Interesting lineup in this case. Which is the only one published by the Ninth Circuit today.
Everyone's skeptical of reverse sting stash house cases. Everyone. Those cases are ones in which the government recruits someone (typically, a criminal) to convince a group of other criminals (the future defendants) to raid a fake stash house and steal some drugs from some other fake criminals. There's no real stash house, no real drugs, and no other real criminals. But the theory is that it makes people less hesitant -- in other circumstances -- to steal from actual stash houses since there's at least some chance that they're simply being set up by the government.
No one on the panel especially likes those cases. They disproportionately target minorities. They "set up" crimes that wouldn't otherwise happen. Lots of other reasons as well. All of which are explored at length in the various opinions.
But the different panel members nonetheless have different takes.
Judge Reinhardt was originally on the panel, but died three weeks after the oral argument. Just from knowing the guy, you've got a pretty good sense of where he almost certainly stood on this stuff. To the left, for sure. No doubt.
Judge Nguyen writes the majority opinion. Plus she writes a lengthy concurrence to her own opinion. She's crystal clear on where she stands as well. Doesn't like these kinds of cases. For a plethora of reasons. Her majority opinion makes it clear that it's hard to bring selective enforcement claims in these types of cases -- claims that argue that minorities are unfairly targeted -- but follows opinions from the Third and Seventh Circuits that says that the correct standard for permissible discovery over such claims is different from the Ninth Circuit's standard for bringing selective prosecution claims, so remands for application of the correct test. Sounds right to me.
Judge Graber dissents. She was drawn to replace Judge Reinhardt. She doesn't say that Judge Nguyen's necessarily wrong that a different standard applies -- though she doesn't say she's right, either. Judge Graber simply doesn't want to decide the issue one way or another, arguing that the defendant's evidence in the present case indisputably doesn't satisfy any standard since it only consists of statistics, which Judge Graber believes are categorically "irrelevant" under controlling Supreme Court precedent.
Personally, I'm not sure what harm it does to reverse and remand for application of the correct legal standard. Even if, on remand, the defendant's statistics may not be sufficient to meet the new test.
But Judge Graber thinks we're deciding something that we don't need to decide. Ergo the dissent.
The subtext of Judge Graber's argument is essentially that there's no way that a defendant will ever be able to prove selective enforcement/prosecution. Which, as a practical matter, may be correct. If you take the view that statistics are entirely irrelevant, short of the government putting pen to paper and saying "Make sure you target minorities for these sorts of things" -- which ain't gonna happen -- you are pretty much always going to come up short. No proof, and probably no discovery even either.
But Judge Nguyen thinks it still makes sense to articulate the correct standard, and let the district court decide whether that standard is met here. That is how we usually -- but by no means always -- do things in the Court of Appeals.
Just a little fight here about which type of adjudication is most appropriate in the present case.
