A federal judge has denied an Albuquerque black man’s request to dismiss methamphetamine trafficking and gun charges based on his claim that agents targeted him because of his race during a monthslong undercover sting operation in 2016.
In a 15-page order issued Feb. 11, U.S. Senior District Judge James Parker appeared to wrestle with whether agents from the federal bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had singled out 46-year-old Yusef Casanova and other black people for arrest while ignoring the crimes of white people.
That was the core of Casanova’s argument in asking Parker to dismiss his case.
Noting that aspects of the operation — and the results of other ATF operations around the country — were “troubling,” Parker, wrote that Casanova had not overcome the high threshold necessary to prove illegal racial profiling. Defendants “must dispel the presumption that a law enforcement official has not violated the Equal Protection Clause with ‘clear evidence to the contrary,” and he had not.
“Courts are reluctant to interfere with law enforcement discretion, just as they are with the prosecutorial discretion of the executive branch,” the judge wrote. “Accordingly, Defendant bears a heavy burden of proof.”
To clear that hurdle, Parker wrote, Casanova had to demonstrate that agents had a “discriminatory purpose” in conducting the operation, and that the operation had a “discriminatory effect” on non-white people.
Parker’s ruling means Casanova will likely face a jury trial, which is scheduled for next month, and the possibility of decades in federal prison.
His defense team cannot appeal the judge’s decision.
“If there’s a conviction, we can appeal that conviction and say that the judge erred in denying our motion to dismiss the charges,” said Assistant Federal Public Defender Brian Pori, Casanova’s lawyer. “We will most certainly do so if Yusef is convicted.”
In his effort to prove racial profiling, Pori relied on information about the sting operation that New Mexico In Depth has reported on extensively since May 2017.
ATF agents arrested 103 people during the operation, which ran from April through August 2016. Twenty eight (27 percent) were black; 63 (62 percent) were Hispanic; 11 (10 percent) were white; and one (1 percent) was Native American.
Those figures show a highly disproportionate number of minorities were arrested. For example, black people make up just 3 percent of Albuquerque’s population and just 5 percent of gun and drug defendants in New Mexico federal courts during a recently concluded 10-year period.
The disparities were no mistake, Pori argued in a series of written briefs and a two-day hearing last month.
ATF descended on Albuquerque in 2016 and sent five previously convicted felons — working as paid, professional “confidential informants” — into impoverished, minority-heavy parts of the city to offer people opportunities to commit crimes. Three of the informants were black; two were Hispanic; none was white.
The operation’s design made it more likely for more black and Hispanic people to be targeted, Pori argued. He pointed to figures showing that, not only were disproportionate numbers of non-white people arrested, but ATF also investigated minorities in larger numbers than white people.
Finally, Pori tried to focus Judge Parker on the particulars of Casanova’s case to show that white people “similarly situated” to his client were not pursued as aggressively — a key element in proving “selective enforcement of the law.”
In June 2016, a black informant convinced Casanova to sell a sawed-off shotgun and broker the sale of an ounce of meth to an undercover agent. In exchange, Casanova would get a small amount of meth and a little cash.
Casanova, who was living in his car and struggling with a debilitating addiction at the time, met the agent in a gas station parking lot and sold the gun.
He had to call his meth dealer several times to arrange the drug sale. The white man, known only as “John,” arrived a short time later, and an ATF agent watched him exit a car with the meth in his hand and give it to Casanova, who in turn sold it to the agent.
Two months later, Casanova was charged with meth distribution and illegal possession of a firearm by a felon. “John” was never even identified, let alone arrested.
Federal prosecutors and ATF agents have argued for more than a year in secretly-filed briefs and courtroom testimony that they were focused during the operation on who was committing crimes, regardless of race. They say they selected certain swaths of the city for targeting based on those areas’ high crime rates and were not aware of demographics.
And lead ATF agent Russell Johnson has testified several times that his team made efforts to identify and arrest “John,” but were unsuccessful.
In the end, Parker sided with the government.
The judge acknowledged in his order that Pori had shown racial disparities among those arrested in the sting. But the defense “failed to present any demographic information specific to the parts of Albuquerque targeted during the (operation) beyond the general testimony that these are neighborhoods with high percentages of minority residents.”
“Despite the statistical disparities, the percentages of each race arrested say nothing about similarly-situated individuals who could have been arrested but were not,” Parker continued.
Further, he wrote that, while agents did not “exhaust every possible means” of identifying “John,” they “made reasonable efforts” to do so.
As such, according to Parker, the defense team did not meet the standard in proving “discriminatory effect.”
Nor did they prove “discriminatory purpose,” the judge concluded, even though he conceded that ATF had no safeguards in place to prevent bias-based policing despite allegations of racial profiling in previous operations around the country.
“Even if everything Defendant states regarding the operation’s design and impact is accurate, this evidence only demonstrates awareness, rather than purpose,” Parker wrote. “Past accusations against ATF of biased enforcement are troubling, just as Defendant’s claims are in this case. But those allegations involved different types of operations in different states, and they do not support Defendant’s claim that ATF’s actions during the (operation) constituted selective enforcement against him.”
Parker’s denial of the request for dismissal means Casanova must change tacks for his jury trial, Pori told NMID. Rather than argue that his client was arrested because of illegal racial profiling, the longtime defense lawyer plans to offer an entrapment defense.
“Basically, we plan to show that if you offer drugs to a drug addict in exchange for criminal activity, that’s entrapment,” he said. “I think the jury will be able to hear that the (informants) approached people willy nilly, with no standards, and tried to get them to commit crimes. But I don’t think some of the statistics showing the racial disparities will be in front of jurors.”
The trial is scheduled for March 15, although Pori has asked for a 30-day extension to prepare. Casanova spent more than two years in jail awaiting trial. Since December, he has been living in a drug treatment center under orders from Parker.