The prosecution has just scored a major victory in Operation Meth Merchant (previous SM post here):
U.S. District Judge Harold Murphy refused Wednesday to toss out cases against dozens of South Asian merchants accused in the methamphetamine sting, rejecting the American Civil Liberties Union’s argument that police intentionally targeted South Asian merchants while ignoring white-owned stores.
As a reminder, here are the key objections the ACLU raised about this operation:
* Operation Meth Merchant resulted in the arrest of 49 people, 44 of whom are South Asian, and 33 of whom have the last name Patel.
* Operation Meth Merchant targeted 24 stores for investigation, 23 of which are owned by South Asians. This, despite the fact that approximately 80 percent of area stores are owned by whites or other ethnic groups, according to the ACLUÂ’s investigation.
* The officials directing Operation Meth Merchant had evidence that at least 16 white-owned stores in the area sold products used to manufacture methamphetamine, and yet failed to investigate any of them. These stores include Avaco, Bell’s Smokeshop, Bi-Lo, Breezy Top, Citgo Quikmart, Dollar General, Family Dollar, Food Lion, Fred’s, Home Depot, Jerrell’s Food Mart, Lowe’s, Sam’s Club, and Wal-mart.
* The officials directing Operation Meth Merchant have failed to disclose the existence of any evidence against the vast majority of the 23 South-Asian-owned stores prior to targeting them for investigation.
The ACLU’s summary sheet is here. The motion for dismissal with details of the argument is here.
The judge saw it differently:
His 38-page ruling noted that the defense lacks even basic evidence showing discrimination, citing a magistrate judge’s earlier order that said allowing the group a chance to dig through more evidence would be authorizing a “fishing expedition.”
… And he echoed a previous ruling that “simply pointing out that most of the individual defendants are of Indian national origin is insufficient.”
The ruling is here (August 3, second item). The crux seems to be that according to the judge, the defense presented no evidence that the non-Indian-run stores above sold the items in question (e.g. cold medicine containing pseudoephedrine) in the specific knowledge that buyers intended to use them to make meth. In the sting on Indian-run stores, the buyers made statements about “cooking” that referred to meth. The defense argues that this does not mean the sellers understood the reference. In any case, since there was no sting on the non-Indian-run stores, how would one get the evidence either way? To me this still looks like a clear case of selective prosecution on an ethnic basis, but perhaps legal minds can pore over the documents and give us their more considered views.
I haven’t had a chance to read all the materials in the post. But the outcome doesn’t really surprise me. Proving discrimination is really hard absent some sort of smoking gun like and admission by the cops or a document. It’s not enough to show a discriminatory impact, you have to prove that the police had a discriminatory intent. That’s near impossible using just circumstantial evidence.
As a barely legal mind ;), it doesn’t sound right to me, simply for fairness reasons (nothing to do with actual law).
First, simply saying “can’t let you see the evidence because that’s too inconvenient” (fishing expedition) doesn’t seem right. More investigation and more knowledge and transparency can only be good. That’s right, open the can of worms.
Second, how could it be right to only target desis? Of course, they should fry if did do the crime (they probably did), but so should anyone of any race. This kind of action only causes resentment….
John Doe 2 [confidential informant], who was used by the government to make targeted buys, has sworn under penalty of perjury that he/she routinely purchased products from “all over,”but law enforcement “only sent me to Indian stores” to perform controlled buys.41
John Doe 2 stated that the officers he/she worked with, including Agent Thomasson, ordered him to make targeted buys at specific stores and directed him/her regarding what to say during the buys, including statements such as “I need it to go cook” or “Hurry up, I’ve got to get home and finish a cook.”42 When John Doe 2 expressed concern that people who manufacture meth would never offer such unsolicited and incriminating statements, the officers (a) ordered him/her to make the statements subsequent to the paying for and receiving the products and (b) explained “that the Indians’ English wasn’t good, and they wouldn’t say a lot so it was important for [him/her] to make th[ose] kinds of statements”43 to support the arrests.
Looks like intent to me. And it also seems like an “open and shut case”. God, I’ve always wanted to say that. Well, while I am at it, this is a “travesty”, and these people are getting “railroaded” and “this whole trial is out of order”!
True that, Siddhartha, at least to warrant discovery and further factual development. The judge’s opinion relies on a lot of technical legalisms — the main basis for dismissal was untimeliness of the filing, and only in an “abundance of caution” does he offer a half-assed assessment of the merits, relying on a rather rigid interpretation of an already unrealistic legal standard. And he seems to show a pretty conscious and callous disinterest in actually determining the truth about what happened here.
To get discovery, the defendants needed to show “some evidence tending to show the existence” of (1) discriminatory effect and (2) discriminatory intent in the government’s prosecution. The statistical evidence — which the judge mangles, stating that South Asian store owners were 95 percent more likely to be indicted, when it was in fact 95 times more likely — pretty convincingly shows the former.
So what about discriminatory intent? It’s hard to prove, but at this stage the defendants didn’t to “prove” it — they just needed to offer “some evidence tending to show” it. The numbers themselves raise eyebrows — what’s the non-discriminatory explanation for such a stark pattern? The US Attorney, NASABA honoree David Nahmias, didn’t offer a theory so far as I know, but numbers that stark seem to demand further investigation. And recall that the ACLU presented statements by two witnesses who had pretty devastating allegations — just to refresh everyone’s recollection:
And:
And finally:
Unfortunately, the two witnesses invoked the Fifth Amendment and didn’t testify at the hearing — and the judge essentially ignored the statements altogether on that basis alone. A cousin of one of the witnesses testified about what that witness had to stay, but the judge decided the statement wasn’t credible. I haven’t been following the proceedings closely enough to really be able to scrutinize whether the judge handled the situation involving the two witnesses appropriately, or whether the credibility determination about the cousin was justified. Perhaps some of the folks in the community in Atlanta have more information. But the judge’s opinion is definitely quite blase and nonchalant about the whole thing.
I should think that we’d want to get the testimony of these two witnesses before we conclude that Nahmias and his office should be let off the hook here. And I think the best bet in that front might be to urge Congress to exercise its constitutional responsibility to conduct oversight, since they might be able to immunize the two witnesses from prosecution and compel their testimony — and they also might even be able to subpoena some of the information that the defendants are seeking through discovery. I know that oversight isn’t something that Republicans in Congress has been much interested in since, well, perhaps the stained blue dress, but if Indian Americans are a growing political force, blah blah blah, then maybe we can help them dig through the storage closet to find their backbone somewhere.
By the way, on that note, where the hell have Abhi’s friends at USINPAC been on this issue?
Ofcourse its a selective prosecution. First of all these “supply side drug war” is never going to work. But when “foreign looking people” are selling drug to your innocent kids the state will selectively prosecute.
This thing really makes me furious. Where are all the Desi organizations??? They get only involved when a senator calls them doughnut shop workers?? Where is Vanita Gupta (of Tulia drug case fame) ??
I dont understand this. Earlier I read that prosecution’s case falls apart and now I read this. Is this the same case? May be legal experts can explain this one to me.
RC, I understand and share your frustration, but just to be fair — there are a number of desi organizations and individuals who have been quite active on Meth Merchant. And don’t speak too quickly about Vanita Gupta herself — she’s been working hard on this one.
Not, mind you, that it’s her responsibility to be at the lead on every big issue like this. After all, she’s just one person and she’s doing more than her share of good already, and it’s not as if there aren’t other talented folks in our community who can and should step up. And a number of them have, though I definitely agree with you and Brown Lantern about the more elite and privileged organizations — where are USINPAC and Dr. Vijay? Or India Abroad award winner Congressman Bobby Jindal? Or any number of others?
As for your second comment, the prosecutions against a few of the defendants did fall apart back then. It might have been premature before to conclude that all of them (there are more than 50, I think) were “falling apart” altogether, especially with 20/20 hindsight, but I don’t know that Abhi intended to suggest that. And certainly a judge more concerned about finding out the truth definitely could have taken the substance of the allegations here a lot more seriously than this guy at least appears to have.
AK, You are right, I have no right to yell against Vanita Gupta, my main problem is with the elite Desis and that Bobby “the finger” Jindal, who is ready to take money from Desis, but when the community needs him, he is nowhere to be seen. Shame on them !!
And yeah, God bless ACLU !!!
Jindal will not show up anywhere near these convenience store owners, as “supply side” drug war is more a republican issue.
Whats next … these supply siders are going to put laws against all cooking in the house?? You know, if you make “cooking” illegal, they will not cook Meth .. kind of logic.
Its a good artical