United States v. Laneham

THE UNITED STATES OF AMERICA, Plaintiff, v. CEDRIC LANEHAM, Defendant.

No. CIV 16-2930 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 25, 2017

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendant Cedric Laneham's Motion for Disclosure of Information, filed August 11, 2017 (Doc. 112)("Motion"). The Court held a hearing on October 4, 2017. The primary issue is whether the Court should grant Cedric Laneham's request for extraneous discovery relating to his selective enforcement claim, which depends on whether Laneham has provided sufficient evidence that the United States' Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") acted with discriminatory intent and caused a discriminatory effect against African-Americans when it conducted a four-month operation in southeast Albuquerque, New Mexico, in 2016. The Court concludes that Laneham's statistical and anecdotal evidence fails to establish sufficient evidence that the ATF caused a discriminatory effect by treating similarly situated individuals differently than it treated African-Americans, or that the ATF agents or their confidential informants ("CIs") acted with discriminatory intent against African-Americans. Consequently, the Court denies the Motion.

FACTUAL BACKGROUND

The Court sets forth the facts as Plaintiff United States of America alleges them in its Indictment, filed June 30, 2016 (Doc. 1), in the United States' Response to Defendant's Motion to Compel Discovery, filed August 28, 2017 (Doc. 115)("Response"), at the evidentiary hearing held October 4, 2017, Transcript of Hearing (taken October 4, 2017)("Tr."),¹ and at the evidentiary hearing in a related case, see United States v. Casanova Motion Hearing Transcript (taken April 5, 2017), filed May 3, 2017, No. CR 16-2917 JAP (Doc. 51)("Casanova Tr."), bearing in mind that Laneham² is presumed innocent of all charges, Estelle v. Williams, 425 U.S. 501, 503 (1976)("The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." (citing Coffin v. United States, 156 U.S. 432, 453 (1895))). The Court recites the United States' version of the facts not out of any predisposition to believe the United States' side of the story, but because the Court does not have alternative accounts,³ and it needs a cogent, internally consistent version of events for its analysis. See In re Winship, 397 U.S. 358, 365 (1970)("[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.").

These findings of fact are solely for use in deciding whether to permit discovery. Theydo not bind, without more, the Court or the parties if Laneham proceeds to file a motion to dismiss without the requested discovery. Also, they do not, of course, bind the Court, the jury, or the parties in any jury trial.

1. African-Americans comprised 5.4 percent of drug trafficking offenders and 5.9 percent of firearm-related offenders in the District of New Mexico between fiscal years 2006 and 2015. See Race Offenders in Each Primary Offense Category, District of New Mexico, Fiscal Years 2006-2016, https://isb.ussc.gov (follow "Demographic Data" hyperlink; then search "Race of Offenders in Each Primary Offensive Category"; then select "District of New Mexico" for fiscal years 2006-2015), filed August 11, 2017 (Doc. 112-1)("DNM statistics").

2. African-Americans comprise 3.4 percent of Bernalillo County residents in 2016. See US Census QuickFacts: Bernalillo County, https://www.census.gov/quickfacts/fact/table/bernalillocountynewmexico/PST045216, viewed October 9, 2017.

3. The ATF came to Albuquerque, New Mexico, because of its high violent crime rate.⁴ See Tr. at 4:11-22 (Johnson).

4. In developing a plan for an Albuquerque operation, the ATF spoke with the Albuquerque Police Department, Bernalillo County, New Mexico's Sheriff's Office, the United States Marshals, the Drug Enforcement Agency, the United States Attorneys for the District ofNew Mexico, and the Albuquerque District Attorney. See Tr. at 5:4-11 (Johnson).

5. Based on those consultations, the ATF determined that "the most violent part of Albuquerque was the southeast quadrant." Tr. at 5:11-14 (Johnson). Consequently, the ATF focused its operations on the southeast part of Albuquerque. See Tr. at 6:1-4 (Johnson).

6. The targeted region was roughly the area south of Interstate 40, east of Interstate 25, "with Central Avenue being basically the main vein through that area." Tr. at 6:8-13 (Johnson).

7. The ATF did not decide to focus on southeast Albuquerque because of the area's demographics. See Tr. at 15:24-16:8 (Johnson).

8. The ATF's Albuquerque operation lasted four months in 2016 and was known as the Surge. See Tr. at 3:13 (Johnson).

9. In the Surge, the ATF "brought in undercovers and confidential informants into the city of Albuquerque to combat violent crime." Tr. at 3:15-18 (Johnson).

10. The ATF relied on five CIs, three of whom were black⁵; and nine primaryundercover agents, one of whom was black. Tr. at 35:6-12 (Hotchkiss, Johnson).

11. The ATF instructed the CIs to "try to meet individuals that stated they were engaged in violent crime." Tr. at 7:3-5 (Johnson).

12. When a CI met someone whom the CI believed would sell drugs or weapons, the CI would inform the ATF, and the ATF "would then vet that information" and determine whether that person was worth pursuing. Tr. at 7:8 (Johnson).

13. If the ATF determined that the person was worth pursuing, they would try to "set up a transaction . . . where one of [the ATF] undercover agents along with the CI would go meet with the individual." Tr. at 7:8-14 (Johnson).

14. The ATF did not instruct the CIs on avoiding racial bias, nor did they train the CIs beyond how to operate their cell phones. See Casanova Tr. at 92:17-21 (Pori, Johnson).

15. Johnson did not believe that the CIs were racially biased in choosing whom to target, because: (i) he had worked with all the CIs previously and had "never seen any sort of bias from any of them," see Tr. at 45:22-23 (Johnson); and (ii) the ATF can get a sense of what the CIs are up to because they have access to the CIs' call logs and text messages, and may ask a person that a CI contacted what the CI told him or her, see Tr. at 40:10-15 (Johnson).

16. The ATF did not keep records of everyone with whom CIs made contact, nor did the ATF record their races. See Casanova Tr. at 66:20-22 (Johnson).

17. There was no formal process or written guidelines for determining whom to pursue. See Casanova Tr. at 83:16-21 (Johnson).

18. Instead, the ATF made "collaborative group decisions," Casanova Tr. at 83:11, that did not follow "a specific process" involving particular people, Casanova Tr. at 85:8-10, andthe ATF did not make a record of those decisions, see Casanova Tr. at 85:14-17 (Pori, Johnson).

19. In deciding whether to pursue someone, the ATF agents considered "all known factors," such as "known criminal history, criminal reputation, . . . [and] intelligence received from the Albuquerque Police Department," but there was no "set-in-stone criteria." Tr. at 7:18-25 (Johnson).

20. A person's race was "absolutely not" a factor. Tr. at 13-9:14 (Johnson).

21. The ATF did not have any targets in mind before beginning its operation in Albuquerque, and instead "generated [targets] very fluidly" by following its CIs' connections towards someone ATF deemed worth arresting. Tr. at 9:2-13 (Johnson).

22. The ATF did not arrest every individual that it could have arrested, and instead focused on "the worst of the worst." Casanova Tr. at 80:25 (Johnson).

23. Arresting an eighteen year old for possessing a half ounce of methamphetamine will not impact a city or change a neighborhood. See Casanova Tr. at 81:12-23 (Johnson).

24. The ATF wanted to arrest the people who, if taken off the streets, would make the city safer. See Casanova Tr. at 81:12-23 (Johnson).

25. The people that the ATF's CIs encountered in southeast Albuquerque were willing to interact with people of different races, which is not the case in many other cities. See Tr. 13:5-6 (Johnson).

26. This dynamic occurred during the Surge, and no one told Johnson to expect that dynamic before beginning the Surge. See Tr. at 35:21-36:16 (Johnson).

27. Johnson first learned of Cedric Laneham on April 29, 2016. See Tr. at 61:25 (Johnson).

28. The ATF discovered that the criminal organization known as the Memphis Mobhad members operating in Albuquerque, and that, based on police records, Laneham was one of the Memphis Mob's "highest ranking members" in Albuquerque. Tr. at 17:15-18:12 (Johnson).

29. According to the Albuquerque Journal, the Memphis Mob is a Memphis-based gang that moved into Albuquerque in the mid-2000s to "set up a drug-trafficking network linked to Memphis." T.J. Wilham, Cops Bust 'Memphis Mob", The Albuquerque Journal (Apr. 9, 2009), https://www.abqjournal.com/news/metro/0985859069newsmetro04-09-09.htm.

30. One of the "big reasons" that the Memphis Mob moved into New Mexico was the "lax state laws." Tr. at 29:20-23 (Johnson).

31. Although the ATF knew about Laneham, it did not actively pursue him. See Tr. 19:24-25 (Johnson).

32. In May, 2016, the ATF learned that another high-ranking Memphis Mob member, Brent Williams, was opening a smoke shop in southeast Albuquerque. See Tr. at 22:15-18 (Johnson).

33. The ATF sent a CI to the smoke shop [to] "try to get further into the Memphis Mob organization." Tr. at 19:3-8 (Johnson).

34. While in the smoke shop, a man named Devell Devoual -- a co-Defendant in this case -- approached the CI and offered to sell the CI methamphetamine. See Tr. at 22:18-20 (Johnson).

35. The CI took Devoual's cell phone number. See Tr. at 22:21-22 (Johnson). The CI gave the ATF the cell phone number, and an undercover agent called Devoual and...