*1 murdеr,” degree of first the crime ,.. having include the
“would defendant kill,” App. specifíc.intent
shared the proceeded guilty jury return charge. Nor our conclu
verdict on by the the trial court
sion altered fact that charge or the con
gave progression also
spiracy charge back referred
first-degree murder instruction because received its instructions toto jury beginning deliberations,
before and we jury instruc followed those
presume
tions, as to including specific intent it required find to convict Mathias as co-conspirator. Angelone, See v. Weeks 225, 234, 727, 145 120 S.Ct. (2000).
L.Ed.2d Conclusion
IV. reasons, will foregoing
For the re- District granting
verse the Court’s order deny corpus
Mathias a writ habeas application for a certificate
Mathias’s
appealability.
UNITED of America STATES WASHINGTON,
Askia Ski a/k/a Washington, Appellant
Askia
No. 16-2795 of Appeals, States Court
Third Circuit.
Argued on February
Opinion August Filed: *3 Greenberg, Esq. [Argued], S.
Mark Drive, Bell, Blue Lenmar PA Coun- for Appellant sel Henson, Esq. [Argued], B. Berna- Eric. McKeon, Esq., Zane dette David Meme- ger, Esq., Office United States Attor- Street, ney, Chestnut Suite PA Philadelphia, .Counsel for the *4 Appellee MCKEE, COWEN, Before: and FUENTES, Judges Circuit THE OPINION OF COURT FUENTES, Judge. Circuit Washington Asida Defendant-appellant by a “stash house reverse was ensnared sting” operation many which hit —one by-now-familiar Acting beats.1 on what from a appeared be insider information courier, Washington and his three co- Philadelphia conspirators planned rob they thought kilograms property where cqcaine being stored for were distribu- they day on tion. But as discovered robbery, house” a trap “stash by set enforcement. Then “courier” law agent undercover federal Alcohol, Tobacco, Firearms and Bureau (“ATF”), Explosives developed which had ground up. co- the scenario The caine did not exist. on conspiracy
Under federal
law
did,
could,
attempt,
fantasy
if
prosecute the crew as
had been
Washington,
reality.
the sole member
trial,
by
take his chances
was convicted
jury
robbery charges
Hobbs Act
two
-
denied,
-,
Pedrin,
136 S.Ct.
1. See
States
rt.
792
ce
,
(2016).
(explaining the basic
Developed by ATF in 1980s professional' robbery combat remaining rise claim challenges the Dis houses, targeting sting trict deny crews stash reverse Court’s decision to Washington operations grown increasingly pretrial have discovery operations contro- ATF’s years,' versial over the as they even enforcement statistics. con one, grown that, safer and more refined. For in denying motion, tends the Dis they empower law trict erroneously enforcement Court craft relied the hard- cloth, offenses out of whole to-meet prosecution” often test corre- “selective sponding statutory discovery developed offense Supreme thresholds. Court Here, the Armstrong2 entirely kilograms fictitious United States v. and Unit (which v. Bass3 triggered very cocaine real ed States 20-yеar man- we will refer to datory Washington, minimum for as “Armstrong/Bass”). He encourages contrib- us uting a total months sentence follow instead the en banc Seventh Cir prison ringleader more than opinion even the cuit’s recent in United States v. —far another, For conspiracy received. Davis4 distinguished between *5 Washington and on multiple prosecution claimed claims of selective and selec occasions before the District tive Court—and law appeared and to en enforcement again appeal people color a' discovery now of are dorse relaxed standard for the — swept allegedly stings in in up dispro- the latter.
portionate numbers. Circuit, Like the Seventh we conclude elements of controversy proposed
These
are
that the
distinction between en-
up in
bound
the
Washington
prosecution
taken,
three claims
forcement and
is well
appeal.
now raises on
are
Two
constitution-
and that the
supports greater
law
flexibili-
al
Washington challenges
ty
his
claims:
con-
when
discretionary
the
decisions of law
by
enforcement,
viction
arguing
and
prosecu-
sentence
the
rather than those of
statutory
tors,
use of
targeted
the
‘minimum
by
request
a defendant’s
term
rights
process,
violated
for discovery.
his
due
therefore
We
hold that a
alleges
he also
attorney
and
that the
who
district court
exercise its discretion to
may
represented him at
grant
trial rendered constitu-
discovery, or
limited
otherwise
tionally ineffective
analysis
assistance. While stash-
conduct in camera
of
stings
deciding
house reverse
can
data
raise constitution-
before
whether limited dis-
concerns,
al
the
of mandatory
covery
use
a
mini-
may
A
is warranted.
district court
mum sentence on
facts
particular
seeking
did do so even if
these
discov-
defendant
not deprive Washington of
right
ery
due
on a selective enforcement claim has
process.
And while this
the
case
met his or
otherwise
her full burden
rare
assistance,
where a claim
Armstrong/Bass.
ineffective
under
Because
Dis-
properly
ap-
thought
counsel was
raised on direct
trict Court in
this case
its.
peal
through
attack,
instead of
by
a collateral
discretion
cabined
Arm-
1480,
2015) (en banc).
2. 517 U.S.
S.Ct.
L.Ed.2d
4.
strong/Bass, and cannot again, they joined by result Cl met were say that the same would have wise drug reality, standard we announce courier—in supposed occurred under under- denying today, we will vacate orders Special Agent ATF Ed- cover Patrick post- discovery remand wards, and limited robbery over a veteran of dozen proceedings. judgment The judgment courier, In his role as the Ed- scenarios. sentence are otherwise conviction and seeing kilograms over 10 reported wards unaffected this remand. (in of cocaine the context of cocaine “bricks”) during trip a cooler inside Background I. Berry house. that he stash indicated A. Plan5 might of crew be in knew a who interested robbery participating that he ringleader Dwight and and Codefendant engage in if willing in was violence neces- Berry came attention the ATF sary. when he made known that he late conducting robberies of interested Washington picture first entered the the- course of users dealers. a half after this encoun- about week and around, asking Berry spoke to an acquain- Berry’s ter as one two members who, him, tance unbeknownst was an (the man, robbery proposed crew other (“Cl”). ATF informant confidential The Cl identified, apparently dropped never out ATF, alerted the determined afterwards). plan shortly At another Berry’s history fit required criminal its meeting early Berry, March 2013 with profile sting operation opened for a Cl, Edwards, probed investigation February under logistics Edwards about rob- supervision Special Agent of ATF John bery: they what level resistance could out, Bowman. From many here expect, whether house would meetings phone calls about the devel- *6 outside, from so and on. watched oping surreptitious- robbery plan would Edwards, conspirators Prompted by ly playback at recorded trial. to move sell the also discussed how and Meanwhile, on kept Berry the Cl cocaine,6 stolen
line drug- with word a connection: a discussion, subsequent phone frequented friend a a Ed- courier who South Philadelphia trips Berry house on his pressed professional- stash wards description underlying “jawns’’ “jauns,” quent 5. Our of the a dis trial and reference to primarily scheme is Philadelphia regionalism drawn the District that serves tinctive denying opinion Washington's Court’s motion as a for other nouns. See wildcard stand-in trial, Washington for a new States United v. Nosowitz, Enduring Mystery Dan Of Trial”], “Washington [hereinafter New 184 Noun, 'Jawn', Philadelphia's All-Purpose Atlas (E.D. 2016). F.Supp.3d Washington Pa. Obscura, http://www.atlasobscura.com/ accepts accuracy the factual of the District articles/the-enduring-mystery-of-jawn- n,4, Washington opinion, see Court’s Br. at 7 (last philadelphias-allpurpose-noun visited parties both and have structured their briefs 2017; Aug. https://perma.cc/6 at archived it, Washington challenging As around is not Gibbs, XM6-JQEW); see also States v. evidence, sufficiency of the we strive to ("Appar 190 F.3d 200 n.4 manner, recite the facts in a balanced See. noun, ently, jawn' any slang and Cox, United States n.1 variously throughout this case it was used (1st car, cocaine, nightclub, and a describe a beeper.”). captured recording, As and later trial, explained conspirators at fre made Berry, attempt crew. in an History ism his B. Procedural reassure, told is what “[t]his Edwards summary What follows is an abbreviated singled When Edwards [our crew] do[es].”7 proceedings, setting up the criminal Washington per- for concern out over Washington claims ap- raises on now robbery experience, Berry lack of ceived peal. greater will return in We detail Washington said that out” and “rock[ed] later, parts Analysis the salient in the sec- in,” “put interpreted work which Edwards tion opinion. of this some sort of mean shooter or enforcer.8 Indictment; Codefendants Guilty Plead day robbery, Washington
On the house, In April men Berry Berry’s met four were indict- and mother’s ed in Pennsylvania. the Eastern District of Berry picked guns up where two and hid charged 2 of the Eggo group, in an box. The Counts and them Waffles indictment attempt/conspiracy to commit Hobbs Act had two new added members —code- (18 § robbery 1951(a)), U.S.C. while counts Antonio John- fendants Ellis and Jermau 4 charged pos- and gathered attempt/conspiracy parking ston—then lot sess kilo- with intent distribute five Philadelphia Airport Hilton review (21 grams § or more of cocaine U.S.C. plan. (Washington’s girlfriend its was also (b)(1)(A)). § through 841(a)(1), although participate she U.S.C. present, did car.) charged Count all parked in her defendants and remained Edwards carrying during more, a firearm a crime vio- over the salient details once went (18 924(c)) § lence and count emphasizing kilograms the 10 U.S.C. cocaine charged being all but Johnston with felons explaining that no money would be (18 possession U.S.C. firearm in the found house. § 922(g)(1)).9 Ellis, In three John- Berry, cars— eventually Washington’s codefendants minivan; Washington ston in a and his guilty. pleaded Johnson and received Ellis (the girlfriend driving) following latter be- sentences, respec- 27-month 46-month 300; Chrysler in a Agent hind Ed- ringleader, tively. Although Berry, bringing up wards the rear —the crew range of 270-322 faced Guidelines way its to the chosen made address months, binding plea agreement re- Passyunk Avenue in Philadel- southwest sentence,10 flected a and the 180-month in, phia. agents As the caravan moved *7 government formally intro- did not seek to surrendered; All swooped Berry but down. eligible his convictions to previous, duce Berry on apprehended fled foot but was mandatory minimum secure an enhanced minivan, shortly From afterwards. the law ultimately penalty. Berry received the ammo, guns, enforcement recovered two agreed-upon 180-month custodial sentence. gloves, zip-ties. Washington’s From codefendants, they Washington Chrysler backpack, recovered a Unlike his mask, lighter, pleaded for gloves, lighter guilty prepared a trial. fluid. (S.A,) Supplemental Appendix Washington amplified as a defendant and allegations. few of the factual 8. S.A. 60-61. agreements P. 10.Plea R. Crim. under Fed. supersed- The later obtained a 11(c)(1)(C) the court the court once “bind[] ing against Washington. A indictment minor plea agreement.” accepts the original, modification the on it focused U.S.C; while, assigned a 21 government-filed a Criminal Justice Act the He was § stating Washington to attorney, we will refer the 851 information whom prior Pennsylvania drug felony had a counsel.” con- “defense,counsel” “trial to prerequisite viction from 2004—a en- Discovery 2.Motion for penalties hanced minimum sentencing. phase, Washington During pretrial (both through pro se and trial coun- moved
sel) to discovery relating sting opera- Court Revisits 4.The District prosecutions, tions related he Discovery on the Eve racially motivated. Trial claimed to be Trial prior filing three federal counsel’s cited 20Í5,' opening to prior state- June in prosecutions which all defendants ments, Court- the District revisited moving pa- The African were .American. discovery in of' matter trial context pers discovery also clarified Referring back to States defenses. defense, trial to sought not for rather v, Alexander,13 of Illi- a Northern District support a motion dismiss the indictment 'opinion nois decision cited earlier profiling of “racial the basis selective discovery, the or- denying District Court prosecution Philadelphia ... Dis- government to dered the release redacted , trict complicity [ATF] Office of an ATF policy manual portions stash Attorney’s Office.11 with” sting operations patterned house after — argument, After oral and as set forth disclosures ordered Alexander. thoughtful opinion, the District Court protective or- District issued a Court then discovery. motion denied restricting der use of the counsel’s defense Finding Armstrong/Bass standard disclosed material. control, the District Court held that “rigorous failed meet this 5.Washington’s Trial discovery,”12 standard to obtain and later Washington’s requests for denied recon- five-day trial, Over the defense counsel sideration. ATF his used the disclosures advance Washington did theory the case: 3.Reсordings Admissible; Deemed intent, to commit a requisite dubi- Enhanced Government Seeks ous, discriminatory “conspiracy” ATF Mandatory Penalties. designed ground had For up.14 .from instance, denied, Washington pointed Washington’s discovery did counsel With separate presence not file' an actual motion dismiss the use vehicle and the indictment, parties pre- girlfriend day robbery and the on the otherwise pared ruling, suggest for trial. In important he was cautious and govern- fully District committed. Counsel utilized Court decided that also .the ment could use the audio and record- disclosed ATF materials cross-examine video *8 ings transcripts supervising Agent and at trial. Mean- ATF Bowman. related 148-1, (N.D. Discovery Motion ECF No. 126. 13. CR WL 11. at No. 11 10, 2013). Ill. Dec. Washington [hereinafter 12. United States v. 13-171-2, Discovery"’], entrapment “Washington We note that was not raised as No. (E.D. appeal. on WL *7 Pa. June . a at issue and’is not now- defense cross-examination, ney, during Greenberg But -that trial Mark repre- has —who appeared Washington He was at- sented counsel fumble. -ever since—in what became, effect, that, in Agent tempting pre-sentencing Bowman show investi- gation admit, only person “target- performance. of trial- later counsel’s would the Af- ter the- District an ATF to the arrest Court held- prior evidentiary the ed” hearing, Berry, nothing Attorney Greenberg ATF knew and that the filed a for- predicated mal motion for new trial conspirators about the other could on the alleged they target pro- fit its ineffective trial coun- have ensured assistance-of file, (in part) This motion required a violent sel. included attack on trial questions in history. asking during criminal addition counsel’s But cross-examina- Agent tion of prior robbery opened had a Washington whether Bowman that the (which not), trial door of Washington’s arrest did counsel also he introduction- drug conviction. Agent Washington asked Bowman whether The motion ultimate- denied, ly question drug effectively had a This with the District Court finding arrest. bring part prosecution allowed the out" Wash- the “mountain” evidence against Washington on ington’s prior drug conviction redirect. a showing forestalled prejudice two-part under the Strickland Jury 6.The Verdict Washington16 test for ineffective assis- tance of counsel.17 jury guilty The returned a verdict through superseding counts one four 8.Sentencing Proceedings Act rob- indictment: the Hobbs charges. not-guilty It ver- bery returned question ineffectiveness resolved five; dict on firearm firearm count count being, time District parties government’s six mo- was dismissed prepared sentencing. Court Because jury specifically tion.15The found thаt the Washington his history, criminal was clas- beyond government proved a reasonable sified as'a “Career Offender” under the (fictitious) doubt cocaine at the 'As a Sentencing Guidelines. result conspiracy kilograms center of the was five Guidelines calculations delve we.need or more. into, that Career Offender overrode status level derived from lower Guidelines
7.Pre-Sentencing
Investigation into
sentencing
quantity
drugs, yielding
Constitutional
Trial Counsel’s
range
prison.18
to life
of 360 months
Effectiveness
memoranda, Washing-
sentencing
his
trial, Washington
Shortly after
proposed
challenged
sentencing
ton
wrote
letter
District
re-
to the
Court
troubling
range,
nature of
emphasizing
questing
attorney.
a substitution
He
requesting that
sting
operation
alleged,
part,
counsel had been
that trial
account
sen-
into
District Court
take
throughout
under the
of alcohol
influence
also
co-conspirators.
He
tences
the trial.
disregard
Court to
.the
asked
District
years;
reacted,
swiftly
ap-
sentence
The District
minimum
Court
,
sting
if “the
case involved
pointing
Criminal
Act'
reverse
a new
Justice
attor-
No,
Trial,
Order,
F.Supp.3d
15. See
17. See
New
ECF
at 160-62.
S.Ct.
L.Ed.2d
4BLl(b),
674 (1984).
§
18. See U.S.S.G.
*9
cocaine,”
leged
prejudicial impact
0.9
conflation of
kilograms
non-existent
he
argued,
robbery
“Mr.
would not be
on the
counts
admission
facing mandatory minimum sentence.”19
a
on
far-greater
impact
drug
with
response,
government emphasized
counts.
penalty
minimum
just
mandatory. Evincing
that:
some dis-
1.
Claims
Ineffectiveness
mandatory mini-
20-year
comfort with the
Appeal
on Direct
mum,
the District Court nevertheless
open
the observation that inef-
We
to follow the
ruled
he was “bound
of counsel claims
fective
assistance
law,”20imposing a 24-month sentence on
generally
considered
appeal.
direct
robbery charges
the Hobbs Act
and a 240-
Instead, they
commonly brought
are more
drug
month
on the
consecutive sentence
proceeding,
through
in a collateral
such as
charges for a
term of 264 months’
total
§
post-conviction
a
2255 motion
U.S.C.
imprisonment. Washington timely appeal-
to vacate.22
ed.21
in-
“general
reaching
Our
aversion”23to
Analysis
II.
appeal
effectiveness claims on
de-
direct
challenges,
constitutional
inherently
part
rives in
from their
collater-
directly
judgment
attack
of con-
record,
al
The trial
nature.
concerned as
sentence, are
first.
viction and
considered
innocence,
guilt
or
with the defendant’s
Armstrong/Bass
then turn to his
We will
“developed
will not in most instances be
discovery claim.
precisely
object
litigating
fоr the
or
preserving
[ineffective assistance]
A.
Ineffective
of Counsel
Assistance
incomplete
claim
often
[will]
[be]
and thus
inyokes
Although
again
trial counsel’s
he
inadequate
purpose.”24
for this
Defer-
use, Washington
alcohol
otherwise limits
ring
question
of ineffectiveness to col-
appeal
his
claim on
to the
ineffectiveness
protects
lateral review also
criminal defen-
opened
counsel
incident where trial
consequences
resolving
from the
dants
testimony
convic-
door
about
prematurely.25
the claims
tion. He
Court’s
attacks the District
deter-
cautioning that we will not
“overwhelming”
mination
While
evidence
“open[]
precluded
showing
at
the door
ineffective assistance
prejudice,
trial
emphasizés,
particular,
jury’s
appeal
counsel claims
direct
course,”
acquittal on the firearm count
an al- matter of
we have nevertheless
(2003);
Supplemental Sentencing
McLaughlin,
v.
19.
Memorandum
see also United States
2,
(3d
547,
(”[T]he
ECF
275.
No.
386 F.3d
Cir.
lack
fully developed
precludes
often
record
S.A.
inquiry
comprehensive
into the elements
strategy
may
have entered
tactics that
into
appellate jurisdiction through
We
decision.").
challenged
defense counsel's
3742(a)
§
§
U.S.C.
and 28 U.S.C. 1291.
Hankerson,
22. United States v.
F.3d
25.See,
Brown,
e.g.,
v.
United States
(3d
2007).
(3d
2017) ("To spare Brown
90 n.5
having
judicata
res
attach to the ineffec-
Vanterpool,
23. Gov't
the V.I. v.
claim,
tive
we decline to address it
assistance
(internal quotation marks and citation
here.”
States,
omitted)).
24. Massaro
538 U.S.
504-05,
123 S.Ct.
203 exception judge rule District Court —the trial recognized an when de- —then backdrop of the against nied the claim “is trial record sufficient to allow de- recently develop- This concluded trial.27 of ineffective assistance termination to, effect, ment of the record amounted Determining sufficiency is case- counsel.”26 proceeding, a mini akin to what collateral claim-dependent. § ordinarily is 2255. It expected under us with provides a sufficient foundation for Washington’s is think We appellate review.28 therefore ex- direct We resolving uncommon an inef case where our the ineffec- ercise discretion reach claim on is appeal fectiveness direct both tiveness claim.29 speaking, he Strictly feasible and efficient. raising is not for “the first ineffectiveness Washington 2. Strickland v. Rather, appeal. time” ineffectiveness of Review Standard was invoked in and resolved the Dis Court, post-trial, pre- trict which held a “Regardless of whether an ineffec sentencing hearing at which tive assistance counsel claim raised (trial trial, both and the AUSA testified counsel a motion a new collateral declined). review, testify, or on appeal, was The the standard invited direct Polk, 515, ing on States v. 577 F.3d 520 & trial counsel's constitutional effective- 26. United (3rd Cir.2009) (quoting v. ordinarily required n.2 United States ness. A court is district (3d 1991)). 1079, Headley, 923 F.2d 1083 Cir. litigants filing pro warn se when a recharac- might implicate the second-or-suc- terization Massaro, 506, 123 See 538 at S.Ct. Ef- cessiveness bar of the Antiterrorism and (‘‘[T]he § 2255 motion often will be Penalty Death Act See fective of 1996. Castro upon by judge same district who ruled States, 375, 383, 124 United 540 U.S. S.Ct. v. judge, presided having The observed at trial. (2003); L.Ed.2d 778 U.S.C. trial, advantageous should have an the earlier However, 2244(b). Washington's § recharac- determining perspective for the effectiveness filing ini- could not be counted as an terized any conduct and whether defi- of counsel’s motion, § 2255 as he was not tial 28 U.S.C. prejudicial.”). ciencies were custody yet [federal] "in sentence of a under Jones, See States 336 F.3d United 2255(a); § see also court.” U.S.C. 2003) (3d (reaching Cir. ineffectiveness Stockstill, 26 F.3d 497 n.10 claim Court "conducted a hear- when District (“Because ad- [the defendant] ing defendant] and his new counsel [the sentencing, prior vanced his claims allega- specifically considered ... where it appropri- § 2255 motion would not have been concerning representation tions he re- 2244(b) time.”). § bar Because ate counsel”). prior appendix from his ceived implicated, the mere and because initially compiled lacked most of inef- as possibility preclusion not otherwise does fectiveness-stage papers transcripts, out- rights, "significantly no alter[ ]” the District Court's decision itself and side of warning necessary Crown Mala v. here. single page Washington's mo- new-trial (3d Marina, Inc., Bay 704 F.3d government supplement tion. We asked the States, But see Mui v. United (which filings our record with relevant 2010) ("We that a defen- hold and, sealed on the District Court docket all appeal ineffective who dant raises on direct us), result, readily available are not so as strategies, ac- assistance claims based on the to allow for determination the sufficien- be, tions, can of counsel that inactions more-searching cy of and a the trial record are, adjudicated on the trial on the merits Washington’s ineffectiveness claim. review of record, raising new or re- precluded filing sup- We thank strategies, same petitive claims based on plement. actions, pro- a Section inactions in Washington initiаlly asked 29. We note that ceeding.”). counsel, for substitution of but not a full hear- *11 right same.’’30Under familiar Amendment the effective review assis- in Strick- of standard established tance counsel.36 two-part Washington Washington,31 v. bears land 3. Trial Cross-Examination Counsel’s 1) trial showing coun- of that
the burden Agent Bowman supported by sel’s actions “were 2) trial and that coun- strategy” reasonable Washington limits his now ineffective- defi- prejudicial.32“[B]oth were sel’s errors allegation ness to the cross-examination proven to be ciency prejudice must . Bowman, Agent ATF John which allowed appeal On have a valid'claim relief.”33 prosecutor bring out Washington’s decision, District exer- Court’s previous conviction on He redirect. legal compo- over the plenary cise review argues trial of question- that counsel’s line of-ineffectiveness, any under- nents assess ing lacked a him strategic basis and caused error, for clear lying findings of fact and prejudice, itas the “not undermined com- judgment on wheth- independent “exercise theory mitted to the crime” of defense. facts, by the District er those as found By way background: Agent Bowman, rendered ineffec- show counsel Cour£, who-managed investigation the ATF’s tive assistance.”34 conspiracy, testify as the called government’s final testimony witness. His agree with the District Court We established, among things, other the au- allegations of alcohol general use thenticity calls recorded and meet- departure require do not Strick from (or ings among conspirators “conspira- point con two-prong land’s standard —a tor,” Agent in the case of the undercover in his by Washington new-trial ceded Edwards) and incriminating their nature. Alcohol;or drug use memorandum.35 n For instance, Bowman testified at certainly trial can be relevant to counsel meeting, Berry March 5 Agent assured parts inquiry, of an ineffectiveness both Washington Edwards committed systemic, if especially amplified robbery plan. to the questions strategy jury per close facts, oh ception. alleged these sub But Trial counsel’s cross-examina- extensive more, not, one Agent part stance abuse is without tion of Bowman dealt amounting the rare forms of investigation dereliction to inconsistencies in the per se denial of a targeting Washington. Sixth defendant’s ATF’s Counsel 462, 25-26, Bishop, 2039, 629 United States v. F.3d 469 659-60 & 104 80 nn. S.Ct. (5th 2010). 657(1984). Cir. L.Ed.2d 668, 2052, 1184, 31. 466 U.S. Trammell, 104 S.Ct. 80 L.Ed.2d 36.See Williams v. 782 F.3d (1984). 674 (10th 2015) (analyzing 1200-01 Cir. substance ' Strickland), abuse ineffectiveness under cert. 1690, Massaro, 505, — denied, -, 806, 538 at 123 U.S. S.Ct. 136 S.Ct. (2016); v. Lee, Frye L.Ed.2d F.3d Travillion, (4th ("[I]n 33. United States v. 759 F.3d Cir. order for an .attor (3d 2014). 289-90 ney’s alcohol addiction to make his assistance ineffective, constitutionally spe there must Davenport, 34. United performance cific instances of deficient attrib alcohol.”); King, Berry utable see also v. 1985) ("[Ujnder Trial, drugs attorney F.Supp.3d 35. See New the fact that an used Strickland 157; 78; not, Supplemental itself, Appendix Sealed see in and relevant ineffec Cronic, original)). also 466 U.S. tive claim.” (emphasis United States assistance probed Q: —you probably also the racial say, you’re dimensions of ATF shouldn’t record, sting operations; Bowman admitted that sure. I I’ve had his can I participated Philadelphia say, robbery he had three didn’t see a conviction. sting operations, targeted only all of which IA: don’t think robbery there’s a convic- (A American similar African defendants. tion, no. elicited, response had earlier been Q: I record, And have his ! didn’t see Edwards, Agent per- who admitted drug conviction. *12 haps two defendants in over 13 scenarios IA: don’t recall.38 not African both of were American—and But Washington drug did a have convic- Latino.) those were fact, just days tion. a few before Bow- began Trouble trial arose-when counsel stand, took the man had asking Washington’s about un- Bowman § filed its U.S.C. 851 information identi- fit easy targeting guidelines’ ATF fying ‘"prior felony a controlled'substance requirement prior criminal histories. violation” that it intended use “as the AllQ: right. you Now know that we for punishment” basis increased in the they didn’t have my didn’t client use— Washington event that was convicted.39 identified before he was You arrested. directly con- While had not ..Bowman Ski, name, knew him as or some- other Washington’s history firmed on criminal right? cross, the prosecutor swing saw door A: Correct. and, redirect, open Agent invited Bow- Q: if you prior So didn’t he had a know through man to stroll it: '' n history, right? criminal Q: you ques- [Trial asked counsel] some No, during investigation. A: not Washington’s tions about Mr. criminal
AllQ: right. you And found out after the history. checking, you arrest and some found out A: Yes. my a history client doesn’t have Q: you You said weren’t when he sure ' robbery, right? asked- n you questions specific about (No response)' A: verbal conviction, drug he had a whether Q: history And he doesn’t have a robbery conviction, whether he had drugs, does he? whether he a violent crime convic- had I said, A: don’t recall. tion. You I don’t recall— did, recall, Q: you would, If sir, he that fair?
wouldn’t Isn’t you? sure, Q: you You weren’t said correct? I misstate, A: don’t want but I’m Correct, A: pretty sure had a— he Q: I want take a moment show sure, Q: you’re probably If not you you Government Exhibit’ 404 and say— shouldn’t 405. That’s Exhibit 403. Government arrest.[37] —drug A: lastly, Let’s on to 404. move And we 37.Washington argues jury twice 38. S.A. 176-77. heard evidence of his- criminal tory, once on and once on direct rebuttal. As Information, 39. Section 851 ECF No. 202. shows, however, excerpt the initial men- Washington’s drug tion of conidctiori was equivocal pretty sure” —and broached —“I’m arrest, in the context not a conviction. to its Washington appeared committed on to Exhibit 405. Did
move Government Washington push attempts success.44 you those three exhibits? review record, reading but the back this A: Yes. against the trial him. big picture of works them, reviewing you Q: And after not Mr. has sure whether instance, in support argument of his For prior conviction? actually not “over- evidence was prior drug A: He does convic- have points jury whelming,” he out tion.40 924(c) § acquitted him the count-five gun charge which, unlike counts 1 exchange, Washing- After the issue of — attempt through conspiracy history appear criminal does not ton’s true, struggle charge. This Further, during up again come trial. assign it more than limited relevance. The request, counsel did not the Dis- trial Berry, trial evidence showed any limiting give, Court in- trict did guns Eggo Washington, hid the struction. *13 box, to co- he then handed Waffles which 4. Strickland’s Prejudice Prong guns conspirator Johnson. The were found may consider the Strick minivan, We two Chrysler, in Washington’s the not order; and, prongs in either we land as Culpa- when the was taken down. caravan observed, practical it is “often bility arguably away from shifted Wash- first,”41 prejudice prong consider the ington, satisfactorily and he has not shown “prefer[] least we the because avoid jury’s apparent the doubt with the how judgment passing perform on counsel’s quantum firearm count is with the linked possible.”42 Accordingly, ance we when remaining on the counts of the proof of prejudice, requires first turn indictment. showing probability” a “reasonable —a Similarly, Washington points jury to two
“probability sufficient undermine confi requests the of take- see video the —one that, dence the for “but outcome”— down, regarding another the definition and errors, unprofessional ‘the result counsel’s entrapment of or enticement —as indicative proceeding would have been differ of its hesitance convict. The video was ”43 ent.’ back, played prosecution and both the and outset, agree agreed entrapment
At
the
not at
the
we
with
defense
that
was
that,
Beyond
District
we do not think that
Court that the evidence admitted
issue.
of
against Washington
daunting
jury’s
the
evince the kind
questions
at trial
was
and,
generally, damning.
might
His recorded
that
meet
bur-
doubt
alone,
not,
all
showing prejudice.
anything,
for
If
statements
bluster
showed a
den
willing
inquisitive
this
acquittal
and
member of the con
can draw from the
we
itself,
day
jury
seriously
count
that
took
its
spiracy.
robbery
On the
the
the
Trial,
99-100,
Washington
F.Supp.3d
June
2015 Tr. at
ECF
44.See
New
No. 245.
concern,
(recounting Washington's
at 153
Fazio,
United States v.
briefing,
during
pre-robbery
co-
the final
that
2015).
(3d Cir.
purchased
conspirators Johnson and Ellis had
store,
supplies
grocery
where the men
Cross,
308, 315
42. United States v.
were —recorded on the
could have been —and
2002).
system).
store's surveillance
Vanterpool,
(quoting
767 F.3d at
Strickland,
Strickland, showing the mistake of Review Standard jury’s ver- undermined confidence begin noting although We Accordingly,, the assis- dict.50 ineffective Washington mandatory to the object did tance claim fails.. sentencing, argued minimum at he there intent, congressional the basis Mandatory Due
B. Minimum process. argument due process The due Challenge Process appear also in his three does sentenc sentence, challenging his 264-month ing, Washington’s memoranda. fail While Washington argues that the District Court to develop constitutional basis for ure 20-year mandatory in following erred objection ordinarily limit might minimum term set forth in 21 U.S.C. review, scope our retain discretion to we here) (as 841(b)(1), § applicable arguments in unpreserved reach appropri quantity kicks in when cocaine Here, government ate circumstances.52 kilograms or defendant has above and the asks us to de novo review .conduct prior felony drug conviction. He does not resрonds argument Washington’s disagree appear with the a party’s merits. does not While concession that, in ordinary things, course discretion, control of our it is exercise “mandatory” minimum is what precisely inay a factor we certainly Hence, consider. says argue on the tin.51 he Nor does objection raise an because did supporting mandatory mini- the facts to the mini application charging 5 of. mum sentence—an indictment sentence, cocaine,- mum argument kilograms he or more a corre- verdict, relied on came within a stone’s sponding throw jury properly filed raises,now, § the one notice will “waive prior conviction—were he Rather, that waiver” and consider claim infirm. he absent contends *15 case, on application of where its kind the As a constitutional chal- merits.53 Mazzuca, 490, e.g., guilty imprisonment of F.3d that crime to a teirm'of Wilson v. 570 Cf. 502, (2d 2009) (finding prejudice Congressionally prescribed no 507 Cir. less than'the minimum, explicit exception tandem history, from admission of unless an the criminal n errors, government pre applies.”). minimum with other where the sentence chief); Sec'y sented case in v. a weak Gilliam 1027, Corr., Turner, 226, Dep't 1033-34 480 52. See the F.3d States v. 718 F.3d United for of (11th curiam) (3d 2007) 2013); (finding pre no (per 235 Cir. Cir. States Ar United v. cf. ju 2254(d) chuleta, 1003, (8th 2005) theory § of review dice when F.3d Cir. 412 1007 by "sufficiently compromised (reviewing newly argu was defense constitutional raised McCotter, evidence”); error) Lyons plain other v. F.2 ment 770 for d529, 1985) (5th (”[W]e 532 n.5 conclude Cir. prosecutor’s Castro-Taveras, that over the was far from case 53. See United 841 34, (1st whelming 2016) evi into (declining and that the introduction Cir. to en F.3d robbery Lyons' aggravated dence of prior government force .when the forfeiture ad reliability of his unpreserved conviction undermined dressed the of the. Fifth merits conviction.”), present argument); Amendment United v. Pen States dleton, 934, (8th 2016) 832 F.3d 948 n.4 Cir. See, (“[T]he Winebarger, e.g., Government does assert forfeiture United States v. 388, ,de (3d 2011) (”[P]istrict argues Cir. on the F.3d instead review novo .merits, Thus, required apply courts usual sentence the defendants we.choose minimum, lenge to mandatory substantially engineered by draws was government agents plenary supplied precursor review.54 — (at significant discount), chemicals a glass ware, a rented farmhouse for a lab— Outrageous Government Conduct displayed requisite-level outrageousn of Sentencing Factor Twigg ess.57 led to the ultimate sanction: Manipulation55 conviction,58 reversal of the defendant’s process chal due But Twigg, 1978, decided is apparent lenge category falls within broader ly only one of “two reported аp court “outrageous is, government conduct” —that peals decisions ... that have deemed the allegation government’s con an government’s outrageous conduct so as to outrageous process duct so that due violate process.”59 due We found no cannot, and fundamental fairness abide the since Twigg occasion published deci In our hallmark defendant’s conviction.56 sion reverse a conviction or invalidate v, doctrine, United States case on the theory indictment gov Twigg, strayed we meth scheme ernment has decided outside the bound evaluating sufficiency-of-the- despite standard a sentence above the bare minimum law, claim.”); see evidence also United States v. Compare authorized United v. States Jones, 341, (3d 2016) (“Be Cardena, 959, (7th Cir. 842 F.3d 1001-02 Cir. 2016) we that, cause would reach the same result under (finding the district court when review, apply tp either will standard we de appeared mandatory treat the as minimum review, is more favorable to [the novo determining lower bracket for below- defendant].”). sentence, say Guidelines- could court mandatory Joseph, Our minimum -had “absolutely decision in United States v. no effect”), 2013), Barnes, contrary. Cir. F.3d 336 not to and United 769 F.3d States 94, (1st 2014) Joseph pres- imprecisions” in our legali "rectified] 98-99 (reaching, the ty jurisprudence, mandatory ervation and waiver and clari- minimum sentence al though too the be- years fied oft-overlooked distinction the defendant’s net term was 10 "arguments,” "issues” and as above the tween least minimum becáusé' references minimum), throughout use those terms in this Circuit. Id. at mandatory to the specific To extent the waiver or Ramírez-Negrón, 341-42. United States v. 751 F.3d (1st 2014) Joseph applies forfeiture framework in outside (finding process no due of Fed. R. Crim. see P. id. at 338-39 nn.2- error when a defendant's sentence was based considerations”), it does not limit our discretion to excuse "entirely on Guidelines here, waiver or forfeiture concerns we do Ramos, Untied States v. especially appellee when (concluding that a defendant disregards overlooks or waiver or forfeiture standing challenge constitutionality lacked and instead asks for review the merits. See minimum because “Actual also Government's Br. in States v. Jo- eighty-seven af sentence months *16 12-3808, 1193044, seph, No. 2013 WL *16- at by statutorily prescribed mandatory fected the waiver). (invoking on based "the minimum” instead 3553(a) Guidelines"),. § factors and the Walker, 71, 54. Untied 473 F.3d States (3d 2007). Cir. 373, Twigg, 56. See United States v. 588 F.2d (3d Cir. government suggests 55. The brief its challenge sentencing is fore 375-76, See id. 380-81. by mandatory closed a sentence the abovе minimum. See Gov’t Br. at 57-58. We dis 58. Id. at 381. agree. guided clearly The District Court was by mandatory the minimum on the term Combs, 790, crafting counts in As the overall sentence. United States v. . result, (8th 2016) Washington's challenge remains viable Cir. by process.60 tencing applying contemplated aries due calculus before sen- Dennis, instance, States v. no mini- tencing provision, mandatory United we to dismiss an in a re refused indictment arise in the place.63 mum would first sting verse case to the one dissimilar precedential previous opinions Our bar, emphasizing now at while the “exceed have a definitive on declined take stance ingly great” evidentiary placed on burden viability of this Circ doctrine our challenging defendant.61 assuming deciding uit.64 But even without Twigg recognized an While our decision generous framing Ciszkowski of outrageous government conduct claim sentencing manipulation ap factor should the context of an attack on an indict- ply requiring showing a lesser than an — and, extension, of the fact claim, ment— “outrageous allowing conduct” judgment of conviction itself—other courts depart for a District Court below applied reasoning have similar to a nar- mandatory range minimum find that —we sentencing-related rower universe demonstrate, Washington has on failed claims, “sentencing often under the label case, the facts of this that the manipulation” although they factor have — in minimum should be from the excised consistently.62 done so The Eleventh dictment. sentencing Circuit described one model of bottom, Washington argues At that the manipulation factor in United States v. uniquely positioned to de- Ciszkowski: offense, termine the salient of his facts [Sentencing manipulation factor occurs Working powerless which he was refute. government’s manipulation when the through in- operative its undercover sting operation, even if insufficient to formant, ATF did indeed set claim, support process requires a due (10 cocaine kilo- fictitious amount manipulation that the be filtered out grams) played up the likelihood sentencing Outrageous gov- calculus. (thereby encouraging the con- resistance ernment conduct would necessitate the themselves). spirators to arm conviction, reversal of a defendant’s assuming But impropriety even some sentencing manipulation
while factor government, on part here most simply ap- would reduce the sentence crime, plied to his conduct.... a court the factors created .When control, manipulation unique filters out the sen- which were within its were Fattah, (“Sentencing manipulation See 858 F.3d factor occurs (3d 2017) (citing Twigg propo- for the government agents Cir. improperly where granted ''[t]his sition that Court has relief enlarged scope or scale of a crime.... outrageous government a claim miscon- government engages Where the in such ma once”). only duct nipulation, recognize power the court's impose statutory below a sentence manda (3d 2016); 61. 826 F.3d 694-95 Cir. see (in tory equitable remedy.” as an minimum Mohamud, also United States v. 843 F.3d alterations, marks, quotation ternal and cita (9th 2016) (recognizing that dismiss- omitted)). Lange, tions But see United States v. (cita- only al is in "extreme cases” warranted (observ 862 F.3d omitted)). tion ing Eleventh Circuit "has never re that the Sed, 62. See United States v. sentencing a sentence the basis duced 2010) (describing 229-31 the varia- manipulation”). factor *17 appeals). tion across courts of Sed, 601 at 229-31. 64.See F.3d Ciszkowski, F.3d 1264, 63. United States v. 492 2007); Cir. 1270 see also United States v. 1, (1st 2017) Rivera-Ruperto, 852 F.3d 14
211 kilograms charged not actual sen- of in drivers cocaine the indict- the conspira- Agent Edwards told the § tence. by and the jury, ment found 851 resistance, they tors that would encounter by government.68 statement filed the guns and, brought Washing- so had they latter, indicated, Supreme — as the has Court gun charge, ton been convicted the he is matter of “similar the discretion mandatory would have faced additional a prosecutor when he discretion exercises But he was not. Fur- consecutive term.65 what, bring if any, charges decides ther, Agent conspirators Edwards told the against ap- ... is criminal suspect expect 10 kilo- could to recover they long upon so it based propriate, is not grams in corre- robbery, of cocaine the Washington does improper factors.”69 not sponding to 2014 Guidelines base offense § argue process by that the envisioned However, level of 30.66 he was a because not properly or was based was followed offender, Washington’s career Guidelines impermissible considerations.70 range governed directly by not the kilogram drug-quantity the amount —and down, end, So comes the him District Court far below the sentenced drug acknowledge Washing quantity. We range anyway.67 recommended Guidelines concerns, ton’s stated well exist, Instead, not 20-year logical, drugs mandatory mini- did product mum the 5 that his minimum has mandatory two factors: ironclad 924(c)(1). appearance § which has 65. Seel8U.S.C. the unavoidable punishing Washington right exercising his 2D1.1(c)(5) (2014). § 66. See U.S.S.G. facts, go is to trial. But on these enough government's to declare the actions government manipulated 67. To extent motivated, beyond pale invidiously es prejudice factors have not shown to been recognition— pecially longstanding with the Washington, weight of is those factors by by Supreme both us and Court—of the Vaughn, diminished. Werts v. Cf. (3d 2000) (evaluating prosecuto- prosecutorial deference afforded to decisions. worse, process pres great rial misconduct due claim for prosecutors For better or have a prejudice). ence power charging specific deal to use deci sentencing guide mandatory expo sions to career offender 68. The Guideline itself sure, By way example, in one a defendant statutory based the offense maximum— Jersey recent New house case was stash here, prison, § life in with or without the charged part conspiring possess with enhancement —so that sense the Guidelines with intent distribute more than 5 kilo range sentencing was determined cocaine, grams exposing him to the manda 1.1(b) (2014); quantity. § 4B See U.S.S.G. tory minimum When the defendant term. 841(b)(1)(A). Again, though, Dis- U.S.C. agreed guilty, plead government filed a trict Court not sentence in accordance did superseding simply deleted information that range, and—as we discuss infra— drug quantity conspiracy charge, kilogram the 5 amount below far what approved eliminating thereby courts have other minimum. cases. Release, Dep't Press Bur See Justice U.S, Labonte, United States lington To County, Jersey, Sentenced New Man L.Ed,2d 117 S.Ct. Eight To Rob In Prison For Scheme Years (1997); Sanchez, see United States v. also Drug Gunpoint, https://www. At Dealers (rejecting 671-72 due justice.gov/usao-nj/pr/burlington-county-new- challenge process when the filed jersey-man-sentenced:eight-years-prison-‘ defendant, against § 851 one notice 2017; (Feb. 8, scheme-rob-drug-dealers ar codefendants). https://perma.ee/Y5XD-UULW); chived Forman, Crim. D.N.J. No. say affirmatively 70. That is that we here, 1:14-cr-00152, 27, 81. prosecution’s endorse the decision ECF Nos. *18 [Washington’s] of upon no foundation. Other courts sentence a real-world convict however, rejected ion.”74 roundly appeals, greater than 5 kilo that claims amounts encouragós us to Washington follow the grams, kilograms, amount or even to McLean, v. reasoning United States Further, manipulation.71 sentencing factor judge in which a different the Eastern
n Agent
testified
trial
that
at
the
Edwards
Pennsylvania
District of
sentenced below
sting
for the
“conser
amount chosen
was a
minimum,
mandatory
the
process
due
upon
vative”
the
based'
.number
grounds,
reverse-sting
a
stash house
[Philadelphia]
in “a
weights
typical
found
McLean,
nonbinding,76
which is
case.75
is
explained
pro
He
stash house.”72
distinguishable.
also
Thе defendant
there
“always
to
has
posed
be realistic”
scenario
“split” jury
received
verdict on the
questioned
robbery
or
might
kilograms
of cocaine
amount
involved: 5
any
has
offered
regard
conspiracy
grams
crews.73
with
but 500
contrary.
simply,
Put
thing
there
regard
attempt.77
to the
with
no
We detect
enough
equivalent ambiguity
here for us
conclude that
jury’s
in the
verdict
kilogram
chose the 10
amount
government
culpability,
ultimate
reject
even
“to
primarily,
secondarily,
argument.78
inflate
therefore
this
Hare,
quantity
drugs
See
820 F.3d
71.
lesser
still made
2016)
(4th
realistic,
(collecting
they
102-03
cases
deals look
the mere fact that
did
not,
more,
kilograms
proposition that "15
does
without
not establish that the
agents engaged
"considerably
extraordinary
less
the kind of
amounts
than
cocaine"
that,
...
required
cocaine at issue in other stash
misconduct
quantity
success-
claim,"
cases”);
(internal
Sanchez,
sentencing manipulation
ful
sting
United States
house
("The
omitted)),
quotation marks and
A
citations
is,
course,
government’s
probe
district court
free to
fictitious reverse
fact that the
reasoning, especially
culpability
if
entrap-
large
sting operation
quantity
involved a
specific
ment are raised as
defenses.
type manipu
drugs does not amount
warranting
conduct
governmental
lative
Ciszkowski,
sentencing.”).
departure in
74.
not find it the Government rationally its discretion discovery rulings exercise set are ordi While stings. up stash house But I share narily discretion, reverse reviewed abuse if not practice, prop- the concern that this de “we exercise novo review over the stan checked, on erly eventually will itself find in exercising dards the district court used wrong although side line.”79 its discretion.”81And decline wholesale, adopt Davis we nevertheless
G,
Enforcement
Selective
agree
Davis court that district
Discovery Claim
judges have more
flexibility, outside
framework,
Armstrong/Bass
permit
Finally, Washington appeals
part
in
pretrial
manage discovery
Washing
denial of
motion for discov-
on claims like
his
ery,
Accordingly,
explained
as
further
“prepare
which he filed in order to
ton’s.
be
low,
the District
motion
dismiss the
we will vacate
Court’s
indictment
discovery
profiling
basis
selective
orders and issue
re
racial
limited
and/or
prosecution
by
post-judgment proceed
racial minorities
mand
further
ings.
Philadelphia,
сonjunction
ATF Office in
States,
minimum sentences
de
v. United
S.Ct.
draw
review,
(1996) ("A
might
it
case
Claims: Dis- sometimes criminatory Effect and Intent “discriminatory purpose”).83 referred *20 Meeting requires generally standard Washington’s argument rests on the dis- similarly evidence that situated individuals prosecution” tinction between “selective of a difference race or classification were enforcement,” and “selective labels arrested, prosecuted, in- otherwise (and others) deploy sometimes inter- vestigated.84 Here, changeably. usewe them as Wash- ington does. “Prosecution” refers Armstrong/Bass: 2. “Some Evidence” (in prosecutors their capacity
actions prosecutors) and “enforcement” the ac- defendant, however, A criminal tions law enforcement and those affiliat- will not often have access the informa personnel. ed with law-enforcement tion, otherwise, might statistical Thus, point satisfy a “clear evidence” burden.
We start with
of common
Substantive claims of
ality,
component
up
prose
the two
cases
make
selective
Armstrong/Bass
v.
test—United States
gen
cution and selective enforcement
States
Bass86,
and v.
erally
Armstrong85
the same
two-part
evaluated under
test,
prosecu
both of
arose
from a line of semi
which
from selective
derived
Supreme
facially
nal
Court
about
tion challenges propounded
cases
the colli
less
—
protection
rigorous
sion
equal
principles
between
criminal defendants
standard
seeking discovery
justice
anticipated
and the criminal
A
on an
system.82 defen
selec
а criminal
challenging
prosecution
prosecution
dant
tive
claim.
of “clear
Instead
evidence,”
discovery
either the law enforcement or
motion
prosecution
a successful
points
inflection
must provide “clear
can rest on “some evidence.”87
evi
evi-
“Some
States,
806,
grounds.”).
descrip
82. See Whren v. United
517 U.S.
We cite
for its
Whitfield
813,
1769,
(1996)
116 S.Ct.
101.
F.3d
Davis,
105. See Order at
States
(order
Davis’s n
N.D. Il.
13-cr-63-2
Crim. No.
entered
procedural
102.
need not
We
address
30, 2013).
October
intrigue, although
note
marked
dividing
majority
line between the en banc
Davis,
(Rov
Davis,
and dissent. See
at
106.
ordered like this Court do: would boundaries dis- scope termine Armstrong/Bass inapplicable part First, find court was to the district covery.110 the District the case back to reason and send whether there was determine inquiries in- to make additional in the Court played that race a role believe —bol- stered, has selectivity perhaps, by whatever evidence vestigation “forbidden —that oc- since. become available plausibly occurred or could al- evaluating the evidence by curred”111— However, good reasons be there record, acquired ready of new evidence Davis, ap practical and its cautious about (if defendants, necessary) by the quite is not in this case plication testimony of case affidavits and limited Washington suggests. straightforward as agents. inquiry gave If district Circuit did not follow While the Seventh similarly sit- to believe that court reason clearly Davis not Armstrong/Bass, does persons pur- would have been uated adopted in its stead the test state whether enforcement, camera dis- sued law or, Armstrong/Bass al was a variation might be targeting criteria closure complete to be a ternatively, was intended for. If the called trail breadcrumbs instance, departure. For Davis does continued, targeted inquiries additional discriminatory pur explicitly discuss the justified; if obtained might Arm pose/intent prong traditional Armstrong/Bass crossed the information might Davis strong/Bass analysis.113 threshold, discovery be “ex- could opinion as an fairly therefore be described prosecutor’s to the tended office.”112 discriminatory as a entirely about effect Moreover, discovery. Davis gateway Application 5. Davis’s the Seventh not mention Circuit’s does Washington’s Claims Barlow all—not earlier decision it, it, sum, distinguish explicitly being straightfor- harmonize despite also arose a differ of a overrule it.114 Davis pro-defendant affirmance discov- ward (last discrimination-met-20170303-stoiy.html 110. Id. 2017; Aug. https:// archived at visited 111. Id. at 723. perma.cc/XY4G-MKYG). report A in one case, pending prepared by Columbia Law *24 Although at 722-23. it is of limited 112. Id. among Jeffrey Fagan, professor concludes legal appeal, relevance to actual issue statistically things that "race remains a other years of the "switch” in Davis arose after predictor of significant selection as a Stash courts—and unease in Seventh district Circuit Report Jeffrey Fa House See defendant.” particu Illinois in in the Northern District of Washington, gan, N.D. States United v. See, Alfred e.g., sting lar—about reverse cases. Unit 12-CR-632, 510-2. ECF No. Il. Crim. No. 103, Paxton, WL 13 CR ed States v. No. 17, 2014) 1648746, (N.D. Apr. *5 Ill. at that, given in a investi- perhaps is true 113. It Armstrong/Bass, (granting in discovery under finding gation, a defendant would not part been because "no white defendants have prosecuted if he had been non- have been phony house cases since indicted stash enough suggest infer- Hispanic white is to an makeup despite diverse discriminatory purpose/intent. ence of Post-Davis, Illinois”). Northern District controversy Meisner & See Jason continues. one court has observed this ambi- 114. At least Stings Racially Sweeney, Lawyers: Annie ATF in guity Circuit's case law Biased; in the Seventh says Stash House U. C.-led Team prosecution/enforce- Minorities, declining adopt to Targeted Unfairly Cases Feds Show Cl, discovery dichotomy. Trib., 5, 2017, See United States ment at at Chi. Mar. available Lamar, CR 2015 WL No. 14 v. http://www.chicagotribune.com/news/local/ 7, 2015). (S.D.N.Y.Aug. govern- The breaking/ct-atf-stash-house-sting-racial- *5 n.3 at posture, pre special ent Davis\ the pros- where defendant had solicitude shown and, thus, discretion, below from ecutorial vailed benefitted which animated the Supreme partial appellate reasoning Armstrong deference to the trial Court’s in Here, court’s exercise discretion. and Bass—and our own in by reasoning our contrast, pre-Armstrong/Bass the District Court’s decision case law the was same subject116 inevitably Washington; to the favorable this Court’s flow —does enforcement, tips actions of law way. deference thus the other even to The prosecutors acting investigative Davis ca framework further influenced pacity. ordinarily Prosecutors by are shielded the Seventh Circuit’s of a pre review by absolute decision, immunity prosecuto- for their trial as indicated the court’s rial police officers and federal repeated expediency references acts,117 —-“limit agents enjoy categorical no protect such inquiries ed that can be in a conducted ion,118 And, observed, as the court Dams few so as weeks” “sidetrack[ ]” agents officers and expected testify are any case.115 While framework must be cases, criminal honesty with their pretrial mindful context which “open aspects candor That discovery motions will be filed and decid challenge.”119 of law prosecutorial enforcement and dis ed, reviewing judgment, a final we one cretion are often does not intertwined (as below) discussed further is not the distinction make between two if unwound we decide remand. any legitimate; less courts are often realms Application 6. Strict upon to specific called determine whether ¡Bass Armstrong category acts fall more into than one Inappropriate other.120 caution,
Despite our we find A challenge policy ourselves in ato law-enforcement agreement implicates the core also with rationale of another area where immu- ment, Davis, argues part, wrong- for its 119. Davis F.3d at 720. decided, points ly particular to the Barlow that did not bark. See Gov't Br. at 39 government suggests that when dis- 120. n.13. claims, presented mixed trict court is some and some selec- selective enforcement Davis, F.3d at 723. claims, prosecution applying the Arm- tive ap- See, strong/Bass the board is standard across e.g., Torquato, States v. (3d propriate. This contention Gov’t Br. at 28. (discussing F.2d 569-70 Davis, (ob- rejected by the need to “minimize the intrusion on the that, prosecutorial serving steps” function” in the context if discov- the "measured required evidentiary burden to obtain an required by ery rises to the level Arm- hearing); Jury, see also In re Grand strong/Bass, investigation can "extend[] office”), agree prosecutor’s it unduly penalizes a who casts a defendant See, Fitzsimmons, e.g., Buckley said, remains wide net. That within *25 259, 268-71, 2606, 113 S.Ct. 125 and, indeed, discretion of a district court — (1993); Malone, L.Ed.2d 209 Odd v. 538 F.3d remains of District within the discretion 202, (3d 2008). 208-09 Cir. Court —to determine that a enforce- "selective appropriately Police, ment” claim was either not See Orsatti v. N.J. 71 State F.3d 480, (3d 1995); simply prosecution or was claim tai- raised Forsyth Cir. v. Klein dienst, (3d 1203, 1979) requirements lored to avoid the Arm- F.2d Cir. ("[Fjederal strong/Bass. always, As a court look be- must law enforcement officers are enti faith, only yond party qualified, good tled the labels and focus to immuni affixed ty.”). sought. on the substance of what is ATF to
nity sting reverse committed discretiоn is limited. broad dis- and other courts is familiar to us trict court.122 are We model confident operation, precisely is a ability defined to because district courts react manuals, targeting crite- policies, one with particular circumstances a case—the ria, appearance from standards. Its date, likelihood of a near-term trial coast is not some kind conver- coast to matter, complexity underlying of the evolution, in- gent law-enforcement but strength discovery prof- of a defendant’s promulgation official stead is due fer, similarity previous cases rais- agency. Claims of policies by a federal concerns, ing similar the need avoid policies practices, unconstitutional disclosure, overly prejudicial or irrelevant entities rather than individ- lodged against crafting ap- on—-in and so measured uals, qualified or often cannot be met with proach discovery. Finally, we note that (cid:127) immunity at all.121 good-faith defenses although post-trial pos- are in a we now ture, most, the fact of matter is that sum, lightly In we do riot while all, if not appeals discovery from criminal Arm depart the well-established properly brought only be after framework, orders will strong/Bass enforce judgment is entered.123 legitimate is a ment/prosecution distinction one, join the Davis court and'we therefore Armstrong/Bass finding be distin 7. Selective Enforcement mo guishable Accordingly, facts. on these Discovery Standard discovery seeking information on tions therefore hold as We follows. of unconstitutional selec
putative claims ruling pretrial discovery request on a governed by are not enforcement tive alleges prosecution selective application Armstrong/Bass strict and/or enforcement, ap selective framework. district court plies Armstrong/Bass impli to claims that Nevertheless, tacitly acknowl- functions, protected prosecutorial cate Circuit, edged by courts con- the Seventh such as those that arose the namesake discovery on templating motions for selec- If cases. claims selective law enforce must still tive enforcement claims raised, ment are or there are “mixed” Armstrong/Bass, guided by spirit prosecutors acting claims that involve incorporates placed the demands (in short, investigative capacities or other underlying on the substantive claims: not performing ordinarily evidence,’’ functions that would heightened just “some Further, immunity), draw absolute the standard while “clear evidence” standard. guiding the cоurt’s discretion is district general approach of tak- agree with a Armstrong/Bass different. over the course of While remains ing steps” “measured lodestar, a discovery, pre- district court retains the we decline mandate pretrial to conduct a in system or that a court discretion limited cise order district said, into quiry challenged often law-enforcement follow. As we have mat- must discovery on a practice proffer ters of docket control and that shows “some Foerster, 810, (3d Litig., Paper See 102 F.3d 102- Carver v. Antitrust (3d 1996) 1982); Newman, (citing, among things, other States City Independence, (referring Owen v. 445 U.S. criminal (1980)). discovery rulings 100 S.Ct. 63 L.Ed.2d under Fed. R. Crim. P. See, Sciarra, e.g., Sempier Higgins, *26 & v. Johnson 123. See United States v. (3d 1995); (3d F.3d In re Fine 627-28 discriminatory, of evidence” of discovery sort effect. material available to proffer must contain reliable evi- statistical criminal defendant under Fed. R. Crim. dence, equivalent, may or its and P. 16 or Brady be based progeny. and its .
in on part patterns prosecutorial of deci- Throughout, the district court must be (as Davis) sions was the case in even the if mindful that the “goal” end of such a dis- underlying challenge,is to law enforcement covery motion is a valid of claim selective decisions.124Distinct what is required enforcement the heightened under sub- Armstrong/Bass, under a defendant need standards; stantive are not asked not, at stage, provide the initial “some or distinguish. diminish If the district discriminatory intent, of evidence” or show court’s initial or secondary inquiry sees (on prong) similarly effect situated still, that destination recede or stand not persons of a equal different race protec- or advance, operates the court within its dis- tion in- classification arrested were or deny cretion to discovery additional and to However, vestigated by enforcement. law. proceed trial. proffer strong enough sup- must be That discovery limited of may this sort port a reasonable of discrimina- inference granted be in guaran- one case does tory intent and non-enforcement. tee—and 'guaranteer should not it—that granted another, case, will in be similar
If a district court
finds
even within the
met,
same district.125But courts
may
the above has been
it
conduct
course,
of
may,
product
consider the
of
inquiries of
limited
recommended
sort
investigations
deciding
earlier
Davis,
whether
to the same consid
cabined
pretrial discovery
conduct
on
judicial
the indi-
economy
erations
need
they happen
vidual claims
to confront.
protracted
to avoid
pretrial
litigation
matters collaterаl to the
trial—
upcoming
Necessary
Remand
for the Dis-
impinging
as well as the need to
avoid
trict Court to Exercise its Discretion
privilege.
other areas
executive
Areas
under the Correct Framework
testimony,
consideration
include the
could
otherwise,
person
agents
Having
or
case
set forth
governing
supervisors,
cases,
analysis
the in camera
standard
selective enforcement
statements, manuals,
policy
dr
agen
application Washington’s
other
we address its
cy
information,
documents. Relevant
It
hav
case.
is clear that
the District Court
filter,
ing passed
thought
by
can also be disclosed
itself bound
the more-demand
defendant, although
ing Armstrong/Bass
to the
the district
standard across the
entirety’
court
forgo
Washington’s discovery
retains discretion
re
disclosure
quest,
again
of or
then
otherwise
the use of informa
reconsideration.
restrict
that,
tion
while relevant to a
Because
its discretion
selective en
exercised
under
claim,
standard,
might
ordinarily
normally
forcement
be
the incorrect
we would
sense,
question
geo-
light
124. We
not reach the
do
common
the need to show
graphical
boundaries
the initial evidence
policy ultimately
upon,
that the
acted
or did
provide whether,
the defendant
in oth-
must
upon, persons similarly
not act
situated to
—
words,
application
er
of a -law enforce-
defendant.
policy
practice
ment
in the defendant's
specific
might
district
contextualized
its
Indus.,
Threadgill Armstrong
125. See
World
elsewhere,
application
long
so
as the defen-
Inc.,
adequately
practice
dant
connects the
else-
("[T]here
thing
no
as 'the
such
law of the
where to his or her situation. We leave this
district.’
issue to the district court's discretion and
*27
is
ton
not shown that he
“entitled”
also has
for the District Court
remand
reconsid-
already
beyond what he
ruling
light
anything
of its now-enhanced to
has
its
er
however,
Court,
government,'
received,
ad-
think that
District
discretion.
we
why,
Court,
primary reasons
its
to make
positioned
vances two
our
is better
not
view,
unnecessary.
remand
that determination.129
First,
emphasizes that it
government
will vacate the District
Accordingly, we
target
actually
any
not
select
“did
discovery
for a
orders and remand
Court’s
defendants,” suggesting that a selective
framework
we
renewed decision under
categorically
claim is
fore-
enforcement
today.
emphasize that we
articulate
We
argument
This
was raised
and
stalled.126
directing
not
the District Court
are
rejected by Davis. We
agree with the
Sev-
thumbs
grant discovery;
collective
are
our
that, although Berry “himself
enth Circuit
Rather,
commit the
not on
scale.
by [asking] the informant
matters
initiated
inquiry to
Court’s considerable
the District
robbery
then chose
opportunities
and
Court
discretion.
note that the District
We
...[,]
possi-
comrades
remains
own
chooses,
may, if it so
consider additional
[government]
not
would
ble that
by Washington on re-
information offered
investigation
had
pursued
[the crew]
any
proffer,
of his
as
part
mand
as well
as
white.”127
been
(such
testimony
information
relevant
Second,
government argues in
es-
prosecutions)
of prior
about
racial cast
sence that the matter need
be remand-
trial.
that was
disclosed
harmless;
any error was
Wash-
ed because
administrative consider
Two
everything to
he
ington received
which was
First,
require
attention.
ations
additional
gave
the District
him
when
Court
entitled
Supreme
by the
Court
as indicated
of ATF
portion
manual
a redacted
Armstrong
itself,
discovery requests like
trial. The Fourth
took
Circuit
the eve
the frame
Washington’s exist outside of
Have,
in United States v.
approach
such an
16,
P.
of Fed. R. Crim.
and are
work
Davis.
Despite quot-
shortly after
decided
to nor
challenge
neither
defense
Davis exhibiting
ing
approval
actual case.130It
against
government’s
Armstrong/Bass
some
with the
discomfort
established, moreover, that both
cases,
well
to stash-house
applied
test as
discovery
equal
orders and substantive
Circuit
that the
Fourth
decided
defendants
only
challenges
appealable
protection
they
not shown that
are entitled
“ha[d]
judgment.131According
of final
entry
after
discovery beyond
what
remanding
partial
reconsidera-
Washing-
ly,
already produced.”128While
has
463-64,
Armstrong,
Despite the Government’s claim that the that the ... crimi- -a createfe] 10-kilogram quantity only selected enterprise nal have come credible, would sug- nothing make the scheme being temptation into gests Washington' big by motivated of. any knowledge drug quantity, of a specific fiction payday, spun..out a work of any having nor is of him there evidence government agents persons vulnerable any involvement stash-house robber- ploy to such a who would not otherwise contrary, Washington To initially ies.8 doing such a thought robbery.”9 group told the that he did want Here, the Government created a crimi- explained involved He with cocaine. he nal scheme that would have otherwise “don’t fuck with coke” that he didn’t *30 Washington no prior history existed. had Agent “really do this shit.” The understood (or of stash-house robberies violent crimes Washington’s claim “really he didn’t that generally, matter), for that and he ex- Washington do this ...” to mean that did pressed get reluctance to involved with Yet, not deal in home invasion robberies. Thus, here, cases, cocaine. as ahead, in similar Agent forged greasing Roc and strong there is" a possibility Washington the skids to involve that -had Washington not conspiracy. Washington been into criminal was ulti- “fooled conspir- mately ing charged conspir- attempting and and to' arrested steal with fictitious acy to possess, attempt possess, drugs,”10 and may he well not have been kilograms more of cocaine intent to into sueked back justice sys- criminal he carried distribute after out Govern- tem. This is particularly true because he crime. ment-contrived target' not-even'the of this intended opеration. Despite past, his criminal Wash- Despite Washington’s statements initial ington not necessarily destined to disinterest cocaine and stash-house commit future “Criminals robberies, crimes. do some- I agree Washington’s ulti- change times get and their lives mate do his back actions establish intent track,” and," us, carry out Judge an theft of a Posner reminds armed cocaine from However, “we don’t want stash house. that should ob- pushing erirtie.”11,12 point. a more As anoth- scure fundamental back into [criminals] a life of Agent only earlier, Berry 8. The suggested given had that he saw As I Washington's told scheme,' kilograms over 10 during cocaine a cooler inside statements he this is not the when the two men met.- The District example Court being best into someone lured finding Berry no makes then told Wash- criminality may who otherwise contin- have ington quantity drugs of the exact restoring ued his community, life in the None-' potential robbery obtained in a stash-house theless, family, he still support had joined Washington before planning initial sentencing hearing, ones loved meeting. Washington, told the court that serving after conviction, time for his first doing was "out Black, 9. United States v. " .;. right thing good, doing having, really (9th 2013). example, acquired his own business taking community children to baseball tlte Yuman-Hernandez, Tr, games. Sentencing 36. His mother stated: F.3d doing things good "He was and how lot Kindle, J., (Posner, got caught he up beyond at 415-16 in that situation is dissenting). me.” Id. ra- Surely, sentences bear some should Sentencing
II.
Stash-
relationship
culpability.
tional
Other-
Sting
House
Cases
wise,
enterprise of criminal
the entire
case,
only
too often the
do
As
all
an
to little more than
sanctions
reduced
ensnaring those
stings risk
stash-house
Yet,
grids.
of numbers
abstract matrix
not have committed
might otherwise
who
record,
nothing
absolutely
on this
there is
crimes,
resulting
convictions
but also
suggest
Washington
would
regularly give
particularly
rise to
dubious
conspired to rob a stash
con-
house
applications
Sentencing
Guidelines
taining,
example,
kilogram
than
less
Here,
mandatory
sentences.
minimum
5-kilogram mandatory trigger.
No
typical
stings,
as is
these
Govern-
mandatory
“applied”
minimum would have
intentionally
of ficti-
ment
set the amount
baited
trap
been
with the illusion
had
drugs
substantially
at a level that
tious
containing
kilograms
of a
four
stash house
Washington’s sentencing expo-
increased
(translating
roughly
upwards
sure.
$160,000 in
on the trial testi-
value based
potential for
him
mony)
thereby placing
beyond
and abuse is
mischief
—
perceived
encouraged
applying
impose
rewarded and
reach
need
20-year
statutory
minimum
extraordinarily heavy mandatory
sanction
sentence.14
Congress
I
doubt
ever intended
exist,13
apply
no drugs
where
and where
It
repeating
is worth
*31
would
a
defendant
not have committed
prior history
robbing
no
hous-
had
of
stash
government’s
crime without the
assistance.
(let
containing any quantity of
es
cocaine
Here,
charge
the Government decided to
it),
kilograms
any history
of
or
of
alone
Washington
conspiracy involving
with a
addition,
committing
In
I
violent crimes.
as
kilograms or more of cocaine. As the ma-
noted,
initially
have
he
-stated that he did
notes,
jority
given
Washing-
quantity,
that
get
to
involved with cocaine.
want
prior
ton’s
subjected him to
convictions
a
accept
if we
the deterrent
of
Even
value
20-year mandatory
Ac-
minimum sentence.
sentences, it is
mandatory minimum
fanci-
cordingly,
District
Court concluded
ful to
would
believe that
required
impose
20-year
that it was
have been
future criminal
deterred
mandatory minimum
that
period
sentence
of in-
activity
Wash-
had a much shorter
imposed.
Judge
received.
As
Pos-
ington
carceration been
what,
His
for discussion of
during
statements
the scheme notwith-
13. See
Part III
a
infra
Congress’s original
ostensibly,
intentions
standing,
were
expressed
concerns that have been
tying mandatory
specific
for
mínimums to
about
no
fictitious stash-house schemes are
drug quantities.
troubling.
less
valid.
tactic still is
recognize
5-kilogram
I
is
that the
cutoff
12.See Alfred Blumstein and Kiminori Naka-
equally arbitrary when
are sen-
defendants
mura, Redemption in the Presence Wide-
of
drugs
quantity
actually
tenced for a
that
Checks,
spread
Background
Cri-
Criminal
degree
may
Some
be
exists.
arbitrariness
(2009) ("Recidivism
minology
327-59
scheme,
sentencing
necessary
any
this
‘clean,’
probability declines
time
so
sentencing ranges
is no less
when
true
point
person
some
when
in time
reached
a
largely
by artificially
determined
constructed
record,
with a criminal
who remained free of
ranges.
Sentencing
Federal
Guidelines
How-
justice sys-
further
with the
contact
criminal
ever,
reality
practical
that
minimize
does not
tem,
greater
counterpart
no
risk
than
negate
very
real issues
unfairness
age
of the same
has no
rec-
[who
criminal
sentencing manipulation
potential
...”).
ord].
these kinds
cases.
circumstances,
argued
ner
in similar
cocaine
trigger
has
if
would
much as
that
imposed,
a shorter
sentence had been
of imprisonment]
more months
...16
any
that
there be
serious concern
“[could]
fact,
it is usually
government’s
ini-
upon emerging
prison, Washington]
[from
scripting
tial
operations,
the stash-house
of robbing
embark on
stash
would
career
including
quantity
drugs,
that auto-
аpproached by anyone
if
houses? That
matically subjects
particular
defendants
inviting
[subsequently]
him to launch such
sentences.17
person?”151
he would listen to the
career
very troubling
government
It is
that the
think not.
conduct,
can initiate
criminal
and facilitate
My
concern is exacerbated
fact
strategic
make
result
choices
very
nationally-reported
few
cases of
culpa-
sentences
relationship
that have a
government sting operations
investiga-
is,
bility
best,
theoreti-
tenuous and
any
specify
tions
fictional
of co-
amount
observed,
cal. As
in ficti-
other courts have
than the 5 kilograms
caine that is less
government
tious
stings,
stash-house
“the
triggers
mandatory
this
minimum sen-
ability
virtually
has
to inflate
unfettered
recognized
tence.
courts
Other
this
drugs”
amount of
addition
involved—in
problem. For
example, the U.S. Court
selecting
drugs “thereby
type
Appeals for the Second
Circuit noted
—
obtaining]
greater
the de-
sentence
another stash-house case:
“mini-
government
fendant.”18The
can also
unsettling
type
It is
of re-
mize the obstacles that a defendant must
sting,
great-
verse
ahas
drugs.”19 Though
overcome to obtain the
ability
er than
usual
influence a de-
compelled
the District Court
felt
here
fendant’s ultimate
level
Guidelines
rely
quantity
on the fanciful
appears to
It
no
Govern-
sentence.
coinci-
[government]
impose
ment selected and
corre-
dence that
chose to
minimum,
no
than
sponding 20-year
[the
less
amount of sham
[use]
*32
Kindle,
(Posner, J.,
Therefore,
sting
Another district discretion,28 compounded by a concern sting prosecution using 10 kil stash-house McLern court district problems faced similar ograms of cocaine was identified: However, unlike government evidence. activity criminal
here, was able conclude that court netherworld very .by opaque. clear that its For that rear [wa]s [the nature [there] “the record *33 McLean, F.Supp.3d Id. at 20. v. 25. 938. United States (E.D. Pa. 26. Id. at 935. ultimately kilograms the 5 21. While it was Superseding the Indictment cocaine that at 27. Id. 937. 20-year charged drove that minimum, Gov- mandatory the amount the States, See, e.g., 28. Mistretta charge allowed it to Wash- selected ermpent 361, 390, 109 S.Ct. L.Ed.2d 714 conspiring kilograms ington to rob 5 or with (1989) (discussing Sentencing the Guidelines more, thereby trigger mandatory min- the and imum, “strong feeling Congress’s and that sentenc- ing primarily been and should remain has Tr, Trial 85.
22. (internal judicial quotation function” marks omitted)). Id, 23. McLean, F.Supp.3d at 935. son, of necessity, almost out law enforce- ly give large to mandatory rise minimum officers, give experiences- ment whose sentences.29 world, familiarity them are agree. I opinions certain allowed about render slang. language
use of coded and street Thus, regardless of a claim whether way, opinion used the tes- When raised, sentencing manipulation any is interpretive. is timony stash house proffered evidence about the need for a cases, sting the Government seeks given quantity type of fictitious drugs opinion testimony] disposi- [that make great deserves a more scrutiny deal than charges the tive because themselves are give Similarly, requiring courts it.30 evi- ' opinion 1) product testimony the as to only agreed dence that a defendant the amount cocaine that' would be participate given because quantity house, “expected” to in a be found stash type of drugs more than appropri- seems necessity specifying the sub- Requiring scrutiny ate. such would stantial amounts to the preserve credi- myriad problems per- eliminate the bility safety operation. There vade these stings, fictitious stash-house premise ais third unstated well—that as it help at least would minimize the targets of the sting the would have the unfairness that arise allowing can familiarity quantity same with the government drug select and the average narcotics at the stash stored quantity.that biggest will reap reward house. no sentencing with little or fear definition, opinions such By sup are sentencing question court ever would personal ported only by experience, and choices.31 “delegat[ing] should not be We dataset, exists, the extent that one [sentencing way -all the discretion] down to, by, only law created accessible agent operating individual enforcement. There no peer-re are field.”32 jqurnals viewed within the narcotics Scrutinizing drug quan- the basis way prem trade. There is no test the tity help alignment would restore be- sting operations ises which these 'are and'punishment that is culpability tween based. None means traditional jettisoned when the is allowed expert testimony can tested be sentencing expo- to control the defendant’s here, way apply yet a systematic courts legal “Deeply ingrained sure. in our tradi- expected to accept opinion such as purposeful tion is the idea that the more justification for undercover opera inexorably severely tions the criminal conduct ... the more indiscriminate particular Id. at matches what is "realistic” á 936-37. suggests geographic region 'also that defen- Here, probe Court did District across the United States could theoreti- dants which, notes, testimony, Majority cally subjected minimum n,73. certainly Maj. Op. was free to do. at 212 *34 drug quantities sentences if the stash-house Majority suggests,' As the further there had allowing happen for such -a sentence to be fact-finding by been more the District Court areas, geographic they for as "realistic” those issue, testimony on this some to the deference apparently Philadelphia. in drug quantity may appro- about the been have priate. 212-13 n.78. Id. at 32,United Staufer, 38 wholesale, accept, To the unsubstantiated 1994). , quantity rationale a drugs fictitious that scrutiny unique justice to criminal closer ought it be Absent necessitate punished.”33 with, here, originate for that not evident a defen- schemes and are circumstances enforcement it is exposure by, linked driven law because criminal should dant’s be regarding highly unlikely Sentencing that culpability to actual deal- the Guide- his/her cir- drug quantities. apply lines intended to to such ings specific were scrutiny appropriate This is cumstances.37 sentencing manipulation is Insofar gov- specific evidence that the even absent concerned, question is not whether “[t]he defen- ernment “intended” inflate a underlying criminal the conviction is law- dant’s sentence.38 ful, rather whether there is reason to My colleagues precedent our the sentence discuss reduce due induce- rejecting v by police or their United States ments used undercover Twigg39 sentence, Moreover, Washington’s claim that the “a sentеnce based agents.”34 of his resulted this scheme is denial culpability defendant’s evaluation I conduct, right process. due particular in- would for offense constitutional however, Twigg emphasize, does not police cludes consideration induce- ments,” any sentencing manipu- claim of goals of defeat the retributive serves Indeed, anything, strongly if Twigg lation. punishment,” and fair “proportional recognize suggests some consequentialist we should “compatible with aims sentencing manipulation factor kind incapacitation deterrence,”35 appropriate. Although, by systemic claim when for rea- “directly supported goal Majority explains, sons the conduct identifying blameworthy less defendants may process here not have crossed the mitigating according- their sentences due Washington’s I sen- principles of believe These fundamental threshold,40 ly.”36 Arizona, 137, 156, disagree Majority’s suggestion with 40.I 33. Tison v. 481 U.S. (1987). Washington prejudice has not be- L.Ed.2d shown S.Ct. sentence was cause ultimate Tinto, Policing, significantly 34. Eda Katharine Undercover the recommended Sen- below Culpability, itself, tencing range. Majority, Overstated Cardozo L. Rev. Guidelines The 1401, 1454(2013). “clearly concludes that the District Court was guided minimum term added). (emphasis 35. Id. at 1418 crafting sen- counts the overall Maj. Op. The tence.” n.55. District 36. Id. at 1420. whether; mentioned or the Court never extent which, may departed from the rec- have 37. See Part III. Sentencing range had infra ommended Guidelines required impose a sentence of it not been Tinto, supra (concluding 38. See n.34 at 1426 years. at least claim, sentencing "in the of a context persuasive Neither do I find the distinction requirement improper [police] of an motive Majority maltes this case and between ignores police the needed link between the McLean, Washington could extent that justification conduct for and the a reduction rely persuasive for on that case whatever val- "[rjegardless in sentence” because whether process argument. may ue it for due police explicitly making strategic officers are Majority, example, discusses that the (and sentencing choices based on laws "split” jury in McLean defendant received sentence), suspect's desire to increase a (5 involved on the amount cocaine verdict motivation for the law enforcement conduct kilograms regard conspiracy with but 500 may may used the inducements regard grams attempt) there and that perspective assessing relevant from equivalent ambiguity” jury's was "no in the culpability”). defendant's jury here. But that verdict highlighted finding, while it the' "inherent F.2d 373 *35 traffickers,” i.e., fencing manipulation apply claim is more merito- to “serious “man- Majority than the concludes. rious agers retail level traffic ... in sub- quantities.”43 stantial street Despite Con- Sentencing Manipulation III. Factor gress’s intention for mandatory minimums Mandatory Minimum culpability reflect on drug quanti- based Sentences ties, has, time, over target- law instead fact that the sentence mandato- The (e.g., ed low-level offenders street-level ry necessarily not fatal does deal a blow couriers) dealers and more often than manipulation sentence claim. high-level For example, offenders.44 in Congress It is difficult believe that ever 2009, relatively offenders mi- sentenced for requiring imposition of a considered nor represented roles the biggest share 1) mandatory minimum where sentence offenders, drug federal highest- while the drug the sentence is tied to a fictitious level traffickers made aup comparatively origi- in a criminal quantity endeavor drug small of federal share offenders.45 government, nates with the The not explained by disconnect is the fact engaged defendant would in the that there are low-level than more government’s criminal conduct but for the dealers high-level prompting encouragement. Sentencing traffickers. U.S. Commission itself 2011 that concluded Congress 10-year intended for man- quantity “the drugs involved an of- datory apply minimum sentences to closely fense is to the of- related traffickers,”41 i.e., “major “manufacturers perhaps fender’s in the function offense as organizations.”42 or the heads of The 5- year mandatory Congress were intended expected.”46 minimums presented problems” prosecutions testimony-and-reports/mandatory-minimum- these court, McLean, F.Supp.3d penalties/20111031 the district at -rtc-pdf/Appendix_D.pdf;' Comm’n, Sentencing one of the "factors” that led the Special Report see U.S. enforcing court to conclude that the mandato- Congress: to the Cocaine and Federal Sentenc- ry process.” 20-21, 2007). due minimum would "offend Id. ing Policy, (May See also Regardless any "ambiguity,” at 943. Young, Rethinking Deborah Commission's jury guilty still found McLean the defendant Drug Quantity Guidelines: Courier Cases where conspiring possess kilograms or more Rptr. Culpability, Overstates 3 Fed. Sent. which, of cocaine "absent some constitutional (1990) (tracking disproportionate severity prohibition,” purportedly "bound” the district quantity-based penalties lower-level Court a man- court —like the District here —to drug observing offеnders and further datory minimum sentence. Id. at 938. Sentencing quantity-based Guidelines often key apply culpable less to defendants than Comm’n, Sentencing Report Special 41. U.S. players, targets “primary who Congress: Sentencing Cocaine and Federal laws”). (1995). Policy, 119 99-845, Rep. Cong., 42. No. 2d Sess. H.R. 99th Comm’n, Sentencing Report U.S. 295596; Cong. 1986 WL also 132 see Congress: Mandatory Penalties in Minimum 30, 1996); (daily Sept. Rec. 193-94 ed. (October System the Federal Criminal Justice Cong. (daily Sept. Rec. ed. 2011), D, D-22, Figure Appendix available https://www.ussc.gov/sites/default/files/pdf/ news/congressional-testimony-and-reports/ Id. mandatory-minimum-penalties/20111031-rtc- pdfMppendix_D.pdf. Comm’n, Sentencing Report 44. U.S. to the Congress: Mandatory Penalties in Minimum Comm’n, Sentencing Report to the System, Appendix the Federal Criminal Justice D, D-22, Congress: Mandatory Figure https://www.ussc. Penalties available at Minimum 350, (Oc- gov/sites/default/files/pdf/news/congressional- System, Criminal Justice Federal *36 232 Thus, necessary, comply pur is no than with the there reason believe ”48
Congress anticipated poses [sentencing].’ quoted intend- there less We —much mini- quantity-based mandatory Supreme ed—for Court’s admonition that this apply in reflexively stash-house mums to requirement, “the'parsimo referred as where, here, the is not cases as .defendant 3553(a)’s ny § provision,” is 18' U.S.C. “ ”49 “drug” offender, also only a low-level but ‘overarching instruction.’ drugs involved became with non-existent Despite that 21 our conclusion U.S.C. urging. The circum- government’s at the 841(b)’s § mandatory minimum sentence will.rarely stings phony stances such 3553(a)’s § provision does not conflict with mandatory minimum lend themselves to a parsimony provision,50 abandoning “de sentence, Congress suggest intend- parsimony overarching is mand of Con- mandatory apply. minimum to ed a. congressionally instruction of mandat perverting cluding risks both otherwise unin sentencing ed factors”51 seems an congressional manda- intent behind the drug stings. in phony tended result There and, tory explained, Ias mínimums have drugs are no that would endan judges’ otherwise circumventing traditional federal ger community, criminal sentencing con authority.47 probably would been spiracy never have Moreover, mandatory sen applying law enforcement’s inter hatched tences criminal where the conduct and the Congress vention direction. could not drugs type only exist quantity courts to otherwise impose intended imagination, the law enforcement’s fertile applicable mandatory minimum sen posses rather than an offender’s actual we have as “drac tences—which described sion, congressional intent defeats onian”52 —where the criminal cоnduct is requiring judges impose sentences that government’s initiative, the result of the guided 18 factors U.S.C. 3553(a), I § rather also find it United v. than a Olhovsky, States defendant’s. U.S.C, 3553(a) § Congress hard believe that would “[18 ] stressed that create clearly exceptions mandatory must impose states that a court minimums greater spare is but not exposure sentence.that ‘sufficient actual traffickers 2011) https://www.ussc.gov/ Kimbrough (quoting tober available at 548 Id. at United U.S, 111, 558, States, 85, sites/defaull/files/pdf/news/congression al-tes- 128 S.Ct. 169 . L,Ed.2d (2007)) timony-and-reports/mandatory-minimum-pen- l-rtc-pdf/Chapter_12.pdf, alties/?011103 See, Walker, e.g., United 473 F.3d 47, (3d My limited to (finding'that is sentences there is no discussion im- posed punishment 'mandatory § as for involvement in a and a conflict between 3553' phony sting. provision I do stash-house not intend to minimum sentence because 3553(a) suggest designed "§ primarily conjunction that a read in sentence must be incapacitate 3553(e), § inappropriate. prohibits necessarily [] courts necessary sentencing pro- statutory Such may sentences a defendant below community tection of in rare circum- minimum sentence unless However, phony stings permitting stances. stash-house motion Government files a such ever, rarely, present departure”). if will a court with such do, circumstances, they when I have ev- (internal ery Olhovsky, quota confidence that the district court will sen- F.3d omitted). accordingly. tence tion marks (3d 2009), v. Williams, 52. See States 2002). (May amended intending statute while would draconian sentences53 . otherwise forbid.56 This *37 apply those same harsh when sanctions “[w]hen because court manipu- filters the government into lured a be defendant lation out of sentencing calculus before ing drugs involved never even that applying a provision, sentencing no manda- existed. tory minimum would arise' the first place.”57 intent, addressing Congress’s
In I rec- ognize that is' ambiguity there no on the Ironically, may it lay well be testi- mandatory sentencing face minimum mony Clover, Washington’s Rashida sis- 841(b)(1) § 21 statute. not U.S.C. does dis- caretaker, ter and former that best ex- tinguish roles in a con- between narcotics presses the' arbitrariness of applying nor spiracy, require drugs it does that mandatory govern- sentence where the actually surprising, exist.54That is not as it ment no drugs initiates crime and áre something approaching would have taken involved. At hear- sentencing clairvoyance Congress that for to foresee remarked; ing, she these severe extend to sentences would years? ... My already brother [has] drugs actually not situations where were .., spent jail. half of life in That’s event, is, course, any In involved. it "оf doing not anything. ... It’s rehabili- axiomatic Congress “[w]hen that estab- tating ... him. heWhat needs is edu- particular lishes a minimum sentence for a cation opportunity. and an ... I under- crime, required district courts are to sen- stand that District [the Court has] guilty tence defendants of that crime to a guidelines to go by,- ... I can’t imprisonment term of no less than the ;.. imagine that book [the] Guideline minimum, Congressionally prescribed un- go said ... young out and entrap men explicit exception an to the minimum less organized who are not in organized sentence applies.”55But as the U.S. Court crime and sentence people for fake Appeals for the Eleventh ex- Circuit drugs put their own adjustment ... limitations on plained, “[c]onceptually, sentencing for the amount manipulation drugs just factor is not a to give departure” mandatory minimum them a years that [minimum] sentence or Williams, one of addressed those tence: file must a motion to exceptions Congress’s enactment recognize the defendant’s “substantial assis- — Id, 3553(f). “safety § tance,” valve" in U.S.C. is It or the defendant must fall within the surprising Congress did not include provisions "safety valve” embodied in stings phony situations such as See, stash-house 3553(f). e.g., § 18 U.S.C. United States v. statutory exceptions applying manda- Kellum, (3d 2004). 356 F.3d Cir. sentences; tory Congress likely minimum nev- contemplated er accu- situation. Williams Winebarger, United States v. 664 F.3d rately lengths mandatory characterizes the (3d 2011); see also United States v. “draconian," exceptions minimums Reevey, 631 F.3d valve, 3553(f)’s safety § like 18 U.S.C. (stating "exceptions that the only are the au- 3553(e) (granting authority govern- § upon thority depart district court has to below a a. minimum, motion), Congress’s ment evince Kellum, mandatory (quoting minimum" mandatory intention sentences need 289)). F.3d at always imposed. be Ciszkowski, 56. United States v. out, points 54. As the are Government there only two under which a dis- circumstances depart trict court can from a statu- downward torily mandatory authorized minimum sen- Id. I hardly think whoever creat- minimum sentences would
more.... I happen. that book meant this ed Nevertheless, just it apply may here. manipulated system being feel like systematic the ultimate resolution embarrassing and by that. And it’s ... approach to very troublesome sentenc- people lot of it’s hurtful because a ing by await clarification Con- will by just This is not being affected this. gress, Sentencing or the Commission,59 .This a lot my brother... is about Meanwhile, Supreme Court. that are af- people our communities echoing my colleagues’ caution: The worth They really this. fected are.58 *38 today not be Government’s success should mini- agree apрlying mandatory I that interpreted prose- a clue that “all such drugs in no mum sentences cases where cutions share the same fate” will government originates and exist and the future.60 perpetuates activity the criminal creates divergence such an unfair and irrational this Hopefully, problem will be resolved that Con- culpability between and conduct by I men- just one of the authorities have hardly gress could the re- have intended comes, day Until that left tioned. are sult. very poignant with the observation Ms. Clover, experienced who has our sentenc- Conclusion IV. ing “up personal.” As quot- close laws why is the This case latest illustration earlier, skeptical ed she was “whoever country federal courts across the continue [Sentencing book created that Guidelines] government’s phony find reliance happen,” meant for and that “the sting operations disturbing. As stash-house manipulated by system being is that.”61 I explained, raise these cases serious “embarrassing She added it is and it’s destroying of fairness the fun- issues while people being hurtful because a lot of relationship culpability damental between punishment important so they is so are. affected this.”62 And sentencing. being The sanctioned conduct government’s
is the result of the direct
initiative rather than the defendant’s.
I exceedingly reiterate that it is difficult Congress conclude that ever considered Sentencing Sentencing Tr. 36. Commission is aware allowing drug unfairness and arbitrariness Sentencing already 59. The Commission has agents put pres- enforcement unwarranted "recognized potential sure on his a defendant order to increase agents knowledge to use their of the Sentenc- regard predis- or her without for his sentence ing manipulate quantity Guidelines to position, capacity his crime on commit the drugs sting sold in a reverse in order to own, culpability.” and the extent of his increase a defendant’s sentence.” United Staufer, (8th Stavig, 1245-46 States "Sentencing But the Commis- 1996) (discussing Application how under may sion’s determination that the defendant 2Dl.l(b)(17), § Note 17 of U.S.S.G. district departure gov- when the receive a downward depart court downward when law en- can price artificially ernment lowers the agents price forcement below market set a drugs only ways ... addresses one of the purchase signif- that allows the defendant to agents enforcement are able to icantly larger quantity drugs, Ap- manipulate Id. sentences.” plication § Note 12 of 2D1.1 instructs a dis- sentencing trict court to remove from the Maj. Op. at 213. calculation the amount that a defendant produce produced unable to if the amount Sentencing Tr. 36. negotiated). provisions less than of tire 62. Id. Sentencing place “show[] Guidelines