{"id":371035,"date":"2017-06-19T09:29:26","date_gmt":"2017-06-19T15:29:26","guid":{"rendered":"http:\/\/nmpolitics.net\/index\/?p=371035"},"modified":"2017-06-20T13:58:29","modified_gmt":"2017-06-20T19:58:29","slug":"black-man-swept-up-in-atf-sting-wins-legal-victory-but-stiffer-prosecution-looms","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2017\/06\/black-man-swept-up-in-atf-sting-wins-legal-victory-but-stiffer-prosecution-looms\/","title":{"rendered":"Black man swept up in ATF sting wins legal victory, but stiffer prosecution looms"},"content":{"rendered":"<div id=\"attachment_66499\"  class=\"wp-caption module image alignnone\" style=\"max-width: 771px;\"><a href=\"https:\/\/www.flickr.com\/photos\/feverblue\/7550299240\/in\/photolist-cvcfV7-92Yxoj-92VjYH-2VqKFS-ffJffR-4CaESc-5bzjuB-ffJfwP-dod3rs-vhH3xU-8dvo8A-dobxRi-5212Qa-4rhV4Y-rdqjy-4csaJH-92Vpev-5ZPuxr-92Vi5T-oA9iY-4csbqT-naNysN-ncTcyE-ncR2eX-naNwQz-ncRh5B-ncTfxA-ncQYji-ncTdnJ-naNA6Y-naNw94-ncTeWq-naNxKb-ncRiBz-naNyi5-92Vhxg-naNtLd-naNsTG-ncRcu4-naNtiQ-ncT8Z5-ncQU5g-dobAiR-uCxbrJ-dobHWq-dobHL5-dobH27-dobHpf-4cs92R-4rdPea\" target=\"_blank\" rel=\"noopener noreferrer\"><img loading=\"lazy\" decoding=\"async\" class=\"wp-image-66499 size-large\" src=\"http:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2015\/07\/Albuquerque-771x431.jpg\" alt=\"Albuquerque\" width=\"771\" height=\"431\" srcset=\"https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2015\/07\/Albuquerque-771x431.jpg 771w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2015\/07\/Albuquerque-336x188.jpg 336w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2015\/07\/Albuquerque-768x429.jpg 768w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2015\/07\/Albuquerque-1170x654.jpg 1170w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2015\/07\/Albuquerque.jpg 1500w\" sizes=\"auto, (max-width: 771px) 100vw, 771px\" \/><\/a><p class=\"wp-media-credit\">Will Keightley \/ Creative Commons<\/p><p class=\"wp-caption-text\">Albuquerque, N.M. (<a href=\"https:\/\/creativecommons.org\/licenses\/by-sa\/2.0\/\" target=\"_blank\" rel=\"noopener noreferrer\">photo credit\u00a0info<\/a>)<\/p><\/div>\n<p>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.<\/p>\n<p>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 href=\"https:\/\/www.documentcloud.org\/documents\/3866049-Casanova-Order-Granting-Motion-to-Compel-Discovery.html\" target=\"_blank\" rel=\"noopener noreferrer\">a five-page order<\/a> issued last week.<\/p>\n<p>Parker\u2019s 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.<\/p>\n<aside class=\"module align-left half type-aside\">\n<h3>About this article<\/h3>\n<p>This article comes from\u00a0<a href=\"http:\/\/nmindepth.com\/2017\/06\/15\/black-man-swept-up-in-atf-sting-wins-legal-victory-but-stiffer-prosecution-looms\/\" target=\"_blank\" rel=\"noopener noreferrer\">New Mexico In Depth<\/a>. Sign up for <a href=\"http:\/\/nmindepth.us6.list-manage.com\/subscribe?u=1d2ab093d81b992e50978b363&amp;id=9294743d38\" target=\"_blank\" rel=\"noopener noreferrer\">their newsletter<\/a>.<\/p>\n<\/aside>\n<p>Casanova\u2019s procedural legal victory comes as black community leaders in Albuquerque <a href=\"http:\/\/nmindepth.com\/2017\/06\/12\/black-community-wants-answers-on-atfs-albuquerque-sting-say-it-was-punch-in-the-face\/\" target=\"_blank\" rel=\"noopener noreferrer\">demand answers<\/a> from federal and local officials about the operation. Agents arrested 103 people \u2014 28 of whom were black, or 27 percent \u2014 a dramatic overrepresentation compared to Albuquerque\u2019s 3 percent black population. Hispanics also were overrepresented among those arrested, while whites were heavily underrepresented compared to Albuquerque\u2019s population.<\/p>\n<p>In his order Parker criticized the design of the operation, writing that \u201cthe 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.\u201d<\/p>\n<p>The judge\u2019s unambiguous language struck Katie Tinto, a law professor at the University of California at Irvine who has studied ATF operations around the country.<\/p>\n<p>\u201cIt does sound like the court has broader concerns about the general practices of ATF in Albuquerque,\u201d she said. \u201cBut it\u2019s hard to say what impact this will have.\u201d<\/p>\n<p>It is rare for a federal judge to order prosecutors in an ATF case to turn over certain information to a defendant arguing a \u201cselective enforcement\u201d \u2014 or racial profiling \u2014 claim, Tinto said.<\/p>\n<p>\u201cIt is significant because there have been many judges around the country who have not granted discovery on these grounds,\u201d she said.<!--more--><\/p>\n<p>NMID featured Casanova, 44, in <a href=\"http:\/\/nmindepth.com\/2017\/05\/07\/feds-sting-ensnared-many-abq-blacks-not-worst-of-the-worst\/\" target=\"_blank\" rel=\"noopener noreferrer\">a May story about the ATF operation<\/a>. At the time, Casanova said the agency targeted him because he was black.<\/p>\n<p>Parker\u2019s order opens the door for Casanova to dig deeper into ATF\u2019s practices as he seeks a dismissal of drug and firearms charges, said Brian Pori, Casanova\u2019s federal public defender.<\/p>\n<p>But pursuing the racial profiling claim comes with risk.<\/p>\n<p>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.<\/p>\n<p>That\u2019s 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\u2019s criminal history.<\/p>\n<p>Casanova has two previous felony drug convictions \u2014 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 \u201c851 notice.\u201d<\/p>\n<p>\u201cThe only way we can stop it is if Yusef pleads guilty,\u201d Pori said in an interview. \u201cAnd obviously that would mean the end of the selective enforcement claim.\u201d<\/p>\n<p>Elizabeth Martinez, a spokeswoman for the U.S. Attorney\u2019s Office in Albuquerque, did not respond to questions about Judge Parker\u2019s order or the prospect of 851 notices in cases emerging from the ATF operation.<\/p>\n<p>Hurtado\u2019s email to Pori about an 851 notice came weeks after Casanova and Pori were quoted extensively in NMID\u2019s story about the operation. Pori said he does not believe their public criticism of ATF\u2019s tactics or the racial profiling allegation led to the notice from Hurtado, whom he described as a \u201czealous advocate for the prosecution and a conscientious attorney.\u201d<\/p>\n<p>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 <a href=\"https:\/\/www.justice.gov\/opa\/press-release\/file\/965896\/download\" target=\"_blank\" rel=\"noopener noreferrer\">May 10 memo<\/a> from Attorney General Jeff Sessions, who encouraged prosecutors to \u201cpursue the most serious, readily provable offense\u201d and to seek mandatory minimum sentences in all cases, including through the use of 851 notices.<\/p>\n<p>\u201cThe hand of Jeff Sessions has reached out across America right down to the lowliest, saddest drug addict in Albuquerque,\u201d Pori said. \u201cThere\u2019s just no way around it.\u201d<\/p>\n<p>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 \u2014 the height of the so-called War on Drugs \u2014 and was meant to punish kingpins.<\/p>\n<p>For decades, prosecutors in some jurisdictions relied heavily on 851 notices in drug cases. In other places, they were rare.<\/p>\n<p>\u201cThe problem is, 851 shifted the authority in sentencing from judges to prosecutors,\u201d said Osler, who worked as a federal prosecutor in Detroit in the 1990s. \u201cProsecutors have different motivations than judges.\u201d<\/p>\n<p>In 2013, the use of 851 notices dipped nationally, he said, after <a href=\"https:\/\/www.documentcloud.org\/documents\/1094233-attorney-general-eric-holders-memorandum-on.html\" target=\"_blank\" rel=\"noopener noreferrer\">a memo<\/a> from then-Attorney General Eric Holder urged prosecutors to use the measure sparingly. Holder didn\u2019t want prosecutors pushing for harsh sentences, including mandatory minimums, in minor-league cases.<\/p>\n<p>But Sessions explicitly rescinded Holder\u2019s guidance in May, shortly after taking office.<\/p>\n<p>Osler agreed with Pori, saying the specter of 851 notices in Albuquerque\u2019s ATF sting cases appears to be an early sign of how the new attorney general plans to oversee America\u2019s federal prosecutors.<\/p>\n<p>\u201cWe are returning to a day where, unfortunately, everyone\u2019s a kingpin,\u201d he said. \u201cBut the metric\u2019s all wrong: it lumps together those who matter in the drug trade and those who don\u2019t.\u201d<\/p>\n<p>Pori said Sessions\u2019 directive has put prosecutors like Hurtado in a difficult position. Pori has never defended a client against whom an 851 notice was actually filed.<\/p>\n<p>It\u2019s among a host of levers prosecutors have always had, though, he said.<\/p>\n<p>\u201cIn federal court, there\u2019s rent on that courtroom, and the longer you hang out in there, you force their hand,\u201d Pori said. \u201cThe farther you go down the road, the more they\u2019re going to seek higher penalties. That\u2019s just what they do. It\u2019s predictable.\u201d<\/p>\n<p>Pori is one of five local attorneys who filed motions for discovery and information about confidential informants \u2014 based on racial profiling claims \u2014 on behalf of people arrested in the ATF sting.<\/p>\n<p>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.<\/p>\n<p>Assistant Federal Public Defender Sylvia Baiz said she withdrew a motion in defendant Dustin Swint\u2019s case \u201cbecause of a section 851 threat\u201d from a federal prosecutor.<\/p>\n<p>\u201cJust could not go forward because my client would have gone from a minimum mandatory five (years) to a 10 year,\u201d she said in an email. \u201cThat was my client\u2019s choice and I can\u2019t blame him.\u201d<\/p>\n<p>Despite the possibility of an 851 notice in Casanova\u2019s case, Judge Parker\u2019s 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\u2019t, Parker will step in and decide.<\/p>\n<p>Pori said he wants any materials ATF agents used to choose targets in the sting, criminal background information for those targeted \u2014 and for people agents investigated but did not pursue \u2014 and other information. His goal is to prove that the design of the ATF operation had \u201cdiscriminatory intent and effect,\u201d and that the arrest of 28 black people out of 103 total was not random.<\/p>\n<p>In the order, Parker cited the particulars of Casanova\u2019s drug sale to an undercover agent as support for Pori\u2019s argument that his client was singled out for arrest by the ATF because he was black.<\/p>\n<p>ATF Special Agent Russell Johnson <a href=\"https:\/\/www.documentcloud.org\/documents\/3699677-Transcript-of-Casanova-Motion-Hearing.html\" target=\"_blank\" rel=\"noopener noreferrer\">testified in court in April<\/a> that he watched Casanova call a white man named \u201cJohn\u201d several times on the day of the transaction. \u201cJohn\u201d arrived a short time later, and Johnson saw him exit a vehicle with a bag of meth in his hand \u2014 the same meth Casanova sold to Johnson a short time later.<\/p>\n<p>\u201cJohn\u201d was not arrested, though Johnson said under oath that ATF did all it could to find him.<\/p>\n<p>Parker didn\u2019t buy it.<\/p>\n<p>\u201cThe 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,\u201d the judge wrote.<\/p>\n<p>Tinto, the U.C. Irvine law professor, said Parker\u2019s ruling highlighted an especially egregious fact pattern in Casanova\u2019s 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.<\/p>\n<p>One exception has been in Chicago, where a group of attorneys have banded together to pursue racial profiling claims after a years-long ATF operation in that city.<\/p>\n<p>Victory in a motion for discovery based on a racial profiling claim is not necessarily an indication of a judge\u2019s willingness to dismiss charges, Tinto said. That\u2019s a long, arduous road with steeper legal burdens.<\/p>\n<p>\u201cIt\u2019s important to remember that this is just a first step,\u201d she said.<\/p>\n<p>On the door of Pori\u2019s Downtown Albuquerque office are several orders of dismissal from throughout his 30-year legal career.<\/p>\n<p>\u201cThose are victories,\u201d he said, pointing to the dismissal orders. \u201cShort of that, you can\u2019t tell someone, we won! I hope you enjoy your years in prison. If this guy gets life, this is all for naught.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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.<\/p>\n","protected":false},"author":1,"featured_media":66499,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[139,142,203,116],"class_list":["post-371035","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-and-analysis","tag-albuquerque","tag-crime","tag-law-enforcement","tag-washington"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/371035","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=371035"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/371035\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media\/66499"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=371035"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=371035"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=371035"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}