In an Opinion and Order in United States v. Lopez, 19-cr-323 (S.D.N.Y. November 13, 2019), Judge Rakoff ordered initial discovery on the defense claim that DEA agents targeted racial minorities in their reverse sting drug robbery operations. In this reverse sting, confidential informants working with the DEA recruited the defendants, all men of color, to rob fictitious drug shipments. The defense filed a motion with evidence showing that “not a single one of the 179 individuals targeted in DEA reverse sting operations in the SDNY in the past ten years was white, and that all but two were African-American or Hispanic.” This contrasted significantly with the racial makeup of the population and the racial proportions of those arrested for felony drug arrests and robberies, the two offenses arranged by the reverse sting. A “compelling expert analysis” demonstrated that the racially disparate impact was statistically significant and not random.
Judge Rakoff rejected the government’s contention that the defense had to show still more under the strict standard for selective prosecution set forth in United States v. Armstrong, 516 U.S. 806 (1996). First, Judge Rakoff reasoned that the nature of a drug robbery reverse sting – in which the government selects the targets and has “total control over the parameters of the robbery”– makes it “highly susceptible to abuse,” and therefore it should be open to discovery on a lesser showing. Second, the decisions of law enforcement agents are not accorded the “presumption of regularity [and] constitutional behavior” as prosecutorial decisions. Third, the Armstrong standard, which requires a threshold showing that “similarly situated individuals have not been similarly prosecuted,” would “functionally preclude” any discovery in a selective enforcement case. While such a showing can be made in the selective prosecution context by comparing arrest and prosecution data, this standard would require a selective enforcement claimant to show who agents “could have investigated but did not,” something “impossible to prove.” Thus, Judge Rakoff followed the holdings of Ninth, Third, and Seventh Circuits in requiring a lesser showing for discovery of selective enforcement claims in reverse sting cases. United States v. Sellars, 906 F.3d 848, 850-51(9th Cir. 2018); United States v. Washington, 869 F.3d 193, 223(3rd Cir. 2018); United States v. Davis, 793 F.3d 712, 714 (7th Cir. 2015).
The court held that discovery is warranted in such a case upon a showing that a group has been singled out “to a statistically significant extent in comparison with other groups.” This standard was met by the data and expert report submitted. Judge Rakoff decided to proceed with discovery incrementally, with a first round requiring production of all DEA manuals, protocols and guidelines for originating reverse stings and the notes, memoranda, and investigative material showing how these defendants were evaluated and identified. After this initial round, further steps will be determined.