Case 1:16-cr-02363-MCA Document 72 Filed 02/07/18 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES,
Plaintiff
v.

16cr2362 MCA

LONNIE JACKSON,
Defendant.
and
UNITED STATES,
Plaintiff,
v.

16cr2363 MCA

DIAMOND COLEMAN
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants’1 Motion to Compel
Discovery pertaining to Claim of Selective Enforcement. [Doc. 2362:29; Doc. 2363:28]
The Government responded [Doc.32], and Defendants replied.

[Doc.35]

After the

Government provided some of the materials sought in Defendants’ Motion, Defendants
submitted a supplemental brief [Doc. 45], in which they outlined the remaining items
1

The Court granted the Defendants’ motion to file pleadings related to this issue jointly.
[Doc. 2362:49; Doc. 2362:52] For simplicity, the Court will therefore refer hereafter to
the joint pleadings filed in Case No. 16cr2362 only.
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sought, and the Government responded to the supplement. [Doc.47] Defendants filed a
reply as well. [Doc.52] An evidentiary hearing was held on October 30, 2017 and
December 13, 2017.
The Court has considered the parties’ submissions, the evidence presented at the
hearings, and the relevant law, and is otherwise fully informed. For the following
reasons, the Court GRANTS IN PART Defendants’ Motion.
I.

Background and Summary of Requested Information
Lonnie Jackson was indicted for distribution of methamphetamine in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(A). [Doc. 2] Diamond Coleman was indicted for
distribution of methamphetamine, using and carrying a firearm during and in relation to a
drug trafficking crime, and being a felon in possession of a firearm and ammunition.
[Doc. 2363:2] Both Defendants were arrested during a “surge” operation in Albuquerque
by the Bureau of Alcohol, Tobacco, and Firearms (ATF) in 2016. During the surge, the
ATF was aided by five confidential informants, who were recruited from throughout the
country. Three of the confidential informants were black and two were described as
Hispanic. [12/13/17, 44:5-11] One hundred and four people were arrested as a result of
the surge. Twenty-eight of those arrested are black, twelve are white, and sixty-four are
Hispanic. [Def. Exh. O; Doc. 28-5; 10/13/17, 78:6-10]
Defendants seek discovery of a wide range of materials relating to the surge and to
a possible claim of selective enforcement. Defendants, who are black, argue that they are
entitled to these materials because they have shown sufficient evidence of discriminatory
intent behind and discriminatory effect of the ATF sting. [Doc. 29]
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In their original Motion to Compel Discovery, Defendants sought disclosure of
fourteen types of information. [Doc. 29] A hearing on Defendants’ Motion to Compel
Discovery was originally scheduled for June 27, 2017. That hearing was continued on
Defendants’ motion so that the parties could meet and work out discovery without
intervention. [Doc. 39; Doc. 40] The Government subsequently provided some of the
information requested and objected to other requests. [Doc. 45-2] On September 21,
2017, Defendants filed a supplement to their motion requesting types of information
which had not been provided. [Doc. 45] The Government responded. [Doc. 47]
The current information sought by Defendants is:
1. The [National Crime Information Center (NCIC)] criminal history
report relied on by the ATF during the investigation of the member of
the Albuquerque ATF surge defendant class, in each of the 103
Albuquerque ATF surge cases. [Doc. 45, pg. 7]
The Government argues that it has already provided pretrial services reports to the
defense and that those reports should be sufficient. [Doc. 47, pg. 5] Defendants counter
that they need to know what the agents knew at the time they made the decision to arrest
(or not arrest) people encountered during the surge. [Doc. 52, pg. 8] The defense wants
to use this information to show whether the criminal history that the ATF claims to have
relied on was the deciding factor in arrest decisions, or not. [Doc. 45, pg. 10] Because
Defendants already have NCIC reports for cases represented by the Federal Public
Defender’s office, they are requesting only the NCIC reports for defendants not
represented by that office. [Doc. 45, pg. 9]
2. The address of the location where a confidential informant approached
the initial target that ultimately led to the arrest of a member of the
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Albuquerque ATF Surge defendant class, in each of the 103
Albuquerque ATF surge cases. [Doc. 45, pg. 10]
The Government argues that this information is immaterial and irrelevant. [Doc.
47, pg. 7] Defendants counter that the information is material because they want to know
whether the location of first contact is consistent with the target area for the surge as
described by the ATF. [Doc. 45, pg. 11; Doc. 52, pg. 10]
3. All NCIC criminal history reports requested or generated, related to the
Albuquerque ATF Surge, by any law enforcement officer working on
the Albuquerque ATF Surge, between March 1, 2016 and September 30,
2016. [Doc. 45, pg. 11-12]
Defendants argue that this information is necessary so that they can see if, for
example, white individuals with criminal histories within the target criteria were
identified by the ATF but not pursued. [Doc. 45, pg. 12] The Government relies on its
objection to #1 above. [Doc. 45-2] It also argued at the hearing that this request is overly
burdensome, presented issues with privacy, and could lead to similar requests by other
defendants. [10/30/17, 15:4 – 20:9]
4. Any grant proposals and funding requests, as well as any other
documents or communication, delineating the purpose and intended
effect of the Albuquerque ATF Surge operation. [Doc. 45, pg. 13]
Defendants argue that they need this information to understand what ATF had in
mind as the effect of the Surge and to see if ATF had instituted measures to avoid racial
profiling in its operations. [Doc. 45, pg. 13] The Government argues that it did not
receive any grant funding for the operation in Albuquerque in 2016, and further objects to
providing funding requests as irrelevant.

It asserts that it has provided any

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documentation it has regarding the purpose of the ATF Surge operation. [Doc. 45-2, pg.
3]
5. All documents and communications reflecting what, if anything, any
confidential informant involved in the Albuquerque ATF Surge was told
about which individuals or class of individuals to target/not to target.
[Doc. 45, pg. 14]
Defendants argue that, although the ATF maintains that the confidential
informants were only told which geographic area to target, it does not make sense that
they were not also told which individuals to target. [Doc. 45, pg. 14] Thus, they seek
any information about what the confidential informants were told about whom to target
within the specified geographic area.

The Government argues that it did not use

individual target selection criteria, but rather focused on a geographic area. It further
asserts that information about the target geographic area was disclosed already. [Doc. 47,
pg. 7-8; Doc. 45-2, pg. 3]
6. All communications between any confidential informant involved in the
Albuquerque ATF Surge and any target of the Albuquerque ATF Surge,
whether the target was ultimately arrested and charged or not, to include
all communications from any and all phones utilized by the confidential
informant, business or personal, official or unofficial, as well as all
emails, text messages, voicemail messages, audio and video recordings,
recorded phone calls, and social media communications. [Doc. 45, pg.
15]
Again, Defendants want to be able to compare the communications with
defendants to those who were not arrested, to see if race was the deciding factor in the
arrest decision. [Doc. 45, pg. 15] The Government objects to this request as overbroad
and irrelevant. [Doc. 45-2, pg. 4]

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7. All documents and communications . . . between any persons employed
or contracted by the ATF, related to: the area of town to target, the
decision to target (or not to target) anyone pursuant to the ATF Surge,
the decision to pursue (or not to pursue) any target of the ATF Surge,
the decision to arrest (or not to arrest) anyone pursuant to the ATF
Surge; the charging criteria for the ATF Surge; the decision to charge
(or not to charge) anyone as a result of the ATF Surge; and the race of
any target, potential target, and/or defendant in the ATF Surge. . . .
[Doc. 45, pg. 17]
The Government objects to this request as overbroad and irrelevant. [Doc. 45-2,
pg. 4]
8. All training manuals utilized in or influencing the manner of execution
of the Albuquerque ATF Surge. [Doc. 45, pg. 17]
The Government objects to this request as overbroad and irrelevant. [Doc. 45-2,
pg. 4]
9. All documents, communications, meeting notes, data, studies, and
reports relied upon in selecting the so-called SE quadrant of
Albuquerque as the target area. [Doc. 45, pg. 17-18]
The Government maintains that, to the extent such materials exist, they have been
provided already. [Doc. 45-2, pg. 5]
10. All TLOxp reports requested or generated, related to the Albuquerque
ATF Surge, by any law enforcement officer working on the
Albuquerque ATF Surge, between March 21, 2016, and September 30,
2016. [Doc. 45, pg. 18]
Defendants argue that this information is relevant to determining whether there
were some non-black individuals who fit the target criteria but who were not pursued.
[Doc. 45, pg. 19] The Government maintains that this information does not exist. [Doc.
45-2, pg. 5]

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11. Any and all contemporaneous reports created or generated during the
investigation into Yusef Casanova’s white male methamphetamine
supplier, to include vehicle registration reports, driver’s license
information, and NCIC reports. [Doc. 45, pg. 19]
The parties differ on the facts of the encounter with Mr. Casanova, and thus on
what materials were generated during the investigation. [Doc. 45-2, pg. 5; Doc. 45, pg.
19]
12. All documents and communications reflecting what, if anything, any
confidential informant involved in the Albuquerque ATF Surge was
told about which areas of the city to target/not to target. [Doc. 45,
pg. 20]
The Government maintains that this information does not exist. [Doc. 45-2, pg. 5]
II.

Discussion

1. The Discovery Standard
“Racially selective law enforcement violates this nation’s constitutional values at
the most fundamental level; indeed, unequal application of criminal law to white and
Black persons was one of the central evils addressed by the framers of the Fourteenth
Amendment.” Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1167 (10th
Cir. 2003). Our Tenth Circuit Court of Appeals has outlined what a plaintiff alleging
selective enforcement must prove:
The requirements for a claim of racially selective law enforcement draw on
what the Supreme Court has called “ordinary equal protection standards.”
The plaintiff must demonstrate that the defendant’s actions [1] had a
discriminatory effect and [2] were motivated by a discriminatory purpose. .
. . The discriminatory purpose need not be the only purpose, but it must be
a motivating factor in the decision. . . .
Id. at 1168 (citations omitted).

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Here, of course, Defendants seek not to prove selective enforcement, but to obtain
discovery by which they might use to make a selective enforcement claim. A defendant
is not required to prove selective enforcement in order to obtain discovery related to it.
United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001). (“[T]he defendants need
not establish a prima facie case of selective prosecution to obtain discovery on these
issues.”). In United States v. Armstrong, the Supreme Court addressed the showing
necessary to receive discovery related to a selective prosecution claim and held that the
courts “require some evidence tending to show the existence of the essential elements of
the defense, discriminatory effect and discriminatory intent.” 517 U.S. 456, 468 (1996)
(internal quotation marks and citation omitted). The Court equated this “some evidence”
standard with a “colorable basis,” “substantial threshold showing,” “substantial and
concrete basis,” or “reasonable likelihood.” Id. (citations omitted).
The Armstrong Court began its analysis by noting that “[t[he Attorney General and
United States Attorneys retain broad discretion to enforce the Nation’s criminal laws”
and that “[a]s a result, the presumption of regularity supports their prosecutorial decisions
and, in the absence of clear evidence to the contrary, courts presume that they have
properly discharged their official duties.”

Id. at 465 (internal quotation marks and

citations omitted).
Another part of the rationale in Armstrong was based on the burden discovery can
place on the Government and the costs of disclosure of certain types of information. Id.
(“If discovery is ordered, the Government must assemble from its own files documents
which might corroborate or refute the defendant’s claim. Discovery thus imposes many
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of the costs present when the Government must respond to a prima facie case of selective
prosecution. It will divert prosecutors’ resources and may disclose the Government’s
prosecutorial strategy.”). Judicial deference to prosecutor’s decisions hence also “stems
from a concern not to unnecessarily impair the performance of a core executive
constitutional function.” 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. (quoting Wayte v. United States,
470 U.S. 598, 607 (1985)). Because of the presumption of regularity and these concerns,
the standard for discovery related to selective prosecution is heightened. Id.
The parties diverge on whether the Armstrong standard for obtaining discovery
related to selective prosecution claims applies to selective enforcement claims.2 [Doc.
35, pgs. 3-5; Doc. 32, pgs. 5-6]

Defendants argue that “with a claim of selective

prosecution, movant must contend with the presumption of regularity afforded to
prosecutors [but] with a selective enforcement claim, . . . there is no presumption of
regularity afforded to law enforcement officers.” [Doc. 35] Defendants point to United
States v. Davis, in which the Seventh Circuit held that
[a]gents of the ATF and FBI are not protected by a powerful privilege or
covered by a presumption of constitutional behavior. Unlike prosecutors,
2

A selective enforcement claim focuses on actions of law enforcement, whereas a
selective prosecution claim focuses on actions of prosecutors. United States v. AlcarazArellano, 302 F. Supp. 2d 1217, 1226 (D. Kan. 2004), aff’d, 441 F.3d 1252 (10th Cir.
2006) (distinguishing between the two and stating that selective enforcement focuses on
“the decision and actions of the law enforcement officer, not the exercise of discretion by
the prosecutor”).
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agents regularly testify in criminal cases, and their credibility may be
relentlessly attacked by defense counsel. They also may have to testify in
pretrial proceedings, such as hearings on motions to suppress evidence, and
again their honesty is open to challenge. Statements that agents make in
affidavits for search or arrest warrants may be contested, and the court may
need their testimony to decide whether if shorn of untruthful statements the
affidavits would have established probable cause. Agents may be
personally liable for withholding evidence from prosecutors and thus
causing violations of the constitutional requirement that defendants have
access to material, exculpatory evidence. Before holding hearings (or civil
trials) district judges regularly, and properly, allow discovery into
nonprivileged aspects of what agents have said or done.
793 F.3d 712, 720–21 (7th Cir. 2015) (citations omitted). The Court concluded that the
concerns animating “Armstrong do not apply to a contention that agents of the FBI or
ATF engaged in racial discrimination when selecting targets for sting operations, or when
deciding which suspects to refer for prosecution.” Id. at 721.
Several courts have noted the Davis holding approvingly. See, e.g., United States
v. Hare, 820 F.3d 93, 101 (4th Cir.), cert. denied, 137 S. Ct. 224 (2016), reh’g denied,
137 S. Ct. 460 (2016); United States v. Mumphrey, 193 F. Supp. 3d 1040, 1048 (N.D.
Cal. 2016). The Third Circuit recently stated that
we find ourselves in agreement with the core rationale of Davis: the special
solicitude shown to prosecutorial discretion, which animated the Supreme
Court's reasoning in Armstrong and Bass—and our own reasoning in our
pre-Armstrong/Bass case law on the same subject—does not inevitably
flow to the actions of law enforcement, or even to prosecutors acting in an
investigative capacity. Prosecutors are ordinarily shielded by absolute
immunity for their prosecutorial acts, but police officers and federal agents
enjoy no such categorical protection.
United States v. Washington, 869 F.3d 193, 219 (3d Cir. 2017) (footnotes omitted), cert.
denied, No. 17-6986, 2018 WL 311803 (U.S. Jan. 8, 2018).

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Other courts have criticized the Armstrong requirements, noting their seeming
impossibility. The District Court of Kansas held that, in selective prosecution claims,
“making a showing of a similarly situated individual is possible [because] [t]he claimant
is dealing with a defined universe of individuals with whom to compare; individuals who
were arrested and prosecuted for the same offenses in that jurisdiction or some other
jurisdiction.” United States v. Mesa-Roche, 288 F. Supp. 2d 1172, 1185 (D. Kan. 2003).
In contrast, “[i]n the context of a challenged traffic stop . . . imposing the similarly
situated requirement makes the selective enforcement claim impossible to prove. It
would require the defendant to make a credible showing that a similarly situated
individual was not stopped by the law enforcement. How could a defendant, without
discovery, ever make such a showing?” Id. at 1186; see also United States v. Paxton, No.
13 CR 103, 2014 WL 1648746, at *4 (N.D. Ill. Apr. 17, 2014) (stating that “in selective
prosecution claims, there should exist records of individuals who were charged and then
subsequently treated in a different manner than the defendant. In selective enforcement
cases, however, identifying the class of individuals is a much more burdensome
endeavor, and one that may prove insurmountable” and holding that the defendants had
met their burden in that case).
In Alcaraz-Arellano, our Tenth Circuit Court of Appeals noted that the standard
for discovery related to selective prosecution claims is a “demanding” one, because “a
claimant is requesting the judiciary to exercise power over a special province of the
executive branch” and then noted that this standard was applied to a selective
enforcement discovery request in United States v. James, 257 F.3d 1173, 1177 (10th Cir.
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2001). United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006) (internal
quotation marks and citation omitted). The Court echoed the concerns in Armstrong,
stating that:
caution is required in reviewing a claim of selective law enforcement.
“[C]harges of racial discrimination ... may be easy to make and difficult to
disprove.” Marshall, 345 F.3d at 1167. Executive-branch officials possess
broad discretion in determining when to make a traffic stop or an arrest.
See id. Judicial interference with law-enforcement discretion might
“induce police officers to protect themselves against false accusations in
ways that are counterproductive to fair and effective enforcement of the
laws,” such as by directing law-enforcement resources away from minority
neighborhoods. Id. Accordingly, the standard for proving a selectiveenforcement claim should be, as with selective-prosecution claims, “a
demanding one.” [Id.]
Alcaraz-Arellano, 441 F.3d at 1264. Thus, the Tenth Circuit concluded that
the showing necessary to obtain discovery for a selective [enforcement]
defense must itself be a significant barrier to the litigation of insubstantial
claims. Although defendants seeking discovery need not establish a prima
facie case of selective [enforcement], they must satisfy a rigorous
standard[.] They must produce some evidence of both discriminatory effect
and discriminatory intent.
Id. (internal quotation marks and citations omitted).
2. Discriminatory Intent
“Discriminatory intent can be shown by either direct or circumstantial evidence.”
Id.

Defendants argue that they have shown sufficient circumstantial evidence of

discriminatory intent, and that they seek direct evidence of discriminatory intent through
discovery. [Doc. 29, pg. 23]

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a. Homophily
First, Defendants argue that the ATF’s selection of black confidential informants
(CIs) “prefigures the selection of defendants and, in this foreshadowing, manifests the
existence of selective enforcement.”

[Doc. 29, pg. 23] They point to the idea of

“homophily,” which “is the principle that a contact between similar people occurs at a
higher rate than among dissimilar people.” Miller McPherson, Lynn Smith-Lovin, and
James M Cook, BIRDS OF A FEATHER: Homophily in Social Networks, Annu. Rev.
Sociol. 2001. 27:415–44, available at http://aris.ss.uci.edu/~lin/52.pdf.

Defendants

maintain that, because of homophily, “for every Black ‘principal’ a confidential
informant targeted, a web of several Black codefendants was often spun.” [Doc. 29, pg.
24] The Government argues that this position is “ridiculous” because “[a]n argument that
Black confidential informants will only interact with other Black confidential informants
is an assumption that is itself racist.” [Doc. 32, pg. 7] While it does not “deny that the
ATF uses [confidential informants] that are similar in background to the criminals it tries
to stop,” it maintains that “the key characteristic of the selected confidential informants in
the Albuquerque operation was not their race: it was their background of dealing or
selling controlled substances.” [Doc. 32, pg. 7]
Essentially, Defendants’ argument is that ATF recruited black confidential
informants when they knew or should have known that black confidential informants
would interact with more black drug or firearms dealers than with dealers of other races.
At the hearing, Agent Johnson and Agent Zayas testified as to how the confidential
informants were selected for the operation in Albuquerque. Agent Johnson testified that
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the confidential informants were “confidential informants that [the ATF had] worked
with in the past, and they come from all over the country.” [Tr. 10/30/17, 28:25 – 29:1;
see also 12/13/17 43:19 – 44:25 (stating that the ATF selected “guys that have worked
these kinds of operations before”)] He also stated that there were no white confidential
informants available at the time. [12/13/17, 44:12-15 (“Q. You did not choose to use one
White confidential informant? A. I don’t have any White confidential informants – or I
didn’t at the time.”)] At the end of Agent Zayas’ testimony, the Court asked him how the
confidential informants were selected.

[12/13/17, 108:2-3]

Agent Zayas stated in

response,
I do the selection of the agents, so while I’m selecting the agents and I’m
talking to individuals around the country, I’m trying to determine what
confidential informants are available and then the reliability of those
confidential informants. So as I’m seeking agents and I’m trying to obtain
different agents to come to Albuquerque based upon their experience and
their ability to work with others and all that type of thing, I’m also
questioning the agents throughout the country as to their confidential
informants and if those confidential informants are reliable.
[12/13/17, 108:4-14] The Court also asked whether the ATF has access to any white
confidential informants. Agent Zayas stated that there are white confidential informants
working for the ATF, but that selection is “just whoever happens to be available at that
time that I’m able to vet, that the information comes back to me that these people are
reliable.” [12/13/17, 110:2-8] He went on, “For the most part, I don't even ask what their
race is. It doesn’t matter.” [Id.] He also testified that he was not given any information
about the composition of the Albuquerque community with respect to ethnicity or race
while recruiting agents and confidential informants. [12/13/17, 109:14-22] He stated

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that “[e]ach particular city has their own idiosyncrasies, but at the end of the day,
firearms trafficking and narcotics trafficking is basically the same throughout the
country” and that the “idiosyncrasies” of Albuquerque were its “proximity to Mexico”
and the amount and quality of drugs available here as a result. [12/13/17, 111:4-17] He
did not discuss how the ATF recruits confidential informants to work in particularly
homogenous or insular communities.
However, Agent Johnson also testified about how some of the suspects identified
during the Albuquerque operation were introduced to the ATF by other suspects. He
stated that there were twenty-six instances which he called “conspiracies,” which he
defined as “two or more people engaged in criminal activity together that we ultimately
charged” but which did not necessarily lead to conspiracy charges. [10/30/17, 31:17-19;
Gov’t Exh. 57] Seventy-five of the 104 surge defendants were associated with one of
these “conspiracies.” [Gov’t Exh. 57] Agent Johnson testified about several instances in
which the confidential informant met one person, who then introduced the confidential
informant to another person, who ultimately provided the confidential informant with
drugs or weapons. For example, he described one such transaction this way:
A. . . . This one involves an individual named [W.G.]. [W.G.] met one of
our CIs. They discussed methamphetamine. [W.G.] took the confidential
informant to [G.R.]’s residence. [W.G.] acquired the methamphetamine
from Mr. R[] and provided it to us for a finder’s fee. And that occurred on
two occasions.
Q. Okay. And was Mr. R[] also charged in connection with the surge?
A. Yes. Both individuals have been charged.
[10/30/17, 34:16-24] He went on to describe several other transactions.

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A. This case involves [N.U], [A.S], and [P.Z]. It began with [N.U] -- the
case began with [N.U.] selling methamphetamine to an ATF undercover.
[N.U] then took the undercover to [A.S.]. And then later, [A.S.] took the
undercover to [P.Z.] for the purchase of meth.
So all three were involved in the methamphetamine trade.
Q. And connected with each other?
A. That is correct.
[B.M.] reported himself a methamphetamine dealer. We purchased some
smaller amounts of methamphetamine. Then he brought [R.L.] to meet the
undercover, who in turn sold ounce quantities of meth to the undercover.
[10/30/17, 35:1-15] Agent Johnson testified similarly as to twenty-three other instances
in which multiple defendants were involved.

In each case, initial contact by a

confidential informant or an undercover agent led to introductions by the contact with
others, often (but not always) previously unknown to the confidential informant or the
undercover agent.

[10/30/17, 34:16 – 43:15]

He went on to state that once the

confidential informants and/or undercover agents met with a contact, they would had no
influence over the people to whom the contact would introduce them next. He stated,
A. . . . when we meet with somebody, we don’t choose who they bring.
We don’t choose who their source of supply is. We don’t choose who
they’re associated with. You know, they make that decision. They
associate with whoever they want to associate with. We have no control
over that.
Q. And did you take the conspiracies as you found them?
A. Yes.
Q. So, again, if a conspiracy exists which is either multi-racial or
homogenous in terms of race, and you found that conspiracy, what control
would ATF have over the racial composition?
A. None.
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[10/30/17, 50:17 – 51:4; see 10/30/17, 52:13-20]
Of the twenty-six cases involving multiple suspects, fifteen involved a black
confidential informant. [Gov’t Exh. 57] Of these fifteen instances, seven involved one
or more black suspects. [Id.] At the same time, only two of the eleven multiple suspect
cases involving non-black confidential informants involved black suspects. [Gov’t Exh.
57] Similar figures (i.e., the number of cases involving a black confidential informant
that also involved a black suspect) was not presented for the twenty-seven other cases.
Taken together, both Agent Johnson’s testimony and the figures in Government’s
Exhibit 57 support Defendants’ homophily theory. Nevertheless, even if the ATF knew
of the potential impact of such preferences, this evidence is insufficient on its own to
show that the ATF purposefully selected black confidential informants so as to target
black people in Albuquerque. See Wayte v. United States, 470 U.S. 598, 610 (1985)
(stating, ‘[D]iscriminatory purpose’ ... implies more than ... intent as awareness of
consequences. It implies that the decisionmaker ... selected or reaffirmed a particular
course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects
upon an identifiable group.” (quoting Pers. Adm’r of Massachusetts v. Feeney, 442 U.S.
256 (1979)).
b. Prior Misconduct
Defendants next argue that ATF’s prior “misconduct” is evidence of
discriminatory intent. [Doc. 35, pg. 5] They maintain that “[e]vidence of ATF’s past
behavior is highly relevant circumstantial evidence that may be used to infer intent,
particularly when many of the agents involved in prior sullied operations were also
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involved in the Albuquerque ATF sting that led to [Defendants’] arrest.” [Doc. 35, pg. 5]
As evidence of “past misconduct,” Defendants rely on articles about ATF operations in
the past and on cases discussing the “dubious” nature of those operations. [Doc. pgs. 614] The Government argues that these past operations are irrelevant to the operation at
issue here. [Doc. 32, pg. 9]
Defendants’ argument is unavailing. Defendants’ request for discovery in this
case must be based on evidence related to the ATF’s Albuquerque operation, not on
actions in other operations. In addition, the surge in Albuquerque differs from the
operations addressed by Defendants, which involved undercover storefronts, phony stash
houses, and “Operation Fast and Furious.” [Doc. 29] The primary tactic that was
castigated in the stash house cases as “tawdry” was the dangling of large amounts of
money in front of “unsophisticated, and perhaps desperate,” defendants. See, e.g., United
States v. Lewis, 641 F.3d 773, 777 (7th Cir. 2011). This tactic was not used here.
c. Targeted Areas
Defendants argue that the ATF’s confidential informants sought out suspects “in
locations that would virtually guarantee netting an inordinate number of minorities – and
specifically, Blacks.” [Doc. 29] Other than asserting that the neighborhood known as
“the Kirk” is a “historically Black neighborhood,” Defendants provide no evidence that
this is true, or that the area targeted by the ATF includes a higher population of minority
residents than other areas. [Doc. 45, pg. 18 (describing the target area as a “minorityconcentrated corner of Albuquerque”)] Although the Government stated in its Response
to Defendants’ Motion that “as many as 19.2 percent of the residents [of zip code 87108,
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which the Government states includes the target area] identify as [B]lack,” no evidence
was submitted to support this figure and the Court was unable to confirm it on the Census
Bureau website cited by the Government. [Doc. 32, n. 6; see also Doc. 35, n.7] The
Court notes that, contrary to both parties’ arguments, the population of black residents of
the “Southeast/Primary” “crime cluster” identified in the ABQ i-team report admitted by
the Government was 5.12% as of August 2017.3

[Gov’t Exh. 58, pg. 38]

The

“Southeast/Primary” area overlaps with the area targeted by the ATF as stated by Agent
Johnson. Defendants’ showing as to discriminatory intent based on selection of the target
area is insufficient at this time.
3. Discriminatory Effect
“To prove discriminatory effect in a race-based selective [enforcement] claim, a
defendant must make a credible showing that a . . . similarly-situated individual of
another race could have been, but was not, arrested or referred for federal prosecution for
the offense for which the defendant was arrested and referred.” James, 257 F.3d at 1179.
“The defendant may satisfy [this] requirement by identifying a similarly-situated
individual or through the use of statistical evidence.” Id.
a. Similarly-Situated Individual
Although the circuits differ in some respects as to how they define a “similarly
situated individual,” the Tenth Circuit has adopted the Fourth Circuit’s formulation:
“[D]efendants are similarly situated when their circumstances present no distinguishable

3

The ABQ i-team report also states that the Southeast/Primary area includes 59.41%
white residents and 57.97% Hispanic residents of any race.
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legitimate prosecutorial factors that might justify making different prosecutorial decisions
with respect to them.” United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005)
citing United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996). The strictness of this
standard is part of what makes selective enforcement claims so difficult to demonstrate,
as it “seems to require that defendants be virtually identical (not merely similar) with
other unprosecuted individuals.

Under [this test], defendants must show that the

prosecutor could not have differentiated the defendants from other unprosecuted
individuals by using legitimate prosecutorial factors.” Thomas P. McCarty, United States
v. Khan, 461 F.3d 477 (4th Cir. 2006): Discovering Whether “Similarly Situated”
Individuals and the Selective Prosecution Defense Still Exist, 87 Neb. L. Rev. 538, 562
(2008); id. (stating that “the Fourth Circuit’s definition of ‘similarly situated’ may make
it easier for prosecutors to selectively prosecute defendants for invidious purposes.”);
United States v. Venable, 666 F.3d 893, 901 (4th Cir. 2012), as amended (Feb. 15, 2012)
(stating that the Fourth Circuit has “rejected a narrow approach to relevant factors to be
considered when deciding whether persons are similarly situated for prosecutorial
decisions.” (internal quotation marks and citation omitted)).
At the hearing, Defendants elicited testimony from Agent Johnson regarding a
specific investigation in which a confidential informant reported meeting with a white
male. [10/31/17, 175:10 – 178:3] After informing the ATF about the white male, Agent
Johnson identified the white male and obtained an NCIC report about him. The NCIC
report indicated that “he had prior convictions for battery, domestic assault, robbery,
assault with serious physical injury, felon in possession of a firearm, and two other
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assault convictions.” [10/30/17, 176:17-21; Gov’t Exh. 30] The white male also had
tattoos on his face that ATF agents identified as being associated with two specific street
gangs. [Gov’t Exh. 30] After the ATF obtained this information, the confidential
informant arranged to buy methamphetamine from the white male, but on the day of the
sale, the white male did not show up. Although the confidential informant spoke to the
suspect again about a purchase, subsequent calls by the confidential informant went
unanswered. In a meeting a few weeks later, the confidential informant related to Agent
Johnson that he/she had run into the white male and that the suspect had discussed
breaking into homes and a robbery in which he beat up a woman. The suspect then told
the confidential informant to let him know when the informant had spoken with his/her
associate who also committed robberies. [10/31/17, 175:10 – 178:3; Gov’t Exh. 30]
Agent Johnson testified that the white male was not one of the defendants from the surge.
[10/31/17, 178:3]
Agent Johnson also testified about two investigations involving a suspect and a
source of supply. In one instance, an ATF agent purchased methamphetamine from a
suspect, who identified her source of supply as one of two white males seated in a nearby
car. [Def. Exh. I; 10/30/17, 169:6-173:9] Agent Johnson testified that the license plate
of the car in which the white males were seated “would have been queried.” [10/30/17,
172:18-23]

No NCIC report was attached to the Report of Investigation for this

transaction and Agent Johnson testified that he did not know if one was obtained. [Id.]
Agent Johnson stated that neither of the white males in the car was pursued “[b]ecause

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they didn’t do anything wrong, other than her saying that. There’s no evidence that they
possessed any meth.” [10/30/17, 173:7-9]
In contrast, in another investigation, the black source of supply was arrested even
though agents did not observe any transaction between the seller and the source. Agent
Johnson testified that an agent met twice with a suspect to purchase methamphetamine.
In the first transaction, the suspect directed the agent to an apartment, where an
“unidentified black male” was standing outside. Both the suspect and the unidentified
black male went into an apartment and the suspect returned and sold methamphetamine
to the agent. [Def. Exh. K] On another date, after meeting the agent at a restaurant, the
suspect instructed the agent to follow him to the same apartment. Once at the apartment
building, the suspect and entered one apartment and shortly came out again. [10/30/17,
193:12-195:22; Def. Exh. K] Agent Johnson testified that a person (later determined to
be the same “unidentified black male” as seen in the first transaction) stepped out of the
apartment. The “unidentified black male” was later identified through the license plate of
the car in front of the apartment, and agents obtained an NCIC report about him. [Def.
Exh. K; 10/30/17, 195:11-22] The black male was subsequently arrested and is a surge
defendant.4 [10/30/17, 195:22] Defendants point to the contrast between these two cases
as evidence that the ATF agents made decisions to pursue suspects differently based on
race. [Doc. 52]

4

In this instance, the person from whom the methamphetamine was actually purchased
was also arrested and is a defendant. [10/30/17, 34:24]
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b. Statistical Evidence
Defendant maintains that he has provided sufficient statistical support for his
contention that similarly-situated persons of a different race could have been investigated
but were not. [Doc. 29] “[A] defendant cannot satisfy the discriminatory effect prong by
providing statistical evidence which simply shows that the challenged government action
tends to affect one particular group. Rather, the proffered statistics must address the
critical issue of whether that particular group was treated differently than a similarlysituated group.” James, 257 F.3d at 1179. For statistics to be meaningful, they must
include “a reliable measure of the demographics of the relevant population, a means of
telling whether the data represent similarly situated individuals, and a point of
comparison to the actual incidence of crime among different racial or ethnic segments of
the population.” Marshall, 345 F.3d at 1168 (citations omitted). A comparison of the
percentage of black defendants arrested for a certain crime with the percentage of nonblack defendants arrested is significant only if non-black defendants commit that crime at
a proportional rate. In other words, the fact that the percentage of black defendants
facing crack possession charges is higher than the percentage of black people in
Albuquerque is significant only if it is true that all populations in Albuquerque possess
crack at rates proportionate to their population. For instance, in United States v. Venable,
the Fourth Circuit rejected the defendant’s evidence “showing that for the three years
preceding his prosecution—2005, 2006, and 2007—approximately 87 percent of the
firearms prosecutions under Project Exile were brought by Black defendants” because it
“contain[ed] no appropriate basis for comparison. It provide[d] no statistical evidence
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about the number of blacks who were actually committing firearms offenses or whether a
greater percentage of whites could have been prosecuted for such crimes” and did “not
even provide any evidence regarding the proportion of blacks residing within the relevant
geographical area.” 666 F.3d at 903.
Here, Defendants point to two statistics. First, the general population of black
people in Bernalillo County as of July 1, 2016 was 3.4%. See United States Census
Bureau,

QuickFacts,

available

at

https://www.census.gov/quickfacts/fact/table/bernalillocountynewmexico,US/PST045216
(last visited 02/02/2018). [Doc. 29, pg. 5] The Government does not contest this
assertion. [Doc. 32, pg. 12] Based on an assumption that the proportion of black
defendants caught in the surge should be the same as the proportion of black people in the
general population, Defendants argue that the fact that 27.2% of the defendants were
caught in the surge demonstrates discriminatory effect. [Doc. 29, pg. 5-6] However, the
Albuquerque operation did not target all of Bernalillo County, or even all of
Albuquerque. Rather, Agent Johnson testified that the ATF targeted “the southeast
quadrant” of Albuquerque, which he described as an area stretching from Eubank
Boulevard west to San Mateo Boulevard and from Interstate 40 south to Gibson
Boulevard. [10/30/17, 27:8-13] In addition, this simplistic analysis has been rejected by
several courts because there is no evidence for the assumption that all races commit this
crime at proportional rates. See, e.g., Mesa-Roche, 288 F. Supp. 2d at 1190 (stating that
“the courts have rejected a number of Equal Protection and Fourth Amendment
challenges based on assumptions that discrete racial or ethnic groups violate particular
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laws at the same rate as other groups” (citing Armstrong, 517 U.S. at 469 and James, 257
F.3d at 1179–80)).
Defendants also point to statistics from the United States Sentencing Commission
on the percentage of black defendants sentenced for drug trafficking and firearms crimes
in the District of New Mexico. [Doc. 29, pg. 5; Doc. 29-4 Exh. D] See United States
Sentencing

Bureau

Interactive

Sourcebook,

Primary

Offense

and

Offender

Characteristics/Race of Offenders in Each Primary Offense Category, available at
https://isb.ussc.gov/USSC?userid=USSC_Guest&password=USSC_Guest&toc-section=2
(last visited Feb. 2, 2018). That data shows that black defendants make up 5.4% of drug
trafficking defendants and 5.9% of firearms defendants,5 less than the 27.2% found here.
[Id.] Defendants argue based on these figures that the percentage of black defendants
arrested during the surge should be between 5 and 6 percent.

[Id.]

While this

comparison is more specific, it is still problematic for several reasons. First, the District
of New Mexico encompasses the entire state of New Mexico. These statistics do not
break down or indicate the percentage of black defendants from Albuquerque and more
importantly, the area targeted by the ATF.

In other words, the statistics cited by

Defendants do not indicate whether the persons represented are “similarly situated” to
those targeted by the ATF, which were people dealing in drugs or firearms who have
violent criminal histories. See Hare, 820 F.3d at 99 (rejecting similar statistics); Olvis, 97
F.3d at 745 (stating that where the defendants presented a study showing that of “all the
federal crack cocaine trafficking prosecutions in federal court since 1992 in which the
5

Based on data for 2006-2015.
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defendant's race was apparent, over 90% involved black defendants,” the study was
inadequate because it “provide[d] no statistical evidence on the number of blacks who
were actually committing crack cocaine offenses or whether a greater percentage of
whites could have been prosecuted for such crimes”); Blackwell v. Strain, 496 Fed. Appx.
836 (10th Cir. 2012) (rejecting similar statistics offered to show discriminatory intent).
4. Analysis
The Court will order the Government to disclose to Defendants at this time only
the NCIC reports requested in items 1 and 3 above. See United States v. Alexander, No.
11 CR 148-1, 2013 WL 6491476, at *5 (N.D. Ill. Dec. 10, 2013) (allowing “limited
discovery of the ATF’a policies and procedures regarding the selection criteria for targets
of phony stash-house robbery cases in place at the time of [the defendant’s] arrest”).
Those requests include 1) NCIC reports generated by ATF for each of the 104 surge
defendants, and 2) NCIC reports generated by ATF between March 1, 2016 and
September 30, 2016. As Defendants acknowledge [Doc. 45], their showing is insufficient
to meet the Alcaraz-Arellano standard. However, Defendants maintain that “to ensure a
precisely-crafted similarly situated comparison group the defense needs reliable and
complete information which currently lies in the hands of the United States.” [Doc. 45]
They further argue that, with the information known to the ATF at the time of the
decision to arrest, a statistician “will be able to run a regression analysis between the
defendant class and the [similarly situated comparison group], which can isolate the
independent variable (i.e., race, age, sex, criminal history) having the greatest effect on
the dependent variable (i.e., the likelihood of being charged in the ATF Surge cases).”
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[Doc. 45] They argue that the results of analysis of the NCIC reports will go to both
discriminatory intent and discriminatory effect. [Id.] See Alcaraz-Arellano, 441 F.3d at
1265 (stating that “[i]n some circumstances, ‘[s]tatistics showing racial or ethnic
imbalance are probative ... because such imbalance is often a telltale sign of purposeful
discrimination.’ ” (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 n.
20 (1977)).
The Court agrees that Defendants’ burden to demonstrate disparate treatment in
the face of ATF’s criteria for arrest is essentially insurmountable without access to the
information ATF had when it made those decisions. As the Hare Court observed,
[e]ven if a defendant could, for example, use state or federal prosecutions to
identify white individuals involved in drug offenses or armed robberies,
without discovery into what ATF knew about these individuals, the
defendant would be hard pressed to demonstrate that there were no
distinguishing factors that would justify different enforcement treatment.
Hare, 820 F.3d at 101.
In its objection to release of the NCIC reports, the Government acknowledged that
“[t]he ATF agent [in a related case] testified that decisions to charge or not
charge defendant were made based on criminal history, when it was
available. Thus, if ATF were intending to discriminate against a particular
group of people based on race, they would have arrested individuals of that
race who had less criminal history than the criminal history of those
defendants whom were not being discriminated against based on race. In
other words, ATF would have lowered the arrest threshold for black
defendants.”
[Doc. 47; see U.S. v. Casanova, No. CR 16-2917 JAP, Transcript (taken April 5, 2017),
Doc. 51, 78:2-5 (stating that criminal history was key to identifying the “worst of the
worst,” which were the ATF’s targets)]

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At the hearing in this matter, Agent Johnson testified that the Albuquerque surge
was a “120-day detail where myself and other undercover agents and case agents, along
with confidential informants, came into Albuquerque, New Mexico, to help ATF and
other law enforcement combat violent crime in the area.” [10/30/17, 23:1-5] He also
testified that the ATF made decisions to pursue a given target based on a number of
factors, including criminal history. He stated,
There was not an official decision-making process. We’d look at the
information that the [confidential informants] would provide. What is this
particular individual involved in? Is it firearms? Is it narcotics? We’d
look at criminal history; outside factors; talk to local police officers that we
worked with as a part of the operation. So there wasn’t a hard set, okay,
this is the criteria, you’ve got to check these boxes. It was all on a case-bycase basis, depending on the information we received.
[10/30/17, 29:2-15] Review of the NCIC reports relied on by the ATF in making arrest
decisions may allow Defendants to identify whether those not arrested had distinguishing
characteristics other than race.
Moreover, the Government’s objections to disclosure of the NCIC reports to
Defendants boil down to the threat of a breach of privacy and the burden of disclosure.
Yet the Government acknowledges that they disclosed to Defendants the Pretrial Services
Reports and argues that they contain “contain the known criminal history for the [s]urge
defendants of all races.” [Doc. 47, pg. 5] Hence, any privacy issues related to disclosure
of the criminal history information in those reports is moot. Privacy concerns related to
the other NCIC reports can be addressed through a confidentiality agreement.

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Finally, the Court notes that the NCIC reports requested have been ordered to be
disclosed to a surge defendant in another case. See U.S. v. Casanova, No. CR 16-2917
JAP, Doc. 83 (filed 12/13/17).
If, after receipt of the NCIC reports, Defendants can make a showing of
discriminatory intent and discriminatory effect that meets the Alcaraz-Arellano standard,
the Court will consider a renewed motion regarding the remainder of their discovery
requests.
III.

Conclusion
FOR THE FOREGOING REASONS, the Court GRANTS in PART

Defendants’ Motion to Compel Discovery pertaining to Claim of Selective Enforcement.
[Doc. 2362:29; Doc. 2363:28]
FURTHERMORE, the parties are ordered to confer regarding the necessity of a
confidentiality agreement and, if such an agreement is necessary, to submit a proposed
agreement to the Court.
FINALLY, the Court and the parties are aware of the requests by members of the
press for access to the exhibits admitted at the various hearings in this matter. The Court
understands the parties to agree to the release of exhibits, not previously released, upon
this Court’s ruling on this pending motion. The parties are directed to meet and confer
regarding which, if any , as yet unreleased exhibits should be redacted prior to release.
Once redacted, the exhibits shall be released. Further concerns relating to this matter
should be directed to the Court.

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SO ORDERED this 7th day of February, 2018.

M. CHRISTINA ARMIJO
Chief United States District Judge

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