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United States v. Washington

United States Court of Appeals, Third Circuit

August 28, 2017

UNITED STATES OF AMERICA
v.
ASKIA WASHINGTON, a/k/a SKI Askia Washington, Appellant

          Argued on February 7, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2:13-cr-00171-002) District Judge: Honorable Joel H. Slomsky

          Mark S. Greenberg, Esq. [Argued] 920 Lenmar Drive Blue Bell, PA 19422 Counsel for Appellant

          Eric B. Henson, Esq. [Argued] Bernadette McKeon, Esq. Zane David Memeger, Esq. Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for the Appellee

          Before: McKEE, COWEN, and FUENTES, Circuit Judges

          OPINION

          FUENTES, Circuit Judge.

         Defendant-appellant Askia Washington was ensnared by a "stash house reverse sting" operation-one which hit many of the by-now-familiar beats.[1] Acting on what appeared to be insider information from a drug courier, Washington and his three co-conspirators planned to rob a Philadelphia property where they thought 10 kilograms of cocaine were being stored for distribution. But as they discovered on the day of the robbery, the "stash house" was a trap set by law enforcement. Their "courier" was an undercover federal agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), which had developed the scenario from the ground up. The cocaine did not exist.

         Under federal law on conspiracy and attempt, the government could, and did, prosecute the crew as if fantasy had been reality. Washington, the sole member to take his chances at trial, was convicted by a jury of two Hobbs Act robbery charges and two drug charges (18 U.S.C. § 1951(a) and 21 U.S.C. § 846), although he was acquitted on a gun charge.

         Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined. For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds. Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington, contributing to a total sentence of 264 months in prison-far more than even the ringleader of the conspiracy received. For another, and as Washington claimed on multiple occasions before the District Court-and now again on appeal-people of color are allegedly swept up in the stings in disproportionate numbers.

         These elements of controversy are bound up in the three claims Washington now raises on appeal. Two are constitutional claims: Washington challenges his conviction and sentence by arguing that the use of the statutory mandatory minimum term violated his rights to due process, and he also alleges that the attorney who represented him at trial rendered constitutionally ineffective assistance. While stash-house reverse stings can raise constitutional concerns, the use of a mandatory minimum sentence on these particular facts did not deprive Washington of his right to due process. And while this is the rare case where a claim of ineffective assistance of counsel was properly raised on direct appeal instead of through a collateral attack, Washington has not shown prejudice sufficient to call into doubt the integrity of his trial. We thus conclude that both constitutional claims are without merit.

         The remaining claim challenges the District Court's decision to deny Washington pretrial discovery on ATF's operations and enforcement statistics. Washington contends that, in denying his motion, the District Court erroneously relied on the hard-to-meet test for "selective prosecution" discovery developed by the Supreme Court in United States v. Armstrong[2] and United States v. Bass[3] (which we will refer to as "Armstrong/Bass"). He encourages us to follow instead the en banc Seventh Circuit's recent opinion in United States v. Davis, [4] which distinguished between claims of selective prosecution and selective law enforcement and appeared to endorse a relaxed discovery standard for the latter.

         Like the Seventh Circuit, we conclude that the proposed distinction between enforcement and prosecution is well taken, and that the law supports greater flexibility when the discretionary decisions of law enforcement, rather than those of prosecutors, are targeted by a defendant's request for discovery. We therefore hold that a district court may exercise its discretion to grant limited discovery, or otherwise to conduct in camera analysis of government data before deciding whether limited discovery is warranted. A district court may do so even if a defendant seeking discovery on a selective enforcement claim has not otherwise met his or her full burden under Armstrong/Bass. Because the District Court in this case thought that its discretion was cabined by Armstrong/Bass, and because we cannot otherwise say that the same result would have occurred under the standard we announce today, we will vacate the orders denying discovery and remand for limited post-judgment proceedings. The judgment of conviction and sentence are otherwise unaffected by this remand.

          I. Background

         A. The Plan[5]

         Codefendant and ringleader Dwight Berry came to the attention of the ATF in late 2012, when he made it known that he was interested in conducting robberies of drug users and dealers. In the course of asking around, Berry spoke to an acquaintance who, unbeknownst to him, was an ATF confidential informant ("CI"). The CI alerted the ATF, which determined that Berry's criminal history fit its required profile for a sting operation and opened an investigation in February 2013, under the supervision of ATF Special Agent John Bowman. From here on out, many of the meetings and phone calls about the developing robbery plan would be surreptitiously recorded for playback at trial.

         Meanwhile, the CI kept Berry on the line with word of a connection: a drug-courier friend who frequented a South Philadelphia stash house on his trips to and from New York. When Berry and the CI met again, they were joined by the supposed drug courier-in reality, undercover ATF Special Agent Patrick Edwards, a veteran of over a dozen robbery scenarios. In his role as the courier, Edwards reported seeing over 10 kilograms of cocaine (in the context of cocaine "bricks") inside a cooler during a trip to the stash house. Berry indicated that he knew of a crew who might be interested in participating in the robbery and that he was willing to engage in violence if necessary.

         Washington first entered the picture about a week and a half after this encounter as one of two members of Berry's proposed robbery crew (the other man, never identified, apparently dropped out of the plan shortly afterwards). At another meeting in early March 2013 with Berry, Edwards, and the CI, Washington probed Edwards about the logistics of the robbery: what level of resistance they could expect, whether the house would be watched from the outside, and so on. Prompted by Edwards, the conspirators also discussed how to move and sell the stolen cocaine.[6]

          In a subsequent phone discussion, Edwards pressed Berry on the professionalism of his crew. Berry, in an attempt to reassure, told Edwards that "[t]his is what [our crew] do[es]."[7] When Edwards singled out Washington for concern over a perceived lack of robbery experience, Berry said that Washington "rock[ed] out" and "put work in, " which Edwards interpreted to mean that Washington was some sort of shooter or enforcer.[8]

         On the day of the robbery, Washington and Berry met at Berry's mother's house, where Berry picked up two guns and hid them in an Eggo Waffles box. The group, which had added two new members-codefendants Antonio Ellis and Jermau Johnston-then gathered in the parking lot of the Philadelphia Airport Hilton to review its plan. (Washington's girlfriend was also present, although she did not participate and remained in her parked car.) Edwards went over the salient details once more, emphasizing the 10 kilograms of cocaine and explaining that no money would be found in the house.

         In three cars-Berry, Ellis, and Johnston in a minivan; Washington and his girlfriend (the latter driving) following behind in a Chrysler 300; and Agent Edwards bringing up the rear-the crew made its way to the chosen address on Passyunk Avenue in southwest Philadelphia. As the caravan moved in, agents swooped down. All but Berry surrendered; Berry fled on foot but was apprehended shortly afterwards. From the minivan, law enforcement recovered two guns, ammo, gloves, and zip-ties. From Washington's Chrysler 300, they recovered a backpack, gloves, a mask, a lighter, and lighter fluid.

         B. Procedural History

         What follows is an abbreviated summary of the criminal proceedings, setting up the claims that Washington now raises on appeal. We will return in greater detail to the salient parts later, in the Analysis section of this opinion.

         1. Indictment; Codefendants Plead Guilty

         In April 2013, the four men were indicted in the Eastern District of Pennsylvania. Counts 1 and 2 of the indictment charged attempt/conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)), while counts 3 and 4 charged attempt/conspiracy to possess with intent to distribute five kilograms or more of cocaine (21 U.S.C. § 846 through 21 U.S.C. § 841(a)(1), (b)(1)(A)). Count 5 charged all of the defendants with carrying a firearm during a crime of violence (18 U.S.C. § 924(c)) and count 6 charged all but Johnston with being felons in possession of a firearm (18 U.S.C. § 922(g)(1)).[9]

         Washington's codefendants eventually pleaded guilty. Johnson and Ellis received 27-month and 46-month sentences, respectively. Although Berry, the ringleader, faced a Guidelines range of 270-322 months, his binding plea agreement reflected a 180-month sentence, [10] and the government did not seek to formally introduce his previous, eligible convictions to secure an enhanced mandatory minimum penalty. Berry ultimately received the agreed-upon 180-month custodial sentence.

         Unlike his codefendants, Washington pleaded not guilty and prepared for trial. He was assigned a Criminal Justice Act attorney, whom we will refer to as the "defense counsel" or "trial counsel."

         2. Motion for Discovery

         During the pretrial phase, Washington moved (both pro se and through trial counsel) for discovery relating to sting operations and related prosecutions, which he claimed to be racially motivated. Trial counsel's filing cited three prior federal prosecutions in which all of the defendants were African American. The moving papers also clarified that the discovery was sought not for trial defense, but rather to support a motion to dismiss the indictment on the basis of "racial profiling or selective prosecution . . . by the Philadelphia District Office of [ATF] . . . in complicity with" the U.S. Attorney's Office.[11]

         After oral argument, and as set forth in a thoughtful opinion, the District Court denied Washington's motion for discovery. Finding the Armstrong/Bass standard to control, the District Court held that Washington failed to meet this "rigorous standard to obtain discovery, "[12] and later denied Washington's requests for reconsideration.

         3. Recordings Deemed Admissible; Government Seeks Enhanced Mandatory Penalties

         With discovery denied, Washington did not file an actual motion to dismiss the indictment, and the parties otherwise prepared for trial. In an important ruling, the District Court decided that the government could use the audio and video recordings and related transcripts at trial. Meanwhile, the government filed a 21 U.S.C. § 851 information stating that Washington had a prior Pennsylvania drug felony conviction from 2004-a prerequisite to enhanced mandatory minimum penalties at sentencing.

         4. The District Court Revisits Discovery on the Eve of Trial

         In June 2015, prior to opening statements, the District Court revisited the matter of discovery in the context of trial defenses. Referring back to United States v. Alexander, [13] a Northern District of Illinois opinion cited in the earlier decision denying discovery, the District Court ordered the government to release redacted portions of an ATF policy manual on stash house sting operations-patterned after the disclosures ordered in Alexander. The District Court then issued a protective order restricting defense counsel's use of the disclosed material.

         5. Washington's Trial

         Over the five-day trial, defense counsel used the ATF disclosures to advance his theory of the case: Washington did not have the requisite intent to commit a dubious, discriminatory "conspiracy" that ATF had designed from the ground up.[14] For instance, counsel pointed to Washington's use of a separate vehicle and the presence of his girlfriend on the day of the robbery to suggest that he was cautious and not fully committed. Counsel also utilized the disclosed ATF materials to cross-examine supervising ATF Agent Bowman.

         But during that cross-examination, trial counsel appeared to fumble. He was attempting to show that, as Agent Bowman would later admit, the only person "targeted" by the ATF prior to the arrest was Berry, and that the ATF knew nothing about the other conspirators and could not have ensured that they fit its target profile, which required (in part) a violent criminal history. But in addition to asking whether Washington had a prior robbery arrest (which he did not), trial counsel also asked Agent Bowman whether Washington had a drug arrest. This question effectively allowed the prosecution to bring out Washington's prior drug conviction on redirect.

          6. The Jury Verdict

         The jury returned a guilty verdict on counts one through four of the superseding indictment: the drug and Hobbs Act robbery charges. It returned a not-guilty verdict on firearm count five; firearm count six was dismissed on the government's motion.[15] The jury specifically found that the government proved beyond a reasonable doubt that the (fictitious) cocaine at the center of the conspiracy was five kilograms or more.

         7. Pre-Sentencing Investigation into Trial Counsel's Constitutional Effectiveness

         Shortly after the trial, Washington wrote a letter to the District Court requesting a substitution of attorney. He alleged, in part, that trial counsel had been under the influence of alcohol throughout the trial.

         The District Court swiftly reacted, appointing a new Criminal Justice Act attorney, Mark Greenberg-who has represented Washington ever since-in what became, in effect, a pre-sentencing investigation of trial counsel's performance. After the District Court held an evidentiary hearing, Attorney Greenberg filed a formal motion for new trial predicated on the alleged ineffective assistance of trial counsel. This motion included an attack on trial counsel's questions during cross-examination of Agent Bowman that opened the door to the introduction of Washington's drug conviction. The motion was ultimately denied, with the District Court finding in part that the "mountain" of evidence against Washington forestalled a showing of prejudice under the two-part Strickland v. Washington[16] test for ineffective assistance of counsel.[17]

         8. Sentencing Proceedings

         The ineffectiveness question resolved for the time being, the parties and District Court prepared for sentencing. Because of his criminal history, Washington was classified as a "Career Offender" under the Sentencing Guidelines. As a result of Guidelines calculations we need not delve into, that Career Offender status overrode the lower Guidelines level derived from quantity of drugs, yielding a sentencing range of 360 months to life in prison.[18]

         In his sentencing memoranda, Washington challenged the proposed sentencing range, emphasizing the troubling nature of the sting operation and requesting that the District Court take into account the sentences of his co-conspirators. He also asked the District Court to disregard the mandatory minimum sentence of 20 years; if "the reverse sting in this case involved 0.9 kilograms of non-existent cocaine, " he argued, "Mr. Washington would not be facing a mandatory minimum sentence."[19] In response, the government emphasized that the mandatory minimum penalty was just that: mandatory. Evincing some discomfort with the 20- year mandatory minimum, the District Court nevertheless ruled that he was "bound to follow the law, "[20] imposing a 24-month sentence on the Hobbs Act robbery charges and a 240-month consecutive sentence on the drug charges for a total term of 264 months' imprisonment. Washington timely appealed.[21]

         II. Analysis

         Washington's constitutional challenges, which directly attack the judgment of conviction and sentence, are considered first. We will then turn to his Armstrong/Bass discovery claim.

         A. Ineffective Assistance of Counsel

         Although he again invokes trial counsel's alcohol use, Washington otherwise limits his ineffectiveness claim on appeal to the incident where trial counsel opened the door to testimony about his drug conviction. He attacks the District Court's determination that the "overwhelming" evidence at trial precluded a showing of prejudice, and emphasizes, in particular, the jury's acquittal on the firearm count and an alleged conflation of the prejudicial impact of the admission on the robbery counts with the far-greater impact on the drug counts.

          1. Ineffectiveness Claims on Direct Appeal

         We open with the observation that ineffective assistance of counsel claims are generally not considered on direct appeal. Instead, they are more commonly brought in a collateral proceeding, such as through a post-conviction 28 U.S.C. § 2255 motion to vacate.[22]

         Our "general aversion"[23] to reaching ineffectiveness claims on direct appeal derives in part from their inherently collateral nature. The trial record, concerned as it is with the defendant's guilt or innocence, will not in most instances be "developed precisely for the object of litigating or preserving the [ineffective assistance] claim and thus [will] often [be] incomplete or inadequate for this purpose."[24] Deferring the question of ineffectiveness to collateral review also protects criminal defendants from the consequences of resolving the claims prematurely.[25]

         While cautioning that we will not "open[] the door to ineffective assistance of counsel claims on direct appeal as a matter of course, " we have nevertheless recognized an exception to the rule when the trial record "is sufficient to allow determination of ineffective assistance of counsel."[26]Determining sufficiency is case- and claim-dependent.

         We think that Washington's is the uncommon case where resolving an ineffectiveness claim on direct appeal is both feasible and efficient. Strictly speaking, he is not raising ineffectiveness for "the first time" on appeal. Rather, ineffectiveness was invoked in and resolved by the District Court, which held a post-trial, pre-sentencing hearing at which Washington and the AUSA both testified (trial counsel was invited to testify, but declined). The District Court-the trial judge-then denied the claim against the backdrop of the recently concluded trial.[27] This development of the record amounted to, in effect, a mini collateral proceeding, akin to what is ordinarily expected under § 2255. It provides us with a sufficient foundation for direct appellate review.[28] We therefore exercise our discretion to reach the ineffectiveness claim.[29]

          2. Strickland v. Washington and Standard of Review

         "Regardless of whether an ineffective assistance of counsel claim is raised in a motion for a new trial, on collateral review, or on direct appeal, the standard of review is the same."[30] Under the familiar two-part standard established in Strickland v. Washington, [31] Washington bears the burden of showing 1) that trial counsel's actions "were not supported by a reasonable strategy" and 2) that trial counsel's errors were prejudicial.[32] "[B]oth deficiency and prejudice must be proven to have a valid claim for relief."[33]On appeal of the District Court's decision, we exercise plenary review over the legal components of ineffectiveness, assess any underlying findings of fact for clear error, and "exercise independent judgment on whether those facts, as found by the District Court, show that counsel rendered ineffective assistance."[34]

         We agree with the District Court that the general allegations of alcohol use do not require a departure from Strickland's two-prong standard-a point conceded by Washington in his new-trial memorandum.[35] Alcohol or drug use by trial counsel can certainly be relevant to both parts of an ineffectiveness inquiry, especially if amplified or systemic, or on close questions of strategy and jury perception. But on these facts, alleged substance abuse is not, without more, one of the rare forms of dereliction amounting to the per se denial of a defendant's Sixth Amendment right to the effective assistance of counsel.[36]

         3. Trial Counsel's Cross-Examination of Agent Bowman

         Washington now limits his ineffectiveness allegation to the cross-examination of ATF Agent John Bowman, which allowed the prosecutor to bring out Washington's previous drug conviction on redirect. He argues that trial counsel's line of questioning lacked a strategic basis and caused him prejudice, as it undermined the "not committed to the crime" theory of defense.

         By way of background: Agent Bowman, who managed the ATF's investigation of the conspiracy, was called to testify as the government's final witness. His testimony established, among other things, the authenticity of the recorded calls and meetings among the conspirators (or "conspirator, " in the case of the undercover Agent Edwards) and their incriminating nature. For instance, Bowman testified that at the March 5 meeting, Berry assured Agent Edwards that Washington was committed to the robbery plan.

         Trial counsel's extensive cross-examination of Agent Bowman dealt in part with inconsistencies in the investigation and in ATF's targeting of Washington. Counsel also probed the racial dimensions of ATF sting operations; Bowman admitted that he had participated in three Philadelphia sting operations, all of which targeted only African American defendants. (A similar response had earlier been elicited from Agent Edwards, who admitted that perhaps two defendants in over 13 scenarios were not African American-and both of those were Latino.)

         Trouble arose when trial counsel began asking Bowman about Washington's uneasy fit with the ATF targeting guidelines' requirement of prior criminal histories.

Q: All right. Now we know that you didn't use - they didn't have my client identified before he was arrested. You knew him as Ski, or some other name, right?
A: Correct.
Q: So you didn't know if he had a prior criminal history, right?
A: No, not during the investigation.
Q: All right. And you found out after the arrest and some checking, you found out that my client doesn't have a history for robbery, right?
A: (No verbal response)
Q: And he doesn't have a history for drugs, does he?
A: I don't recall.
Q: If he did, you would recall, sir, wouldn't you? Isn't that fair?
A: I don't want to misstate, but I'm pretty sure he had a --
Q: If you're not sure, you probably shouldn't say --
A: -- drug arrest.[37]
Q: -- you probably shouldn't say, you're not sure. I've had his record, and I can say, I didn't see a robbery conviction.
A: I don't think there's a robbery conviction, no.
Q: And I have his record, I didn't see a drug conviction.
A: I don't recall.[38]

          But Washington did have a drug conviction. In fact, just a few days before Bowman took the stand, the government had filed its 21 U.S.C. § 851 information identifying a "prior felony controlled substance violation" that it intended to use "as the basis for increased punishment" in the event that Washington was convicted.[39]

         While Bowman had not directly confirmed Washington's criminal history on cross, the prosecutor saw the door swing open and, on redirect, invited Agent Bowman to stroll through it:

Q: [Trial counsel] asked you some questions about Mr. Washington's criminal history.
A: Yes.
Q: You said you weren't sure when he asked you specific questions about whether he had a drug conviction, whether he had a robbery conviction, whether he had a violent crime conviction. You said, I don't recall --

. . .

Q: You said you weren't sure, correct?
A: Correct.
Q: I want to take a moment and show you Government Exhibit 403, 404 and 405. That's Government Exhibit 403. Let's move on to 404. And lastly, we move on to Government Exhibit 405. Did you review those three exhibits?
A: Yes.
Q: And after reviewing them, are you sure whether or not Mr. Washington has a prior drug conviction?
A: He does have a prior drug conviction.[40]

         After this exchange, the issue of Washington's criminal history does not appear to have come up again during trial. Further, trial counsel did not request, and the District Court did not give, any limiting instruction.

         4. Strickland's Prejudice Prong

         We may consider the two Strickland prongs in either order; and, as we have observed, it is "often practical to consider the prejudice prong first, "[41] not the least because we "prefer[] to avoid passing judgment on counsel's performance when possible."[42] Accordingly, we turn first to prejudice, which requires showing a "reasonable probability"-a "probability sufficient to undermine confidence in the outcome"-that, "but for counsel's unprofessional errors, 'the result of the proceeding would have been different.'"[43]

          At the outset, we agree with the District Court that the evidence admitted at trial against Washington was daunting and, generally, damning. His recorded statements alone, bluster or not, showed a willing and inquisitive member of the conspiracy. On the day of the robbery itself, Washington appeared committed to its success.[44] Washington attempts to push back on this reading of the record, but the big picture of the trial works against him.

         For instance, in support of his argument that the evidence was not actually "overwhelming, " he points out that the jury acquitted him of the count-five § 924(c) gun charge-which, unlike counts 1 through 4, was not a conspiracy or attempt charge. This is true, but we struggle to assign it more than limited relevance. The trial evidence showed that Berry, not Washington, hid the guns in the Eggo Waffles box, which he then handed to co-conspirator Johnson. The guns were found in the minivan, not

         Washington's Chrysler, when the caravan was taken down. Culpability arguably shifted away from Washington, and he has not satisfactorily shown how the jury's apparent doubt with the firearm count is linked with the quantum of proof on the remaining counts of the indictment.

         Similarly, Washington points to two jury requests- one to see the video of the takedown, and another regarding the definition of entrapment or enticement-as indicative of its hesitance to convict. The video was played back, and both the prosecution and defense agreed that entrapment was not at issue. Beyond that, we do not think that the jury's questions evince the kind of doubt that might meet Washington's burden for showing prejudice. If anything, all we can draw from the acquittal on this count is that the jury took seriously its duty to view the trial evidence on a count-by-count basis.[45]

         Washington also argues that the District Court erred by failing to separate the Hobbs Act robbery and drug counts in determining prejudice, contending the testimony about his drug conviction, and thus his propensity, affected the latter far more than the former.[46] He emphasizes that the defense's theory of the case rested in part on caution and lack of culpable intent, and points to selections of the recordings, admitted at trial, that show (or so he claims) that he was wary of cocaine and was not interested in dealing with it or otherwise becoming involved. In one of these, Washington is recorded as saying that he "don't fuck with coke."[47]

         Even in light of the defense's theory of the case, however, we do not agree that the charges can be so neatly separated. Washington wants us to view the likelihood of prejudice from admitting the conviction as higher for the drug counts than the robbery counts.[48] The fundamental flaw of Washington's argument is that he never quite explains, in a way that satisfies his Strickland burden, why he would have participated in the robbery, or even in its planning stages, if not for the cocaine. According to the testimony of ATF Agent Edwards, the "drug courier" told the other members of the conspiracy that no money would be found in the house. Even if Washington did not intend to personally handle the cocaine or move it for sale, he could not help but know that cocaine was the object of the robbery. Viewed against this backdrop, the "I don't fuck with coke" statement does not carry the expansive and exculpatory meaning that he would like to attribute to it. Moreover, we agree with the government that the broader defense strategy of the case, which focused on showing that Washington lacked the violent criminal history required for ATF targeting, was not necessarily undermined by a fleeting mention of Washington's prior drug conviction, especially in light of his apparent willingness to participate in the broader drug conspiracy.[49]

         We do not mean to trivialize the introduction into the case of Washington's drug conviction; although we do not formally reach the Strickland performance prong, we struggle to perceive a strategic basis for opening the door. Nevertheless, we agree with the District Court that Washington has not met his burden, under Strickland, of showing that the mistake undermined confidence in the jury's verdict.[50] Accordingly, the ineffective assistance claim fails.

          B. Mandatory Minimum Due Process Challenge

         In challenging his 264-month sentence, Washington argues that the District Court erred in following the 20-year mandatory minimum term set forth in 21 U.S.C. § 841(b)(1), which (as applicable here) kicks in when the quantity of cocaine is 5 kilograms or above and the defendant has a prior felony drug conviction. He does not appear to disagree with the government that, in the ordinary course of things, the "mandatory" minimum is precisely what it says on the tin.[51]Nor does he argue that the facts supporting the mandatory minimum sentence-an indictment charging 5 kilograms or more of cocaine, a corresponding jury verdict, and a properly filed § 851 notice of a prior conviction-were absent or infirm. Rather, he contends that its application in this kind of case, where the comprising elements were entirely fictitious and in the hands of the government, violates his right to due process.

          1. Standard of Review

         We begin by noting that although Washington did object to the mandatory minimum at sentencing, he argued there on the basis of congressional intent, not due process. The due process argument also does not appear in his three sentencing memoranda. While Washington's failure to develop the constitutional basis for his objection might ordinarily limit the scope of our review, we retain discretion to reach unpreserved arguments in appropriate circumstances.[52] Here, the government asks us to conduct de novo review and responds to Washington's argument on the merits. While a party's concession does not control the exercise of our discretion, it is certainly a factor we may consider. Hence, because Washington did raise an objection to the application of the mandatory minimum sentence, and the argument that he relied on came within a stone's throw of the one he raises now, we will "waive the waiver" and consider Washington's claim on the merits.[53] As a constitutional challenge to the mandatory minimum, it draws plenary review.[54]

          2. Outrageous Government Conduct and Sentencing Factor Manipulation[55]

         Washington's due process challenge falls within the broader category of "outrageous government conduct"-that is, an allegation that the government's conduct was so outrageous that due process and fundamental fairness cannot abide the defendant's conviction.[56] In our hallmark case on the doctrine, United States v. Twigg, we decided that a meth scheme that was substantially engineered by the government-agents supplied precursor chemicals (at a significant discount), glassware, and a rented farmhouse for a lab-displayed the requisite level of outrageousness.[57]Twigg led to the ultimate sanction: reversal of the defendant's conviction.[58]

         But Twigg, decided in 1978, is apparently one of only "two reported court of appeals decisions . . . that have deemed the government's conduct so outrageous as to violate due process."[59] We have found no occasion since Twigg in a published decision to reverse a conviction or invalidate an indictment on the theory that the government has strayed outside of the boundaries contemplated by due process.[60] In United States v. Dennis, for instance, we refused to dismiss an indictment in a reverse sting case not dissimilar to the one now at bar, while emphasizing the "exceedingly great" evidentiary burden placed on the challenging defendant.[61]

         While our Twigg decision recognized an outrageous government conduct claim in the context of an attack on an indictment-and, by extension, the fact of the judgment of conviction itself-other courts have applied similar reasoning to a narrower universe of sentencing-related claims, often under the label "sentencing factor manipulation"-although they have not done so consistently.[62] The Eleventh Circuit described one model of sentencing factor manipulation in United States v. Ciszkowski:

[S]entencing factor manipulation occurs when the government's manipulation of a sting operation, even if insufficient to support a due process claim, requires that the manipulation be filtered out of the sentencing calculus. Outrageous government conduct would necessitate the reversal of a defendant's conviction, while sentencing factor manipulation would simply reduce the sentence applied to his conduct. . . . When a court filters the manipulation out of the sentencing calculus before applying a sentencing provision, no mandatory minimum would arise in the first place.[63]

         Our previous precedential opinions have declined to take a definitive stance on the viability of this doctrine in our Circuit.[64] But even assuming without deciding that the generous Ciszkowski framing of sentencing factor manipulation should apply-requiring a lesser showing than an "outrageous conduct" claim, and allowing for a District Court to depart below the mandatory minimum range-we find that Washington has failed to demonstrate, on the facts of this case, that the mandatory minimum should be excised from the indictment.

         At bottom, Washington argues that the government was uniquely positioned to determine the salient facts of his offense, which he was powerless to refute. Working through its undercover operative and informant, the ATF did indeed set the amount of the fictitious cocaine (10 kilograms) and played up the likelihood of resistance (thereby encouraging the conspirators to arm themselves).

         But even assuming some impropriety here on the part of the government, most of the factors it created for the crime, and which were within its unique control, were not the drivers of Washington's actual sentence. Agent Edwards told the conspirators that they would encounter resistance, so they brought guns-and, had Washington been convicted of the gun charge, he would have faced an additional mandatory consecutive term.[65] But he was not. Further, Agent Edwards told the conspirators that they could expect to recover 10 kilograms of cocaine in the robbery, corresponding to 2014 Guidelines base offense level of 30.[66] However, because he was a career offender, Washington's Guidelines range was not governed directly by the 10 kilogram drug-quantity amount-and the District Court sentenced him far below the recommended Guidelines range anyway.[67]

         Instead, the 20-year mandatory minimum was the product of two factors: the 5 kilograms of cocaine charged in the indictment and found by a jury, and the § 851 statement filed by the government.[68] The latter, as the Supreme Court has indicated, is a matter of discretion "similar to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect . . . and is appropriate, so long as it is not based upon improper factors."[69] Washington does not argue that the process envisioned by § 851 was not properly followed or was based on impermissible considerations.[70]

          So it comes down, in the end, to the drug quantity. We acknowledge Washington's concerns, which are well stated and logical, that the drugs did not exist, and that his ironclad mandatory minimum has no real-world foundation. Other courts of appeals, however, have roundly rejected claims that amounts greater than 5 kilograms, or even 10 kilograms, amount to sentencing factor manipulation.[71] Further, Agent Edwards testified at trial that the amount chosen for the sting was a "conservative" number based upon the drug weights found in "a typical [Philadelphia] stash house."[72] He explained that the proposed scenario "always has to be realistic" or it might be questioned by the robbery crews.[73]Washington has not offered anything to the contrary. Put simply, there is not enough here for us to conclude that the government chose the 10 kilogram amount primarily, or even secondarily, "to inflate [Washington's] sentence upon a conviction."[74]

         Washington encourages us to follow the reasoning of United States v. McLean, in which a different judge in the Eastern District of Pennsylvania sentenced below the mandatory minimum, on due process grounds, in a reverse-sting stash house case.[75] McLean, which is nonbinding, [76] is also distinguishable. The defendant there received a "split" jury verdict on the amount of cocaine involved: 5 kilograms with regard to conspiracy but 500 grams with regard to attempt.[77] We detect no equivalent ambiguity in the jury's verdict on Washington's ultimate culpability, and therefore reject this argument.[78]

          In sum, we conclude that the 5 kilograms of cocaine charged in the indictment and found by the jury did not amount to an impermissible manipulation of sentencing factors by the government. To the extent that the fictitious 10 kilogram quantity is relevant, we find too that Washington has shown neither improper manipulation nor prejudice. Nevertheless, we remind the government that we have expressed misgivings in the past about the wisdom and viability of reverse stash house stings. That this case fell on the safe side of the due process divide should not be taken to indicate that all such prosecutions will share the same fate. As one of our colleagues said in a prior case, "I do not find it impossible for the Government to exercise its discretion rationally to set up stash house reverse stings. But I share the concern that this practice, if not properly checked, eventually will find itself on the wrong side of the line."[79]

         C. Selective Enforcement Discovery Claim

         Finally, Washington appeals in part the denial of his pretrial motion for discovery, which he filed in order to "prepare a motion to dismiss the indictment on the basis of racial profiling and/or selective prosecution of racial minorities by the ATF Office in Philadelphia, in conjunction with the local U.S. Attorney's Office."[80] He contends that the District Court erred in applying a strict discovery standard- Armstrong/Bass-to the portions of his motion that pertained to law enforcement and ATF material on stash-house reverse stings, as opposed to those portions (the denial of which he does not appeal) that sought information related to the prosecution of those offenses. Instead of employing Armstrong/Bass, Washington contends, we should follow the Seventh Circuit's opinion in United States v. Davis, which appeared to depart from the Armstrong/Bass model for claims of selective enforcement in stash house cases.

         While discovery rulings are ordinarily reviewed for abuse of discretion, "we exercise de novo review over the standards the district court used in exercising its discretion."[81]And although we decline to adopt Davis wholesale, we nevertheless agree with the Davis court that district judges have more flexibility, outside of the Armstrong/Bass framework, to permit and manage discovery on claims like Washington's. Accordingly, as explained further below, we will vacate the District Court's discovery orders and issue a limited remand for further post-judgment proceedings.

         1. Substantive Equal Protection Claims: "Clear Evidence" of Discriminatory Effect and Intent

         Washington's argument rests on the distinction between "selective prosecution" and "selective enforcement, " labels that we (and others) sometimes deploy interchangeably. Here, we use them as Washington does. "Prosecution" refers to the actions of prosecutors (in their capacity as prosecutors) and "enforcement" to the actions of law enforcement and those affiliated with law-enforcement personnel.

         We start with a point of commonality. Substantive claims of selective prosecution and selective enforcement are generally evaluated under the same two-part test, which is derived from a line of seminal Supreme Court cases about the collision between equal protection principles and the criminal justice system.[82] A defendant challenging a criminal prosecution at either the law enforcement or prosecution inflection points must provide "clear evidence" of discriminatory effect and discriminatory intent (the latter is sometimes referred to as "discriminatory purpose").[83]Meeting this standard generally requires evidence that similarly situated individuals of a difference race or classification were not prosecuted, arrested, or otherwise investigated.[84]

          2. Armstrong/Bass: "Some Evidence"

         A criminal defendant, however, will not often have access to the information, statistical or otherwise, that might satisfy a "clear evidence" burden. Thus, the two component cases that make up the Armstrong/Bass test-United States v. Armstrong[85] and United States v. Bass[86], both of which arose from selective prosecution challenges-propounded a facially less rigorous standard for criminal defendants seeking discovery on an anticipated selective prosecution claim. Instead of "clear evidence, " a successful discovery motion can rest on "some evidence."[87] "Some evidence" must still include a showing that similarly situated persons were not prosecuted.[88] Furthermore, ...


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