5 F.4th 781
7th Cir.2021Background
- Conley was recruited by accomplices to join a fake ‘stash house’ robbery set up by an undercover ATF agent; there were no real drugs. He volunteered for an armed role and was arrested in the van en route to the fake stash house.
- A jury convicted Conley of conspiracy/attempt to possess with intent to distribute (fictitious quantity), § 924(c) gun offense, and being a felon in possession; the sentence included a 10‑year mandatory minimum based on the invented drug amount.
- On direct appeal this court affirmed convictions and held entrapment inapplicable because Conley was recruited by co‑conspirators, not agents. United States v. Conley, 875 F.3d 391 (7th Cir. 2017).
- In a § 2255 motion Conley raised two new claims: (1) racially selective enforcement—ATF targeted him (or the initial target) because he is Black; (2) ‘outrageous government conduct’—the sting violated due process.
- The district court denied relief but granted a certificate of appealability on both issues; the opinion relied heavily on the statistical Fagan Report (analyzed in United States v. Brown) and on prior circuit precedent rejecting an outrageous‑conduct defense.
- This court held that: (a) selective‑enforcement claims require proof by a preponderance (not clear and convincing), but Conley failed even that standard given limits in the Fagan Report and his status as a recruit of co‑conspirators and of an FBI‑initiated matter; (b) this circuit does not recognize an outrageous‑government‑conduct defense, and even assuming it did, the ATF’s conduct here did not meet other circuits’ high threshold. The district court’s denial of § 2255 relief was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Evidentiary standard for selective‑enforcement claims | Armstrong's clear‑evidence rule should not apply; preponderance is enough | Armstrong and McCleskey require heightened clear‑and‑convincing proof | Preponderance governs selective‑enforcement; Armstrong's rationale is limited to prosecutors |
| Whether ATF racially targeted Conley (selective enforcement) | ATF’s stash‑house program was racially selective (relying on Fagan Report) and targeted Flowers to recruit Black co‑conspirators, including Conley | Fagan Report’s assumptions don’t fit Conley: many defendants were recruited by co‑conspirators; this sting was FBI‑initiated; statistics can’t isolate race here | Conley failed to prove purposeful discrimination by a preponderance; claim dismissed |
| Availability of an outrageous‑government‑conduct due process defense | Fake stash house stings are police‑created traps so extreme they violate due process | This circuit has repeatedly rejected the doctrine; even if recognized, conduct here falls short of other circuits' narrow precedents | Circuit does not recognize the defense; even on the merits, the conduct was not outrageous enough; claim fails |
| Procedural default of outrageous‑conduct claim | Failure to raise on direct appeal excused because factual/analytical bases (e.g., Fagan Report) arose later or counsel chose strategy | Claim was available and should have been preserved; strategic appellate choices do not excuse default | Claim was procedurally defaulted; excuse theories rejected (no cause shown) |
Key Cases Cited
- United States v. Conley, 875 F.3d 391 (7th Cir. 2017) (direct appeal affirming convictions and rejecting entrapment)
- United States v. Brown, 299 F. Supp. 3d 976 (N.D. Ill. 2018) (district court’s detailed analysis of Fagan Report and denial of selective‑enforcement claims)
- United States v. Davis, 793 F.3d 712 (7th Cir. en banc 2015) (distinguishing Armstrong for discovery against law‑enforcement agencies in stash‑house cases)
- United States v. Armstrong, 517 U.S. 456 (1996) (clear‑evidence rule for selective‑prosecution claims grounded in deference to prosecutorial discretion)
- McCleskey v. Kemp, 481 U.S. 279 (1987) (statistical proof of racial discrimination requires especially clear showing when other legitimate explanations exist)
- United States v. Russell, 411 U.S. 423 (1973) (Supreme Court’s observation that some law enforcement conduct might someday be so outrageous as to bar prosecution)
- United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) (example of reversal where government largely created and controlled the criminal enterprise)
- United States v. Smith, 792 F.3d 760 (7th Cir. 2015) (upholding ATF sting where defendant was ready and willing and government merely provided opportunity)
- Imbler v. Pachtman, 424 U.S. 409 (1976) (rationale for absolute prosecutorial immunity discussed in distinguishing police v. prosecutor roles)
- Yick Wo v. Hopkins, 118 U.S. 356 (1886) (early selective‑enforcement/provision of equal protection relief against discriminatory enforcement)