Lead Opinion
Affirmed by published opinion. Judge-FLOYD wrote the' opinion, in which Judge SHEDD and Judge BIGGS joined. Judge SHEDD wrote a separate concurring opinion.
. A jury convicted Appellants Shane Hare, Gregory Williams, and Antonio Edwards of drug, robbery, and firearm offenses based on their participation in a plan to rob a cocaine “stash house.” Unbeknownst to. Appellants, the stash house did not actually exist,, but was fabricated by undercover federal agents as part of a sting operation. Appellants challenge the district court’s denial of their motion for discovery into potential race discrimination by law enforcement and motion to dismiss the indictment on due process grounds. They also challenge various other aspects of their convictions. For the reasons set forth below, we affirm.
I.
In February 2013, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) received information from a confidential informant identifying Marvin Bowden as an armed drug trafficker and suspect in several burglaries, armed robberies, and home invasions in Prince George’s County, Maryland. Based on this • information, ATF and the Prince George’s ■ County Police Department (PGPD) initiated an undercover operation whereby they would present Bowden with the opportunity to rob a fictitious cocaine stash house and, if all went according to plan, ultimately arrest him. and any accomplices for conspiring to traffic drugs and related crimes.
On April 19, 2013, PGPD undercover detective William Weathers met with Bow-
On May 3, 2013, ‘Detective Weathers again met with Bowden and' introduced him to ATF Special Agent Christopher Rogers, also acting undercover.
On May 9, 2013, Agent Rogers met with Bowden and his crew, consisting of Appellants Hare, Williams, and Edwards. Bow-den himself recruited Appellants, none-of whom were previously known to ATF. At the meeting, Agent Rogers repeated his story of being a disgruntled drug courier looking for a crew to rob his cartel’s stash house. Agent Rogers stated that he wanted to keep 2 kilograms of cocaine for himself but the' crew could divide whatever else they were able- to seize, emphasizing that the stash house contained 10 to 15 kilograms of cocaine. He also cautioned that the stash house guards had a “chopper” (i.e., an automatic weapon). The crew (led by Edwards) discussed how to execute the robbery. They decided that the fastest two, Hare and Williams, would enter first while shouting “police!” and secure the chopper. Bowden and Edwards would follow and secure, the guards using zip ties and duct tape. If necessary, Appellants and Bowden would shoot the guards below the waist but would not shoot to kill. When Agent Rogers asked if Appellants had weapons, Edwards replied “[everybody got their • own. gun,” and Williams confirmed, “[t]hat ain’t no problem.” J.A. 780. Edwards also proposed a “Plan B” in case they were unable to enter the stash house. .Under Plan B, Bowden and Appellants would pretend to rob Agent Rogers of his 5 kilogram shipment, and the group would split the lesser amount. Agent Rogers stated that he could procure a rental car . for their getaway. Appellants agreed to. the plan and gave Agent Rogers their phone numbers.
Appellants, Bowden, and Agent Rogers next met on -May 14, 2013. Agent Rogers informed the group that his next drug pick-up would be at 1:00 p.m. two days later, on May 16, which is when the robbery would occur. . Edwards, confirmed that the group was “ready.” J.A. 795. Agent Rogers advised that they should be assembled by 10:00 a,m. on the day of the robbery, and Bowden proposed staying in a hotel the. night before so they would already be together. The crew (again led by Edwards) reviewed the plan (i.e., Plan
On May 16, 2013, Bowden and Appellants met Agent Rogers at a storage facility, which was the predetermined staging location for the robbery. The crew confirmed that they were ready to proceed and reviewed both Plan A and Plan B. Williams confirmed that they would be armed. Agent Rogers then gave the take-down signal and ATF 'agents surrounded the group, arresting Bowden and Appellants. ATF agents recovered a Kimber brand firearm'from inside a locked glove box in Bowden’s vehicle, a Beretta brand firearm that Hare had thrown under thé vehicle, a black mask, and a pair of gloves.
Appellants were each charged with the same four counts: (1) conspiracy to interfere with commerce by robbery (i.e., a “Hobbs Act” robbery), in violation of 18 U.S.C. § 1951(a); (2) conspiracy to possess with the intent to distribute, cocaine, in violation of 21 U.S.C. § 846; (3) conspiracy to possess a firearm in furtherance of a drug trafficking crime or a crime of violence, in violation of 18 U.S.C. § 924(o); and (4) possession of a firearm in furtherance of a drug trafficking crime or a crime of. violence, in violation of 18 U.S.C. § 924(c).
• Before trial, Appellants moved for discovery into whether race played a role in ATF’s decision to target Bowden and Appellants for a stash house sting operation. The district court denied the motion, though it ordered the government to produce to Appellants one page out of ATF’s training materials for conducting such operations. Appellants also moved to dismiss the indictment on the ground that the government had engaged in outrageous conduct that violated their due process rights. The district court denied this motion as well.
After a seven-day trial, .the jury returned a special verdict finding Appellants guilty on all counts. The district court sentenced Hare to 132 months of imprisonment, Williams to 150 months, and Edwards to 240 months. Appellants filed this appeal challenging, among other things, the district court’s denial of their motion for discovery and motion to dismiss, as well as their convictions for the firearm offenses in Counts 3 and 4.
H.
A.
. Appellants first contend that the district court erred in denying their motion for discovery into whether ATF targeted Bow-den and Appellants for a stash house sting operation because they are black, i.e., whether ATF engaged in selective enforcement. In support of their motion, Appellants presented evidence indicating that there , had been a total of 5 stash house sting cases prosecuted in- the District of Maryland since 2011 (including this case) and that all 20 defendants in those cases were black. On appeal, Appellants have
The district court denied Appellants’ motion, finding that their evidence did not satisfy the standard for discovery set forth in United States v. Armstrong,
B.
In Armstrong, the Supreme Court addressed the standards of proof applicable to a claim of selective prosecution, i.e., a claim that the “prosecutor has brought the charge for reasons forbidden by the Constitution,” such as race.
The standard for obtaining discovery, in support of a selective prosecution claim ¡is only “slightly lower” than for proving the claim itself. Venable,
This Court has adopted Armstrong’s standard for proving selective prosecution as the standard for proving selective enforcement. See United States v. Bullock,
Appellants’ statistical evidence, indicating that all 32 defendants prosecuted in stash house sting cases in the District of Maryland have been black, does not meet Armstrong’s discovery standard. We have explained that “absent an appropriate basis for comparison, statistical evidence [of racial disparity] alone cannot establish any element of a discrimination claim.” Olvis,
Appellants’ statistical evidence similarly provides no appropriate basis for comparison, as it contains no data on similarly situated white individuals who could have been targeted for stash house sting investigations but. were not. Instead, Appellants point to one white crew “involved in robberies and drug distribution” in the District of Maryland. Appellants Br. 36. It is far from clear, however, that this crew is “similarly situated,” in the sense that “their circumstances present no distinguishable legitimate [enforcement] factors that might justify making different [enforcement]' decisions with respect to them.” See Venable,
Even if we assumed that Appellants’ statistical evidence “had a basis for comparison that showed discriminatory effect, it would not necessarily prove discriminatory intent.” Olvis,
Appellants argue, however, that their selective enforcement claim should not be held to the discovery standard articulated in Armstrong for claims of selective prosecution. Appellants highlight important differences in proving the two types of claims. 1 First, Appellants note that it is considerably harder to demonstrate that a law enforcement action has a discriminatory effect, as there are less likely to be records of similarly situated individuals who were never investigated' or arrested. As the Seventh Circuit has explained, in a case involving racial profiling in traffic stops:
In a meritorious selective prosecution claim, a criminal defendant would be able to name others arrested for the same offense who were not prosecuted by the arresting law enforcement agency; conversely, plaintiffs who allege that they were stopped due to racial profiling would not, barring some type of test operation,. be able to provide the names of other similarly situated motorists whp were not stopped.
Chavez v. Illinois State Police,
. Second, Appellants note that Armstrong was primarily concerned with respecting the province of federal prosecutors, who are “designated by statute as the President’s delegates to help him” execute the nation’s laws, and thus enjoy a. “presum[ption] that they have properly- discharged their official duties.” Armstrong,
Agents of the ATF and FBI are not protected by a powerful privilege or covered by a presumption of constitutional behavior. Unlike prosecutors, agents regularly testify in criminal cases, and their credibility may be relentlessly attacked by defense counsel. They also may have to testify in pretrial proceedings, such as hearings on motions to suppress evidence, and 'again their honesty is open to challenge. ' Statements that agents make in affidavits for search or arrest warrants may be contested, and the court may need their testimony to decide whether if shorn of untruthful statements the affidavits would have established probable cause.... Before holding hearings (or civil trials) district judges regularly, and properly, allow discovery into nonprivileged aspects of what agents have said or done. In sum, the sort of considerations that led to the outcome in Armstrong do not apply to a contention that agents of "the FBI or ATF engaged in racial discrimination when selecting targets for sting operations, or when deciding which suspects to refer for prosecution.
United States v. Davis,
Appellants’ arguments are well taken. However, even if we assume that their evidentiary showing is sufficient to warrant discovery into selective enforcement, Appellants have not shown that they are entitled to discovery beyond what the government has already produced. The government has already provided Appellants with ATF’s criteria for choosing a stash house sting target, and the district court reviewed an even broader set of ATF documents for information relevant to Appellants’ selective enforcement claim. ATF’s selection criteria do not suggest any discriminatory motive. Instead, they indicate that ATF followed its protocol in selecting Bowden as a target, and Bowden, not ATF, recruited Appellants. We conclude that Appellants have received all the discovery to which they are entitled, and affirm the district court’s denial of their motion for discovery.
Appellants next challenge the district court’s denial of their motion to dismiss the indictment on due process grounds. Because the relevant facts are not in dispute, our review is de novo. See United States v. Hatcher,
Appellants claim that ATF’s conduct in this case was so egregious as to violate their Fifth Amendment due process rights and thus preclude prosecution. They invoke the theory, first articulated in United States v. Russell,
Appellants’ theory as to a due process violation is less than clear. However, their primary arguments appear to be that ATF behaved outrageously by failing to investigate whether Appellants were predisposed to committing stash house robberies or similar crimes, and by providing an inducement so lucrative as to be unreasonable.
The government does not deny that ATF had no knowledge of Appellants before Bowden introduced them to Agent Rogers, and that ATF subsequently undertook no investigation to determine whether they had' violent criminal histories and were therefore appropriate targets for a stash house sting. Indeed, it appears that Hare and Williams have only minimal criminal records and no record of violent crimes. See J.A. 176, 180. While this is troubling, particularly since Appellants now each face more than 10 years of imprisonment, it does not rise to the level of outrageous conduct.
We also do not find outrageous the size of the inducement, 15 to 20 kilograms of cocaine in total.
Finally, we do not find it outrageous for ATF to utilize stash house stings as an investigative tool. We have noted that “[o]utrageous is not a label properly applied to conduct because it is a sting or reverse sting operation involving contraband.” United States v. Goodwin,
IV.
Appellants next challenge their convictions for possessing a firearm in furtherance of a drug trafficking, crime or a crime of violence, in violation of ,18 U.S.C. § 924(c) (Count 4). Appellants contend that the district court’s instructions on aiding and abetting liability were erroneous under Rosemond v. United States, — U.S. —,
A.
In Rosemond, the Supreme Court held that to establish a violation of § 924(c) based on the theory that the defendant aided and abetted the offense, the government must prove “that the defendant actively participated in the underlying drug trafficking or. violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.”
Appellants contend that the district court’s aiding and abetting instructions were erroneous because they did not require Appellants to know in advance that guns would be involved in the robbery. Because Appellants did not object to the instructions below, plain error review applies. United States v. Robinson,
Assuming that the district court’s instructions were erroneous and the error was plain, we find that the error did not affect Appellants’ substantial rights. Hare admitted to possessing the Beretta firearm, and the verdicts against Williams and Edwards may be sustained under the Pinkerton theory of liability. “The Pinkerton doctrine makes a person liable for substantive, offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy.” United States v. Ashley,
B.
Appellants also challenge their firearm convictions on the ground that, after the Supreme Court’s decision in Johnson v. United States, — U.S. -,
We need not reach the merits of this argument.
V.
Appellants raise various other challenges to their conviction and sentences. We have reviewed Appellants’ arguments and find them to be without merit. Thus, we affirm the district court.
AFFIRMED
Notes
. ' ATF has conducted such investigations, also known as “home invasion” investigations, across the country, in recent years. See, .e.g., United States v. Davis,
. This meeting and the subsequent three meetings between Agent Rogers, Bowden, and Appellants were recorded and transcribed. ■
. Bowden entered a plea agreement and ultimately received a ten-year sentence.
. The government does not dispute Appellants’ statistics or their characterization of the Paschall case.
, See U.S. Atty’s Office, Dist. of Md., Dept, of Justice, 16 Defendants Charged In A Commercial Burglary Ring and Drug Conspiracy (July 18, 2013), https://www.justice.gov/usao-md/pr/ 16-defendants-charged-commercial-burglary-ringand-drug-conspiracy (describing defendants as committing "commercial burglaries, home invasión armed robberies, arsons and other crimes at convenience stores, gas stations, financial institutions, restaurants[,] homes and liquor stores,” in which "[slates and ATMs ’are primarily targeted and taken,” and "PJottery tickets and cigarettes are also taken along with other valuables”) (saved as ECF opinion attachment).
. Appellants allege that ATF 'was "willfully blind” to the racially disparate impact of its stash house sting operations; however, willful blindness does not evince discriminatory intent, as "discriminatory intent implies that the government ‘selected or reaffirmed a particular course of action at. least in part because of, not merely in spite of, its adverse effects upon an identifiable group.’" Venable,
Appellants also suggest that ATF deviated from its protocol by failing to investigate Appellants' criminal backgrounds to ensure that they were violent offenders, and that such deviation is "evidence that improper purposes are playing a role.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
. Government inducement and a defendant’s lack of predisposition are the elements of an entrapment defense, See United States v. Sligh,
Nevertheless, we note that we would reject an entrapment claim, were Appellants raising one. When the issue of entrapment is submitted to the jury, a guilty verdict "comprehends a finding of no entrapment” and “an appellate court may overturn this determination only if no rational trier of fact could have found predisposition beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution.” United States v. Jones,
. "Inducement” for purposes of entrapment means "solicitation plus some overreaching or improper conduct on the part of the government.” United States v. Hsu,
. Indeed, in Count 2 the jury found Appellants guilty of conspiring to traffic "500 grams but less than 5 kilograms” of cocaine, J.A. 977-78, consistent with the plan to stage a robbery of Agent Rogers’s 5 kilogram shipment.
. In Johnson, the Supreme Court held that the definition of "violent felony” found in the residual clause of the Armed Career Criminal Act is unconstitutionally vague.
. Because Appellant Edwards is represented by counsel, we deny his motions for leave to file pro se supplemental briefs. See United States v. Penniegraft,
Concurrence Opinion
concurring:
I agree completely with the legal analysis of the majority. I write separately to note that, unlike the majority, I am not troubled by the investigation and prosecution of these defendants. The evidence presented in this ease shows that these defendants were willing to undertake criminal acts — including violent acts — in connection with the armed robbery of illegal drugs. Law enforcement did not independently recruit these defendants; rather, they were part of a “crew” who were willing to be involved in the armed robbery at the behest of their leader, Bowden, who enlisted their involvement. Moreover, the defendants had the opportunity to present their theory of entrapment to the jury but, not surprisingly under the facts of this case, the jury believed these defendants were predisposed to be involved in the charged offenses.
In short, as the majority correctly holds, the Government conducted itself lawfully, and these defendants were properly convicted and sentenced. There is nothing troubling in that.