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9TH CIRCUIT EASES DISCOVERY BURDEN IN STASH HOUSE STINGS

We have written plenty about “stash-house stings” – here, here, here, here and here, for example – those reverse stings run by ATF in which an undercover agent poses as a disgruntled drug courier who is looking for help robbing a place his boss runs where drugs and money are stashed. The agent describes the stash house to people targeted for the operation, usually ex-cons fingered by confidential informants. When the targets are fully recruited and prepped for the robbery, the ATF swoops in and arrests them all.

For several years, defendants in different judicial circuits have argued that stash-house reverse stings almost always target black and Hispanic defendants. In the latest case, Daryle Sellers, who is black, challenged  the ATF’s selective enforcement practices when he was charged in a stash-house sting. The district court denied him the right to use discovery in his case to show racial and ethnic bias on the part of ATF, holding that under the rigorous discovery standard set forth for selective prosecution claims in the Supreme Court’s United States v. Armstrong decision, Daryle had to show that ATF had failed to prosecute others who were similarly situated to him before he could even engage in discovery to try to prove his claim. It seems to be something like a dog chasing his own tail.

Last week, the 9th Circuit reversed, agreeing with Daryle that Armstrong does not apply to requests for discovery on a selective enforcement claim in a stash house reverse-string operation case. The panel held that contrary to Armstrong’s requirements for selective prosecution claims, a defendant need not proffer evidence that similarly-situated defendants of a different race were not investigated or arrested in order to obtain discovery on a selective enforcement claim like Daryle’s. A defendant must have more than mere speculation to be entitled to discovery, the Circuit said, and a district court should use discretion to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.

Daryle’s case was remanded so that the district court could assess his discovery demand under the relaxed standard.

United States v. Sellers, Case No. 16-50061 (9th Cir. Oct. 15, 2018)

– Thomas L. Root