Appeals Court Judge Tears Into ATF's Life-Wrecking, Discriminatory Stash House Stings

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The ATF's stash house stings are one of the worst things about federal law enforcement. And it's a crowded field! Sure, the FBI routinely engages in something approaching entrapment when it turns people with self-esteem problems and/or serious mental health issues into terrorists. But the FBI can't tell a judge how much terrorism to charge defendants with. The ATF stings -- involving imaginary drugs hidden in fictitious stash houses -- give the government the ability to trigger mandatory minimum sentences simply by claiming the fake stash of drugs was more than five kilos -- automatically setting up defendants for 20-year prison terms.

Another victim of the ATF's stash house stings is fighting his conviction in court. Daryle Lamont Sellers hopes to prove the ATF's stash house stings are racially-biased. There's some evidence this is the case. Researchers found sting operations in Chicago netted a disproportionate number of minority suspects. A review of hundreds of court cases by the USA Today showed the ATF targeted minorities 91% of the time.

Sellers says the ATF is engaging in selective enforcement. To do that, he needs information the ATF has on hand, but is refusing to hand over. The Ninth Circuit Appeals Court has declared Sellers should have access to this information because the claim he's making isn't the same as selective prosecution, which requires Sellers to show more than he has in this case. From the decision [PDF]:

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).

This is good news for Sellers. And it's potentially good news for others roped in by ATF stings. If he obtains information showing discriminatory motivation, minority suspects are going to have another way to fight these charges in court.

But the entire opinion is worth reading past the opening declaration in favor of Sellers. Judge Jacqueline Nguyen tees off on the ATF in her concurring opinion, pointing out biased enforcement is only a small part of stash house sting operations' problems.

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.

She goes on to point out the government outsources the target selection to informants -- ones who have their own interests to serve and protect. This makes it clear the ATF is searching for dangerous criminals to talk into fake stash house robberies. It's more than willing to take whoever -- which more often than not is a minority with no history of violent crime or armed robbery. From there, the government gets to decide how many years of a suspect's life it's willing to try to take away. Invariably, every fake drug stash is large enough to demand 20-year minimum sentences.

Then she gets right to the heart of the matter: of course the ATF's sting operations are racially-biased. They're based on a bunch of lies, which gives the ATF the opportunity to pick anyone as its fall guy. But the agency always seems to end up arresting the same sort of people.

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.

This is what the ATF does dozens of times a year. It takes fake drugs and fake stash houses and turns them into real prison sentences. And, so far, it's been getting away with it. But it sounds like courts are beginning to tire of locking people up for unwittingly engaging in the ATF's charades. At some point, this will all come crashing down on the feds, but until then dangerous criminals will continue to walk the streets while down-on-their-luck nobodies serve their prison terms for them.

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Detailed And Thorough Debunking Of Bloomberg's Sketchy Story About Supply Chain Hack

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Last week we noted that the general consensus at this point is that Bloomberg screwed up its story about a supposed supply chain hack, in which it was claimed that Chinese spies hacked Supermicro chips that were destined for Apple and Amazon. Basically everyone is loudly denying the story, and many are raising questions about it. In our comments, some of you still seemed to want to believe the article, and argued (without any evidence) that the US and UK governments, along with Amazon and Apple, were flat out lying about all of this. I pointed out a few times that that's not how things work. Also untrue is the idea that many floated that the US government was forcing Apple and Amazon to lie. That also is not how things work (for those who don't believe this, please check your First Amendment case history).Anyway, over at Serve the Home, Patrick Kennedy has one of the most thorough and comprehensive debunkings of the Bloomberg story, detailing how incredibly implausible the story is. Kennedy's write-up is very detailed, including lots of pictures and detailed drawings of how networks are set up. Here's just a little snippet as an example:

The next inaccuracy to this paragraph is the line describing BMCs as giving them access to the most sensitive code even on machines that have crashed or are turned off. That is not how this technology works.Baseboard management controllers or BMCs are active on crashed or turned off servers. They allow one to, for example, power cycle servers remotely. If you read our piece Explaining the Baseboard Management Controller or BMC in Servers BMCs are superchips. They replace a physical administrator working on a server in a data center for most tasks other than physical service (e.g. changing failed hard drives.)At the same time, the sensitive data on a system is in the main server complex, not the BMC. When the BMC is powered on, hard drives, solid state drives, the server's CPU (for decrypting data) and memory are not turned on. If you read our embedded systems reviews, such as the Supermicro A2SDi-16C-HLN4F 16-core Intel Atom C3955 mITX Motherboard Review, we actually publish power figures for when a system is on versus when the BMC only is active. In that review, the BMC powered on utilizes 4.9W of power. SSDs each have idle power consumption generally above 1W and hard drives use considerably more even at idle. The point here is that when the server's BMC is turned on, and the server is powered off, it is trivially easy to measure that the attached storage is not powered on and accessible.When a server is powered off it is not possible to access a server's most sensitive code. OS boot devices are powered off. Local storage is powered off for the main server. Further encrypted sensitive code pushed from network storage is not accessible, and a BMC would not authenticate.This line from the Bloomberg is technically inaccurate because a powered off server's storage with its sensitive code has no power and cannot be accessed.

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