Opinion
CR-18-01695-002-TUC-JAS (EJM)
10-07-2022
United States of America, Plaintiff, v. Marcell Demetrius Gray, Defendant.
REPORT AND RECOMMENDATION
ERIC J. MARKOVICH UNITED STATES MAGISTRATE JUDGE
Pending before the Court is a Motion to Dismiss Indictment for Selective Enforcement or, in the Alternative, Motion for Discovery, filed by defendant Marcell Demetrius Gray and joined in by the following defendants: David Kapone Williams; Shawmaine Eustace Ardell Moore; Samuel Lee Berrelle Rakestraw, III; Michael Anthony Williams; Cliffton Martinez; Jermaine Lamar Maxwell; Troy Jermaine Howell; Mark Anthony Holguin; Tenell Michael Mure; Labarr Martinez; and Dezirae Alexandria Monteen. (Doc. 767.) The defense argues that law enforcement selectively enforced the law against the defendants based solely on their race. The government obviously argues that the investigation was not based on race, but rather on the repeated acts of violence attributable to many of the defendants and to protect the community. For the reasons discussed below, the Court recommends that the District Court deny the instant motion.
The discovery portion of the defense motion is moot because the Court granted nearly every request for discovery during the course of litigating the motion to dismiss, and the defense has not appealed the denial of any request.
FACTUAL BACKGROUND
A. The Charges
On April 6, 2022, a federal grand jury sitting in Tucson, Arizona returned a Third Superseding Indictment against 19 defendants. The offenses charged in the Third Superseding Indictment pertain to an alleged criminal enterprise operated by a gang known as the Western Hills Bloods (“WHB”). The Third Superseding Indictment contains 46 counts including multiple conspiracies. The counts can generally be divided into two categories: violent offenses and drug offenses. No defendant is charged in all 46 counts. About half of the defendants are charged only with drug offenses. A much smaller number of defendants are charged only with violent offenses.
Count One charges certain defendants with participating in a RICO conspiracy, in violation of 18 U.S.C. §§ 1962(d) and 1963(a), the objects of which are: (a) acts involving murder (18 U.S.C. §§ 1959(b)(1) and 1961(1)); (b) offenses involving drug trafficking (21 U.S.C. §§ 846 and 841); and (c) acts involving the obstruction of justice (18 U.S.C. § 1512). The offenses involving violence stemming from this conspiracy are as follows. Count Two charges Violent Crime in Aid of Racketeering - Conspiracy to Commit Murder, in violation of 18 U.S.C. § 1959(a)(5). Count Three charges Violent Crime in Aid of Racketeering - Murder, in violation of 18 U.S.C. §§ 1959(a)(1) and 2. Counts Four and Nine charge Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death, in violation of 18 U.S.C. §§ 924(j), 924(c)(1)(A)(i), (ii), (iii), and 2; Count Five charges Violent Crime in Aid of Racketeering - Conspiracy to Commit Assault with a Dangerous Weapon, in violation of 18 U.S.C. § 1959(a)(6). Count Six charges Violent Crime in Aid of Racketeering - Assault with a Dangerous Weapon, in violation of 18 U.S.C. § 1959(a)(3).
The other charges in the Third Superseding Indictment are as follows: (a) Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); (b) Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2; (c) Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. 922(g)(1) and §§ 924(a)(2); (d) Conspiracy to Possess with the Intent to Distribute Controlled Substances, in violation of 21 U.S.C. §§ 846 and 841; and (e) Possession with the Intent to Distribute Controlled Substances, in violation of 21 U.S.C. § 841.
B. The Instant Motion
On September 13, 2021, counsel for defendant Marcell Demetrius Gray filed a Motion to Dismiss Indictment for Selective Enforcement or, in the Alternative, Motion for Discovery. (Doc. 767.) The basis alleged to support the motion to dismiss is law enforcement's racially motivated selective enforcement of the law against Gray, in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Id. at 15. Counsel for eleven co-defendants, almost all of whom are African American like Mr. Gray, joined in the motion to dismiss.
As noted earlier, the Court granted the vast majority of the defense's discovery requests at various points during the course of litigating the Motion to Dismissi.e., prior to the hearing, during the course of the hearing, and after the hearing. The defense has not appealed the denial of any discovery request to the District Court. As a result, the Court is of the view that the Motion for Discovery filed as part of the Motion to Dismiss is now moot.
The motion to dismiss spends a considerable amount of time discussing the following subject areas, all of which pertain to Gray's race: (1) the longstanding practice of law enforcement's targeting Mr. Gray, which began early in his life, because of his race and the racial composition of the neighborhood of where he has lived; (2) dehumanizing stereotypes and implicit racial bias; (3) the disparate impact of policing and surveillance of Black Americans and communities of color; (4) modern day slavery - specifically, the disproportionate number of Black men in prison; and (5) the disenfranchisement of Black Americans, including Mr. Gray. To support many of the racial disparities regarding the policing and prosecution of African Americans, the defendant provides statistics from several sources. Gray argues that these statistics and law enforcement's targeting of him over the years based solely on his race demonstrate that the Tucson Police Department (“TPD”), the Arizona Department of Public Safety (“DPS”), and the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) acted with a discriminatory purpose because they were motivated by implicit racial bias. Gray also argues that the actions of law enforcement had a discriminatory effect because he is facing a mandatory life sentence as a result of the strategic decision to prosecute Gray in federal court, rather than in state court.
The defense seems to concede that the relief that they seek in the instant motion would call for a change in existing precedent. (Doc. 767 at 1 n.1.)
The government first argues that although the defendant styles his motion as a claim for selective enforcement, the motion actually presents a claim of selective prosecution because it is based primarily on the government's decision to prosecute this case in federal court. The government next argues that regardless of whether the defendant's claim is based on selective enforcement or selective prosecution, the defendant fails to show evidence of discriminatory purpose or a discriminatory effect. The government claims that the “raw statistics” provided by the defendant are insufficient to show a discriminatory purpose because the statistics do not address charges brought against similarly situated individuals. The government claims that the defendant cannot show a discriminatory effect because he cannot show that law enforcement or prosecutors decided to enforce the law against him on the basis of an impermissible ground such as race. Specifically, the allegations of implicit bias are too abstract to prove that the decisionmakers in this case acted with purposeful discrimination. And the government provides statistics that they contend demonstrate that similarly situated non-Black individuals have been prosecuted in federal courts with similar offenses.
The Court held oral argument on the Motion to Dismiss and/or Discovery on March 2, 2022. Although the Motion to Dismiss did not request an evidentiary hearing, defense counsel requested an evidentiary hearing at oral argument. The government argued that the defense had not met its burden to prove that an evidentiary hearing was warranted. The Court ordered that defense counsel file a proposed witness list and a summary of the anticipated testimony. The Court was not entirely convinced that the defense had established that they were entitled to an evidentiary hearing. However, the Court ultimately conducted an evidentiary hearing to allow the defense the opportunity to fully flesh out any facts that would support the instant motion. The testimony at the hearing conducted over the course of several days is set forth in excruciating detail below.
As will become painfully apparent, counsel for several defendants covered the same subject areas (multiple times) in their questioning of witnesses, which resulted in a lot of repetitive testimony.
C. Evidentiary Hearing
Detective Vance Padilla
1.Direct Examination by Defense Counsel
a. Jessica Turk for Defendant Troy Howell
Vance Padilla has been a detective with the Tucson Police Department for 19 years. 4/4/22 Tr. at 25. He was assigned to the gang investigative unit in 2015 and remains in that unit (which is now called gun crime reduction). Id. With respect to the instant case, Detective Padilla has responded to calls, interviewed witnesses, “chose which suspects to pursue, as well as which suspects not to pursue,” “chose what evidence to preserve, as well as what evidence not to preserve,” interrogated suspects, authored warrants, and testified before the grand jury. Id. at 26. He agreed with defense counsel that his role was “central” to the investigation of the instant case. Id.
Testimony turned to the Tucson Police Department Code of Conduct. Id. at 28. Detective Padilla explained that “[t]he purpose of the conduct is basically our TPD values, to assure that there [are] values upheld with all the personnel as an organization, since we're a public figure; to maintain that integrity, I guess.” Id. He agreed with counsel that the code of conduct mandates that officers “not permit personal feelings, prejudice, or animosities” to influence decisions. Id. He further agreed that the code of conduct mandates that officers apply rules, regulations, and laws in an unbiased manner. Id. Additionally, officers “shall not tell jokes, make verbal statements, or engage in any other conduct that may be considered offensive to a protected group or people belonging to a protected status.” Id. at 29.
Detective Padilla interrogated Troy Howell on September 11, 2015, after his arrest for possession of crack cocaine. Id. at 26-27. Detective Padilla explained that he was not involved in the investigation of the drug case; his interrogation of Howell concerned a different case. Id. at 27. Defense counsel pointed Detective Padilla to the following statement that he made to Howell during the interview: “You're lying, you were bred to lie.” Id. at 29. Detective Padilla agreed with counsel that he did not say “born,” did not “simply call him a liar,” and “emphasized the word ‘bred.'” Id. at 30. Detective Padilla agreed with counsel that horses and dogs are bred and thus do not choose their mates. Id. at 30-31. And breeding of animals is done to achieve a particular result - e.g., coloring or muscle tone. Id. at 31. Detective Padilla disagreed with counsel's assertion that “when you told my client that he was bred to lie, that you were implying that my client's mother and my client were more akin to animals than people.” Id. Detective Padilla explained that the “remark was used in the context of Mr. Howell's association and affiliation to the gang that he was a part of.” Id. at 32. He further explained that “it's my experience that gang members, at an early age, they're not born, but at an early age they're conditioned, raised, or bred to live a dangerous lifestyle, involving dishonesty and criminal activity, and that was the intent of the word that I used.” Id.Detective Padilla agreed with counsel that the word “lie” has a negative connotation. Id.
Detective Padilla is not specifically “aware of a period in American history when Black women did not have control over their reproductive rights.” Id. However, he agreed “that American history includes the enslavement of Black people by White people.” Id. at 33. He also agreed “that the system of slavery was in place to economically benefit Whites,” and that slaves “weren't employees, they were more treated like property, or more like animals than people.” Id. When asked if using the term “bred” towards an African American person is racially charged, Detective Padilla testified that wasn't his intent. Id. However, he could not “name any other racial group in this country where women's reproduction was referred to as ‘breeding.'” Id. at 34.
Testimony turned to questions about race and Detective Padilla's beliefs about race. Id. He agreed that this country has distinct racial groups. Id. He also agreed that when he interviews a witness he asks the person's race, and when he writes a report there is a “box or a space” to note the race of a person. Id. Detective Padilla disagreed that “athleticism,” “rhythm,” or “intelligence,” is impacted by a person's race. Id. at 34-36.
Testimony turned back to the interview of Howell. Detective Padilla testified that a gang called the Freestones is primarily made up of Black members. Id. at 37. He acknowledged that he compared the Freestones to “gremlins” in terms of their growth. Id. He views gremlins as having attributes of both animals and people. Id. Detective Padilla agreed that he asked Howell if he was a pimp. Id. In response to counsel's question of whether he asked this question of all suspects or only Black suspects, Detective Padilla explained that does not ask this question to all suspects, but he asked Howell that question because he was associated with another individual who “was involved in the pimping trade.” Id. at 37-38. Detective Padilla agreed that he told Howell that he will “always be looking at you. I'll always be looking at LB. I'll always be looking at David.” Id. at 38. He agreed with counsel that he did not mean those comments to be taken literally in that they would be under 24-hour observation; rather, it was a figure of speech. Id. at 38-39. He explained that he told Howell that he will always be watching him because TPD “had a good case on a homicide” based on physical evidence, he believed that Howell was involved, and he would “reach out to him” if more evidence was developed or if a witness came forward. Id. at 39.
Detective Padilla agreed that he told Howell that officers were looking at charging him with a narcotics offense. Id. Detective Padilla explained that Howell was arrested and charged but was not indicted by the Pima County Attorney's Office. Id. at 40. As such, Howell was not prosecuted in the state court system and was released from custody. Id. Detective Padilla is not sure if Howell was ever charged in state court with this narcotics offense. Id. Counsel showed Detective Padilla a TPD chain of custody form relating to Howell's September 2015 arrest and asked him to explain an entry that says hold the evidence for “seven years” for a federal case and lists contact numbers for TPD Detective Frieberg and ATF Agent Berlin. Id. at 42. Detective Padilla testified that this entry “just tells Evidence personnel to not expunge the evidence for seven years.” Id. He agreed with counsel that the entry reflects that the evidence is to be held because there is a pending federal case. Id. Detective Padilla does not know why the County Attorney did not prosecute the narcotics charge. Id. at 43. But he agreed with counsel that this entry in the chain of custody form reflects that “at some point there was a decision made to pursue federal charges instead of the state.” Id. Detective Padilla is not aware that the federal prosecutors believe that Howell is looking at a mandatory minimum sentence of 25 years. Id. He is not aware of how much prison time Howell could have faced in state court for the narcotics charge because the sentence depends on prior convictions; but, “generally speaking,” he knows that “federal courts do impose stronger sentences.” Id. at 44.
b. Ramiro Flores for Defendant Michael Williams
Detective Padilla agreed with counsel that he investigated Michael Williams in connection with a shooting at the hookah lounge on January 1, 2018. Id. at 45. Detective Padilla was the lead detective which meant that he was responsible for giving out assignments in the investigation, conducting follow-up investigation, and “getting as much information about the case” as he could. Id. at 45-46. Detective Padilla agreed that the physical evidence showed that there were two shooters at the hookah lounge; specifically, there was one set of shells found at one location and then one shell at a different location. Id. at 46. Detective Padilla agreed he conducted interviews to try to determine who was responsible for the shootings. Id. He interviewed the victim of the shooting at the hospital and a witness named Juan Hermosillo at a different location. Id. He agreed that prior to the interviews, he was aware that there were potentially two shooters as a result of the shell casings found at the scene. Id. at 47. Detective Padilla agreed that when he interviewed the victim, he was trying to identify a shooter who was a Black male. Id. at 48. At the time of the interview, Detective Padilla was aware that there were some Black males at the hookah lounge; he did not have information that there were Hispanics also shooting at the hookah lounge. Id. at 50. Detective Padilla asked the victim if she could identify a Black male who was fighting. Id. He agreed with counsel that the only thing he was “trying to do was identify the Black male” who was shooting or fighting. Id. He also agreed that the victim “didn't know if the Black male that was fighting was also the person who may have shot her.” Id. at 51.
Detective Padilla later interviewed Mr. Hermosillo who provided “a description of the Black male that was possibly shooting.” Id. Specifically, Mr. Hermosillo said that “he was young, 20 to 21 years old, had short hair with a fade, he was about 5'8”, wearing a black shirt, black hat, or black GOAT hat, black pants, and black shoes.” Id. Detective Padilla agreed with counsel that during his interviews the day of the shooting, he “only ever really discussed a Black male possibly shooting.” Id. at 52.
The following day (or the next) Detective Padilla obtained video from the hookah lounge. Id. Detective Padilla recognized Michael Williams, Samuel Rakestraw, and Count Mitchell in that video. Id. Detective Padilla was able to see what he believed to be Michael Williams shooting a weapon, and then another person later shooting a weapon. Id. at 53. Detective Padilla agreed that the other second shooter looked more Hispanic than Black. Id. Detective Padilla did not try to identify the Hispanic man because he “didn't know him.” Id. He explained that he “had a starting point with Mr. Williams,” but “didn't have a starting point with the Hispanic male.” Id. at 55. Detective Padilla did not ask witnesses if they could identify the Hispanic male because they said they could not identify any shooters. Id. Detective Padilla did follow-up investigation to prove that Williams was the shooter on the video, but he did not do follow-up to try to identify the Hispanic man because he “didn't have a name to start with.” Id. at 56. By contrast, he “knew who Michael Williams was when [he] saw the video.” Id. at 57. Detective Padilla estimates that ten people were interviewed at the hookah lounge the day of the shooting. Id. He did not follow-up with any of these people regarding the Hispanic shooter; and he also did not follow-up regarding the Hispanic man after reviewing the video. Id. at 58. Detective Padilla agreed that the Hispanic man committed the offense of aggravated assault; however, a victim had not come forward. Id.
Defense counsel turned to Detective Padilla's investigation of the Marshall Davis homicide. Detective Padilla denied counsel's assertion that he omitted and presented misleading information regarding an investigation of Tennell Mure, who is a Black man. Id. at 59-60. Detective Padilla agreed that he arrested Mure who was later charged in state court with a homicide and with tampering with evidence. Id. at 60. Detective Padilla presented the case to the state grand jury. Id. He does not recall omitting exculpatory information regarding Mure. Id. at 61. Detective Padilla explained that he ultimately discovered “through cell phone technology that [Mure] couldn't have been present at the homicide.” Id. He presented that information to the county attorney and the case was dismissed. Id.
c. Trevor Hill on Behalf of Defendant Marcell Gray
Detective Padilla agreed that the TPD code of conduct prohibits untruthfulness, misstating facts, and lying. Id. at 64-65. He also agreed that the code of conduct requires that he “be diligent to make sure that the information that [he is] putting forward is as accurate as it can be.” Id. at 65. He further agreed with counsel that there are exceptions in that he is allowed to lie to a defendant in an interrogation. Id. Detective Padilla testified that the oath he took in court requires him “to be honest about everything.” Id. at 67. He agreed with counsel that his prior testimony at an unrelated hearing that he had been employed with TPD since 2001 is not entirely accurate. Id. He explained that there were “breaks” in his employment with TPD. Id. He was in the police academy in 2001, but then submitted a letter of resignation that same year because he had “changed priorities” with his family and was “concerned about the dangers of the job.” Id. He agreed with counsel that there was a period of time when he was not a police officer, and then went to work for the South Tucson Police Department for about two years before being hired by TPD in 2004. Id. at 69. In response to counsel's question of whether Detective Padilla's prior testimony that he was with TPD since 2001 was inaccurate, he explained that it was a “generalization” of his background. Id. at 69-70.
d. Steve Sherick on Behalf of Defendant Jermaine Maxwell
Detective Padilla testified that there are gangs in Tucson that are of different racial compositions - e.g., Black, White, Hispanic, Asian. Id. at 73. Detective Padilla has experience arresting or interacting with gang members of different races charged with drug crimes and violent offenses, including homicides. Id. at 74-75. Detective Padilla had antidiscrimination training, but he cannot recall when that training occurred. Id. at 75. He agreed with counsel that the definition of discrimination includes unjust or prejudicial treatment based on race. Id. at 76. He also agreed that the definition of “bias could be prejudice in favor or against a person in an unfair way.” Id. He further agreed that it would be inconsistent with TPD policies “if bias were exercised against a person based on race.” Id. Detective Padilla acknowledged that the overwhelming majority of the defendants in this case are African Americans. Id. He also acknowledged that if those defendants were treated less fairly than gang members of other racial compositions that would indicate discrimination, bias, and prejudice. Id.
Detective Padilla has not had any investigations of violent crimes committed by White, Hispanic, or Asian gang members prosecuted in federal court. Id. at 77. He does not know if the drug charges against Maxwell would carry a lesser penalty in state court. Id. at 78. He also does not know if whether the drug crimes which are predicates for a racketeering conspiracy make the punishment more severe. Id.
Detective Padilla was involved in an investigation of Maxwell in February 2016. Id. at 79. On February 3, 2016, Maxwell was stopped for a traffic violation near the freeway and Starr Pass. Id.Detective Padilla presented the case to a state grand jury shortly after February 3, 2016. Id. at 80. Detective Padilla was not specifically aware that this case had been pending until October 3, 2019. Id. He was told by the county attorney that the case was dismissed, but he does not recall the date. Id. He was not specifically aware that at the time the case was dismissed, it was being prepared for trial. Id. at 81. He does not recall if he was involved in any discussions with the county attorney about the decision to dismiss the state case. Id. He assumes it was dismissed because the case “was taken federally.” Id. at 81-82. Detective Padilla has never “had a case involving White [or Hispanic] gang members who were charged in state court and that charge was dismissed to be filed in a federal indictment.” Id. at 82.
Detective Padilla is aware that in state court “every witness is subject to being interviewed by defense counsel.” Id. at 82-83. He is also aware that “any cooperating individual or informant in a state case is subject to be[ing] interviewed by defense counsel if they are going to be a witness at trial.” Id. at 83. Detective Padilla was not aware that is not true in federal court. Id. Detective Padilla said he is willing to be interviewed by defense counsel in the case at hand. Id. He testified that he would “recommend to the prosecution team that the cooperating individuals in this case agree to submit to a defense interview before they testify at trial” because “that's what I know.” Id. at 84.
Testimony turned to photo identification procedures. Detective Padilla had been trained to conduct photo lineups. Id. He explained that when TPD officers identify a suspect, the officers create a sequential photo lineup where they acquire five other images that are similar in traits to the suspect. Id. The six photos are placed in folders and a number is assigned to each photo. Id. The witness looks at the six photos and asked if anyone looks familiar. Id. at 85. If so, a record will be made of which photo the witness identified. Id. Detective Padilla explained that when he first became a detective TPD used a “six-pack photo lineup” where the witness “would look at the images all at once.” Id. Detective Padilla explained that an “in-person showup” is when a witness is taken to view a suspect who is detained within two hours of an incident. Id. at 86. A “photo showup” is where a witness is only shown one photograph and asked if the witness can identify that person. Id. at 87. This photo showup procedure becomes relevant in relation to Anna Rodriguez, a cooperator in the case at hand. Id.
Detective Padilla agreed with counsel that Anna Rodriguez was an active participant in the murder alleged in the federal indictment. Id. He also agreed that at the time of his interview of Rodriguez she was facing very severe, life-altering consequences. Id. It was Detective Padilla's understanding that ATF was attempting to use Rodriguez “as a source to try to essentially solve the homicide that we were investigating.” Id. at 88. Detective Padilla agreed that Rodriguez agreed to cooperate “to help herself.” Id. Counsel inquired of Detective Padilla if the photo showup was used during the Rodriguez interview. Id. at 89. Detective Padilla could not recall and needed to review reports to answer that question. Id. As such, counsel reserved questioning on this subject area for redirect examination. Id. at 90.
2. Cross-Examination by Government Counsel
During the course of his work in the gang unit, Detective Padilla has had a “non-Black person convicted of first degree murder in the state.” Id. at 96. In fact, he has “had multiple people, of multiple races, be convicted of murder in the state.” Id.
The victim in the hooklah lounge shooting was Hispanic. Id. at 96-97. Detective Padilla did not obtain any information from any witness regarding the identity for the Hispanic shooter. Id. at 97. Other than the video, he also did not get any information about the identity of the African American shooter. Id. The only evidence that he had was that he recognized Michael Williams in the video. Id.
With respect to the Marshall Davis homicide, Detective Padilla testified that Davis was a Black male who was a rival gang member in the Freestone gang. Id. Marshall Davis is the brother of Floyd Davis, who was also a member of the Freestone gang, whose murder is charged in the federal indictment. Id. at 97-98. The murder of Floyd Davis was “part of a string of at least a half a dozen murders back and forth that started when, allegedly, Floyd and Marshall Davis shot and killed Marcus Darton, one of the OGs and leaders of the Western Hills gang.” Id. at 98. The interview of Mr. Howell pertained to these murders. Id.
Detective Padilla identifies as Hispanic. Id. at 99. Detective Padilla testified that he does not hold any racial animus towards African Americans, members of the Western Hills Bloods, or Troy Howell. Id. at 98. His investigation of the Western Hills Bloods was the result of the evidence that he discovered through his detective duties and not as a result of their race. Id. at 98-99. The shootings between the Western Hills Bloods and the Freestones were a public safety issue that law enforcement was trying to address. Id. at 99. Detective Padilla agreed with counsel that gangs determine their membership and, “generally speaking, violent crime street gangs tend to be of the same race.” Id. at 100. Detective Padilla has investigated other gangs in Tucson who were predominantly of one race, which included White and Hispanic gangs. Id.
The interview of Troy Howell focused on questions about the gang, its structure and familial relationship, and also his role in the murder of Marshall Davis. Id. at 101. Even though Detective Padilla accused Howell of lying, the interview was cordial. Id. At the time of the interview, Detective Padilla had confirmation that Mr. Howell's DNA was found in a car that had been at the scene of the murder. Id. Detective Padilla used the term “bred” to lie when he confronted Howell with this DNA evidence. Id. at 102. He also told Howell that he will “always be looking at you” because he confronted Howell with the physical evidence and will “always feel that he was involved in some way.” Id. at 103. Detective Padilla asked Howell about pimping because one Western Hills gang member was involved in that activity. Id. at 103-104.
With respect to the use of the word “bred,” counsel pointed to two definitions of that word from the dictionary: (1) developed from the womb; hatched from the egg; brought forth; and (2) reared; brought up; trained. Id. at 104. Detective Padilla testified that he used the word “bred” in the context of being “trained” or “brought up” in the gang. Id. at 104-105. Based on his experience, being brought up and trained in the gang includes not being forthcoming with law enforcement. Id. at 105. Detective Padilla testified that Howell did not seem to be offended by the use of the word “bred,” which occurred about halfway through the interview. Id. at 105-106. Howell continued to answer questions after this word was used. Id. at 106.
Detective Padilla has done hundreds of interviews during the course of his career, including many on this case. Id. Other than the Howell interview, there have never been any question about his “word usage” or accusations of racism. Id.
3. Redirect Examination by Ms. Turk on Behalf of Troy Howell
Detective Padilla agreed with defense counsel that if someone in his position were to admit that he has racial animus toward Black people generally or Howell specifically he would likely face termination or a civil rights prosecution. Id. at 110. Detective Padilla agreed with counsel that he told Howell: “You're lying. You were bred to lie.” Id. at 112. He also agreed that Howell responded: “No. I am bred to lie? . . . So when I came out my momma's womb, I was bred to lie.” Id.Detective Padilla further agreed that he responded: “I don't know. Were you?” Id. Detective Padilla accepted defense counsel's assertion that Howell interpreted that question to mean that there was something about the reproductive process that contributed to lying. Id. at 113. Detective Padilla agreed that not all targets of racial slurs or epithets speak out at the moment. Id. He also agreed that it is possible that a target does not speak out because the person who made the racial slur is in a position of control or power, and the target is afraid of retribution. Id. Detective Padilla agreed that he was in a position of control and power over the interview. Id. at 114. But he denied counsel's accusation that he likes being in control and power. Id. However, Detective Padilla agreed that the transcript of the interview reflects that Howell told him that he is “in control right now,” and he responded: “All right. I like that.” Id.
4. Redirect Examination by Mr. Sherick on Behalf of Jermaine Maxwell
Detective Padilla agreed that a photo showup was done during the interview with Anna Rodriguez. Id. at 114-115. He also agreed that she did not identify Maxwell in the first photo she was shown. Id. at 115. After not being able to identify the person in the first photo, Rodriguez was provided with a second photo. Id. at 116. Detective Padilla denied that a photo array was not used because of a concern that Rodriguez would not make an identification. Id. at 118. Detective Padilla explained that the photo showup was used because Rodriguez knew Maxwell. Id.
Detective Padilla disagreed with counsel that a photo showup is the worst identification procedure. Id. at 115. When asked what is the worst procedure, Detective Padilla responded: "showing a picture of a single person who has never met that person would be a horrible process." Id. Detective Padilla recalls using a photo showup procedure with a gang member who was Hispanic. Id. He cannot recall if he has used a photo showup with a White gang member. Id. at 119.
5.Re-Cross Examination by Government Counsel
Before showing Rodriguez the picture of Maxwell, Detective Padilla knew that she had met him in person and had mentioned or said his name. Id. at 122. He explained that this identification technique is not “a bad way to ID somebody” when somebody says they're familiar with someone. Id. He was not concerned about a false identification because Rodriguez “gave us the inclination that she had met him.” Id. at 123. He does not believe that he did “anything unduly suggestive or against policy” in order to get Rodriguez to identify Maxwell. Id.
ATF Agent Paul Parkinson
1.Direct Examination by Defense Counsel
a. Steve Sherick for Jermaine Maxwell
ATF opened its investigation into the Western Hills Bloods in June 2015. Id. at 125. In late May 2015, TPD Detective Frieberg and ATF Agent Berlin “had a conversation about the ongoing retaliatory violence between the Freestone Bloods and the Western Hills Bloods.” Id. “After the investigation was opened in June of 2015, a review of TPD incident reports was done involving members of the Western Hills Bloods.” Id. at 129.
Agent Parkinson does not have personal knowledge about why a TPD report related to Maxwell's arrest in 2013 says to hold evidence for seven years, but it “was most likely because the evidence was pertinent to an ongoing investigation and a larger federal investigation.” Id. at 132. He probably was made aware at some point that no charges were brought to a state grand jury. Id. at 133. He was not aware that the incident that led to Maxwell's arrest in 2013 was not included in the federal indictment until after the state statute of limitations had run. Id. at 134. He is aware that a 2016 arrest of Maxwell was included in the federal indictment. Id. at 136. He is also aware that this 2016 case was initially charged in state court and was pending for three years before being dismissed in 2019. Id. He does not recall if he had discussions with the prosecutors about the dismissal of the state case. Id. at 137. He would not have documented the reason for the dismissal. Id. at 138. Agent Parkinson is not aware “that defendants have more extensive procedural rights in state court than they do in federal court.” Id. at 139-140. He does know that witnesses are not required to submit to pretrial interviews by defense counsel in federal court. Id. at 140.
b. Anthony Payson for Samuel Rakestraw
Agent Parkinson has never been involved in a RICO homicide gang case before. Id. at 142. He again testified that Agent Frieberg and Agent Berlin discussed retaliatory gang violence at a gang investigators conference in May 2015. Id. at 143. Agent Parkinson disagreed with counsel's assertion that Agent Berlin was removed from this case. Id. at 145. He explained that prosecutors raised an issue about an interview that Agent Berlin took part in. Id. He added that Agent Berlin “did not have any racially motivated bias,” there was no malfeasance, and no violation of constitutional rights. Id. Agent Parkinson agreed with counsel that Mr. Gray invoked his right to counsel and Agent Berlin “sort of” continued to ask him questions. Id. at 146. He explained that Agent Berlin “did not expect or anticipate an answer in return, and after [he] recognized that he posed a question, he advised Mr. Gray to not answer the question.” Id. at 146-147. Agent Parkinson does not believe Agent Berlin was reprimanded for that conduct. Id. at 147.
c. Trevor Hill for Marcell Gray
Agent Parkinson agreed that when a person in custody invokes his right to counsel, law enforcement is supposed to stop all questioning. Id. at 148. He also agreed that an interrogation can be deemed coercive interrogation if questions are asked after a request for counsel. Id. Agent Parkinson agreed with counsel that Detective Frieberg told Mr. Gray: “You're always shaking when you see me.” Id. at 186. Agent Parkinson admitted that he mentions “phone a friend,” which is a reference to a game show, after Gray is advised of his Miranda rights. Id. at 187.
Agent Parkinson agreed that Agent Berlin continued to speak with Gray after he invoked his right to counsel. Id. at 187. However, he added that Agent Berlin was not intending to get a response and made a mistake. Id. at 187-188 Counsel pointed out that Agent Berlin made another mistake by asking another question. Id. at 190-191. Agent Parkinson testified that Agent Berlin “is acknowledging a second time that he inadvertently asked a question.” Id. at 191. Counsel pointed out there is additional discussion among the agents about the same subject matter as the questions. Id. at 192. Agent Parkinson testified that “[t]here was an effort to get Mr. Gray to see that investigators were not bluffing when they said the evidence in the case was strong, and it was an attempt to give Mr. Gray an opportunity to cooperate with law enforcement if he had the interest and the desire.” Id. at 193. Agent Parkinson agreed with counsel that none of the law enforcement officers attempted to put Gray in touch with counsel. Id. Agent Parkinson admitted that he told Gray: “You know, we didn't ask for a lawyer, so you can still ask us questions.” Id. at 195. He agreed that Gray stated that he would rather call his lawyer, but no officer gave him the chance to do so. Id. at 195-196.
Agent Parkinson agreed that as a result of the interview of Mr. Gray, Agent Berlin was not permitted to participate in interviews on this case. Id. at 198-199. However, Agent Parkinson denied that Agent Berlin was “pulled from the case.” Id. at 199-200.
2.Cross-Examination by Government Counsel
Agent Parkinson testified that ATF and TPD “were looking back historically at other incidents involving Western Hills Bloods gang members” to determine "whether or not those could potentially contribute to federal charges." Id. at 152-153. Thus, “any requests made to hold evidence in 2016 would be pertinent to that inquiry.” Id. at 153. Agent Parkinson explained that the initial investigation was based on the Floyd Davis homicide in 2015. Id. It was later determined that there were other violent incidents that were connected to those people involved in that homicide. Id. at 154. The investigation identified Maxwell as a potential leader of the Western Hills Bloods at the time of the Floyd Davis murder. Id. The investigation was not “based on any racial bias or animus towards Mr. Maxwell or towards African Americans in general.” Id. at 155. The investigation was based on the evidence that ATF and TPD had at that time. Id. All of the murder victims were African American. Id.
Agent Parkinson testified that there was a former member of the prosecution team that had a disagreement with Agent Berlin about the Gray interview and “other personality issues.” Id. at 156. According to Agent Parkinson, Agent Berlin's intention for making statements after Gray invoked his right to counsel was to let him know that law enforcement had a good case against him in the hopes that he would cooperate with law enforcement. Id. at 204. To the best of Agent Parkinson's knowledge, Agent Berlin's actions were not motivated by Gray's race, but rather the instant crimes he is charged with. Id. at 205. The ATF supervisors for Agent Parkinson and Agent Berlin were both Black. Id. at 206.
3. Redirect Examination by Steve Sherick for Jermaine Maxwell
Agent Parkinson agreed with defense counsel that there are TPD reports from 2013 and 2016 that say hold evidence for seven years. Id. at 157. Agent Parkinson testified that “[t]here were many disagreements . . . between investigators and a member of the prosecution team.” Id. at 158. There were “disagreements about the speed of the prosecution and the work of the U.S. Attorney's Office at the time.” Id. at 159. Agent Parkinson did not document the disagreements. Id. at 160, 162. However, he believes there are documents about disagreements with the prosecution contained in emails or in the management log. Id. at 162.
TPD Detective Alexandra Frieberg
a. Direct Examination by Mr. Sherick on Behalf of Mr. Maxwell
Detective Frieberg was a detective in the gang unit of the TPD from 2013 to the summer of 2021 when she transferred to the homicide unit. Id. at 165. She is still the case agent on the instant case. Id. There are about 300 gangs in Tucson; there are Hispanic gangs, Black gangs, and White gangs. Id. at 166. Detective Frieberg received anti-bias training through the TPD but cannot recall when the training occurred. Id. at 169. She agreed that a person could say that they are not prejudiced, but their behavior indicates otherwise. Id. at 169-170.
Detective Frieberg spoke with Agent Berlin in mid-2015 “about criminal activity within specific groups.” Id. at 170. She believes that is when ATF became involved in this case. Id.
Detective Frieberg does not know why Maxwell was not prosecuted by the state on drug charges stemming from his arrest on July 10, 2013. Id. at 172. She admitted that she entered a note on a police report that states hold the evidence from this arrest for seven years. Id. at 174. She is unclear when she made that note, but it would not have been in 2013. Id. She explained that the “hold” in 2013 was made for forfeiture purposes. Id. at 175. She does not specifically recall a case involving a White or Hispanic gang member where property was seized and held for “six or seven years, without ever filing a forfeiture action or a criminal case.” Id. at 181. She agreed that the state statute of limitations for a drug crime committed in 2013 would have expired in 2018. Id. at 182-183.
Agent Frieberg was recalled as a witness on April 7, 2022, and counsel continued with his questioning about the 2013 arrest. Counsel noted that the report dated July 10, 2013 states “[h]old for investigative purposes.” 4/7/22 Tr. (morning session) at 12-13. Detective Frieberg maintained that this reference relates to the forfeiture, even though it does not say “forfeiture.” Id. at 13. She conceded that the “collection purpose was for evidence,” but “[t]hat has nothing to do with a forfeiture hold.” Id. at 14-15. She is not aware of “any case in court that was filed with regard to this incident before 2018.” Id. at 15. Detective Frieberg has a pending homicide case in state court involving White defendants where evidence was collected and held for five years without initiating legal proceedings with regard to items seized. Id. at 17-18. She also has had a case involving a Hispanic person where an arrest was made, property was seized and held for five years, but no charges were filed. Id. at 21. She cannot recall the precise case, but she is willing to provide counsel with that information. Id. at 23.
Detective Frieberg has had training on identification procedures. Id. A “line-up” is where a series of six photos are shown to a witness or victim. Id. at 24, 27. The person is shown one photo at a time in no particular order and asked if they recognize the person. Id. The person is told that hair color or complexion color may change or people may look slightly different in photographs than in person. Id. at 24-25. This procedure is followed to make sure there is not a mistaken identification and that law enforcement does not “suggest to the witness who they want them to identify.” Id. at 25-26. Detective Frieberg has never done a live line-up. Id. at 26. A show-up is when a person is in custody in the field and the witness or victim is taken to see the person within two hours of a crime or incident. Id.
Detective Frieberg is not familiar with a “photo show-up.” Id. at 28. Counsel explained that he was using that term to mean when a witness or victim is just shown one photo and asked if they can identify the person. Id. When asked if a photo show-up is a good procedure, Detective Frieberg testified that "[i]f the person knows the individual we're talking about, then that's okay to show them a single photo as opposed to a sequential line-up." Id. at 28-29. But it would still be inappropriate to suggest to the person that law enforcement wants "them to make an identification." Id. at 33.
Detective Frieberg was involved in interviewing Anna Rodriguez multiple times in connection with this investigation. Id. at 29. On July 17, 2015, she was interviewed in an attempt to obtain her cooperation. Id. It was believed that she was involved in setting up the murder of Floyd Davis; specifically, she invited him to the place he was killed. Id. at 29-30. Detective Frieberg initially testified that during that interview, Rodriguez “expressed fear of her own safety, not so much as to be[ing] arrested.” Id. at 30. However, Detective Frieberg later testified that Rodriguez was “afraid of being prosecuted.” Id. at 44. Detective Frieberg agreed that Rodriguez was told “that the feds can help her.” Id. She also agreed that Rodriguez had lied to law enforcement at an interview the morning after the homicide. Id. at 34-35.
Detective Frieberg agreed with counsel that prior to the interview on July 17, 2015, “Rodriguez had never uttered the name Jermaine Maxwell” or “Caps” or that she knew Jermaine Maxwell in any way, shape, or form.” Id. at 33-34, 36. Detective Frieberg agreed that at the July 17th interview, she was “the first one who brings up a person named Caps.” Id. Specifically, Detective Frieberg “said to Ms. Rodriguez, 'Can I show you a picture? Would you tell me if it was Caps?'" Id. at 46. Rodriguez could not identify the man in the picture. Id. at 48, 50. Specifically, Rodriguez says, "'It's not the person in the photo. He's their OG.'" Id. at 48. Then Detective Padilla says, "'Then that's the same Caps we know.'" Id. The detectives then proceed to show Rodriguez another photo. Id. at 50. Detective Frieberg agreed with defense counsel's statement that “[n]ow, when you've got an informant who you already know has a predilection to lie and that you're trying to cultivate as a witness,” you do not want “to plant information to that witness that they can later use to testify to” or “suggest your theory of investigation, who you think did what.” Id. at 47-48. Agent Frieberg testified that she's “shown single photos in other cases before.” Id. at 53.
Detective Frieberg did not have any discussions with the state or federal prosecutors regarding the dismissal of the state case against Maxwell in 2019. Id. at 60. She has no idea why the state case was dismissed. Id. Detective Frieberg is aware that “defendants in state court have a right to interview all witnesses before trial.” Id. at 61. She agreed that “in every single gang case that [she's] been called to testify to in state court involving white or Hispanic gang members,” she was required to submit to an interview before trial.” Id. She is not willing to submit to an interview in this case. Id. at 61-62.
b. Direct Examination by Mr. Payson on Behalf of Mr. Rakestraw
Detective Frieberg agreed with counsel that this is a “unique case” and that this is her first federal case. Id. at 65-66. She also believes that this is “the only RICO gang case ever prosecuted here in Tucson.” Id. at 66. She has been involved in hundreds of gang investigations; any investigation that resulted in a prosecution was charged in state court. Id.
Detective Frieberg again testified that Rodriguez said that she was afraid of people after the Floyd Davis homicide, some of which included members of the Freestones gang. Id. at 69. She was specifically concerned about Freestone gang members who “were showing up to her work.” Id. Detective Frieberg did not investigate the Freestones for intimidation; she did not know what crime TPD would be investigating. Id. She explained that Rodriguez “didn't indicate any threats were made . . . only that they were showing up to her work.” Id. at 70.
Detective Frieberg agreed that the instant case started as a result of the Floyd Davis homicide in May 2015. Id.She further agreed that she attended an Arizona Gang Conference in June 2015. Id. She received instruction on social media, court testimony, Black gangs, White gangs, Skinhead/White supremacist gangs, and Tribal gangs. Id. at 71-72. She did not learn anything specific to Black gangs; rather, the instruction focused on all gangs, and included “an overview of their clothing, their colors, their tattoos, their gang signs.” Id. at 72.
In the Tucson area, other gangs that are predominantly Black include the Fourth Avenue Crips and the Ruff Ryders (a motorcycle gang). Id. at 73-74. Hispanic gangs include Barrio Chicano, Barrio Anita, and Barrio Hollywood. Id. at 74. White supremacist gangs include Peckerhead and Aryan Brotherhood. Id. She is not familiar with any Asian gangs. Id. She is aware that there are Tribal gangs but does not know their names. Id. at 75.
When asked why this case of primarily Black defendants wound up in federal court when all the other cases that she has investigated did not, Detective Frieberg testified that “in this case at one point federal partners [the ATF] came in to assist us.” Id. She agreed that she has worked with ATF on probably more than two dozen cases that did not wind up in federal court. Id. at 76. In response to counsel's question of why this case was filed in federal court, she testified “[b]ecause this is a unique case.” Id. She explained that TPD was “having a big problem with this gang in particular, and several of the same names were coming up time after time after violent act[s].” Id.
Detective Frieberg believes that ATF became involved in this case in June 2015, “the day before the Super 8 takedown.” Id. at 76-77. She got ATF involved because she met ATF Agent Berlin at the Arizona gang conference. Id. at 77. Detective Frieberg is the lead detective on this case and ATF Agent Parkinson is currently the lead ATF agent. Id. at 78. ATF Agent Don Berlin was the lead agent until he was removed from the case in 2018. Id. at 78-79. Detective Barber was the lead investigator on the E.M. homicide until he was removed from that investigation. Id. at 79. She believes Detective Barber was removed based on “some documentation issues within the case.” Id. Detective Frieberg conceded that there was an Internal Affairs investigation, and she was interviewed as part of that investigation. Id.
Detective Frieberg and Agent Berlin presented the case to the federal prosecutors. Id. at 80. She never presented the case to state prosecutors. Id. She believes that they presented the case to the federal prosecutors in September 2015. Id. at 81. They provided documentation to and met with the prosecutors. Id.
Counsel turned his questioning to comments made during an interview of Mr. Rakestraw. Detective Frieberg agreed that Detective Barber made the following comment during the interview: "'Nobody likes wings, Ethiopian-ass chickens. They're no good for nothing.'" Id. at 82. She disagreed with counsel that this was a racist comment. Id. She denied counsel's assertion that the comment shows Detective Barber's dislike for people from Africa by equating chicken wings with Ethiopians. Id. at 84. She believes that the comment related to Detective Barber's dislike of chicken wings. Id. She cannot recall if Detective Barber has made similar comments. Id. at 86. She has no knowledge of Detective Barber using the “N word” or talking disparagingly about Black people or the Black Lives Matter movement. Id. at 86-87. It is possible that Detective Barber called the defendants in this case “boys.” Id. She does not agree that “it is racist to call an adult Black male a boy” or that it is racially disparaging. Id. at 87-88. However, she does not call adult Black males boys because “they're men.” Id. at 88. TPD has a policy against making racially disparaging comments, and if a TPD officer makes such a comment, it must be reported. Id. She never reported the chicken wing comment. Id. Detective Frieberg has no knowledge about whether Agent Berlin ever made racially disparaging comments about Black people. Id. at 89.
Testimony turned to the interview of Mr. Gray. Detective Frieberg does not recall a decision being made to interrogate Gray even after he invoked his Miranda rights. Id. at 91. She agreed that Agent Berlin kept asking Gray questions after he invoked his rights. Id. She agreed that it is improper to do so, and she does not believe that she has ever done so. Id. at 91-92.
Detective Frieberg was included on the July 28, 2018 email authored by Agent Berlin that addresses the decision of ATF supervisors that he not participate in further interviews in the case. 4/7/22 Tr. (afternoon session) at 6-7. The reason he was not able to participate in further interviews stemmed from what happened in the Gray interview. Id. at 7. When Detective Frieberg testified last week, she had not reviewed the email and could not recall the substance of it. Id. at 9. She disagreed with counsel that Agent Berlin was removed from working on the case; he only could not participate in interviews. Id. at
10. During the course of her career, she does not believe there was another instance when a law enforcement officer was prohibited in taking part in interviews. Id. at 13-14.
c. Direct Examination by Ms. Turk on Behalf of Mr. Troy Howell
Detective Frieberg is aware that Mr. Howell was arrested by TPD on September 11, 2015 for having grams of crack cocaine. Id. at 16. Detective Frieberg does not recall if Mr. Howell was released from custody a couple days later with no state charges because this was not her case. Id. at 17. Detective Frieberg agreed with counsel that the September 11, 2015 arrest is an overt act in the instant case. Id. at 18. Detective Frieberg is not aware that Mr. Howell's case will not go to trial until early 2023; but she agreed that is possible. Id. She agreed with counsel that a person's memory of an event that occurred in 2015 would better in 2015 than in 2023. Id. Detective Frieberg agreed with counsel that TPD was conducting surveillance on September 11, 2015. Id. at 19. She does not recall any video surveillance. Id. If there was video evidence, Detective Freiberg agreed that “it would have been much easier to gather that evidence in 2015 than in 2023.” Id. at 19-20. She also agreed that if there were favorable witnesses who would have helped Mr. Howell's defense, they could have moved or passed away between 2015 and 2023. Id. at 21.
Counsel pointed out that Mr. Howell was charged with a state drug offense in 2016 which is not an overt act in the federal case. Id. at 21-22. Detective Frieberg agreed with counsel that it is possible that the old 2015 drug case could have been prosecuted in state court along with the 2016 drug case. Id. at 23. If that had happened and Mr. Howell was convicted in both cases, it is possible that he could have requested and received a concurrent sentence. Id
Detective Frieberg testified that the County Attorney would have made the decision not to charge the 2015 drug offense. Id. at 25. Detective Frieberg has seen written documentation from the County Attorney on other cases which detailed why prosecution was declined. Id. She does not know if the County Attorney did that for the 2015 arrest. Id.
The 2015 arrest was included as an overt act in the federal indictment because agents and detectives looked at historical incidents. Id.Counsel pointed to a report dated February 18, 2016, which states that the evidence relating to Howell's 2015 arrest should be held for seven years. Id. at 26-27. Detective Frieberg testified that it's possible that “by that time, there had already been [an] understanding that there were going to be possible historic incidents or arrests that would have been included into the federal indictment.” Id. at 27. Detective Frieberg does not know why Howell's March 2, 2016 arrest was not included in the federal indictment. Id. at 28. Detective Frieberg explained that historical incidents were determined by doing a query of names specific to Western Hills that came up with respect to violent acts and looking at the police reports. Id. at 29. The decision of which incidents to include in the federal indictment was decided by the federal prosecutors. Id.
Detective Frieberg is not aware that federal prosecutors “filed a notice in this case indicating that Mr. Howell is facing a mandatory minimum of 25 years.” Id. She is aware that Howell is facing a “pretty harsh penalty here in the federal system.” Id. at 29-30. She agreed that Howell would possibly be facing much less prison time in state court for possessing grams of cocaine. Id. at 30.
d. Direct Examination by Ms. Carrillo on Behalf of Mr. David Williams
Detective Frieberg testified that it was a “team effort to look into historical incidents” involving Western Hills gang members. Id. at 32-33. She explained that the focus was on this group because they “were the ones that were causing the majority of our case load at that time.” Id. at 33. She further explained that there were “several cases that Western Hills [had] been involved in and their names [had] been brought up, whether it be victims, witnesses, evidence left at the scene.” Id. at 34. That information is what led law enforcement to the group of names that were queried. Id. at 34-35. Officers also ran name queries on Freestone gang members, but those records were not provided to the government. Id. at 35-36.
e. Direct Examination by Mr. Hill on Behalf of Mr. Marcell Gray
Detective Frieberg agreed with counsel that TPD has a “code of conduct that governs how you're supposed to be a police officer in the Tucson Police Department.” Id. at 37. The code of conduct encompasses professional responsibilities in interacting with the public, how officers relate amongst each other, and an obligation to report violations of the code of conduct. Id. at 38. TPD officers also receive trainings regarding investigations, special sciences, forensic analysis, how to be an effective and ethical police officer, and avoiding racial bias. Id. at 38-39.
Detective Frieberg agreed that “there's a long history in this country of police being abusive to certain communities.” Id. at 39. As a result, TPD takes steps to ensure that officers are aware of explicit bias, such as using racial slurs or going after someone only because of race. Id. TPD also trains officers on implicit bias, which is “unconscious attitudes” that a police officer “might have about certain groups of people.” Id. at 40. The goal of this training on explicit and implicit bias “is meant to help [law enforcement] not perpetuate that legacy of racism in this country.” Id. Detective Frieberg admitted that people fail in that goal and that's why the code of conduct exists. Id.
Detective Frieberg does not recall learning anything about “coded language” in bias trainings. Id. She agreed that there is a list of words that have been designated as slurs, such as "the 'N' word when used by a White person to a non-White person." Id. at 41. She also agreed that racism and prejudice can be demonstrated subtly without a person using slurs, which is why implicit bias training is important. Id.
Detective Frieberg has been trained in the Reid Technique which “is a series of skills, so to speak, to try and elicit information from somebody in an interrogation.” Id. at 43. The Reid Technique includes not just how questions are asked, but also mannerisms and putting authority to the question. Id. The Reid Technique also involves projecting on the interviewee that law enforcement has a better understanding of the case than they may actually have. Id. at 44. It also involves lying about the evidence collected or facts known by law enforcement. Id. It can also involve not accepting a person's denial of involvement in a crime based on the presumption that people are going to deny criminal conduct. Id. at 45.
Detective Frieberg confirmed that her prior testimony was that she did not consider it disparaging to call a Black man a boy. Id. at 48. She explained that oftentimes gang members refer to each other as “homeboy” or “that's my boy,” so it's normal talk for them. Id. She agreed that it would be offensive if a TPD supervisor referred to her as a little girl. Id. at 49. Counsel asked whether she recalled referring to Mr. Gray in that way during the interview on October 10, 2014. Id. Specifically, counsel read the following from the transcript of the interview: "You're lying to my face. I know you were in the area. Yes, it's like watching a two-year-old put his hand in the candy jar and then turn around and say, 'No, I didn't do it.'" Id. at 50. Detective Frieberg denied that she was referring or comparing Gray to a two-year-old child. Id.
Detective Frieberg agreed that she commented on Gray's nervousness during the 2014 interview, which is a strategy used in the Reid Technique. Id. at 51-52. She also agreed that inducing additional nervousness may have potentially caused Gray to talk a bit more. Id. at 52. Detective Frieberg also commented on Gray's nervousness several times during a 2015 interview, including asking him why he was shaking. Id. at 53. She agreed that an interviewee could be nervous because they did something wrong. Id. She also agreed that an interviewee could be nervous because they had a bad experience with law enforcement, for instance, if the “[p]olice broke somebody's face during an arrest” or if a person was hit until they vomited. Id. Detective Frieberg conceded that these are “things that happened to Mr. Gray from law enforcement” during a 2015 interaction with the police. Id. at 54. She also conceded that Gray's negative experience with law enforcement could have been the reason he was nervous. Id.
Detective Frieberg took part in the 2015 interview of Gray which led to Agent Berlin being asked not to participate in further interviews because he violated Gray's Miranda rights. Id. at 55-56. She agreed that law enforcement officers are supposed to stop questioning a suspect when that person invokes his right to counsel. Id. at 56. She also agreed that Gray was asked questions after he invoked his right to counsel. Id. at 56-57. She further agreed that neither she nor other officers provided him with a phone to call an attorney. Id. at 58. Detective Frieberg conceded that she threatened Gray with consequences - i.e., spending his life in prison - if he did not speak with law enforcement. Id. at 59. She believes that this tactic is part of the Reid Technique. Id. at 60.
Counsel turned to the interview of an eyewitness to the E.M. homicide. Detective Frieberg agreed that “one of the very first things you're supposed to do with an eyewitness is try and see what they remember at the time” because their memory is usually going to be “best and freshest right when things just occurred.” Id. at 63. She also agreed when law enforcement has several lay witnesses the proper procedure is to separate them (which was done for these interviews) so one person's memory is not “impacted by what other people said.” Id. at 65. She further agreed that police should not be “suggesting information to a witness.” Id. at 66. TPD was able to interview several eyewitnesses to the E.M. homicide in 2014 and obtained a description of the person who committed the murder. Id. at 64. One of the people that TPD spoke with was Precious Foster. Id. at 66. Detective Frieberg agreed that Foster described the person that "'walked up to the subject and finished him off' as a Hispanic male in his 30's." Id. Aubra Simmons also described the person who shot E.M. as “a Hispanic male, heavy set, wearing a white T-shirt and blue jeans.” Id. at 67. Additionally, Gregory Reed said that “the driver was a Hispanic male.” Id. at 68. Detective Frieberg agreed that Detective Barber wrote a supplement that identified these same three witnesses “as saying a Hispanic male was involved with the perpetrator of the E.M. Homicide.” Id. at 68.
Testimony turned to the investigation of “a group of Black men in [the] Western Hills neighborhood.” Id. at 69. Detective Frieberg agreed that law enforcement “started going back through their past associations,” meaning “documentary evidence of them having contact, knowing each other.” Id. at 70. She also agreed that TPD “had taken an interest in this particular suspect group for quite some time,” well before Operation Green Light and dating back “to when they were kids at the Boys & Girls Club together.” Id. at 71. She further agreed that "law enforcement had been interacting with them since they were juveniles and started to develop those ties and associations." Id. at 72.
Testimony returned to the interview of Mr. Gray on October 10, 2014 about the E.M. homicide. Id. at 72-73. Detective Frieberg agreed that several times during the interview she applied the Reid Technique by telling Mr. Gray that: "'I'm just trying to help you.'" Id. at 73. She agreed that was not “explicitly true.” Id. However, she added that “possibly a statement could help him.” Id. Detective Frieberg also told Gray that she would like to verify the alibi that he provided. Id. at 74. She agreed that Gray told her that he “had nothing to do with the E.M. homicide; and after his interaction with E.M., he and two women drove away in a red Dodge Avenger.” Id. He also gave the first names of those women. Id. Detective Frieberg agreed that Detective Truba had the license plate number of that car and brought that up during the interview. Id. at 74-75. Specifically, he told Gray that he saw him “in a maroon Dodge Avenger with that plate.” Id. at 77. Detective Frieberg did not run a query on the license plate number and could not initially recall if another detective did so. Id. at 77-78. However, when shown a police report, she agreed that “Detective Crawford requested Detective Lara to do some follow-up investigation.” Id. at 78. She agreed that Detective Lara's report reflects that he “‘was unable to locate any vehicle record for a Dodge Avenger associated to Gray'” or “associated to any address or persons associated to Gray.” Id. at 79-80. She also agreed that there is no indication in Detective Lara's report that he looked up the license plate of the car for Mr. Gray. Id. at 81. It appears to Detective Frieberg that Detective Lara “never followed up on that lead” and “[j]ust remained fixated on Mr. Gray.” Id.
Testimony returned to the law enforcement interview protocols for witnesses. Detective Frieberg agreed that officers should not put “words in people's mouths” or “reveal the details of [an] investigation or their suspicions to just anybody who asks.” Id. at 81-82. She agreed that sometimes law enforcement may “leak information to a potential witness, hoping it disseminates,” and the witness may know a person. Id. at 82-83. But she agreed that a possible danger is that law enforcement “could end up with false information down the pipeline.” Id. at 84.
Testimony turned to Detective Barber's interview of Jimmy Elem about the E.M. homicide. Id. Counsel played a portion of the audio of that interview. Id. at 84-85. Detective Frieberg testified that she could not identify Elem's voice but could identify Detective Barber's voice. Id. at 85. It sounds like the person being interviewed says: “‘I know the young man you're talking about.'” Id. at 86. It also sounds like Detective Barber says “‘Moss.'” Id. In response to counsel's question of whether Elam is talking about E.M., Detective Frieberg testified that she is not sure because she does not “really know the context to it.” Id.
f. Examination by Government Counsel
Detective Frieberg testified that she is not biased against African Americans and does not harbor any racial animus against any of the defendants in this case or the Western Hills Bloods. Id. at 93. The investigations of the Western Hills Bloods were the result of the evidence that she discovered during her detective work and not as a result of their race. Id. at 93-94. Detectives Frieberg and Barber have Hispanic backgrounds. Id. at 94. Detective Frieberg's investigations of the Western Hills Bloods included violent offenses not charged in the federal indictment, as well as several associates of that gang that are not African Americans. Id. Gang members determine their own membership and violent street gangs tend to be mostly of the same race. Id. at 95. Detective Frieberg has investigated Hispanic and White gangs and gang members. Id.
Detective Frieberg has investigated people of different races for first-degree murder in her career. Id. at 96. She has also had non-Black defendants sentenced to life imprisonment for murder, as well as lengthy prison sentences for selling drugs. Id. at 97. The potential penalty for murder in Arizona is life imprisonment and if premeditation is involved, a life sentence is mandatory. Id.
Detective Frieberg testified that it would be unethical to use race in her decision to arrest or present charges. Id. at 96. To the best of her knowledge, neither she nor any law enforcement officer who worked on this case has done so. Id. Race only plays a role as to a specific physical characteristic, and is not relevant to the evidence and the decision to arrest or present a case. Id. at 96-97.
During the course of the investigation of this case, Detective Frieberg learned that Western Hills gang members “would coerce, mislead, or force females of color to rent homes for shops, [and] rent cars for violent offenses and other acts.” Id. at 95. Detective Frieberg reached out to Agent Berlin about problems that TPD was having with Western Hills gang members committing violent acts. Id. at 98. Specifically, “after speaking to Anna Rodriguez and [her] expressing concern for her safety,” she reached out to Agent Berlin to see if ATF could assist because TPD does not have resources to offer her protection. Id. She testified that ATF is “able to offer significantly more protection and resources.” Id. at 99. The decision to reach out to ATF had nothing to do with the race of the suspects. Id. Detective Frieberg's understanding is that Rodriguez has a Hispanic background. Id.
Detective Frieberg knew “that there were going to be federal charges in this case” in 2018, and not in 2015 when she reached out to ATF. Id. She became aware that there were going to be additional RICO charges in 2020. Id. at 100. She testified that when law enforcement officers evaluate a case such as the one at hand, they look at prior police reports to see if other items could be relevant to further the investigation. Id. With respect to items of evidence held by TPD, Detective Frieberg testified that contraband (such as illegal drugs) seized during a search warrant are not returned to their owners. Id. at 101.
Prior to showing Rodriguez photographs of a person TPD believed to be Caps, detectives had “a discussion with her to get her basic knowledge of who these people were that [she] was talking about.” Id. at 102. In fact, Rodriguez said that “she had known all of them forever, essentially that they had grown up together and so she knew all of them.” Id. That is why Rodriguez was shown the photographs. Id. Rodriguez did not initially identify Maxwell in the first photo she was shown; but she did when shown other photographs. Id. at 102-103. At the time of this interview, law enforcement did not know if Rodriguez was going to cooperate fully with the government. Id. at 103. Rodriguez was expressing concern for her safety and being arrested. Id. She was receiving threats from various people within both the Western Hills and Freestone gangs. Id. at 105.
With respect to the August 24, 2012 incident involving Maxwell, there was an individual identified as T.M., another Black male, who had not been charged. Id. This incident occurred at a “shop” run by the Western Hills Bloods. Id.
Detective Frieberg has submitted to interviews by defense attorneys in state gang cases involving Black males. Id. at 106. Her decision not to submit to such an interview in this federal case is because she is not required to do so, and not because of the race of the defendants. Id.
Detective Frieberg again testified that gang members often call each other “my boy.” Id. She does not recall ever using the word “boy” in an interview. Id. She has never called anyone a “homeboy.” Id.
Detective Frieberg testified that this case is “unique” because of the amount of violence that was occurring between Western Hills and the Freestones, which is also predominantly a Black gang. Id. at 107. She explained that “[t]here was an ongoing feud back and forth between two rival gangs that we, as detectives, couldn't keep up with.” Id. There was “nonstop back and forth with the same names that kept coming up and nonstop even within the same gang.” Id.
Testimony turned to Detective Barber's “use of the word ‘Ethiopian' to describe the chicken wings.” Id. Detective Frieberg worked with Detective Barber for a long time and were friends. Id. at 107, 109. She explained that Detective Barber did not like chicken wings. Id. at 108. As a bigger guy, Detective Barber “liked a large chunk of meat,” and often complained that wings had little meat on the bone. Id.After Rakestraw told Detective Barber that he went to Wings & Rice for lunch, Detective Barber jokingly asked him if he had wings and rice. Id. When Detective Barber said chicken wings are “no good for nothing,” Detective Frieberg interpreted that comment to mean that “[h]e doesn't like chicken wings.” Id. She never heard Detective Barber use racist comments. Id. at 109. She would not have been friends with him if he had done so. Id. She would have reported Detective Barber if he had even made racist comments. Id. If another officer made a racist comment during an interview, she would “[s]top the interview, interject, have the other person who was making the comment leave, bring somebody else in, [and] notify a supervisor.” Id.Rakestraw never gave “any indication that he believed that Detective Barber's comment was either directed at him or a racist comment.” Id. When Detective Frieberg testified that the chicken wing comment “sounds like Detective Barber,” she meant that he would make “off-the-wall” comments at times. Id. at 110.
Detective Frieberg testified that there are several cases involving the Freestones gang. Id. at 111. Those cases were not presented to federal prosecutors because the Freestones were not “as active as the Western Hills” who were “committing violent offenses.” Id. In fact, the Western Hills gang was creating most of the violent crime caseload in her unit. Id. at 111-112. The Freestones were essentially “losing the battle against the Western Hills Bloods at the time.” Id. at 112.
Detective Frieberg testified that during the course of the investigation, Detective Barber learned that a suspect who was arrested was actually innocent. Id. As a result, that person was released from the Pima County jail. Id.
Detective Frieberg admitted that during an interview with Gray, she used the analogy “about a two-year-old with their hand in the cookie jar.” Id. But she never referred to him as a “boy” during that interview or during any interaction with him. Id. at 112-113. Both Detective Frieberg and Detective Truba both noticed that Gray was shaking during the interview and appeared to be nervous. Id. The December 19th stop of Gray that led to his resisting arrest which allegedly caused him to be nervous occurred two months after her interview of Gray. Id. at 113-114.
Detective Frieberg later learned that the technique used to get Gray to make statements after he invoked his right to counsel was not appropriate. Id. at 114. But those statements were not intended to elicit a response from Gray during the interview. Id. And the technique was not used based on his race. Id. It was used because Anna Rodriguez was having recorded phone calls with David Williams who is a close associate of Gray. Id. The statements were made to “prompt Mr. Gray to say[] something to Mr. Williams” during a recorded call and to alert Gray to the ongoing investigation in the hope of discouraging continued violence. Id. at 115.
The victims of the violence committed by the Western Hills Bloods are mostly Black. Id. at 115-116. The focus of the investigation was on Black males involved in the Western Hills gang, and not just Black males in that neighborhood. Id. at 116. Law enforcement's interest in the gang members was based on the violent crimes they committed and not their race. Id.
The October 10, 2015 interview of Gray occurred “after law enforcement had intervened to stop an attempt on his life.” Id. at 117. The person who wanted to kill Gray was prosecuted and convicted as a result of the work of some of the law enforcement agencies involved in this case. Id.
Detective Frieberg has done hundreds if not thousands of interviews during her career. Id. at 119. Before the instant motion was filed, she does not believe that there was ever a question about her word usage in interviews. Id. at 118. She has never had “any accusations such as the ones made in these motions.” Id. at 119.
g. Redirect Examination by Mr. Sherick on Behalf of Mr. Maxwell
Detective Frieberg again testified that both she and Detective Barber have a Hispanic background. 4/27/22 Tr. at 11-12. She agreed with counsel that a person with a Hispanic background can still be prejudiced. Id. at 12. She also agreed that the “real inquiry to determine whether or not somebody's prejudiced wouldn't necessarily be what they said or what their ethnic background is, but how they behaved.” Id. at 13.
Detective Frieberg told Anna Rodriguez during her July 17, 2015 interview that she had access to federal resources. Id. ATF was not involved in the investigation at the time of this interview. Id. She explained that TPD had worked closely with ATF in the past, but that did not mean they were “an automatic resource.” Id. at 14. However, she believed that she could obtain ATF assistance because when she spoke with ATF Agent Berlin about a month earlier, he told her “to keep him in mind for assistance if needed.” Id.at 14-15.
At the time of the July 2015 interview, Detective Frieberg did not know Rodriguez's “role clearly at the time” in terms of whether she would be a cooperator. Id. at 16. The interview was not necessarily to recruit her as a cooperating witness. Id. Detective Frieberg told Rodriguez that federal law enforcement could likely help her “[b]ecause she expressed fear for her safety and her children's safety.” Id. Detective Frieberg conceded that Rodriguez also expressed concern “about getting charged with first-degree murder.” Id. at 17.
With respect to the photo “show-up” of Mr. Maxwell, Detective Frieberg testified that when Rodriguez said that she grew up with “these people,” she did not know who Rodriguez was referring to. Id. at 20. Detective Frieberg agreed with counsel that Rodriguez “had never mentioned the name ‘Caps' or ‘Jermaine Maxwell' before she was shown the photos.” Id. She also agreed that she was the first person who said the name “Caps.” Id. Detective Frieberg disagreed with counsel that “using a one-photo show-up because [Rodriguez] grew up with these people was misleading.” Id. at 20-21.
h. Redirect Examination by Mr. Payson on Behalf of Mr. Rakestraw
Detective Frieberg again testified that this case is the only federal case that she has been involved with and that it is a unique case. Id. at 21. She agreed with counsel that this became a federal case when she and Agent Berlin presented the case to federal prosecutors in September of 2015. Id. She does not believe that the case was ever presented to state prosecutors. Id. at 22. She agreed that she could have presented the case to state prosecutors; however, she added that it is “a rather large case for the county attorney.” Id. at 23. But she agreed that individual cases, such as the homicides or even the conspiracies, could have been presented to the county attorney. Id. at 23-24. She believes the case was initially presented to AUSA Vejar and AUSA Rolley. Id. at 24. She does not believe that Detective Barber was involved in the decision to present the case to federal prosecutors. Id. ATF Agent Parkinson was also present when the case was presented to federal prosecutors. Id. at 25.
Detective Frieberg does not recall if the decision to take the case to federal prosecutors was documented in writing, such as text messages or emails. Id. If there was written documentation, she does not know if they are still in existence. Id. She does not recall discussing or concluding that the punishment in federal court would be greater than in state court. Id. at 25-26. Detective Frieberg agreed that she was included as a recipient on Agent Berlin's email regarding the decision to remove him from participation in future interviews and that she read the email. Id. at 29. She deleted this email as well as many other emails and text messages pertaining to this case because that is her normal practice. Id. at 29-30. When asked whether she was destroying evidence by doing so, Detective Frieberg testified that the emails are not evidence; they are work product. Id. at 30. She did not provide federal prosecutors with any emails because she deleted them. Id.
Detective Frieberg and Agent Berlin decided to take this case federally because of ongoing activity by the Western Hills Bloods. Id. She did not “review any statistics to back up that assertion.” Id. at 30-31. She explained that she “was the one living the callout after callout after callout.” Id. at 31. Detective Frieberg agreed that there was a gang database that could have been reviewed. Id. But that database does not provide crime statistics. Id. at 32.
i. Redirect Examination by Mr. Hill on Behalf of Mr. Gray
Testimony first turned to an interview of Jimmie Elem regarding the E.M. homicide. Id. at 40. Detective Barber conducted the majority of the interview but Detective Frieberg also participated. Id. at 41. Detective Frieberg agreed that TPD approached Elem to see if he had information on the E.M. homicide. Id. at 43. At one point, Detective Barber misunderstands Elem and thinks he was talking about a murder suspect when, in fact, he was talking about knowing the victim. Id. at 43, 45. As a result, Detective Barber says “Moss,” referring to Marcell Gray, who TPD thought was responsible for the E.M. homicide. Id. at 43, 45-46. Detective Frieberg does not believe that Detective Barber's intention was “[p]utting a name in Mr. Elem's mouth.” Id. at 46. But she conceded that she cannot speak to his intention. Id.
j. Examination by Government Counsel
During the course of this investigation, law enforcement was “following the evidence in the case to try and find out who committed these offenses, specifically as to [the Elem] interview, who killed E.M.” Id. at 48. At the time of the Elem interview, law enforcement had other evidence indicating that Mr. Gray was involved in the E.M. homicide. Id. Counsel played a portion of the interview. Detective Frieberg testified that the recording reflected that Detective Barber was “essentially asking to speak to Mr. Elem again once he had an attorney.” Id. at 49. The recording also reflects that “Mr. Elam start[ed] essentially suggesting an answer to a question that Detective Barber wanted to ask about Marcell Gray, aka ‘Moss.'” Id. Detective Barber told Elem that he only wanted to hear it if it was true. Id. When Elem said it was not true, Detective Barber said that “he didn't want to hear it.” Id.
k. Examination by the Court and Follow-Up Examination by Counsel
The Court asked Detective Frieberg several questions about comments made by Detective Barber during the September 14, 2015 interview of Mr. Rakestraw. Id. Detective Frieberg testified that the phrases “baby momma” or “baby's momma” used by law enforcement during the interview refer to the mother that a person has a child with. Id. at 51. She does not consider these phrases disparaging because they are “used quite often by people of all races in interviews” that she has participated in. Id. She is not aware that these phrases originated in African-American culture. Id.
She assumes that when Detective Barber says, “we're talking about Mike,” and not someone on a cereal box, he is referring to famous people on cereal boxes. Id. at 52. But she never talked with Detective Barber about this comment. Id.
The Court asked whether the comments about Mr. Rakestraw's “throw-down beads,” it taking a lot of time to do that, and “it's crazy,” were some of the “off-the-wall” comments that Detective Barber would make. Id. at 53. Detective Frieberg testified non-responsively that Rakestraw often had beads in his hair, and she believes that “Detective Barber knew that.” Id. When asked if she has seen people who are not African American with beads in their hair, she responded that she has "seen it in the Hispanic culture a lot as well." Id.
With respect to the word “homies,” she testified that “[a] lot of times, especially within gangs, they refer to each other as homies.” Id. It is a term “that someone within a gang will refer to their friend or acquaintance or something like that[.]” Id. at 53-54. Detective Frieberg does not view the term “homie” as specific within the African-American culture. Id. at 54.
In response to government counsel's question, Detective Frieberg testified that she has used the terms “baby's momma” and “homies” in interviews of gang members of other races. Id. at 55. The comment about Rakestraw's hairstyle was made in the context of “trying to identify other members of the gang” while showing him pictures. Id. With respect to the cereal box comment, Detective Frieberg testified that Detective Barber makes “pop culture references that may be a little outdated,” and the reference to Mike may have been related to an old Life cereal commercial. Id. at 56-57.
In response to Ms. Turk's question, Detective Frieberg testified that she is not “aware that Black hair in this country is a political issue.” Id. at 57. She is not aware of “news stories that have come out over the years about teachers or other school staff members cutting African-American children's hair without their parent's permission. Id. She is also not aware that “African-American people wearing Afros was looked down upon by dominant White culture.” Id. As a result, she is “not aware of anything relating to these sorts of issues in terms of possible racist undertones regarding Black hair.” Id. at 58.
Dr. Earl Smith
1. Direct Examination by Defense Counsel
a. Ms. Matheson for Defendant Marcell Gray
Dr. Smith holds a Ph.D. in philosophy. 4/8/22 Tr. at 18. He attended the state university school system in New York and did his graduate training at the University of Connecticut. Id. He has been a professor in academia since 1980. Id.He is an emeritus/distinguished professor at Wake Forest University, and in his post-retirement career, is a professor at the University of Delaware. Id. at 18-19. His job is to teach, do research, publish papers, and speak at conferences. Id. at 19. Dr. Smith is a sociologist. Id. He “observe[s] human behavior in various institutional settings, one of those settings is prisons and jails” and another is in the “sports world.” Id.
Race plays a big factor in the areas of his work. Id. He testified that “[r]ace matters in these United States.” It matters in terms of where you grow up, where you live, where you go to school, where you work, and other institutional settings. Id. Dr. Smith has taught a course for years on policing, and published a book called Policing Black Bodies. Id. at 20. That book examines how African-American people “are intertwined in the various institutional settings in the United States,” including exonerations, the shooting of unarmed Black men, the way African-American women are treated in American society, especially their dress and hairstyles. Id. It also addresses “the history of race relations beginning probably after the Civil War.” Id.
Dr. Smith's work also examines how the institution of sport has unfolded in American society, including prohibitions and hurdles faced by Black athletes. Id. at 21. He testified that racial slurs are used in the sports world that go beyond the “N word.” Id. For instance, the nickname of “Greek Freak” for a current NBA player and “Beast Mode” for a former NFL player; the latter uses an animalistic term applied to human beings playing a sport. Id.
Dr. Smith has spent an “inordinate number of hours looking at issues related to vehicle stops” and surveillance of Black men by the police. Id. at 22. Dr. Smith testified that his research has revealed that nationally, not just in Tucson, “young Black men are disproportionately surveilled by police.” Id. at 28. He explained that given “the number of Black men in a given population, a pretty small group of people are often oversurveilled when you look at other race and ethnic groups.” Id. In fact, the Tucson Police Department released a report that shows that “they ticket 40 percent more Blacks than other race and ethnic groups in Tucson,” where “Blacks represent a minuscule number of the Tucson population.” Id. at 40. He testified that early on young Black men are surveilled in schools, which is reflected in suspension and expulsion rates, as well as in stores. Id. at 29. Dr. Smith testified that “[t]here is no data that I know of that says Blacks commit more crimes than anybody else.” Id. As a result, “there's an assumption that grows out of exactly the institution of slavery and slave patrols that Black people and Black men in particular are criminals. And that assumption cannot be empirically verified.” Id. at 30.
With respect to vehicle stops, Dr. Smith testified that his research has revealed that “Blacks are disproportionately stopped more so than anybody else.” Id. He testified that based on his review of some of the disclosure in this case, it appears that Mr. Gray was the subject of pretextual traffic stops that occurred over a very long time, 2006 to 2016. Id. at 31-32. Dr. Smith was asked to explain why an “innocent Black driver would be nervous if pulled over by an officer.” Id. Dr. Smith testified that in Mr. Gray's case, there was a report reflecting that he ran after being stopped by the police and when caught and handcuffed “officers were putting their knee into his body, he was being hit in the head.” Id. As a result, Dr. Smith testified that “the next time I see a police officer, whether I'm driving or walking, I'm going to be a little bit nervous about it.” Id.
Dr. Smith was asked to explain the section of his report that addresses legitimate versus illegitimate stops. Id. at 38-39. Dr. Smith testified that, unlike illegitimate stops, “[l]egitimate stops usually don't go beyond the fact that someone was breaking the law in driving too fast, in turning, you know, in the wrong lane.” Id. at 39. In that scenario, they may get a ticket or a warning, but you are usually not going to see a fatality. Id.
Dr. Smith talked about the “school-to-prison pipeline” and how that is relevant to Mr. Gray. Id. at 44. Dr. Smith explained that “institutional structures focus on young Black kids . . . as being out of line” and disorderly. Id. at 45. Dr. Smith noted that Mr. Gray, starting at kindergarten, “had been suspended or expelled from school straight through the 12th grade.” Id. at 44. In one incident he was accused of stealing money, which ultimately proved not to be true. Id.
Testimony turned to racial linguistics, specifically the Ethiopian chicken wing comment made by Detective Barber during his interview of Rakestraw. Id. at 45. Dr. Smith testified that the chicken wing slur shows up in the sports world; for instance, when a golfer expressed his hope that Masters winner Tiger Woods would not be serving fried chicken and collard greens at the ceremonial dinner. Id. at 45-46. When asked what Dr. Smith thought about Detective Frieberg's testimony that she did not find the chicken wings comment to be racist, he testified that “it's interesting that officers that have no training in race, ethnicity, et cetera, are being asked to testify whether or not something is racist.” Id. at 46. Dr. Smith further testified that there is “police culture of protecting their own” and not reporting a fellow officer who makes disparaging remarks. Id. at 47-48. Dr. Smith was asked whether his research has looked at situations where police say: "'I'm not a racist,' but their behavior belies that statement." Id. at 48. Dr. Smith testified that there is a concept called "I'm not a racist but" actions show otherwise. Id.
Counsel turned to the distinction between implicit versus explicit bias. Id. at 49. Dr. Smith testified that “we don't use in our work anything close to a notion of implicit bias, we just don't use it.” Id. He thinks the notion of implicit bias is “a soft way to get a pass.” Id. at 50. He explained that “there's too much disproportionality, there's too much racial antagonisms, there's too much discrimination, there's too much blocking of African-American people from the workplaces in American society to come out and say that: Oh, this happened but there was no intention for it to happen.” Id. at 49. He further explained that “[w]hat we see are explicit actions that take place in a number of institutions, including the institution of the police.” Id. at 50. Dr. Smith testified that he does not think that the police “stumbled into Marcell Gray.” Id. “Explicitly, they know who he is, they know what car he's driving, they know where he lives.” Id.
Dr. Smith was asked if there was “any way that you can actually extricate these racial slurs from an investigation when it deals with the targeting of Black men.” Id. at 52. He testified that “[i]f I'm making statements, then I must believe what I'm saying and, therefore, my actions are going to go hand in hand with those particular beliefs.” Id. He thinks it would be hard for someone who makes a racially-biased statement to do an unbiased investigation. Id.
Counsel pointed out to Dr. Smith that agents have testified that their superiors are Black, and the prosecutors have pointed out during testimony that the decedents are Black. Id. at 54. Counsel asked whether those facts demonstrate that officers are not racist. Id. Dr. Smith testified that “[w]e look at institutions” that “can have Black supervisors . . . but they're also a part of that institution. And being a part of an institution, it becomes very hard to disagree with practices.” Id. at 55. He further explained that “the institutional setting is much more powerful than an individual inside these institutions” because “we often go along with policies and practices.” Id. at 56-57. As a result, the fact that an African-American person is conducting an investigation of African-Americans does not “mean that the overall context of this particular case doesn't have racial animosities. It doesn't negate the fact that the case itself, the larger context of the case, has racial issues.” Id. at 57. With respect to two murder victims being Black, Dr. Smith testified that “African-Americans kill other African-Americans all the time. That doesn't negate the fact that the system that's targeting Mr. Gray isn't racial in doing so.” Id. at 58. He sees them “as two different issues.” Id.
b. Ms. Turk for Defendant Troy Howell
Dr. Smith recalls hearing a recording of an interview with Mr. Howell where Detective Padilla tells Howell: “You were bred to lie.” Id. at 59. Dr. Smith considers that a racially charged accusation. Id. He explained that “when you get to the whole terminology of breeding, this is what you do with animals, or in the social history of the United States, this is what you do in an institution called slavery.” Id. at 60. Dr. Smith's opinion is that Detective Padilla “probably believes that African-American people are predestined for criminal behavior, that it's a part of their, quote, DNA.” Id. at 61.
Counsel turned to a different point in the interview where Detective Padilla says “just know that I'll always be looking at you, just know that I'll always be watching you.” Id. at 62. Dr. Smith believes this statement ties into the surveillance of young Black men, whether by law enforcement or in a grocery or department store. Id. at 62-63. Dr. Smith does not believe that there is any way that a law enforcement officer who holds such views on race but refuses to acknowledge them can ever conduct a race-neutral investigation. Id. at 63.
c. Mr. Payson for Defendant Samuel Rakestraw
Dr. Smith again testified that the Ethiopian chicken wing comment made by Detective Barber is racist and there is no way to construe the comment as nonracist. Id. at 64. Dr. Smith testified that the fact that Rakestraw did not react to this comment does not mean that he was not affected by it. Id. at 66. He explained that “often you just take it, you let it sink in you don't react, you don't respond, you just let it sink in because, in my experience, you're just shocked that someone would have the audacity to make a comment such as that.” Id.As a result, you cannot draw the conclusion that a person was not affected by a racist comment because he didn't react or “didn't jump up and down” or shout about it. Id. Dr. Smith agreed with counsel that “racists don't like to be called racists.” Id. Another form of racism is for a person to accept or defend a racist comment made by another person. Id. at 67.
d. Mr. Sherick for Defendant Jermaine Maxwell
Dr. Smith testified that if law enforcement used a one-person photo show-up with their main cooperating witness and never have done so in any other case involving a suspect who was not African-American, that would reflect racial bias. Id. at 69. In examining racism or racial bias, Dr. Smith looks not only at what people say, but also their behavior. Id. at 71. He agreed with counsel that statistics that show that African-American people are disproportionately stopped by law enforcement for traffic violations is better evidence of purposeful bias than an officer claiming not to be racist. Id. at 71-72. Dr. Smith agreed with counsel that if law enforcement held a Black man's property for seven years even though no charges were filed, but had never done that for a non-Black person, that would indicate a racial purpose. Id. at 72-73.
Dr. Smith testified that calling Black men “boys” is very disparaging. Id. at 74. The fact that Black men may refer to each other as home boys does not mean the use of the word "boy" is not racist. Id. at 80. Dr. Smith explained that Black men use coded language when speaking with each other, such as referring to “my homies” or “my N.” Id. He does not equate the use of these terms “to them agreeing that they are Ns or that they are boys.” Id. One of the reasons that the word “boy” is offensive is because it was used to refer to enslaved people. Id. at 81.
2. Cross-Examination by Mr. Rossi on Behalf of the Government
As far as Dr. Smith is aware, neither Detective Frieberg nor any law enforcement officer refer to any Black males as a “boy.” Id. at 83. With respect to the photo show-up of pictures of Mr. Maxwell, Dr. Smith agreed with counsel that he has not reviewed any evidence in other cases where a similar photo line-up was done; as a result, he does not know if such a line-up was done in other cases. Id. at 83-84.
Dr. Smith disagreed with counsel that there were reasonable nonrace-based reasons to not return property to an arrestee when no charges were ever filed. Id. at 84. However, he is not aware of any case where contraband like cocaine was returned to the arrestee. Id.
Dr. Smith agreed that the NBA player with the nickname the Greek Freak named his own shoe line with Nike as “The Freak.” Id. at 87. And the NFL player with the nickname Beast Mode owns the copyright to that name. Id.
Given in the context in which the word “bred” was used by Detective Padilla, Dr. Smith disagreed with counsel's assertion that the word “bred” has other definitions than the one he testified to on direct examination. Id. at 87-88. However, he acknowledged that the definition of “bred” includes “reared, brought up, and trained.” Id. at 88.
Dr. Smith agreed that “there might be nonrace-based reasons for telling a murder suspect that the police are going to be watching that person.” Id. at 90. He also agreed that surveillance of a person would be permissible if the police have a reason to believe the person is a murder suspect. Id. at 91. Dr. Smith was aware that Detective Frieberg's comment that Mr. Gray looked nervous was made at an interview before his interaction with the police related to his aggravated assault conviction. Id. at 93.
Dr. Smith acknowledged that “gangs have a culture of protecting their own.” Id. at 94. Dr. Smith did not know that “at the time of the 2015-2016 incident when this investigation started that the [Western Hills] gang made up most of the gang unit's docket for violent offenses.” Id. at 95.
Dr. Smith agreed that the only two racial allegations of misconduct involve the use of the word “bred” and the chicken wing comment. Id. at 96. Dr. Smith maintained that given these racial comments, it would not be possible for the police to run an unbiased investigation. Id.Dr. Smith testified that “even if all the agents and detectives and prosecutors, regardless of their race, intended to seek justice on behalf of the Black victims in this case, because of the institutional racism, the investigation would still be biased.” Id. at 97.
Counsel turned to Dr. Smith's Twitter account and some tweets that he made. Id. Dr. Smith agreed that he sent a tweet stating that “[s]o many of these cops are KKK,” and which references “a professor who has written about this, and we wonder why they shoot and kill Blacks.” Id. at 99. Dr. Smith agreed that he has made a lot of tweets “with regard to the disparate punishment for murderers of Black men.” Id. at 103-104. For instance, he sent a tweet referring to a New York Times article and stated “4 ½ years for killing a Black man.” Id. at 104. He also sent a tweet referring to a two-year sentence for the killing of an unarmed Black man. Id. Dr. Smith agreed with counsel that in his experience the murderers of Black men receive sentences which are typically lower than where the victim is another race. Id. Dr. Smith is aware that the defendants in this case who are charged with the murder of two Black men face a mandatory life sentence. Id. at 105. Dr. Smith agreed with counsel that if defendants committed a murder or aided in the murder, then they should be held accountable. Id. at 107.
3. Redirect Examination by Defense Counsel
a. Mr. Payson for Defendant Samuel Rakestraw
Dr. Smith felt that his tweets were taken out of context. Id. at 108-109. He explained that the tweets are related to the work that he does on looking at accountability when an unarmed Black man is killed by the police. Id. He emphasized that his account is public and that he tweets only about things that he knows about. Id. at 109.
Dr. Smith again testified that he views the Ethiopian chicken wing comment as racist, especially given the context in which it was made, that is, during a custodial interview with three law enforcement officers. Id. at 110-111. He further testified that it “sounds like” Detective Barber is equating chicken wings to Ethiopians given the context in which the comment was made. Id. at 111. More specifically, regardless of whether Rakestraw is Ethiopian, “he's a Black man who told the detective that he went to this place and had chicken wings. The comment is being directed back at him in a negative connotation.” Id. at 112.
b. Ms. Turk for Defendant Troy Howell
Dr. Smith believes that law enforcement officers “usually understand that they're not supposed to be openly racist.” Id. at 115. He agreed with counsel that law enforcement officers “aren't caught on tape saying racial slurs” because “they know better than that.” Id. at 116. Dr. Smith testified that it is possible that “these two racial slurs that were caught on tape could be just the tip of the iceberg in terms of the kind of racist beliefs that law enforcement involved in these cases harbor.” Id.
ATF Agent Donald Berlin
1. Direct Examination by Defense Counsel
a. Ms. Catrillo for Defendant Labarr Martinez.
ATF Agent Berlin, TPD Detective Frieberg, and ATF Agent Parkinson were the original law enforcement officers “who developed this investigation.” 6/15/22 Tr. at 25. Agent Berlin was approached by Detective Frieberg in 2015 for assistance with the Western Hills gang “sometime after Floyd Davis was murdered.” Id. at 26. At the time he was approached by Detective Frieberg in 2015, Agent Berlin “had worked on two separate investigations that were proactively focused on street gangs in Tucson.” Id. at 27. Those investigations involved the Barrios Hollywood gang and the Eastside Crips. Id. “Some of [the] Barrio Hollywood defendants went federal, some went through the state court and then the Eastside Crip[s] went through the state court.” Id. at 28. Neither case went to trial. Id. at 27. The Arizona Attorney General's Office (“AG's Office”) prosecuted the case against the Eastside Crips. Id. at 28. Agent Berlin believes that AUSA Vejar was working at the AG's Office when he was doing the Eastside Crips investigation. Id. AUSA Vejar was preliminarily involved in the investigation, but then took the job at the U.S. Attorney's Office and was not one of the prosecutors when the investigation was completed. Id. The Eastside Crips investigation was similar in nature to the Western Hills investigation. Id. at 29. The racial make-up of the Eastside Crips included “a varied group, a mix of Hispanic, white, and African-American” individuals. Id.
When Detective Frieberg asked him for help on the Western Hills investigation, Agent Berlin does not think they discussed at that time “where the case would go,” but because he is a federal agent, they “were going to look at violations of federal law potentially.” Id. at 29-30. Agent Berlin would have initiated contact with the U.S. Attorney's Office. Id. at 30. In 2015, AUSA Vejar reached out to let him know that “she was available to accept cases,” so he contacted her about this potential case. Id. at 30-31. Agent Berlin recalls having several meetings with the U.S. Attorney's Office about this investigation; he is sure that AUSA Vejar was present “at least early on.” Id. at 31. Detective Frieberg was probably present for the meetings and “would have provided some of her information about the Floyd Davis homicide perhaps.” Id. at 32. After the U.S. Attorney's Office accepted the case for potential prosecution, AUSA Rolley was also assigned to the case. Id. at 31-32.
Agent Berlin agreed with counsel that “many or much of the information in this case precedes 2015.” Id. at 32. He explained that there are “a number of historical criminal acts that are referenced in the indictment that are prior to 2015.” Id. Agent Berlin's recollection is that “the primary objective at the beginning of this investigation . . . was the Floyd Davis homicide and whether we could look at appropriate federal charges for that homicide.” Id. at 32-33. Agent Berlin agreed with counsel that his role as an investigator is “to gather and present evidence to the prosecuting agency,” and “not to decide what punishment is appropriate in a case” that he is investigating. Id. at 33.
Testimony turned to an email that Agent Berlin sent to his supervisor, ATF Agent Creighton Brandt. Id. at 34. Agent Berlin testified that Agent Brandt “requested that I write that email to him.” Id. at 35. Agent Berlin explained that he “was notified about essentially a decision had been made that I would not be able to participate in interviews during the takedown operation.” Id. He further explained that he “had not been given the opportunity to rebut or discuss this with anybody” because he had voluntarily transferred to the ATF's Charlotte field division in September 2016. Id. at 35-36. Agent Brandt “asked for context about the interview in question and additional details about the investigation.” Id. at 35. Agent Berlin testified that Agent Brandt came to him “and told me what had been said and asked for me to try to provide him some information to try to push back against [AUSA] Sandy Hansen about it.” Id. at 36. Agent Berlin's opinion is that “Sandy Hansen was at the root of [him] being pushed out.” Id. Agent Berlin testified that he was not removed from the investigation, just from doing interviews. Id. at 44. He was never prohibited from doing interviews on other cases based on what transpired during the Gray interview. Id.
In response to counsel's question of whether the interview of defendant Gray led to the conflict with AUSA Hansen, Agent Berlin testified that he “had conflict with her since she joined the investigation back in March of 2016.” Id. at 36-37. But he agreed with counsel that the interview with Gray is “a central theme in [his] email.” Id. at 37. Agent Berlin was trying to provide Agent Brandt with “background information about what was going on during the interview.” Id. at 37-38. Agent Berlin agreed with counsel that he was explaining to Agent Brandt that he utilized “a technique with Mr. Gray of telling him about certain aspects of the operation.” Id. at 38. Specifically, the “goal was [] to give information to Mr. Gray in order for him to respond to that information and go and talk to Mr. Williams or perhaps the CI.” Id.
Agent Berlin agreed that he provided this information to Mr. Gray after he invoked his right to counsel. Id. at 39. Specifically, he said to Gray: “Lawyer drop those two mirrors at your house today? Don't answer - don't answer that.” Id. Agent Berlin agreed that he provided this information, in part, in the hope that Gray would talk to Williams or the CI. Id. at 40. He testified that it “would have been just fine by me” if Gray said “[y]ou got me,” and went on to provide information. Id. In response to counsel's question of whether Agent Berlin's line of questioning was intended to elicit a response from Mr. Gray, Agent Berlin testified that “there was not a line of questioning designed as much it was just to relay information.” Id. Agent Berlin explained that “at some point during the interview my objective was to let him know that we knew certain bits of information.” Id. at 41.
Agent Berlin testified that it appeared that AUSA Hansen “had a problem” with his interviewing technique. Id. He explained that his “problem was her not following through on the things that she said she was going to do so that we could pursue criminal prosecutions.” Id. When asked to explain the statement in his email that law enforcement officers involved in the investigation “questioned numerous times Ms. Hansen's motives and credibility,” Agent Berlin testified that “[p]rior to Ms. Hansen's involvement with the prosecution of this case, we had a very good relationship with the U.S. Attorney's Office and the assistant U.S. Attorneys assigned at the time.” Id. at 42. As far as Agent Berlin is aware, Ms. Hansen did not believe this prosecution was racially motivated. Id. at 43. When asked to explain what he meant when he referred to Ms. Hansen's “motives,” Agent Berlin testified as follows:
I don't know like what - I'm just basing that on my observations, that when an investigation is prepared to be indicted and then someone else gets involved and it is almost as if it's not going to happen, and clearly this case did not get indicted for another nearly two and a half years after that point, you know, there [were] a number of meetings and things that took place where it did not appear to me that - an attorney who was assigned to an investigation should be reading reports and learning about the case and that just didn't appear to be happening to me.Id.
b. Mr. Hill for Defendant Marcell Gray
Agent Berlin again testified that a “strategic team effort” was employed “to impart information to Mr. Gray.” Id. at 45. Agent Berlin agreed with counsel that after Detective Frieberg read Mr. Gray his Miranda rights, he told Mr. Gray that he can answer questions or not answer questions and “it would be like that game show where he could phone a friend, do a 50/50.” Id. at 46-47. Agent Berlin also agreed that Mr. Gray clearly and unambiguously invoked his right to counsel and told law enforcement: “I'll talk to you as much as you want when my attorney's here.” Id. Agent Berlin further agreed that he never tried to get Mr. Gray an attorney and never gave Mr. Gray the opportunity in private to contact an attorney; instead, he “continued on with this strategic team effort.” Id. at 48.
Agent Berlin conceded that he “asked Mr. Gray at least two direct questions after he invoked his right to remain silent.” Id. However, Agent Berlin testified that he “immediately told him not to answer.” Id. Agent Berlin testified that it sounded “accurate” that after the second question Agent Parkinson “stepped in and said: That's a question. You've got to stop doing this.” Id. Agent Berlin agreed that he responded: “Oh, sorry. It's been a long day.” Id. at 50. Agent Berlin agreed with counsel that in his email to Agent Brandt, he indicated “that these were effectively rhetorical questions.” Id. However, Agent Berlin testified that “at the time of the interview it was not my intent to phrase it as a question but in the interview itself present with him, that's just how it came out.” Id. Agent Berlin conceded that when he asked Gray if his lawyer dropped off the two mirrors at his house, Gray responded as follows: “I don't know. That's not even my house. I barely even was there, barely even got there before that.” Id. at 51.
Agent Berlin agreed that when defending his investigative methods in the email, he described that “these were conversations amongst law enforcement to just explicitly give information to Mr. Gray,” and did not really expect a response. Id. at 52. Agent Berlin also agreed that law enforcement was talking about the investigation of this case, and not the marijuana offense that led to Gray's arrest. Id.
Agent Berlin's email to Agent Brandt outlined “three macro phases of the investigation.” Id. at 53. Phase two is labelled “proactive investigation,” which included targeted interviews/street theater to gather intelligence and hopefully force recorded phone calls from targets to the CI. Id. at 54. The goal of the interview of Gray was to give him information that may “go downstream.” Id. With respect to the investigation of the Western Hills Bloods, “street theater” meant asking the CI to call David Williams and tell him that investigators had spoken to her about certain topics and to generate conversation between them. Id. at 55. Agent Berlin does not specifically recall if he utilized “street theater” in the investigation of the Eastside Crips or the Barrio Hollywood gangs, but he did utilize undercover operations in those investigations. Id.
Agent Berlin agreed that he was not allowed to participate in further interviews in the Western Hills investigation because of the issues raised by AUSA about the Gray interview. Id. at 56-57. He testified that Agent Brandt asked him to write this email in the hope that management above him would “push back against the U.S. Attorney's Office decision.” Id. at 57. As far as Agent Berlin is aware, senior management at ATF did not push back and he did not participate in further interviews. Id.Counsel asked Agent Berlin to explain what he meant when he said in the email that he has had to defend investigative methods to AUSA Hansen several times. Id. Agent Berlin testified as follows:
It was basically she would ask questions about everything that we had done up to that point. You know, she questioned why we were even doing recorded phone calls with David Williams. And, again, those are investigative techniques. I'm an investigator. I'm employing investigative techniques to pursue evidence of criminal violations. So to me it just didn't seem like a fair question.Id. at 58.
Agent Berlin agreed that his email reflects that he felt that he was being “singled out” for what he did in the investigation, and he thought that was unfair. Id. He does not recall prosecutors questioning his investigative methods used in the Eastside Crips or Barrio Hollywood investigations. Id. at 58-59.
Agent Berlin agreed with counsel that during the interview of Mr. Gray, he told Gray that he was “not going to stop until [Gray] and everyone else is in prison for the rest of their lives.” Id. at 59-60. He also agreed that this was a direct threat made to Mr. Gray; but he does not feel that the comment was made to elicit a response. Id. at 60. He explained that he was letting Gray “know that we were investigating him.” Id. Agent Berlin agreed that after his second direct question to Gray, “Special Agent Parkinson steps in and says: Hey, that was a question. We can't do this.” Id. Agent Berlin explained that Agent Parkinson was “making it known to me that I had asked it in the form of a question.” Id. at 60-61. Agent Berlin agreed that he apologizes again and says: “I'm sorry. I keep messing up. . . . [I]t's been a long day.” Id. at 61.
Agent Berlin acknowledged that the following exchange occurred between Agent Parkinson and Mr. Gray:
Special Agent Parkinson, line 15: You know, we didn't ask for a lawyer so you can still ask us questions.
Marcell Gray: I don't got no questions.
Special Agent Parkinson: If there's any burning in your mind right now -
Marcell Gray: No, I'd rather just call my lawyer.Id. at 62.
In response to counsel's question of whether Agent Parkinson was soliciting comments from Gray, Agent Berlin testified as follows: “I think it's common at the end of an interview to let someone know that, hey, you can contact us with further, you know, if you'd like to speak to us or if you have questions of us. I think that's a relatively common thing for an investigator to do.” Id. However, Agent Berlin conceded that saying that "'[i]f you have any burning questions right now, you can ask them of me' is different than saying, 'Call me in a month if you change your mind.'" Id. at 63. Agent Berlin agreed that Agent Parkinson's comment “introduces an element of contemporaneousness,” because it pertains to Mr. Gray asking “questions of anything [he] want[s] to talk about right now” when Gray is handcuffed and “surrounded by police officers.” Id. at 63-64.
Testimony turned back to the Eastside Crips investigation. Agent Berlin testified that the investigation uncovered evidence of drug trafficking and homicides. Id. at 64. In response to counsel's question of whether that investigation was referred for federal prosecution, Agent Berlin testified as follows:
[W]e initially had conversations with the U.S. Attorney's Office about the investigation and originally they were only interested in pursuing just a few felon in possession charges. So ultimately we went to the Arizona Attorney General's Office and briefed them on the investigation and they were interested in the whole scope, including the drug trafficking.Id. at 64-65.
Agent Berlin does not recall if he told any of the individuals that were the targets of the Eastside Crips investigation that he “wasn't going to stop until they spent the rest of their lives in prison.” Id. at 65. He also does not recall if he “mess[ed] up and ask[ed] questions of any of those individuals after they asked for an attorney.” Id.
The investigation into the Barrio Hollywood gang also uncovered evidence of drug trafficking and “some historical evidence of homicides.” Id. However, that investigation was very different from the investigation of Western Hills and Eastside Crips. Id. at 65-66. The Barrio Hollywood investigation was referred for federal prosecution. Id. at 66. However, "[p]arts of it were prosecuted in this courthouse and some were prosecuted at the county court." Id. at 66. He did not “tell any of the Barrio Hollywood individuals that [he] was not going to stop until they spent the rest of their life in prison.” Id. However, Agent Berlin explained that neither the Eastside Crips investigation nor the Barrio Hollywood investigation involved “charging 18 U.S.C. 1959(a)(1) which has a mandatory life sentence.” Id. Agent Berlin does not recall if he asked questions of the targets of the Barrio Hollywood investigation after they requested an attorney. Id.
c. Mr. Payson for Defendant Samuel Rakestraw
With respect to the Barrio Hollywood investigation, Agent Berlin and a co-case agent presented the case to federal prosecutors. Id. at 70. The U.S. Attorney's Office decided which parts of the investigation to prosecute. Id. As to the Eastside Crips investigation, Agent Berlin again explained that federal prosecutors were only interested in the firearms violations and not the “drug trafficking and other aspects of it,” including the homicides. Id. at 70-71. ATF was "seeking to do a complete unified prosecution." Id.
As far as Agent Berlin is aware, the instant case “is the only RICO case that's been brought here in Tucson.” Id. at 72. All other gang cases where the entire gang was prosecuted were taken to the Attorney General's Office. Id. Agent Berlin explained that as a federal agent he tries to prosecute cases with the U.S. Attorney's Office, and if that is not possible, “we would go to the other venues.” Id.
Agent Berlin disagreed with counsel that the Western Hills investigation was first presented to the Pima County Attorney's Office. Id. Counsel showed Agent Berlin a document, which Agent Berlin described as a “timeline of key events pertaining to our confidential informant,” that reflects that a proffer was made to the Pima County Attorney's Office on August 28, 2015. Id. at 73. Agent Berlin explained that the document refers to “a proffer interview of a person that was facing state charges,” and “not a proffer of a case.” Id. at 73-74. He further explained that the person making the proffer “had information about the Western Hills,” but the state charges did not relate to the Western Hills gang. Id. at 75. Agent Berlin does not know if the Pima County Attorney's Office was informed about the Western Hills investigation on the date of the proffer; but, he assumes they knew about it because TPD officers were working on that investigation. Id. Agent Berlin agreed that a state prosecutor was present at the proffer. Id. at 76. Agent Berlin explained that he “wasn't there telling him about the case.” Id. However, he assumed that the state prosecutor knew about the investigation and contacted the U.S. Attorney's Office who notified ATF that an individual may have relevant information about the Western Hills investigation. Id. Agent Berlin did not have a conversation with the state prosecutor about whether he had an interest in prosecuting the Western Hills case. Id. at 77.
Testimony turned to why the instant case was federally prosecuted. Id. Agent Berlin agreed with counsel that one reason is his familiarity with the applicable federal statutes, including the mandatory life sentence for the “federal VCAR statute.” Id. Agent Berlin disagreed with counsel that the penalty for murder in the state was 25 years to life; he believes that “first degree murder in the state of Arizona carries a mandatory life sentence as well.” Id. In response to counsel's question of whether Agent Berlin's motivation “in this case was to put all the Western Hills Bloods members in prison for life,” Agent Berlin testified that “[t]he motivation in this case was to stop a pattern of violent crimes that was pervading Tucson, Arizona, and protect the community.” Id. at 78.
With respect to Gray's invoking his right to counsel during his interview, Agent Berlin again testified that on two occasions he “phrased something in the form of a question and then directed him not to answer.” Id. at 79. Agent Berlin first testified that his apology for asking the questions was “sincere.” Id. But he also agreed with counsel that he was “being sarcastic” as well. Id. Agent Berlin denied that his goal was to keep Mr. Gray talking. Id. He explained that he “wanted him to absorb information that we were going to relay to him to potentially generate conversation on our consensually recorded calls.” Id. at 79-80.
Agent Berlin was trained to stop asking questions when an arrestee invokes his right to counsel. Id. at 80. He agreed with counsel that problems can potentially arise, as in this case, if a law enforcement officer asks questions after a person invokes the right to counsel. Id. at 81. Agent Berlin admitted that it was wrong to keep asking Gray questions after he invoked. Id. He does not recall if he had ever done that “in any interview prior to that interview with Mr. Gray,” or in subsequent interviews with other individuals. Id. But he believes that happened only in the Gray interview. Id. He again testified that his intent was not to ask questions, but rather “to relay information to him.” Id. at 82.
Agent Berlin's actions during the Gray interview did not result in a finding of misconduct. Id. The U.S. Attorney's Office, not the ATF, decided that he would not participate in future interviews. Id. Agent Berlin disagreed with counsel that he was “effectively removed from the case.” Id. at 83. He continued to assist in the investigation, including participating in arrests, even though he was in another field division. Id. Agent Berlin disagreed with counsel's assertion that doing interviews is a “huge part” of his job. Id. at 84. He testified that interviews are “one part of doing our job,” because “[e]very investigation is unique.” Id.
Agent Berlin believes that in 2015 he had probable cause to make arrests in connection with the Floyd Davis homicide; that is why he referred the case to prosecutors. Id. at 86. Even though charges were not brought until three years later, Agent Berlin was “incredibly concerned” that the defendants presented a danger to the community. Id. He explained that he has "to seek the approval of charging from the U.S. Attorney's Office." Id.
Agent Berlin agreed that the Western Hills investigation was broken down into three phases. Id. Phase one was “to assemble the VCAR FD homicide case for prosecution.” Id. at 87. That phase was done on September 25, 2015, when he presented “blue cover reports” to the federal prosecutors. Id. at 87-88. Phase three was to go on “indefinitely,” meaning “until a goal is reached.” Id. at 88. The “original goal was to focus on the Floyd Davis murder first.” Id. at 88-89. He agreed with counsel that “somewhere down the indefinite line” the plan was to bring a RICO charge. Id. at 89. Agent Berlin agreed that in his email addressing the AUSA's concern about the Gray interview, he wrote that “this is probably the most significant and complex case in recent history in Tucson.” Id. at 90.
Agent Berlin is aware that some of the defendants in this case have been in custody almost four years pending trial. Id. at 91. Agent Berlin testified that “[m]ost cases get resolved a lot quicker” and he is “disappointed the case has taken this long to get to trial.” Id. When asked whether “the plan from the beginning was for this case to take years and years, even after the indictment,” Agent Berlin testified that “there wasn't a plan to drag out the case intentionally. The plan was to gather evidence until we could apply the applicable charges.” Id. Agent Berlin denied counsel's assertion that in July 2018, he knew, based on his plan with the prosecutors, that it was going to take years to get the case to trial. Id. at 92. Agent Berlin testified that it was not the plan for the case to take years, “it's just sort of how things work that it does take time.” Id. Agent Berlin conceded that he wrote in his 2018 email that “it's going to take additional years to carry this case through to trial.” Id. at 92-93. He explained that “cases like this do take some time and at that point it had already taken a considerable amount of time to get to the point of indictment.” Id. at 93.
Agent Berlin never heard the N word used by law enforcement during the investigation. Id. at 94. His only recollection of the N word being used was in his report when discussing Mike Williams' rap video which had that word in the title. Id. No law enforcement officer made any racially disparaging comments during the investigation. Id. Agent Berlin does not recall TPD Detective Barber “making racially provocative statements” during the interview of Mr. Rakestraw. Id. at 96. With respect to Detective Barber's Ethiopian chicken wing comment, Agent Berlin testified that he does not recall hearing that statement during the interview but recalls reading that statement in the interview transcript. Id. Agent Berlin initially testified that he does not have an opinion on whether this is a racially disparaging comment. Id. He later testified that he does not believe that the comment is racist. Id. at 97. He also does not believe that Detective Barber's comment that Rakestraw only has “one baby's momma so far” is racially disparaging. Id. When asked if he would make these kind of comments to a Black man, Agent Berlin testified that “I can't say whether I would or wouldn't.” Id. He explained that he is not saying that the comments are "perfectly fine"; he just does not “have an opinion one way or the other.” Id. at 97-98.
d. Ms. Carrillo for Defendant David Williams
With respect to the consensually recorded telephone calls between a CI and David Williams, Agent Berlin testified that he has used this technique many times throughout his career with non-Black defendants. Id. at 104-105. He used this technique in the Eastside Crips and Hollywood Barrio investigations. Id. at 107. Agent Berlin agreed with counsel that law enforcement would tell the CI what to tell Williams. Id. at 105. He explained that “typically before she would make a call where we would ask her to say something or ask her to bring up a topic, we probably would have spoken to her before.” Id. at 106. But some calls were made to keep up the appearance that the CI was maintaining communication with Williams at his request. Id.
e. Mr. Flores for Defendant Michael Williams
Agent Berlin agreed with counsel that the Eastside Crips case involved a similar “takedown” as the Western Hills case in the “sense that it was a multi-location even with multiple arrests on the same day.” 6/16/22 Tr. at 9. Agent Berlin recalls having “nine search warrant locations,” and “at least that number of defendants.” Id. ATF, the TPD gang and homicide units, and the Arizona Department of Public Safety were involved in that investigation. Id. at 10. The defendants in that case were charged in state court with racketeering offenses, drug offenses, and a continuing criminal enterprise. Id.
Agent Berlin again testified that the make-up of the Eastside Crips gang was multicultural. Id. at 12. He agreed that the make-up of the Eastside Crips “is a lot different than the make-up” of the Western Hills gang. Id. The Eastside Crips is predominantly White and Hispanic, although there are some Black members. Id.
Agent Berlin again testified that he attempted to prosecute the Eastside Crips federally. Id. at 13. He explained that as a federal agent his default is to present cases to federal prosecutors. Id. Again, the U.S. Attorney's Office was only interested in firearms offenses and not a RICO conspiracy. Id. As a result, that investigation was presented to the Attorney General's Office. Id. None of the Eastside Crips defendants went to trial. Id. at 14. All of the Eastside Crips defendants were made plea offers and plead guilty. Id.
f. Ms. Turk for Defendant Troy Howell
Agent Berlin testified that part of the Western Hills investigation involved “looking back at prior events involving the defendants.” Id. at 16. Agent Berlin explained that the decision to review “historical events” resulted from a recommendation made by other agents who had conducted similar investigations. Id. With respect to the review process, Agent Berlin explained that as “a potential defendant became known to us, we would inquire through law enforcement records systems for any events where they were named as any type of participant, suspect, witness, victim, et cetera, and we reviewed those reports[.]” Id. at 17. Agent Berlin testified that “pretty much any report that we reviewed” that pertained to the defendants' involvement in firearms, narcotics, and violent crime would have been provided to federal prosecutors. Id.
Agent Berlin is aware that Howell is charged in Count 24 with a drug trafficking conspiracy and in Count 27 with a substantive drug offense which stemmed from Howell's arrest by TPD officers on September 11, 2015. Id. at 17-18. Agent Berlin does not know who interviewed Howell and does not know if Howell was released without charges. Id. at 18. He also does not know whether the state ultimately declined to file charges, although he acknowledges they could have charged Howell. Id. at 18-19. Agent Berlin does not recall any conversations with state prosecutors or federal prosecutors regarding the decision not to charge Howell with a state offense. Id. at 19.
Agent Berlin and Agent Parkinson participated in an interview of Christina Monge on October 26, 2015 at the ATF office. Id. at 20-21. Agent Berlin testified that he is “absolutely not comfortable” with using the N word. Id. at 21. He agreed with counsel that it is a racist word. Id. The purpose of the Monge interview was to get her to identify individuals who were relevant to the Western Hills investigation. Id. at 21-22. Counsel played a portion of the recording of the interview. Id. at 22. Agent Berlin agreed with counsel that Monge, who is not Black, says: “All N's look the same,” and then says, “I'm not supposed to say that.” Id. He also agreed that there is laughter after those statements were made, but he cannot say it was male laughter. Id. at 22-23. Agent Berlin testified that he “can't tell whose laughter it is” because Monge's mother and Detective Frieberg were in the interview room. Id. at 23. Agent Berlin does not recall anyone laughing and “can't distinguish the laughter in that recording.” Id. He did concede that it was possible that Agent Parkinson or Detective Frieberg laughed at Monge's comments. Id. at 24. He agreed with counsel that Monge's use of the N word was racist. Id. Agent Berlin also agreed that he “didn't express any dissatisfaction with her statement.” Id. at 24-25. Agent Berlin explained that he has “to hear and see a lot of very evil and unsavory things” in his line of work. Id. In response to counsel's question of whether Agent Berlin agreed “that laughing at the racist joke was an endorsement of the racism,” he testified that because he does not know who was laughing, he cannot speculate as to the reason for the laughing. Id. at 25. He added that Monge said “I shouldn't be saying that,” so “maybe they were laughing at that.” Id. Agent Berlin does not think that use of the N word or the claim that all Black men look alike are funny. Id. He is aware that “the N word has been used throughout American history to degrade and dehumanize African Americans.” Id. He is also aware that “White lynch mobs yelled the N word as Black bodies hung from trees.” Id.
g. Mr. Sherick for Defendant Jermaine Maxwell
Agent Berlin was shown a series of TPD emails regarding the holding or retaining of evidence and property seized from prior arrests. Id. at 27. Agent Berlin used a database called COPLINK to search for past events involving Western Hills gang members. Id. at 28. This database “aggregates reports from local agencies where [law enforcement] can review and search by name, address, things of that nature.” Id. Agent Berlin agreed that one email states: “I need a hold on all this property for indefinitely.” Id. at 29. Agent Berlin did not write that email. Id. But he agreed with counsel that ATF and TPD made a request to hold onto this evidence. Id. The retention of evidence was a point of discussion with law enforcement and the U.S. Attorney's Office. Id. at 29-30. But it was TPD, and not ATF, that would have had the authority to direct that evidence retained. Id. at 31-32. Agent Berlin assumes that the U.S. Attorney's Office would have had the reports about historical incidents involving Western Hills gang members at the time the email to retain evidence was sent in 2016. Id. at 33.
Agent Berlin does not recall discussing with the U.S. Attorney's Office the statute of limitations restrictions or Speedy Trial restrictions for Arizona state prosecutions. Id. at 30. He is not aware of how many charges in the federal indictment would have been barred by the Arizona state statute of limitations. Id. at 31.
Agent Berlin got involved in the Eastside Crips investigation at the request of the TPD gang and homicide units. Id. at 34. That request was made at a meeting regarding a couple of homicides. Id. The Eastside Crips case was Agent Berlin's first racketeering case. Id. at 36. The Barrio Hollywood case “was never charged as any kind of a racketeering offense.” Id. at 35. That case targeted violence and drug trafficking committed by members of the gang that makes up that neighborhood. Id.
Within a month or so after the Floyd Davis homicide, Agent Berlin was approached by Detective Frieberg at a gang conference and asked to become involved in the Western Hills investigation. Id. at 37. The Western Hills investigation was the only unindicted case that Agent Berlin took with him when he transferred to South Carolina in September 2016. Id. at 40. Agent Parkinson became the lead ATF agent when Agent Berlin transferred. Id.
Agent Berlin again testified that when he asked questions of Gray after he invoked his right to counsel, his “intent was not to gather information necessarily from Mr. Gray but it was to say things in front of him that he would retain and potentially share with other members of the gang.” Id. at 43. There was no plan devised between Agent Berlin and the U.S. Attorney's Office to ask Gray questions after he invoked. Id. However, Agent Berlin testified that the U.S. Attorney's Office was aware that agents were revealing to Mr. Gray and others “not only the federal government's involvement to hope to quell the ongoing violence but also to reveal information that we knew to hopefully generate phone calls on our consensually recorded line.” Id. The Gray interview should have been reviewed by AUSA's Vejar and Rolley, and they did not criticize his tactic. Id. at 44. Agent Berlin did not hear any concern about the interview until July 2018. Id. The tactic used had been discussed with the ATF agents and TPD detectives because they “were careful to select which pieces of information . . . to reveal.” Id. Agent Berlin agreed with defense counsel that the thinking was that “even if this is a problem . . . the U.S. Attorney just won't be able to use [Gray's statements] in their case-in-chief,” but the statement could be used for impeachment purposes. Id. at 44-45.
Agent Berlin began to have difficulties with AUSA Hansen in March 2016. Id. at 48. AUSA Hansen never spoke to him about the Gray interview. Id. She “just appeared to have a different point of view as to how the prosecution should proceed.” Id. For instance, she wondered why the consensually recorded phone calls were continuing. Id. at 49. Agent Berlin testified that consensually recorded phone calls were also used in both the Eastside Crips case and the Barrio Hollywood case. Id. at 57.
There were over a thousand recorded phone calls with Anna Rodriguez; the calls started in July 2015 and continued until about March or April of 2016. Id. at 49-50. Law enforcement officers would meet with Rodriguez and provide her information for her “to introduce in the discussion with Mr. Williams” to see if he would implicate himself or others and/or provide investigative leads. Id. at 50. The initial meetings with Rodriguez before she was signed up as an informant were recorded. Id. at 51. The meetings after she became an informant when she was provided information to discuss with Williams were not recorded. Id. Agent Berlin explained that every single phone call was not planned; in fact, Williams requested that Rodriguez maintain contact with him. Id. Agent Berlin does not recall Rodriguez saying that she was afraid of the federal government; but she was well aware of the potential of being prosecuted. Id. at 52. Rodriguez said she was afraid of the Western Hills and Freestones. Id.
Agent Berlin is aware of Maxwell's February 2016 arrest by state law enforcement. Id. at 59. He did not know that Bruce Chalk was the prosecutor on that case and does not recall having any conversations with him about whether Maxwell would be indicted on that case or about the case being dismissed in 2019. Id. With respect to the email that talks about holding the evidence from this arrest for seven years, Agent Berlin assumes that AUSA Vejar or Rolley was involved in making that decision. Id. at 59-60.
Agent Berlin's email to his supervisor addressed AUSA Hansen's criticism of the Gray interview. Id. at 63. When asked to explain his comment in the email that AUSA Hansen had “been questioning everything” that he had been doing, Agent Berlin testified as follows: “I don't think that Ms. Hansen and I agreed on very much at all” in terms of how the prosecution should proceed. Id. at 64.
h. Mr. Roach for Defendant Shawmaine Moore
Agent Berlin grew up in the South and went to elementary, junior high school, high school, and college in the South. Id. at 65. Agent Berlin does not recall “White people expressing racist views in the communities” that he was involved in. Id. at 66. With respect to White people using the N word, Agent Berlin testified that he was aware of the use of that word “from a historical context” but he does not remember the word being used “amongst peers.” Id. The racial composition of the schools that he attended “was probably pretty even between White and African American.” Id.
2. Cross-Examination by Mr. Rossi for the Government
Agent Berlin testified that he is not racist against African Americans and does not harbor any racial animus towards any member of the Western Hills Bloods. Id. at 70. There were not any “investigative decisions in this case done on the basis of racial animosity.” Id. The investigation was the result of evidence discovered and not as the result of race. Id. Agent Berlin's involvement in this case began after the Floyd Davis homicide when Detective Frieberg provided him with the potential suspects who were members of the Western Hills gang. Id. at 71-72. The potential punishment in state court did not factor into his decision-making in this case. Id. at 72.
Testimony turned to the interview of Christina Monge. She had been involved in a romantic relationship with defendant Reginald Johnson who was a Western Hills gang member. Id. The interview occurred a short time after “Johnson was arrested for beating her up pretty severely.” Id. Monge was also involved with another gang member named Chandler Booker, who introduced her to Johnson. Id. at 72-73. Monge identifies as Hispanic. Id. at 73. Monge used the N word during the interview; no law enforcement officer used that word. Id. Agent Berlin cannot attribute the laughter after Monge's comments to anyone in the interview room. Id. He agreed with counsel that sometimes laughter is a “reaction to uncomfortable situations.” Id. It could have been Monge's mother who was laughing. Id. at 74. Agent Berlin considers Monge's use of the N word and her comment that all Black men look alike to be racist statements. Id. He does not agree with her comments or adopt them in any way. Id.
Agent Berlin has never heard any law enforcement officer involved in this investigation use the N word, other than perhaps quoting a defendant's rap lyric. Id. If the N word was used by a member of the Western Hills Bloods, it was used when referring to each other. Id. at 75. Other non-African American associates of the gang, including defendants Monteen and Borges, used that word to refer to other individuals. Id. Agent Berlin is aware that the term “baby momma” is used by gang members and “regular civilians” of all races. Id.
The investigation into Western Hills included non-African Americans, such as defendants Borges and Monteen. Id. at 75-76. Gangs determine their own membership, not law enforcement or prosecutors. Id. at 76. In Agent Berlin's experience, violent gangs generally tend to be of the same race. Id. He has investigated other gangs whose members are predominantly the same race, as well as other gangs whose members are racially diverse. Id. at 76-77.
Agent Berlin again testified that the Eastside Crips investigation went to state prosecutors because the AUSA “did not want to move forward on anything other than felon in possession charges.” Id. at 77. Law enforcement did not believe that decision was “sufficient to appropriately address the ongoing violent crime and criminal activity that was going on with” Western Hills. Id. As a result, the Arizona Attorney General's Office was presented with the Eastside Crips investigation. Id. The racial make-up of that gang had nothing to do with that decision. Id.
Testimony again turned to Agent Berlin's email addressing disagreements with some of the assigned federal prosecutors. Id. at 78. The disagreement “was not the result of racial bias on either side but how [he] had different views on how the facts of the case related to the proposed charges and the speed of indicting this case.” Id. Again, Agent Berlin thought that the case should have been indicted in 2016, especially “because there was a continued wave of violence perpetrated allegedly by the Western Hills Bloods around that time” and “they were also still out on the street.” Id. The reference in the email to the “urge to just get this case indicted” refers to his management's acquiescing to the U.S. Attorney's Office with no pushback to essentially end the disagreements with ATF and the U.S. Attorney's Office. Id. at 79. The disagreements had nothing to do with the race of the defendants. Id. In Agent Berlin's experience, “agents and prosecutors frequently [do] not see eye to eye on charging decisions.” Id. at 81.
The approach taken during the Gray interview had nothing to do with his race. Id. at 80. The timing of the interview was based on ongoing violence and the discovery of a vehicle used in the shooting of Mia Scott, who was African American. Id. at 80-81. The tactic used in the Gray interview was to stem the ongoing violence and attempt to gather information from recorded calls with the CI. Id. at 80.
Agent Berlin testified that he has never been involved in an investigation that started based on the race of the suspects. Id. at 82. If law enforcement officers involved in this investigation had done something that he believed was racist, he would “have said something or done something.” Id.
Agent Berlin again testified that the investigation into Western Hills involved “looking back at old cases to both get [a] historical perspective and also to see if there were any further potential charges for those individuals.” Id. at 83. That practice is standard in many investigations and has nothing to do with race. Id. And the charging decisions are ultimately left to prosecutors. Id. Agent Berlin felt that certain AUSAs “did not want to take on a case of this complexity.” Id. The same was true for the Eastside Crips case. Id. Race played no part in either case. Id. at 84.
Agent Berlin's “motivation for enforcing the law or in conducting interviews” in other investigations has never been questioned generally or specifically based on race. Id. Agent Berlin has done hundreds of interviews during his career, and there have never been accusations such as the one made in the case at hand. Id. at 85. He had never been accused of racism of any kind. Id.
3. Redirect Examination by Ms. Turk and Mr. Hill
Agent Berlin agreed with counsel that if he had racial animus and admitted as much, it could harm this case and expose him to civil rights claims. Id. at 89. Other than the instant case, Agent Berlin has “never been pulled from doing interviews in a case based on a review of [his] conduct.” Id. at 92.
DISCUSSION
“Racially selective law enforcement violates this nation's constitutional values at the most fundamental level[,]” and was “one of the central evils addressed by the framers of the Fourteenth Amendment.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1263 (10th Cir. 2006). A claim of racially selective law enforcement and/or prosecution draws on what the Supreme Court has called “ordinary equal protection standards.” Wayte v. United States, 470 U.S. 598, 608 (1985). As a result, the Equal Protection Clause, and by extension the Fifth Amendment, forbid both selective enforcement and selective prosecution on the basis of race. United States v. Armstrong, 517 U.S. 456, 464 (1996); Lacey v. Maricopa Cty., 693 F.3d 896, 920 (9th Cir. 2012).
Both selective prosecution and enforcement claims “are generally evaluated under the same two-part test.” United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017); accord Lacey, 693 F.3d at 920. The defendant must demonstrate that the official's action (1) “had a discriminatory effect” and (2) “was motivated by a discriminatory purpose.” Armstrong, 517 U.S. at 465. This standard is necessarily “demanding” because “charges of racial discrimination . . . may be easy to make and difficult to disprove.” Alcaraz-Arellano, 441 F.3d at 1264 (quoting Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1166 (10th Cir. 2003); see also Lacey, 693 F.3d at 920 (citing Armstrong, 517 U.S. at 463).
“Executive-branch officials possess broad discretion in determining when to make a traffic stop or an arrest. Judicial interference with law-enforcement discretion might ‘induce police officers to protect themselves against false accusations in ways that are counterproductive to fair and effective enforcement of the laws,' such as by directing law-enforcement resources away from minority neighborhoods.” Alcaraz-Arellano, 441 F.3d at 1264.
As with any equal protection claim, the defendant has the burden to prove selective enforcement or prosecution. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). "'[I]t is considerably harder' to prove a selective enforcement claim." United States v. Brown, 299 F.Supp.3d 976, 994 (N.D. Ill. 2018) (quoting United States v. Hare, 820 F.3d 93, 100 (4thCir. 2016)). It is not enough to prove discriminatory effect and purpose abstractly; the defendant must show that it was “decisionmakers in his case” who acted with “discriminatory purpose.” Id.
The case law cited by both parties provides limited guidance other than setting forth the two elements that must be shown for the defense to succeed on a claim of selective enforcement and/or selective prosecution. For instance, the Supreme Court in Armstrong addressed the standard for obtaining discovery to support a selective prosecution claim; the merit of such a claim was not before the Court. Similarly, United States v. Sellers, 906 F.3d 848 (9th Cir. 2018) set forth a more relaxed standard to obtain discovery to support a selective enforcement claim; but, again, the ultimate merit of such a claim was not before the Court. In Lacey, the Ninth Circuit was dealing with a 28 U.S.C. § 1983 lawsuit based on selective enforcement, and not a motion to dismiss an indictment based on that theory.
Discriminatory Effect
To establish “discriminatory effect” when a defendant's selective enforcement “claim is based on the investigative phase of the prosecution, . . . the defendant must . . . make a credible showing that a similarly-situated individual of another race could have been, but was not, arrested or referred for federal prosecution for the offense for which the defendant was arrested and referred.” United States v. James, 257 F.3d 1173, 1179 (10thCir. 2011); see also Armstrong, 517 U.S. at 465. “The goal of identifying a similarly situated class is to isolate the factor allegedly subject to impermissible discrimination.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). There is no magic formula for determining who is similarly situated; the inquiry is one of common sense. Chavez v. Illinois State Police, 251 F.3d 612, 636 (7th Cir. 2001). “The similarly situated group is the control group.” Freeman, 68 F.3d at 1187.
Statistical evidence may be used to prove discriminatory effect. Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002); James, 257 F.3d at 1179. However, the Supreme Court has noted that it is a rare case where “a statistical pattern of discriminatory impact” will be sufficient to prove a constitutional violation. McCleskey, 481 U.S. at 292. “Raw statistics” alone are not enough to prove discriminatory effect unless they account for similarly situated individuals of other races who were not investigated. United States v. Bass, 536 U.S. 862, 863 (2002). As a result, courts have held 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.' United States v. Whitfield, 29 F.Supp.3d 503, 514-515 (E.D. Pa. 2014) (first quoting Chavez v. Illinois State Police, 251 F.3d 612, 638 (7thCir. 2001); then citing United States v. Hedaithy, 392 F.3d 580, 607-08 (3d Cir. 2004)). “It is not enough to show the racial composition of the individuals targeted by law enforcement; rather, the statistics must compare the racial composition of those targeted to some appropriate benchmark[,]' namely, 'similarly situated individuals of another race who could have been targeted but were not[.]' Id. at 515.United States v. Washington, 2021 WL 120958 (E.D. Pa. 2021).
When statistical evidence is used to show a discriminatory effect, that evidence should include: (1) reliable demographic information; (2) some manner of determining whether the data reflects similarly situated individuals; and (3) information about the actual rate of occurrence of the suspected crime across relevant racial groups. United States v. Alabi, 597 Fed. App'x 991, 997 (10th Cir. 2015) (citing Marshall, 345 F.3d at 1168)). “In the investigative stage of an operation, therefore, defendants are similarly situated when their circumstances provide no 'distinguishable legitimate' factors that might justify enforcing the law differently upon each of them.” United States v. Jackson, 2018 WL 6602226 (D. N.M. 2018); see also Hare, 820 F.3d at 99.
“Evidence devoid of any comparison to ‘similarly situated' individuals does not prove discriminatory effect.” Washington, 2021 WL 120958 at *23. For instance, the Supreme Court has held that nationwide statistics that showed that the United States charged Black defendants with death-eligible offenses more than twice as often as Whites and entered into plea bargains more frequently with White defendants than Black defendants, was not sufficient evidence of discriminatory effect because they said "nothing about charges brought against similarly situated defendants." Bass, 536 U.S. at 863-864. As discussed below, the statistical evidence proffered by the defense in the case at hand suffers from the same shortcoming - i.e., it says nothing about charges brought against similarly situated individuals.
The defense provides various statistics that they argue reflect the disproportionate targeting of Black Americans at nearly every stage of the criminal justice process. These statistics are as follows: (1) Black drivers are 31 percent more likely to be stopped by police; (2) police are less likely to stop Black drivers after sunset “when a ‘veil of darkness' masks one's race”; (3) Black drivers are less likely to be given a reason for the stop; (4) police are more likely to search the car of a Black driver; (5) Black Americans are five times more likely to be arrested by police, especially for drug offenses; (6) Black Americans are more likely to be hospitalized from an injury inflicted by police during a stop, search, and/or arrest; and (7) Black Americans are more than three times as likely as White people to be killed during a police encounter. The defense also cites to TPD data which they claim reflects the national trend that Black Americans are arrested at disproportionate rates. Specifically, although only about 5 percent of the Tucson population is Black, the percentage of TPD arrests of Black people range from a low 10 percent in 2009 and 2010 to a high of 17 percent in 2021.
The defense also points to the following racial disparities in the post-investigative stage: (1) Black people are more likely to be detained pending trial; (2) they are more likely to be incarcerated; and (3) they are more likely to face longer prison sentences than White defendants when convicted of federal offenses. As to the last point, the defense points to the disparate U.S. Sentencing Guidelines that previously existed for crack versus powder cocaine, and the fact that 85 percent of defendants convicted of crack offenses in federal court are Black. The defense also points out that Black Americans disproportionately are sentenced to death. And Black youth are disproportionately tried as adults in Arizona.
The proffered statistics regarding pretrial detention, the length of incarceration, the death penalty, and juveniles being charged as adults are of no value to a selective enforcement motion where the focus is on the actions of law enforcement, not prosecutors who make the charging decisions and sentencing recommendations. As a result, the Court will not further address these statistics.
In response to the statistics provided by the defense, the government cites publicly available information which reflects that the federal government, including the U.S. Attorney's Office for the District of Arizona, has prosecuted non-Black individuals for gang and RICO-related criminal offenses. See Doc. 999 at 32-34 (RICO prosecution of violent White supremacist gangs; RICO prosecution of Neo-Nazi prison gang; RICO prosecution against gang members from Navajo Nation; prosecution of gang members from the Gila River Indian Community, Tohono O'odham Nation, and Ft. Apache Indian Reservation for violent and drug offenses).
The Court finds that the statistics of the racial make-up of persons arrested by the TPD proffered by the defense do not assist them in proving discriminatory effect because the statistics say “nothing about charges brought against similarly situated defendants.” United States v. Bass, 536 U.S. 862, 863-864 (2002). The TPD statistics only address the arrest of Black people at a disproportional rate; they say nothing about the suspected offense(s) that led to the arrests. As a result, the statistical evidence does not include some manner of determining whether the data reflects similarly situated individuals, or the actual rate of occurrence of the suspected crimes across relevant racial groups. See Alabi, 2018 Fed. App'x at 997. Relatedly, the statistics also do not take into account the various defendants' level of involvement in the charged offenses, prior criminal history, or the defendants' individual characteristics. See United States v. Redondo-Lemos, 27 F.3d 439, 444 (9th Cir. 1994). And they also say nothing about the decisionmakers in this case. McCleskey, 481 U.S. at 292.
Additionally, the statistics regarding national police practices fail to meet the Supreme Court's case-specific requirement to prove discriminatory effect. The statistics about national trends are too abstract to show whether actions of law enforcement officers in the instant case had a discriminatory effect. See McCleskey, 481 U.S. at 292. Once again, the national statistics do not contain information about the actual rate of occurrence of the suspected crimes across the relevant racial groups or detail the manner of determining whether the data reflects similarly situated individuals.
In reaching its conclusion, the Court acknowledges that the legacy of slavery has impacted and still impacts African Americans, and that racial bias against African Americans still exists in general and in the criminal justice system. But the statistics which do not specifically address the instant or similar charges or similarly situated defendants do not establish discriminatory effect in the case at hand.
The defense argues that the RICO case charged against these Black defendants is the only such case that has been prosecuted in a federal court in Tucson. However, the government has provided numerous examples of the federal prosecution of non-Black individuals for gang and RICO-related criminal offenses both nationally and in the District of Arizona. Unlike a state prosecutor's office, the Department of Justice, which includes the U.S. Attorney's Office for the District of Arizona, is national. Thus, the Court rejects the defense's attempt to narrow the selective prosecution control group to just individuals prosecuted in federal court in Southern Arizona. Finally, as discussed infra, even if Southern Arizona were the relevant demographic area, the argument that racial bias is shown by this unprecedented federal prosecution goes to a selective prosecution claim (whose focus is on a decision made by prosecutors) and not a selective enforcement claim (whose focus is on the investigation conducted by law enforcement).
Finally, the Court notes that non-Black defendants are charged in the Third Superseding Indictment and most of the victims of the charged offenses are Black. These facts undercut the defense argument “that similarly situated individuals of a different race were not prosecuted.” Armstrong, 517 U.S. at 465. And it also does not support the argument that the law enforcement officers in this case decided to enforce the law on “an impermissible ground such as race.” Lacey, 693 F.3d at 922.
Dr. Smith testified that the race of the victims does not mean that this was not a racist investigation. However, in this Court's view, it does show that law enforcement was not ignoring crimes committed against Black victims, which is a common complaint made against law enforcement.
Based on the foregoing, the Court concludes that the defendants have not shown that the investigation had a discriminatory effect.
Discriminatory Purpose
The second requirement that a defendant must prove to prevail on a selective enforcement claim is that the law enforcement officers in his case “decided to enforce the law against him on the basis of an impermissible ground such as race.” Lacey, 693 F.3d at 922. To satisfy the discriminatory purpose prong, a defendant must show that “discriminatory intent was a motivating factor in the decision to enforce the criminal law against the defendant.” Alcaraz-Arellano, 441 F.3d at 1264. Although discriminatory intent does not have to be the sole motivating purpose, such intent must have been “a motivating factor in the decision . . . .” Marshall, 345 F.3d at 1168. Discriminatory purpose “implies more than intent as awareness of consequences. It implies that the decisionmaker selected or reaffirmed a particular course of action at least in part ‘because of,' not merely ‘in spite of,' its adverse effects upon an identifiable group.” Wayte, 470 U.S. at 610 (citation omitted).
The Court first notes that, as was the case for discriminatory effect, the statistical evidence presented by the defense does not support the argument that law enforcement in this case had a discriminatory purpose in investigating the defendants. See McCleskey, 481 U.S. at 293-294 (The “statistical proof normally must present a ‘stark' pattern to be accepted as the sole proof of discriminatory intent under the Constitution.”). Additionally, the defense claims of implicit bias are too abstract to prove that the decisionmakers in this case purposefully discriminated. In fact, the defense expert, Dr. Smith, testified that he does not even use the term “implicit bias” in his work. He testified that all bias, including racial bias, is explicit. The defense has not cited to a case where implicit bias was used to demonstrate a discriminatory purpose. The inability to do so stems from the fact that discriminatory purpose requires “more than intent as awareness of consequences.” Wayte, 470 U.S. at 610. The defendant must show that “the decisionmaker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Id. Thus, the claims of implicit bias are not legally sufficient to show a discriminatory purpose.
With respect to explicit bias, the Court first notes that during the course of their investigation, law enforcement officers certainly made some disparaging comments that were either racist or at least could be interpreted as racist. They include: (1) the Ethiopian chicken wing comments made by TPD Detective Barber during the Rakestraw interview; (2) the “throw down” beads comments also made by Detective Barber during that interview; (3) the references during the Rakestraw interview to “baby momma” or “baby's momma” and Rakestraw only having one “so far;” (4) with respect to the attempt to get Rakestraw to identify Michael Williams, Detective Barber's comment that we aren't talking about someone on a cereal box; and (5) the “bred to lie” comment made by Detective Padilla during the interview of Troy Howell.
Dr. Smith testified unequivocally that these comments are racist. The Court is in no way discounting his opinion.
The Court granted the defense request for an evidentiary hearing based, in large part, on the comments made during the Rakestraw interview, which the Court became aware of during the litigation of Rakestraw's motion to suppress his statements. The purpose of the evidentiary hearing, in this Court's view, was to give the defense the opportunity to present evidence of similar racial comments and/or racial bias on the part of the law enforcement officers involved in this investigation. The defense was given ample opportunity to do so through witness testimony and documentary evidence at the evidentiary hearing. Indeed, the Court let the defense call every witness they wanted to testify and stray far afield with every witness into subject areas that had nothing to do with race. However, the only other arguably racially charged comment made by law enforcement that surfaced during the evidentiary hearing was the “bred to lie” comment made by Detective Padilla to Mr. Howell. To be sure, Detectives Frieberg and Padilla provided non-racial explanations for the comments. Nevertheless, the Court still finds the comments made by law enforcement officers to be demeaning, offensive, and unprofessional, especially given that they were made during custodial interviews that pertained to serious crimes. That said, the comments alone do not establish that law enforcement acted with a discriminatory purpose in investigating Rakestraw, Howell, or any other African-American defendant.
A witness used the N word and said that Black men all look alike during a recorded interview. Although these comments were not made by law enforcement, the defense points to laughter after the comments were made and attributes the laughter to one of the law enforcement officers present at the interview. Agent Berlin could not identify who was laughing or if it was male or female laughter. He also testified that the witness's mother was present in the interview room. And he testified that he sees and hears many offensive things in his line of work and that nervous laughter can occur in response to an uncomfortable situation. The Court also notes that because the agents were trying to get information from this witness to further their investigation, it would have been counterproductive to that goal for the agents to express shock or disgust at the witness's comments, or to chastise her for making the comments.
For example, Detective Frieberg testified that she believed Detective Barber's comments about Ethiopian chicken wings related to his dislike of wings. She also testified that non-Black people use of the terms “baby momma” and “baby's momma,” and that gang members often refer to their members or friends as “homies.” The comments on Rakestraw's beads in his hair was made while officers were showing Rakestraw pictures in which he was depicted with other individuals. The cereal box comment explanation was less credible - that it may refer to Mikey from old Life cereal commercials, even though Mikey was a White child. Detective Padilla testified that when he told Howell he was “bred to lie” he was referring to the fact that in his experience gang members, at an early age, are conditioned, raised, or bred to live a dangerous lifestyle, involving dishonesty and criminal activity.
These disparaging comments must be viewed in the context of the breadth of this years-long investigation into acts of violence allegedly committed by Western Hills gang members. Detective Frieberg and the other law enforcement officers testified about the violent acts that were continually occurring between rival gangs during the time frames alleged in the indictment. They testified that the goal of their investigation of the Western Hills gang was to stop the violence and protect the community, including the residents of the Western Hills neighborhood. Detective Frieberg testified that she was going on repeated “call outs” to respond to acts of violence in which Western Hills gang members were suspects. This responsive action by law enforcement simply does not support a selective enforcement claim. Selective enforcement claims are most often made in the context of undercover “sting operations” where law enforcement is involved in the planning of a crime and present individuals with an opportunity to commit a crime (e.g., robbery of a fictitious drug stash house or buy/bust of street level drug sales and/or firearms). See Conley v. United States, 5 F.4th 781, 785 (7th Cir. 2021); Washington, 2021 WL 120958, at *2-3; United States v. Brown, 299 F.Supp.3d 976, 983 (N.D. Ill. 2018); United States v. Mumphrey, 193 F.Supp.3d 1040, 1043 (N.D. Cal. 2016). Because there is an opportunity for law enforcement to choose the target(s) of the operation, that choice has been challenged on racial grounds. By contrast, in the case at hand, law enforcement was reacting to and investigating crimes already committed; they did not pick their targets.
Detective Frieberg testified that the Western Hills gang was essentially winning the battle with the Freestones. But by winning that battle, they lost the war in terms of being charged federally to stem the violence.
The Court acknowledges that Dr. Smith testified that the law enforcement officers who made racist comments during interviews could not have conducted an unbiased investigation. That may be true if only those officers were responsible for conducting the investigation. However, the officers who made these comments constituted a small percentage of the law enforcement officers involved in this large investigation conducted over the course of years. Thus, they alone did not have the ability to conduct the overall investigation in a racially discriminatory manner or influence the federal prosecutors' decision to charge the instant case based on the substantial evidence apart from the interviews (which did not appear to produce any inculpatory evidence). As a result, the Court finds that these comments, in and of themselves, do not establish a discriminatory purpose. And, as discussed below, the comments are the only evidence that the defense has established to support their allegation that the investigation had a discriminatory purpose.
The Court notes that Detective Barber seemed to be primarily investigating the E.M. homicide, which is not part of the instant indictment. Detective Frieberg was the lead detective when the Western Hills case was presented for prosecution. And Detective Frieberg, not Detective Barber, got ATF involved in the Western Hills investigation.
Dr. Smith was certainly an expert in the field of race relations. However, Dr. Smith's specific expertise seemed to be racism in sports, wrongful convictions of Black men, disparate sentences received by Black men, and the killing of unarmed Black men by the police. He provided little testimony about his experience on the investigative methods of law enforcement generally or in the case at hand.
Notwithstanding the substantial amount of discovery produced in response to the Court's Orders and the multiple days of testimony where the Court gave defense counsel free rein to explore virtually every subject matter, the defense has failed to present additional evidence that the law enforcement officers in this case were motivated by race when investigating the defendants. At the evidentiary hearing, the defense tried to establish that law enforcement acted with a discriminatory purpose by questioning the law enforcement officers about whether the investigative methods and tactics used during the investigation of these Black defendants were ever used when they investigated non-Black defendants. For instance, the following investigative methods and tactics were explored: (1) references in TPD reports to hold evidence for seven years; (2) asking defendant Gray questions after he invoked his right to counsel; (3) the dismissal of defendant Maxwell's state case that had been pending for three years and including that charged in the federal indictment; (4) consensually recorded phone calls between Anna Rodriguez and defendant David Williams; (5) a suggestive photo “show up” during an interview of Anna Rodriguez; and (6) the investigation and prosecution of gangs with non-Black members. With respect to each subject area, the defense attempted to establish that law enforcement has only ever used each action, technique, or tactic when investigating the Black men charged in the instant indictment. The defense was unable to do so. As discussed below, several of these subject areas pertain to potential Constitutional violations that may prove very useful to support motions to suppress evidence; however, they are of little value in establishing the selective enforcement claim.
In the motion to dismiss, counsel for Gray set forth his difficult upbringing and alleged that he had been surveilled and targeted by law enforcement throughout his life, starting at a young age, and described specific incidents of surveillance and targeting. In their Joinders to the motion to dismiss, counsel for other defendants set forth similar backgrounds and allegations. However, no evidence was presented at the hearing on the defendants' backgrounds or prior surveillance and/or targeting by law enforcement. Counsel's representations are not evidence and will not be considered by the Court.
There was an insinuation made that Detective Padilla's statement to Howell that he will always be watching him demonstrated surveillance of him. However, Detective Padilla credibly explained that he made that comment because TPD had a good homicide case based on physical evidence, he believed that Howell was involved, and he would contact him if more evidence was developed or if a witness came forward.
With respect to holding evidence for seven years while no charges were pending, Detective Frieberg testified that contraband is never returned to the person from whom it was seized. She has requested that evidence seized from a non-Black person be held for a long period of time. In fact, she specifically recalls a case involving a Hispanic person where an arrest was made, property was seized and held for five years, but no charges were filed. However, she could not recall the specific person or investigation. That makes sense since she was essentially being asked to recall every case she has investigated during her ten-year career with TPD. Defense counsel asked Detective Frieberg if she could provide them with the cases involving non-Black arrestees. She agreed to do so. However, the defense apparently never pursued their request, or the information provided did not prove useful for the defense, because no further evidence on this point was presented to the Court. When Detective Berlin was asked if he ever asked questions of a non-Black interviewee after s/he invoked the right to counsel, he explained that his intent was to impart information to Mr. Gray, but he mistakenly did so in the form of questions. And he testified that it is a common law enforcement tactic to impart information about an investigation to a suspect, regardless of the suspect's race, in the hopes of creating conversation between the suspect and other suspects and/or witnesses. In the Court's view, the questioning of Mr. Gray after he invoked his right to counsel is great evidence to support a motion to suppress his statements. But it has no evidentiary value for the selective enforcement motion because the defense did not tie this interview tactic to Gray's race.
A substantial amount of time was spent by several defense attorneys on Agent Berlin being prohibited from participating in further interviews as a result of a dispute with an AUSA over the tactics used in the Gray interview. However, the defense was unable to establish that the decision to not allow Agent Berlin to participate in further interviews was related to racial animus, which is the only relevant issue in the instant motion.
None of the detectives and agents had any knowledge about why Maxwell's state case which had been pending for three years (and where the evidence was held for seven years) was dismissed and the alleged offense was instead included in the federal indictment. Nor did the detectives or agents know why Howell's 2015 arrest ended up in the federal indictment, as opposed to a state charge. They testified that those charging decisions were made by the federal (and perhaps state) prosecutors.
Relatedly, Detective Frieberg testified that she did not know if federal charges would be filed against these defendants when the investigation started in 2015; she learned for certain in 2018 that federal charges would be filed. Agent Berlin testified that when Detective Frieberg asked him for help on the Western Hills investigation in 2015, he does not believe that it was discussed if the case would ultimately be presented to state or federal prosecutors. But he was understandably looking at federal charges because he is a federal agent and is more familiar with potential federal charges.
All of the law enforcement officers testified that the investigation was not focused on the possible penalties in state court versus federal court. In fact, Detectives Padilla and Frieberg are still not aware of the penalties that the defendants face if convicted of any or all of the federal offenses. Similarly, the ATF agents do not know the specific penalties that the defendants would have faced if charged with similar offenses in state court. However, they testified that first-degree murder in the state carries a penalty that is as severe as the most serious federal charge(s). And, with respect to the drug charges, the state penalties, like the federal penalties, turn on the amount and type of drug(s) involved, and a defendant's prior criminal history.
Detective Berlin and other law enforcement officers testified that consensually recorded phone calls between a cooperator and a suspect is a common law enforcement strategy regardless of the suspect's race. In fact, consensually recorded phone calls were used in the Eastside Crips investigation. Similarly, Detectives Frieberg and Padilla testified that they have used a photo “show up” - i.e., showing a witness a picture of one person rather than a photo array of multiple people - in other cases when the witness says that they know a suspect regardless of the suspect's race. Detectives Frieberg and Padilla also testified that a photo “show up” is an acceptable identification procedure when a witness knows a person of interest. As with the Gray interview, the Court finds that the photo show-up procedure conducted with Rodriguez - which included only showing her one photo and telling her the name or nickname of the person that law enforcement was asking her to identify - may be good evidence for a motion to suppress a tainted identification; but it does not support an argument that the photo show-up procedure was motivated by racial bias.
Detective Padilla specifically recalls using a photo show-up for a Hispanic gang member.
Counsel for Gray played a recording of an interview with a witness named Jimmy Elem during his examination of Detective Frieberg. The subject of the interview was the E.M. homicide. During the interview, Detective Barber says the name “Moss” (Gray's nickname) because he mistakenly thinks Elem knows the suspect, when in fact, he said that he knew the victim. Counsel suggested that Detective Barber was putting words in the victim's mouth. Detective Frieberg testified that she could not speak to Detective Barber's intention. The purpose of this line of questioning with respect to the instant motion is unclear since it also goes to sloppy police work, and not racial animus. Another example of arguably sloppy police work was Detective Padilla's failure to conduct a follow-up investigation to try to identify the Hispanic shooter at the Hookah Lounge. While Detective Padilla did conduct a follow-up investigation to identify Michael Williams, the defense did not establish that the decision to only follow up on Mr. Williams was based on race.
Finally, every law enforcement officer testified that they have investigated other gangs whose members are primarily Black, gangs whose members are not Black, and gangs that have racial and/or ethnically diverse memberships. Specifically, the Eastside Crips investigation involved a multicultural gang, and the Barrio Hollywood investigation involved a gang whose members were also racially and ethnically diverse. And Detectives Padilla and Frieberg have had non-Black defendants, some of whom had gang affiliations, charged with first-degree murder in state court. This testimony is supported by publicly available information that shows that the TPD has investigated and arrested non-Black individuals for gang related offenses. Doc. 999 at 36-37.
The TPD detectives and ATF agents all testified that gangs determine their membership and that generally speaking, violent crime street gangs tend to be of the same race.
Faced with the substantial evidence that the law enforcement officers involved in the Western Hills investigation have investigated other Black and non-Black gangs, the defense argues that discriminatory purpose is shown by the fact that this is the only federal RICO case charged by the U.S. Attorney's Office for the District of Arizona. The defense further points to the fact that neither Detective Frieberg nor Detective Padilla had ever been involved in a federal prosecution and that all other gang cases that they worked on with ATF were prosecuted in state court. The defense essentially argues that the Black defendants in the case at hand who were investigated for years by TPD should have been charged in state court like the other gang cases.
This argument is demonstrated by defense counsel's questioning the officers and agents about the greater protections provided to defendants in state court, such as the defense's right to interview all witnesses who will testify at trial.
The defense argument that the instant case was prosecuted federally based on racial animus ignores and is belied by the fact that both the Eastside Crips and Barrio Hollywood investigations, which involved gangs of different races and ethnicities, were initially presented to federal prosecutors. The Eastside Crips case and part of the Barrio Hollywood case were prosecuted in state court because federal prosecutors exercised their discretion as to which offenses they would prosecute. Similarly, the prosecutors in the case at hand exercised their discretion in both charging the case in federal court and deciding which offenses to charge.
Finally, but importantly, putting aside the almost unfettered discretion and deference afforded to prosecutors on charging decisions, including the jurisdiction in which to file charges, the defendants' complaint that this case should have been prosecuted in state court goes toward a claim based on selective prosecution, and not selective enforcement. The defense has repeatedly disputed the government's characterization of the instant motion to dismiss as a veiled claim of selective prosecution. Indeed, the defense did not elicit any evidence to support a selective prosecution claim - i.e., that the prosecutors' decision to file the instant charges was motivated by race. Thus, the decision to file federal charges rather than state charges is not evidence of a discriminatory purpose (or discriminatory effect) to support a claim of selective enforcement.
In a selective prosecution claim, the defendant “asks a court to exercise judicial power over a special province of the Executive;” as a result, he must overcome the “presumption of regularity”: that "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. As a result, courts are “hesitant to examine the decision whether to prosecute.” Id. at 465.
Based on the foregoing, the defense has not established that the investigation and/or prosecution was based on a discriminatory purpose.
CONCLUSION
For the reasons discussed above, the Court recommends that the District Court deny the instant motion.
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If any objections are filed, this action should be designated case number: CR 18-01695-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).