent black, 84 percent white, and 8 percent
Hispanic. (Id) Winnebago County?s population is 11 percent black, 84 percent white, and 8 percent Hispanic. (Id)

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marker, it is difficult to rely on Professor Fagan?s ?ndings. See Laneham, 2017 WL 4857437, at
*27 (?For statistical evidence to have any hope for making a credible case for the ATP treating
similarly situated individuals differently, it must, at the very least, say something about
enforcement trends vis?a -vis individuals who commit drug traf?cking or ?rearm related
offenses, (ii) live in a city; and have a history of violent crime. [Defendant?s] District of
New Mexico statistics, by contrast, re?ect the demographic trends of offenders throughout New
Mexico and include offenders without histories of violent crime?).

Professor Fagan conducted a number of detailed regression analyses to create a closer
comparison between members of the eligibles group and the stash house defendants with respect
to various factors. (See id. at 54-69.) But again, he did not account for geographic differences
when making his comparisons.31 (Id. at 279-80.) These tests also assumed complete
independence among the defendants, which, as explained above, is not an assumption that is
adequately supported by the record. (See R. 555?1, Schanzenbach Report at 19~21; Evid. Hr?g
Tr. at 310-11, 323 .) Additionally, for the matching test, which eliminates individuals who
committed narcotics possession offenses and comes closest to identifying individuals in the
comparison group with the propensity to commit a stash house robbery, Professor Pagan

compared the 94 defendants as a whole, without any delineation of whether they were an initial

 

31 Professor Schanzenbach explained the problem with the lack of a geographic marker in the matching analysis as
follows: you do a matching analysis where you?re saying, here?s somebody with a certain propensity, I?m going
to match them to the eligibles data, you could identify someone in Joliet, right, who was . . . equal to somebody in
Rockford and the Rockford person is the defendant, but you?re actually going to match them and say that the only
reason the person in Joliet wasn?t chosen was because of (Evid. Hr? Tr. at 275.) Professor Fagan believed
that criminal propensity was an adequate proxy for geography, but he acknowledged at the hearing that it was
?possible? that he had matched, for example, ?a Black Disciple from Englewood with a member of a white
supremacist gang in Ioliet? when conducting his matching analysis. (Id. at 466.)

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target, recruited by another member of the conspiracy, or even identi?ed by ATP prior to the
takedown.32 (See Evid. Hr?g Tr. at 31.)

As a ?counterfaotual? to Professor Fagan?s ?ndings, Professor Schanzenbach conducted
his own basic analyses of the defendant group and various subsets of the eligibles group.
(Brown, R. 555-1, Schanzenbach Report at He found that black, white, and Hispanic
defendants in the stash house cases had statistically similar criminal histories, and that on
average, black defendants had more convictions, arrests, and sentences, and were more likely to
have been convicted or arrested for a weapons offense than White defendants. (Id. at 5.) In the
eligibles group, he found that those with an arrest for a violent offense (which he and Professor
Pagan defined as murder, rape, robbery, assault, and battery) were 71 percent black and 15
percent Hispanic.33 (Id. at 8.) Of those arrested for weapons offenses, 72.5 percent were black
and 15 percent were Hispanic. (Id) Of those arrested for home invasion with a ?rearm, 75 .4
percent were black and 12 percent were Hispanic. (Id) Of those convicted of armed robbery, 72
percent were black and 16 percent were Hispanic. (It. Hr? Ex. 5 .) These statistics closely track
the racial makeup of the stash house defendants. (See Wiliiams, R. 33 8?2, Fagan?s Report at 14.)

These basic comparisons do not conclusively prove that the ATP did not discriminate on the

 

32 In the matching model, Professor agan also did not account for the fact that certain individuals appeared more
than once in the data. For example, if a person had a qualifying conviction in 2000, they appeared 13 times in the
data he used to do his matching analysis. (See Evid. Hr? Tr. at 319-22, 513; Brown, R. 555?1, Schanzenbach?s
Report at 6.) Professor Schanzenhach provided compelling testimony that the failure to account for this anomaly
made the results of the matching test unreliable. (See Evid. Hr? Tr. at 320 (?Both Professor Pagan and myself agree
that you at least have to cluster at the individual leVel because individuals are observed multiple times and we know
that they?re correlated with themselves. And if you don?t do that, you?re going to bias yourself towards ?nding a
statistically signi?cant result. The AIPW and matching analyses presented here do not account for clustering by
Professor Schanzenbach understood Professor Fagan to agree that there was a need to cluster by
individual ?[b]ecause he clusters at the individual level when he performs his 10 git regressions.? (Id. at 321.) There
was no available method to cluster by individual in the AIPW and matching analyses, however, which in Professor
Schanzenbach?s view made these methods inappropriate to test for discrimination in this context.

33 The Court considers that these high percentages could themselves be attributable to racial bias within the criminal
justice system as a whole. (See Evid. Hr? Tr. at 256?57.) But this would not prove race discrimination by the ATF,
which is the issue before this Court. As Professor Schanzenb ach noted, ATF must ?tak[e] the world as they ?nd it
and . . . that world has these [racial] disparities.? (Id. at 257.)

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basis of race, but they certainly provide a stark contrast to Professor Fagan?s opinions that the
racial makeup of the stash house defendants cannot be explained on any ground other than race
discrin?lination.34

When litigants asserting an equal protection claim fail to make a proper comparison to a
similarly situated group, courts have declined to ?nd suf?cient statistical evidence of
discrimination, even wherem?as here?the raw data suggests startling racial anomalies. See, 
Hare, 820 F.3d at 99 (?Without an appropriate basis for comparison, raw data about the
percentage of black . . . defendants proved nothing.? (citation and alteration omitted)); United
States v. Turner, 104 F.3d 1180, 1185 (9th Cir. 199??) (rejecting claim of black defendants
seeking to establish selective prosecution claim, even though over three-year period no White
defendants had been prosecuted for crack; cocaine offenses, and observing defendants
have shown no more than the consequences of the investigation of violent street gangs, not that
they were targeted because of race?); Lamar, 2015 WL 4720282 at 16?17 (?nding
insuf?cient statistical evidence to support defendants? equal protection claim, even though all 95
defendants in stings conducted by the DEA were non?White); United States v. Whit?eld, 29 F.
Supp. 3d 503, 513?15 (ED. Pa. 2014) (?nding insuf?cient evidence of discriminatory effect in
the absence of a proper statistical analysis, even though all 24 defendants in ATP stash house
stings were black).

That is not to say that the statistics presented in this case are not deeply troubling. They
are. The Court should not have to look to p-values, clustering, or other complex statistical
principles to determine whether agents of the federal government engaged in race discrimination.

Their conduct should be above reproach under any basic standard. At the same time, the Court

 

34 Given the problems with Professor Fagan?s analysis discussed at length above, the Court ?nds it unnecessary to
probe the myriad other criticisms of his report outlined by Professor Schanzenbach. (See generally Brown, R. 555?1,
Schanzenbach?s Report at 5?24.)

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has fundamental concerns about the reliability of Professor Fagan?s findingse?concerns that
cannot be brushed aside simply because of an underlying discomfort with these type of sting I
operations. For the reasons outlined above, the Court reluctantly concludes that Defendants have
fallen sh01t of proving discriminatory effect. The Court credits the valiant efforts of defense
counsel to show discriminatory effect. These efforts, however, substantially fail to meet the
exacting standards set by the current applicable law.

B. Discriminatory Intent

Assuming Defendants satisfied the discriminatory effect prong, they ?must still prove
discriminatory intent in order to establish a violation of the Equal Protection Clause.? Chavez,
251 F.3d at 645. Specifically, Defendants bear the ?burden of proving the existence of
purposeful discrimination.? McCZeskey, 481 US. at 292 (citation and internal quotation marks
omitted). To meet this burden, a criminal defendant ?must prove that the decisionmalcers in his
case acted with discriminatory purpose.? Id. (emphasis in original). ?Discriminatory purpose?
implies more than intent as awareness of consequences.? Chavez, 251 F.3d at 645 (ellipses
omitted). ?It implies that the decisionmaker selected or reaf?rmed a particular course of action at
least in part ?because of? its adverse effects upon an identifiable group.? Id. (citations and
ellipses omitted). Because a litigant rarely has direct insight into the mind of the decisionmaker,
discriminatory intent may be ?inferred from the totality of the relevant Washington, 426
US. at 242.

Under the applicable law, then, it is not enough for Defendants to show that the ATF was
?willfully blind? to the racially disparate impact of its stash house sting Hare, 820
F.3d at 100 11.6. Rather, Defendants must prove. that the ATF pursued these investigations ?at

least in part because of, not merely in spite of, its adverse effects? on black and Hispanic

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individuals. Id. (emphasis added) (citation omitted). Statistics alone will not suffice.35 Chavez,
251 F.3d at 648 (?In this context, statistics may not be the sole proof of a constitutional
Hare, 820 F.3d at 100 cases involving discretionary judgments essential to
the criminal justice process, statistical evidence of racial disparity is insufficient to infer a
discriminatory purpose.? (citation, internal quotation marks, and alterations omitted)). Thus, to
prevail on their motion, Defendants must present sufficient non-statistical evidence to
demonstrate that the decisionmakers in their cases intentionally discriminated against them at
least in part because of their race. See MeCIeskey, 481 US. at 298; see also Here, 820 F.3d at 99
(where defendants presented statistical evidence showing a disproportionate number of blacks
were arrested in stash house stings but offered ?no other evidence that ATP ?3 actions were
?invidious or in bad faith,? they failed to establish a constitutional violation).

To prove discriminatory intent, Defendants point to two factors. First, they claim that
comments made by the undercover agents involved in the stings?Agent Gomez in Brown and
Agent Valles in Wiiliamseprove that these agents ?expressly targeted? them because of their
race. (Williams, R. 338, Defs.? Mot. at 62-65.) Second, they argue that ATP agents substantially

deviated from ATP guidelines in these investigations, and that these deviations prove that agents

 

35 Defendants seem to argue that a statistical showing can prove both discriminatory effect and discriminatory intent.
(Brown, R. 630, Defs.? Reply at In support, they cite to civil cases brought under Title V11 of the Civil Rights
Act of 1964. (Id. (citing Int?l Bhd. of Teamsters v. United States, 431 US. 324 (1977) and Reeves v. Sanderson
Plumbing Prods, Inn, 530 US. 133 (2000).) But the Supreme Court has cautioned against extending Title VII case
law to the equal protection context. See Washington v. Davis, 426 US. 229, 239 (1976) (?We have never held that
the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards
applicable under Title VII, and we decline to do so today?). In McCleskey, which like this case involved the
criminal justice system, the Supreme Court expressly held that the statistical evidence proifered by the defendant
was insuf?cient to prove discriminatory intent. 481 U.S. at 297 (observing that defendant?s statistics were ?clearly
insuf?cient to support an inference that any of the decisionmakers in [his] case acted with discriminatory purpose?).
Other cases invoiving discretionary judgments within the criminal justice system have reached the same conclusion.
See Blackwell v. Klincar, No. 84 8705, 1990 WL 9276?, at *7 (N .D. Ill. une 22, 1990) (?Given the many
variables that go into the parole release decision and the unique nature of each case, statistics purporting to show
racial disparities cannot be relied on as evidence demonstrating discriminatory purpose in a particular case.? (citing
McCleskey, 481 US. at 292?97)).

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targeted Defendants because of their race. (Id. at 40?62.) The Court addresses these points
separately below.
1. Comments Made by ATF Agents
3. Agent Gomez?s Comments in Brown
Defendants ?rst point to certain comments made by Agent Gomez, who is HiSpanic,
during the recorded conversations. (Williams, R. 338, Defs.? Mot. at 64?65.) In the context of
explaining that he did not want the drug cartel to ?nd out he was behind the robbery, he stated
during his first meeting with Jones, ?[W]hat I like about you is that nobody can put me and you
together.? (Brown, R. 33 8-5, Tr. at 8.) Later in the conversation he said, ?[L]et me ask you this:
were you . . . lookin? to be in it, or were you guys gonna put us in touch with some guys?
Because what I like . . . is that nobody could put me and you together. . . . So, who you come
with nobody?s gonna be able to put, put me and them together.? (Id. at 11?12.) Agent Gomez
also made statements indicating that he needed to meet with every member of the robbery crew
prior to the robbery. (Id. at 12?13.) This was important, he explained, because the cartel guards
inside the stash house were, in his words, ?Mexicans . . . like me.?36 (Id. at 12.) Agent Gomez
stated that he did not want Defendants to confuse him with the guards inside the stash house,
because he didn?t want to ?take round??or get shot?by mistake during the robbery. (Id. at
13.) He made similar comments during the meetings with other crew members. (Id at 17, 20.)
They believe that the clear import of Agent Gomez?s comments, taken together, was that
Agent Gomez ?targeted Mr. Jones because he was Black,? and that he ?wanted Jones to recruit
Black people.? (Id. at 64-65 (emphasis in original).) The Court disagrees. There is no evidence to

suggest that Agent Gomez was involved in the underlying investigation of ones?s sale of

 

3?5 Defendants try to draw some nefarious inference ??om the fact that Agent Gomez chose ?Blanca,? which is
Spanish for ?white,? as his nickname during the investigation, which is puzzling, since he clearly identi?ed himself
as Mexican during the recorded conversations. (See Williams, R. 33 8, Defs.? Mot. at 64 n.41.)

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multiple guns to a con?dential informant, or that he was involved in the initial decision to target
Jones for investigation. (See Brown, R. 555-1, Report at 144; R. 511-5, Takedown Mem. at
9495.) As far as the record reveals, his role was simply to act as a disgruntled drug courier to
facilitate the sting. (Id, R. 511?5, Takedown Mem. at 95.) Additionally, it was Jones, and not the
ATP, who recruited the other participants. Therefore, Agent Gomez?s personal comments do
little to prove that the decisionmakers in this case targeted Defendants because of their race. See
McCleskey, 481 U.S. at 292; Barlow, 310 F.3d at 1011.

Additionally, when viewed in context, it is apparent that Agent Gomez?s comments were
part of a ruse to make his story plausible rather than evidence of race?based animus. Agent
Gomez; was essentially trying to offer an explanation for why he would offer the robbery to a
group of strangers whom he had no apparent reason to trust. He explained that he wanted to
commit the robbery with Defendants, in essence, because they had no readily discernible
connection to him.? He made it clear at other points, without any reference to race, that the
details of the robbery were up to the crew members, including who I ones decided to recruit to
participate. (See, 3g, Brown, R. 555-1, Tr. at 351 I?m ?a leave the other guy?s gonna Agent Gomez also needed to meet with as many crew
members as possible to gather evidence against them, something he obviously could not tell
them. So instead, he told Defendants that he wanted to meet the other crew members so that they
recognized him during the robbery.

Agent Gomez worked on other stash house investigations in this District, and he followed

the same basic script for his work in those cases. For instance, in United States 12. Carson, No. 06

 

37 Ironically, Agent Gomez?s narrative was apparently convincing to Defendants. During the meeting on August 12,
2012, Brown explained to Agent Gomez why he felt Agent Gomez?s story was legitimate. (Brown, R. 555-1, Tr. at
385.) He said, ?No racist shit, but you Mexican. Like you gotta be Mexican to . . . get close to the Mexicans to get
they shit. . . . ?Cause you would?ve been black, I would?ve been skeptical (Id. at 386.)

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CR 930, which involved two white defendants and one Hispanic defendant, he said, ?i need a
crew that ain?t gonna come back to me. I don?t know you guys. You don?t know me. Nobody can
put us together.? (Brown, R. 555~l, Tr. at 445; see also Williams, R. 33 8-2, Fagan?s Report at
13.) Later in the conversation, he said, want [the crew members] to see my face. ?Cause I
don?t wanna take a round . . . when I get inside.? (Id at 447.) He made similar comments to a
group of defendants in United States v. DeJesus, No. 12 CR 511, who, like him, were Hispanic.
(See Wiliiams, R. 338~2, Fagan?s Report at 14.) Speci?cally, he said to them, ?Now what I like
about you . . . nobody can put me and you together.? (Id, R. 3544, Tr. at 638.) He reiterated the
same thing several times during the conversations. (Id. at 643 I like about you, bro, is
like nobody can put me and you see also id. at 661 what I like about you.
Nobody can put and you together, and
that?s During another conversation he said he needed to meet the remaining member of
the robbery crew because, in his words, want him to see my face, ?cause the other guys . . .
they?re . . . Mexican just like me . . . [and] I don?t want [to] accidentally take a round.? (Id. at
746.) The fact that Agent Gomez made basically the same comments to defendants of other races
undercuts Defendants? argument that his comments prove he targeted them because they are
black. That is not to say that the Court condones the ATP ?s tactics. But considered in context, the
Court ?nds that Agent Gomez?s comments fall short of establishing that the decisionmakers in

Brown acted with a racially discriminatory purpose. See McCleskey, 481 US. at 292.

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2. Agent Valles?s Comments in Williams

Agent Valles is not normally assigned to the Chicago area and instead was here on
temporary assignment as part of the fall 2012 law enforcement ?surge.? (Williams, R. 354?1,
Gov?t?s Disc. Resps. at 43-44, 52.) Williams was the only stash house case he worked on in this
District. (See id, R. 338, Defs.? Mot. at 66.) Defendants point to certain comments he made
during a meeting on November 8, 2012. (Williams, R. 338?5, Tr. at 3.) Williams brought a man,
identified in the complaint as ?Individual to meet Agent Valles, but Individual did not
Show up on the date of the robbery and was thus never arrested or charged.33 (See id, R. 1,
Comp]. 35?37.) During the conversation, Individual asked Agent Valles whether the people
he worked for were ?Mexican or something.? (Id R. 33 8?5, Tr. at 3.) Agent Valles responded,
?Yea[h] they Mexicans just like me.? (Id) The men then went on to discuss how the robbery
would be executed, and Individual asked Valles?s opinion about certain tactics. (Id) Agent
Valles responded, ?[H]owever you guys with itwthat?s why I?m comin? to you.? (Id) He added,
?You know, I roll with my cuz but this shit can?t come back on me . . . if they see some other
Mexicans doin? it, they?re gonna know that they?re with me.? (Id) Later in the conversation,
Individual expressed concerns about how the robbery crew members would approach the stash
house without being detected. (Id at 528.) He said, just gonna walk up to these peoples
houses without them bein? alert, two black, some black guys?? (Id) He and Williams then
discussed how they would need to take the cartel guards by surprise. (Id) Agent Valles

responded, ?[H]owever you all wanna do it. . . this [is] your show.? (Id)

 

3?3 Individual is identi?ed by name in the takedown memorandum, but given that he was never arrested or charged,
the Court declines to name him here. (See Williams, R. 332?5, Takedown Mem. at 126.) Individual B?s criminal
record shows four felony convictions, including murder, manufacturefdelivery of cocaine, and unlawful use of a
?rearm following a felony conviction. (Id) He also had arrests for battery, aggravated kidnapping, aggravated
battery, carj acking, and unlawful use of a weapon. (Id)

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Defendants believe that Agent Valles?s comments demonstrate ?in no uncertain terms?
that he presented the stash house robbery opportunity to Williams ?because Mr. Williams is
black,? and further, that ?the race of the robbers was important, and they couldn?t be 
(163., R. 338, Defs.? Mot. at 63 (emphasis in original).) Again, the record does not show that it
was Agent Valles who actually selected Williams as a target for the investigation. instead, ATF
records re?ect that on November 7, 2012, a con?dential informant working with the ATP
identi?ed Williams to a different ATF agent as someone who had expressed an interest in
committing a robbery. (Id, R. 1, Compl. ii 8; id, R. 354?1, Report of Investig. at 462.) At that
point, the con?dential informant set up a meeting between Williams and Agent Valles, who
posed as a drug courier for a Mexican cartel. (Id, R. 332?5, Takedown Mom. at 120?21.) As far
as the record reveals, that was the ?rst time Agent Valles met Williams. In other words, there is
nothing in the record to suggest that it was Agent Valles who targeted Williams for investigation,
and it was Wiliz'ams, not Agent Valles, who recruited the other members of the conspiracy.
Therefore, Agent Valles?s personal motivations are not particularly probative as to whether the
decisionmakers in the Williams case harbored a discriminatory intent. See McCleskey, 481 U.S.
at 292; Lamar, 2015 WL 4720282, at 

Agent Valles?s repeated mention of race is very regrettable. But the Court considers that
it was Individual B, not Agent Valles, who ?rst broached the subject of race. The Court also
considers that when Agent Valles made these comments, he was in a rapidly evolving,
potentially dangerous situation that required him to think quickly and adapt his story based on
statements of the crew members. Agent Valles was obviously aware that all of these

conversations were being recorded, and the Court ?nds it rather implausible that he would

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simply announce during a recorded conversation that he had a racially discriminatory motive for
pursuing the investigation.

Additionally, when considered in context, it is apparent that Agent Valles?s comments
were part of an attempt (however inartful) to provide a plausible explanation for why he was
offering the robbery to a group of strangers. In effect, he was explaining that it was helpful to
him that the crew members (at least those whom had met thus far) were not of the same race as
him, because there would be no readily discernable basis to connect them. As far as his comment
went, there also would have been no basis to connect him to crew members who were white,
Asian, or of some other non-Mexican ethnicity had Williams decided to recruit such individuals.
Obviously his comment had no basis in fact, because there was no actual Mexican cartel and no
actual stash house. Agent Valles was simply trying to assure the potential crew members that
everything was in order, and that he was choosing to offer them the robbery opportunity for
legitimate reasons. Agent Valles stated several times during the recorded conversations that it
was up to Williams to decide how the robbery should be conducted, and he expressed in other
ways?without reference to race or ethnicity?that his primary concern was ensuring that it did
not appear he had anything to do with the robbery. (See, id, R. 354-1, Tr. at 530 just
lookin? for somebody else to get the job done so it don?t fall back on me and my Agent
Valles?s decision to inject race into his discussions with Defendants was ill?advised, but
considered in context, the Court finds that his comments fall short of establishing the type of
racial animus by a decisionmaker that would draw into question the validity of the charges in this

case. See McCleSkey, 481 US. at 298.

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B. Departures From Protocol

Defendants? remaining argument is that ATF agents? signi?cant departures from ATP
protocols demonstrate that they were motivated by racial animus in pursuing these
investigations. (Williams, R. 338, Defs.? Mot. at 45-61.) The Supreme Court has recognized that
a significant failure by decisionmakers to follow established protocols can give rise to an
inference of discriminatory purpose. Vill. of Arlington Heights 12. Metro Hons. Dev. Corp, 429
US. 252, 267 (1977) (?The speci?c sequence of events loadings up [to] the challenged decision
also may shed some light on the decisionmaker?s purposes; . . . Departures from the normal
procedural sequence also might afford evidence that improper purposes are playing a role?).
Defendants believe that deviations from protocol by the ATF provide ?circumstantial evidence of
a ?clear pattern? of discriminatory behavior under Arlington Heights.? (Brown, R. 630, Defs.?
Reply at 65.)

ATF guidelines provide that the stash house stings are intended to ?concentrate on
identifying persons and in?ltrating groups that collectively and/or as a community focus their
criminal activities on executing robberies, by means of force, for personal gain.? (Brown, R. 511?
2, ATF Order at Agents conducting the stings are directed to ?target persons who show a
propensity of doing harm to the public through violent behavior/aimed robberies and whose
activities have been documented either through criminal history, criminal reputation, or self~
incrimination.? (Id) ATF guidelines define ?violent crime? as ?offenses that involve force or
threat of force,? including murder, forcible rape, robbery, aggravated assault, and arson. 
guidelines further provide that at least two members of the group must be ?identified as
violent offenders,? at least one target must have a past violent crime arrest or conviction, and all

targets must be ?currently involved in criminal activity.? (Id. at The operations manual used

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to conduct the stash house stings provides that ATF agents must ensure that targets ?are a viable
robbery crew or violent criminals.? (Id. R. 511?1, ATP Manual at 33.) Training materials used to
prepare ATF agents to conduct the stings provide that targets ?must have the ability to commit a
home invasion by . . . having possession of, or access, to ?rearms.? (Id, R. 511?3, Zayas
Training Materials at 7.) ATP guidelines instruct that ?[c]riminal histories alone are not
indicative of the ability, commitment, and experience of the subjects being investigated to
execute the robbery.? (Id, R. 511-2; ATP Order at 7.)

These criteria, on their face, ?do not suggest any discriminatory motive? on the part of
the ATP. Hare, 820 F.3d at 101. Thus, the question is Whether ATF agents so departed from
established criteria that the Court could infer that they acted with a discriminatory motive.
Arlington Heights, 429 US. at 267. As stated above, Defendants must prove more than just that
ATF discriminated in some general way to prevail on their motion. McCleslcey, 481 US. at 292.
Instead, each defendant ?must prove that the decisionmakers in his case acted with
discriminatory purpose.? Id. (emphasis in original). The Court therefore focuses specifically on

the conduct of the ATF agents in Brown and Williams.39

 

39 Defendants provide a detailed ?departure analysis? containing a description of what they deem to be procedural
deviations in all 24 stash house cases. (See Williams, R. 33 8, Defs.? Mot. at 40?62.) As with their statistical analysis
on discriminatory effect, this analysis does not make any distinction between initial targets and defendants recruited
by other members of the conspiracy. For example, if a defendant Was not known or identi?ed by ATP agents until
the day of the takedown, it would be' inappropiiate to fault for failing to ensure that this individual had the
requisite criminal record to participate in the conspiracy. (Whether the decision to ensnare such individuals 111 a sting
operation is an appropriate law enforcement strategy is another matter .) It also would not be appropriate for this
Court to accept evidence of procedural irregularities in other stash house cases as proof that the decisionmakeis 111
Williams and BI man had a discriminatory purpose in pursuing these investigations. See McCleslcey, 481 U. S. at 292;
see also Colon, 71 F. Supp. 3d at 230 (in ?ctitious stash house case, rejecting defendant?s argument about
government?s alleged misconduct in other stash house operations because ?it is axiomatic that a criminal defendant
does not have standing to complain about alleged misconduct by the government against third parties?); United
States v. Laneham, No. CV 16-2930 113, 2017 WL 4857437, at *32 (D.N.M. Oct. 25, 2017) (in phony stash house
case, declining to ?consider the past acts in different cities when determining the intent in
Albuquerque?). The Court therefore is not persuaded by Defendants? ?departure analysis? for cases other than
Williams or Brown.

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First, Defendants make much of the fact that there is no evidence showing that they were
working as ?established? robbery crews prior to the stings.40 (Williams, R. 338, Defs.? Mot. at
48?51.) As to Brown, however, there is evidence (namely, Defendants? own recorded statements)
to suggest that at least three members of the group had committed home invasion robberies
together in the past. (Brown, R. 555-1, Tr. at 260?80.) Regardless, ATP guidelines do not in fact
require agents to investigate only those defendants who are already committing armed robberies
together as part of an established crew. Rather, the guidelines only require that the group
constitute a ?viable? robbery crew, in other words, that the group be capable of committing the
robbery.41 (Brown, R. 511-1, ATP Manual at 33.) Defendants? criminal histories and their many
inculpatory statements made during recorded conversations provide ample basis for the 
conclusion that they constituted ?viable? robbery crews.

As to Brown, the record re?ects that I ones had no prior felony convictions, but he had
arrests for two violent offenses, assault and aggravated battery. R. 511-5, Takedown Mom.
at 95.) ATP guidelines speci?cally permit consideration of a target?s arrests. (Id, R. 511-2, ATF
Order at 5.) The ATF also had good reason to believe that Jones was presently involved in
criminal activity, as he had recently sold more than 20 guns to a con?dential informant. (Id, R.
555-1, Report of Investig. at 144.) Jones told Agent Gomez that he could provide him with a

crew to commit the robbery and that he knew people who had ?done this shit before.? (Brown, R.

 

4? Defendants also offer anecdotal evidence about the racial makeup of two groups of ?real? stash house robbers
arrested in the Chicago area in unrelated cases. (See Williams, R. 338, Defs.? Mot. at 44?45.) Defendants believe that
there are statistical anomalies when these ?real? stash house robbers are compared to the stash house defendants.
(Id) The Court agrees with Professor Schanzenbach that such a small sampling does not provide an appropriate
basis for comparison. See Robinson v. Sinclair cf: Valentine, L.P., No. 90 4005, 1993 WL 47293, at *2 (N .D. 111.
Feb. 22, 1993) (?Where statistics are presented concerning an extremely small group, they have questionable
value?). Notably, Professor Pagan did not use this anecdotal evidence as part of his statistical analysis. (See Brown,
R. 555-1, Schanzenbach?s Report at 5 n2.)

4? ?Viable? is de?ned as ?capable of existence and development as an independent unit,? or ?having a reasonable
chance of succeeding.? See Viable, COLLEGIATE DICTIONARY (10th ed. 1997).

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555?1, Tr. at 184.) He then recruited Brown and Taylor, who in turn recruited Washington and
Davis. Brown?s criminal history included convictions for armed robbery, residential burglary,
and aggravated unlawful restraint. (Id, R. 511-5, Takedown Mem. at 96.) Taylor?s criminal
history included convictions for a drug offense and possession of a ?rearm after a felony
conviction. (Id)

ATF policy speci?cally permitted agents to consider a target?s own statements when
deciding whether he or she met the targeting criteria, (id, R. 511~2, ATP Order at 3), and these
men made many damaging statements in the undercover recordings. Jones made inculpatory
statements describing his involvement in a recent retaliatory shooting near his home that had left
an innocent bystander paralyzed. (Id, R. 555-1, Tr. at 177?78.) A check of Chicago police
department records con?rmed that there had been a shooting that matched the details provided
by ones. (Id, R. 511-5, Takedown Mem. at 94.) The other men described prior home invasion
robberies they had committed, and also gave indications that they were active in the illegal drug
trade: They knew the current market price for a kilogram of cocaine, and they were able to line
up a buyer to purchase between 10 and 15 kilograms of cocaine after the robbery. (Brown, R.
555?1, Tr. at 259?80; Williams, R. 354?1, Tr. at 248.) Their ability to facilitate a sale of that
magnitude reasonably suggested that this was not their first time selling illegal drugs.

ATF agents also had a basis to believe that the group had access to firearms, as I ones had
recently sold multiple guns to the con?dential informant. ATF records re?ect that the informant
continued to purchase guns from Jones while the stash house sting was underway, including
purchasing an automatic ri?e and multiple ?rearms with obliterated serial numbers. (Williams,
R. 354-1, ATF Operational Plan at 197.) On the day of the arrest, Brown told Agent Valles that

the group had brought three guns with them, and when they were arrested, agents found two

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loaded 9?millimeter handguns and a sawed-off shotgun in Jones?s vehicle. (Brown, R. l, Compl.
1129-)

Defendants criticize ATF agents for not including Washington and Davis in the
?takedowu memo? that was prepared prior to the day of their arrest. (Brown, R. 518, Defs. Mot.
at 57 n.35; see also id, R. 511-5, Takedown Mem.) But under ATF guidelines, the takedown
memo should include ?[c]omplete identi?cation and criminal history of all Imown 
(Id, R. 511-2, ATF Order at 8 (emphasis added).) The takedown memo in Brown was prepared
on July 30, 2012, and it identi?ed the known suspects at the time the memo was written, which
were Jones, Brown, and Taylor. (Id, R. 511-5, Takedown Mem. at 95-96.) ATF agents informed
their superiors in the memo that another meeting was ?tentatively scheduled for August 1, 2012,
where identi?cation of all parties involved will be con?rmed.? (Id at 95.) The record re?ects
that Agent Gomez met Washington for the ?rst time at the August 1, 2012, meeting. (Id. R. 1,
Compl. 15; R. 555-1, Tr. at 259?62, 364.) Thereafter, Washington was identi?ed in the
operations plan prepared by ATP agents prior to the day of the arrest. (Li, R. 555?1, ATF
Operational Plan at 205.)

The record further re?ects that Agent Gomez tried to meet with Davis at the August 1,
2012, meeting, but Davis failed to show up. (Id, R. 555-1, Tr. at 349?52.) Agent Gomez met
Davis for the ?rst time on the day of arrest and confirmed his desire to participate in the stash
house robbery. (Id. at 407-12.) ATF guidelines speci?cally provide that the undercover agent
may use the day of arrest as ?an opportunity to speak with all members of the organization in the
event that all subjects were not present at prior meetings.? (Id, R. 511-2, ATF Order at 7.)
Defendants argue that Agent Gomez ?appears to have undermined his ability? to meet Davis on

August 1, 2012, by failing to wait for him. (Id, R. 510, Defs.? Mot. at 18.) But the record re?ects

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that Agent Gomez did ask to meet with Davis at that meeting, and left only after Brown said that
his calls to Davis were going to voicemail and he did not know where Davis was. (Id, R. 555-1,
Tr. at 349?52.) Agent Gomez made clear that he needed to meet Davis at the next meeting, which
he in fact did. (Id at 352, 407.)

Based on the record, the Court ?nds that ATP had an adequate basis to conclude that the
Brown Defendants constituted a viable robbery crew, that at least two members of the group
were ?violent offenders,? at least one member of the group had a past violent crime arrest or
conviction, and the group had access to ?rearms. (Id, R. 511-2, ATP Order at 5.) In short, the
Court does not ?nd that the targeting of this group, or the manner in which the sting was
conducted, so deviated from ATP policies as to suggest a. racially discriminatory purpose by the
decisionmakers in the case.

As to the Williams investigation, the record shows that the ATP initially targeted
Williams, who had ?ve felony convictions, including convictions for aggravated assault with a
deadly weapon and unlawful use of a weapon following a felony conviction. (Williams, R. 332?5,
Takedown Mem. at 126.) Williams recruited Hummons, who had previous convictions for home
invasion, armed robbery, and other offenses. (Id, R. 12, Report at They in turn recruited
Lee to act as the driver, who they said was experienced in committing robberies. (Id, R. 3544,
Tr. at 48 8439.) Indeed, Lee gave a post-arrest statement admitting that he had previously acted as
the driver in armed robberies of drug dealers for a mutual friend of Williams?s. (Id, R. 354?1,
Lee?s Statement at 513.) Lee also had multiple convictions for drug offenses and arrests for
attempted aggravated robbery and aggravated assault. (Id, R. 13, Report at 3-4.) There was also
reason to believe that the men were engaged in criminal activity at that time. Williams told

Agent Valles that he possessed numerous guns, which itself would be unlawful for someone

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previously convicted of a felony. See 18 U.S.C. 922(g)(1). In recorded statements, Hammons
told Agent Valles that committing robberies ?is What I do.? (Id, R. 354-1, Tr. at 476?86, 496.)
There was also reason to believe the group had access to ?rearms. Williams told Agent Valles
that he had ?guns like a mother?icker,? including assault ri?es. (Id. at 466.) When the men were
arrested, agents found a 9-millimeter semiwautomatic handgun loaded with 16 rounds of
ammunition in their vehicle. (Id, R. 1, Compl. 1[ 65.)

Defendants complain that ATF agents did not identify Hummons or Lee before they were
arrested. (Id, R. 338, Defs.? Mot. at 17-18.) But at the time the takedown memo was written?
November 9, 2012wAgent \Valles had not yet met either Hummens or Lee. (See id, R. 3326,
Takedown Mem. at 12028.) Williams had brought two other men to meetings prior to that date,
but these men ultimately did not show up on the date of the robbery. (See 1'01; id, R. 35 4?1, Tr. at
475 ~85, 522-61.) ATP agents were able to identify one of the men, and he is listed as a target in
the takedown memorandum; this man had an extensive criminal record, including convictions for 
murder, manufactln'e/delivery of cocaine, and unlawful use of a firearm following a felony
conviction. (See Williams, R. 3326, Takedown Mem. at 126.) The takedown memo stated that
Agent Valles was trying to arrange another meeting with Williams ?and other members of the
robbery crew,? at which time ?additional attempts will be made to identify the other members of
the crew.? (Id. at 125.) That occurred on November 12, 2012, when Agent Valles met Hammons
for the ?rst time and Hummens identi?ed himself only as ?Jake.? R. 354?1, Tr. at 475.) At
that same meeting, Agent Valles tried to meet with Lee, but Williams and Hummons rebuffed
him and said there was no need for him to meet Lee because Lee would only be acting as the

driver and would not be going inside the stash house. (Id. at 488.)

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ATF protocols provide that agents should try to identify all targets of the investigation,
but should use discretion ?to avoid an investigation being compromised.? (Brown, R. 511~2,
ATP Order at 7.) Agent Valles could hardly ask crew members for their first and last names
when they appeared for a meeting without arising suspicion. Agents were also required to list all
known targets in the takedown memorandum, (id. at 8), but they obviously could not list
individuals they had not yet met or identi?ed. Nothing about the fact that agents were unable to
identify Hummons or Lee by name until the day of their arrest suggests that the agents targeted
them because of their race. Again, ATP guidelines speci?cally provide that undercover agents
may use the day of arrest as ?an opportunity to speak with all members of the organization in the
event that all subjects were not present at prior meetings.? (Id. at 7.) Thus, the actions of agents
in these cases did not deviate from ATF policy. 

Based on the record, the Court ?nds that the ATP had an adequate basis to conclude that
the group targeted in Williams?including individuals who did not show up on the date of the
robbery for reasons beyond the controlwconstituted a viable robbery crew, that at least
two members of the group were ?violent offenders,? at least one member of the group had a past
violent crime arrest or conviction, and the group had access to ?rearms. The Court does not ?nd
that the targeting of this group, or the manner in which the sting was conducted, so deviated from
ATP policies as to suggest a racially discriminatory purpose on the part of the decisionrnakers in
the case. Therefore, the Court ?nds that Defendants? evidence falls short of proving the
discriminatory intent necessary to establish a constitutional violation. For these reasons, the

. motions to dismiss are denied.

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IV. Post-Hearing Discovery Motion

As a ?nal matter, following the evidentiary hearing held in December 2017, Defendants
moved to reopen discovery.42 (See lowers, R. 706, Defs.? Post?Hearing Disc. Met.) The
government objects to the motion as untimely, unnecessary, and unduly burdensome. (Li,

R. 674, Gov?t?s Resp. to Defs.? Post?Hearing Disc. Mot. at 1.)

The issue of discovery arose at the evidentiary hearing, when defense counsel made
several references to a discovery request Defendants previously made in which they sought
information about individuals who?as counsel described it?were ?rejected? by ATP agents.
(See, sag, Evid. Hr?g Tr. at 487.) Counsel suggested that in denying this particular discovery
request, this Court had deprived Defendants of critical information they needed to prove their
racial pro?ling claim. (Id) This is not an entirely accurate account of the record. To clarify, in
February 2015, Defendants ?led a 28?page motion seeking a vast amount of discovery materials
from the government. (Wiilfams, R. 177, Disc. Mot.) Within the motion, Defendants noted that
the government had contended ?that the proper comparison group consists of people who are in
some way associated with stash house robberies and the recruiters, but who did not
participate or were not arrested.? (Id. at 13.) Defendants ?strongly dispute[d] this definition of
the comparison group? but nevertheless sought broad discovery on that issue. (Id) Among other
things, they sought information about individuals who ?demonstrated a willingness to conduct a
robbery to a government informant or undercover officer, but were not offered the opportunity to

conduct a robbery.? (Id. at 13.) The Court granted a substantial portion of the requests contained

 

42 At a status hearing held in January 2018, defense counsel stated that Defendants were ?content with the record?
and that, in their view, ?what the Court has in front of the Court is suf?cient to determine [discriminatory] effect and
intent.? (R. 670, Tr. at 9.) But later at that same hearing, defense counsel expressed a need for post?hearing
discovery, which appeared to con?ict with her earlier statements. (Id. at 9?10.) When pressed by the Corn?: as to
whether Defendants wanted a ruling based on the present record or whether they wanted an opportunity to seek
additional discovery, counsel asked for leave to adopt the post-hearing discovery motion ?led in United States v.
Flowers, 11 CR 779. (See id. at 11?12; Flowers, R. 706; Brown, R. 669, Min. Entry.)

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in Defendants? discovery motion but denied this particular request as too (Wiliiams,
R. 212, Tr. at 7.)

Between March 2015 and June 2017, the parties proceeded based on the universe of
documents that the Court had ordered to be disclosed. Defendants acknowledge that at no point
during that extended period did they seek to narrow their request or advise the Court that
Professor Pagan needed this information to conduct a proper analysis. (See Brown, R. 670, Tr. at
14~1 5 .) Then, nearly a year after Professor Fagan?s report was completed and several months
after the government ?led its response brief and rebuttal report by Professor Schanzenbach,
Defendants made a broad request for information about ?any and all individuals whom an ATF
Con?dential Informant or ATP agent approached about a Stash House Operation in this District
during the years 2006 to 2013.? (Id, R. 359, Renewed Disc. Mot. at 7.) The government
objected, pointing out that Defendants already had detailed information about the 24 stash house
cases brought in this District and information about an additional three stash house investigations
that did not result in prosecution. (See Williams, R. 364, Gov?t?s Resp. at 5.) The government
represented that it had no ready means of compiling additional responsive information, given the
sheer number of con?dential informants and ATP agents working in this large District during
that seven?year period. (See id. at 6-7.) Ultimately, the Court denied the discovery request as
both untimely and overly broad, out of concern that reopening discovery at that stage with such a

broad request would derail this already five?year-old case. (153., R. 370, Order.)

 

?3 Notably, even though no order has ever been entered consolidating discovery matters in the many stash house
cases in this District before this Court, Defendants chose to raise the bulk of their racial pro?lingnrelated discovery
requests in Brown and Williams. (See Brown, R. 670the other cases, the presiding judges
chose to adopt the discovery orders entered by this Court. (See Brown, R. 674, Gov?t?s Resp. to Defs.? Post?Hearing
Disc. Mot. at 1 11.2.) In other cases, the presiding judges determined that Defendants were not entitled to any
discovery or that only Very limited discovery was warranted. (Id) In other cases, Defendants chose to make no
discovery reqUests. (Id) Given the strategic decisions that Defendants made, they can hardly be heard to complain
that they were denied the ability to present their defense by virtue of this Court?s rulings.

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In their post?hearing discovery motion, Defendants seek vast discovery on four issues: (1)
the ?[fjull universe of individuals with whom the ATP or its CIs had contact in this district
regarding a Stash House Operation, from 2006?20 1 3 (regardless of whether the ATE ultimately
arrested the individuals)?; (2) information about the ?entire pool of CIS available to the AT 
nationwide (3) the ?[?ull universe of ATF targeting criteria, including any criteria regarding
gangs and geography?; and (4) ?[i]nternal ATF documents recording ATF compliance or lack of
compliance with its criteria and (F lowers, R. ?70 6, Defs.? Post~Hearing Disc. Mot.
at 1-15.) Upon careful review of the parties? ?lings and the transcript of the evidentiary hearing,
the Court declines to order further discovery. The government also provided the Court with
several new documents for an in camera inspection. The Court carefully considered whether
these documents should be disclosed to the defense, but concluded that these documents revealed
too many confidential, investigative strategies that would not meaningfully change the Court?s
decision in these cases. The documents make it clear that ATP targeted ethnic gangs that it
considered violent. They do not change this Court?s findings with respect to discriminatory effect
or intent. In any event, these documents will be preserved under seal as part of the record for any
necessary appellate review.

As is fully outlined in the government?s response brief, Defendants received extensive
discovery in this case, including detailed information about the 24 stash house cases charged in
this District, detailed criminal histories of all 94 defendants charged in those cases (many of
whom have closed cases and are not part of the present litigation), sensitive materials from the
ATE detailing the guidelines, policies, and training materials used in connection with the stash
house stings, and information about the confidential informants, including their race, and

instructions they were given by the agents. (See R. 674, Gov?t?s Resp. to Defs.? Post-Hearing

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Disc. Mot. at 24.) Defendants? new discovery requests would not fill the gaps in Professor
Fagan?s report. The most signi?cant problems this Court had with Professor Fagan?s report,
which are all fully outlined above, were his decision to include the cases initiated by the FBI, his
decision to attribute the race of all 94 stash house defendants to the ATP, and his decision to treat
the selection of each defendant as independent. There were also signi?cant problems with his
construction of the comparison group?as he chose to de?ne itmand problems with the
regression analysis he used to compare the defendant group to the comparison group. Providing
Defendants with vast new discovery about ATP ?s nationwide supply of CIs or an entirely
different population of individuals who may have had ?contact? with an agent or CI about a stash
house sting would not remedy any of these problems. In fact, some of these belated requests
appear to be based entirely on questions posed by the judges during the evidentiary hearing, and
not on statements made by the government or evidence suggesting that the government withheld
relevant evidence. (See Flowers, R. 706, Defs.? Post?Hearing Disc. Mot. at 5 (as to request 
stating that one judge had asked, ?Isn?t the real analysis of what the cadre of 01s that the ATP
has??, an issue not previously raised by Defendants or addressed in any manner in their motion
to dismiss); id. at 12 (as to request stating that although they had received signi?cant
discovery on this issue already, ?defendants return to this issue in light of Judge Ellis?s question
and similar questions raised during the hearing? by other judges). Discovery in this case was
hotly contested and vigorously litigated over a period of years, and Defendants cannot seek a do~
over at this late stage simply because they wish they had further developed the record on certain
issues.

The government has also convincingly explained that the information sought by

Defendants, at least as to certain requests, would be extremely burdensome and time-consuming

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to compile. (Id. at 10?12.) As to request assembling the information would require ?asking
every agent and task force of?cer who worked in the relevant ATF offices between 2006 to 2013
(some of whom are now retired), and every CI and ?associated? person who worked with them, to
draw on their memories to compile a list of every person they approached about a home
invasion.? (Id. at 10.) Such an undertaking would be ?massive.?44 (Id) And in the end, the
information compiled would likely be incomplete at best. Even if all agents and 013 could be
located and interviewed, it is not at all clear that they would have complete information needed
to identify such individuals and determine their race. In other words, ?[t]here is no way to
accurately determine whether missing information is for Black, Hispanic, or White investigative
subjects.? (Id) As to request the government represents that there are currently about 2,000
active 013, a number that ebbed and flowed over the seven?year time frame referenced in
Defendants? discovery request. (Id. at 12.) The government represents that it has no electronic
search engine to obtain information about the CIs, and instead would have to locate the paper file
for thousands of CIs, and scour those documents to discern if any mention was ever made of a
stash house robbery.?45 (Id. at 12.)

As to the two remaining requests, the government represents that it has no additional
information about the targeting criteria responsive to request #3 that has not already been

disclosed. (Id. at 12?13.) As to request the government points out that Defendants?

 

4? Defendants argue that the government should have existing documentation pertaining to any stash house
investigation that was initiated. CR. 679, Defs. Reply in Supp. of Mot. for Post-Hearing Disc. at 6-7.) But
Defendants? discovery request, as drafted, seeks a far larger subset of materials. Speci?cally, Defendants seek
information about ?the full universe of individuals with whom the ATP or its (113 had contact in this district
regarding a Stash House Operation? during a seven-year period. (Flowers, R. 706, Defs.? Post-Hearing Disc. Mot. at
3 (emphasis added).) There is nothing before the Court to suggest that the government has ready access to
documents that meet this broad criteria.

45 Defendants question whether this is the case, as they have obtained information showing that the ATP created an
electronic database for its C13 in 2016. (See R. 680, Defs.? Sealed Reply in Supp. of Mot. for Post?Hearing Disc. at
8-9.) But that was well after the period for which Defendants? seek information, and the government has 
convincingly explained that it would stiil have to comb through paper documents to respond to Defendants?
discovery request seeking data for 200 6?13. (See R. 680?3, Sealed Letter from 11.3. Attorneys? Of?ce at 

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request is very broad and is not limited in temporal scope or to the issue of race. (Id. at 14.) As
drafted, the request is likely to encompass a vast amount of sensitive law enforcement materials
that are not relevant to Defendants? racial pro?ling defense. Defendants have already received a
substantial amount of pertinent law enforcement documents as a result of the Court?s prior
discovery orders. Under these circumstances, the Court declines to order any additional
discovery at this late stage.

The Court also finds no basis to draw any adverse inference against the government, as
Defendants request. (See Flowers, R. 706, Defs.? Post~Hearing Disc. Mot. at 13.) Defendants
have not come forward with any evidence to suggest that the government intentionally destroyed
existing documents or evidence for the purpose of concealing adverse information. See Fans v.
Sears, Roebuck 0?2: (70., 532 F.3d 633, 644 (7th Cir. 2008) (observing that in order to obtain an
adverse inference, moving party must show that opposing party ?intentionally destroyed?
evidence ?in bad faith. . . . A document is destroyed in bad faith if it is destroyed for the purpose
of hiding adverse information. (citations and internal quotation marks omitted)); Rummery v.
Ill. Bell Tel. 00., 250 F.3d 553, 558 (7th Cir. 2001) (denying plaintiff?s request for an adverse
inference where he ?offered no evidence, other than his own speculation,? that evidence was
?destroyed to hide discriminatory information?). For these reasons, Defendants? post-hearing
discovery motion is denied.

In short, this Court carefully and diligently presided over the dif?cult and time-
consuming discovery terrain dictated by the Seventh Circuit in Davis that has been subsequently
followed by the Third Circuit in its careful. Washington opiniOn. This Court did not favor the

government or the defense in its delicate treatment of these sensitive lavvr enforcement issues,

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which is borne out by the elaborate discovery record and the numerous oral and written rulings
issued in these consolidated cases.
CONCLUSION

These delayed criminal cases must come to a conclusion soon. Defendants? attorneys
raised serious, dif?cult issues that relate to the continuous historic tension our country?s criminal
law enforcement procedures have had with our country?s racially diverse community. The future
of these cases is squarely within the discretion of our new U.S. Attorney. This Court can only
point out its concerns in this opinion and proceed to set priority trial dates in these long delayed
cases. This matter will be set for a status hearing on March 21, 2018, at 10:30 am. for the

express purpose of setting both cases for jury trials in the near future.

ENTERED: 7% gm

Chief Judge Ruben Castillo
United States District Court
Dated: March 12, 2018

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