In United States v. Seller, --- F.3d ---, No. 16-50061 (9th Cir. 2018), the Court vacated the district court’s order denying the defendant’s motion seeking discovery on a claim of selective enforcement.
This case arose from yet another reverse sting operation to rob a fictitious stash house. The defendant sought to challenge the prosecution on the ground of selective enforcement -- i.e., that he was targeted by law enforcement based on his race.
The question on appeal was what threshold showing is required to obtain discovery from the government in favor of a selective enforcement claim.
As the Court explained, a selective enforcement claim is different than a selective prosecution claim:
"Selective prosecution is not selective enforcement— especially not in the stash house reverse-sting context. There are two main differences that warrant departure from the Armstrong standard: First, law enforcement officers do not enjoy the same strong presumption that they are constitutionally enforcing the laws that prosecutors do. Second, the nature of reverse-sting operations means that no evidence of similarly situated individuals who were not targeted exists."
Thus, joining the Third and Seventh Circuits, the Court declined to adopt the rigorous Armstrong standard that applies to selective prosecution claims:
"Today we join the Third and Seventh Circuits and hold that Armstrong’s rigorous discovery standard for selective prosecution cases does not apply strictly to discovery requests in selective enforcement claims like Sellers’s. Contrary to Armstrong’s requirements for selective prosecution claims, a defendant need not proffer evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on his selective enforcement claim in a stash house reverse-sting operation case. While a defendant must have something more than mere speculation to be entitled to discovery, what that something looks like will vary from case to case. The district court should use its discretion—as it does for all discovery matters—to allow limited or broad discovery based on the reliability and strength of the defendant’s showing."
And "Because the district court applied an incorrect legal standard, we follow our normal practice of remanding to the district court to determine in the first instance whether Sellers has met the standard we outline today."
There is a good concurrence from Judge Nguyen about how these stash house stings have a clear racial bias: "Like many of my colleagues across the country, I am greatly disturbed by the government’s practice and, in particular, its disproportionate impact on people of color. The government’s use of stash house reverse stings warrants closer scrutiny"
Judge Graber dissented.
