other documents containing policies or practices of federal law enforcement personnel regarding traveller profiles and the engagement of travellers for consensual stops and searches. See Defendant's Motion, filed May 25, 1994, at P45(a)-(c). In response, the Government represents that it "is unaware of the existence of any other material requested by the defendant in the instant moving papers." See Government's Response, filed July 7, 1994, at P9.
The court has reviewed the discovery requests, and concludes that such disclosure is unwarranted. At the evidentiary hearing on the Defendant's suppression motion, Agent Johnson of the United States Drug Enforcement Administration testified that his agency keeps no records of consensual encounters that do not result in arrest and prosecution, and that there are no specific written directives regarding consensual stops of travellers at transportation centers. Additionally, the court is unconvinced that any such further discovery would shed any light on the issues in this case. Having reviewed the testimony of the agents, the court has concluded that race played no part in the stop of Guzman at the bus terminal.
Where a defendant presents some evidence tending to establish the essential elements of a selective enforcement defense, and that documents in the possession of the Government may be probative of those elements, discovery may be justified. See United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir. 1974). Implicit in this formulation, however, is that such documents actually exist. Here, the Government denies the information requested by Guzman exists, and Guzman has made no effort to contradict this representation.
In United States v. Travis, 837 F. Supp. 1386 (E.D.Ky. 1993), the court held that a consensual encounter may not be initiated solely on the basis of race, and requested statistical data on the racial makeup of air travellers generally, and the racial makeup of air travellers approached by law enforcement officers, to determine whether minority travellers were approached in disproportionate numbers when compared with white travellers. If the defendant produced statistical evidence of such a disparate impact, the burden would shift to the Government to rebut the presumption of unconstitutional action or to identify a compelling government interest for the disparate impact. Travis, supra, at 1395. In Travis, such a disparate impact was accepted by the court, but the court concluded that the Government sustained its burden of justifying the consensual encounter with the defendant by the use of drug courier profile characteristics and law enforcement information concerning the use of African-American and Hispanic female drug couriers on flights from Los Angeles.
Implicit in Guzman's argument is that federal law enforcement agencies conducting drug trafficking interdiction investigations at public transportation facilities are focussing attention on persons of color, including African-Americans and Hispanics, solely because of their color or apparent ethnicity. However, without objective information as to the racial and ethnic profile of travellers or visitors to such facilities, there is no factual basis upon which to conclude that those persons actually stopped by agents, even if predominantly persons of color, are so disproportionate in number compared to the profile of the population of persons actually using a facility as to raise an inference that the decisions to stop such persons are necessarily influenced by the persons' color or apparent ethnicity. Guzman has failed to produce such information or even suggest it exists, at least as to encounters in a bus terminal in Buffalo.
Considering the factual circumstances of this case, the court finds, assuming arguendo that statistical evidence of such disparate impact could be provided, that it would not result in suppression in this case. Even if the court were to order discovery of relevant statistical information, the existence of which has not been established by Guzman as is her burden, see Travis, supra, at 1395, and Guzman were able to present, based upon acceptable statistical analysis, a prima facie case of disproportionate impact on minority travellers, the burden would then shift to the Government to rebut the inference of unconstitutional action, or to identify a compelling government interest for the disparate impact. See United States v. Travis, supra. The Government has already put on its proof in this regard, and has sustained its burden and rebutted any possible inference of unconstitutionality by showing race-neutral reasons for the encounter with Guzman. A finding of race-neutral grounds for the encounter renders consideration of alleged due process or equal protection claims unnecessary. See United States v. Taylor, 956 F.2d 572, 579 (6th Cir.), cert. denied, 121 L. Ed. 2d 330, 113 S. Ct. 404 (1992). Cf. Jones v. United States, 819 F. Supp. 698, 723 (M.D.Tenn. 1993) (investigation of African-American male at airport based on cash purchase of two-way ticket to a drug-source city, with only one and one-half hour interval between arrival and departure, and apparent nervousness failed to establish encounter was racially motivated). As there is no reason to believe the requested statistical data exists, and given that the suppression hearing record shows that Guzman's race or ethnicity was not a motivating factor in the investigator's decision to stop her, the request for further discovery will be futile and is therefore DENIED.
2. Request for a Fact-Finding Hearing
Guzman has also requested a fact-finding hearing to demonstrate that race was the determining factor in the decision to stop and engage her at the NFTA bus terminal on January 7, 1992. She suggests that the following factual issues should be addressed at such a hearing: DEA policies regarding transportation center stops, subjective and objective criteria for such stops, statistics regarding the race and ethnic origin of travellers, persons stopped, persons questioned, persons asked for consent for searches, persons searched, and persons arrested. See Letter from James P. Harrington, filed October 28, 1994.
An evidentiary hearing was previously conducted on the circumstances of the stop in this case and, following this court's review of that record, it is determined that Guzman was not stopped on the basis of her race or ethnic origin. Agent Johnson's suspicions were drawn to Guzman and Huertas by their conduct after they exited the bus and when they entered the terminal, in that they walked very slowly, looked around the terminal nervously, and separated after they had conversed together outside the bus terminal. Agent Johnson testified that, based on his experience, he was suspicious that the two were travelling together and were carrying narcotics. There is nothing in the record that suggests that the agents were even aware of the ethnic origin of Guzman and Huertas until they began to speak with them. In fact, they were classified as "white" on the DEA arrest forms.
The court concludes that a further fact-finding hearing is unnecessary, as it has determined that Guzman was not selected for further investigation upon arrival in Buffalo based on her race or ethnicity. That record demonstrates, rather, that Guzman and Huertas were approached for further investigation not because of their color but because of their conduct. See Travis, supra, at 1395; see also United States v. Brignoni-Ponce, 422 U.S. 873, 886-87, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) (apparent ethnicity alone not enough to justify a stop, but can be a relevant factor when considered with suspicious conduct). As noted, there is no indication that data on the issue of racially motivated stops by government agents at transportation centers in general, or the NFTA bus terminal in particular, is available or can be made available. Absent such data, the court fails to see how competent statistical analysis and conclusions can be made. Moreover, as noted, the agents testified that there are no specific criteria or guidelines which govern their decision to investigate. Accordingly, the request for a further evidentiary hearing is DENIED.
3. Motion for Appointment of Expert Witness
Guzman requests that the court appoint Professor Rosalyn A. Lindner, Chair of the Department of Sociology at the State University of New York College at Buffalo, as an expert witness. Professor Lindner previously provided an affidavit in support of a motion to suppress in United States v. Archeval-Vega, 92-CR-241A, and, in that case, was of the opinion that "race was most likely, in and of itself, the primary determinant in the decision to stop and encounter the defendant." See Lindner Affidavit, Defendant's Motion, filed May 25, 1994, Exhibit F, at P10. The court has again reviewed the affidavit of Professor Lindner, resubmitted by Guzman on this motion, and concludes that it provides no information which would cause the court to change its factual findings. Given the finding, as discussed, that a further evidentiary hearing is unnecessary, the appointment of Professor Lindner as an expert witness is likewise unnecessary, and the motion is DENIED.
4. The Motion to Suppress
Having previously found that the stop of Guzman was not impermissibly based solely on her race or ethnic origin, but rather on the agents' observations of suspicious behavior, the court concludes that suppression based on racial bias of the agents is unwarranted. Moreover, the Defendant has provided nothing in her papers that would suggest a racially discriminatory motive on the part of the agents in this case warranting further fact-finding or a reversal of the court's factual conclusions. Additionally, the court concludes that, even if the Defendant were able to make a prima facie showing of a disparate impact on minority travellers, the Government has rebutted the inference of unconstitutional action by showing there were race-neutral reasons for the stop of Guzman. Accordingly, the motion to suppress based on racial bias should be DENIED.
Based on the foregoing, the requests for discovery, a hearing, and the appointment of an expert witness are DENIED, and it is recommended that the motion to suppress on the grounds of racial bias (doc. #22) be DENIED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: January 9th, 1995
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: January 9th, 1995
Buffalo, New York