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United States v. MaClin

United States District Court, E.D. Wisconsin

July 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JACOB L. MACLIN, Defendant.

          ORDER OVERRULING DEFENDANT'S OBJECTIONS (DKT. NO. 54) AND AFFIRMING JUDGE JOSEPH'S ORDER ON DEFENDANT'S MOTION FOR DISCOVERY ON SELECTIVE PROSECUTION AND SELECTIVE ENFORCEMENT (DKT. NO. 47)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         The defendant alleges that there are “serious questions about whether local, state, and federal law enforcement agencies engage in racial discrimination in determining which individuals to refer to the United States Attorney's Office for federal prosecution or whether the Department of Justice engages in racial discrimination in its charging decisions.” Dkt. No. 41 at 2. He has asked the court to direct the government to produce discovery “relevant to the referral practice of law enforcement agencies in the district and the charging practices of the Department of Justice.” Id. at 2. He also asks that, after he receives that discovery, the court allow him to file a motion to dismiss the indictment. Id. at 2-3. The court agrees with the magistrate judge that the defendant has not made the required threshold showing to obtain discovery on claims of selective prosecution or selection enforcement.

         I. Facts

         The defendant is African-American. Dkt. No. 41 at 3. He says that police reports indicate that on March 31, 2018, officers of the Milwaukee Police Department conducted a traffic stop, during which they found a gun and “about fifty grams of marijuana.”[1] Id. According to the reports, the defendant told the officers that he was taking the marijuana to a party to share with friends, and that he didn't know the gun was in the car until they pulled him over. Id. The defendant was charged in Milwaukee County Circuit Court with being a felon in possession of a firearm and possession of marijuana with intent to distribute while armed. Id.

         On June 5, 2018, the U.S. Attorney's Office presented the evidence of the March 31, 2018 arrest to a federal grand jury. Id. The grand jury returned a three-count indictment. Dkt. No. 1. Count One charged the defendant with being a felon in possession of a firearm in violation of 18 U.S.C. §§922(g)(1) and 924(a)(2). Id. at 1. Count Two charged him with knowingly and intentionally possessing marijuana with the intent to distribute it in violation of federal drug laws. Id. at 2. Count Three alleged that the defendant knowingly possessed a gun in furtherance of the drug-trafficking offense alleged in Count Two, in violation of 18 U.S.C. §924(c)(1)(A)(i). Id. at 3. Significantly, the charge in Count Three carries a mandatory minimum sentence of five years, to run consecutively to any other sentence a court might impose.

         II. Procedural History

         The defendant's motion asserts that the population of this district-the Eastern District of Wisconsin-is 84 percent white, a fact he drew from the U.S. Census. Dkt. No. 41 at 1. It asserts that “between January 2017 and June 2018, not a single white person was charged with violating 18 U.S.C. § 924(c) for possessing a firearm during a marijuana trafficking crime.” Id. In contrast, the defendant asserts that during the same period, “ninety percent” of the people charged with “marijuana-related § 924(c) violations” were black, although only 9.6 percent of the district's population is black.[2] The motion asserted that although there are twenty-eight counties in the Eastern District of Wisconsin, and “hundreds of municipalities and local law enforcement agencies in the district, the United States Attorney has only charged minority- and largely black-defendants from the City of Milwaukee with possessing a firearm in furtherance of a marijuana trafficking crime.” Id. at 2.

         Specifically, the defendant asserts that between January 2017 and June 2018-an eighteen-month period-the United States Attorney's Office charged 176 people with “drug trafficking crimes” in the district. Id. at 10. He asserts that of those 176 people, ninety were black, forty-one were white, thirty were Hispanic and fifteen were of other races. Id. The motion asserts that in thirty-five of the 176 cases, the defendants were charged with possessing a firearm in furtherance of the drug trafficking offense, in violation of 18 U.S.C. §924(c). Id. The defendant indicates that of those thirty-five defendants, twenty-eight were black, three were white, two were Hispanic and the remaining two were of other descent. Id.

         Next, the defendant turns to cases in which a defendant has been charged with using a firearm in furtherance of a specific drug offenses-a marijuana offense. Id.at 10-11. The defendant asserts that during the eighteen-month period between January 2017 and June 2018, ten defendants in the Eastern District were charged with possessing a gun in furtherance of a marijuana offense. Id. at 11. The defendant says that all but one of these defendants was black; the tenth defendant was of Arab descent. Id. He contrasts that statistic with the preceding three-year period-January 2014 through December 2016-during which he says only six defendants were charged with possessing a gun in furtherance of a marijuana offense, four of whom were black and two of whom were white. Id. at 10.

         The defendant alleges that of the ten defendants charged between January 2017 and June 2018 with possessing guns during marijuana offenses, “only of one of the defendants, [the defendant of Arab descent], was the target of a federal investigation.” Id. at 11. The rest, he argues-all of whom were black-were arrested by the Milwaukee Police Department, and all but one of them were first charged in state court before being indicted in federal court. Id. at 11-12. He says that the facts of the eight cases originally prosecuted in state court were similar-police conducted searches of homes or searched a vehicle after a traffic stop, recovering marijuana and a gun. Id.

         The defendant also asserts that for some of the nine black Milwaukee County defendants charged with possessing a gun during a marijuana offense, the amount of marijuana they possessed was minimal. He, himself, is alleged to have possessed only fifty grams. Id. Another defendant had only fifteen grams of marijuana in his car, and another had less than five grams in his home. Id. Others possessed anywhere from a quarter of a kilogram to over five kilograms. Id.

         The motion then addresses the question of how these cases got to federal court. It states that

[i]n some instances, the cases may have been referred by the ATF or another agency for prosecution. The defense has reason to believe that most referrals come not from outside law enforcement agencies, but from United States Attorney staff. In its investigation, the defense has learned that paralegals from the United States Attorney regularly go to the Milwaukee County District Attorney and review active gun cases and select cases for the United States Attorney's Office to prosecute. Having agents or staff of the United States Attorney's Office visit the district attorneys' offices within the district to review cases for potential federal cases isn't improper But the United States Attorney is not reviewing cases or accepting referrals outside of Milwaukee County. A review of the district's § 922(g)(1) prosecutions . . . starkly bear this out.

Id. at 12-13.

         In that regard, the defendant asserts that during the eighteen-month period between January 2017 and June 2018, eighty-eight people were charged in the Eastern District with being felons in possession of firearms. Id. at 18. Excluding those defendants charged with other federal crimes, those who had prior convictions or were on release at the time of their offenses, those charged by federal agencies (one) and those charged only in federal court (one), the defendant asserts that forty-six of the eighty-eight defendants-over half-were charged in Milwaukee County Circuit Court before being charged federally. Id. at 19. This fact, says the defendant, means that “regardless of whether a case originally charged in state court comes federal from a law enforcement agency referral or because the United States Attorney's Office chooses to prosecute that case federally, all these cases come from Milwaukee County.” Id. The defendant also maintains that these statistics show that “the government does not seek out defendants or accept referrals from the district's other 27 counties, ” that those counties have “much smaller minority populations” and that “[t]he government therefore knows that a state court defendant in Milwaukee is more likely to be a minority, and specifically African-American.” Id.

         Returning to defendants federally charged with possessing a gun in furtherance of a marijuana offense, the defendant asserts that he “can identify at least 42 white individuals who could have been charged with possessing a firearm in furtherance of a marijuana trafficking crime but were not.” Id. at 13. He says that each of these forty-two individuals-represented on an attached charge-was “arrested and charged between January 2017 and June 2018.” Id. He says only one was charged in federal court, while the remaining forty-one were charged in state court, and had their charges prosecuted in state court. He indicates that “[e]ach of these individuals apparently could have been prosecuted by the United States Attorney, ” and that “[e]ach . . . could have been referred to the United States Attorney for prosecution, ” but that it “does not appear that any of them were.” Id. He argues that some of these defendants had more drugs than the defendants the government has chosen to prosecute, that some were trafficking other drugs, that some had more than one gun and that some had lengthy records. Id. at 14. Yet, the defendant argues, “since May 2015, not one white person has been charged in this district with possessing a firearm in furtherance of a marijuana trafficking crime in violation of § 924(c).” Id.

         The defendant says that “to the extent that the ATF is responsible for determining who is federally prosecuted for marijuana-related § 924(c) violations, it would appear that during the time frame examined here, the ATF has referred only black men from the city of Milwaukee for federal prosecution.” Id. at 14-15. While the defendant concedes that this fact, standing alone, “may not reflect an institutional culture of racism, ” the ATF's “practices around the country . . . reflect a pattern of targeting minorities and referring them for federal prosecution at a rate significantly higher than whites.” Id. at 15.

         The defendant supplements his arguments with citations to cases and state laws prohibiting persons of color from having guns, and with media articles asserting that the prohibition against marijuana-and the so-called “war on drugs” that began in the late sixties-were rooted in racism. Id. at 20-21. He asserts that “[i]n the last ten years, public opinion on marijuana has shifted dramatically, ” noting that marijuana is legal for medical purposes in many states, and recreational purposes in several. Id. at 22. He references articles indicating that even in states where marijuana is legal, black people are arrested for marijuana offenses at a disproportionately higher rate than white people. Id. at 22-23.

         At the end of the motion, the plaintiff cites to a December 2017 article from the Milwaukee Journal Sentinel, describing a federal program called the Public Safety Partnership. Id. at 24 (citing Ashley Luthern, Milwaukee Police Did Something Different to Tackle Crime in the City-They Focused on Just 2.3 Square Miles of It, Milwaukee Journal Sentinel, Dec. 1, 2017, available at https://www.jsonline.com/story/news/crime/2017/12/01/milwaukee-police-did-something-different-tackle-crime-city-they-focused-just-2-3-square-miles/914219001/. The article, which described a team effort by federal and state law enforcement agencies to “help lower crime, ” referenced a statement by then-chief of the Milwaukee Police Department Edward Flynn that “investigators use[d] an algorithm that examine[d] the amount of violence and how recently it ha[d] occurred.” Id. The defendant asserts that “[t]his begs the question, what role does this (or any other) algorithm play in the enforcement and prosecutorial administration of certain types of offenses in the district?” Id. The defendant wonders how such an algorithm works, pointing to a 2016 report from ProPublica indicating that, in the defendant's words, “algorithms such as the one apparently used in Milwaukee are biased against black people.” Id. at 24-25, citing Julia Angwin, Jeff Larson, Surya Maau, Lauren Kirchner, Machine Bias: There's software used across the country to predict future criminals. And it's biased against blacks. ProPublica (May 23, 2016, available at: https://www.propublica.org/article/machien-bias-risk-assessments-in-criminal-sentencing. Id.

         Troubled by these statistics, the defendant has asked the court to order the government to produce discovery responsive to twenty-six requests relating to the referral practices of law enforcement agencies in the district, the charging practices of the Department of Justice and the internal policies and staffing of the United States Attorney's Office. Id. at 2, 26-29.

         The government's opposition to the motion provided additional details surrounding the defendant's arrest. Dkt. No. 44. It alleged that the Milwaukee police officers were in the area on March 31, 2018 because of complaints about drug dealing, that they saw the defendant engaged in what they thought was a drug transaction and that the defendant drove away from the transaction at “speeds of up to fifty miles per hour in the residential neighborhood.” Id. at 4. The government asserts that the gun in the defendant's car was loaded, and that he had $2, 440 in small bills in his pocket. Id. at 4-5. While the defendant's wife denied that the gun was hers when the officers interviewed her, the defendant told officers that the gun belonged to his wife; when confronted with the fact that his wife had denied ownership, the defendant told officers that his wife was lying. Id. at 5. The government alleges that the defendant admitted to knowing the gun was in the car, because he'd moved it in order to put the marijuana (which he conceded was his) in the console. Id.

         The government does not dispute the defendant's assertion that nine of out of the ten §924(c)/marijuana cases charged in the eighteen months between January 2017 and June 2018 involved African-American defendants, although it says it does not keep records tracking the race of defendants and could verify the race of the defendants only by looking at databases such as the Wisconsin Circuit Court Access Program, or “CCAP.” Id. at 9.

         As to the nine cases upon which the defendant's argument relies, however, the government argues that all nine were not “straight” §924(c)/marijuana cases-one involved a defendant charged with dog-fighting who also was charged with the §924(c), and the other involved a defendant charged with possessing not only marijuana but methamphetamine. Id.

         Next, the government asserts that the defendant appears to have arbitrarily selected the eighteen-month period between January 2017 and June 2018, without explaining why. Id. at 9-10. The government asserts that the defendant selected January 2017 for political purposes, implying that the defendant selected that date because it was in January 2017 that the current administration took over the White House. Id. at 10.

         The government explains that this arbitrary period-January 2017 through June 2018-excludes defendants who fit the description of individuals whom the defendant says the government declines to charge. In addition to the two white individuals the defendant himself acknowledged as having been charged between January 2014 and December 2016, the government identifies a white male charged in December 2018 for possession a gun in furtherance of heroin and marijuana trafficking. Id. at 10, n.2. That defendant, the government asserts, came from Fond du Lac County, not Milwaukee County. Id.

         The government questions the defendant's logic-if, the government argues, its charging decisions were guided by racial animus, why would it reflect that animus only in its charging decisions regarding marijuana? Why would it not exhibit that same animus in other drug cases, or in gun cases? Id. at 11.

         The bulk of the government's arguments relate to its assertion that the defendant's statistics are not sufficient to satisfy the defendant's burden for obtaining discovery in an attempt to prove selective prosecution or selective enforcement. The government argues that simply alleging that someone had a gun and some marijuana is not enough to prove that he or she possessed that gun “in furtherance” of a drug crime; other facts include where the gun was located, the kind of gun, whether it was stolen, whether it was loaded and the circumstances under which it was found. Id. at 12. Thus, the government argues, the defendant's assertion that the information the defendant provided about the forty-two individuals the defendant says could have been charged under §924(c) is not sufficient to allow the court (or the government) to make that determination. Id.

         The government also argues that the information the defendant has provided does not show whether the individuals he identified were similarly situated to the defendant. The information does not show the other individuals' criminal histories, their prior involvement in violence or drug trafficking, whether they have gang affiliation. Id. at 12-13.

         The government explains that, while it is willing to take referrals from district attorneys, it can't just go pull whatever cases it chooses, because it must respect the sovereignty of state courts. Id. at 13. It also asserts that the defendant has not demonstrated that federal authorities, including the U.S. Attorney's Office, knew about any of the forty-two individuals whom the defendant has identified. Id.

         The government identifies three defendants charged in May 2018 who originally were charged in counties other than Milwaukee-two in Winnebago County and one on the Menominee reservation. Id. at 14. The government also says that if the defendant had expanded his time frame a bit, he'd have discovered another defendant originally charged in Winnebago County, and one originally charged in Sheboygan County. Id. at 14-15.

         The government accuses the defendant of ignoring one possible reason for the large number of referrals from Milwaukee County-the fact that there is significant violent crime in Milwaukee County. Id. at 15. While the government disputes the defendant's characterization of paralegals from the U.S. Attorney's Office visiting the Milwaukee County District Attorney's Office and picking out cases to prosecute, it agrees that it has had a working relationship with the gun unit in the Milwaukee County District Attorney's Office for some time (for “many years and multiple administrations”), and that it collaborates with other law enforcement agencies in Milwaukee on Project Safe Neighborhoods. Id. at 16. The government asserts that “Milwaukee County is by far the most populous county in the district, with close to a million residents” and that it “also has the most crime, the most violent crime, and the most gun-related crime of any county in the district.” Id. It points to data indicating that Milwaukee County was responsible for 91 percent of the homicides in the Eastern District in 2017, and that 80 percent of the victims of those homicides were African-American men. Id. at 17. The government provides data indicating that Milwaukee County had 84 percent of the robberies in the Eastern District in 2017. Id. at 17-18. Finally, the government relates data indicating that Milwaukee County has the largest minority population of any county in the Eastern District. Id. at 18. The government argues that the defendant inappropriately has characterized an effort to “allocate law-enforcement and especially prosecutorial resources where the gun violence is at its worst” as evidence of discriminatory intent. Id.

         The government says the defendant's allegation that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) has some role in deciding which cases get prosecuted is speculation. Id. at 19. It contends that this allegation contradicts the defendant's other allegation-that it is the U.S. Attorney's Office that is using paralegals to select cases for federal indictment. Id. The government also asserts that the facts in the ...


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