In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1124
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
PAUL DAVIS, JR., et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 63 — John W. Darrah, Judge.
ARGUED MAY 21, 2014 — DECIDED SEPTEMBER 8, 2014
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. This appeal arises from one of
multiple criminal cases pending in the Northern District of
Illinois in which the defendants are charged with conspiring to
rob a non-existent “stash house” which, they were led to
believe by an undercover agent, contained many kilograms of
cocaine. At the request of the defendants, the district court
ordered the government to produce nine categories of docu-
2 No. 14-1124
ments and data bearing on the exercise of the government’s
law enforcement and prosecutorial discretion with respect to
criminal charges based on non-existent stash houses. After
announcing its intent not to comply with the order, the
government asked the district court to dismiss the indictment
without prejudice in order to facilitate an immediate appeal of
the order, and the district court granted the government’s
request. The government filed this appeal pursuant to 18
U.S.C. § 3731. We conclude that because the district court
dismissed the indictment without prejudice, allowing the
government to re-file the case regardless of the outcome of the
appeal, the dismissal of the indictment is not a final order, and
consequently we lack jurisdiction over the appeal.
I.
We assume the truth of the following alleged facts, recog-
nizing that the case has not been tried. A government infor-
mant made several purchases of crack cocaine and heroin from
defendant Paul Davis, Jr. After Davis expressed an interest in
robbery to the informant, the informant introduced him to an
undercover special agent of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) who was posing as a
disgruntled drug courier for a Mexican cartel. The agent
recruited Davis into a scheme to rob his employer’s stash
house, which he told Davis contained 50 kilograms of cocaine
and was protected by armed guards. The stash house, of
course, was a fiction. Davis recruited his six co-defendants into
the scheme. When the day of the intended robbery arrived, the
assembled crew (several of whom were armed with semi-
automatic firearms) met the agent in a grocery store parking lot
and then followed him in their cars to a warehouse in order to
No. 14-1124 3
make their final plans, including the means of overpowering
the stash-house guards. At the conclusion of that planning
session, which was covertly recorded, six of the seven defen-
dants were arrested. (The seventh, who had become lost on the
drive to the warehouse, was arrested later.) A grand jury
indicted all seven defendants for conspiring and attempting to
possess, with the intent to distribute, five or more kilograms of
cocaine, in violation of 21 U.S.C. § 846; conspiring and attempt-
ing to affect interstate commerce by means of a robbery, in
violation of 18 U.S.C. § 1951(a), and knowingly possessing a
firearm in furtherance of a drug trafficking crime and a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Two of the
defendants were additionally charged with being felons in
possession of firearms, in violation of 18 U.S.C. § 922(g)(1).
The defendants filed a joint motion seeking discovery of
information relevant to potential racial profiling and selective
prosecution. All of the defendants named in this case are
African-American, and because the principal offenses charged
in this case arose from a sting orchestrated by the government,
the defendants wished to explore the possibility that their race
may have influenced the government’s decision to recruit and
charge them for the stash-house robbery. As a preliminary
showing that discovery was warranted (see United States v.
Armstrong, 517 U.S. 456, 470, 116 S. Ct. 1480, 1489 (1996) (to
establish entitlement to discovery on selective prosecution,
defendant must produce some credible evidence that similarly
situated defendants of other races could have been prosecuted
but were not)), the defendants gathered and presented data
regarding some 25 stash-house sting cases that had been filed
in the Northern District of Illinois from 2006 through the filing
4 No. 14-1124
of the instant prosecution in March 2013. By the defense
account, 75 of the 97 defendants charged in those cases were
African-American, 16 were Hispanic, and six were white. They
noted further that of the 13 of those 25 cases instituted in the
three years prior to the indictment of this case, 45 defendants
were African-American, 14 were Hispanic, and just one was
white. In sum, African Americans constituted 77 percent of all
defendants charged in these cases, while comprising roughly
25 percent of the population of Cook County and a lesser
percentage of the overall population of the Northern District of
Illinois. Viewed another way, although white, non-Hispanic
individuals comprise more than half of the population of the
Northern District, only six percent of the defendants named in
stash-house prosecutions filed from 2006 forward fall into that
demographic group.
The district court found this showing sufficient to warrant
the discovery the defendants had requested. “An examination
of the limited information available to the Defendants indicates
that since 2006, the prosecution in this District has brought at
least twenty purported phony stash house cases, with the
overwhelming majority of the defendants named being
individuals of color. In light of this information, it is necessary
to permit Defendants discovery … . “ R. 124 at 2. The district
court ordered the government to produce all of the informa-
tion and documents that the defendants had requested,
including:
• a complete listing of stash-house cases initiated by
the United States Attorney with the involvement of
the ATF or the FBI in the Northern District of Illinois
No. 14-1124 5
from 2006 forward, along with disclosure of the race
of each defendant charged in these cases;
• the factual basis for the decision to initiate or
pursue an investigation against the defendants
named in the cases identified by the defense;
• disclosure of any prior criminal contact between
the defendants in each case and the agency responsi-
ble for investigating the case;
• internal ATF and FBI manuals, correspondence,
and other documents addressing fictitious stash-
house scenarios, including the protocols and direc-
tions to agents and informants with respect to such
scenarios; and
• any documents addressing how supervisory
personnel are to ensure that individuals in such
scenarios are not targeted on the basis of race, color,
ancestry, or national origin.
Id. at 2–3.
The government subsequently filed a “position paper” in
which it indicated that it would not comply with the discovery
order, and suggested that the court should dismiss the indict-
ment without prejudice as a sanction for its noncompliance,
thereby creating a final order that would be appealable to this
court. R. 129. At a hearing on January 7, 2014, the district court
granted the government’s request to dismiss the indictment,
confirming upon the prosecutor’s inquiry that the dismissal
was without prejudice. R. 132; R. 144 at 6.
This appeal followed.
6 No. 14-1124
II.
The first question in any appeal is our jurisdiction. In re
Morse Elec. Co., 805 F.2d 262, 264 (7th Cir. 1986). Section 3731
expressly authorizes the government to appeal from the
dismissal of an indictment. Nonetheless, the defendants
contend that because the district court dismissed the indict-
ment without prejudice, and because the government has the
ability to re-indict them regardless of whether we affirm or
reverse the court’s discovery order, the dismissal is not a final
order subject to appellate review. The government, on the
other hand, contends that it followed “established practice” in
seeking dismissal of the indictment without prejudice as a
means of facilitating appellate review. See Government Br. 12.
We conclude that the defendants are correct: The dismissal of
the indictment without prejudice is not a final order that the
government may appeal pursuant to section 3731.
“The United States