FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARYLE LAMONT SELLERS,

Defendant-Appellant.

No. 16-50061

D.C. No.

2:12-cr-00722-TJH-3

OPINION

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Senior District Judge, Presiding

Argued and Submitted March 8, 2018

Pasadena, California

Filed October 15, 2018

Before: Susan P. Graber* and Jacqueline H. Nguyen, 

Circuit Judges, and Michael H. Simon,** District Judge.

 * Judge Graber was drawn by lot to replace Judge Reinhardt. Ninth 

Circuit General Order 3.2.h. She has read the briefs, reviewed the record, 

and listened to the tape of oral argument held on March 8, 2018.

** The Honorable Michael H. Simon, United States District Judge 

for the District of Oregon, sitting by designation.
2 UNITED STATES V. SELLERS

Opinion by Judge Nguyen;

Concurrence by Judge Nguyen;

Dissent by Judge Graber

SUMMARY***

Criminal Law

The panel vacated the district court’s order denying a 

defendant’s motion seeking discovery on a claim of selective 

enforcement, and remanded for limited post-judgment 

proceedings, in a case in which the defendant was convicted 

of conspiracy to interfere with commerce by robbery after he 

was caught in a law enforcement reverse sting operation to 

rob a fictitious stash house.

The panel held that the rigorous discovery standard set 

forth for selective prosecution claims in United States v. 

Armstrong, 517 U.S. 456 (1996), does not apply strictly to 

requests for discovery on a selective enforcement claim in a 

stash house reverse-string operation case. The panel held 

that contrary to Armstrong’s requirements for selective 

prosecution claims, a defendant need not proffer evidence 

that similarly-situated individuals of a different race were 

not investigated or arrested to receive discovery on a 

selective enforcement claim like the defendant’s. The panel 

wrote a defendant must have something more than mere 

speculation to be entitled to discovery; and that the district 

court should use its discretion—as it does for all discovery 

 *** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SELLERS 3

matters—to allow limited or broad discovery based on the 

reliability and strength of the defendant’s showing. Because 

the district court applied an incorrect legal standard, the 

panel remanded to the district court to determine in the first 

instance whether the defendant—who argued that the 

evidence he presented regarding demographics of those 

indicted based on reverse-sting operations entitles him to 

discovery—has met the standard outlined today.

In a separate concurring opinion, Judge Nguyen wrote 

that there is no legitimate dispute that these stash house 

reverse-sting operations primarily affect people of color, but 

the government has steadfastly resisted any defense attempt 

to determine whether enforcement is racially biased. She 

wrote that courts exercising their gatekeeping role in 

determining whether discovery is warranted should 

recognize that the choice of locations for these operations 

may have evidentiary significance to a claim of 

discriminatory effect and discriminatory intent.

Dissenting, Judge Graber wrote that this court need 

not—and therefore should not—opine about the standard for 

obtaining discovery in selective enforcement cases because, 

under either a high or low standard, the defendant’s 

evidentiary proffer is wanting as a matter of law.
4 UNITED STATES V. SELLERS

COUNSEL

Carlton F. Gunn (argued), Pasadena, California, for 

Defendant-Appellant.

L. Ashley Aull (argued), Chief, Criminal Appeals Section;

Robyn K. Bacon, Assistant United States Attorney; Patrick 

R. Fitzgerald, Chief, National Security Division; United 

States Attorney’s Office, Los Angeles, California; for 

Plaintiff-Appellee.

OPINION

NGUYEN, Circuit Judge:

Daryle Lamont Sellers was convicted of conspiracy to 

distribute cocaine and conspiracy to interfere with 

commerce by robbery after he was caught in a law 

enforcement reverse sting operation to rob a fictitious stash 

house. Sellers argues that he was targeted based on his race, 

and presents evidence that an overwhelming majority of the 

defendants targeted by law enforcement in similar 

investigations are African-Americans or Hispanics. To 

succeed on his selective enforcement claim, Sellers must 

show that the enforcement had a discriminatory effect and

was motivated by a discriminatory purpose. He is unlikely 

to meet this demanding standard without information that 

only the government has. Sellers can obtain this information 

through discovery if he makes a threshold showing. We 

must decide what that showing is. We hold that in these 

stash house reverse-sting cases, claims of selective 

enforcement are governed by a less rigorous standard than 

that applied to claims of selective prosecution under United 

States v. Armstrong, 517 U.S. 456 (1996).
UNITED STATES V. SELLERS 5

BACKGROUND

In 2012, the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (“ATF”) and Agent John Carr set up what is 

known as a stash house reverse-sting operation near 

downtown Los Angeles. These operations tend to follow a 

common format:1 An undercover agent poses as a 

disgruntled drug courier who is looking for help robbing the 

house where his employer is stashing (and guarding) a large 

quantity of drugs. The agent describes the stash house to 

individuals who have been targeted for the operation. 

Usually, the targets of stash house reverse-sting operations 

are identified using confidential informants. Informants are 

supposed to identify targets that have committed stash house 

robberies before or are capable of doing so.

The agent conducts a series of meetings with the targets 

and presents them with the opportunity to rob the stash 

house, and they devise a plan to do so.2 There is no stash 

house to rob, and there are no drugs—this is a ‘reversesting,’ after all. But at the last meet-up, just before they are 

set to leave and carry out the plan, the targets are arrested for 

conspiracy to commit the robbery and associated crimes.

The details of the specific stash house reverse-sting 

operation here, for the most part, are irrelevant to Sellers’s 

selective enforcement claim, and so we state them only in 

brief. In March 2012, a confidential informant staying at a 

 1 We described in detail one example of a stash house reverse-sting 

operation in United States v. Black, 733 F.3d 294, 298–301 (9th Cir. 

2013).

2 These meetings are supposed to serve as a “vetting process” to 

ensure that the targeted individuals are willing and capable of 

committing the stash house robbery.
6 UNITED STATES V. SELLERS

hotel in a predominantly black and Hispanic area of Los 

Angeles targeted one of Sellers’s co-defendants for a stash 

house reverse-sting operation, ostensibly because the 

informant believed that the co-defendant was involved in 

selling drugs. The co-defendant, who is black, was put in 

touch with Agent Carr, and the stash house reverse-sting was 

underway. On July 9, 2012, Sellers attended a planning 

meeting for the robbery with the co-defendant, Agent Carr, 

and others. Eventually, the stash house robbery was set for 

July 16, and, after one final meeting confirming the plan, the 

robbery crew (all of whom are black) was arrested.

Sellers and his co-defendants were indicted for 

conspiracy to possess and distribute cocaine, conspiracy to 

commit robbery, and possession of a firearm in furtherance 

of these crimes.3 Sellers moved to dismiss the indictment 

for outrageous government misconduct4 and sought 

discovery on a claim of selective enforcement.5 Sellers 

presented data collected by an attorney in the Central District 

of California showing that of 51 defendants indicted in stash 

house reverse-sting operations between 2007 and 2013, at 

least 39 were black or Hispanic.6 Similarly, Agent Carr 

 3 See 18 U.S.C. §§ 924(c)(1)(A), 1951; 21 U.S.C. § 846.

4 We address Sellers’s appeal of the denial of his motion to dismiss 

for outrageous government conduct and challenges to his sentence in a 

simultaneously-filed memorandum disposition.

5 At times, Sellers has styled his claim as one of selective 

prosecution, but it is more properly considered a claim for selective 

enforcement since Sellers takes issue with how he was targeted at the 

outset of the operation. The district court considered it as such, and 

Sellers adopted this characterization on appeal. We follow suit.

6 No white defendants were identified; the remaining 12 were of 

unknown races.
UNITED STATES V. SELLERS 7

testified that more than 55 of the approximately 

60 individuals who have been indicted in his stash house 

reverse-sting operations are people of color. Relying on the 

standard set forth in Armstrong for obtaining discovery on 

selective prosecution claims, the district court denied the 

motion.

Sellers was convicted by a jury and sentenced to 

96 months’ imprisonment. He timely appeals.

STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. 

Whether the district court applied the correct discovery 

standard is a legal question that we review de novo. See

United States v. Washington, 797 F.2d 1461, 1470 n.12 (9th 

Cir. 1986). We review the district court’s determination that 

Sellers did not make the requisite discovery showing for 

abuse of discretion. United States v. Arenas-Ortiz, 339 F.3d 

1066, 1069 (9th Cir. 2003).7 The court necessarily abuses 

its discretion when it applies the wrong legal standard. See 

United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 

2009) (en banc) (citing Cooter & Gell v. Hartmarx Corp., 

496 U.S. 384, 405 (1990)).

 7 We decline the government’s invitation to apply a plain error 

standard of review. Sellers has consistently argued that there are 

meaningful differences between Armstrong and his case, and the district 

court expressly considered whether there are differences between 

selective prosecution and selective enforcement claims. Sellers’s claim 

was “properly presented” in the district court, and we are “free to address 

it.” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379 (1995).
8 UNITED STATES V. SELLERS

DISCUSSION

I.

We are not working from an entirely blank slate. 

Selective prosecution and selective enforcement claims are 

undoubtedly related, see Lacey v. Maricopa County, 

693 F.3d 896, 920 (9th Cir. 2012) (en banc), and the 

Supreme Court addressed the threshold discovery showing 

required for selective prosecution claims over two decades 

ago in Armstrong. 517 U.S. at 458. The question we face is 

whether Armstrong’s standard is equally applicable to 

claims for selective enforcement, particularly in the stash 

house reverse-sting context. We first address Armstrong’s 

discovery standard for selective prosecution cases and then 

explain why we join the Third and Seventh Circuits in 

declining to adopt it wholesale here.

A. Armstrong

To establish a claim of selective prosecution, a defendant 

must show both discriminatory effect and discriminatory 

purpose. Armstrong, 517 U.S. at 465. In Armstrong, the 

Supreme Court “consider[ed] the showing necessary for a 

defendant to be entitled to discovery on a claim” of selective 

prosecution. Id. at 458. The Court adopted a “rigorous 

standard,” id. at 468, whereby a defendant must show that 

“the Government has failed to prosecute others who are 

similarly situated to the defendant” as evidence of 

discriminatory effect. Id. at 469.

The Court explained its rationale for such a high 

standard. Id. at 464–68. It observed that “[i]n order to dispel 

the presumption that a prosecutor has not violated equal 

protection, a criminal defendant must present clear evidence 

to the contrary.” Id. at 465 (internal quotation marks 
UNITED STATES V. SELLERS 9

omitted). The Court instructed us to be “hesitant” and not 

“unnecessarily impair” the prosecutor’s “constitutional 

function.” Id. (internal quotation marks omitted). And it 

was this “justification[] for a rigorous standard for the 

elements of a selective-prosecution claim” that “require[d] a 

correspondingly rigorous standard for discovery in aid of 

such a claim.” Id. at 468.

Armstrong was thus premised on the notion that the 

standard for discovery for a selective prosecution claim 

should be nearly as rigorous as that for proving the claim 

itself. In other words, the standard was intentionally hewn 

closely to the claim’s merits requirements. See id.; see also 

United States v. Hare, 820 F.3d 93, 99 (4th Cir. 2016) (“The 

standard for obtaining discovery in support of a selective 

prosecution claim is only slightly lower than for proving the 

claim itself.” (internal quotation marks omitted)).

B. Material Differences Between Selective Prosecution 

and Selective Enforcement

Selective prosecution is not selective enforcement—

especially not in the stash house reverse-sting context. There 

are two main differences that warrant departure from the 

Armstrong standard: First, law enforcement officers do not 

enjoy the same strong presumption that they are 

constitutionally enforcing the laws that prosecutors do. 

Second, the nature of reverse-sting operations means that no 

evidence of similarly situated individuals who were not 

targeted exists.

1. Presumption of Regularity

“[T]he presumption of regularity supports . . . 

prosecutorial decisions . . . .” Armstrong, 517 U.S. at 464 

(internal quotation marks omitted). This presumption gives 
10 UNITED STATES V. SELLERS

“a measure of protection (and confidentiality)” to 

prosecutors’ “deliberative processes, which are covered by 

strong privileges.” United States v. Davis, 793 F.3d 712, 720 

(7th Cir. 2015) (en banc). Prosecutors occupy a “special 

province” of the executive branch and have “broad 

discretion” to enforce our nation’s laws, Armstrong, 

517 U.S. at 464 (internal quotation marks omitted).

On the other hand, “[a]gents of the ATF and FBI are not 

protected by a powerful privilege or covered by a 

presumption of constitutional behavior.” Davis, 793 F.3d at 

720. Criminal defendants are allowed discovery for various 

aspects of law enforcement operations, including statements 

made and actions taken by investigating agents. Agents’ 

investigatory decisions are regularly questioned at trial, and 

their credibility is put before courts and juries. Thus, agents 

occupy a different space and role in our system than 

prosecutors; they are not charged with the same 

constitutional functions, and their decisions are more often 

scrutinized by—and in—courts.

Because the same presumption of regularity and 

deference to prosecutorial decision-making policy concerns 

do not apply in the selective enforcement context, we need 

not apply as rigorous a standard here.

2. Nonexistent Evidence

In the selective prosecution context, statistical evidence 

of differential treatment is ostensibly available. See 

Armstrong, 517 U.S. at 466–67, 470. For instance, 

comparing who was arrested with who was prosecuted, or 

the demographics of those prosecuted in state and federal 

courts for the same crime, may evince differential treatment 

of similarly situated individuals. See id. That is not the case 

in the context of selective enforcement. Asking a defendant 
UNITED STATES V. SELLERS 11

claiming selective enforcement to prove who could have 

been targeted by an informant, but was not, or who the ATF 

could have investigated, but did not, is asking him to prove 

a negative; there is simply no statistical record for a 

defendant to point to. Cf. Chavez v. Ill. State Police, 

251 F.3d 612, 640 (7th Cir. 2001) (“In a meritorious 

selective prosecution claim, a criminal defendant would be 

able to name others arrested for the same offense who were 

not prosecuted by the arresting law enforcement agency; 

conversely, plaintiffs who allege that they were stopped due 

to racial profiling would not, barring some type of test 

operation, be able to provide the names of other similarly 

situated motorists who were not stopped.”).

This is especially true for stash house reverse-sting 

operations, where no independent crime is committed; the 

existence of the ‘crime’ is entirely dependent on law 

enforcement approaching potential targets, and any 

comparative statistics can only be derived by the government 

and its informants choosing to approach and investigate 

white individuals. See Hare, 820 F.3d at 101 (“In the stash 

house sting context, a defendant would face considerable 

difficulty obtaining credible evidence of similarly situated 

individuals who were not investigated by ATF.”).

In Armstrong, the Supreme Court concluded that 

requiring evidence about similarly situated defendants 

would not “make a selective-prosecution claim impossible 

to prove.” That is not the case here; comparative statistics 

do not exist. As did the Court in Armstrong, we set the 
12 UNITED STATES V. SELLERS

discovery standard accordingly and find that a lower 

standard is warranted under these circumstances.8

C. Davis and Washington

The Third and Seventh Circuits have already come to the 

conclusion that Armstrong’s rigorous discovery standard

does not apply in the context of selective enforcement claims 

involving stash house reverse-sting operations. See United 

States v. Washington, 869 F.3d 193, 219–21 (3d Cir. 2017), 

cert. denied, 138 S. Ct. 713 (2018); Davis, 793 F.3d at 719–

21. The Fourth Circuit has described the arguments for 

doing so as “well taken.” Hare, 820 F.3d at 101 (citing 

Davis).9 We are now the fourth circuit to address this 

question in the stash house reverse-sting context.

In United States v. Davis, the Seventh Circuit, sitting en 

banc, emphasized that “Armstrong was about prosecutorial 

discretion” and how “federal prosecutors deserve a strong 

presumption of honest and constitutional behavior, which 

cannot be overcome simply by a racial disproportion in the 

outcome” because “disparate impact differs from 

 8 United States v. Arena-Ortiz, 339 F.3d 1066 (9th Cir. 2003), which 

involved a selective prosecution claim, does not foreclose our 

consideration of the difficulty of obtaining certain types of evidence. If 

the discovery standard for these types of claims had already been set, 

difficulty meeting the standard would not be a valid excuse for failing to 

do so. See id. at 1070–71. But it is not, and we have leeway when 

deciding the appropriate standard at the outset.

9 In Hare, the Fourth Circuit “assume[d]” that the defendants’ 

showing that all 32 of the defendants prosecuted in stash house reversesting cases in the district were black was “sufficient to warrant discovery 

into selective enforcement” but found that the defendants had already 

received all of the discovery to which they would be entitled. 820 F.3d 

at 98, 101.
UNITED STATES V. SELLERS 13

discriminatory intent.” 793 F.3d at 720. The court found 

that “the sort of considerations that led to the outcome in 

Armstrong do not apply to a contention that agents of the FBI 

or ATF engaged in racial discrimination when selecting 

targets for sting operations, or when deciding which suspects 

to refer for prosecution.” Id. at 721. Thus, based on the 

Davis defendant’s showing that 88 of the 94 defendants 

prosecuted after stash house reverse-sting operations in the 

district were black or Hispanic, the court held that 

“information from supervisors or case agents of the FBI and 

ATF” would be “outside the scope of Armstrong” and 

discoverable. Id. at 715, 721–22; see also id. at 722 (“The 

racial disproportion in stash-house prosecutions remains 

troubling . . . and it is a legitimate reason for discovery.”).

In Washington, the Third Circuit discussed Davis at 

length and ultimately “agree[d] with the Davis court that 

district judges have more flexibility, outside of the 

Armstrong[] framework, to permit and manage discovery on 

claims” for selective enforcement related to stash house 

reverse-sting operations. 869 F.3d at 213. The court found 

that Armstrong was “grounded in part on the special 

solicitude courts have shown to prosecutors’ discretion” that 

“does not inevitably flow to the actions of law enforcement.” 

Id. at 216, 219. The court also took note of the defendant’s 

argument that the fact that “there are likely to be no records 

of similarly situated individuals who were not arrested or 

investigated . . . would transform the functional 

impossibility of Armstrong[] into a complete impossibility.” 

Id. at 216. The court held that so long as the defendant’s 

proffer contains “reliable statistical evidence, or its 

equivalent, . . . a defendant need not, at the initial stage, 

provide ‘some evidence’ of discriminatory intent, or show 

that . . . similarly situated persons of a different race or equal 

protection classification were not arrested or investigated by 
14 UNITED STATES V. SELLERS

law enforcement.” Id. at 221. The court remanded for the 

district court to determine in the first instance whether the 

defendant, who had shown that all of the defendants 

prosecuted in connection with stash house reverse-sting 

operations in the district were black, was entitled to any 

additional discovery. Id. at 200, 222.

D. The Resulting Standard

Today we join the Third and Seventh Circuits and hold 

that Armstrong’s rigorous discovery standard for selective 

prosecution cases does not apply strictly to discovery 

requests in selective enforcement claims like Sellers’s. 

Contrary to Armstrong’s requirements for selective 

prosecution claims, a defendant need not proffer evidence 

that similarly-situated individuals of a different race were 

not investigated or arrested to receive discovery on his 

selective enforcement claim in a stash house reverse-sting 

operation case. While a defendant must have something

more than mere speculation to be entitled to discovery, what 

that something looks like will vary from case to case. The 

district court should use its discretion—as it does for all 

discovery matters—to allow limited or broad discovery 

based on the reliability and strength of the defendant’s 

showing.10

II.

Having set forth the applicable standard, we turn to 

Sellers’s threshold showing in this case. Sellers argues that 

the evidence he presented regarding the demographics of 

those indicted based on stash house reverse-sting operations 

 10 Other tools in a district court’s tool box (such as in camera review) 

may also aid the court’s decision as to whether discovery is warranted.
UNITED STATES V. SELLERS 15

entitles him to discovery on his selective enforcement claim. 

Because the district court applied an incorrect legal standard, 

we follow our normal practice of remanding to the district 

court to determine in the first instance whether Sellers has 

met the standard we outline today. See Kirkpatrick v. 

Chappell, 872 F.3d 1047, 1058 (9th Cir. 2017) (“When a 

district court applies the wrong legal standard . . . , we 

ordinarily remand the case so that it may apply the correct 

one in the first instance.”). It may be that Sellers does not 

meet even a lower standard. Or it may be that he meets the 

standard but is entitled to no more discovery than he already 

received in connection with his entrapment defense. Or 

Sellers may be entitled to ask the government to be more 

forthcoming about its practices with regard to stash house 

reverse-sting operations. We leave that to the district court 

to decide.

The dissent, arguing that Sellers isn’t entitled to 

discovery under any standard, purports to apply “some lesser 

level of proof” for a claim of selective enforcement, Dissent 

at 28, but then applies exactly the standard articulated in 

Armstrong for a claim of selective prosecution. The cases 

upon which it relies all involve selective prosecution claims. 

See United States v. Bass, 536 U.S. 862 (2002) (per curiam) 

(involving claim of selective prosecution in seeking the 

death penalty); Arenas-Ortiz, 339 F.3d at 1068 (involving 

“claim that the United States Attorney engaged in a pattern 

of selective prosecution of Hispanic males” for illegal 

reentry); United States v. Turner, 104 F.3d 1180, 1181 (9th 

Cir. 1997) (involving contention that the defendants “had 

been selected for prosecution on crack cocaine charges on 

racial grounds”).

In conflating the standards for discovery in selective 

prosecution and selective enforcement claims, the dissent 
16 UNITED STATES V. SELLERS

overlooks the main reason for distinguishing them: the 

presumption that prosecutors “properly discharged their 

official duties” absent “clear evidence to the contrary.” 

Armstrong, 517 U.S. at 464 (quoting United States v. Chem. 

Found., Inc., 272 U.S. 1, 14–15 (1926)). Because “[t]he 

justifications for a rigorous standard for the elements of a 

selective prosecution claim” are not present in a selective 

enforcement claim, the latter does not “require a 

correspondingly rigorous standard for discovery in aid of 

such a claim.” Id. at 468. Thus, obtaining discovery on a 

selective enforcement claim does not “‘require some 

evidence tending to show the existence of [both] essential 

elements of the defense,’ discriminatory effect and 

discriminatory intent,” id. at 468 (quoting United States v. 

Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)), 

notwithstanding that the defendant will eventually need to 

show both elements to prevail on the claim, see Lacey v.

Maricopa County, 693 F.3d 896, 920 (9th Cir. 2012) (en 

banc). See Dissent at 28 (“[A] litigant need not prove 

entitlement to relief in order to obtain discovery.”). 

Therefore, even if the dissent were correct that Sellers 

presented no evidence of discriminatory effect, see Dissent 

at 31, evidence of discriminatory intent may be enough to 

warrant discovery.11

 11 Indeed, even in the selective prosecution context, the Supreme 

Court left open the possibility that direct admissions by prosecutors of 

discriminatory purpose (rather than the usual circumstantial evidence) 

would entitle the defendant to discovery without showing some evidence 

of discriminatory effect. Armstrong, 517 U.S. at 469 n.3.
UNITED STATES V. SELLERS 17

CONCLUSION

The order denying discovery is VACATED and the case 

is REMANDED for limited post-judgment proceedings 

consistent with this opinion.12

NGUYEN, Circuit Judge, concurring:

For more than two decades, the government has engaged 

in the controversial practice of stash house reverse stings, in 

which “the government feels compelled to invent fake 

crimes and imprison people for long periods of time for 

agreeing to participate in them,” United States v. Black, 

750 F.3d 1053, 1057 (9th Cir. 2014) (Reinhardt, J., 

dissenting from the denial of rehearing en banc). Despite 

widespread criticism of this “tawdry” and “disreputable 

tactic,” United States v. Lewis, 641 F.3d 773, 777 (7th Cir.

2011) (“We use the word ‘tawdry’ because the tired sting 

operation seems to be directed at unsophisticated, and 

perhaps desperate, defendants who easily snap at the bait put 

out for them by [the government agent].”); United States v. 

Kindle, 698 F.3d 401, 414 (7th Cir. 2012) (Posner, J., 

dissenting in part), vacated on reh’g en banc sub nom.

United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014), the 

government has expanded fake stash house sting operations 

from a single metropolitan area to cities nationwide.1

 12 Sellers’s conviction and sentence are otherwise unaffected by this 

remand. Sellers’s conditional motion for remand (docket entry no. 61) 

is DENIED as moot.

1 The Bureau of Alcohol, Tobacco, and Firearms (“ATF”) devised 

this scheme in Miami in the early 1990s. Drug cartels moving huge 
18 UNITED STATES V. SELLERS

While these operations do “not . . . reduc[e] the actual 

flow of drugs,”2 the government touts them as an important 

tool “to catch people inclined to commit home invasions.” 

United States v. Hudson, 3 F. Supp. 3d 772, 786 (C.D. Cal. 

2014), rev’d sub nom. United States v. Dunlap, 593 F. App’x 

619 (9th Cir. 2014). But when the government fails to target 

known criminal enterprises or people suspected of engaging 

in serious crimes, the practice is highly questionable and 

raises troubling questions about race-based targeting.

There is no legitimate dispute that these stings primarily 

affect people of color, but the government has steadfastly 

resisted any defense attempt to determine whether 

enforcement is racially biased. Courts exercising their 

gatekeeping role in determining whether discovery is 

warranted should recognize that the choice of locations for 

these operations may have evidentiary significance to a 

claim of discriminatory effect and discriminatory intent.

 

quantities of cocaine through South Florida attracted freelance 

criminals who tried to poach the shipments, often resulting in shootouts 

or attacks on innocent people. Brad Heath, ATF Uses Fake Drugs, Big 

Bucks to Snare Suspects, USA Today, June 26, 2013, 

https://www.usatoday.com/story/news/nation/2013/06/27/atf-stash-hou

ses-sting-usa-today-investigation/2457109. Over the next two decades, 

reverse stash house stings proliferated, with operations in at least 22 

states. Id.

2 A reverse sting “both eliminates one potential stash house robber

. . . and deters other criminals from joining stash house robberies . . . . 

The greater security that fictitious stash house stings confer on real stash 

houses . . . reduces their cost of self-protection, which is a principal cost 

of the illegal-drug business.” Kindle, 698 F.3d at 416 (Posner, J., 

dissenting in part).
UNITED STATES V. SELLERS 19

I.

Stash house reverse stings have been widely criticized on 

a number of race-neutral grounds. See United States v. 

Conley, 875 F.3d 391, 402 (7th Cir. 2017) (commenting on 

the “substantial body of criticism of similar stash house 

cases both from this circuit and others”); United States v. 

Washington, 869 F.3d 193, 197 (3d Cir. 2017) (“[R]everse 

sting operations have grown increasingly controversial over 

the years, even as they have grown safer and more refined.”); 

see also United States v. Flowers, 712 F. App’x 492, 509 

(6th Cir. 2017) (Stranch, J., concurring) (“This concerning

. . . tactic has rightly drawn criticism in news reporting, 

scholarly writing, and from the judiciary.”). See generally

Marc D. Esterow, Note, Lead Us Not into Temptation: Stash 

House Stings and the Outrageous Government Conduct 

Defense, 8 Drexel L. Rev. Online 1, 28–33 (2016).

To begin with, the government need not pursue existing 

criminal enterprises or individuals suspected of involvement 

in any crime—let alone stash house robberies. Indeed, the 

government typically outsources the selection of a target to 

a confidential informant, introducing a host of biases and bad 

incentives into the process. See, e.g., United States v. Black, 

733 F.3d 294, 303 (9th Cir. 2013) (observing that the 

government was “trolling for targets” when the confidential 

informant “provocatively cast his bait in places defined only 

by economic and social conditions”); see also United States 

v. McLean, 199 F. Supp. 3d 926, 943 (E.D. Pa. 2016) (citing 

“the inherently arbitrary way in which stash house sting 

cases first ensnare suspects” as a reason that “enforcing a . . . 

mandatory minimum would offend due process”); United 

States v. Cambrelen, 29 F. Supp. 2d 120, 125–26 (E.D.N.Y. 

1998) (finding the use of confidential informants “especially 

troubling since those people are often in the process of 
20 UNITED STATES V. SELLERS

negotiating down their own drug sentences or charges with 

prosecutors, and have enormous incentive to inflate the drug 

quantities involved in the cases they help prosecute”), aff’d, 

5 F. App’x 30 (2d Cir. 2001).

Not surprisingly, given the way in which they are 

selected, targets of stash house stings and their coconspirators sometimes have modest criminal résumés. See, 

e.g., United States v. McKenzie, 656 F.3d 688, 692 (7th Cir. 

2011) (“The crime proposed was . . . a ‘massive’ one; it is 

somewhat baffling, then, that the young men who the 

authorities recruited did not have ‘massive’ criminal 

histories to match.”); see also United States v. Brown, 299 F. 

Supp. 3d 976, 987 (N.D. Ill. 2018) (“ATF does not always 

‘target existing criminal enterprises or have prior suspicion 

of potential targets,’ and instead the stings often ‘ensnare 

low-level crooks who jump at the bait of a criminal 

windfall.’” (quoting Flowers, 712 F. App’x at 509 (Stranch, 

J., concurring))). In such cases, the government is creating 

hardened criminals out of individuals who might otherwise 

lead productive lives.

The danger of . . . reverse stings is 

substantially heightened when the 

government takes aim at poor neighborhoods 

and tempts their residents with the prospect 

of making large amounts of money through 

criminal activity. At the right moment and 

when described in attractive enough terms, 

such offers may lead astray otherwise law 

abiding young men living in poverty, and 

motivate them to make false or exaggerated 

claims about their qualifications to serve as 

participants in the proposed venture—

including claims about prior criminal 
UNITED STATES V. SELLERS 21

experience that lack any substantial basis in 

truth.

Black, 750 F.3d at 1056 (Reinhardt, J., dissenting from the 

denial of rehearing en banc) (internal citation omitted).

Another serious problem with fictional stash house 

operations is that “the government has virtually unfettered 

ability to inflate the amount of drugs supposedly in the house 

and thereby obtain a greater sentence for the defendant.” 

United States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010). 

It is no coincidence that in reverse stings across the country, 

“the amount of the hypothetical cocaine to be stolen is 

always purported to exist in quantities exceeding five 

kilograms,” the amount that triggers a mandatory 10-year 

minimum sentence. Esterow, supra, at 29. In addition, 

targets “are often encouraged to bring items, such as guns, 

zip ties, or duct tape, that will not only serve as evidence of 

their intent to participate in the conspiracy, but will also 

allow the charging of additional crimes.” Eda Katharine 

Tinto, Undercover Policing, Overstated Culpability, 

34 Cardozo L. Rev. 1401, 1447–48 (2013).

Controlling the fictitious amount of drugs allows the 

government to enhance not only the target’s sentencing 

exposure but also the attractiveness of joining the conspiracy 

in the first place. See Hudson, 3 F. Supp. 3d at 786 (“[T]he 

Government must make the robbery scheme tempting 

enough to nab a potential criminal. The Government thus 

sets the drug amount at a level . . . that no poverty-ridden 

individual could pass up. . . . [T]his ruse is not meant to 

simply skim off those individuals likely to commit similar 

crimes; rather, it is designed to never fail.”). Similarly, the 

government can “minimize the obstacles that a defendant 

must overcome to obtain the drugs,” Briggs, 623 F.3d at 730, 
22 UNITED STATES V. SELLERS

such as by making the stash house guards insignificant in 

number or potency. “The ease with which the government 

can manipulate these factors makes us wary of such 

operations in general,” id., yet we continue to approve of 

them, no matter how egregious.

II.

The government’s stated rationale for stash house stings 

is to protect “normal” neighborhoods from the armed crime 

associated with the drug trade. A normal neighborhood, as 

the agent in this case explained, is a middle-class 

neighborhood without security bars on the doors and 

windows—in other words, safe and relatively affluent. Stash 

houses are often placed in such neighborhoods to avoid 

drawing the suspicion of law enforcement, and the risk of a 

stash house robbery endangers any “innocent family” living 

nearby.

Keeping neighborhoods safe from violent crime is 

laudable, but the benefits and burdens of stash house stings 

fall along racial lines. For reasons that transcend law 

enforcement, the comfortable neighborhoods being 

protected are overwhelmingly white. See, e.g., Steven 

Raphael & Melissa Sills, Urban Crime, Race, and the 

Criminal Justice System in the United States, in A 

Companion to Urban Economics 515, 516 (Richard J. Arnott 

& Daniel P. McMillen eds., 2006) (“[W]ithin large 

metropolitan areas, the residents of poor, largely minority 

neighborhoods suffer [from crime] disproportionately.”).

More troublingly, law enforcement agents—whether 

consciously or not—appear to primarily target racial 

minorities. Nationwide, “approximately 90% of the 

individuals currently imprisoned as a result of [a] . . . stash 

house sting are either African-American or Hispanic.” 
UNITED STATES V. SELLERS 23

Esterow, supra, at 31. This consequence naturally flows 

from operations conducted almost exclusively in minority 

neighborhoods. Here, for example, the agent acknowledged 

that he conducted stings in an area of Los Angeles that he 

considered to be “predominantly African American and 

Hispanic” rather than whiter and wealthier neighborhoods. 

As a result, in the agent’s cases that led to prosecutions, 

fewer than five of the roughly sixty defendants were white. 

“[A]ctions having foreseeable and anticipated disparate 

impact are relevant evidence to prove the ultimate fact, 

forbidden purpose.” Columbus Bd. of Ed. v. Penick, 

443 U.S. 449, 464 (1979).

In examining what constitutes evidence of 

discriminatory effect, there is a significant difference 

between selective enforcement and selective prosecution. 

To show that similarly situated individuals of other races 

were not prosecuted, a defendant would need to present 

evidence that individuals of other races were potentially 

liable for prosecution and that prosecutors knew this but did 

not act on it—a difficult but not impossible task. See

Armstrong, 517 U.S. at 470 (“For instance, respondents 

could have investigated whether similarly situated persons 

of other races were prosecuted by the State of California and 

were known to federal law enforcement officers, but were 

not prosecuted in federal court.”). Because prosecutors do 

not themselves investigate crimes, they are limited to 

prosecuting only individuals whom law enforcement agents 

have identified as probable criminals. Prosecutors’ 

discretion, though substantial, is finite.

Law enforcement agents, on the other hand, do not deal 

with a closed universe of criminal suspects. When 

conducting a reverse sting, literally anyone could be a target. 

See Black, 733 F.3d at 315 (Noonan, J., dissenting) (“In the 
24 UNITED STATES V. SELLERS

population of this country, there is an indefinite number of 

persons who dream of clever and unlawful schemes to make 

money. Does their dreamy amorality cast them all as fit 

candidates for a sting by their government?”). There is no 

reason to suspect that persons of a particular race are more 

likely to agree to commit a stash house robbery unless one 

believes that persons of that race are inherently more prone 

to committing violent crime for profit—a dangerously racist 

view that has no place in the law. If law enforcement agents 

target potential stash house robbers in a race-neutral way, 

then the racial breakdown of targeted individuals would 

presumably closely mirror that in the community. If it 

doesn’t, then that’s potentially indicative that the agents or 

their informants are using discriminatory procedures.

In Armstrong, the Supreme Court expressed concern 

with “the presumption that people of all races commit all

types of crimes” without considering “the premise that any 

type of crime is the exclusive province of any particular 

racial or ethnic group.” 517 U.S. at 469 (quoting United 

States v. Armstrong, 48 F.3d 1508, 1516–17 (9th Cir. 1995)). 

To support its assertion that some crimes are committed 

primarily by individuals of a particular race, the Court cited 

“presumably reliable statistics” showing the racial 

composition of convicted perpetrators of three crimes. Id. at 

469–70.

In the selective enforcement context, extrapolating the 

incidence by race of particular crimes (or, as here, the 

propensity to commit particular crimes) from conviction 

rates makes sense only if police investigate crime in a 

racially unbiased manner.3 But all too often that isn’t true. 

 3 In addition, the Court’s extrapolation assumed that the judicial 

system is unbiased. Yet it is well documented that defendants of color, 
UNITED STATES V. SELLERS 25

See, e.g., Emma Pierson et al., A large-scale analysis of 

racial disparities in police stops across the United States

(2017), https://5harad.com/papers/traffic-stops.pdf (finding 

that black drivers are stopped more often than white drivers 

relative to their share of the driving-age population, that 

blacks and Hispanics are more likely to be ticketed, 

searched, and arrested than similarly situated white drivers, 

and that blacks and Hispanics are searched on the basis of 

less evidence than whites).

We have found that “facially neutral policies ha[ving] a 

foreseeably disproportionate impact on an identifiable 

group” do not amount to an equal protection violation. Lee 

v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001), 

But I question whether conducting stash house operations 

almost exclusively in neighborhoods known to be black and 

Hispanic, and excluding neighborhoods known to be white, 

is in fact a “facially neutral” policy. See Washington v. 

Davis, 426 U.S. 229, 241 (1976) (“A prima facie case of 

discriminatory purpose may be proved . . . by the absence of 

[minorities] on a particular jury combined with the failure of 

the jury commissioners to be informed of eligible [minority] 

jurors in a community, or with racially non-neutral selection 

procedures.” (internal citations omitted)); cf. McCleskey v. 

Kemp, 481 U.S. 279, 294 (1987) (rejecting statistical 

evidence of racial disparity in death penalty sentences to

show discriminatory intent because “each particular decision 

to impose the death penalty is made by a petit jury selected 

 

African Americans in particular, are more likely to be convicted than 

similarly situated white defendants. See, e.g., Shamena Anwar et al., The 

Impact of Jury Race in Criminal Trials, 127 Q.J. Econ. 1017 (2012); 

Sheri Lynn Johnson, Black Innocence and the White Jury, 83 Mich. L. 

Rev. 1611 (1985).
26 UNITED STATES V. SELLERS

from a properly constituted venire”). Even if, for the sake of 

argument, stash house robberies are more likely to be 

committed by persons of color than by whites for reasons 

having nothing to do with race,4 limiting reverse stings to 

minority neighborhoods will still result in the systematic 

overrepresentation of minority targets.

For example, consider a region with a population that is 

two-thirds white and one-third minority and in which 

0.002% of minorities and 0.001% of whites commit stash 

house robberies. Although minorities in this fictitious region 

are twice as likely as whites to commit stash house robberies, 

there are twice as many whites as minorities in the 

population as a whole. Consequently, the region has equal 

numbers of minorities and whites who are stash house 

robbers. If law enforcement agents use race-neutral 

procedures to identify potential stash house robbers, then

half of the targets should be minorities and half should be 

whites. But if agents limit their sting operations to 

neighborhoods where minorities comprise 80% of the 

population, then eight minorities will be targeted for every 

white target.

 4 To be clear, I wholly reject the notion that persons of color are 

inherently more likely to commit certain crimes, i.e., that race or 

ethnicity is a causal factor. There may be causal factors that are 

correlated with race, leading to a higher incidence of perpetrators among 

certain races. For example, if poverty is a causal factor of stash house 

robberies and wealth is distributed unequally by race for unrelated 

reasons—such as a history of racial oppression—then, setting aside other 

causal factors, persons of races with a less-than-equal share of the 

community’s wealth will commit stash house robberies at a greater rate 

than persons of other races. Yet if the wealth inequality were remedied, 

then the racial disparity among stash house robbers would disappear.
UNITED STATES V. SELLERS 27

III.

Evidence that law enforcement agents or their 

confidential informants scoured disproportionately minority 

neighborhoods in search of stash house reverse sting targets 

is evidence of discriminatory effect. If the agents knew they 

were limiting their operations to minority neighborhoods 

and made no effort to stage operations elsewhere, without 

more, that’s also potentially indicative of discriminatory 

purpose. Whether this is enough evidence in this case to 

entitle Sellers to additional discovery is for the district court 

to resolve in the first instance.

Like many of my colleagues across the country, I am 

greatly disturbed by the government’s practice and, in 

particular, its disproportionate impact on people of color. 

The government’s use of stash house reverse stings warrants 

closer scrutiny.

GRABER, Circuit Judge, dissenting:

I respectfully dissent.1 In my view, we need not—and 

therefore should not—opine about the standard for obtaining 

discovery in selective enforcement cases because, under 

either a high or a low standard, Defendant’s evidentiary 

proffer is wanting as a matter of law.

 1 I concur in the memorandum disposition regarding the remaining 

claims.
28 UNITED STATES V. SELLERS

I

The district court denied Defendant’s motion for 

discovery on the claim of selective enforcement. We review 

that decision for abuse of discretion. United States v. 

Arenas-Ortiz, 339 F.3d 1066, 1069 (9th Cir. 2003). An error 

of law is, of course, one form of abuse of discretion. Koon 

v. United States, 518 U.S. 81, 100 (1996). But here, the 

district court relied on correct legal principles and did not 

otherwise commit an abuse of discretion.

I would assume, without deciding, that the high bar for 

obtaining discovery for a claim of selective prosecution, 

enunciated in United States v. Armstrong, 517 U.S. 456 

(1996), does not apply to a motion to obtain discovery for a 

claim of selective enforcement. That is, I would assume that 

some lesser level of proof is required in order to obtain 

discovery for a claim of selective enforcement, as the 

majority opinion now holds. The basic elements of the two 

types of claims—discriminatory effect and discriminatory 

intent—are the same, as we held in Lacey v. Maricopa 

County, 693 F.3d 896, 920 (9th Cir. 2012) (en banc); but a 

litigant need not prove entitlement to relief in order to obtain 

discovery. Rather, the question in each case is whether there 

is enough evidence before the court to suggest that further 

discovery is warranted. In both the prosecution and the 

enforcement contexts, as well as under general discovery 

principles, the court is not required to grant discovery with 

respect to a speculative claim. Rivera v. NIBCO, Inc., 

364 F.3d 1057, 1072 (9th Cir. 2004).

The district court denied the motion primarily on the 

ground that there was insufficient evidence of discriminatory 

effect to raise an inference justifying discovery, rejecting 

Defendant’s statistical proffer. The district court’s reasoning 

and result are correct. The Supreme Court has instructed—
UNITED STATES V. SELLERS 29

an instruction that we have followed—that raw statistics 

alone are not at all probative of discriminatory effect. That 

is, they are irrelevant.

2

In United States v. Bass, 536 U.S. 862 (2002) (per 

curiam), the defendant argued that the government had 

elected to seek the death penalty, rather than a lesser 

punishment, because of his race. In support of his request 

for discovery, the defendant presented nationwide statistics 

showing that the government charged African-Americans 

with death-eligible offenses more than twice as often as it 

charged whites with death-eligible offenses. Id. at 863. The 

Supreme Court held that those statistics did not entitle the 

defendant to discovery, not because the numbers were 

insufficiently probative to warrant further exploration but—

more categorically—because “raw statistics regarding 

overall charges say nothing about charges brought against 

similarly situated defendants.” Id. at 864 (first emphasis 

added). In other words, the raw statistics were not just 

unpersuasive; they were irrelevant.

We have treated similar statistical evidence the same 

way in cases both before and after Bass—cases that the 

district court cited in reaching the conclusion that 

Defendant’s evidence fell short. In United States v. Turner, 

104 F.3d 1180, 1184–85 (9th Cir. 1997), for example, we 

held that statistics pertaining to the number of overall 

convictions for crack cocaine charges brought against 

different groups did not entitle the defendants to discovery. 

 2 One can question the correctness of the Supreme Court’s holdings 

on this point, but it is hard to quarrel with their clarity. And, as a circuit 

court, “we are bound to follow a controlling Supreme Court precedent 

until it is explicitly overruled by that Court,” whether we agree with its 

reasoning or not. Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir. 

2011) (en banc).
30 UNITED STATES V. SELLERS

We relied on Armstrong, explaining that sheer numbers, 

without further evidence, “d[o] not advance a defense of 

selective prosecution.” Id. A few years later, in ArenasOrtiz, 339 F.3d at 1070, we explained similarly that raw 

statistics are probative only if paired with other evidence.

Those precedents, and Armstrong itself, do not teach 

simply that generalized statistical evidence is frowned on in 

this context. Nor do they teach that raw statistics are 

insufficient only in cases involving prosecutors. Rather, 

they stand for the principle that raw statistics concerning the 

racial makeup of a group of defendants (or, here, a group of 

suspects targeted by a law enforcement agency), without 

other evidence, are irrelevant to proving the existence of a 

discriminatory effect.

Given those precedents, I conclude that the district court 

correctly rejected Defendant’s evidence as insufficient to 

create an inference of discriminatory effect, because that 

evidence consisted only of non-comparative raw statistics. 

The evidence is insufficient whether we apply either a 

rigorous Armstrong standard or the more forgiving standard 

devised by the majority opinion. Because the statistics that 

Defendant presented “say nothing,” Bass, 536 U.S. at 864, 

they cannot, under any standard, entitle Defendant to 

demand discovery.

Moreover, it is possible for a defendant to find some 

comparative statistical information that would satisfy the 

Supreme Court’s requirements. In this case, for instance, the 

district court ordered production of the ATF manual insofar 

as it describes “how to determine which persons to pursue as 

potential targets.” Suppose that the manual states that agents 

should pursue people who have been convicted of 

distributing large quantities of heroin, or people who have 

been released from prison in the past six months after having 
UNITED STATES V. SELLERS 31

been incarcerated for robbery. In theory, at least, a 

defendant could ascertain who is in the universe of intended 

targets and determine whether there is disproportionate 

enforcement.

But even if practical considerations made it impossible 

to find such information, our precedent would not allow 

discovery. We considered and rejected just such a challenge 

in Arenas-Ortiz, 339 F.3d at 1070–71. There, the defendant 

argued that the district court had erred in denying his request 

for discovery because it would have been an “insuperable 

task” to produce the requisite evidence. Id. As we explained 

in rejecting that argument, “it is in the nature of a standard 

that there will be times when that standard cannot be met. 

Merely demonstrating that better evidence cannot be 

obtained without discovery does not suddenly render 

otherwise insufficient evidence sufficient.” Id. at 1071; see 

also Armstrong, 517 U.S. at 470 (rejecting this court’s 

concern about evidentiary obstacles that defendants would

face if required to produce evidence of differential treatment 

of similarly situated members of other races).

In summary, we need not decide whether the standard for 

obtaining discovery on a selective enforcement claim is 

more generous than Armstrong’s standard for a selective 

prosecution claim because the generalized evidence that 

Defendant offered is insufficient to raise any inference of 

discriminatory effect. The district court therefore 

permissibly denied discovery for that reason. Accordingly, 

the majority opinion is, at best, a gratuitous exercise and, at 

worst, an advisory opinion.

II

The majority opinion misconstrues Armstrong by 

conflating its two separate holdings. Nothing in the Court’s 
32 UNITED STATES V. SELLERS

discussion of the level of proof appropriate to a particular 

claim undercuts its holding that non-comparative statistical 

evidence is no proof at all.

In Armstrong, the Supreme Court reversed our circuit’s 

allowance of discovery in aid of a selective prosecution 

claim. To understand the Supreme Court’s decision in 

context, it is useful to begin with what we held and, thus, 

what the Supreme Court rejected.

Our court held en banc that a defendant who seeks 

discovery in connection with a claim of selective prosecution 

need only demonstrate a “colorable basis” for believing that 

wrongful discrimination took place. United States v. 

Armstrong, 48 F.3d 1508, 1510 (9th Cir. 1995) (en banc). 

The district court granted the defendants’ motion for 

discovery when the defendants presented a study showing 

that all 24 cases closed in 1991 and handled by the Federal 

Public Defender’s Office for the Central District of 

California, in which a particular drug crime was charged, 

involved African-American defendants. Id. at 1511. The 

district court ruled that the statistical data raised “a question 

about the motivation of the Government” sufficient to justify 

discovery to reveal the prosecutor’s “criteria” for bringing 

that and similar cases. Id. at 1512. We agreed, id. at 1515–

19, and emphasized that

statistical disparities alone may suffice to 

provide the evidence of discriminatory effect 

and intent that will establish a prima facie 

case of selective prosecution. . . . [W]e hold 

that inadequately explained evidence of a 

significant statistical disparity in the race of 

those prosecuted suffices to show the 

colorable basis of discriminatory intent and 
UNITED STATES V. SELLERS 33

effect that warrants discovery on a selective 

prosecution claim. 

Id. at 1513–14 (citations and footnote omitted). We 

expressly rejected a requirement for defendants “to compile 

facts which are not easily obtainable by them, such as the 

racial breakdown and offense characteristics of defendants 

represented by other counsel.” Id. at 1514. The concurring 

opinion stated that, at the discovery stage, only “some 

evidence, tending to show selective prosecution, is required. 

Where there is evidence of a large enough number of 

prosecutions directed at a single race over a sufficiently long 

period of time, eventually there becomes a point where that 

evidence is sufficient to establish a colorable basis of 

selective prosecution.” Id. at 1521 (Wallace, J., concurring). 

With respect to the role of prosecutors, we reasoned that the 

broad discretion they possess over charging decisions means 

that they may be the only source of information 

demonstrating discrimination, thereby justifying a generous 

standard for discovery. Id. at 1514 (majority).

In summary, we held: (1) Only a “colorable basis” for 

concluding that unlawful discrimination occurred is required 

to support discovery. One rationale for that standard 

(repeated by the majority opinion here, pp. 10–11) is that it 

may be hard for defendants to obtain information, which is 

largely in prosecutors’ hands. (2) Raw statistics, without 

comparative numbers, sufficed to demonstrate a “colorable 

basis.”

Against that backdrop, I read the Supreme Court’s 

decision to follow the same two-part structure. The Court 

first discussed the presumption that prosecutors discharge 

their official duties properly, but also reaffirmed that a 

prosecutor’s decision to pursue a case may not, under the 
34 UNITED STATES V. SELLERS

Equal Protection Clause, be based on race. Armstrong, 

517 U.S. at 463–66. Rather than supporting this court’s 

loose discovery standard, though, the role of the prosecutor 

justifies a high standard: “the showing necessary to obtain 

discovery should itself be a significant barrier to the 

litigation of insubstantial claims.” Id. at 464. The standard 

should be “rigorous” and can be described with a variety of 

phrases, including “substantial threshold showing.” Id. at 

468.

After establishing a standard, the Court went on to 

consider, second, whether the statistical information 

supplied by the defendants sufficed; the Court answered that 

separate question in the negative. The Court summarized its 

evidentiary holding as follows:

In this case we consider what evidence 

constitutes “some evidence tending to show 

the existence” of the discriminatory effect 

element. The Court of Appeals held that a 

defendant may establish a colorable basis for 

discriminatory effect without evidence that 

the Government has failed to prosecute 

others who are similarly situated to the 

defendant. We think it was mistaken in this 

view. The vast majority of the Courts of 

Appeals require the defendant to produce 

some evidence that similarly situated 

defendants of other races could have been 

prosecuted, but were not, and this 

requirement is consistent with our equal 

protection case law. As the three-judge panel 

explained, “‘[s]elective prosecution’ implies 

that a selection has taken place.”
UNITED STATES V. SELLERS 35

The Court of Appeals reached its decision 

in part because it started “with the 

presumption that people of all races commit 

all types of crimes—not with the premise that 

any type of crime is the exclusive province of 

any particular racial or ethnic group.” It cited 

no authority for this proposition, which 

seems contradicted by the most recent 

statistics of the United States Sentencing 

Commission. . . . Presumptions at war with 

presumably reliable statistics have no proper 

place in the analysis of this issue.

Id. at 469–70 (citations omitted); see also id. at 465 (“To 

establish a discriminatory effect in a race case, the claimant 

must show that similarly situated individuals of a different 

race were not prosecuted.” (emphasis added)); id. at 467 

(“[The defendants] urge that cases such as Batson v. 

Kentucky, 476 U.S. 79 (1986), and Hunter v. Underwood, 

471 U.S. 222 (1985), cut against any absolute requirement 

that there be a showing of failure to prosecute similarly 

situated individuals. We disagree.”).

Turning to the statistics that the defendants offered to the 

district court, the Court concluded that their “‘study’ did not 

constitute ‘some evidence tending to show the existence of 

the essential elements of’ a selective-prosecution claim. The 

study failed to identify individuals who were not black and 

could have been prosecuted for the offenses for which [the 

defendants] were charged, but were not so prosecuted.” Id. 

at 470 (citations omitted).

In short, the Supreme Court in Armstrong held: (1) To 

justify discovery concerning a claim of selective 

prosecution, a defendant must present some evidence 
36 UNITED STATES V. SELLERS

tending to show a discriminatory effect and a discriminatory 

purpose. One rationale for that rigorous standard is the 

presumption that prosecutors perform their duties properly. 

(2) Raw statistics, without comparative numbers, are 

inadequate as a matter of law to permit an inference of 

discriminatory effect.

Thus, Armstrong contains two distinct holdings. The 

first sets a standard for how persuasive a litigant’s showing 

must be to justify discovery. The second rejects, 

categorically, the relevance of raw statistics. Ratcheting the 

standard up or down has no bearing on the separate, second 

holding, which rests not on the nature of prosecutors, as the 

majority opinion avers, pp. 10, 15–16, but on the nature of 

evidence that the Court deemed irrelevant. And it is entirely 

clear from the Court’s discussion that the second, 

evidentiary point (including the requirement to produce 

comparative information) applies to all equal protection 

claims. Armstrong, 517 U.S. at 465–68.

III

Finally, the majority writes that, even if my dissenting 

opinion is correct in concluding that Defendant presented no 

evidence of discriminatory effect, “evidence of 

discriminatory intent may be enough to warrant discovery.” 

Maj. op. at 16. Whatever other function that suggestion 

serves, it cannot justify discovery here because there is no 

evidence of discriminatory intent, either.

As the district court accurately observed, Defendant 

offered no independent evidence of discriminatory intent. 

Rather, Defendant asserted that the ATF’s adoption of 

policies that had a discriminatory effect necessarily 

demonstrated a racial animus. Given the absence of legally 
UNITED STATES V. SELLERS 37

sufficient evidence of discriminatory effect, this 

bootstrapping attempt fails.

Indeed, the record contradicts a claim of subjective 

discriminatory purpose on the government’s part with 

respect to Defendant. ATF agents testified that they pursued 

violent offenders with experience in the drug trade. More 

importantly, the government’s enforcement effort did not 

target Defendant at all. Instead, a co-conspirator recruited 

him into the conspiracy.

For the foregoing reasons, I respectfully dissent.