Defense lawyer blasts feds for secret response to racial profiling claims

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Federal Public Defender Brian Pori during an interview last year

A federal public defender in Albuquerque is criticizing prosecutors for responding in secret to claims that his client was racially profiled in a 2016 law enforcement operation.

“I’m not going to let the government, on this issue of tremendous public importance, shield their reluctance to defend this racist operation from the public,” Assistant Federal Public Defender Brian Pori told New Mexico In Depth on Wednesday.

Pori’s client, Yusef Casanova, is one of 28 black people swept up in a undercover gun and drug sting operation the federal Bureau of Alcohol, Tobacco, Firearms and Explosives used to target an impoverished, largely minority swath of southeast Albuquerque in 2016.

The secret filing means the public cannot view — or scrutinize — the U.S. Attorney’s defense of Casanova’s arrest, which Pori has challenged. Last month he argued in a motion that he had enough evidence to prove ATF agents and informants targeted Casanova because he’s black and asked Senior U.S. District Judge James Parker to drop methamphetamine trafficking and illegal firearm possession charges.

The U.S. Attorney’s office was supposed to file a response to Pori’s motion last week but received an extension to file Monday.

A review of the federal courts PACER system — an online storinghouse for court documents associated with criminal and civil cases across the nation — however, showed no record of the response Tuesday evening or Wednesday morning.

NMID confirmed its existence through Pori. It was filed by Assistant U.S. attorneys Norman Cairns and Samuel Hurtado and Fred J. Federici, who is acting U.S. Attorney for the Casanova case, under seal — meaning it is not publicly viewable.

Elizabeth Martinez, spokeswoman for the U.S. Attorney’s Office, declined Wednesday afternoon to confirm the document’s existence or respond to NMID questions.

“You have inquired about matters that are currently under judicial review, which we may not comment on as a matter of policy,” Martinez wrote in an email.

Two hours later, however, prosecutors filed a new document asking Parker to accept their response, even though they had missed the deadline he imposed. In that filing, prosecutors noted their reason for filing under seal, writing it “identifies by name a number of uncharged subjects of the (operation) and references the content of other sealed filings.”

Pori challenged that rationale, telling NMID the government did not need to name people who had been identified for investigation but not arrested. Prosecutors also could’ve blacked the names out of the document, but left its defense of Casanova’s arrest for the public to see, he noted.

Wednesday’s late afternoon filing created a curious situation: It referred to a document that, for all the public knows, doesn’t exist.  

Pori said federal prosecutors routinely file records under seal, and no record of those documents shows up in PACER.

The Casanova case raises questions as to why the U.S. Attorney’s Office chose to avoid public scrutiny of its response to Pori’s motion asking for a dismissal of the Albuquerque man’s charges.

“The government has responded to Yusef’s claims under seal — in secret — and I don’t think that’s at all appropriate,” he said. “This is a subject of great concern to this community, and the government does not get to avoid the subject of race in this law enforcement operation, or any other, by filing documents under seal.”

NMID has reported extensively on the ATF sting operation and found racial disparities among those arrested similar to patterns in ATF operations around the country. NMID’s reporting provoked outrage in the black community, including over how agents designed and conducted the operation. NMID also challenged federal officials’ claims that they took the “worst of the worst” off Albuquerque’s crime-troubled streets.

Agents arrested 103 people, mostly for low-level drug crimes. Twenty-eight of them were black in a city with a 3 percent black population. The arrest rate also appeared stark when compared to the number of black people prosecuted for drug and gun crimes in New Mexico from 2006 to 2015 — just 5 percent.

In last month’s motion, Pori wrote that agents considered 225 people for potential arrest — including Hispanics at a rate roughly parallel to the city’s Hispanic population. But whites were significantly underrepresented by population among those investigated, and blacks were heavily overrepresented.

In Casanova’s case, even though “John” — his white meth supplier — “was the most culpable individual encountered by the ATF Agents during the charged criminal offense, John was not subjected to nearly the same level of scrutiny and investigation as the black men who preceded him and, unlike Mr. Casanova, he was never charged with a crime,” according to the motion.

Conversely, black people who simply brokered low-level deals were far more likely to be arrested than whites, the motion to dismiss says.

Pori reiterated those points Wednesday in an interview with NMID.

“Under any inference, no matter how you slice it up, this operation identified more African American people by population than any other race for investigation,” Pori said. “Agents targeted more black people, pursued more black people, enforced the law against more black people and arrested more black people — regardless of whether they were actual narcotics or firearms traffickers — than any other race. If you were black, your chances were slim in escaping this operation; if you were white, no matter what you did, there was a pretty good chance you could walk away.”

Next up in the case will be Pori’s reply to the prosecutors’ sealed response. Its due date is not yet clear, but Pori said he plans to file it publicly.

Looming beyond that is a hearing on the motion, which had been scheduled for Sept. 17. It’s unclear how prosecutors’ delayed filing of their sealed response will impact that timeline.

Pori is concerned about how the hearing will play out, given the U.S. Attorney’s Office apparent preference for secrecy in the Casanova case.

“The reality is we are going to have what has to be an open hearing, for the public to see, and we’re going to have to figure out a way around all this,” he said. “I understand that we are attempting to articulate that this was a racist operation at its bottom, in an effort to get the charges dismissed. That’s not easy, but we believe we have the case, and we have laid it out there for everyone to see. The government is going to have to do the same.”

Editor’s note: This story has been updated to reflect that Fred J. Federici is acting U.S. Attorney for the Casanova case. U.S. Attorney John Anderson’s name had appeared on a number of filings in the case, including the sealed document referenced in this story, but the U.S. Attorney’s Office on Friday filed a notice indicating that Anderson had removed himself from the Casanova case.