A federal judge in Albuquerque has concluded the methods used by federal agents in a 2016 undercover sting operation made it likely they would arrest a disproportionate number of minorities.
And the bureau of Alcohol Tobacco Firearms and Explosives (ATF) did nothing to avoid the potential racial bias as agents chose people to target, Senior U.S. District Judge James Parker, a Ronald Reagan appointee, wrote in a five-page order issued Monday.
Parker’s ruling means Yusef Casanova, who was arrested last year, has the go-ahead to seek evidence to prove the agency targeted him at least in part because he was black.
Casanova’s procedural legal victory comes as black community leaders in Albuquerque demand answers from federal and local officials about the operation. Agents arrested 103 people — 28 of whom were black, or 27 percent — a dramatic overrepresentation compared to Albuquerque’s 3 percent black population. Hispanics also were overrepresented among those arrested, while whites were heavily underrepresented compared to Albuquerque’s population.
In his order Parker criticized the design of the operation, writing that “the methods used by ATF in conducting this operation were likely to lead to a higher percentage of minority defendants, but that ATF declined to make use of any policies or training designed to counteract that effect.”
The judge’s unambiguous language struck Katie Tinto, a law professor at the University of California at Irvine who has studied ATF operations around the country.
“It does sound like the court has broader concerns about the general practices of ATF in Albuquerque,” she said. “But it’s hard to say what impact this will have.”
It is rare for a federal judge to order prosecutors in an ATF case to turn over certain information to a defendant arguing a “selective enforcement” — or racial profiling — claim, Tinto said.
“It is significant because there have been many judges around the country who have not granted discovery on these grounds,” she said.
NMID featured Casanova, 44, in a May story about the ATF operation. At the time, Casanova said the agency targeted him because he was black.
Parker’s order opens the door for Casanova to dig deeper into ATF’s practices as he seeks a dismissal of drug and firearms charges, said Brian Pori, Casanova’s federal public defender.
But pursuing the racial profiling claim comes with risk.
Casanova already is facing more than 10 years on charges of selling a broken down shotgun to an undercover ATF agent for $100 and brokering the sale of about an ounce of methamphetamine to the same agent for $600. If he continues his quest on the racial profiling claim, he could face life in prison without the possibility of release.
That’s because Assistant U.S. Attorney Samuel Hurtado informed Pori he intends to file a notice with the court saying he will seek a mandatory minimum sentence based on Casanova’s criminal history.
Casanova has two previous felony drug convictions — one for selling $10 worth of marijuana to an undercover Albuquerque police officer in the 1990s and the other for possessing a small amount of cocaine. Under Chapter 21, Section 851 of U.S. Code, that means a life sentence for Casanova if Hurtado files the “851 notice.”
“The only way we can stop it is if Yusef pleads guilty,” Pori said in an interview. “And obviously that would mean the end of the selective enforcement claim.”
Elizabeth Martinez, a spokeswoman for the U.S. Attorney’s Office in Albuquerque, did not respond to questions about Judge Parker’s order or the prospect of 851 notices in cases emerging from the ATF operation.
Hurtado’s email to Pori about an 851 notice came weeks after Casanova and Pori were quoted extensively in NMID’s story about the operation. Pori said he does not believe their public criticism of ATF’s tactics or the racial profiling allegation led to the notice from Hurtado, whom he described as a “zealous advocate for the prosecution and a conscientious attorney.”
Rather, Pori chalked up the prosecutorial chess move to a shift in policy for the U.S. Department of Justice. It came in the form of a May 10 memo from Attorney General Jeff Sessions, who encouraged prosecutors to “pursue the most serious, readily provable offense” and to seek mandatory minimum sentences in all cases, including through the use of 851 notices.
“The hand of Jeff Sessions has reached out across America right down to the lowliest, saddest drug addict in Albuquerque,” Pori said. “There’s just no way around it.”
Mark Osler, a law professor at the University of St. Thomas in Minnesota who has researched 851 notices, said the statute dates to the late 1980s — the height of the so-called War on Drugs — and was meant to punish kingpins.
For decades, prosecutors in some jurisdictions relied heavily on 851 notices in drug cases. In other places, they were rare.
“The problem is, 851 shifted the authority in sentencing from judges to prosecutors,” said Osler, who worked as a federal prosecutor in Detroit in the 1990s. “Prosecutors have different motivations than judges.”
In 2013, the use of 851 notices dipped nationally, he said, after a memo from then-Attorney General Eric Holder urged prosecutors to use the measure sparingly. Holder didn’t want prosecutors pushing for harsh sentences, including mandatory minimums, in minor-league cases.
But Sessions explicitly rescinded Holder’s guidance in May, shortly after taking office.
Osler agreed with Pori, saying the specter of 851 notices in Albuquerque’s ATF sting cases appears to be an early sign of how the new attorney general plans to oversee America’s federal prosecutors.
“We are returning to a day where, unfortunately, everyone’s a kingpin,” he said. “But the metric’s all wrong: it lumps together those who matter in the drug trade and those who don’t.”
Pori said Sessions’ directive has put prosecutors like Hurtado in a difficult position. Pori has never defended a client against whom an 851 notice was actually filed.
It’s among a host of levers prosecutors have always had, though, he said.
“In federal court, there’s rent on that courtroom, and the longer you hang out in there, you force their hand,” Pori said. “The farther you go down the road, the more they’re going to seek higher penalties. That’s just what they do. It’s predictable.”
Pori is one of five local attorneys who filed motions for discovery and information about confidential informants — based on racial profiling claims — on behalf of people arrested in the ATF sting.
Two other attorneys who continue to argue the motions declined to say whether their clients have been notified of possible 851 filings. An attorney who filed a similar motion but later withdrew it also declined to comment.
Assistant Federal Public Defender Sylvia Baiz said she withdrew a motion in defendant Dustin Swint’s case “because of a section 851 threat” from a federal prosecutor.
“Just could not go forward because my client would have gone from a minimum mandatory five (years) to a 10 year,” she said in an email. “That was my client’s choice and I can’t blame him.”
Despite the possibility of an 851 notice in Casanova’s case, Judge Parker’s order provides a glimmer of hope. The judge directed Pori and Hurtado to agree on which information about the sting the government must disclose by June 20. If they can’t, Parker will step in and decide.
Pori said he wants any materials ATF agents used to choose targets in the sting, criminal background information for those targeted — and for people agents investigated but did not pursue — and other information. His goal is to prove that the design of the ATF operation had “discriminatory intent and effect,” and that the arrest of 28 black people out of 103 total was not random.
In the order, Parker cited the particulars of Casanova’s drug sale to an undercover agent as support for Pori’s argument that his client was singled out for arrest by the ATF because he was black.
ATF Special Agent Russell Johnson testified in court in April that he watched Casanova call a white man named “John” several times on the day of the transaction. “John” arrived a short time later, and Johnson saw him exit a vehicle with a bag of meth in his hand — the same meth Casanova sold to Johnson a short time later.
“John” was not arrested, though Johnson said under oath that ATF did all it could to find him.
Parker didn’t buy it.
“The court finds that ATF did not pursue all reasonable avenues in its attempts to identify the white supplier of the methamphetamine for which (Casanova) was arrested,” the judge wrote.
Tinto, the U.C. Irvine law professor, said Parker’s ruling highlighted an especially egregious fact pattern in Casanova’s case. Attorneys who have pursued racial profiling claims against ATF in other cities have not been able to demonstrate such stark examples, leading to a reluctance among judges to grant demands for information.
One exception has been in Chicago, where a group of attorneys have banded together to pursue racial profiling claims after a yearslong ATF operation in that city.
Victory in a motion for discovery based on a racial profiling claim is not necessarily an indication of a judge’s willingness to dismiss charges, Tinto said. That’s a long, arduous road with steeper legal burdens.
“It’s important to remember that this is just a first step,” she said.
On the door of Pori’s Downtown Albuquerque office are several orders of dismissal from throughout his 30-year legal career.
“Those are victories,” he said, pointing to the dismissal orders. “Short of that, you can’t tell someone, we won! I hope you enjoy your years in prison. If this guy gets life, this is all for naught.”