U.S. v. Hare (Lawyers Weekly No. 001-070-16, 31 pp.) (Floyd, J.) No. 14-4758, April 19, 2016; USDC at Greenbelt, Md. (Chasanow, J.) 4th Cir.
Holding: The 4th Circuit affirms drug, robbery and firearm convictions for three defendants arising from their plan to rob a cocaine “stash house,” which did not actually exist but was fabricated by undercover federal agents as part of a sting operation; the appeals court upholds the district court’s denial of the motion for discovery into potential race discrimination by law enforcement and motion to dismiss the indictment on due process grounds.
In their selective prosecution claim, defendants presented evidence indicating that there had been a total of five 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, defendants have revised those figures to eight prosecutions involving 32 defendants, all of whom were black.
Defendants seek discovery concerning the methodology employed by ATF in these cases, their selection criteria for targets, their use of informants and any efforts to ensure law enforcement did not ensnare the otherwise innocent and those lacking predisposition. The district court ordered production of one page from agent training materials that set forth procedures and guidelines for selecting a target.
Defendants’ statistical evidence 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. Defendants point to one white crew “involved in robberies and drug distribution” in the District of Maryland. It is far from clear, however, that this crew is “similarly situated.” Even if we assumed defendants’ statistical evidence had a basis for comparison that showed discriminatory effect, it would not necessarily prove discriminatory intent.
We conclude defendants have received all the discovery to which they are entitled, and we affirm the district court’s denial of their motion for discovery.
It appears two of the defendants have only minimal criminal records and no record of violent crimes. While this is troubling, particularly since defendants now each face more than 10 years in prison, it does not rise to the level of outrageous conduct.
Defendants were not targeted by ATF but recruited by a fourth defendant, whom ATF targeted based on information that he was an active, armed drug trafficker. It was not outrageous for the government to infer that the fourth defendant would recruit people who were willing and had the requisite experience to rob an armed stash house. We affirm denial of the motion to dismiss the indictment.
Shedd, J.: 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 shows they were willing to undertake criminal acts – including violent acts – in connection with the armed robbery of illegal drugs. Defendants had the opportunity to present their theory of entrapment to the jury but, not surprisingly, the jury believed these defendants were predisposed to be involved in the charged offenses.