New Mexico In Depth began the reporting for a story about an undercover sting operation by the federal bureau of Alcohol Tobacco Firearms and Explosives (ATF) in February 2017. Agents from the nation’s largest law enforcement agency in the fight against gun crime had arrested 103 people in the city of Albuquerque after a four-month investigation in 2016. (Federal officials have said they made 104 arrests, but NMID and defense attorneys have only been able to account for 103.)
At a news conference in August 2016, federal officials heralded the operation as an unqualified success.
Early on in the reporting, we learned the operation had netted disproportionate numbers of black and Hispanic people. We verified the numbers by checking them against a spreadsheet prepared by the Federal Public Defenders Office that was admitted as evidence in one of the cases. It showed 28 black people, 59 Hispanics, 15 whites and one Native American.
As with the conversation about race and ethnicity in America, the spreadsheet has become complicated. The number of confirmed Hispanic defendants has risen slightly, and the number of whites has fallen as defense lawyers have obtained new information. Those figures are likely to change again, although not significantly. The number of African Americans has remained constant. NMID chose the numbers on the original spreadsheet because it was admitted as evidence, without a federal prosecutor disputing its accuracy.
In addition to defense allegations of racial profiling, we wanted to check the government’s claim that the operation had led to the arrests of the “worst of the worst” in the city. NMID measured this against two criteria, as laid out in sworn court testimony from Russell Johnson, one of the ATF agents who supervised the operation: Did the potential target have a violent criminal history? And was the person “still in the game,” selling large quantities of drugs and/or guns on the streets of Albuquerque.
We found in the majority of cases, ATF had not arrested the “worst of the worst,” even by its own standards.
We compiled publicly searchable New Mexico state and federal court records into several datasets to test officials’ claims. We also interviewed numerous lawyers who represent defendants arrested in the sting and a law professor from California for context.
In 83 of the 103 cases, NMID had enough information about the defendants — a full date of birth, a partial date of birth, a unique name or some combination thereof — to conduct a criminal history search on www.nmcourts.gov with a degree of certainty that we were looking at records for the right person. (This does not mean we were 100 percent certain in every case.) We looked for felony convictions and found that 46 of the 83 had those. We sought to further narrow that group into those convicted of violent offenses including aggravated assault, aggravated battery with a deadly weapon, murder, attempted murder, rape and armed robbery. We found no murderers. But 19 of the 83 defendants had previous felony convictions for crimes of violence.
Using the same methodology, we searched www.pacer.gov — the federal court records repository — and had enough information about 52 of the defendants for good searches. Three of those people had previous federal convictions, none for violent crimes. It is possible, perhaps even likely that the 51 other defendants have previous federal convictions.
Of course, the 20 defendants we didn’t have enough information on to conduct good searches may have violent convictions in New Mexico. Further, our search of federal court records showed that some defendants had previous felony convictions — some of them for violent crimes — that did not show up in our search, meaning those people were convicted in other states. Interviews with lawyers confirmed some of those convictions, as well as out-of-state convictions for other defendants. We included that information in our story. Because NMID does not have access to the National Crime Information Centers (NCIC) database, we were not able to search records for all 50 states and get a complete picture of each defendant’s full criminal history.
‘Still in the game:’
Our analysis on this part of the ATF’s criteria for “worst of the worst” is more thorough. To accomplish it, NMID reviewed the indictments and other records in the cases of each defendant arrested in the sting. Because indictments nearly always refer to amounts of drugs by the threshold for mandatory minimum sentences — more than 5 grams, more than 50 grams, etc. — we looked at the “forfeiture allegation” in each indicted drug case. That’s the amount of money the government wants to recover from the defendant or, said another way, how much taxpayer money the undercover agent paid for drugs in each case. (In some cases, in which defendants have entered plea agreements, additional court documents specified exactly how much meth, cocaine or heroin people sold to agents.)
Here’s what we found: There were 54 instances of forfeited sums, many of which were shared among a set of defendants, ranging from $40 to $20,700. The total amount for all 54 forfeiture allegations was $162,110. Twenty-nine of the 54, more than half, were for amounts less than $2,000. Eighteen of the 54 were for amounts between $2,000 and $5,000. Five were for amounts between $5,000 and $10,000, and two were for more than $10,000.
For context, we asked the lawyers who, combined, have many decades’ experience representing clients in federal drug cases, what would be an average forfeiture amount for a drug case. They told NMID that, in nearly every case, the smallest dollar figure was around $15,000. Many of the lawyers told us they had never seen such small amounts as those charged in the ATF sting.
NMID also looked at the firearms cases. We found that 32 of the 103 defendants were charged with being a felon in possession of a firearm, carrying a firearm during a drug deal or, in a few cases, selling guns to agents. Just nine people were charged solely with gun-related offenses; 23 others were charged with drug and gun crimes. Ninety-four defendants of the 103 were charged with drug offenses.
The research and analyses of the data were conducted by NMID criminal justice reporter Jeff Proctor, NMID Executive Director Trip Jennings and Deputy Director Marjorie Childress.