## Facts

- Federal agents conducted an ATF “stash-house” reverse-sting in which an undercover agent posed as a drug courier seeking help to rob a fictitious cocaine stash house.
- Targets were identified through confidential informants as people thought capable of committing such robberies; after planning meetings, suspects were arrested at a final meeting for conspiracy offenses.
- Daryle Lamont Sellers was recruited as a target in a Los Angeles-area operation and was convicted of conspiracy to distribute cocaine and conspiracy to interfere with commerce by robbery.
- Before trial, Sellers sought discovery to support a selective-enforcement claim, alleging ATF targeting decisions were racially discriminatory.
- Sellers proffered statistical and testimonial evidence suggesting racial disparity in similar stash-house investigations, including that 39 of 51 indicted defendants were Black or Hispanic, and that in one agent’s operations over 55 of 60 indicted persons were people of color.
- The district court denied discovery by applying the stringent selective-prosecution discovery standard associated with United States v. Armstrong, and later denied a motion to dismiss.

## Issues

1. What threshold showing must a defendant make to obtain discovery on a selective-enforcement claim challenging investigative targeting decisions in stash-house reverse-sting operations?
2. Does the Armstrong discovery standard for selective-prosecution claims apply to selective-enforcement claims?
3. Under the proper standard, did Sellers’ proffer warrant discovery such that denial was an abuse of discretion?

## Decision

- The court held that selective-enforcement discovery is governed by a less rigorous standard than the Armstrong standard for selective prosecution.
- A defendant seeking discovery must present something more than speculation—some evidence tending to show discriminatory effect and discriminatory intent.
- The court rejected requiring a defendant to identify specific similarly situated persons of a different race who were not targeted, because that information is typically within the government’s control in sting investigations.
- The court concluded Sellers’ statistical and testimonial proffer constituted nontrivial evidence sufficient to justify discovery at the threshold stage.
- The court vacated the order denying discovery and remanded for further proceedings consistent with the opinion.

## Legal Principles

- Selective prosecution and selective enforcement are distinct: heightened deference and separation-of-powers concerns apply most strongly to prosecutorial charging decisions, not to investigative targeting decisions by law enforcement officers.
- To obtain discovery on selective enforcement, a defendant must offer concrete, non-speculative evidence supporting an inference of discriminatory effect and discriminatory purpose; proof on the merits is not required at the discovery stage.
- Armstrong’s requirement to identify similarly situated individuals not prosecuted is not a prerequisite for selective-enforcement discovery in contexts where comparative non-target information is uniquely in the government’s possession.
- Statistical and anecdotal evidence may suffice to meet the discovery threshold, even if later contested for methodology, sample size, or confounders.
- District courts retain discretion to control the scope of discovery and may tailor discovery to reduce burden, including by limiting requests to aggregate data.

## Conclusion

The Ninth Circuit required a lower, evidence-based threshold for discovery on selective-enforcement claims than the selective-prosecution standard, and it remanded because Sellers’ statistical and testimonial showing plausibly suggested race-based targeting in stash-house reverse-sting investigations.


United States v. Sellers, 906 F.3d 848 (9th Cir. 2018)