United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Defendant Cornelius Paxton has filed a motion for discovery related to the policies and practices of the government and the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") in pursuing so-called "phony stash house" cases. Co-defendants Randy Walker, Randy Paxton, Adonis Berry, and Matthew Webster join his motion. For the reasons stated below, the court grants defendants' motion for discovery.
On February 28, 2013, a grand jury returned a six-count indictment charging Cornelius Paxton and his four co-defendants with conspiring and attempting to knowingly and intentionally possess five kilograms or more of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846; interference with commerce by use of threats, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and 18 U.S.C. § 2; and knowingly possessing a firearm in furtherance of a drug trafficking crime and a crime of violence, in violation of 21 U.S.C. § 846, 18 U.S.C. § 1951(a), and 18 U.S.C. § 924(c)(1)(A), (2). Randy Paxton was also charged with possession of a firearm after having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1).
Defendants were arrested by ATF agents on January 30, 2013, as part of an alleged phony stash house robbery sting operation. The details of these operations are well-known to the courts in this district. In general, an ATF informant or undercover agent poses as an individual with knowledge of the location of a drug stash house. The undercover then offers a defendant the opportunity to rob that stash house,  which is usually described as holding a mandatory minimum-triggering quantity of drugs, cash and, potentially, firearms. The undercover then encourages the defendant to recruit friends to assist in the robbery and often suggests that the group bring multiple firearms. Once plans are made and the individuals set off to rob the fictitious stash house, the ATF swoops in and arrests the defendants.
Defendants seek discovery to support anticipated claims of racial profiling in the investigation and prosecution of stash house robbery cases. The government opposes defendants' request. To obtain such discovery, United States v. Armstrong , 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), and its progeny require a defendant to make a preliminary showing of discriminatory effect and discriminatory intent. Defendants offer statistics regarding the racial makeup of the defendants prosecuted in this district for stash house robberies to meet this "some evidence" standard. According to defendants, in the seventeen cases filed since 2006, 42 of the 57 defendants are African-American, 8 are Latino, and 7 are white. In the cases filed since 2011, defendants allege that 19 of the 26 defendants are African-American, 7 are Latino, and none are white.
Defendants argue that this statistical information, in the context of phony stash house sting operations, meets the Armstrong standard, and request the following discovery:
a) A list by case name, number, and the race of each defendant of all phony stash house ripoff cases brought by the U.S. Attorney's Office for the Northern District of Illinois in which ATF was the federal investigatory agency from 2006 to the present .
b) For each such case listed in response to a, a statement of prior criminal contact that the federal agency responsible for the investigation had with each defendant prior to initiating the phony stash house ripoff sting (if all such information for a particular case is contained in the criminal complaint, a reference to the complaint would be a sufficient response).
c) The statutory or regulatory authority for ATF to be instigating and/or pursuing phony staff [sic] house ripoff cases involving illegal drugs (i.e. heroin, cocaine, crack, ecstasy, methamphetamine, etc) or any decision by any federal agency, the Justice Department or the White House to authorize ATF to pursue such cases in the Northern District of Illinois.
d) All national and Chicago Field Office ATF manuals, circulars, field notes, correspondence or any other material which discuss "stings", "reverse stings", "phony stash house ripoffs" or entrapment operations, including protocols and/or directions to agents and to confidential informants regarding how to conduct such operations, how to determine which persons to pursue as potential targets or ultimate defendants, how to ensure that the targets do not seek to quit or leave before an arrest can be made and how to ensure that agents are not targeting persons for such operations on the basis of their race, color, ancestry or national origin.
e) All documents that contain information on how supervisors and managers of the Chicago area ATF were to ensure and/or did ensure or check to decide that its agents were not targeting persons on the basis of their race, color, ancestry or national origin for these phony stash house ripoffs and what actions the Chicago area ATF (i.e. operating in the Northern District of Illinois) supervisors and managers took to determine whether agents were not targeting persons for such operations on the basis of their race, color, ancestry or national origin.
f) The number of confidential informants that the Chicago area ATF has used each year from 2006 to the present and the number of those confidential informants who had access to non-African American or persons of non-African descent who could be targeted for a phony stash house ripoff.
g) The factual basis in each case cited in [the list of cases provided by defendants] and cases produced in response to above and cases [the government produces in response to part a] regarding decisions made to pursue or initiate an investigation ...