Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79   In the UNITED STATES COURT OF APPEALS for the Seventh Circuit   No. 14-1124     UNITED STATES OF AMERICA,     Plaintiff-Appellant, v.   PAUL DAVIS, JR., ALFRED WITHERS, JULIUS MORRIS, JAYVON BYRD, VERNON SMITH, COREY BARBEE, and DANTE JEFFRIES,       Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 63 – John W. Darrah, Judge. DEFENDANTS-APPELLEES’ BRIEF             FEDERAL DEFENDER PROGRAM Carol A. Brook Executive Director By: William H. Theis 55 East Monroe Street, Suite2800 Chicago, Illinois 60603 (312) 621-8300 Attorney for Defendant-Appellee Paul Davis, Jr. (SEE NEXT PAGE FOR ADDITIONAL COUNSEL) Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Matthew J. Madden 53 West Jackson Boulevard Suite 703 Chicago, Illinois 60604‐000 (312) 212‐ 1900 Attorney for Defendant‐Appellee Jayvon Byrd         Alison Siegler (#6271445) Judith P. Miller (Cal. Bar # 277658; 7th Cir. bar app. pending) Christine Bonomo (Ill. S. Ct. R. 711 License #2014LS0086) Saul Cohen (Ill. S. Ct. R. 711 License # 2014LS00895 Jared Haines (Ill. S. Ct. R. 711 License # 2014LS00867 Robert Woods (Ill. S. Ct. R. 711 License # 2014LS00870 University of Chicago Law School Federal Criminal Justice Clinic 6020 South University Avenue Chicago, Illinois 60637 (773) 834‐1680 Co‐Counsel for Defendant‐Appellee Jayvon Byrd Ralph E. Meczyk MECZYK GOLDBERG 111 W. Washington Street, Suite 1025 Chicago, Illinois 60602‐000 (312) 332‐2853 Attorney for Defendant‐Appellee Vernon Smith Damon M. Cheronis Law Offices of Damon M Cheronis 53 West Jackson Boulevard Suite 1750 Chicago, Illinois 60604‐000 (312) 663‐4644 Attorney for Defendant‐Appellee Corey Barbee Lauren Weil Soloman P.O. Box 2013 Highland Park, Illinois 60035 (847) 756‐0489 Attorney for Defendant Appellee Alfred Withers Eugene O’Malley 5357 West Devon Avenue Chicago, Illinois 60646 (312) 543‐6557 Attorney for Defendant‐Appellee Dante Jeffries Jack P. Rimland Jack P. Rimland & Assoc. 820 West Jackson Boulevard, Suite 300 Chicago, Illinois 60607 (312) 831‐1500 Attorney for Defendant Appellee Julius Morris Joshua Sachs Law Office of Joshua Sachs & Assoc. P.O. Box 6556 Evanston, Illinois 60204‐6556 (847) 864‐0400 Attorney for Defendant‐Appellee Dante Jeffries Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 DISCLOSURE STATEMENT     The undersigned counsel for Appellee Paul Davis, Jr. furnishes the following list in compliance with Federal Rule of Appellate Procedure 26.1: (1)   The full name of every party that the attorney represents in the case: Paul Davis, Jr.   (2)   The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court. Federal Defender Program: Carol A. Brook, William H. Theis, Paul Flynn   (3)(i) All parent corporations:   Not applicable   (3)(ii) Any publicly held company that owns 10% or more of the party’s or amicus’ stock:   Not applicable         /s/ William H. Theis William H. Theis         Dated: April 2, 2014     i Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 DISCLOSURE STATEMENT     The undersigned counsel for Appellee Jayvon Byrd furnishes the following list in compliance with Federal Rule of Appellate Procedure 26.1: (3)   The full name of every party that the attorney represents in the case: Jayvon Byrd   (4)   The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court. Matthew J. Madden, Attorney at Law, LLC   University of Chicago Law School Mandel Legal Aid Clinic: Alison Siegler; Judith P. Miller (CA Bar No. 277658; Seventh Circuit Bar application pending);Christine Bonomo(711 #2013LS0086); Saul Cohen (711 #2013LS00895); Jared Haines (711 #2013LS00867); Robert Woods (711#2013LS00870)     (3)(i) All parent corporations: Not applicable   (3)(ii) Any publicly held company that owns 10% or more of the party’s or amicus’ stock:   Not applicable         /s/ Matthew J. Madden Matthew J. Madden (Counsel of Record)   /s/ Alison Siegler Alison Siegler (Co-Counsel)   Dated: April 2, 2014     ii Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 DISCLOSURE STATEMENT     The undersigned counsel for Appellee Alfred Withers furnishes the following list in compliance with Federal Rule of Appellate Procedure 26.1: (5)   The full name of every party that the attorney represents in the case: Alfred Withers   (6)   The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court. Lauren Weil Solomon   (3)(i) All parent corporations:   Not applicable   (3)(ii) Any publicly held company that owns 10% or more of the party’s or amicus’ stock:   Not applicable         /s/ Lauren Weil Solomon Lauren Weil Solomon           Dated: April 2, 2014     iii Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 DISCLOSURE STATEMENT     The undersigned counsel for Appellee Julius Morris furnishes the following list in compliance with Federal Rule of Appellate Procedure 26.1: (7)   The full name of every party that the attorney represents in the case: Julius Morris   (8)   The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court. Jack P. Rimland   (3)(i) All parent corporations:   Not applicable   (3)(ii) Any publicly held company that owns 10% or more of the party’s or amicus’ stock:   Not applicable         /s/ Damon M. Cheronis Damon M. Cheronis         Dated: April 2, 2014     iv Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 DISCLOSURE STATEMENT     The undersigned counsel for Appellee Vernon Smith furnishes the following list in compliance with Federal Rule of Appellate Procedure 26.1: (9)   The full name of every party that the attorney represents in the case: Vernon Smith   (10)   The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court. Ralph E. Meczyk and Associates   (3)(i) All parent corporations:   Not applicable   (3)(ii) Any publicly held company that owns 10% or more of the party’s or amicus’ stock:   Not applicable         /s/ Ralph E. Meczyk Ralph E. Meczyk         Dated: April 2, 2014     v Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 DISCLOSURE STATEMENT     The undersigned counsel for Appellee Corey Barbee furnishes the following list in compliance with Federal Rule of Appellate Procedure 26.1: (11)   The full name of every party that the attorney represents in the case: Corey Barbee   (12)   The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court. Law Office of Damon M. Cheronis   (3)(i) All parent corporations:   Not applicable   (3)(ii) Any publicly held company that owns 10% or more of the party’s or amicus’ stock:   Not applicable         /s/ Damon M. Cheronis Damon M. Cheronis         Dated: April 2, 2014     vi Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 DISCLOSURE STATEMENT     The undersigned counsel for Appellee Dante Jeffries furnishes the following list in compliance with Federal Rule of Appellate Procedure 26.1: (13)   The full name of every party that the attorney represents in the case: Dante Jeffries   (14)   The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court. Eugene O’Malley   Law Office of Joshua Sachs and Associates   (3)(i) All parent corporations:   Not applicable   (3)(ii) Any publicly held company that owns 10% or more of the party’s or amicus’ stock:   Not applicable         /s/ Eugene O’Malley Eugene O’Malley   /s/ Joshua Sachs Joshua Sachs           Dated: April 2, 2014     vii Case: 14-1124 Document: 36 Filed: 04/30/2014 TABLE OF CONTENTS Pages: 79 Page(s) DISCLOSURE STATEMENT ....................................................................................... i TABLE OF CONTENTS ............................................................................................ viii TABLE OF AUTHORITIES .......................................................................................... x I. JURISDICTION ........................................................................................................ 1 II. ISSUES PRESENTED FOR REVIEW ................................................................... 1 III. STATEMENT OF THE CASE ............................................................................... 2 A. The Alleged Offense Conduct in This Case ................................................... 4 B. The Selective Prosecution Discovery Motion and the Government’s Response ................................................................................ 5 IV. STANDARD OF REVIEW ....................................................................................... 6 V. SUMMARY OF THE ARGUMENT .......................................................................... 8 VI. ARGUMENT .......................................................................................................... 10 A. THIS CASE MUST BE DISMISSED FOR LACK OF APPELLATE JURISDICTION .......................................................................................... 10 B. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ORDERING DISCOVERY .......................................................................... 15 1. This case follows the standard playbook for fake stash house robbery cases, in which the government selects an initial target and induces him to recruit others. ............................................................................. 16 2. A defense proffer of “some evidence” of discriminatory effect and discriminatory intent authorizes discovery for a selective prosecution challenge. ................................................................................................ 21 3. Appellees provided “some evidence” of discriminatory effect. .............. 23 a. The similarly situated standard does not require Appellees to identify a particular person; statistics alone suffice. ............................ 24   viii Case: 14-1124 Document: 36 Filed: 04/30/2014 TABLE OF CONTENTS CONT. 4. 5. Pages: 79 Page(s) b. There is some evidence that the government over-targets African-Americans for fictitious stash house stings .................. 31 c. The government’s contention that Appellees have used the wrong definition of the similarly situation population fails ...... 37 Appellees provided “some evidence” of discriminatory intent ............. 40 a. An extreme disparate effect is some evidence of discriminatory intent ........................................................................................... 40 b. An inference of intent from effect is especially appropriate for fabricated stash house cases ....................................................... 43 Deference to the district court’s discretion is especially appropriate given the posture of other stash house cases in this district................ 45 VII. CONCLUSION ..................................................................................................... 46 VIII. CERTIFICATE PURSUANT TO APPELLATE RULE 32(a)(7) ...................... 49 IX. PROOF OF SERVICE ........................................................................................... 50 X. DEFENDANT-APPELLEE’S SUPPLEMENTAL APPENDIX .. Following page 50 Statutory Provisions Cited ....................................................................... Def. App. 001 Williams R. 70 – 7/31/13 Discovery Order ............................................... Def. App. 005 Brown R. 153 – 7/31/13 Discovery Order ................................................. Def. App. 007 Williams R.87 – 11/8/13 Order Denying Government Motion for Reconsideration ................................................................................... Def. App. 009 Brown R.171 – 11/8/13 Order Denying Government Motion for Reconsideration ................................................................................... Def. App. 011 Brown R.190, Williams R.100 – Order Requiring Government to Release Almost All Discovery After In Camera Review .......................................................... Def. App. 013        ix Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 TABLE OF AUTHORITIES Cases Page(s) Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ................................ 42 Berger v. United States, 295 U.S. 78 (1935)..................................................................... 16 Boland v. Engle, 113 F.3d 706 (7th Cir. 1997) ............................................................... 12 Catlin v. United States, 324 U.S. 229 (1945) ................................................................. 12 Castaneda v. Partida, 430 U.S. 482 (1977) ...........................................................................37, 40, 43, 44 Chavez v. Ill. State Police, 251 F.3d 612 (7th Cir. 2001) .....................................passim Clapper v. Amnesty Intern. USA, – U.S. – , 133 S. Ct. 1138 (2013) ................................ 15 E.E.O.C. v. O&G Spring and Wire Forms Special Co., 38 F.3d 872 (7th Cir. 1994) ................ 42 Gomillion v. Lightfoot, 364 U.S. 339 (1960) .................................................................. 42 Hazelwood School District v. United States, 433 U.S. 279 (1977) ................................. 43 Hobley v. Burge, 433 F.3d 946 (7th Cir. 2006) ................................................................ 8 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ....................................... 42 Lewis v. Casey, 518 U.S. 343 (1996) ............................................................................. 14 McDonald v. Village of Winnetka, 371 F. 3d 992 (7th Cir. 2004) ............................. 38, 39 Minnesota Life Ins. Co. v. Kagan, 724 F.3d 843 (7th Cir. 2013) .................................... 12 OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d 1344 (11th Cir. 2008) ..12 Ornelas v. United States, 517 U.S. 690 (1996) ................................................................ 7 Quackenbush v. Allstate Ins. Co.,, 517 U.S. 706 (1996) ................................................ 12 Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000) ..................................... 24 Reece v. United States, 119 F.3d 1462 (11th Cir. 1997) ................................................. 34   x Case: 14-1124 Document: 36 Filed: 04/30/2014 TABLE OF AUTHORITIES CONT. Pages: 79 Page(s)   Reise v. Bd. Of Regents of Univ. of Wisconsin Sys., 957 F.2d 293 (7th Cir. 1992) ...... 8 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)......................................... 12 United Air Lines, Inc. v. C.A.B., 766 F.2d 1107 (7th Cir. 1985) .................................. 34 United States v. Alameh, 341 F.3d 167 (2d Cir. 2003) ..............................................................25, 40 United States v. Armstrong, 517 U.S. 456 (1996) ................................................. passim United States v. Barlow, 310 F.3d 1007 (7th Cir. 2002) ..................................... passim United States v. Bass, 536 U.S. 862 (2002) .................................................................. 37 United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974) ........................................... 7, 21 United States v. Black, 733 F.3d 294 (9th Cir. 2013) ................................................... 17 United States v. Blake, 415 F.3d 625 (7th Cir. 2005)................................................... 27 United States v. Bradley, 880 F. Supp. 271 (M.D. Pa. 1994) ....................................... 40 United States v. Briggs, 623 F.3d 724 (9th Cir. 2010) ................................................. 17 United States v. Byerley, 46 F.3d 694 (7th Cir. 1995) .................................................. 10 United States v. Clay, 481 F.2d 133 (7th Cir. 1973), cert. denied, 414 U.S. 1009 (1973) .................................................................................................................... passim United States v. Correia, 531 F.2d 1095 (1st Cir. 1976) .............................................. 12 United States v. Corson, 579 F.3d 804 (7th Cir. 2009) .......................................... 16, 17 United States v. Deberry, 430 F.3d 1294 (10th Cir. 2005) ........................................... 15 United States v. DiFrancesco, 449 U.S. 117 (1980) ...................................................... 10 United States v. Dior, 671 F.2d 351 (9th Cir. 1982) ..................................................... 11 United States v. Freeman, 650 F.3d 673 (7th Cir. 2011) .............................................. 8   xi Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 TABLE OF AUTHORITIES CONT. Page(s)   United States v. Hastings, 126 F.3d 310 (4th Cir. 1997) ....................................... 13, 38   United States v. Hayes, 236 F. 3d 891 (7th Cir. 2001) .....................................25, 28, 37 United States v. Ironworkers Local 86, 443 F.2d 544 (1971) ......................................... 43 United States v. James, 257 F.3d 1173 (10th Cir. 2001) ....................................... 21, 38 United States v. Jones, 159 F.3d 969 (6th Cir. 1998) .................................................... 21 United States v. Kindle, 698 F.3d 401 (7th Cir. 2012), vacated, reh’g en banc granted sub nom. United States v. Mayfield, 2013 U.S. App. LEXIS 1456 (7th Cir. Jan. 16, 2013), cert. denied for one defendant, 133 S. Ct. 1743 (2013) .....................................................................................................................................................................16, 17, 18 United States v. Lane, 323 F.3d 568 (7th Cir. 2003) ...................................................... 45 United States v. Lester, 992 F.2d 174 (8th Cir. 1993) .................................................... 12 United States v. Lewis, 641 F.3d 773 (7th Cir. 2011) ...................................4, 16, 17, 18 United States v. Marion, 404 U.S. 307 (1971) ................................................................ 11 United States v. Olvis, 97 F.3d 739 (4th Cir. 1994) ........................................................ 39 United States v. Proctor & Gamble Co., 356 U.S. 677 (1958) ..................................... 14 United States v. Segal, 432 F.3d 767 (7th Cir. 2005) ..................................................... 11 United States v. Thorpe, 471 F.3d 652 (6th Cir. 2006) .................................................. 40 United States v. Tuitt, 68 F. Supp. 2d 4 (D. Mass. 1999) ............................................. 40 United States v. United Bhd. of Carpenters & Joiners of Am., Local 169, 457 F.2d 210 (7th Cir. 1972) ................................................................................................ 34 United States v. Westmoreland, 122 F.3d 431 (7th Cir. 1997)....................................... 38 Wayte v. United States, 470 U.S. 598 (1985) ......................................... 15, 38, 39, 40, 41 Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............................................................... 41, 43   xii Case: 14-1124 Document: 36 Filed: 04/30/2014 TABLE OF AUTHORITIES CONT. Pages: 79 Page(s) Statutory Provisions & Rules U.S. Constitution, Article III ................................................................................. 14, 15 U.S. Constitution, Amendment V ................................................................. 2, 8, 15, 16 18 U.S.C. § 3731 ........................................................................................................... 10 28 U.S.C. § 1291................................................................................................... 1,10, 12 28 U.S.C. § 1292 ........................................................................................................... 10 42 U.S.C. § 2000e ................................................................................................... 42, 43 Other Authorities Inter-university Consortium for Political and Social Research, http://www.icpsr.umich.edu/icpsrweb/ICPSR/series/77/studies?archive=ICPS R&sort By=7 .............................................................................................................. 35 Pamela S. Karlan, Race Rights, and Remedies in Criminal Adjudication, 96 Mich. L. Rev. 2001 (1998) .............................................................................................. 33 David H. Kaye and David A. Freedman, Federal Judicial Ctr., Reference Manual on Scientific Evidence: Reference Guide on Statistics (2014) ....................... 36 Mark Motivans, Bureau of Justice Statistics, Federal Justice Statistics, 2010 Statistical Tables 24 (2010), http://bjs.gov.content.pub/pdf/fjs10st.pdf ...................... 35 Brian A. Reeves, Bureau of Justice Statistics, State Court Processing Statistics: Felony Defendants in Large Urban Counties 7 (2009), http://www.bjs.gov/content/pub/pdf/fdluc09.pdf ........................................................... 35 Edna Katharine Tinto, Undercover Policing, Overstated Culpability, 34 Cardozo L. Rev. 1401 (2013) ............................................................................................... 16, 17, 18 United States Census Bureau, State and County Quick Facts: Cook County (2012), http://quickfacts.census.gov/qfd/states/17/17031.html. ................................... 32 United States Sentencing Commission, Interactive Sourcebook: Race of Offenders in Selected Primary Sentencing Guidelines (2014), http://isb.ussc.gov/Login. . . . . . . . . . 34   xiii Case: 14-1124 Document: 36 I. Filed: 04/30/2014 Pages: 79 JURISDICTION The government’s jurisdictional statement is not complete and correct. The district court had jurisdiction under 18 U.S.C. § 3231. Defendants were indicted for violations of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. §§ 1951(1), 922(g)(1), and 942 (c)(1)(A). R.48. On October 30, 2013, the district court ordered the government to produce discovery regarding a possible selective prosecution challenge. R.124. On January 2, 2014, the government filed a position paper informing the court that it would not comply with the court’s order and suggesting that the proper remedy was dismissal of the indictment. R.129. The government later clarified that dismissal should be without prejudice. Gov’t. App. 69. On January 7, 2014, the district court entered an order dismissing the indictment without prejudice. R.130, 131. On January 21, 2014, the United States filed a timely notice of appeal. This Court does not have jurisdiction, as required by 28 U.S.C. § 1291, since the district court’s dismissal was not a final order. Specifically, the government could easily and immediately cure the circumstances leading to dismissal by producing the ordered discovery. Were the government to do so, it could re-indict and proceed with the prosecution. II. ISSUES PRESENTED FOR REVIEW   1. The government announced that it would not comply with the district court’s order to provide discovery and obtained dismissal of the indictment without prejudice to re-indict. Was the dismissal without prejudice an appealable   1 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 order? 2. In a fake stash house case such as this one, there is no publicly available data about similarly situated individuals of another race not targeted by the government because the government has kept its targeting criteria secret. In this context, did the district court properly exercise its discretion in determining that statistics comparing African-American fake stash house defendants with similarly situated white people provide some evidence of discriminatory effect? 3. When the government solicits a target and creates a crime, is it an abuse of discretion to conclude that statistical evidence of discriminatory effect constitutes some evidence of discriminatory intent? III. STATEMENT OF THE CASE This prosecution results from yet another government-orchestrated plot to rob a non-existent drug stash house of imaginary drugs. The defendants in phony stash house robbery cases are overwhelmingly people of color, and this case fits within that pattern. Mr. Davis and each of his co-defendants are AfricanAmerican.1 R.121 at 3, Gov’t App. 49.2 They requested discovery in aid of an anticipated selective prosecution challenge arguing that the government violated                                                              This brief uses the term “African-American” as a shorthand to refer to Black people, including those who may be of Caribbean, Jamaican, or African descent. 1 “R.__” indicates a reference to the district court record in the instant case. This Response also looks to docket entries in other cases currently pending before the Northern District of Illinois. They are designated “Casename R.__.” “Gov’t Br.__” refers to the government’s initial brief. “Gov’t App.__” refers to the page number of the appendix to the government’s initial brief; “Def. App.__” refers to the page number of the appendix to defendant’s Response brief. 2   2 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 the equal protection clause of the Fifth Amendment by over-targeting AfricanAmericans in the fictitious stash house cases it creates. R.111, 113, 120. Over vigorous government objection, the district court, Judge Darrah, granted defendants’ motions, ordering the government to produce the selective prosecution discovery. R.124, Gov’t App. 61. The government refused to comply. R.129 at 1. Instead, it suggested that the court dismiss the indictment without prejudice for the express purpose of creating what it opined would be an appealable order. Id. at 2; see also Gov’t App. 67 (AUSA: “We would suggest to the Court that in light of our non-compliance with the Court’s discovery order, we’re willing to suggest—or, pardon me, to accept dismissal of the indictment as a sanction permitting the government to appeal.”); id. at 69 (AUSA: “And your Honor, just to be clear, that dismissal is without prejudice?” COURT: “That’s without prejudice”). The court dismissed the indictment without prejudice, R.130, Gov’t App. 71, and the government appealed. R.134 This account, approximately paralleling the government’s statement of the case, fails, however, to tell the whole story. At least nine other phony stash cases are currently pending in the Northern District of Illinois.3 Selective prosecution                                                              United States v. Williams, 12-CR-887 (N.D. Ill.) (Castillo, C.J.); United States v. Brown, 12-CR-632 (N.D. Ill.) (Castillo, C.J.); United States v. Alexander, 11-CR148 (N.D. Ill.) (St. Eve, J.); United States v. Elias, 13-CR-476 (N.D. Ill.) (Leinenweber, J.); United States v. Jackson, 13-CR-636 (N.D. Ill.) (Durkin, J.); United States v. Flowers, 11-CR-779 (N.D. Ill.) (Coleman, J.); United States v. Payne, 12-CR-854 (N.D. Ill.) (Norgle, J.); United States v. Cousins, 12-CR-865 (N.D. Ill.) (Grady, J.); United States v. Paxton, 13-CR-103 (N.D. Ill.) (Gettleman, J.).   3   3 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 discovery motions have been filed in each,4 and orders have issued in at least six cases.5 Indeed, as the government acknowledges, in several other ongoing cases, defendants presented nearly identical statistical evidence and briefing as in this case. Gov’t Br. 6 n.2. In two of these cases, Chief Judge Castillo ordered the discovery. Williams R. 70, 87, 100, Def. App. 5, 9, 13; Brown R.153, 171, 190 (identical orders from Chief Judge Castillo in another stash house selective prosecution challenge), Def. App. 7, 11, 13. The government appears to be in the process of complying with these discovery orders. This Court, then, is being asked to reverse an order in which the government has already substantially acquiesced. A.   The Alleged Offense Conduct in This Case The facts, as alleged in the complaint, R.1, Gov’t App. 1, and the indictment, R.48, Gov’t App. 38, follow the same “rather shopworn scenario,” United States v. Lewis, 641 F.3d 773, 777 (7th Cir. 2011), this Court has seen in other stash house cases.6 A government-controlled informant proposed a drug robbery to Mr. Davis,                                                              Alexander R.118; Flowers R.248; Brown R.123; Payne R.70; Cousins, R.56, Williams R.50, 55; Davis R.109; Elias R.155, 158, 164; Jackson R.47, 51; Paxton R.70, 90. 4 Williams R.70, 87, 100 (granting in part after in camera review), Def. App. 5, 9, 13; Brown R.153, 171, 190 (granting in part after in camera review), Def. App. 7, 11, 13; Alexander R.170 (granting in part and denying in part); Elias R.189 (granting motion); Jackson R.47 (granting as to all already-disclosed discovery and requesting additional briefing as to remaining discovery issues); Flowers R.249 (denying motion). 6 Appellees repeat the allegations in the Complaint and Indictment for the purpose of this appeal only. They do not concede—and, in fact, vigorously contest— the accuracy and truthfulness of certain of the government’s factual claims. But that is a matter for trial or perhaps an evidentiary hearing. At this stage in the litigation, the allegations in the Complaint, R.1, Gov’t App. 1, are taken as true. 5   4 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 and Mr. Davis expressed interest in the project. R.1 at 4, Gov’t App. 4. The informant then introduced Mr. Davis to a purported courier, who was, in reality, an undercover government law enforcement agent. R.1 at 6, Gov’t App. 6. In his initial conversation with Mr. Davis, the undercover agent described a plot to rob his purported employer’s drug stash house and steal fifty kilos of cocaine, R.1 at 6-7, Gov’t App. 6-7, loot that would be worth hundreds of thousands of dollars. In later conversations, the agent continued to solicit Mr. Davis’ help and urged him to assemble a team to carry out the robbery. R.1 at 5-12, 14-15, 18, Gov’t App. 5-12, 14-15, 18. On January 17, 2013, Mr. Davis and five others met with the undercover agent and the informant. R.1 at 20-30, Gov’t App. 20-30. For these other five, this was their first and only meeting with the undercover agent. R.1 at 1-37, Gov’t App. 1-37. The agent laid out the plot to rob the stash house of kilos of cocaine, R.1 at 26, Gov’t App. 26, an opportunity that would be presented that very day, R.1 at 22, Gov’t App. 22. The upshot of this meeting, however, was the arrest of all six men. R.1 at 30, Gov’t App. 30. Although the undercover agent had repeatedly stressed to Mr. Davis that he needed to bring massive firepower to the robbery, the six arrestees, according to the complaint, brought a total of three guns. R.1 at 30-31, Gov’t App. 30-31. A seventh man was later arrested for his alleged role in the scheme. R.1 at 31, Gov’t App. 31. The resulting indictment, R.48, Gov’t App. 38, charged drug, robbery, and firearms offenses—in short, the usual panoply of stash house robbery charges.   5 Case: 14-1124 B.   Document: 36 Filed: 04/30/2014 Pages: 79 The Selective Prosecution Discovery Motion and the Government’s Response On September 9 to 11, 2013, defendants filed motions requesting discovery that would enable them to determine whether the stash house cases were the product of racial profiling. R.109-113. Relying on government-produced materials from the Williams case,7 defendants listed, by race, all phony stash house defendants in the Northern District of Illinois since 2006, and summarized the results: [S]ince 2006, there have been 25 ATF phony stash house rip off cases, 18 of which had solely Black defendants. Out of the 25 cases, there were 75 Black defendants, 16 Latino defendants and 6 White defendants. From 2010, there have been 13 such cases, 9 of which had all Black defendants, and out of the 13 total cases from 2010 to the present, there have been 45 Black defendants, 14 Latino defendants and 1 White defendant. . . . During the entire period reviewed, Black defendants have comprised 77% of the total number of defendants with whites virtually disappearing since 2009.   R.120 at 5-6. Defendants also reported to Judge Darrah the result of the discovery request in Williams: Chief Judge Castillo had determined that the Williams defendants had made a “strong showing of potential bias” and had ordered the government to provide discovery. R.111 at 4. On October 30, 2013, the district court, Judge Darrah, concluded that the defendants had made a sufficient showing under United States v. Armstrong, 517 U.S. 456 (1996), to justify a discovery order. “An examination of the limited                                                              The government’s chart in Williams had a major deficiency: it did not accurately list the racial or ethnic identity of the defendants in these cases. The Williams defense team was able to identify and correct the government’s errors and then resubmit the chart to the court. Appellees submitted to Judge Darrah the substance of the corrected version, as well as information about stash house cases that were charged after the filings in Williams. See R.120 at 4-5 (referring to R.120, Ex. A). 7   6 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 information available to Defendants indicates that since 2006, the prosecution in this District has brought at least twenty purported phony stash house cases, with the overwhelming majority of the defendants named being individuals of color. In light of this information, it is necessary to permit Defendants discovery . . . . ” R.124 at 2, Gov’t App. 62. The government filed no motion for reconsideration. Instead, on January 2, 2014, it filed a self-styled “position paper,” in which it announced that it would not comply with the court’s order. R.129 at 1. It then requested dismissal of the indictment without prejudice for the express purpose of creating what it purported would be an appealable order, through which it hoped to obtain review of the discovery order. Id. On January 7, 2014, Judge Darrah dismissed the indictment without prejudice. R.130-132, Gov’t App. 71-73. The government timely filed its notice of appeal. R.134. IV. STANDARD OF REVIEW This Court makes an independent determination of whether an order of dismissal is a final judgment conferring appellate jurisdiction. Appellees’ objection to jurisdiction raises a question of law. Questions of law are reviewed de novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996). An appellate court reviews a district court’s ruling on a discovery motion for a selective prosecution claim under an abuse of discretion standard. United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 2002); accord United States v. Berrios, 501   7 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 F.2d 1207, 1212 (2d Cir.1974), cited with approval on other grounds in Armstrong, 517 U.S. at 468, 470 (“[T]he decision to permit a hearing and, in anticipation thereof, to authorize a subpoena of evidence in the government’s possession, lies largely in the trial judge’s discretion.”). The abuse of discretion standard also governs appellate review of discovery sanctions. See Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006). A “district court abuses its discretion when it makes an error of law or when it makes a clearly erroneous finding of fact.” United States v. Freeman, 650 F.3d 673, 678-79 (7th Cir. 2011). “[A]lmost all” appeals from discovery orders should “end in affirmance” because “the district court possesses discretion, and review is deferential.” See Reise v. Bd. of Regents of Univ. of Wisconsin Sys., 957 F.2d 293, 295 (7th Cir. 1992) (describing the rationale for barring interlocutory appeal of discovery orders). V. SUMMARY OF THE ARGUMENT This Court lacks appellate jurisdiction. For this Court to have jurisdiction, the order of dismissal must be a final judgment. When a dismissal leaves the government the option to re-indict regardless of the outcome on appeal, the dismissal is not a final judgment. The government sought and received dismissal without prejudice. That dismissal left the government free to re-indict, regardless of what this Court might say about the merits of the appeal. Accordingly, the dismissal was not final, this Court lacks appellate jurisdiction, and the case must be dismissed. Even if this Court determines it has jurisdiction, it nevertheless should   8 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 affirm the district court’s discovery order. Selective prosecutions violate the Fifth Amendment’s equal protection guarantee. Armstrong, 517 U.S. at 464-65. To obtain discovery on a selective prosecution challenge to an indictment, a defendant must proffer “some evidence” of discriminatory effect in comparison to a similarly situated group and “some evidence” of discriminatory intent. Id. at 468. This Court has recognized that the contextual nature of this standard means that where, as in this case and all other fake stash house cases, there is no publicly available data about similarly situated individuals not targeted by the government, defendants may point to statistics alone to show a discriminatory effect. See Chavez v. Ill. State Police, 251 F.3d 612, 640 (7th Cir. 2001). Applying this standard, Appellees have produced some evidence that African-Americans are starkly over-represented in comparison to white people in stash house prosecutions. This result holds even if one narrows the comparison group to the government’s proposed group: white people with previous convictions for robbery, narcotics, or firearms. This stark evidence of discriminatory effect is also evidence of discriminatory intent, especially where, as in this case, the process by which targets are selected and their crime created is so susceptible to government abuse. Because Appellees have shown some evidence of discriminatory effect and discriminatory intent, the district court did not abuse its discretion in ordering discovery, and its order should be affirmed.   9 Case: 14-1124 Document: 36 VI. Filed: 04/30/2014 Pages: 79 ARGUMENT   A.   THIS CASE MUST BE DISMISSED FOR LACK OF APPELLATE JURISDICTION. The government successfully sought dismissal without prejudice. That dismissal does not constitute a final judgment because the government can reindict the case. Accordingly, this appeal is not within this Court’s appellate jurisdiction and must be dismissed. The government’s real complaint in this case is with Judge Darrah’s discovery order. The government concedes, however, that this Court lacks jurisdiction to hear an interlocutory appeal of that discovery order. R.129 at ¶4. In an attempt to circumvent this jurisdictional bar, it encouraged the district court to dismiss the case without prejudice. Id. at ¶7. Now, having received the dismissal order it requested, the government asks this Court to vacate that very same order. Gov’t Br. 30. This Court has jurisdiction over all final judgments, 28 U.S.C. § 1291 (2014), as well as certain interlocutory orders, Id. § 1292, that the government concedes are not at issue in this case, R.129 at ¶4. Government appeals in criminal cases are authorized under 18 U.S.C. § 3731 (2014), which, in relevant part, allows the government to file an appeal of the dismissal of an indictment. See United States v. Byerley, 46 F.3d 694, 698 (7th Cir. 1995) (“The United States ‘has no right of appeal in a criminal case, absent explicit statutory authority.’”) (quoting United States v. DiFrancesco, 449 U.S. 117, 131 (1980)). But, under section 1291’s final judgment requirement, the order of dismissal   10 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 must be a final judgment, or else this Court lacks appellate jurisdiction. As this Court has stressed, “. . . an appellate court does not have jurisdiction over a nonfinal order, and this rule is strictly applied in criminal cases.” United States v. Segal, 432 F.3d 767, 774 (7th Cir. 2005); accord United States v. Dior, 671 F.2d 351, 355 (9th Cir. 1982) (“The legislative history of section 3731 does not reveal, and we cannot presume, that Congress intended to abolish the final judgment rule of section 1291 for criminal appeals prosecuted by the Government.”). The dismissal order in this case was not a final judgment. This Court has elaborated on what type of dismissal constitutes a final judgment: There must be “no possibility” that “another indictment . . . would withstand an identical motion to dismiss.” United States v. Clay, 481 F.2d 133, 136 (7th Cir. 1973), cert. denied, 414 U.S. 1009 (1973); see also United States v. Marion, 404 U.S.307, 312 (1971) (finding appellate jurisdiction where basis for dismissal “was beyond the power of the Government to cure since re-indictment would not have been permissible under such a ruling”). The district court in Clay dismissed the indictment for undue preindictment delay. 481 F.2d at 134 (citing Fed. R.Crim. P. 48(b)). Relying on Marion, this Court found the order appealable. Id. at 136. Clay stressed that not all dismissals are final judgments, regardless of how a district court characterizes the order. Id. at 135-36. In Clay itself, this Court construed the district court’s order as having been entered without prejudice. Id. at 135. But that characterization did not end the inquiry. This Court concluded that the dismissal was a final judgment, since the district court had already ruled against the government on the necessity   11 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 for the delay and “there was no possibility of another indictment that would withstand an identical motion to dismiss.” Id. at 136;8 see also United States v. Correia, 531 F.2d 1095, 1097 (1st Cir. 1976) (recognizing “a lack of finality” if government faces “no barrier to . . . reindicting defendant”).9 The importance of Clay’s distinction between cases that can be re-indicted versus those that cannot is borne out in civil cases, which are also governed by the final judgment rule. “[A] decision is ordinarily considered final and appealable under § 1291 only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)); accord Boland v. Engle, 113 F.3d 706, 714 (7th Cir. 1997) (“[D]ismissal is appealable only if it legally prejudices the plaintiff by severely circumscrib[ing] the plaintiff’s ability to reinitiate his lawsuit.” (alteration in original) (citation omitted));10 OFS Fitel,                                                              A similar situation arose in United States v. Lester, 992 F.2d 174 (8th Cir. 1993). There, the Eighth Circuit expressly stated that it had appellate jurisdiction to consider a district court’s order dismissing a count without prejudice. Id. at 176. However, the district court’s grounds for dismissal were not curable unless the government won on appeal. See id. at 175. Thus, despite the without-prejudice label, the dismissal was a final judgment as measured by this Court in Clay. 8 The Correia court went on to issue an opinion, assuming without deciding that it had jurisdiction to do so. 531 F.2d at 1098-1100. This practice has since been definitively rejected by the Supreme Court. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“We decline to endorse [assuming jurisdiction] because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers.”). 9 This Court has given litigants some flexibility by allowing appeals where a litigant declares that, should this Court rule against it on the merits, it will agree to be bound as if the dismissal had been with prejudice. Minnesota Life Ins. Co. v. 10   12 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 LLC v. Epstein, Becker and Green, P.C., 549 F.3d 1344, 1356 (11th Cir. 2008) (final judgment because case was dismissed with prejudice and the appellant cannot refile if it loses the appeal). Clay teaches that the government cannot turn the district court’s nonappealable discovery order into an appealable order by obtaining a dismissal without prejudice as a sanction for its professed intent not to comply with the court’s order. The government could re-indict this case at any time within the limitations period. Indeed, the defense had not even filed a motion to dismiss for selective prosecution, and so the court has not ruled on the question. Simply put, the government can easily cure its own recalcitrance, and, if it did, there is no reason why the case would not go forward. The government’s claim of appellate jurisdiction gains no support from Armstrong. See Gov’t Br. 12 (citing Armstrong and United States v. Hastings, 126 F.3d 310 (4th Cir. 1997), as creating an “established practice” supporting the government’s procedural maneuvers). To be sure, in Armstrong, as in this case, the government refused to comply with the selective prosecution discovery order and requested dismissal “so that appeal might lie.” Armstrong, 517 U.S. at 461 n.2. The Armstrong Court, however, made no pronouncement about jurisdiction. Indeed, the issue was not raised at oral argument, nor does it appear that any of the Supreme Court briefs—from the parties or the amici—raised the issue. So, too, is Hastings silent about its own jurisdiction. The Supreme Court has “repeatedly held that the                                                                                                                                                                                                  Kagan, 724 F.3d 843, 847-48 (7th Cir. 2013) (collecting cases). In this case, however, the government has given no indication that it would accept a loss on this appeal as a bar to further prosecution.   13 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 existence of unaddressed jurisdictional defects has no precedential effect.” Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (collecting cases). Accordingly, the Court’s silence in Armstrong (and the Fourth Circuit’s silence in Hastings) is not a holding and certainly not a precedent for this case. Had the government sought and obtained a dismissal with prejudice, then this Court would have appellate jurisdiction, since only a successful appeal would permit re-indictment. The Supreme Court confirms this point. In United States v. Procter & Gamble Co., the government refused to comply with a civil discovery order and solicited a dismissal so as to create an appealable order through which it could obtain review of its real concern—the discovery order. 356 U.S. 677, 679-80 (1958). Proctor & Gamble challenged appellate jurisdiction. Id. at 680. The Court rejected that challenge, finding jurisdiction on the very basis later set out in Clay. Id. at 680-81. It emphasized that the dismissal with prejudice represented a loss on the merits. Id. at 680, 680 n.4. Because the dismissal was a loss on the merits, it was a final, and therefore appealable, order. Id. That is, had the government lost on appeal, it would not have been allowed to resume the litigation and belatedly comply with the discovery order. In the case at hand, by contrast, the government wants an appeal in which, if it loses on the merits, it can re-indict, produce the discovery, and oppose defense efforts to dismiss for racial profiling. But, following Procter& Gamble as well as Clay, the government can seek review of a discovery order only when it has accepted a dismissal through which it has “lost on the merits.” Id. at 681. By   14 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 obtaining dismissal without prejudice, the government received a non-final—and hence unappealable—judgment.11 Following Clay, the critical inquiry is whether the district court’s dismissal allows the government to re-indict. If so, then the order is not a final judgment, and this court lacks appellate jurisdiction. Had the district court dismissed with prejudice for the discovery violation there would have been a final judgment over which this Court would have had appellate jurisdiction. See United States v. Deberry, 430 F.3d 1294, 1297 (10th Cir. 2005). But the district court did not do that; it dismissed without prejudice. The government remains free to re-indict regardless of this Court’s ruling. This result is exactly what Clay foreclosed. Accordingly, this appeal must be dismissed for lack of appellate jurisdiction. B.   THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ORDERING DISCOVERY. The Fifth Amendment imposes fundamental restraints on the government’s exercise of prosecutorial and investigatory discretion, prohibiting the government from initiating criminal proceedings for unjustifiable and arbitrary reasons such as the race of the accused. Wayte v. United States, 470 U.S. 598, 608& n.9 (1985). This constitutional prohibition flows from the recognition that the government’s                                                              Proctor & Gamble predates much contemporary Article III case law. In particular, it appears to allow the government standing despite what is, in essence, a “selfinflicted injury,” Clapper v. Amnesty Intern. USA, – U.S. –, 133 S. Ct. 1138 (2013), i.e., the government’s requested dismissal of its own case. More recently, however, the Supreme Court ruled, albeit in a different context, that self-inflicted injuries cannot serve as a basis for Article III standing. Id. The implicit conflict between these two cases suggests that the government may not even have standing to bring this appeal. 11   15 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 “obligation to govern impartially is as compelling as its obligation to govern at all.” Berger v. United States, 295 U.S. 78, 88 (1935). Appellees successfully won discovery in anticipation of a motion challenging their indictment for violating the Fifth Amendment’s equal protection guarantee. They proffered “some evidence” that the government selectively prosecutes AfricanAmericans, in comparison to white people, for fake stash house robberies. Therefore, the government’s contentions that Appellees did not meet the requisite standard must be rejected. The district court did not abuse its discretion, and its order should be affirmed. 1. This case follows the standard playbook for fake stash house robbery cases, in which the government selects an initial target and induces him to recruit others. The government first attempts to undermine Appellees’ selective prosecution claim by distinguishing this case from other stash house cases. Comparing fictitious stash house robbery operations to the facts of this case belies that purported distinction. This Court has observed that the government “has a standard playbook” for its fictitious stash house sting operations and that “the facts between cases are frequently nearly identical.” United States v. Kindle, 698 F.3d 401, 404 (7th Cir. 2012), vacated, reh’g en banc granted sub nom. United States v. Mayfield, 2013 U.S. App. LEXIS 1456 (7th Cir. Jan. 16, 2013), cert. denied for one defendant, 133 S. Ct. 1743 (2013). The government concocts a fake “stash house”—a location, often a private residence or warehouse, where the government pretends drugs, money, and   16 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 other trafficking-related items are temporarily stored until moved to another location. See Eda Katharine Tinto, Undercover Policing, Overstated Culpability, 34 Cardozo L. Rev. 1401, 1446-47 (2013); see also Lewis, 641 F.3d at 777 (describing the “orchestrat[ion]” of the fictional scenario by government agents). A confidential informant (“CI”) or undercover government agent then identifies one or more targets who might be induced to rob the fictitious stash house. See Tinto, supra, at 1447. The CI or agent broaches the subject of a stash house robbery with the target(s) and “recruits” them. Id.; see also Kindle, 698 F.3d at 404; Lewis, 641 F.3d at 777; United States v. Corson, 579 F.3d 804, 806-07 (7th Cir. 2009). To recruit the target(s), the agent or informant tells them that drug dealers store enormous quantities of drugs and also possibly money and firearms in the stash house. See Lewis, 641 F.3d at 777 (informant promised stash house would hold 15-20 kilos of cocaine); Corson, 579 F.3d at 807 (informant promised house would hold “‘bricks’ of cocaine,” “20-25 kilos of coke”); United States v. Black,733 F.3d 294, 303 (9th Cir. 2013) (describing how the government uses “the temptation of a big payday” as “bait” in a fictitious stash house sting). Notably, the agent or informant usually designs all of the details of the fictitious stash house, including the quantity and type of drugs stored inside as well as the number of (frequently armed) guards protecting it. See Tinto, supra, at 1447; Kindle, 698 F.3d at 414-15 (Posner, J. dissenting) (noting the government’s ability to manipulate the details surrounding the robbery of fictitious stash houses); United States v. Briggs, 623 F.3d 724, 729-30 (9th Cir. 2010) (describing the government’s   17 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 “virtually unfettered ability” to control the amount of drugs and obstacles in fictitious stash house robberies). By surrounding the fake house with fake guards, the government ensures that it will capture multiple defendants in each operation. See Kindle, 698 F.3d at 415 (Posner, J., dissenting) (“It was natural that Mayfield should seek to reduce the danger to himself by recruiting associates”); Lewis, 641 F.3d at 777 (upon hearing of the guarded stash house, defendant “said he had a crew of three guys ready to go”); Corson, 579 F.3d at 807 (upon learning stash house was guarded by multiple armed men, defendant volunteered to involve his brother). Once the targets agree to commit the pretend robbery, they are arrested, typically at a meeting or on their way to carry out the fabricated crime. See Tinto, supra, at 1447. Defendants captured in such operations, like the Appellees in this case, usually face charges of conspiracy and attempt to distribute narcotics as well as weapons and other offenses. See id. Because the government controls all of the details about the large quantity of drugs stored within the fictitious stash house, the sentences faced by defendants targeted in these operations tend to be very high. See Kindle, 698 F.3d at 414 (Posner, J., dissenting) (explaining that fictitious stash house stings are a “disreputable tactic” because “[l]aw enforcement uses them to increase the amount of drugs that can be attributed to the persons stung, so as to jack up their sentences”); Tinto, supra, at 1450-51 (“Given the many criminal charges that can result from how the stash house operation is portrayed, the potential augmentation of a defendant’s criminal liability is often greater than that of a typical drug deal.”).   18 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 The government argues that the selective prosecution challenge in this case cannot be premised on the standard fictitious stash house robbery scenario described above because this is not a standard case. Specifically, the government claims that, in this case, unlike all the others, it did not target any of the Appellees and, therefore, cannot have selectively prosecuted anyone. Gov’t Br. 26. Rather, the government contends that Mr. Davis first approached the informant (i.e., he recruited himself), Gov’t Br. 26-27, and then he (not the government) recruited the other Appellees, id. at 28. For that reason, the government claims that it cannot have discriminatorily targeted Appellees because it did not target Appellees at all. The government makes slightly different factual claims for Davis versus the other Appellees. Both lack any basis in the record and defy common sense. As to Davis, the government claims—based solely on the agent’s affidavit submitted with the complaint—that, on November 6, 2012, Davis sua sponte approached the informant about the robbery rather than the other way around. Gov’t Br. 27. In fact, the affidavit states only that Davis called the informant on that date to ask about a robbery. Crucially, the affidavit is silent about everything that happened before November 6, including how and when Davis and the informant initially met, how many conversations they had before the November 6 call, whether a robbery ever was discussed in those previous conversations, and, crucially, who first brought up the topic of a robbery.12 These facts are essential to the question of who targeted                                                              In the affidavit, the agent admits that he included only the facts necessary to establish probable cause. R.1 at 2-3, Gov’t App. 2-3. Thus, it is hardly surprising that he would omit this information. 12   19 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 whom, and Appellees vigorously dispute the government’s factually unsupported claim that it was Davis who initially approached the informant. Indeed, even the government admits that the fake robbery only moved forward when, in January 2013, the informant contacted Davis and reminded him of their November conversation. Gov’t Br. 27 (citing Gov’t App. 4). Ultimately, it strains credulity to claim that here, in contrast to the many other fake stash house operations this Court has encountered, the government puppet masters sent out their puppet, and the target—without any prompting—just happened to suggest the robbery before the puppet had a chance to propose what he had been sent to instigate. Next, the government argues that it cannot have selectively prosecuted the remaining six defendants because, it claims, Davis, and not the government, recruited them. Gov’t Br. 28-29 & n.9-10. This argument ignores crucial facts. In this case, the government not only followed the typical pattern of creating a heavilyguarded fictitious stash house that would require more than one robber, but went still further, instructing Mr. Davis, its initial target, to invite those participants. According to the government’s affidavit, from the outset, “[t]he [undercover agent] told Davis . . . that he wanted experienced individuals involved in the robbery.” R.1 at 8, Gov’t App. 8. The undercover agent also told Davis that there would be three armed men guarding the stash house, and that it was their job “to do whatever they. . . need to do to protect . . . [the cocaine].” Id. (alteration in original). Later, the agent told Davis to “‘bring your guys [the others participating in the robbery].’” R.1 at 15 (alteration in original), Gov’t App. 15. Given the government’s explicit directives to   20 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Davis to recruit and bring others, as well as the government’s description of a heavily-guarded stash house that no one in his right mind would attempt to rob alone, the government cannot now plausibly claim that it had no hand in targeting the other six Appellees. Any “recruitment” by Davis was a direct response to the government-created setup. The fact that Davis was essentially a “cat’s paw” of the government, recruiting the other defendants at the direction of—and in response to—a government-crafted scenario, only supports Appellees’ selective prosecution argument. 2.   A defense proffer of “some evidence” of discriminatory effect and discriminatory intent authorizes discovery for a selective prosecution challenge. Armstrong sets out the basic standard for discovery in a selective prosecution case: a defendant must proffer “‘some evidence tending to show the existence of the essential elements of the defense,’ discriminatory effect and discriminatory intent.” 517 U.S. at 468 (quoting Berrios, 501 F.2d at 1211). The Court emphasized that the “some evidence” standard was neither a rigid formula nor a new rule. It observed that various circuits had expressed the same standard using a variety of verbal formulations, including “colorable basis,” “substantial threshold showing,” “substantial and concrete basis,” and “reasonable likelihood.” 517 U.S. at 468. “Some evidence” means a lesser showing than a prima facie case. See id.; accord United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001) (Armstrong’s “some evidence” standard means “defendants need not establish a prima facie case of selective prosecution to obtain discovery on these issues.”); United States v. Jones, 159 F.3d   21 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 969, 978 (6th Cir. 1998) (“Obviously, a defendant need not prove his case in order to justify discovery on an issue.”). “Some evidence” means different things for each prong. To show discriminatory effect, a defendant must produce “some evidence that similarly situated defendants of other races could have been prosecuted, but were not.” Armstrong, 517 U.S. at 469. Armstrong emphasized that “the similarly situated requirement does not make a selective prosecution claim impossible to prove.” Id. at 466. In the context of that particular case, “it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents.” Id. at 470. Armstrong stressed the importance of information available to the defense. For example, defendants could “have investigated whether similarly situated persons of other races were prosecuted by the State of California and were known to federal law enforcement officers, but were not prosecuted in federal court.” Id. at 470. In Armstrong, however, the defendants had produced no comparative evidence whatsoever that they were treated less favorably because of race, id. at 469-70, and ultimately lost before the Supreme Court as a result, id. at 470-71. Armstrong indicated that the defense must also present “some evidence” of discriminatory intent. Because the Armstrong Court denied relief for failure to establish discriminatory effect, it did not flesh out the meaning of “some evidence” as it bears on intent, except to indicate that “‘ordinary equal protection standards’” apply. Id. at 465 (citation omitted).   22 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Appellees provided “some evidence” of both discriminatory effect and discriminatory intent. As a result, the district court did not abuse its discretion in ordering discovery. 3.   Appellees provided “some evidence” of discriminatory effect. The government’s primary argument is that Appellees have not demonstrated discriminatory effect because their comparison group was improper. Specifically, the government argues that (1) Appellees “did not identify a single similarly situated person who was excluded from prosecution based on race,” Gov’t Br. 23, and (2) “a mere recitation of statistics [does not] support a request for selective prosecution discovery,” id. at 19; see generally id. at 18-25. The government misunderstands the contextual nature of the similarly situated standard: (1) Defendants need not name a particular white person who was not prosecuted, see Chavez, 251 F.3d at 640,13 and (2) the District Court properly held that the statistics the defense provided below constituted some evidence that African-Americans were selectively prosecuted for fake stash house stings relative to similarly situated white people in the Northern District of Illinois. That is, analysis of that comparison group yields some evidence of discriminatory effect. Moreover, analysis of the alternative comparison group the government suggests in its briefing shows even stronger evidence of discriminatory effect. Finally, the                                                              The government’s additional contention that Appellees should have identified a specific white person who “suggested a drug robbery” to the government, Gov’t Br. 24, is also incorrect. Someone who suggests a drug robbery is not similarly situated to any of the Appellees given the facts of this case as well as the government’s standard practice of targeting the initial defendant in stash house cases. Supra at 4-5, 16-21. 13   23 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 government’s attempts to further narrow the comparison group are unfounded in law and must be rejected. a. The similarly situated standard does not require Appellees to identify a particular person; statistics alone suffice. The similarly situated requirement is a contextual standard where the proper comparison group is defined by the nature of the case, specifically, by the relationship between the context of the case and the data available. This Court applied this contextual standard to conclude that, in certain circumstances, statistics alone can suffice to show some evidence of discriminatory effect. Barlow, 310 F.3d at 1011 (“[A]lthough statistics alone rarely establish an equal protection violation, they may be sufficient to establish the discriminatory effect prong of the Armstrong test.”) (citing Chavez, 251 F.3d at 640); Chavez, 251 F.3d at 640 (“[P]laintiffs do not have to provide the court with the name of an individual who was not stopped; instead they may attempt to use statistics to show that the [police] treated them differently than other[s] . . . who were similarly situated.”). Applying this standard to the context of this government-instigated stash house robbery shows that Appellees presented sufficient evidence of discriminatory effect to obtain discovery. This Court has emphasized that the definition of the relevant similarly situated population “depends on the context of the case.” Chavez, 251 F.3d at 636 (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000)). The ultimate question is whether the individuals alleged to be similarly situated   24 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 share “common features essential to a meaningful comparison.” Id. (quoting Radue, 219 F.3d at 619). To show discriminatory effect, the ideal comparison group would be local members of a different race who otherwise meet the government’s targeting criteria, during the appropriate time-frame. See Chavez, 251 F.3d at 640-45 (requiring evidence that white individuals met the requirements of “Operation Valkyrie” by driving on Illinois highways); United States v. Hayes, 236 F.3d 891, 895 (7th Cir. 2001) (requiring evidence that “persons of another race who fell within 14 the Operation Triggerlock guidelines were not federally prosecuted”). The contextual nature of the similarly situated standard means that the definition of the relevant comparison group necessarily depends on what information is publicly available. See United States v. Alameh, 341 F.3d 167, 174 (2d Cir. 2003) (“[T]he amount and kind of evidence that suffices to meet the requirements of ‘some evidence’ justifying discovery is case-specific, and . . . courts must consider what evidence a defendant can obtain with due diligence in the absence of discovery.”). In Chavez, this Court recognized that the definition of the relevant comparison group is different in a selective enforcement case than in a classic selective prosecution case because a selective enforcement case creates less publicly available information. The Hispanic motorists in Chavez brought a                                                              Of course, the amount of evidence required to obtain discovery in a criminal case is lower than the amount needed to win on the merits in either a criminal or civil case. See supra at 21-22. Much of the caselaw developing the discriminatory effect standard takes place at the merits stage of a civil case. Any such holdings, therefore, should be applied more flexibly to the discovery stage of a criminal case. 14   25 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 selective enforcement claim, contending that the state police had pulled them over based on their race but had not targeted people of other races or ethnicities. 251 F.3d at 620-21. This Court recognized that, in a classic “meritorious selective prosecution claim, a criminal defendant would be able to name others arrested for the same offense who were not prosecuted.” Id. at 640 (emphasis added). That is, data supporting a classic selective prosecution claim (i.e., data demonstrating that one race is being prosecuted while another is not) are technically publicly available. By comparison, plaintiffs in a selective enforcement case like Chavez “who allege that they were stopped due to racial profiling would not . . . be able to provide the names of other similarly situated motorists who were not stopped.” Id. In applying Armstrong’s similarly situated requirement to the selective enforcement context, the Chavez court zeroed in on this distinction between the data available for an Armstrong-style selective prosecution challenge and the data available in the context of a selective enforcement challenge. The Chavez court explicitly rejected the contention that the plaintiffs were required to point to a particular similarly situated person of a different race who was not targeted by the government: “[P]laintiffs do not have to provide the court with the name of an individual who was not stopped; instead they may attempt to use statistics to show that the [police] treated them differently than other[s] . . . who were similarly situated.” Id.; see also id. at 637-40 (discussing the use of statistics to prove discriminatory effect); Barlow, 310 F.3d at 1011 (explaining that “statistics . . . may be sufficient to establish the discriminatory effect prong of the Armstrong test”)   26 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 (citing Chavez, 251 F.3d at 640).15 Selective prosecution cases are at one end of a continuum of potentially publicly available information; selective enforcement cases are the next step along the continuum and fictitious stash house stings are yet one step further. Stash house cases pose an even greater data challenge than the selective enforcement claim at issue in Chavez for two reasons: (1) the government selects who is targeted to commit the crime, and (2) the selection criteria are secret. By contrast, in the paradigmatic selective prosecution case (e.g., Armstrong), it is undisputed that a crime has been committed. The question is whether similarly situated people of a different race are committing the same crime, but are not being prosecuted to the same extent. See, e.g., Armstrong, 517 U.S. at 458-61; United States v. Blake, 415 F.3d 625, 627-28 (7th Cir. 2005) (white and African-American defendants arrested, but only black defendant prosecuted). In the classic selective prosecution case, it is at least in principle possible to gather publicly available data regarding crime commission/arrest rates versus prosecution rates. The Court rejected the Armstrong defendants’ discovery request because they presented no comparative information at all: they failed to construct a similarly situated comparison group and could not even point to one single individual who fit the                                                              Chavez is a civil case, but the salient difference between Chavez and Armstrong is not that one arises in the “criminal . . . context” and the other in the “civil” context; it’s that one involves “selective enforcement,” while the other involves “selective prosecution.” See Chavez, 251 F.3d. at 640. Indeed, this Court appears to have reached the same conclusion just over one year later, when it applied Chavez to a criminal selective enforcement challenge. See Barlow, 310 F.3d at 1011 (citing only Chavez for the proposition that “statistics alone . . . may be sufficient to establish the discriminatory effect prong of the Armstrong test.”); see generally id. passim. 15   27 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 appropriate selection criteria but was not prosecuted. Armstrong, 517 U.S. at 46970.16 In a selective enforcement case (e.g., Chavez), there again is no dispute that a crime has been committed or that an individual has engaged in suspicious behavior. The issue is whether similarly situated people of a different race have done the same thing but are not being pulled over or arrested. See Chavez, 251 F.3d. at 62122 (police stopped motorists for traffic violations and pursued searches of the vehicles if certain suspicious criteria were present); Barlow, 310 F.3d at 1008-09 (police stopped and questioned certain passengers based on their suspicious behavior as they were disembarking from a train); Hayes, 236 F.3d at 893 (defendant disobeyed a pedestrian “Don’t Walk” signal and was then pursued by officers). But because only the arresting officer knows who he didn’t arrest—and because there is no record of that non-arrest—this Court recognized in Chavez that it is not possible for a selective enforcement challenger to point to a particular individual person who was not arrested. Chavez, 251 F.3d at 640. The nature of a selective enforcement case means that there is no publicly available information about particular similarly situated people of a different race who the government                                                              This Court has questioned the government’s claim that Armstrong requires defendants in selective prosecution cases to point to a specific similarly situated individual who could have been prosecuted, but was not, Gov’t Br. 18-21, 23-24. In Armstrong the defendants failed to present any comparative evidence—statistical or individual—of selective prosecution. 517 U.S. at 460-70. As this Court later observed, inferring from this failure that defendants must present both statistical and individual evidence is a “possible but necessary reading” of the case, Chavez, 251 F.3d at 639. 16   28 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 did not target. For that reason, a defendant in such a case merely needs to provide statistics about the relevant comparison group. Id.17 In the stash house context, at the far end of the continuum, there is no preexisting crime or wrongdoing at all before the government gets involved. See supra 16-21. Instead, the government—through confidential informants and undercover agents—actively selects which defendants to approach for discussions that ultimately lead to the commission of a crime. Consequently, there is no group of people who committed the crime but were not targeted by the government. That comparison group—which is findable in a selective prosecution case and theoretically exists in a selective enforcement case—simply does not exist in stash house cases. Moreover, only the government knows the targeting criteria (i.e., who could have been targeted) as well as who was actually targeted. This lack of publicly available information about who in fact was targeted and about the government’s targeting criteria shapes the kind of comparison group defendants can construct. Returning to the continuum, in a selective prosecution or selective enforcement case, the comparison group comprises similarly situated, nonselected people of a different race: people who committed the applicable                                                              The Chavez court also emphasized the limited applicability of prosecutorial discretion in a selective enforcement case. It explained: While “the [Armstrong] analysis is narrowly focused on the constitutional implications of interfering with the prosecutorial function,” those implications are “not directly at issue in a . . . claim of racial profiling” because a racial profile claim is directed against law enforcement, not prosecutors. See Chavez, 251 F.3d at 640. That is, a decision by law enforcement to target an individual is not the sort of “core executive constitutional function” mentioned in Armstrong. 517 U.S. at 465. This distinction applies to stash house cases with at least equal force. 17   29 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 crime/suspicious action but were not prosecuted/arrested. In the selective prosecution context, particular similarly situated people should be identifiable. Hence, Armstrong arguably requires defendants to identify them. Moving to the next step on the continuum, in the selective enforcement context, specific similarly situated people will not be identifiable, but those non-selected people still exist. Under Chavez, statistics should also be findable and must be produced. Moving still further along the continuum, in the stash house case context, defendants do not know the government’s targeting criteria and therefore cannot determine the universe of people who could have been approached but were not. Similarly, defendants do not know who the government actually approached and so cannot identify any particular people who were approached but opted not to attempt to commit a stash house robbery. In sum, this case is Chavez-squared: without the government’s secret targeting criteria, defendants not only cannot produce an individual comparable person but also cannot produce a narrowly framed comparison group. The government cannot refuse to disclose its targeting criteria and, simultaneously, criticize defendants for using a comparison group that does not incorporate those secret criteria. As in Chavez (and contrary to the Government’s argument, Gov’t Br. 18-21, 23), it was entirely appropriate for Appellees to satisfy the discriminatory effect element through the use of statistics alone. Chavez, 251 F.3d at 638. Moreover, also as Chavez, the lack of publicly available information about the relevant similarly situated population in fictitious stash house sting operations supports the   30 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 district court’s reliance on the particular statistics Appellees presented. As set out below, these statistics provide more than “some evidence” of discriminatory effect. b.   There is some evidence that the government overtargets African-Americans for fictitious stash house stings. In the distinct context of fake stash house cases, the record provides “some evidence” that the government targets African-Americans to a greater degree than similarly situated white people. Additional publicly available data confirm that the government has systematically over-targeted African-Americans in stash house stings, even compared to the government-proposed group of white people with prior robbery, narcotics, or firearms convictions. Accordingly, the district court did not err in concluding that Appellees had produced some evidence of discriminatory effect. Appellees compared the defendants in phony stash house cases with the population at large of the Northern District of Illinois. See R.121 at 3-5. Appellees presented evidence that the targets of such operations have been disproportionately African-American. In the 25 phony stash house cases indicted in the Northern District of Illinois since 2006, African-Americans were the initial targets in 72% of these cases and represent 77% of all defendants in such cases.18 See id., Gov’t App. 49-51. Only 12% of initial targets and 6.2% of all defendants are white. Id. In even broader terms, since 2006, 94% of the defendants in phony stash house cases have been minorities. Id. Since 2010, 98% of the defendants in phony stash house cases                                                              We use the term “initial target” to describe the first defendant the government makes contact with in a stash house case, in this case, Mr. Davis. “All defendants” includes not just the initial target but every single defendant the government ultimately charges, in this case, the six other Appellees. 18   31 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 have been minorities. Id. Indeed, only one white defendant was charged in a phony stash house case from 2010 to 2013. R.120 at 5. These figures represent a gross disparity with the racial make-up of the populace at large in the Northern District of Illinois. In 2012, 43.4% of Cook County’s population was white, non-Hispanic. African-Americans made up 24.8% of Cook County’s population. United States Census Bureau, State and County QuickFacts: Cook County (2012), available at http://quickfacts.census.gov/qfd/states/17/17031.html. Looking to the Northern District as a whole, the percentage of non-Latino whites substantially increases to 55%. Id. (compiling numbers for all counties in the Northern District of Illinois: Cook, Du Page, Grundy, Kane, Kendall, Lake, LaSalle, Will, Boone, Carroll, De Kalb, Jo Daviess, Lee, McHenry, Ogle, Stephenson, Whiteside, and Winnebago). When nonLatino whites represent over half of the populace, but account for at most 6% of the defendants in these cases, further inquiry is demanded. The government contends that these statistics are insufficient to demonstrate that similarly situated whites were treated differently because they could just as well show that African-Americans commit this particular crime more frequently than whites. Gov’t Br. 19 (citing Armstrong, 517 U.S. at 469, for the proposition that “people of all races [do not] commit all types of crimes” with the same frequency), 24. That contention ignores the government’s own role in creating this crime. Unlike in Armstrong and the other classic prosecutions the government references, Gov’t Br. 19-21 (citing cases), in a fictitious stash house case, the government chooses who is   32 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 going to commit the fake crime. In fact, in the stash house context, the high percentage of African-Americans ultimately prosecuted suggests that the government is selectively targeting African-Americans at the outset, rather than that African-Americans commit stash house robberies more frequently than whites.19 Since the government refused to disclose the criteria for its choice of targets, the comparison with the general population is legitimate. In contending that the similarly situated population Appellees identified is too broad, the government emphasizes that Appellees shared common criminal histories and implies that its selection criteria in stash house sting cases include the target’s criminal history. Specifically, the government’s opening brief states that one characteristic distinguishing Appellees from the general population is their prior convictions for narcotics, firearms, and/or robbery offenses, see Gov’t Br. 5, 23- 24, and argues that the proper similarly situated comparison group is comprised of people with those convictions, id. at 24. Taking the government at its word, it is possible to approximate the racial make-up of people in the Northern District of Illinois with prior convictions for robbery, narcotics, or firearm offenses by using                                                              Professor Pamela Karlan points out that Armstrong’s statistics showing that one race is convicted of a particular crime more frequently than another “are exactly what one would expect if race were in fact the explanation for the pattern of prosecutorial decisions.” Pamela S. Karlan, Race, Rights, and Remedies in Criminal Adjudication, 96 Mich. L. Rev. 2001, 2025 n.119 (1998). Regardless of the merit of Professor Karlan’s critique in the selective prosecution context, the point applies with more weight here. Whereas the two interpretations of the statistics may be in equipoise in the selective prosecution context, the government’s role in creating stash house cases undermines the applicability of Armstrong’s presumption that “people of all races [do not] commit all crimes” with equal frequency. 517 U.S. at 469. 19   33 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 publicly available criminal conviction statistics.20 This government-defined comparison group further demonstrates that the government has systematically over-targeted African-Americans for stash house stings and under-targeted similarly situated white people. Based on publicly available information from the United States Sentencing Commission, the racial breakdown of all individuals convicted of federal robbery, narcotics, or firearms offenses in the Northern District of Illinois between 2006 and 2012 stands at 14.8% white, 49.8% Black, 33.5% Hispanic, and 1.9% other.21 This                                                              Courts of appeals may take judicial notice of publicly available government statistics of the sort that “can be found reliably without an evidentiary hearing.” United Air Lines, Inc. v. C.A.B., 766 F.2d 1107, 1118 (7th Cir. 1985); see, e.g., United States v. United Bhd. of Carpenters & Joiners of Am., Local 169, 457 F.2d 210, 214 n.7 (7th Cir. 1972) (“These statistics are from the United States Bureau of Census Reports, of which a court may take judicial notice.”); Reece v. United States, 119 F.3d 1462, 1468 n.10 (11th Cir. 1997) (“We take judicial notice of what the courts of appeals, the Sentencing Commission, the DEA, and NIDA have said about methamphetamine. Their commentary on the subject is essentially indisputable.”) 20 The Sentencing Commission electronically publishes a sourcebook of sentencing statistics. See United States Sentencing Commission, Interactive Sourcebook: Race of Offenders in Selected Primary Sentencing Guidelines (2014), http://isb.ussc.gov/Login. Unfortunately, the useable part of the website does not produce a URL which can be easily pasted into a footnote. For the source of these percentages, follow the hyperlink labeled “see list here” immediately following the breakdown roughly approximates the number of individuals with such prior convictions who were available for the government to target at the time Appellees were targeted. “The Interactive Sourcebook also includes a small number of tables that are not currently published in the Commission’s printed Sourcebook.” Then select “Primary Offense and Offender Characteristics” and choose “Race of Offenders in Selected Primary Sentencing Guidelines” from the drop-down list. Then, filter the list for the Northern District of Illinois for 2006 to 2012. After filtering, the relevant statistics can be counted from the following sentencing guidelines listed in the table: §2B3.1 (robbery offenses), §2D1.1 (drug trafficking offenses), 2D1.2 (protected location drug offenses), §2D1.11 (offenses involving import and export of drugs), §2D2.1 (drug possession offenses), and §2K2.1 21   34 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 breakdown roughly approximates the number of individuals with such prior convictions who were available for the government to target at the time the Appellees were targeted.22 If the government used such prior convictions to target and charge defendants in stash house stings, one would expect to see a total of 14.4 whites, 48.3                                                                                                                                                                                                  (firearms offenses). Appellees have made a few simplifying assumptions so as to be able to respond to the government’s point: (1) We assume federal and state conviction rates in the Northern District of Illinois (N.D. Ill.) are approximately the same. Unfortunately, state level data are not available for Chicago, the N.D. Ill., or Illinois as a whole. However, a survey of convictions in the 70 largest urban counties (including Cook County) in the United States from 2009 indicates that state conviction numbers for robbery, drugs, and firearms convictions closely resemble the federal data for such convictions in the N.D. Ill. See Brian A. Reeves, Bureau of Justice Statistics, State Court Processing Statistics: Felony Defendants in Large Urban Counties 7 (2009), available at http://www.bjs.gov/content/pub/pdf/fdluc09.pdf. (2) Appellees acknowledge that it would be better to rely on older conviction data because that would better approximate the population of releasees available to be targeted. Unfortunately, the Sentencing Commission does not publicly disclose conviction data from 1994-2006. Instead, the data are stored in an empirical research database at the University of Michigan, access to which requires submitting to an institutional review board and agreeing not to use the data for litigation purposes. See Inter-university Consortium for Political and Social Research, http://www.icpsr.umich.edu/icpsrweb/ICPSR/series/77/studies?archive=ICPSR&sort By=7 (each file disclaims “[o]ne or more files in this study are not available for download due to special restrictions” and further exploration reveals the conditions of access discussed here). Fortunately, the racial breakdowns for the relevant crimes remain nearly constant from 2006 to 2012. Accordingly, it is fair to infer the racial breakdown before 2006 was fairly similar.   (3) Finally, the data likely underestimate the percentage of white people available for targeting, as black defendants received longer sentences than whites for these offenses. Mark Motivans, Bureau of Justice Statistics, Federal Justice Statistics, 2010 Statistical Tables 24 (2010), available at, http://www.bjs.gov/content/pub/pdf/fjs10st.pdf. 22   35 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Blacks, 32.4 Hispanics, and 1.8 others charged.23 In reality, there have been 6 whites, 75 Blacks, 16 Hispanics, and no others. Whites are picked nearly 60% less frequently than they would be if the government picked individuals at random. Blacks are selected at least 40% more than if the selection were random. Appellees’ back-of-the-envelope calculations yield even more suggestive results: there is a 99.7% chance that the over-targeting of blacks is not due to random chance, and a 95% chance that the under-targeting of whites is not due to random chance. 24 These high likelihoods reflect that the actual number of African- Americans prosecuted differs from the expected number prosecuted by over three standard deviations, and the actual number of whites differs by more than two                                                              We found these expected numbers by multiplying 97 (i.e., the total number of defendants from 2006-2012) by the estimated racial breakdown from the preceding paragraph. We reached almost identical values when we drew random samples, see infra Note 24. 23 Appellees used back-of-the-envelope statistical methods to calculate this number. We assumed that the 3124 people who sustained federal narcotics, firearms, or robbery convictions from 2006-2012 are representative of the racial breakdown of the people available to be targeted. Supra Note 22. From that group, we drew 30 random samples of 97 people (i.e., the total number of defendants) and counted the number of whites, blacks, Hispanics, and others per sample. The combined results of this random sampling produced a normal distribution for the number of expected people of each racial group in a 97 person sample. From that distribution, we calculated the mean, variance, and standard deviation, and used those figures to calculate how likely it would be to draw a random sample of 97 people that contained 75 blacks. A sample with 75 blacks is a staggering 3.89 standard deviations from the mean value of 48.6 blacks. Samples more than 3 standard deviations away from the mean only occur 0.3% of the time. Therefore, we can be 99.7% certain that the over-selection of blacks was not due to random chance. See generally David H. Kaye and David A. Freedman, Federal Judicial Ctr., Reference Manual on Scientific Evidence: Reference Guide on Statistics 114-21, 123- 24, 156-58 (2014) (providing a general overview of standard deviation, normal distributions, and statistical inference). 24   36 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 standard deviations.25 Cf. Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977) (“[I]f the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the [observed racial selection] was random would be suspect to a social scientist.”). Moreover, because these statistics explicitly account for the frequency with which people of different races commit different types of crimes, they cannot be challenged as “‘presum[ing] that people of all races commit all types of crimes’ with the same frequency.” Gov’t Br. 19. The district court thus had a basis to conclude that there was “some evidence” of discriminatory effect, and its appraisal of the statistical evidence was not an abuse of discretion.26 c.   The government’s contention that Appellees have used the wrong definition of the similarly situated population fails. The government appears to take issue with Appellees’ statistics, Gov’t Br. 18- 21, but those statistics definitively distinguish the instant case from the cases the government cites. The evidence presented by the defendants in Armstrong, United States v. Bass, 536 U.S. 862, 863-64 (2002),27 Hayes, 236 F.3d at 895-96, Barlow, 310                                                              25 Appellees used the same methods as in Note 24, supra, to reach this conclusion. The fact that a few white people (rather than zero) have been prosecuted in phony stash house cases, Gov’t Br. 25, is statistically irrelevant and in no way detracts from the clear pattern of discrimination established by the statistics. 26 In Bass, the most recent Supreme Court case on selective prosecutions, the defense argued that the government “charges blacks with a death-eligible offense more than twice as often as it charges whites” and that it “enters into plea bargains 27   37 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 F.3d at 1012, United States v. Westmoreland, 122 F.3d 431, 434 (7th Cir. 1997), and James, 257 F.3d at 1179 (all cited in Gov’t Br. 18-21), focused solely on the people of color who were being prosecuted or stopped. In each case, the court determined that it would be possible to identify members of a different race who were truly similarly situated, but concluded that the defendant had failed to present information about that population. By contrast, Appellees’ data identify and quantify the similarly situated white population, locate it in this district, and show that the government does not target similarly situated whites in stash house cases to the same degree as African-Americans. As Chavez recognized, the Armstrong standard is a contextual one and depends on what evidence is at least possible—albeit difficult—to gather. 251 F.3d at 636. The government’s cases have little weight where, as in this case, the government has exclusive control over the factors that would enable defendants to set out a narrowed comparison group. The government also erroneously claims that this Court has held that, for a defendant to be similarly situated to someone of another race, there must be “‘no distinguishable legitimate prosecutorial factors [between the two] that might justify making different prosecutorial decisions.’” Gov’t Br. 22 (citing McDonald v. Village of Winnetka, 371 F.3d 992, 1006 (7th Cir. 2004) (quoting Hastings, 126 F.3d at 315)). The government includes as “prosecutorial factors” “‘the strength of the case, the                                                                                                                                                                                                  more frequently with whites than it does with blacks.” 536 U.S. at 863. It is far from clear whether Bass applies due to the unique factual circumstances there (Mr. Bass had actually been offered the relevant plea bargain, but chose to reject it). Even aside from this distinction, however, the Bass respondents improperly relied on nationwide (not local) statistics and relied on an improper comparison group. 536 U.S. at 864. Bass is also distinguishable because, like Armstrong, it addressed a reactive prosecution, not a government-manufactured case.   38 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan.’” Gov’t Br. 22 (quoting Wayte, 470 U.S. at 607). But that simply is not this Court’s holding in McDonald or anywhere else; the words “‘legitimate prosecutorial factors’” are a quotation from another circuit, found in a descriptive parenthetical, itself one of many in a long string citation. McDonald, 371 F.3d at 1006 (quoting Hastings, 126 F.3d at 315). Wayte itself is also no help to the government, see Gov’t Br. 22, because the Wayte Court did not discuss these “prosecutorial factors” as characteristics rendering people similarly situated in selective prosecution cases; it was just referring to factors over which prosecutors generally exercise discretion. Wayte, 470 U.S. at 607-08. Indeed, the government’s contention would distinguish cases with such granularity that no case would ever be similarly situated to any other. And the prosecutorial factors the government references could never be relevant to government-instigated stash house cases anyway. Factors like “the overall flagrancy of the violation,” a defendant’s “level of culpability,” Gov’t Br. 22 (citing cases), and “‘the amount of resources required to convict a defendant [and] the extent of prosecutorial resources,’” id. at 23 (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1994)), are at best circular where the government has created the crime and, consequently, has significantly influenced both its flagrancy and the defendant’s culpability.   39 Case: 14-1124 4.   Document: 36 Filed: 04/30/2014 Pages: 79 Appellees provided “some evidence” of discriminatory intent. As discussed above, the statistics show a discriminatory effect on African- Americans. Where, as here, the government plays a role in instigating the crime itself, such a statistical showing also constitutes some evidence of discriminatory intent. See Castaneda, 430 U.S. at 494-95 (suggesting that government conduct “susceptible of abuse . . . supports the presumption of discrimination raised by a statistical showing”). Accordingly, the Government’s cursory contention that “there was no factual basis from which the district court could have inferred discriminatory intent,” Gov’t Br. 29, must be rejected. a.   An extreme disparate effect is some evidence of discriminatory intent. A number of courts have recognized that it is appropriate to infer “some evidence” of discriminatory intent from significant statistical evidence of discriminatory effect at the discovery stage of a selective prosecution challenge. See, e.g., Alameh, 341 F.3d at 173 (discriminatory intent in a selective prosecution claim may “be demonstrated through circumstantial or statistical evidence”); United States v. Thorpe, 471 F.3d 652, 660-62(6th Cir. 2006) (suggesting that discriminatory effect can “raise an inference of discriminatory intent” at the discovery stage); United States v. Tuitt, 68 F. Supp. 2d 4, 10 (D. Mass. 1999) (“[D]iscriminatory effect which is severe enough can provide sufficient evidence of discriminatory purpose.”); United States v. Bradley, 880 F. Supp. 271, 281 (M.D. Pa. 1994) (“Defendant’s statistical evidence of disparate impact satisfies the   40 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 intent prong.”).28 The “requirements for a selective-prosecution claim draw on ‘ordinary equal protection standards.’” Armstrong, 517 U.S. at 465 (quoting Wayte, 470 U.S. at 608)). In certain contexts, an extreme discriminatory effect is some evidence of discriminatory intent.29 The government’s contention that Appellees have shown no evidence of discriminatory intent, Gov’t Br. 29, is therefore wrong. The landmark civil rights case Yick Wo v. Hopkins elucidates the equal protection principle. 118 U.S. 356 (1886). In Yick Wo, the Supreme Court invalidated a San Francisco laundry ordinance on the basis of its extreme discriminatory effect. Yick Wo, 118 U.S. at 374, cited in Armstrong, 517 U.S. at 464- 65, 66. The ordinance had authorized the city’s board of supervisors to grant or deny laundry licenses, in its discretion. Yick Wo, 118 U.S. at 366. The board granted eighty white individuals permission to operate laundries, but two hundred other persons of Chinese descent had been denied such permission. Id. at 374. The Court concluded that this statistical disparity—against the backdrop of the ordinance’s standardless and purely discretionary decision-making apparatus—established that the ordinance was “applied by the public authorities . . . with a mind so unequal and oppressive as                                                              Though Bradley predates Armstrong, its discussion of the requisite evidentiary showing for reaching discovery is nevertheless relevant because the court required “some evidence” of both discriminatory intent and discriminatory effect, and because it relied on many of the same lower court cases that the Supreme Court cited in articulating that standard in Armstrong. See 880 F. Supp. at 279. 28 While evidence of discriminatory effect may not, alone, be sufficient to show a prima facie case of purposeful discrimination in the typical civil equal protection case, the cases discussed above demonstrate that it can be sufficient to satisfy the lower some evidence standard at the discovery stage in a criminal case. 29   41 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 to amount to a practical denial by the State of . . . equal protection.” Id. at 373; see also Gomillion v. Lightfoot, 364 U.S. 339, 340-41 (1960) (recognizing an equal protection violation in the exclusion all but four or five of Tuskegee’s 400 black voters where no white voters were excluded); Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (noting that the “clear pattern [of disparate impact], unexplainable on grounds other than race” was evidence of purposeful discrimination). The Supreme Court has also approved inferences of intent from evidence of discriminatory effect in certain employment discrimination cases. As it explained in Hazelwood School District v. United States, “gross statistical disparities” may “alone” suffice for showing a prima facie case of unlawful discrimination. 433 U.S. 279, 307-08 (1977). This Court, too, has held that statistics demonstrating disparate effect may establish intentional employment discrimination. See E.E.O.C. v. O&G Spring and Wire Forms Special Co., 38 F.3d 872, 876 (7th Cir. 1994) (“Reliance on statistical evidence by no means diminishes the plaintiff’s obligation to prove discriminatory intent—but in some cases, statistical disparities alone may prove intent.”). Although employment discrimination cases claim statutory violations of Title VII, 42 U.S.C. §2000e et seq., rather than constitutional guarantees of equal protection, they provide an apt analogy because, on this issue, the logic underpinning both the statute and the Constitution is similar. Inferring purposeful discrimination from gross disparities is appropriate because, “absent explanation, it   42 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977). Similarly, in selective prosecution cases, nondiscriminatory prosecution/enforcement practices would generally be expected to have nondiscriminatory effects on the relevant population. As such, evidence of extreme disparate effects is some evidence of discriminatory practices. Indeed, “[i]n many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination . . . .” Id. (quoting United States v. Ironworkers Local 86, 443 F.2d 544, 551 (1971)) (internal quotation marks omitted).     b. An inference of intent from effect is especially appropriate for fabricated stash house cases. An inference of purposeful discrimination from a statistical showing of discriminatory effect is especially appropriate in a selective prosecution challenge to fake stash house stings. In these cases, the government’s solicitation process is susceptible to abuse, and “a selection procedure that is susceptible of abuse . . . supports the presumption of discrimination raised by the statistical showing.” Castaneda, 430 U.S. at 494; cf. Yick Wo, 118 U.S. at 366-67 (focusing on easily abused selection procedure). In Castaneda v. Partida, the Supreme Court focused on a Texas grand jury venire selection procedure to conclude that statistics of discriminatory effect were sufficient to establish a prima facie case of racial discrimination, violating equal   43 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 protection. 430 U.S. at 494-96. While acknowledging that courts do not typically infer discriminatory purpose from discriminatory effect, id. at 493, the Court nevertheless relied on the Castaneda plaintiffs’ statistics to find discrimination. Id. at 496. (From 1962 to 1972, 79% of the county’s population was Spanish-surnamed, but only 39% of the grand jurors selected were Spanish-surnamed. Id. at 486-87.) In doing so, the Court emphasized that the Texas system was “highly subjective” and therefore “susceptible of abuse as applied,” id. at 497, because it “relie[d] on jury commissioners to select prospective grand jurors from the community at large” and “test [the jurors’] qualifications.” See id. at 484-85. Against this backdrop, the Court found that the extreme statistical disparity created a prima facie case of discriminatory purpose. Id. at 496-98. Like the Texas jury selection procedure in Castaneda, 430 U.S. at 497, stash house sting operations are especially susceptible to government abuse. As discussed above, the government’s highly active participation in developing stash house “crimes” differs dramatically from its role in most criminal prosecutions. See supra at 16-21. Rather than waiting for crime to occur or infiltrating an ongoing criminal enterprise, the government in a fictitious stash house case targets the eventual defendants and then manufactures a crime for them to commit. The government alone decides who will be targeted, then dangles a carefully crafted “crime” in front of the intended target. This is precisely the sort of “highly subjective” scenario that renders a government operation especially susceptible to abuse. In this context, defendants’   44 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 statistics constitute some evidence of intent. Accordingly, the district court did not abuse its discretion in ordering discovery. 5.   Deference to the district court’s discretion is especially appropriate given the posture of other stash house cases in this district. The district court did not abuse its discretion in this case because Appellees provided “some evidence” of both discriminatory effect and discriminatory intent. One other consideration bears noting: In the Williams and Brown cases—those Northern District of Illinois cases most closely related to this one—Chief Judge Castillo faced “largely identical . . . pleadings,” Gov’t Br. 6 n.2, setting forth substantially the same statistical evidence30 and also ordered the production of selective prosecution discovery.31 See supra at 3-4. Indeed, the judges of the Northern District of Illinois are facing a number of discovery requests relating to selective prosecution claims in stash house cases. Id. “An [a]buse of discretion only occurs when no reasonable person could take the view of the trial court.” United States v. Lane, 323 F.3d 568, 579 (7th Cir. 2003) (alteration in original) (citations omitted) (internal quotation marks omitted). By contrast, deference to the district court is especially appropriate here, where reasonable courts are using their discretion to                                                              Compare Davis R.111 (discovery motion), Davis R.113 (memorandum in support of discovery motion), and Davis R.120 (reply in support of discovery motion) with Brown R.123 (discovery motion), Brown R.126 (memorandum in support of discovery motion), Brown R.135 (reply in support of discovery motion), Williams R.50 (discovery motion), and Williams R.51 (memorandum in support of discovery motion), Williams R.61 (reply in support of discovery motion). 30 Compare Davis R.124, Gov’t App. 61 (granting discovery motion) with Williams R.70, 87, 100 (granting in part after in camera review), Def. App. 5, 9, 13, and Brown R.153, 171, 190 (granting in part after in camera review), Def. App. 7, 11, 13. 31   45 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 work through the same preliminary issue and reaching a variety of different conclusions. In this context, Judge Darrah’s order hardly seems an abuse of discretion. CONCLUSION   For the reasons set out above, this Court lacks jurisdiction over this appeal, and therefore must dismiss it. If, however, this Court determines it has jurisdiction, the district court’s orders should be affirmed. The court did not err in ordering discovery, and dismissing the case was an appropriate sanction when the government refused to comply with the discovery order and suggested the court dismiss the case. If, in the alternative, this Court determines that further factual findings are needed before a discovery order can be granted, Appellees respectfully request that this Court vacate the current order and remand for further legal or evidentiary proceedings.     46 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Dated April 2, 2014, at Chicago, Illinois.     Respectfully submitted,   By: /s/ Matthew J. Madden Matthew J. Madden 53 West Jackson Boulevard Suite 703 Chicago, Illinois 60604-000 (312) 212- 1900 Attorney for Defendant-Appellee Jayvon Byrd FEDERAL DEFENDER PROGRAM Carol A. Brook Executive Director /s/ William H. Theis William H. Theis 55 E. Monroe Street, Suite 2800 Chicago, Illinois 60603 (312) 621-8316 Attorney for Defendant-Appellee Paul Davis, Jr.   /s/ Alison Siegler Alison Siegler (#6271445) Judith P. Miller (Cal. Bar # 277658; 7th Cir. bar app. pending) Christine Bonomo (Ill. S. Ct. R. 711 License #2014LS0086) Saul Cohen (Ill. S. Ct. R. 711 License # 2014LS00895 Jared Haines (Ill. S. Ct. R. 711 License # 2014LS00867 Robert Woods (Ill. S. Ct. R. 711 License # 2014LS00870 University of Chicago Law School Federal Criminal Justice Clinic 6020 South University Avenue Chicago, Illinois 60637 (773) 834-1680 Co-Counsel for Defendant-Appellee Jayvon Byrd   47 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 /s/ Ralph E. Meczyk /s/Damon M. Cheronis Ralph E. Meczyk Damon M. Cheronis MECZYK GOLDBERG Law Offices of Damon M Cheronis 111 W. Washington Street, Suite 1025 53 West Jackson Boulevard Chicago, Illinois 60602-000 Suite 1750 (312) 332-2853 Chicago, Illinois 60604-000 Attorney for Defendant-Appellee (312) 663-4644 Vernon Smith Attorney for DefendantAppellee Corey Barbee     /s/ Lauren Weil Soloman Lauren Weil Soloman P.O. Box 2013 Highland Park, Illinois 60035 (847) 756-0489 Attorney for Defendant Appellee Appellee Alfred Withers /s/ Eugene O’Malley Eugene O’Malley 5357 West Devon Avenue Chicago, Illinois 60646 (312) 543-6557 Attorney for DefendantDante Jeffries /s/Jack P. Rimland Jack P. Rimland Jack P. Rimland & Assoc. 820 West Jackson Boulevard, Suite 300 Chicago, Illinois 60607 (312) 831-1500 Attorney for Defendant Appellee Appellee Julius Morris /s/ Joshua Sachs Joshua Sachs Law Office of Joshua Sachs & Assoc. P.O. Box 6556 Evanston, Illinois 60204-6556 (847) 864-0400 Attorney for DefendantDante Jeffries     48 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 CERTIFICATE PURSUANT TO APPELLATE RULE 32(a)(7)   I, William H. Theis, hereby certify that this brief complies with the type volume limitation of Federal Rule of Appellate Procedure 32(a)(7), in that Defendants-Appellees brief contains 12,954 words. This certification is based on the word count of Microsoft Word 2010, the word processing program used in preparing Defendant-Appellees’ brief. FEDERAL DEFENDER PROGRAM Carol A. Brook Executive Director     By: /s/ William H. Theis William H. Theis Attorney for Defendant-Appellee Paul Davis, Jr. Federal Defender Program 55 East Monroe Street, Suite 2800 Chicago, Illinois 60603 (312) 621-8316     49 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 PROOF OF SERVICE   I, William H. Theis, certify that on April 2, 2014, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM / ECF system. I certify that all participants in the Case are registered CM / ECF users and that service will be accomplished by the CM / ECF system. FEDERAL DEFENDER PROGRAM Carol A. Brook Executive Director   By:   Federal Defender Program 55 East Monroe Street, Suite 2800 Chicago, Illinois 60603       /s/ William H. Theis William H. Theis Attorney for Defendant-Appellee Paul Davis, Jr. Dated: April 2, 2014 50 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 STATUTORY PROVISIONS CITED I. 18 U.S.C. § 3731 – Appeal by the United States In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. An appeal by the United States shall lie to a court of appeals from a decision or order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release. The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted. The provisions of this section shall be liberally construed to effectuate its purposes. II. 28 U.S.C. § 1291 – Final decisions of district courts The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292 (c) and (d) and 1295 of this title. Def. App. 001 Case: 14-1124 III. Document: 36 Filed: 04/30/2014 Pages: 79 28 U.S.C. § 1292 – Interlocutory decisions (a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court; (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property; (3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. (c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction— (1) of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title; and (2) of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting. (d) (1) When the chief judge of the Court of International Trade issues an order under the provisions of section 256(b) of this title, or when any judge of the Def. App. 002 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Court of International Trade, in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (2) When the chief judge of the United States Court of Federal Claims issues an order under section 798(b) of this title, or when any judge of the United States Court of Federal Claims, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (3) Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the Court of International Trade or in the Court of Federal Claims, as the case may be, unless a stay is ordered by a judge of the Court of International Trade or of the Court of Federal Claims or by the United States Court of Appeals for the Federal Circuit or a judge of that court. (4) (A) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, granting or denying, in whole or in part, a motion to transfer an action to the United States Court of Federal Claims under section 1631 of this title. (B) When a motion to transfer an action to the Court of Federal Claims is filed in a district court, no further proceedings shall be taken in the district court until 60 days after the court has ruled upon the motion. If an appeal is taken from the district court’s grant or denial of the motion, proceedings shall be further stayed until the appeal has been decided by the Court of Appeals for the Federal Circuit. The stay of proceedings in the district court shall not bar the granting of preliminary or injunctive relief, where appropriate and where expedition is reasonably necessary. However, during the period in Def. App. 003 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 which proceedings are stayed as provided in this subparagraph, no transfer to the Court of Federal Claims pursuant to the motion shall be carried out. (e) The Supreme Court may prescribe rules, in accordance with section 2072 of this title, to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for under subsection (a), (b), (c), or (d). Def. App. 004 Case: 1:12-cr-00887 Document 70 Filed: 07/31/13 Page 1 of 2 PagelD #:288 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 IN THE UNITED STATES DISTRICT COURT {5 FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION United States of America Plaintiff, v. No. 12 CR 887 Antonio Williams, also know as ?Dwayne Williams? and ?Tweet,? John T. Hummons, also known as ?Jake,? and Howard Lee, Defendants. ORDER This Court is mindful of the limited nature of judicial review of executive department decisions. The Court is also aware that history has shown a continuing difficult intersection between the issue of race and the enforcement of our nation?s criminal laws. With these two abiding principles in mind, after careful review of the parties? briefs, this Court has concluded that it must grant the defendants? motion for discovery on the sensitive issue of potential racial pro?ling and selective prosecution. The Court concludes that the defendants have made a strong showing of potential bias in the history of the prosecution of so called ?phony drug stash house rip off cases.? Unlike the typical historical, alleged violation of federal law, these unique cases are generated by the targeted use of con?dential information to create potential robberies of phony drug stash houses. The defendants? motion has specifically identified 17 phony stash house rip off cases, including this one that the US. Attomey?s Of?ce has prosecuted since 2006. The defendants? data shows that the overwhelming targets of these investigations were African Americans. In fact, since 2011, 19 African Americans and 7 Latino defendants have been charged in these Def. App. 005 Case: 1:12-cr-00887 Document #: 70 Filed: 07/31/13 Page 2 of 2 PageID #:289 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Def. App. 006 Case: 1:12-cr-00632 Document #: 153 Filed: 07/31/13 Page 1 of 2 PageID #:592 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Def. App. 007 Case: Document 153 Filed: 07/31/13 Page 2 of 2 PagelD #:593 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 minorities. The Court ?nds this showing is substantial enough to require the government to provide discovery to the defense on the following three limited subjects: 1. A list by case name, number and race of each defendant of all phony stash house rip off cases brought by the U.S. Attomey?s Office in this district form 2006 to the present. 2. All documents containing instructions given from 2006 to the present by any supervisors employed by the U.S. Attorney for the Northern District of Illinois about the responsibilities of to ensure that defendants in cases brought by the Of?ce of the U.S. Attorney for the Northern District of Illinois have not been targeted due to their race, color, ancestry or national origin and speci?cally that those persons who are defendants in phony stash house cases in which Bureau of Alcohol, Tobacco and Firearms was the investigatory agency have not been targeted due to their race, color, ancestry or national origin and that such prosecutions have not been brought with any discriminatory intent on the basis of the defendants? race, color, ancestry or national origin. 3. Any document prepared by the ATP which summarizes how to investigate and prosecute phony stash house rip off cases, including any guidelines for selecting appropriate targets for these cases including but not limited to the Home Invasion Operations Bulletin referenced in USA Today. Any documents responsive to this order should be provided to defense counsel, subject to any appropriate protective order, on or before August 23, 2013. Chief United States District Judge July 31, 2013 Def. App. 008 Case: 1:12-cr-00887 Document #: 87 Filed: 11/08/13 Page 1 of 2 PageID #:437 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Def. App. 009 Case: 1:12-cr-00887 Document #: 87 Filed: 11/08/13 Page 2 of 2 PageID #:438 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Def. App. 010 Case: 1:12-cr-00632 Document 171 Filed: 11/08/13 Page 1 of 2 PagelD Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION g3, United States of America c2; a .c PlaintiffAbraham Brown, ct al., 3?1 Defendants. This Court today primarily denied the government's motion for reconsideration of its limited discovery order of July 31. 2013. The only portion of the government?s motion that was granted was its request to fully comply with this Court?s July 31, 2013 Order by providing all further discovery materials for this Court?s in camera review. The Court today concludes that the defendants have made an even stronger showing of potential bias in the history of the prosecution of so-called ?phony drug stash house rip off cases? since the July 31, 2013 Order by showing that additional phony drug stash house cases targeted Latino defendants. (See Defs.? Revised Ex. A. Race of Stash House Defendants from 2006 to Present As Provided by Government and Corrected by Defense Counsel.) Defendants? revised Exhibit A shows that the Bureau of Alcohol, Tobacco, and Firearms brought 25 ?phony stash house rip of cases.? Eighteen of the 25 cases solely targeted African American defendants. The total of 25 cases resulted in the indictment of 77 African American defendants, 13 Latino defendants, and only six non-minority defendants. This Court fundamentally disagrees with the govemment?s assertion that United States v. 517 US. 454 (1996), provides an absolute shield from defendants" discovery requests under the unique circumstances presented by this case. dealt with historical violations of the law. These unique cases are generated by the targeted use. of confidential information to create potential robbery scenarios of phony drug stash houses. Under this Court?s Def. App. 011 Case: 1:12-cr-00632 Document 171 Filed: 11/08/13 Page 2 of 2 PagelD #:733 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 best application of the factors in this unique situation, the Court again strongly concludes that Defendants have met their preliminary burden to sustain this Court?s limited discovery orders. The government asserts that it has fully complied with the first two prongs of this Court?s July 31, 2013 Order and has offered, which this Court has allowed, to fully comply with the Court?s third and final prong by making an in camera submission to this Court. Defendants have filed a motion to compel full adherence to this Court?s prior order, which was granted today. The government must produce all documents which will bring it fully in compliance with this Court?s July 31, 2013 Order in its in camera submission, which is due on December 16, 2013. Additionally, this Court will require the government to produce all racial and ethnic data which relates to the use of confidential informants by the ATF from 2006 to the present. This Court has supplemented its prior Order because it has concluded that such information is necessary to make a full determination of discriminatory intent in this case. Any information supplied by the government to this Court for its in camera review will not be disclosed to the defense without prior written notice and a fair opportunity to object being provided to the government. A further status hearing in this case will be held on December 18, 2013 at 10:00 am. ENTERED: Ruben Castillo Chief United States District Judge November 8, 2013 Def. App. 012 Case: 1:12-cr-00632 Document #: 190 Filed: 02/24/14 Page 1 of 2 PageID #:793 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Def. App. 013 Case: 1:12-cr-00632 Document #: 190 Filed: 02/24/14 Page 2 of 2 PageID #:794 Case: 14-1124 Document: 36 Filed: 04/30/2014 Pages: 79 Def. App. 014