Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation"

In this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic (FCJC), sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided it into three posts to cover all she has to report.  The first post covered "Sentencing Victories," the second covered "Legal Victories" and this final one set out "A Path for Future Litigation":

A Path for Future Litigation

The new legal standards forged by these three courts of appeals [discussed in this prior post] make it markedly easier for criminal defendants to obtain discovery in support of racially selective law enforcement claims, which in turn makes it possible for defendants to win motions to dismiss on the merits.

The lower discovery standard also supports a lower merits standard for motions to dismiss for racially selective law enforcement than the standard set in Armstrong.  Under Armstrong, a defendant must provide “clear evidence” of discriminatory effect and discriminatory intent to prevail on a selective prosecution claim on the merits.  Armstrong, 517 U.S. at 465.  As Sellers notes, the Supreme Court explicitly rested that merits standard on “the presumption that prosecutors ‘properly discharged their official duties.’” Sellers, 2018 WL 4956959 at *6 (quoting Armstrong, 517 U.S. at 464).  Courts have made clear that such a presumption simply does not apply in the selective law enforcement context.  See, e.g., Davis, 793 F.3d at 721; Washington, 869 F.3d at 220–21; Sellers, 2018 WL 4956959 at *6.  Accordingly, there is no basis for applying the “clear evidence” standard to a motion to dismiss for selective law enforcement.  Instead, courts should apply the ordinary preponderance of the evidence standard.

In our Motions to Dismiss, the FCJC asked the district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.  See, e.g., Defendants’ Amended Reply in Support of Motion to Dismiss for Racially Selective Law Enforcement at 2­–4, United States v. Brown, 12-CR-632 (N.D. Ill. Nov. 6, 2017) (Dkt. No. 630).  Although the only judge to issue a merits ruling rejected our proposed lower standard, see Brown, 299 F. Supp. 3d at 995–97, Sellers supports the FCJC’s position that the standard for obtaining dismissal based on a selective enforcement claim must be less onerous than the merits standard for a selective prosecution claim.

Lawyers in other jurisdictions can use the litigation and precedents discussed above and in Parts 1 and 2 of this guest post series to fight race discrimination by law enforcement in their own cases.  Here are a few ideas:

• Hire experts and gather data about racial disparities created by law enforcement in fake stash house robbery cases, gun cases, and others.
• Litigate motions to obtain discovery regarding selective law enforcement in stash house cases and others, and ask district court judges to apply the lower evidentiary standard set by the Seventh, Third, and Ninth Circuits.
  • Appeal denials of selective enforcement discovery motions and advocate for other courts of appeals to adopt the lower discovery standard.
• Litigate motions to dismiss for selective law enforcement in stash house cases and others, and ask district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.
  • Appeal denials of such motions to dismiss and advocate for other courts of appeals to adopt a preponderance of the evidence standard on the merits.
• Use the plea agreements in the Chicago cases to advocate to U.S. Attorney’s Offices to dismiss mandatory minimum charges in fake stash house robbery cases.
• Use the example of the Chicago U.S. Attorney’s Office to convince other USAOs to cease bringing fake stash house robbery cases altogether.
• Use the time served sentences imposed in the Chicago cases to advocate for lower sentences in stash house cases elsewhere. Sentencing memoranda prepared by the Federal Criminal Justice Clinic in several of the Chicago cases can be found at these links:
• • U.S. v. Alexander, 11-CR-148—Sentencing Memorandum (redacted):  Mr. Alexander was originally facing a 25-year mandatory minimum and sentencing as a career offender. He was released on bond in 2016. In 2018, he was sentenced to 68 months’ time served.
  • U.S. v. Cousins, 12-CR-865—Memorandum Opposing Leadership Role Enhancement:  Mr. Cousins was originally facing a 25-year mandatory minimum. He was released on bond in 2015. In 2018, the judge declined to impose a leadership role enhancement and sentenced him to 28 months’ time served.
  • U.S. v. Mayfield, 15-CR-497—Sentencing Memorandum:  (Mr. Mayfield was originally convicted at trial and sentenced to 26 years in prison. The verdict was reversed on appeal. In 2018, he was sentenced to 114 months’ time served.)

Prior related posts:

• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

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