United States v. Brown (299 F. Supp. 3d 976, 2018)

Chief Judge Rubén Castillo

Since 2006, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the "ATF") has engaged in sting operations wherein undercover agents present individuals in this District with an opportunity to rob a fictitious drug stash house. See generally United States v. Mayfield , 771 F.3d 417, 419-24 (7th Cir. 2014) ; United States v. Lewis , 641 F.3d 773, 777 (7th Cir. 2011). These two long-pending consolidated criminal cases, which are part of what is commonly referred to as the "false stash house cases," have served to undermine legitimate law enforcement efforts in this country. It is undisputed that between 2006 and 2013, the defendants charged in this District in the ATF false stash house cases were 78.7 black, 9.6 percent Hispanic, and 11.7 percent white. During this same period, the District's adult population was approximately 18 percent black, 11 percent Hispanic, and 63 percent white. These numbers generate great disrespect for law enforcement efforts. Disrespect for the law simply cannot be tolerated during these difficult times. It is time for these false stash house cases to end and be relegated to the dark corridors of our past. To put it simply, our criminal justice system should not tolerate false stash house cases in 2018.

No one feels stronger than this Court about the problems this District has continuously had with firearm violence. During this Court's three decades of public service, it has consistently pointed out and stressed the deadly toll firearms have taken in Chicago and throughout the country. In fact, during this Court's 11 years of service on the United States Sentencing Commission, it strongly advocated for and accomplished the strengthening of penalties for firearm trafficking.

This Court understands that dedicated federal agents, who often place themselves in life-risking situations, sincerely believed that they would recover deadly firearms from the violent streets of our District in these stash house sting operations. However, to paraphrase Supreme Court Justice Louis Brandeis, to declare that in the administration of the criminal law "the end justifies the means" is to declare that the government may violate fundamental principles of common fairness to secure the conviction of an alleged criminal. See Olmstead v. United States , 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). That is not where our criminal law should be in 2018. Our society simply cannot accept a "win at all costs" mentality in the delicate world of criminal law enforcement, which is ultimately dependent on proactive citizen involvement.

Our nation's current tragic pattern of weapons violence does not justify the problematic consequences presented by the government's use of false stash house cases as an investigative technique. The answer to our nation's current tragic pattern of weapons violence lies in stricter firearms regulations, especially with respect to automatic, multi-round weapons, and traditional law enforcement investigative techniques. The Court is mindful that this city just passed the 89th anniversary of the infamous St. Valentine's Day massacre, which killed seven Chicagoans with automatic weapon fire. Yet, even during the low points of the great violence caused by the alcohol wars of Prohibition, the ATF did not seek to use "false alcohol warehouse" tactics against any ethnic organized crime groups to promote public safety. Instead, the ATF used solid investigative work to garner the great public respect of the Elliot Ness era that still lives today as the gold standard of law enforcement. This type of work inspires great public cooperation with law enforcement, unlike the false drug stash house cases before the Court.

The problems with the false stash house cases start at the beginning and do not get any better at the end. The typical false stash house case commences with the recruitment of a confidential informant (or "CI"). Most of the time these are individuals with criminal justice problems. In today's world, they tend to be black or Hispanic-two groups that unfortunately dominate both our federal and local American criminal justice systems. These principally minority confidential informants are told by federal agents to tell their friends and associates that there are places with a large quantity of drugs that can be robbed. The hope is that the informants will organize robbery crews that will result in significant arrests of violent criminals and seizure of weapons. Sometimes these cases work out in that fashion.

However, all too often, the government's lucrative trap attracts potential defendants with minor criminal records who might otherwise have never attempted a fictitious crime of this nature. It is no surprise that many of these potential defendants with minor criminal records are also minorities, like their so-called confidential informant friends and associates. At the end, many of these defendants face sentencing guideline ranges that have been significantly inflated by the government's false drug house scenarios. See United States v. Washington , 869 F.3d 193, 222-23 (3d Cir. 2017), cert denied. , --- U.S. ----, 138 S.Ct. 713, 199 L.Ed.2d 582 (2018) (remanding for potential post-judgment discovery to challenge a 264-month sentence in fictitious cocaine robbery scenario that triggered a very real 20-year mandatory minimum sentence). The Washington case in particular is representative of a broad point of view held by judges who are held in high esteem by this Court. For example, Judge Theodore McKee, the former Chief Judge of the U.S. Court of Appeals for the Third Circuit, has pointedly noted that "the potential for abuse and mischief that is endemic to fictitious stash-house stings should not be ignored." Id. at 223 (collecting cases). Judge McKee specifically noted that "[a]s is all too often the case, not only do stash-house stings risk ensnaring those who might otherwise not have committed crimes, but also the resulting convictions regularly give rise to particularly dubious applications of the Sentencing Guidelines and mandatory minimum sentences." Id. at 226.

The inherent problems of this District's false stash house cases must be seen through the lens of our country's sad history of racism. Every time our country's law enforcement system can be perceived as contributing to that sad history, our justice system suffers and needlessly alienates minority communities who no longer wish to come forward as witnesses or victims. This Court spent more than ten years working as a member of the United States Sentencing Commission before it could reduce the needless disparity between the penalties for crack and powder cocaine, which were correctly revised because they were perceived as discriminatory toward black defendants. This country cannot afford such self-inflicted wounds in light of its sad history of racism. Viewed in this context, the false stash house cases are no different than the extraordinary powder/crack sentencing disparities that previously existed.

In these two cases, Defendants move to dismiss the indictments filed against them on grounds of racial profiling, arguing that ATF wrongfully targeted black and Hispanic individuals for participation in the stings. (United States v. Brown ("Brown "), No. 12 CR 632, R. 518; United States v. Williams ("Williams "), No. 12 CR 887, R. 338.) These cases are deeply troubling and are emblematic of problems that have plagued our criminal justice system for decades. As this Court recognized nearly two decades ago, "[r]acial profiling of any kind is anathema to our criminal justice system because it eviscerates the core integrity that is necessary to operate that system effectively in our diverse democracy." Martinez v. Vill. of Mt. Prospect , 92 F.Supp.2d 780, 782 (N.D. Ill. 2000). These words carry as much force today as they did nearly two decades ago.

These sting operations have used tremendous public resources to investigate and prosecute a large number of principally minority individuals for fictitious crimes. "In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth, it is especially curious that 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). Over and over again, these "tawdry" stings have been "directed at unsophisticated, and perhaps desperate defendants ... who easily take the all-too-tempting bait put out for them by the government." United States v. Conley , 875 F.3d 391, 402-03 (7th Cir. 2017) (citations and internal quotation marks omitted).

Like our colleague in the U.S. Court of Appeals for the Sixth Circuit, this Court finds "the concept of these stash house sting operations at odds with the pride we take in presenting American criminal justice as a system that treats defendants fairly and equally under the law." United States v. Flowers , 712 Fed.Appx. 492, 511, 2017 WL 4785960, at *15 (6th Cir. 2017) (Stranch, J., concurring). It is unclear to the Court why, with all the tactics available to them, federal law enforcement agents would adopt a narrative tinged with racial overtones to conduct sting operations involving serious federal charges. Even if law enforcement agents stay on the right side of the line, this is dangerous territory. It hardly needs to be stated that agents of the federal government should not be injecting the issue of race into their criminal investigations in any way, shape, or form.

Fortunately for the government, the question before this Court is not whether the practices used in these sting operations are honorable or fair. Instead, the sole question presented to the Court in these cases is whether law enforcement agents violated the Due Process Clause of the Fifth Amendment in pursuing these investigations. At first blush, the evidence submitted by Defendants-including the sheer number of non-white individuals prosecuted as a result of the sting operations-presents troublesome indicia of discrimination. But this Court is not permitted to simply accept matters at first blush. The Court must dig deeper to test the reliability and weight of the evidence that has been submitted. In doing so, the Court concludes that Defendants have failed to meet the heavy burden that currently must be satisfied to obtain dismissal of a federal criminal indictment. Therefore, the motions to dismiss must be reluctantly denied.

BACKGROUND

"According to the standard ATF script for the [stash house] sting, a fictional drug courier was disgruntled with his organization and wanted to rob one of its stash houses. [The target of the investigation] was to meet with the courier to discuss logistics, then recruit a crew, gather weapons, and help the courier carry out the robbery." Mayfield , 771 F.3d at 421. As a result of the sting operations, a host of defendants in this District and elsewhere have been convicted of "conspiring to distribute cocaine that didn't actually exist-cocaine they planned to liberate from a fictional stash house guarded by members of an imaginary Mexican cartel." Lewis , 641 F.3d at 777. "Though it might seem odd, the fact that the stash house, the drugs-and indeed the whole plot-was fake is irrelevant," because "[t]he crime of conspiracy is the agreement itself[.]" United States v. Corson , 579 F.3d 804, 810 (7th Cir. 2009).

These sting operations have withstood a number of challenges in the courts, including in the U.S. Court of Appeals for the Seventh Circuit. See, e.g., Conley , 875 F.3d at 400-01 (upholding conviction arising from fictitious stash house sting even though the evidence against the defendant was "meager," where evidence showed that the defendant had attended one meeting where co-conspirators outlined their plan to rob the stash house, including the need to bring firearms); Flowers , 712 Fed.Appx. at 496-98, 2017 WL 4785960, at *3 (rejecting defendant's argument that ATF agents engaged in outrageous conduct by "luring the impoverished ... defendants" into committing a fictitious stash house robbery); United States v. Dunlap , 593 Fed.Appx. 619, 621 (9th Cir. 2014) (holding that ATF agents' actions in conducting stash house sting operation did not "violate fundamental fairness or shock the universal sense of justice" so as to warrant dismissal of the indictment); United States v. Blitch , 773 F.3d 837, 845 (7th Cir. 2014) ("Where the government does nothing more than make a stash house robbery available, there is no inducement under the law of entrapment.").

But at the same time, the stings have "drawn criticism in news reporting, scholarly writing, and from the judiciary." Flowers , 712 Fed.Appx. at 509, 2017 WL 4785960, at *14 (Stranch, J., concurring); see also Conley , 875 F.3d at 402 (noting the "substantial body of criticism of ... stash house cases both from this circuit and others"). ATF protocols provide that the stings, referred to within the agency as "home invasion investigations," are intended to "concentrate on identifying persons and infiltrating groups that collectively and/or as a community focus their criminal activities on executing robberies, by means of force, for personal gain." (Brown , R. 511-2, ATF Order at 3.) Agents conducting the stings are directed to "target persons who show a propensity of doing harm to the public through violent behavior/armed robberies and whose activities have been documented either through criminal history, criminal reputation, or self-incrimination." (Id. ) But critics have noted that the 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." Flowers , 712 Fed.Appx. at 509, 2017 WL 4785960, at *14 (citation omitted). As is the case here, many of those caught in the snare are individuals living in low-income minority communities.

I. The Brown investigation

The events underlying the Brown case began in April 2012, when Chicago ATF agents began a firearms investigation in Chicago's Englewood neighborhood. (Brown , R. 555-1, Report of Investig. at 144.) According to the complaint, between April and August 2012, a confidential informant working with the ATF purchased more than 20 firearms from Dwaine Jones in a series of controlled buys. (Id. , R. 1, Compl. ¶ 5; id. , R. 555-1, Report of Investig. at 144.) Jones was known to associate with the Gangster Disciples, a "violent street gang" in Chicago. United States v. Ellis , 622 F.3d 784, 788 (7th Cir. 2010) ; see also United States v. Smith , 223 F.3d 554, 560-61 (7th Cir. 2000) (describing the history of the Gangster Disciples street gang, which "operated a massive drug distribution business in the Chicago area"). He had no prior felony convictions but had arrests for assault, aggravated battery, and theft. (Brown , R. 511-5, Takedown Mem. at 95.)

In July 2012, the confidential informant reported to ATF agents that, during an unrecorded conversation, Jones raised the possibility of committing an armed robbery and asked the informant whether he knew about any good targets. (Id. , R. 1, Compl. ¶ 5.) During a controlled buy with Jones in Englewood the following day in which he sold the informant another firearm, the informant, working at the instruction of ATF agents, told Jones about a fictitious stash house that could be robbed. (Id. ¶ 6; Id. , R. 555-1, Tr. at 153-54.) Jones responded that he knew some men who could commit the robbery. (Id. ; R. 1, Compl. ¶ 6.) During another controlled buy a few days later, Jones told the informant that he had "told a couple o' my guys" about the stash house and that they were interested in committing the robbery. (Id. , R. 555-1, Tr. at 164.)

Later that same month, the informant introduced Jones to the undercover agent, Dave Gomez, who was posing as a disgruntled courier for a drug cartel. (Id. , R. 1, Compl. ¶ 8.) During a recorded conversation, Agent Gomez told Jones that he was looking for a "professional crew" to rob twenty kilograms or more of cocaine from a stash house that was guarded by three men with guns. (Id. , R. 1, Compl. ¶ 8; id. , R. 555-1, Tr. at 184, 186, 190.) Jones said that he had not personally committed an armed robbery, but that, in his words, the people that "I hang with, they done this shit before." (Id. , R. 555-1, Tr. at 184.) Jones told Agent Gomez he would bring him three or four men. (Id. at 192-93.) Jones also mentioned during this meeting that the police were looking for him and his "guys" because they had recently committed a shooting and had accidentally shot and severely injured an innocent bystander. (Id. at 177-78.)

The next day, Jones brought Abraham Brown and Kenneth Taylor to meet with Agent Gomez. (Id. , R. 1, Compl. ¶ 10; Gov't's Ex. 4E, Tr. at 21-66.) ATF records show that both Brown and Taylor were affiliated with the Gangster Disciples street gang. (Id. , R. 555-1, Records at 228.) Brown's criminal history included convictions for attempted armed robbery, residential burglary, and aggravated unlawful restraint. (Id. , R. 1, Compl. ¶ 12 n.4; id. , R. 511-5, Takedown Mem. at 96.) Taylor's criminal history included convictions for a drug offense and for possessing a firearm after a felony conviction. (Id. , R. 1., Compl. ¶ 12 n.5.) After Jones introduced Brown and Taylor to Agent Gomez, Jones left the meeting. (Gov't's Ex. 4E, Tr. at 22.) Agent Gomez then explained the robbery scenario, and asked Brown and Taylor if they had committed a robbery before. (Id. at 23-26.) Taylor replied, "That's what I do," and explained that he did not rob people on the street, but always committed robberies in houses. (Id. at 29.) Brown explained that the first time he went to prison was for an armed robbery, stating, "[T]hat['s] what I do," and later stated, "I'm a burglar too." (Id. at 26-27, 57.) Brown also stated that he had previously robbed a drug dealer of "a brick," or kilogram, of cocaine. (Id. at 53.)

Taylor stated that he had previously committed a home invasion robbery and had stolen drugs, guns, and money. (Id. ) Taylor also stated that he had committed robberies in Chicago with a group of "my other guys," and had gotten "half o' bricks." (Id. at 53.) Brown stated that, if necessary, they would "eliminate" everyone inside the stash house. (Id. at 29.)

On August 1, 2012, Brown, Taylor, and Jones met Agent Gomez again, this time with another crew member Brown had recruited, later identified as Alfred Washington. (Id. , R. 1, Compl. ¶ 15.) Law enforcement records show that Washington was also affiliated with the Gangster Disciples street gang, and that he had a prior drug conviction. (Id. , R. 555-1, Records at 230; id. , R. 1, Compl. ¶ 15 n.6.) During the meeting, Brown informed Agent Gomez that he and the other men were "all family," and that to support themselves they "do the crime shit." (Id. , R. 555-1, Tr. at 354-55.) Brown stated that he regularly robbed "cribs and shit," but that he had not done a "lick"-or armed robbery-since the prior year, because in his words, "I only try to do big scores." (Id. at 259.) Brown and Washington also discussed home invasion robberies they had committed together. (Id. at 260.) Brown stated that committing robberies was "how we eat." (Id. at 261.) Later in the conversation, Brown and Washington discussed a home invasion robbery they had recently committed with Brown's cousin, later identified as Christopher Davis, who they said was skilled at bypassing home alarm systems. (Id. at 279-80.) The men then discussed further details of the stash house robbery, including a plan by Brown to pose as police officers to confuse the cartel members. (Id. at 281-87.) Brown stated that if things got "ugly" the cartel members would be "permanently sleepin'." (Id. at 288.) Brown stated that he already had a buyer lined up to purchase "at least" 10-15 kilograms of the cocaine they expected to obtain from the robbery. (Id. at 248.)

On August 14, 2012, Brown, Taylor, Washington, and Jones met Agent Gomez at a prearranged location so that they could commit the robbery. (Id. , R. 1, Compl. ¶¶ 24, 26.) Brown brought a fifth crew member, Davis, who was Brown's cousin. (Id. ¶ 26; id. , R. 555-1, Tr. at 397-98.) Law enforcement records show that Davis was also known to affiliate with the Gangster Disciples and had convictions for burglary, residential burglary, and drug possession. (Id. , R. 1, Compl. ¶ 26 n.7.) During the meeting, Brown stated, "We got a hell of a crew," adding, "I don't know if I can even put this same crew together again, so I'm hopin' that it do go down today." (Id. , R. 555-1, Tr. at 381.) Brown, Taylor, and Washington told Agent Gomez that they had brought a total of three guns, "two handguns ... and one big one," which were stored in Jones's van. (Id. , R. 555-1, Tr. at 417.) Shortly thereafter, agents arrived and arrested the men. (Id. , R. 1, Compl. ¶ 28.) Inside Jones's van, agents found two loaded 9-millimeter handguns, a sawed-off shotgun, masks, and zip ties. (Id. ¶ 29.)

As a result of these events, Brown, Taylor, Washington, Jones, and Davis were charged with conspiracy, attempt to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), and possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). (Id. , R. 45, Indictment.) Jones has since pled guilty to two counts of the indictment in exchange for a plea agreement. (Id. , R. 115, Min. Entry; id. , R. 116, Plea Agreement.) The charges against the other Brown Defendants remain pending.

II. The Williams Investigation

The events underlying the Williams case began in the fall of 2012, when ATF agents from around the country came to Chicago as part of a law enforcement "surge" targeting Chicago neighborhoods that were experiencing a rash of violent crime. (Williams , R. 354-1, Gov't's Disc. Resps. at 43-44, 52; Brown , R. 511-5, Takedown Mem. at 111, 130.) The Williams investigation focused on an area near East 63rd Street and South Martin Luther King Drive on Chicago's south side. (Id. , R. 354-1, Gov't's Disc. Resps. at 43-44 & n.1.) In November 2012, a confidential informant working with the ATF brought agents information about a man he knew as "Tweet." (Id. , R. 1, Compl. ¶ 8; id. , R. 354-1, Report of Investig. at 462.) According to the informant, "Tweet" had spoken to the informant earlier in the day (during an unrecorded conversation) and had discussed armed robberies he had recently committed, and had expressed an interest in conducting more robberies. (Id. , R. 1, Compl. ¶ 8; id. , R. 354-1, Report of Investig. at 462.) Working at the direction of ATF, the informant told "Tweet" that he had an associate with information about a potential robbery of narcotics. (Id. , R. 354-1, Report of Investig. at 462.) ATF agents used law enforcement databases to identify "Tweet" as Antonio Williams. (Id. ) Law enforcement records showed that Williams was known to affiliate with the Gangster Disciples and had five felony convictions, including convictions for aggravated assault with a deadly weapon and unlawful use of a weapon following a felony conviction, as well as an arrest for drug trafficking. (Id. ; id. , R. 332-5, Takedown Mem. at 126.)

On November 7, 2012, ATF Agent Carl Valles, posing as a disgruntled drug courier, met with Williams at 63rd and King Drive. (Id. , R. 354-1, Tr. at 464-71.) At the beginning of the conversation, Agent Valles asked Williams, "you ready to do this lick?" Williams replied, "Hell yea[h]." (Id. at 465.) Agent Valles asked, "You gotta crew," and Williams responded, "Yea, they right there, right now," as they all lived in the immediate area. (Id. at 466.) After Agent Valles explained that the robbery would target a cartel stash house containing eight to ten kilograms of cocaine and guarded by two men with guns, Williams responded that he had "guns like a motherfucker," including "AK's" and "AR-15's" and that if necessary, he would "come to the door shoo[t]in'." (Id. ) Williams said he had a group available to do the robbery, which included his uncle and others he knew from the area. (Id. at 466-68.) Williams described the robbery opportunity as "beautiful" and told Agent Valles that "it [was] an honor" to be involved. (Id. at 467.) At the end of the conversation, the two agreed to meet soon with other members of the robbery crew. (Id. at 470.)

On November 12, 2012, Agent Valles met with Williams and his uncle, who agents later identified as John Hummons.

(Id. , R. 1, Compl. ¶ 40; id. , R. 354-1, Tr. at 473-90.) During the meeting, the men discussed the details of how they would carry out the robbery, and Hummons told Agent Valles, "I like doin' this shit ... we can just get rich." (Id. , R. 354-1, Tr. at 476-86.) A third man had driven Williams and Hummons to the meeting, and Hummons explained that this third man would act as the driver during the robbery. (Id. at 488-89; id. , R. 1, Compl. ¶ 40.) Agent Valles asked to speak to the driver, later identified as Howard Lee, but Williams and Hummons said that they would explain the details of the robbery to him so that there was no need for him to meet Agent Valles. (Id. , R. 354-1, Tr. at 488.)

On November 14, 2012, Lee drove Williams and Hummons to meet Agent Valles and a second undercover ATF agent so that the men could commit the robbery. (R. 1, Compl. ¶¶ 52-54; id. , R. 354-1, Tr. at 495-510.) The second undercover agent spoke to Lee and confirmed that he understood the details of the robbery. (Id. , R. 354-1, Tr. at 496-97.) Hummons, Lee, and Williams all confirmed that they were ready to commit the robbery, with Hummons adding, "If you guys wanna go now, I'll do it my motha' fuckin' self." (Id. at 496.) Shortly thereafter, agents arrived and arrested the men. (Id. , R. 1, Compl. ¶ 64; id. , R. 2, Min. Entry.) A search of Lee's car revealed a 9-millimeter semi-automatic handgun loaded with 16 rounds of ammunition. (Id. , R. 1, Compl. ¶ 65.)

Following their arrest, all three Defendants made statements implicating themselves in the planned robbery. (Id. ¶¶ 67-69.) Lee gave a written statement in which he admitted that he and Williams had a mutual friend who made a living by committing robberies, including robbing drug dealers "for their drugs and money." (Id. , R. 354-1, Lee's Statement at 513.) Lee stated that had been the driver for the friend during previous robberies, and that the friend had recruited Lee to drive for Williams during the planned stash house robbery. (Id. at 514-17.) As a result of these events, Williams, Lee, and Hummons were charged with conspiracy, attempt to commit Hobbs Act robbery, and possession of a firearm in furtherance of a crime of violence. (Id. , R. 24, Indictment; id. , R. 162, Order.)

III. Racial Profiling Defense

Defendants first raised the issue of racial profiling in a discovery motion filed more than four years ago. (See Williams , R. 50.) In July 2013, this Court granted Defendants discovery relevant to this potential defense over the government's objection. (Id. , R. 69, Order.) Over the course of the next two years, this Court ordered significant additional discovery from the government, including information pertaining to the confidential informants, as well as law enforcement strategies used in the stings. (See, e.g., id. , R. 140, Order; id. , R. 143, Order; id. , R. 164, Order; id. , R. 191, Min. Entry; id. , R. 232, Min. Entry.) The government estimates that as a result of the Court's orders, more than 5,000 pages of materials have been disclosed. (Id. , R. 364, Gov't's Resp. to Mot. for Renewed Disc. at 2.)

In 2014, the Court also granted Defendants' motion for the appointment of an expert, Professor Jeffrey Fagan, to conduct a statistical analysis of the stash house cases in this District to determine whether there were statistically significant racial anomalies. (See Brown , R. 269, Order.) To assist Professor Fagan in obtaining the data necessary to conduct his analysis, the Court presided over protracted third-party subpoena proceedings involving the Illinois State Police ("ISP"). (See, e.g., Williams , R. 186, Order; id. , R. 208, Order; id. , R. 214, Order; id. , R. 226, Order.) This process resulted in an extensive amount of crime data being turned over to Professor Fagan for use in his analysis. (See Williams , R. 338-2, Fagan's Report at 5-6.)

In May 2016, Professor Fagan completed his report, and he opines that the racial makeup of the stash house defendants in all cases prosecuted in this District shows a strong statistical anomaly when compared to a control group he constructed from the ISP data. (See id. ) In September 2016, Defendants filed the present motion (as did the defendants in the other pending stash house cases), relying heavily on Professor Fagan's report to argue that the ATF targeted them because of their race in violation of the Fifth Amendment. (Id. , R. 338.) In Defendants' view, Professor Fagan's report definitively establishes "(1) discriminatory effect, in that there was a clear pattern of racial disparities in whom the ATF chose to target, and (2) discriminatory intent, in that those racial disparities are inexplicable on grounds other than race." (Id. at 7.) In a nutshell, Defendants believe that Professor Fagan's analysis leads to "the inescapable conclusion that the ATF selected the stash house defendants on the basis of race." (Id. ) They argue that the charges should be dismissed on grounds of selective enforcement/racial profiling. (Id. )

In January 2017, the government's expert, Professor Max Schanzenbach, completed his rebuttal report. (Id. , R. 354-1, Schanzenbach's Report.) Professor Schanzenbach opines that there are numerous problems with Professor Fagan's analysis. (Id. ) Among other issues, he concludes that Professor Fagan's comparison group is far too broad. (Id. at 5-8.) In his view, the 290,000 individuals identified by Professor Fagan from the ISP data were not similarly situated to the stash house defendants because there was no indication that these individuals were actually "available to the ATF as possible targets" or that they were "likely willing to participate in a stash house robbery." (Id. at 5-6.) He also opines that only the initial targets of the stash house stings should have been used in the comparative analysis, not the entire defendant population, because most of the defendants were recruited by the targets and not by the ATF; in Professor Schanzenbach's view, the inclusion of all 94 defendants in the comparative analysis fundamentally skewed Professor Fagan's results. (Id. at 18-21.) In February 2017, the government filed a response to Defendants' motion to dismiss, relying heavily on Professor Schanzenbach's report and arguing that Defendants have failed to prove that the indictments in these two cases were the product of racial profiling. (Id. , R. 354, Gov't's Resp.) In August 2017, Defendants filed a reply brief, accompanied by a reply report prepared by Professor Fagan responding to some of Professor Schanzenbach's criticisms. (Id. , R. 378, Reply; id. , R. 378-3, Fagan's Reply Report.) A two-day evidentiary hearing was held in December 2017 before the nine district judges presiding over the 12 pending stash house cases, at which both experts testified in detail regarding their opinions reached in these cases. (Brown , R. 654, Min. Entry; id. , R. 655, Min. Entry; see also Evid. Hr'g Tr. at 1-541.)

LEGAL STANDARD

Under Federal Rule of Criminal Procedure 12(b), "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." FED. R. CRIM. P. 12(b)(1). This includes motions alleging "a defect in instituting the prosecution" due to "selective or vindictive prosecution." FED. R. CRIM. P. 12(b)(3)(A)(iv). "Challenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence." United States v. Moore , 563 F.3d 583, 586 (7th Cir. 2009) (citation omitted); see also United States v. Khan , No. 15-CR-00286, 2017 WL 2362572, at *18 (N.D. Ill. May 31, 2017) ("[W]hile an indictment may be dismissed if subject to a defense that raises only a question of law, a defense relating to the strength of the government's evidence ordinarily must wait for trial." (citation omitted) ). Therefore, in deciding such a motion, the Court must accept the allegations in the indictment as true. Moore , 563 F.3d at 586.

ANALYSIS

"The Attorney General and United States Attorneys retain broad discretion to enforce the Nation's criminal laws." United States v. Armstrong , 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (citation and internal quotation marks omitted); see also United States v. Russell , 411 U.S. 423, 435, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) ("The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government[.]"). Thus, a "presumption of regularity" attaches to prosecutorial decisions, and "in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." Armstrong , 517 U.S. at 464, 116 S.Ct. 1480 (citation omitted). In the usual case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Id. (citation omitted).

Nevertheless, this discretion is "subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations." Russell , 411 U.S. at 435, 93 S.Ct. 1637. One such constraint, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, is that "a decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification." Armstrong , 517 U.S. at 464, 116 S.Ct. 1480 (citation and internal quotation marks omitted); see also Washington v. Davis , 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (observing that the Fifth Amendment contains "an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups"). A claim of selective prosecution is governed by "ordinary equal protection standards." Armstrong , 517 U.S. at 465, 116 S.Ct. 1480. To establish an equal protection violation in this context, the defendant must demonstrate that the administration of the criminal law was "directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive that the system of prosecution amounts to a practical denial of equal protection of the law." Id. at 464-65, 116 S.Ct. 1480 (citation and internal quotation marks omitted). The defendant must come forward with "clear evidence" showing that the decision to prosecute "had a discriminatory effect and that it was motivated by a discriminatory purpose." Id. at 465, 116 S.Ct. 1480. This high standard stems from a desire to avoid unnecessary interference in the functions of the Executive Branch. Id. "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." Id.

A claim of selective enforcement is generally governed by the same standards. United States v. Barlow , 310 F.3d 1007, 1010 (7th Cir. 2002). A defendant asserting a claim of selective enforcement must establish that "a law or regulation was enforced against him, but not against similarly situated individuals of other races." Barlow , 310 F.3d at 1010. But "it is considerably harder" to prove a selective enforcement claim. United States v. Hare , 820 F.3d 93, 100 (4th Cir. 2016) (citation omitted). That is because "[i]n 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." Chavez v. Illinois State Police , 251 F.3d 612, 640 (7th Cir. 2001). By contrast, a litigant alleging, for example, "that they were stopped [by police] due to racial profiling would not, barring some type of test operation, be able to provides the names of other similarly situated motorists who were not stopped." Id. ; see also Hare , 820 F.3d at 100 (noting argument that in a selective enforcement claim, "there are less likely to be records of similarly situated individuals who were never investigated or arrested").

In an appeal of a discovery order in another stash house case, the Seventh Circuit explained another important distinction between selective prosecution and selective enforcement claims: Selective enforcement claims are directed at wrongful conduct by law enforcement agents, and unlike prosecutors, they "are not protected by a powerful privilege or covered by a presumption of constitutional behavior." United States v. Davis , 793 F.3d 712, 720 (7th Cir. 2015) (en banc); see also Chavez , 251 F.3d at 640 ("[T]he constitutional implications of interfering with the prosecutorial function [are] a factor at the heart of a criminal defendant's claim of selective prosecution, but [are] not directly at issue in a plaintiff's civil claim of racial profiling."). As the Seventh Circuit explained, if law enforcement agents offered stash house robbery opportunities "to black and Hispanic suspects, yet not to those similarly situated in criminal background and interests but of other ethnicity," then they engaged in unconstitutional race discrimination. Davis , 793 F.3d at 720. It would not matter that the United States Attorney's Office "prosecuted every case the agencies presented, or chose[ ] 25% of them in a race-blind lottery," because "the constitutional problem would have preceded the prosecutor's role and could not be eliminated by the fact that things didn't get worse at a later step." Id. Thus, if Defendants prove that law enforcement agents would not have pursued these investigations had they been white, dismissal of the charges is warranted. Id. at 722-23. "If not, there would not be a basis to attribute this prosecution to the defendants' race," and the case must proceed to a resolution of the charges. Id.

I. Applicable Standard of Proof

The first issue the Court must resolve is what standard of proof Defendants must satisfy to obtain dismissal of the indictment. The government argues that the "clear and convincing evidence" standard adopted by the U.S. Supreme Court in Armstrong is applicable, whereas Defendants believe that an ordinary preponderance of the evidence standard applies. (See Williams , R. 338, Defs.' Mot. at 18-19; Brown , R. 555, Gov't's Resp. at 15-16; id. , R. 630, Defs.' Reply at 8-10; id. , R. 643, Gov't's Surreply at 1-3.) Defendants do not cite any direct authority for the proposition that the preponderance standard applies when resolving a motion to dismiss a federal criminal indictment, but they believe that comments by the Seventh Circuit in Davis explaining the distinctions between selective enforcement claims and selective prosecution claims means that the higher standard adopted in Armstrong is inapplicable. ( Williams , R. 338, Defs.' Mot. at 18-19; id. , R. 378, Defs.' Reply at 7-10.)

It is true that this case does not directly implicate prosecutorial discretion, as Defendants' argument is that the ATF, rather than the U.S. Attorneys' Office, discriminated against them. Armstrong is thus not directly on point. But at the same time, the Court does not find it appropriate to adopt a mere "preponderance of the evidence" standard in deciding Defendants' motion. Applying such a low standard would be inconsistent with the substantial discretion afforded to the executive branch in enforcing the laws of this nation. See Russell , 411 U.S. at 435, 93 S.Ct. 1637. The Supreme Court recognized this deference in a case where a criminal defendant argued that the death penalty was being implemented in a racially discriminatory manner in Georgia. See McCleskey v. Kemp , 481 U.S. 279, 297, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). The Supreme Court noted that the defendant was challenging a discretionary judgment "at the heart" of the criminal justice system, explaining as follows:

One of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws .... Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.

Id. (emphasis added).

The same reasoning applies here. Defendants are challenging decisions "at the heart" of the criminal justice system: the decision of law enforcement agents to pursue an investigation pertaining to the violation of federal law. As Defendants themselves acknowledge, such decisions inherently involve discretionary judgments that take into account a variety of factors. (See Williams , R. 378, Defs.' Reply at 64.) Most of these factors, including enforcement priorities and how best to achieve them, are beyond the scope of judicial review. See Armstrong , 517 U.S. at 465, 116 S.Ct. 1480 ; Russell , 411 U.S. at 435, 93 S.Ct. 1637. Defendants are correct that the Seventh Circuit in Davis noted the different standard that applies to resolving a motion for discovery in connection with a claim of selective enforcement. See 793 F.3d at 720. But Davis did not directly address what standard governs resolution of a substantive claim of selective enforcement In another recent stash house case, the Third Circuit expressly noted this distinction, and held that substantive claims of selective enforcement continue to be governed by the "clear evidence" standard. Washington , 869 F.3d at 214. The court explained:

Substantive claims of selective prosecution and selective enforcement are generally evaluated under the same two-part test, which is derived from a line of seminal Supreme Court cases about the collision between equal protection principles and the criminal justice system. A defendant challenging a criminal prosecution at either the law enforcement or prosecution inflection points must provide "clear evidence" of discriminatory effect and discriminatory intent[.]

Id. (emphasis in original). The court discussed Davis , including the language Defendants point to here, but concluded that Davis did not answer the question of what standard governs a substantive claim of selective enforcement. Id. at 218 (" Davis does not explicitly discuss the discriminatory purpose/intent prong of the traditional Armstrong / Bass analysis. Davis might therefore be fairly described as an opinion entirely about discriminatory effect as a gateway to discovery.").

This Court reads Davis the same way: it recognized a lower standard for granting discovery on a selective enforcement claim, but it did not address the standard for resolving a motion to dismiss on grounds of selective enforcement on the merits. In the absence of clear direction from the Supreme Court or the Seventh Circuit that a lower evidentiary burden applies to a substantive claim of selective enforcement in these unique and troublesome stash house cases, this Court must reluctantly follow the Supreme Court's admonition in McCleskey and will require clear evidence before concluding that federal law enforcement agents abused their discretion in pursuing these investigations. This Court emphasizes that this discussion may be different if the Court were writing this opinion from chambers on the 26th floor of the federal courthouse rather than the 25th floor, or from chambers on the shores of the Potomac River rather than Lake Michigan. This Court firmly believes that McCleskey was wrongly decided, especially as it related to the use of the death penalty, yet this Court is obligated to follow the dictates of McCleskey until it is overruled by the Supreme Court.

II. Daubert

Before turning to the merits, the Court must next address the threshold issues of the parties' expert reports, which are a key component of their respective positions in this case. The admissibility of expert testimony is governed by Federal Rules of Evidence 702 and 703 and the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Brown v. Burlington N. Santa Fe Ry. Co. , 765 F.3d 765, 771 (7th Cir. 2014). The proponent of the expert's testimony bears the burden of demonstrating that it satisfies the Daubert standard. Gopalratnam v. Hewlett-Packard Co. , 877 F.3d 771, 782 (7th Cir. 2017). Under Daubert , "the district court must engage in a three-step analysis before admitting expert testimony. It must determine whether the witness is qualified; whether the expert's methodology is scientifically reliable; and whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at 779 (citation and internal quotation marks omitted). On the question of reliability, courts consider a variety of factors, including: "(1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community." Id. (citation omitted). Other "benchmarks" for determining reliability include: "(5) whether maintenance standards and controls exist; (6) whether the testimony relates to matters growing naturally and directly out of research they have conducted independent of the litigation, or developed expressly for purposes of testifying; (7) [w]hether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; (8) [w]hether the expert has adequately accounted for obvious alternative explanations; (9) [w]hether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting; and (10) [w]hether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give." Id. at 779-80 (citation and internal quotation marks omitted). This list is "neither exhaustive nor mandatory," however, and instead "the reliability analysis should be geared toward the precise sort of testimony at issue and not any fixed evaluative factors." Id. at 780 (citations and internal quotation marks omitted).

In the end, the inquiry is a flexible one that provides wide latitude for the Court to serve its role as "gatekeeper." C.W. v. Textron, Inc. , 807 F.3d 827, 834-35 (7th Cir. 2015). "[T]he key to the gate is not the ultimate correctness of the expert's conclusions," but rather "the soundness and care with which the expert arrived at her opinion." Id. at 834 (citation and internal quotation marks omitted). "[R]ejection of expert testimony is the exception rather than the rule." FED. R. EVID. 702, advisory committee notes (2000 Amendments). The Court's evaluation under Daubert is not intended to "take the place of the jury to decide ultimate issues of credibility and accuracy." Lapsley v. Xtek, Inc. , 689 F.3d 802, 805 (7th Cir. 2012). "If the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of 'vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.' " Id. (quoting Daubert , 509 U.S. at 596, 113 S.Ct. 2786 ).

When the Court rather than a jury is the factfinder on a particular issue, "the judge need not conduct a Daubert (or Rule 702 ) analysis before presentation of the evidence," but still "must determine admissibility at some point." Kansas City S. Ry. Co. v. Sny Island Levee Drainage Dist. , 831 F.3d 892, 900 (7th Cir. 2016) ; see also Estate of Stuller v. United States , 811 F.3d 890, 895 n.3 (7th Cir. 2016) ("[W]here the factfinder and the gatekeeper are the same, the court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702." (citation omitted) ). Once the Court has "fulfilled its gatekeeping function" under Daubert , "it becomes a trier of fact that needs to assess the evidence itself-not just the methodology underlying that evidence." Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co. , 782 F.3d 353, 360 (7th Cir. 2015). In effect, the Court takes on the "essential role as the arbiter of the weight and credibility of expert testimony." Id. (citation omitted). Neither side has formally moved to exclude the other's expert, but for the sake of completeness the Court considers each factor in the Daubert analysis.

A. Professor Fagan's Report

1. Professor Fagan's qualifications as an expert

In assessing an expert's qualifications, the Court should consider the expert's full range of education, experience, and training. FED. R. EVID. 702 ; LG Elec. USA v. Whirlpool , 661 F.Supp.2d 940, 951 (N.D. Ill. 2009). Professor Fagan is a professor of law at Columbia Law School, a professor of epidemiology at Columbia, and a senior research scholar at Yale Law School. (Williams , R. 338-2, Fagan's Report at 49.) Among his many other credentials, he was the Director of the Center for Community and Law at Columbia Law School from 2003-09 and again from 2011-15, and from 1996-2006 he was the founding director of the Center for Violence Research and Prevention at Columbia's Mailman School of Public Health. (Id. at 50.) Prior to his appointment at Columbia, he was a professor of criminal justice at Rutgers-The State University of New Jersey, and an associate professor at John Jay College of Criminal Justice at the City University of New York. (Id. ) He has co-authored three books and published numerous articles on law and social policy in peer-reviewed journals, law reviews, and other scholarly publications on criminal justice, criminology, and other topics. ( Id. at 51-61.) He has served on committees of the American Society of Criminology, the National Academy of Science, and the National Science Foundation. (Id. at 49.) He is also a fellow of the American Society of Criminology. (Id. ) He has previously served as an expert witness in litigation alleging Fourth and Fourteenth Amendment civil rights violations resulting from racially selective police enforcement in the conduct of investigative stops by police in New York City, and from 2012-15 he advised the Boston Police Department in its review of its practices. (Id. ) The Court finds Professor Fagan to be well qualified to provide empirical research and to opine on the discriminatory effect of ATF's practices in this case.

2. Reliability of Professor Fagan's methodology

Rule 702 requires that the expert explain the methodologies and principles that support his or her opinions; in other words, the expert cannot simply assert a "bottom line." Minix v. Canarecci , 597 F.3d 824, 835 (7th Cir. 2010). To be reliable, the expert's opinion must be "reasoned and founded on data," and must also "utilize the methods of the relevant discipline." Bielskis v. Louisville Ladder, Inc. , 663 F.3d 887, 894 (7th Cir. 2011). In effect, "[t]he goal of Daubert is to assure that experts employ the same 'intellectual rigor' in their courtroom testimony as would be employed by an expert in the relevant field." Jenkins v. Bartlett , 487 F.3d 482, 489 (7th Cir. 2007) (citation omitted) ).

To reach his opinions in this case, Professor Fagan obtained criminal history records for each of the 94 stash house defendants and coded them for race, criminal history, and other factors. (Williams , R. 338-2, Fagan's Report at 5.) He then conducted a detailed statistical analysis of the stash house defendants with respect to race, criminal history, and other factors. (Id. at 15-20.) He also obtained extensive crime data from the ISP meeting certain parameters. (Id. at 6.) Once individuals were identified from these criteria, he constructed a complete criminal history for each individual using a search of ISP databases, which included variables such as race, gender, age, number of prison sentences, and other criminal history factors. (Id. at 7, 9.) He conducted a comparison of the stash house defendants and the pool of other individuals, who he calls "potential eligibles," with respect to race, criminal history, and other factors. (Id. at 21-23.) This included conducting a series of empirical tests for assessing Defendants' selective enforcement claims in this case: a disparate treatment test, a second test incorporating a principle known as augmented inverse probability weighting, and a third test using propensity score matching. (Id. at 23-30.) From these tests he reached certain results, which in his opinion demonstrate a pattern of discrimination by the ATF in the stash house stings. (Id. at 31-37.) For purposes of Daubert , the Court finds that Professor Fagan's methods were properly based on accepted statistical principles.

In the government's view, "The Fagan Report is flawed from top to bottom. It starts with the wrong comparison group, then performs elaborate statistical analyses based on core assumptions that are simply mistaken." (Brown , R. 555, Gov't's Resp. at 37.) The government argues that Professor Fagan's report "fail[ed] to ... make the most elementary comparisons," and "has no value as causal explanation and is therefore inadmissible in a federal court." (Id. at 27 (citations omitted).) But the Court finds that these criticisms go more to the weight of Professor Fagan's opinions than to their admissibility. For purposes of Daubert , Professor Fagan's opinions are properly grounded in established statistical principles and his extensive knowledge of the field of criminology. Whether there are any weaknesses in his opinions and how much weight they should be given are matters for this Court to decide separately. See Kawasaki Kisen Kaisha, Ltd. , 782 F.3d at 360.

3. Whether Professor Fagan's report will assist the trier of fact

Next, the Court must decide whether Professor Fagan's testimony will assist the trier of fact in determining a relevant fact at issue in the case. The Court finds that this inquiry is satisfied. Professor Fagan provides a statistical analysis of the stash house Defendants and a comparison to what he deems to be a "similarly situated" group of individuals. Making this comparison is a key component of Defendants' racial profiling claim, and this Court does not have the ability to gather its own extensive crime data or conduct detailed statistical analyses based on that data. Accordingly, the Court finds that Professor Fagan's report and testimony will assist the Court in resolving Defendants' racial profiling defense.

B. Professor Schanzenbach's Report

1. Professor Schanzenbach's qualifications as an expert

Professor Schanzenbach is a professor of law at Northwestern University School of Law. (Brown , R. 555-1, Schanzenbach's Report at 33.) He holds a law degree from Yale Law School and a Ph.D. in economics, also from Yale. (Id. ) Among his many credentials, he previously served as the director of the Searle Center on Law, Regulation, and Economic Growth, and served as a board member on the American Law and Economics Association and other scholarly organizations. (Id. at 37-38.) He has published books and articles in peer-reviewed journals, law reviews, and other scholarly publications involving empirical studies of sentencing disparities and other topics. (Id. at 33-35.) The Court concludes that Professor Schanzenbach is qualified to offer opinions about the statistical analysis conducted by Professor Fagan.

2. Reliability of Professor Schanzenbach's methodology

To reach his opinions in this case, Professor Schanzenbach reviewed a variety of materials, including detailed information from all 24 sting operations, Professor Fagan's report, Defendants' motion to dismiss, and the thousands of pages of discovery materials turned over by the government in this case. (Brown , R. 555-1, Schanzenbach's Report at 2.) From there he conducted a detailed analysis of Professor Fagan's report, including testing various assumptions on which Professor Fagan's report is based. (Id. at 3-4.) He also conducted his own binomial statistical analysis comparing the stash house defendants to the racial makeup of a smaller group that he believes is more similarly situated to the stash house defendants than the broad group of "potential eligibles" defined by Professor Fagan. (Id. at 8.) From there he offers various opinions about the validity of Professor Fagan's results, and offers his own opinion about whether there is statistically significant evidence of racial profiling by the ATF. (Id. at 8-9, 13-26.) For purposes of the Daubert inquiry, the Court finds that Professor Schanzenbach's analysis is reliably based on accepted scientific methods and his comprehensive review of the data relevant to this case.

3. Whether Professor Schanzenbach's report will assist the trier of fact

The Court also finds that Professor Schanzenbach's testimony will assist the trier of fact. Defendants' motion to dismiss relies heavily on the opinions offered by Professor Fagan. Testing the validity and strength of Professor Fagan's conclusions is a necessary component of resolving the motion to dismiss. Through his extensive knowledge of statistical principles, Professor Schanzenbach can provide the necessary adversarial testing of Professor Fagan's report. Therefore, the Court finds that the third prong for admissibility is satisfied. The Court will consider the weight and persuasiveness of both experts' reports in connection with its analysis of the merits below.

III. Merits

A. Discriminatory Effect

The first element of a selective enforcement claim is discriminatory effect. Armstrong , 517 U.S. at 464-65, 116 S.Ct. 1480 ; Barlow , 310 F.3d at 1010. To establish discriminatory effect in this case, Defendants point to Professor Fagan's report, which in their view provides definitive proof that the ATF discriminated against black and Hispanic individuals in conducting the stash house investigations. (Williams , R. 338, Defs.' Mot. at 18-28.) In Chavez , the Seventh Circuit expressly recognized that a litigant may rely on statistics to show discriminatory effect. 251 F.3d at 638 ("While few opinions directly acknowledge that statistics may be used to prove discriminatory effect, the [Supreme] Court has repeatedly relied on statistics to do just that."). The Seventh Circuit reaffirmed, however, that "[t]he statistics proffered must address the crucial question of whether one class is being treated differently from another class that is otherwise similarly situated." Id. That is because "raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants." United States v. Bass , 536 U.S. 862, 864, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) (emphasis omitted); see also Barlow , 310 F.3d at 1012 (rejecting selective enforcement defense because defense expert's statistical data failed to provide a basis for concluding that individuals who were not stopped by police were similarly situated to the defendant). Additionally