United States of America v. Paul Davis, Jr.,    No. 14-1124.

This appeal arises from one of multiple criminal cases pending in the Northern District of Illinois in which the defendants are charged with conspiring to rob a non-existent “stash house” which, they were led to believe by an undercover agent, contained many kilograms of cocaine.

At the request of the defendants, the district court ordered the government to produce nine categories of documenta and data bearing on the exercise of the government’s law enforcement and prosecutorial discretion with respect to criminal charges based on non-existent stash houses.

After announcing its intent not to comply with the order, the government asked the district court to dismiss the indictment without prejudice in order to facilitate an immediate appeal of the order, and the district court granted the government’s request. The government filed this appeal pursuant to 18 U.S.C. § 3731. We conclude that because the district court dismissed the indictment without prejudice, allowing the government to re-file the case regardless of the outcome of the appeal, the dismissal of the indictment is not a final order, and consequently we lack jurisdiction over the appeal.

We assume the truth of the following alleged facts, recognizing that the case has not been tried.

A government informant made several purchases of crack cocaine and heroin from defendant Paul Davis, Jr. After Davis expressed an interest in robbery to the informant, the informant introduced him to an undercover special agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) who was posing as a disgruntled drug courier for a Mexican cartel. The agent recruited Davis into a scheme to rob his employer’s stash house, which he told Davis contained 50 kilograms of cocaine and was protected by armed guards. The stash house, of course, was a fiction.

Davis recruited his six co-defendants into the scheme. When the day of the intended robbery arrived, the assembled crew (several of whom were armed with semi-automatic firearms) met the agent in a grocery store parking lot and then followed him in their cars to a warehouse in order to make their final plans, including the means of overpowering the stash-house guards. At the conclusion of that planning session, which was covertly recorded, six of the seven defendants were arrested. (The seventh, who had become lost on the drive to the warehouse, was arrested later.) A grand jury indicted all seven defendants for conspiring and attempting to possess, with the intent to distribute, five or more kilograms of cocaine, in violation of 21 U.S.C. § 846; conspiring and attempting to affect interstate commerce by means of a robbery, in violation of 18 U.S.C. § 1951(a), and knowingly possessing a firearm in furtherance of a drug trafficking crime and a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Two of the defendants were additionally charged with being felons in possession of firearms, in violation of 18 U.S.C. § 922(g)(1).
The defendants filed a joint motion seeking discovery of information relevant to potential racial profiling and selective prosecution. All of the defendants named in this case are African-American, and because the principal offenses charged in this case arose from a sting orchestrated by the government, the defendants wished to explore the possibility that their race may have influenced the government’s decision to recruit and charge them for the stash-house robbery.

As a preliminary showing that discovery was warranted (see United States v. Armstrong, 517 U.S. 456, 470, 116 S. Ct. 1480, 1489 (1996) (to establish entitlement to discovery on selective prosecution, defendant must produce some credible evidence that similarly situated defendants of other races could have been prosecuted but were not)), the defendants gathered and presented data regarding some 25 stash-house sting cases that had been filed in the Northern District of Illinois from 2006 through the filing of the instant prosecution in March 2013. By the defense account, 75 of the 97 defendants charged in those cases were African-American, 16 were Hispanic, and six were white. They noted further that of the 13 of those 25 cases instituted in the three years prior to the indictment of this case, 45 defendants were African-American, 14 were Hispanic, and just one was white.

In sum, African Americans constituted 77 percent of all defendants charged in these cases, while comprising roughly 25 percent of the population of Cook County and a lesser percentage of the overall population of the Northern District of Illinois. Viewed another way, although white, non-Hispanic individuals comprise more than half of the population of the Northern District, only six percent of the defendants named in stash-house prosecutions filed from 2006 forward fall into that demographic group.  The district court found this showing sufficient to warrant the discovery the defendants had requested. “An examination of the limited information available to the 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.

The district court ordered the government to produce all of the information and documents that the defendants had requested, including:
• a complete listing of stash-house cases initiated by the United States Attorney with the involvement of the ATF or the FBI in the Northern District of Illinois from 2006 forward, along with disclosure of the race of each defendant charged in these cases;
• the factual basis for the decision to initiate or pursue an investigation against the defendants named in the cases identified by the defense;
• disclosure of any prior criminal contact between the defendants in each case and the agency responsible for investigating the case;
• internal ATF and FBI manuals, correspondence, and other documents addressing fictitious stashhouse scenarios, including the protocols and directions to agents and informants with respect to such scenarios; and
• any documents addressing how supervisory personnel are to ensure that individuals in such scenarios are not targeted on the basis of race, color, ancestry, or national origin.
Id. at 2-3.

The government subsequently filed a “position paper” in which it indicated that it would not comply with the discovery order, and suggested that the court should dismiss the indictment without prejudice as a sanction for its noncompliance, thereby creating a final order that would be appealable to this court. R. 129. At a hearing on January 7, 2014, the district court granted the government’s request to dismiss the indictment, confirming upon the prosecutor’s inquiry that the dismissal was without prejudice. R. 132; R. 144 at 6.

Because the dismissal of the indictment without prejudice was not a final order under the circumstances of this case, we lack jurisdiction over the government’s appeal. The appeal is therefore DISMISSED.

By:  Chicago Federal Criminal Defense Attorney Michael J. Petro

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