UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50061 Plaintiff-Appellee, D.C. No. v. 2:12-cr-00722-TJH-3

DARYLE LAMONT SELLERS, Defendant-Appellant. 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, 517U.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 proffe