United States District Court, E.D. Pennsylvania
For CLIFTON MCLEAN, A/K/A " LITTLE CLIF", Defendant: JOSE LUIS ONGAY, LEAD ATTORNEY, PLYMOUTH MEETING, PA.
For LEROY WINSTON, Defendant: LUIS A. ORTIZ, LEAD ATTORNEY, PHILADELPHIA, PA.
For USA, Plaintiff: JEANINE M. LINEHAN, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.
Gerald Austin McHugh, United States District Judge.
The case before me arises out of a string of highly successful but increasingly controversial undercover sting operations utilized by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). These operations involve the recruitment of individuals to participate in the robbery of a fictional crack cocaine " stash house" with a handsome prospective pay-off of cash and drugs. The stings began in Miami during the 1990s--a period where frequent instances of real stash house robberies were creating a threat to the public, and law-abiding households were, on occasion, mistakenly raided by warring drug dealers. Since perfecting its tactics in Florida, the ATF has employed similar sting operations nationwide, even in communities where such criminal activity did not present the same immediate threat to public safety, in furtherance of the ATF mission of reducing gun violence.
The success of these sting operations has led to their increased usage, as well as lengthy sentences against a subset of defendants who, as set forth below, overwhelmingly represent poor minorities. That, in turn, has led to increased scrutiny and challenges to the validity of the stings under principles of substantive due process embodied in the Fourteenth Amendment. The ultimate question is whether these sting operations neutralize genuinely criminal " desperados," or mostly ensnare the economically desperate. Although I share the growing concern of many federal judges about the disproportionate impact of the ATF sting operations on minority defendants, under the stringent standard that governs constitutional attacks on prosecutorial discretion, I must deny Defendant McLean's Motion to Dismiss the Indictment.
II. Background of the Controversy
The first element of the controversy surrounding the ATF program stems from the fact that the structure of the sting has profound implications under the Federal Sentencing Guidelines for any defendant who succumbs to temptation. Typically, the amount of hypothetical cocaine to be stolen is posited to exist in a quantity that triggers a mandatory minimum sentence of 10 years, and the need to use firearms to accomplish the heist triggers a separate mandatory minimum of another five years. As observed by the Ninth Circuit:
In fictional stash house operations like the one at issue here, the government has virtually unfettered ability to inflate the amount of drugs supposedly in the house and thereby obtain a greater sentence for the defendant. In fact, not only is the government free to set the amount of drugs in a fictional stash house at an arbitrarily high level, it can also minimize the obstacles that a defendant must overcome to obtain the drugs. See, e.g., United States v. Williams, 547 F.3d 1187, 1193 (9th Cir. 2008) (" [The ATF Agent] said that in a few days, the stash house would contain one hundred kilograms of cocaine and between fifty and sixty thousand dollars in currency, guarded only by the two women who count the money and a single guard with a sawed off shotgun." ). The ease with which the government can manipulate these factors makes us wary of such operations in general, and inclined to take a hard look to ensure that the proposed stash-house robbery was within the scope of [the defendant's] ambition and means.
"> United States v. Briggs, 623 F.3d 724, 729-30 (9th Cir. 2010); see also United States v. Yuman--Hernandez, 712 F.3d 471, 474 (9th Cir. 2013); United States v. Caban, 173 F.3d 89, 93 (2d Cir. 1999); Eda Katharine Tinto, Undercover Policing, Overstated Culpability, 34 Cardozo L.Rev. 1401 (2013).
A second element of the controversy surrounding the ATF sting operation is a concern that it disproportionately results in the conviction of minority defendants. Concern over the potential for selective prosecution is not new. It was the subject of a decision from the United States Supreme Court in United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), where the Court held, in an 8-to-1 decision, that prosecutors have broad discretion in determining what crimes to investigate and prosecute, so long as the government does not deliberately target one ethnic or minority group while ignoring similar criminal conduct on the part of another. Armstrong also severely limited the right of a criminal defendant to conduct discovery into the basis for a prosecution, reinforcing what some commentators have called an insurmountable barrier to prevailing on a selective prosecution claim.
Recently, a concern over racial disparity has led a number of district courts to order discovery into the basis on which the ATF and federal prosecutors identify suspects for investigation. See, e.g., United States v. Alexander, No. 11-cr-148-1, 2013 WL 6491476, at *6 (N.D. Ill.Dec. 10, 2013); United States v. Paxton, No. 13-cr-103, 2014 WL 1648746, at *6 (N.D.Ill. Apr. 17, 2014); United States v. Cousins, No. 12-cr-865-1, 2014 WL 5023485, at *6 (N.D.Ill. Oct. 7, 2014); United States v. Brown, No. 12-cr-632, Doc. No. 153 (N.D.Ill. July 31, 2013); United States v. Hare, No. 13-cr-650, 2014 WL 1573545 (D. Md. Apr. 17, 2014); United States v. Williams, No. 12-cr-632, Doc. No. 70 (N.D.Ill. July 21, 2013); United States v. Davis, No. 13-cr-63, Doc. No. 124 (N.D.Ill. Oct. 30, 2013). These decisions are noteworthy because they reflect clear discomfort on the part of some trial judges in following the rigid dictates of Armstrong. To use an ecclesiastical analogy, at least some local pastors are showing reluctance to follow a Vatican edict.
Within the Eastern District of Pennsylvania, the issue is placed in stark relief by United States v. Whitfield, 29 F.Supp.3d 503, 2014 WL 2921439 (E.D. Pa. June 27, 2014). There, counsel for another African-American defendant indicted in a phony stash house sting gathered statistics demonstrating that, within the past five years, all 24 defendants prosecuted in such cases within the district have been African-American. Id. at *7. Nationally, a news outlet conducted a statistical investigation into the use of stash house sting operations, and concluded that approximately 90 percent of the defendants were racial or ethnic minorities. A combination of these concerns
recently led a district court in California to dismiss an indictment in United States v. Hudson, 3 F.Supp.3d 772 (C.D. Cal. 2014), and the Defendant here relies heavily on that decision. However, while this motion was pending, the Ninth Circuit Court of Appeals reversed Hudson in United States v. Dunlap, Nos. 14-50129, 14-50285, 593 F.App'x 619, 2014 WL 6807733 (9th Cir. Dec. 4, 2014). The appeals court questioned the wisdom behind the government's pursuit of fictional stash house robberies, but nonetheless affirmed the constitutionality of such tactics under controlling precedent. This is the background out of which the motion before me arises.
III. Procedural Posture of this Case
Following arrest and indictment, Defendant McLean initially made a motion for discovery under Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure, seeking information that would support a claim of racial profiling and selective prosecution. While that motion was pending, two members of this court denied discovery under similar circumstances. United States v.Whitfield, 2014 WL 2921439, and United States v. Washington, No. 13-171, 2014 WL 2959493 (E.D. Pa. June 30, 2014). Faced with these decisions, and recognizing the extraordinarily high bar set by the Supreme Court in Armstrong, defense counsel here withdrew his motion for discovery regarding selective prosecution. He amended his request to seek instead discovery in support of a substantive due process challenge, contending that the ATF sting operation resulting in Mr. McLean's arrest constituted outrageous government conduct.
The government objected, but represented that if a motion to dismiss the indictment were filed, it would produce witnesses whose testimony would establish that the sting operation was a legitimate exercise of law enforcement power, and that Defendant was targeted only because of his prior history and because the government had reliable information that he was inclined to commit the offense in question.
I denied the Motion for Discovery by an Order entered on July 25, 2014, and scheduled a hearing to address the evidentiary issues raised by Defendant's Motion to Dismiss. At that hearing, held on September 29, 2014, two representatives of the government testified: the case agent, and an undercover agent who interacted directly with Defendant and his accomplice. Although the sting in question began with a confidential informant, he did not testify. Rather, both ATF agents summarized in detail the information the informant provided at various stages of the operation. (Of some note, the government also represented that during the pendency of the case, surveillance video from the operation was leaked and posted on the Internet, identifying the confidential informant as a " snitch," after which an unknown third party attempted to shoot him in a West Philadelphia bar.)
In practical terms, in lieu of facing the dauntingly high standard for a claim of selective prosecution under Armstrong, Defendant now pursues an equally difficult challenge, attacking the substantive validity of the government's investigative techniques as a matter of substantive due process.
IV. Background of the Investigation
The undercover operation in question involved an effective confidential informant with a criminal record whom the ATF has worked with on a number of occasions. According to the government's account, that informant had served time in prison with Defendant McLean, and the encounter that initiated this operation occurred by chance. The initial spontaneous meeting between the confidential informant (CI) and McLean was not recorded, so the account of all events preceding the first recorded meeting is based entirely on what the government has proffered. Specifically, in June 2013, Special Agent Sarah O'Reilly was provided with information from a CI which led to the investigation of McLean. Def. Ex. B, ¶ 3. The CI reported that McLean had approached the CI at an intersection around 63rd Street in Philadelphia, as the CI was exiting his car. Id. at ¶ 5. McLean purportedly said that he was " trying to get into something" and asked the CI if he had anything " we can take." Id. The CI asked McLean " What was he into?" to which McLean responded " Whatever." Id. McLean also claimed to have a " team ready." Id. When the CI reported the incident, he interpreted McLean's statements to mean that he was interested in committing a robbery and was specifically referring to narcotics. Id.
When a confidential informant identifies a potential target for investigation, the ATF studies the criminal history of the subject, to determine whether it is likely that he would engage in a stash house robbery. In particular, the government is interested in knowing whether the target has a history of drug trafficking, and would have the means and the knowledge to sell cocaine stolen from a stash house. (Hearing of September 29, 2014, testimony of Special Agent Patrick Edwards, P. 69). The government is also interested in crimes of violence, specifically robbery, and a history of firearms possessions. (Id, P. 70). In Mr. McLean's case, there were four previous convictions for drug trafficking, and two instances in which he was charged with crimes of violence. In the one case, where robbery was charged, Mr. McLean was found not guilty. The other case, a charge of aggravated assault and attempted murder, involving the carrying of a firearm without a license, was dismissed. Although McLean was not found guilty of any previous violent offense, a history of arrests is taken into consideration on the assumption that an acquittal or dismissal does not necessarily mean that the person of interest was not involved in the violent behavior charged. (Id, P. 107)
The first recorded meeting between the CI and McLean occurred on June 19, 2013, and from that point on, all contact with McLean was recorded. On that date, the CI called McLean to request that they meet. Def. Ex. C. The CI informed McLean at the meeting that he had a connection who would explain how the robbery was to be carried out, and the CI asked McLean if he had a team ready. Def. Ex. D. McLean said he had two people, and talked about his drug dealing in other locations. Id. The CI then asked if McLean had " hammers" --slang for guns--to which McLean responded " I got a mac and a pound," and said his man had a " burner." Id.
The CI called McLean again on June 21, 2013, to give him his new phone number. Def. Ex. E. McLean then called the CI on June 28, 2013, to ask what was going on with the plan. Def. Ex. F. On July 22, 2013, McLean texted the CI asking " was sup" and requesting the CI call him. Def. Ex. B, ¶ 8. When the CI called, McLean told the CI he was " starving," and expressed his continued enthusiasm. Def. Ex. G. The CI called McLean again on
July 31, 2013, to inform him that the CI's connection would be in town the next day. Def. Ex. H.
The first meeting between McLean and the undercover agent (UC) took place on August 1, 2013. The UC was posing as the CI's connection who would come down from New York to pick up drugs and transport them back. Upon meeting McLean, the UC explained how he normally picked up the drugs from the stash house. Def. Ex. J. He goes on to mention that there are normally two men with guns in the house and potentially a third that he has not seen in some time. Id. Though McLean offered some input into how they could possibly execute the robbery during this conversation, the UC set most of the ground work, the details of which strongly suggested the need for guns and multiple team members. Id. The UC told McLean that he would have the location and time of the robbery a day or two beforehand, and that he would be in touch. Id.
On August 8, 2013, the CI again reached out to McLean to set up a meeting with the UC. Def. Ex. K. At the meeting, the UC told McLean that there would likely be a third armed man in the stash house. Def. Ex. L. McLean then discussed the details of the robbery with the UC. Id. In a phone call later that day, the CI told McLean that the UC was having doubts about McLean, and was thinking about finding someone else. Def. Ex. K. McLean reaffirmed his commitment in response. Id.
The CI called McLean on August 9, 2013, to arrange another meeting between McLean and the UC. Def. Ex. M. McLean told the CI that he would bring the other member of his team to the meeting to reassure the UC. Id. Later that day, McLean, the UC, the CI, and Leroy Winston, a co-defendant, met to discuss the robbery. Def. Ex. N. The UC rehashed the details of his planned pickup, explaining in more depth what the setup of the stash house would be. Id. The UC also made clear that the men in the house would be armed and would shoot if need be. Id. The UC ...