906 F.3d 848

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.
While these operations do "not ... reduc[e] the actual flow of drugs," 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.
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 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 co-conspirators 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 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, 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." 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, 99 S.Ct. 2941, 61 L.Ed.2d 666 (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, 116 S.Ct. 1480 ("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 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, 116 S.Ct. 1480 (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, 116 S.Ct. 1480.
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. But all too often that isn't true. 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, 96 S.Ct. 2040, 48 L.Ed.2d 597 (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, 107 S.Ct. 1756, 95 L.Ed.2d 262 (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 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, 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.
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.
I concur in the memorandum disposition regarding the remaining claims.
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).
In addition, the Court's extrapolation assumed that the judicial system is unbiased. Yet it is well documented that defendants of color, 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).
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.

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