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 JUNE 3, 2015 — DECIDED JULY 13, 2015
____________________
Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and
HAMILTON, Circuit Judges.
EASTERBROOK, Circuit Judge. The United States has ap-‐‑
pealed from a district court’s order dismissing an indict-‐‑
ment, but without prejudice to a new indictment (should one
be returned within the statute of limitations). The district
judge took this step to permit appellate review of his discov-‐‑
ery order, with which the prosecutor had declined to com-‐‑
2 No. 14-‐‑1124
ply. Once the indictment had been dismissed, the Solicitor
General authorized an appeal under the Criminal Appeals
Act, 18 U.S.C. §3731. But a panel of this court dismissed the
appeal for lack of jurisdiction, 766 F.3d 722 (7th Cir. 2014),
ruling that the Act authorizes appeal only if the dismissal of
an indictment would be final within the meaning of 28
U.S.C. §1291. The possibility of reindictment and recurrence
of the discovery dispute made this dismissal non-‐‑final, the
panel held. We granted the United States’ petition for re-‐‑
hearing en banc.
I
The indictment charges Paul Davis and six confeder-‐‑
ates—Alfred Withers, Julius Morris, Jayvon Byrd, Vernon
Smith, Corey Barbee, and Dante Jeffries—with several feder-‐‑
al offenses arising from a plan to rob a stash house, where
the defendants believed they would find drugs and money.
We need not set out the plan’s details or the precise statutes
involved, because proceedings on the merits of the charges
never got under way in the district court. What matters now
is that the stash house the defendants thought they would
rob did not exist. They were caught in a sting.
According to the prosecutor, Davis repeatedly ap-‐‑
proached someone he thought to be a potential partner in
crime and asked whether he knew of any opportunities to
conduct robberies. Davis did not know that his interlocutor
was cooperating with the FBI. Acting on the informant’s re-‐‑
ports, agents bought drugs from Davis three times; this gave
some credibility to the informant’s report that Davis was in-‐‑
terested in robbing stash houses to get drugs to sell. The FBI
passed the information to the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), which sent an undercover
No. 14-‐‑1124 3
agent to conduct a sting. Posing as a disgruntled drug couri-‐‑
er, the agent told Davis about an opportunity to rob a stash
house, supposedly containing 50 kilograms of cocaine. Davis
recruited assistants (the other six defendants). They dis-‐‑
cussed the possibility of killing the stash houses’ guards and
the undercover agent too in order to eliminate witnesses and
avoid sharing the loot. When arrested at the assembly point
for the planned robbery, three of the seven defendants car-‐‑
ried firearms.
They maintain that the prosecutor, the FBI, and the ATF
engaged in racial discrimination, in violation of the Due Pro-‐‑
cess Clause’s equal-‐‑protection component. The defendants
told the district court that since 2006 the United States At-‐‑
torney for the Northern District of Illinois has prosecuted 20
stash-‐‑house stings, and that of the defendants in these cases
75 were black and 19 white. According to defendants, 13 of
the 19 white defendants were Hispanic. All seven defend-‐‑
ants in this prosecution are black. Defendants asserted that
these figures “present a picture of stark discriminatory prac-‐‑
tices by the ATF and FBI who target, through the use of in-‐‑
formants and undercover agents, select persons to present
with the opportunity to commit a hypothetical … lucrative
crime.”
Defendants asked the judge to direct the prosecutor to
provide extensive information about who is prosecuted, how
they (and others) were selected for attention by the FBI and
ATF, and how the United States Attorney’s office makes de-‐‑
cisions after receiving reports from investigators. The prose-‐‑
cutor opposed this motion, contending that United States v.
Armstrong, 517 U.S. 456 (1996), forbids discovery into prose-‐‑
cutorial selectivity unless the defense first shows that simi-‐‑
4 No. 14-‐‑1124
larly situated persons have not been prosecuted. The de-‐‑
fense’s data about who had been prosecuted did not include
any information about who could have been prosecuted, but
was not.
The district court entered a discovery order substantially
as the defense had proposed it, writing in a short explana-‐‑
tion that “the prosecution in this District has brought at least
twenty purported phony stash house cases, with the over-‐‑
whelming majority of the defendants named being individ-‐‑
uals of color. In light of this information, it is necessary to
permit Defendants discovery on the following issues … .”
The district court did not identify any similarly situated per-‐‑
son who had not been prosecuted or explain why Armstrong
allows a court to compel disclosures by the prosecutor in the
absence of that information.
Coupled with the breadth of the discovery order (which
we discuss in Part III of this opinion), this led the United
States to decline to comply. The Criminal Appeals Act does
not authorize appeals from discovery orders, but it does au-‐‑
thorize appeals from orders dismissing indictments. The dis-‐‑
trict judge agreed to facilitate appellate review by dismissing
the indictment without prejudice, and the United States ap-‐‑
pealed. That brings us to the jurisdictional question.
II
If this were a civil case, and a complaint had been dis-‐‑
missed without prejudice in an attempt to permit immediate
review of a discovery order, an appeal would not be possi-‐‑
ble. See, e.g., Doctor’s Associates, Inc. v. Duree, 375 F.3d 618
(7th Cir. 2004) (dismissing an appeal where the parties re-‐‑
served the right to reactivate the litigation later); Furnace v.
No. 14-‐‑1124 5
Board of Trustees, 218 F.3d 666 (7th Cir. 2000) (same). For 28
U.S.C. §1291, which governs most civil appeals, requires a
“final decision,” and to be final the dismissal of a complaint
generally must be with prejudice. Some statutes, such as 28
U.S.C. §1292, authorize interlocutory appeals; so do some
rules, such as Fed. R. Civ. P. 23(f); but in the main a final de-‐‑
cision is essential—and the Supreme Court insists that the
exceptions to the final-‐‑decision rule be applied sparingly, to
avoid dragging litigation out. See, e.g., Mohawk Industries,
Inc. v. Carpenter, 558 U.S. 100 (2009). The Justices have said
that this is likewise true for appeals by defendants in pend-‐‑
ing criminal cases, which also are covered by §1291. See, e.g.,
Flanagan v. United States, 465 U.S. 259 (1984). Compare Abney
v. United States, 431 U.S. 651 (1977), with United States v.
MacDonald, 435 U.S. 850 (1978).
But the United States relies on the Criminal Appeals Act,
18 U.S.C. §3731, which applies exclusively to the prosecu-‐‑
tor’s appeals in criminal cases. This statute provides:
In a criminal case an appeal by the United States shall lie to a
court of appeals from a decision, judgment, or order of a district
court dismissing an indictment or information or granting a new
trial after verdict or judgment, as to any one or more counts, or
any part thereof, except that no appeal shall lie where the double
jeopardy clause of the United States Constitution prohibits fur-‐‑
ther prosecution.
An appeal by the United States shall lie to a court of appeals
from a decision or order of a district court suppressing or ex-‐‑
cluding evidence or requiring the return of seized property in a
criminal proceeding, not made after the defendant has been put
in jeopardy and before the verdict or finding on an indictment or
information, if the United States attorney certifies to the district
court that the appeal is not taken for purpose of delay and that
the evidence is a substantial proof of a fact material in the pro-‐‑
ceeding.
6 No. 14-‐‑1124
An appeal by the United States shall lie to a court of appeals
from a decision or order, entered by a district court of the United
States, granting the release of a person charged with or convicted
of an offense, or denying a motion for revocation of, or modifica-‐‑
tion of the conditions of, a decision or order granting release.
The appeal in all such cases shall be taken within thirty days af-‐‑
ter the decision, judgment or order has been rendered and shall
be diligently prosecuted.
The provisions of this section shall be liberally construed to ef-‐‑
fectuate its purposes.
Defendants maintain, and the panel held, that the first clause
of §3731’s first paragraph, referring to “a decision, judgment,
or order of a district court dismissing an indictment”, covers
only the sort of dismissal that would be “final” for the pur-‐‑
pose of an appeal under §1291.
The rest of §3731 provides context for evaluating this po-‐‑
sition—as does a comparison with §1291, which permits ap-‐‑
peals from “final” decisions. The word “final” does not ap-‐‑
pear in §3731, nor does any similar word.
Context begins with the first paragraph of §3731, which
after mentioning an indictment or information adds “or
granting a new trial after verdict or judgment, as to any one
or more counts, or any part thereof”. An order setting a case
for a new trial is not a final decision. Nor is an order setting
one count for a new trial, or a “part” of one count for a new
trial. And if we read the “count” language as modifying both
indictments and new trials—so that we get “dismissing an
indictment or information … as to any one or more
counts”—again §3731 ¶1 authorizes appeals from non-‐‑final
decisions, for in ordinary civil litigation a decision dismiss-‐‑
ing one count of a complaint cannot be appealed unless the
requirements of Fed. R. Civ. P. 54(b) are met.
No. 14-‐‑1124 7
Paragraph 2 of §3731 authorizes appeals from orders
suppressing or excluding evidence, or ordering the return of
property (though the rest of the case continues). Orders ex-‐‑
cluding evidence and disposing of some property while the
litigation continues are not final decisions under §1291.
The third paragraph continues the pattern by authorizing
an appeal from an order granting a person’s release on bail
(while the case proceeds), or denying a motion to modify
conditions of release, or to revoke release on bail. None of
these orders is a final decision that ends the litigation and
leaves nothing but execution of the judgment, the standard
definition of “final” under §1291. See, e.g., Gelboim v. Bank of
America Corp., 135 S. Ct. 897, 902 (2015); Catlin v. United
States, 324 U.S. 229, 233 (1945).
It seems apt to say that all of §3731 is an exception to the
final decision rule. And so the Supreme Court has described
it. In the course of distinguishing appeals under §1291 from
those under §3731, the Court called §3731 “a statutory excep-‐‑
tion to the final judgment rule”. Flanagan, 465 U.S. at 265 n.3.
If finality were essential then, when responding to the hold-‐‑
ing of United States v. Sanges, 144 U.S. 310 (1892), that the
United States needs express authority to appeal, Congress
could have amended §1291 so that a prosecutor, like other
litigants, may use it plus interlocutory appeals by permis-‐‑
sion under §1292(b). (Defendant and prosecutor alike also
could use 18 U.S.C. §3742, which authorizes appeals of sen-‐‑
tences in criminal cases.) Instead Congress created a separate
Criminal Appeals Act and has amended it over the years to
include the many categories of non-‐‑final orders that we have
mentioned. United States v. Wilson, 420 U.S. 332, 336–39
(1973), traces this history.
8 No. 14-‐‑1124
Defendants want us to hold that the first clause of §3731
¶1 alone has an atextual finality requirement, which not only
would divorce orders dismissing indictments from every
other kind of order under §3731 but also would create the
anomaly that a dismissal of one count would be immediately
appealable (though non-‐‑final in civil practice) while the
dismissal of all counts would not be appealable. Neither the
text nor the structure of §3731 permits such an approach.
Section 3731 authorizes interlocutory appeals in part be-‐‑
cause the Double Jeopardy Clause of the Fifth Amendment
creates special obstacles for a prosecutor who contends that
a district court’s order is erroneous. The Supreme Court
stressed in decisions such as Mohawk Industries that, if a dis-‐‑
trict court errs, an appeal from the final decision usually al-‐‑
lows the mistake to be corrected, if necessary by holding a
new trial. But errors in favor of the defense in a criminal
prosecution may lead to acquittal, and the prosecution can-‐‑
not appeal from a mid-‐‑trial acquittal by the judge, or an end-‐‑
of-‐‑trial acquittal by the jury, no matter how erroneous the
ruling that led to this outcome—even though in parallel civil
litigation the losing litigant would have a full appellate rem-‐‑
edy. See, e.g., Fong Foo v. United States, 369 U.S. 141 (1962);
Sanabria v. United States, 437 U.S. 54 (1978). That’s why §3731
departs from §1291 and why it is inappropriate to read into
§3731 a “finality” requirement that it lacks (but §1291 con-‐‑
tains).
Congress has not taken the final-‐‑decision rule as far as it
might go. The books are full of exceptions thought helpful to
facilitate accurate or prompt decision. We have mentioned
§1292, which permits appeals from orders granting, denying,
or modifying injunctions (interlocutory or final) plus orders
No. 14-‐‑1124 9
certified by district judges and accepted by courts of appeals.
Another statute, 28 U.S.C. §1453(c), permits immediate ap-‐‑
pellate review of orders remanding suits that had been re-‐‑
moved on the authority of the Class Action Fairness Act.
And §1447(d) permits appeals of remands in civil-‐‑rights cas-‐‑
es or those removed by federal officers. Rule 23(f) permits
appeals from orders certifying or declining to certify class
actions. Section 3731 is just another in the complement of ex-‐‑
ceptions to §1291’s final decision rule.
Even if we were disposed to fight against the language of
§3731 (which lacks the word “final”), and its structure, and
its objective of accommodating the prosecution’s need to ob-‐‑
tain appellate review in a way consistent with the Double
Jeopardy Clause, we would still respect the Supreme Court’s
description of §3731 as “remov[ing] all statutory barriers to
Government appeals”. Wilson, 420 U.S. at 337. Ditto, United
States v. Martin Linen Supply Co., 430 U.S. 564, 568, 577 (1977).
Perhaps this is an overstatement; after all, §3731 contains a
list of appealable orders, which does not include discovery
orders. That’s why the prosecutor asked the district court to
choose a remedy on the statutory list. But the minimum
meaning of the statement in Wilson is that if the district court
enters a listed order, there are no further barriers to appeal. A
final-‐‑decision rule imported from §1291 would be such a fur-‐‑
ther barrier.
Because discovery orders are not on the §3731 list, appel-‐‑
late review depended on the district court’s cooperation. The
judge chose a response that was listed; if the judge had de-‐‑
cided to exclude vital evidence as a sanction for the prosecu-‐‑
tor’s stance, that too would have authorized an appeal. It is
hard to see why this appeal should be foreclosed because the
10 No. 14-‐‑1124
judge chose what seemed to be the cleanest way to proceed.
But if in the future a district judge believes than an interlocu-‐‑
tory appeal would be unduly disruptive, the court has only
to avoid issuing one of the sorts of orders that fall within the
scope of §3731. The prosecutor cannot dismiss an indictment
on his own but requires the court’s approval. Fed. R. Crim.
P. 48(a). (The prosecutor may of course decline to proceed
with a case, whether or not a judge dismisses the indictment,
but a prosecutor can’t appeal from his own decision.) If the
judge chooses a response not on the §3731 list, then to obtain
review the prosecutor would need to meet the stringent re-‐‑
quirements of a writ of mandamus, a discretionary remedy
limited to the clearest errors and usurpations of power.
Although, as we have mentioned, Wilson may be thought
to slight the fact that §3731 contains a specific list of appeal-‐‑
able orders, the Justices themselves seem willing to take the
language of Wilson and Flanagan at face value.
United States v. Bass, 536 U.S. 862 (2002), offers an illustra-‐‑
tion. In the wake of Armstrong, which held that discovery
relating to a claim of selective prosecution depends on proof
that eligible persons of a different race have not been prose-‐‑
cuted, a defendant contended that the Attorney General took
race into account when deciding when to authorize a prose-‐‑
cutor to seek capital punishment. The defense offered the
same sort of evidence that had been deemed inadequate in
Armstrong: that black defendants were charged with capital
crimes out of proportion to the general population. The dis-‐‑
trict court ordered discovery into the exercise of prosecutori-‐‑
al discretion and, when the United States declined to pro-‐‑
vide the information, dismissed the prosecutor’s notice of
intent to seek the death penalty. The United States appealed,
No. 14-‐‑1124 11
the court of appeals affirmed, and the Supreme Court sum-‐‑
marily reversed, holding the discovery order incompatible
with Armstrong. Yet the district court’s order dismissing the
notice of intent to seek the death penalty not only was inter-‐‑
locutory (the criminal prosecution remained pending) but
also is not on the list in §3731. Still, the court of appeals and
the Supreme Court did not see a jurisdictional problem. We
recognize that an opinion disregarding an issue, even a ju-‐‑
risdictional one, does not establish a holding. See, e.g., Steel
Co. v. Citizens for Better Environment, 523 U.S. 83, 91–92
(1998). But the Court may have let the issue pass precisely
because it sees no need to retreat from the statements made
about §3731 in Flanagan, Wilson, and Martin Linen.
Other courts of appeals take the Justices at their word.
Several have entertained appeals from orders dismissing in-‐‑
dictments without prejudice. See, e.g., United States v. Lester,
992 F.2d 174, 176 (8th Cir. 1993), and United States v. Wood-‐‑
ruff, 50 F.3d 673, 675 (9th Cir. 1995). As far as we know, no
court of appeals has added a finality requirement to §3731
¶1 and thus forbidden the appeal from an order dismissing
an indictment without prejudice—or for that matter required
“finality” for the appeal of any order covered by §3731.
Defendants insist that United States v. Clay, 481 F.2d 133
(7th Cir. 1973) (Stevens, J.), commits this court to a different
path. Yet in Clay the court held that §3731 allows an appeal
from an order dismissing an indictment without prejudice.
Along the way, Clay remarked that, despite the district
court’s choice of label, the order was “final” in the sense that
the dispute would not recur. Defendants read that as a hold-‐‑
ing that if a dispute can recur—as this discovery dispute
could recur if another grand jury returned another indict-‐‑
12 No. 14-‐‑1124
ment—then an appeal is forbidden. This reads too much in-‐‑
to Clay. Saying “if conclusive, then appealable” (as Clay did)
differs from saying “only if conclusive, then appealable.”
Clay did not have a non-‐‑final order and could not announce
a holding about that subject—nor did it purport to do so.
But suppose this is wrong and Clay did think that finality
is essential. Since then, the Supreme Court has said repeat-‐‑
edly that barriers (other than the Double Jeopardy Clause)
not stated in §3731 itself do not foreclose appeals. Section
3731 does not contain a final-‐‑decision rule. The language in
Clay, though not its holding, has been overtaken by devel-‐‑
opments in the Supreme Court, and this court, sitting en
banc in 2015, is not bound by what one panel believed about
§3731 in 1973.
We hold that §3731 authorizes an appeal when a district
court dismisses an indictment, or a count of an indictment,
or a part of a count of an indictment, without prejudice to
the possibility of a successive indictment containing the
same charge. The court therefore has jurisdiction to decide
whether the indictment was properly dismissed, which de-‐‑
pends on whether the discovery order was itself proper.
(Armstrong reached the Supreme Court in the same way, as
the United States used the dismissal of an indictment to pre-‐‑
sent a question about the propriety of a discovery order.)
III
Before entering the discovery order, the district court
said only that “the prosecution in this District has brought at
least twenty purported phony stash house cases, with the
overwhelming majority of the defendants named being in-‐‑
dividuals of color. In light of this information, it is necessary
No. 14-‐‑1124 13
to permit Defendants discovery” about prosecutorial prac-‐‑
tices and criteria. That decision is inconsistent with Arm-‐‑
strong. The record in Armstrong showed that every defendant
in every crack-‐‑cocaine prosecution filed by a particular Unit-‐‑
ed States Attorney’s office and assigned to the public de-‐‑
fender was black. If, as the Supreme Court held, that evi-‐‑
dence did not justify discovery into the way the prosecutor
selected cases, then proof that in the Northern District of Il-‐‑
linois three-‐‑quarters of the defendants in stash-‐‑house cases
have been black does not suffice.
The United States believes that we should stop here and
reverse. But things are not that simple. Armstrong was about
prosecutorial discretion. The defendants assumed that state
and federal law-‐‑enforcement agents arrested all those they
found dealing in crack cocaine, and they suspected that the
federal prosecutor was charging the black suspects while let-‐‑
ting the white suspects go. The Supreme Court replied that
federal prosecutors deserve a strong presumption of honest
and constitutional behavior, which cannot be overcome
simply by a racial disproportion in the outcome, for dispar-‐‑
ate impact differs from discriminatory intent. See Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).
The Justices also noted that there are good reasons why the
Judicial Branch should not attempt to supervise how the Ex-‐‑
ecutive Branch exercises prosecutorial discretion. In order to
give a measure of protection (and confidentiality) to the Ex-‐‑
ecutive Branch’s deliberative processes, which are covered
by strong privileges, see Cheney v. United States District
Court, 542 U.S. 367 (2004); In re United States, 503 F.3d 638
(7th Cir. 2007); In re United States, 398 F.3d 615 (7th Cir.
2005); United States v. Zingsheim, 384 F.3d 867 (7th Cir. 2004),
the Court in Armstrong insisted that the defendant produce
14 No. 14-‐‑1124
evidence that persons of a different race, but otherwise com-‐‑
parable in criminal behavior, were presented to the United
States Attorney for prosecution, but that prosecution was
declined. Bass held the same about the selection of capital
prosecutions, and for the same reasons.
To the extent that Davis and the other six defendants
want information about how the United States Attorney has
exercised prosecutorial discretion, Armstrong is an insupera-‐‑
ble obstacle (at least on this record). But the defendants’
principal targets are the ATF and the FBI. They maintain that
these agencies offer lucrative-‐‑seeming opportunities to black
and Hispanic suspects, yet not to those similarly situated in
criminal background and interests but of other ethnicity. If
the agencies do that, they have violated the Constitution—
and the fact that the United States Attorney may have prose-‐‑
cuted every case the agencies presented, or chosen 25% of
them in a race-‐‑blind lottery, would not matter, since the con-‐‑
stitutional problem would have preceded the prosecutor’s
role and could not be eliminated by the fact that things
didn’t get worse at a later step. Cf. Connecticut v. Teal, 457
U.S. 440 (1982) (rejecting a “bottom-‐‑line defense” in an em-‐‑
ployment-‐‑discrimination suit).
Agents of the ATF and FBI are not protected by a power-‐‑
ful privilege or covered by a presumption of constitutional
behavior. Unlike prosecutors, agents regularly testify in
criminal cases, and their credibility may be relentlessly at-‐‑
tacked by defense counsel. They also may have to testify in
pretrial proceedings, such as hearings on motions to sup-‐‑
press evidence, and again their honesty is open to challenge.
Statements that agents make in affidavits for search or arrest
warrants may be contested, and the court may need their
No. 14-‐‑1124 15
testimony to decide whether if shorn of untruthful state-‐‑
ments the affidavits would have established probable cause.
See Franks v. Delaware, 438 U.S. 154 (1978). Agents may be
personally liable for withholding evidence from prosecutors
and thus causing violations of the constitutional requirement
that defendants have access to material, exculpatory evi-‐‑
dence. See, e.g., Armstrong v. Daily, 786 F.3d 529 (7th Cir.
2015); Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001).
Before holding hearings (or civil trials) district judges regu-‐‑
larly, and properly, allow discovery into nonprivileged as-‐‑
pects of what agents have said or done. In sum, the sort of
considerations that led to the outcome in Armstrong do not
apply to a contention that agents of the FBI or ATF engaged
in racial discrimination when selecting targets for sting op-‐‑
erations, or when deciding which suspects to refer for prose-‐‑
cution.
How does the district court’s order hold up by these
standards? Here is its full text, which requires the United
States to produce:
(1) A list by case name and number of each phony stash house
rip off case brought by the U.S. Attorney’s Office for the North-‐‑
ern District of Illinois in which ATF alone or in conjunction with
the FBI was the federal investigatory agency from 2006 to the
present. With respect to each case, the Government shall provide
the race of each defendant investigated and prosecuted.
(2) For each case identified in response to (1) above, a statement
regarding prior criminal contact that the federal agency respon-‐‑
sible for the investigation had with each defendant prior to initi-‐‑
ating the operation. If all such information for a particular case is
contained in the criminal complaint, a reference to the complaint
is sufficient.
(3) The statutory or regulatory authority for the ATF and the FBI
to instigate and/or pursue phony staff [sic] house ripoff cases in-‐‑
16 No. 14-‐‑1124
volving illegal drugs or any decision by any federal agency, the
Justice Department or the White House to authorize ATF and the
FBI to pursue such cases in the Northern District of Illinois.
(4) All national and Chicago Field Office ATF and FBI manuals,
circulars, field notes, correspondence or any other material
which discuss phony stash house ripoffs, including protocols
and/or directions to agents and to confidential informants re-‐‑
garding how to conduct such operations, how to determine
which persons to pursue as potential targets or ultimate defend-‐‑
ants, how to ensure that the targets do not seek to quit or leave
before an arrest can be made and how to ensure that agents are
not targeting persons for such operations on the basis of their
race, color, ancestry or national origin.
(5) All documents that contain information on how supervisors
and managers of the Chicago area ATF and FBI were to ensure
and/or did ensure or check that its agents did not target persons
on the basis of their race, color, ancestry, or national origin for
the phony stash house ripoffs and what actions the Chicago area
ATF and FBI supervisors and managers operating in the North-‐‑
ern District of Illinois took to determine whether agents were not
targeting persons for such operations on the basis of their race,
color, ancestry, or national origin.
(6) The factual basis for the decision to pursue or initiate an in-‐‑
vestigation against each of the individuals listed as defendants in
each case cited in Paragraph 7 of Defendants’ Motion for Discov-‐‑
ery and in response to each case produced pursuant to the re-‐‑
quest contained in Paragraph (1) above.
(7) All documents containing instructions given during the ten-‐‑
ure of Patrick Fitzgerald or Gary Shapiro as the U.S. Attorney for
the Northern District of Illinois about the responsibilities of
prosecutors to ensure that defendants in cases brought by the
Office of the U.S. Attorney for the Northern District of Illinois
are not targeted due to their race, color, ancestry, or national
origin. Specifically, materials that demonstrate that the individu-‐‑
als charged as defendants in phony stash house cases in which
ATF alone or in conjunction with the FBI was the investigatory
agency have not been targeted due to their race, color, ancestry,
No. 14-‐‑1124 17
or national origin, and that such prosecutions have not been
brought with any discriminatory intent on the basis of the de-‐‑
fendant’s race, color, ancestry, or national origin.
(8) All documents that contain information about all actions tak-‐‑
en during the tenure of Patrick Fitzgerald or Gary Shapiro as the
U.S. Attorney for the Northern District of Illinois about the re-‐‑
sponsibilities of prosecutors to ensure that defendants in cases
brought by the Office of the U.S. Attorney for the Northern Dis-‐‑
trict of Illinois have not been targeted due to their race, color, an-‐‑
cestry, or national origin and, specifically, that those persons
who are defendants in phony stash house cases in which ATF
alone or in conjunction with the FBI was the investigatory agen-‐‑
cy have not been targeted due to their race, color, ancestry or na-‐‑
tional origin and that such prosecutions have not been brought
with any discriminatory intent on the basis of the defendant’s
race, color, ancestry, or national origin.
This order is vastly overbroad. A good deal of the discovery
it requires is blocked by Armstrong (on the current record)
because it concerns the exercise of prosecutorial discretion.
Other discovery is blocked by executive privilege independ-‐‑
ent of Armstrong; a district court is not entitled to require
“the White House” (which is to say, the President) to reveal
confidential orders given to criminal investigators. But some
of the discovery asks for information from supervisors or
case agents of the FBI and ATF, and this is outside the scope
of Armstrong, the executive privilege, and the deliberative-‐‑
process privilege.
To say that some of the information is potentially discov-‐‑
erable is not to vindicate any part of this particular order,
however. Consider ¶5, which requires the United States to
produce “all documents” that contain any “information”
about how the FBI and ATF manage stings (pejoratively
called “phony stash house ripoffs”), plus all details concern-‐‑
ing how these agencies curtail discrimination. This demands
18 No. 14-‐‑1124
the disclosure of thousands (if not millions) of documents
generated by hundreds (if not thousands) of law-‐‑
enforcement personnel. It would bog down this case (and
perhaps the agencies) for years.
Or consider ¶4, which requires the public disclosure of
all criteria the agencies employ to decide when and how to
conduct sting operations. Agencies understandably want to
keep such information out of the hands of persons who
could use it to reduce the chance that their own criminal
conduct will come to light. For the same reason that the IRS
does not want to reveal its audit criteria, the FBI and ATF do
not want to reveal their investigative criteria. Perhaps the
FBI and ATF might be able to improve the public’s under-‐‑
standing and acceptance of their selection criteria by releas-‐‑
ing more information, but that’s not a legal obligation.
Similar things could be said about other paragraphs, but
the point has been made. This order is an abuse of discre-‐‑
tion.
The racial disproportion in stash-‐‑house prosecutions re-‐‑
mains troubling, however, and it is a legitimate reason for
discovery provided that the district court does not transgress
Armstrong or an applicable privilege.
Instead of starting with a blunderbuss order, a district
court should proceed in measured steps. Logically the first
question is whether there is any reason to believe that race
played a role in the investigation of these seven defendants.
The prosecutor says that it cannot have done, because Davis
himself initiated matters by pestering the informant for rob-‐‑
bery opportunities and then chose his own comrades. Still, it
remains possible that the FBI and the ATF would not have
No. 14-‐‑1124 19
pursued this investigation had Davis been white. Defend-‐‑
ants contend that they have additional evidence (beyond
that presented to the district court) that could support such a
conclusion. The judge should receive this evidence and then
decide whether to make limited inquiries, perhaps including
affidavits or testimony of the case agents, to determine
whether forbidden selectivity occurred or plausibly could
have occurred. If not, there would not be a basis to attribute
this prosecution to the defendants’ race, and the district
court could turn to the substance of the charges.
If the initial inquiry gives the judge reason to think that
suspects of another race, and otherwise similarly situated,
would not have been offered the opportunity for a stash-‐‑
house robbery, it might be appropriate to require the FBI
and ATF to disclose, in confidence, their criteria for stash-‐‑
house stings. Analysis of the targeting criteria (and whether
agents followed those rules in practice) could shed light on
whether an initial suspicion of race discrimination in this
case is justified. Keeping that part of the investigation in
camera would respect the legitimate interest of law enforce-‐‑
ment in preventing suspects (and potential suspects) from
learning how to avoid being investigated or prosecuted. If
after that inquiry the judge continues to think that racial dis-‐‑
crimination may have led to this prosecution, more infor-‐‑
mation could be gathered.
We do not want to tie the judge’s hands, but we do think
it essential, lest this and other prosecutions be sidetracked
(both defendants and the public have a right to speedy reso-‐‑
lution of criminal cases), to start with limited inquiries that
can be conducted in a few weeks, and to enlarge the probe
only if evidence discovered in the initial phase justifies a
20 No. 14-‐‑1124
wider discovery program. Only if information learned dur-‐‑
ing these limited inquiries satisfies the Armstrong criteria
may discovery be extended to the prosecutor’s office, and
even then the judge should ensure that required disclosures
make no more inroads on prosecutorial discretion than are
vital to ensuring vindication of the defendants’ constitution-‐‑
al right to be free of race discrimination.
The judgment dismissing the indictment is reversed, and
the case is remanded for proceedings consistent with this
opinion.
No. 14-1124 21
ROVNER, Circuit Judge, with whom HAMILTON, Circuit Judge,
joins, dissenting.
In a case charging the defendants with conspiring to rob a
fictitious stash house, it is perhaps fitting that our appellate
jurisdiction is premised on a fictitious sanction—a dismissal of
the indictment that was proposed by the government, and
granted by the district court, for the express and sole purpose
of facilitating an appeal of a discovery order that the govern-
ment opposed. The dismissal was non-binding, to boot,
allowing the government to proceed with the prosecution
regardless of what we might have to say about the merits of
the discovery order. However far Congress may have meant to
extend the limits of appellate jurisdiction when it re-wrote the
Criminal Appeals Act in 1970, I am confident that this appeal
lies beyond those bounds. For all of the prudential reasons that
we do not permit civil litigants to manufacture appellate
jurisdiction, we should not allow an appeal based on the sort
of non-final dismissal that was fabricated here. I must therefore
respectfully and regretfully part ways with my colleagues on
the matter of our jurisdiction to hear this appeal.
Although the government is nominally appealing the order
dismissing the indictment—an order that 18 U.S.C. § 3731
identifies as an appealable order—the government is not
actually aggrieved by that dismissal. The government invited
the district court to dismiss the indictment solely as a gateway
to appellate review of another, interlocutory order—the
discovery order—as to which section 3731 does not otherwise
permit an appeal. See R. 129 (government’s position paper
regarding appeal of selective prosecution discovery order). The
district court, in turn, acceded to the government’s declared
intent to challenge the discovery order in this court and
dismissed the indictment without prejudice in order to
22 No. 14-1124
facilitate the appeal. The record leaves no doubt that this was
the one and only reason for the dismissal:
AUSA: Your Honor, … [w]e would
suggest to the Court that in
light of our non-compliance
with the Court’s discovery or-
der, we’re willing to sug-
gest—or, pardon me, to accept
dismissal of the indictment as a
sanction permitting the govern-
ment to appeal.
THE COURT: So if I don’t dismiss it, you can
never appeal my ruling, is that
the idea?
AUSA: I suppose that’s correct, your
Honor.
THE COURT: That’s a very attractive pro-
posal.
That’s a very interesting issue,
and I think it is an issue that
the Seventh Circuit should take
a close look at, and I’m sure
they will.
And so the indictment is
dismissed. …
R. 144 at 4; see also R. 144 at 6 (court confirms, at government’s
request, that the dismissal is without prejudice).
As my colleagues in the majority recognize, this would not
be tolerated in the civil context. Ante at 4-5. Indeed, we have
repeatedly disapproved efforts by civil litigants to engineer
No. 14-1124 23
appellate jurisdiction by inviting the district court to enter a
dismissal order that has the veneer of appealability when, in
fact, the dismissal is a sham intended to serve solely as the
vehicle for what is otherwise an unauthorized interlocutory
appeal. See Sims v. EGA Prods., Inc., 475 F.3d 865, 867-78 (7th
Cir. 2007); ITOFCA, Inc. v. Mega Trans Logistics, Inc., 235 F.3d
360, 363-64 (7th Cir. 2000); West v. Macht, 197 F.3d 1185, 1188-90
(7th Cir. 1999); JTC Petroleum Co. v. Piasa Motor Fuels, Inc.,
190 F.3d 775, 776-77 (7th Cir. 1999); Horwitz v. Alloy Auto. Co.,
957 F.2d 1431, 1435-36, 1437 (7th Cir. 1992); see also Union Oil
Co. of Cal. v. John Brown E&C, a Div. of John Brown, Inc., 121 F.3d
305, 308-11 (7th Cir. 1997). A civil plaintiff, for example, may be
frustrated with an order that disposes of some counts of his
complaint but not others, JTC Petroleum, 190 F.3d at 776-77, or
which prospectively limits his damages, Union Oil, 121 F.3d at
306, 307. Rather than awaiting a final judgment or seeking the
court’s leave to pursue an interlocutory appeal pursuant to
28 U.S.C. § 1292(b), the plaintiff instead asks the court to
dismiss what remains of his complaint without prejudice,
thereby terminating the litigation in the district court and
producing a seemingly final order that would permit him to
challenge on appeal any and all of the interlocutory orders
preceding that order. See Sims, 475 F.3d at 867-68. Except that
the judgment is not final, because it permits the plaintiff to re-
file the counts it has persuaded the court to dismiss without
prejudice, even if he loses the appeal. E.g., West, 197 F.3d at
1188; JTC Petroleum, 190 F.3d at 776; see also Union Oil, 121 F.3d
at 307-08 (parties entered into settlement terminating litigation,
contingent upon outcome of appeal). As such, the manufac-
24 No. 14-1124
tured dismissal cannot serve as the gateway to review of what
the plaintiff is really appealing—an interlocutory order.1
The importance of finality has been central to our decisions
in these cases. See ITOFCA, 235 F.3d at 363-64 & n.1; West,
197 F.3d at 1188-89; Union Oil, 121 F.3d at 310-11; Horwitz,
957 F.2d at 1435-36, 1437. “Finality as a condition of review is
an historic characteristic of federal appellate procedure.”
Flanagan v. United States, 465 U.S. 259, 263, 104 S. Ct. 1051, 1053-
54 (1984) (quoting Cobbledick v. United States, 309 U.S. 323, 324,
60 S. Ct. 540, 541 (1940)). Except where Congress has specifi-
cally authorized an interlocutory appeal, see 28 U.S.C.
§ 1292(b), or where the order appealed from falls into the
narrow category of collateral orders that are immediately
appealable, see Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546, 69 S. Ct. 1221, 1225 (1949), we generally insist that
there be a truly final judgment before a disappointed party
may appeal the otherwise interlocutory order that has ag-
grieved him. The requirement of finality serves a number of
important prudential concerns:
It helps preserve the respect due trial judges by
minimizing appellate-court interference with the
numerous decisions they must make in the pre-
judgment stages of litigation. It reduces the
ability of litigants to harass opponents and to
clog the courts through a succession of costly
and time-consuming appeals. It is crucial to the
efficient administration of justice. Firestone Tire &
Rubber Co. v. Risjord, supra, 449 U.S. [368], at 374,
1
Cf. JTC Petroleum, 190 F.3d at 776-77 (finding appellate jurisdiction only
after plaintiff agreed to treat dismissal of remaining counts as having been
granted with prejudice).
No. 14-1124 25
101 S. Ct. [669], at 673 [(1981)]. For these reasons,
“[t]his Court has long held that the policy of
Congress embodied in [section 1291] is inimical
to piecemeal appellate review of trial court
decisions which do not terminate the litigation.
… United States v. Hollywood Motor Car Co.,
458 U.S. 263, 265, 102 S. Ct. 3081, 3083 (1982).
Flanagan, 465 U.S. at 263-64, 104 S. Ct. at 1054. See also ITOFCA,
235 F.3d at 363-64 & n.1; West, 197 F.3d at 1189; Union Oil,
121 F.3d at 310. The rationale underlying the final judgment
rule is “especially compelling in the administration of criminal
justice.” Flanagan, 465 U.S. at 264, 104 S. Ct. at 1054 (quoting
Cobbledick, 309 U.S. at 325, 60 S. Ct. at 541); given that “the
defendant is entitled to speedy resolution of the charges
against him,” Will v. United States, 389 U.S. 90, 96, 88 S. Ct. 269,
274 (1967) (citing DiBella v. United States, 369 U.S. 121, 126,
82 S. Ct. 654, 658 (1962)).
What the government has done in this case to produce an
appealable order is precisely what we have deemed forbidden
in the civil context. It has engineered a dismissal as the means
of obtaining review of an otherwise interlocutory and unap-
pealable discovery order. But the dismissal was not final, as it
would have been if the district court had dismissed the
indictment due to incurable pleading defect, or as a sanction
for pretrial delay or some other fault that the government
could not cure. See, e.g., United States v. Clay, 481 F.2d 133, 136
(7th Cir. 1973) (indictment dismissed based on post-arrest
delay in indicting defendant). Nominally, the dismissal was
entered as a sanction for the government’s announcement that
it did not intend to comply with the court’s discovery order,
but only nominally. The dismissal was invited by the govern-
ment as a means to appeal, and was granted by the district
26 No. 14-1124
court in deference to that wish; there was never an independ-
ent assessment by the district court as to whether dismissal of
the indictment was an appropriate sanction on the facts of the
case. (If the court had truly intended the dismissal as a sanc-
tion, it would have dismissed the indictment with prejudice, as
I discuss below.) But because the dismissal was without
prejudice, the government retained the ability to re-indict the
defendants regardless of what we held in this appeal. As it has
turned out, the government has succeeded in its challenge to
the discovery order; the dismissal of the indictment is thus
being reversed, ante at 20, and on remand, the prosecution will
pick up where it left off. But even if we had affirmed the
discovery order (and hence the dismissal of the indictment),
the government would have been free to return to the grand
jury, obtain a second indictment on the same charges, and then
comply with the discovery order if and when the court issued
it in the new prosecution. Heads the government wins, tails the
defendants lose.2
It is worthwhile to consider the multiple ways in which
allowing an appeal based on the government’s invited dis-
missal of the indictment without prejudice is contrary to the
interests served by the finality requirement and grants to the
government what amounts to an advisory opinion on the
merits of its opposition to the district court’s discovery order.
2
See ITOFCA, 235 F.3d at 364 (noting that dismissal of counterclaims
without prejudice permitted defendant to re-file them at any time, and
regardless of what transpired on appeal); West, 197 F.3d at 1188 (“The
practical effect of the dismissal [of claims on which plaintiff was granted in
forma pauperis status] is that, if this maneuver is permitted, West may
immediately appeal the district court’s order insofar as it denied IFP status,
and, if he loses the appeal, he may refile the claims on which he was
granted IFP status.”).
No. 14-1124 27
Such consideration also demonstrates why conditioning this
type of appeal on a final judgment—in other words, a dis-
missal of the indictment with prejudice—would accommodate
the government’s interests and at the same time protect the
equally important interests of the defendants, the district court,
and this court.
First and foremost, by permitting the government to invite
dismissal of the indictment, we have allowed it to cut short the
proceedings in the district court, and we cannot be sure that
those proceedings necessarily would have resulted in dismissal
of the indictment had they been permitted to run their course.
Recall that the government suggested the dismissal as a
“sanction” for its refusal to comply with the discovery order.
R. 129 at 1-2 ¶¶ 4, 7; R. 144 at 4. But there was never any
meaningful inquiry below into whether dismissal of the
indictment actually was the appropriate sanction for the
government’s unwillingness to comply with the ordered
discovery; the dismissal was asked for and granted solely in
order to open the door to this appeal. R. 144 at 4. Had the
government instead come into court and said, “Judge, we are
unwilling to comply with your discovery order,” period, the
court necessarily would have had to commence an inquiry into
an appropriate response.
And it is by no means certain that the government’s
opposition to the order necessarily would have led the court to
dismiss the indictment. The government’s wholesale refusal to
comply with a court order is, safe to say, a rare occurrence. I
cannot recall it ever happening in my courtroom in my eight
years as a district judge. My first response to such a declara-
tion, and I suspect the response of many, if not most judges,
would be to explore why the government believed it could not
comply with my order—not because I felt bullied by the
28 No. 14-1124
government’s resistance, but because the rarity of a refusal like
this (by a party that shares the court’s obligation to ensure a
fair and just proceeding) merits thoughtful reconsideration. I
might have asked whether there was something the govern-
ment believed I had overlooked in entering the order; and
given the opportunity to revisit the order, particularly if I were
pointed to the differing results reached by other district judges,
I might have reached a different conclusion. (Judge Darrah was
among the first of his colleagues in the Northern District of
Illinois to issue an order granting a defense request for discov-
ery related to the question of selective prosecution in the stash
house cases. By the time the government asked him to dismiss
this case more than two months later, other judges had ordered
much narrower discovery and had otherwise refused to
authorize the broad discovery that he had ordered. See R. 143
at 6-7. Yet, the government did not ask Judge Darrah to
reconsider his order in light of those rulings.) I might also have
asked the government whether there was any portion of the
order, or any aspect of the discovery sought by the defendants,
that it would willingly comply with—we are told, after all, that
the government has complied with the more modest discovery
orders entered in other stash house cases; and I might have
asked the parties to start with the agreed upon discovery and
see what that produced before deciding whether and how to
sanction the government for its opposition to the balance of my
order. In short, I might have sought a middle ground between
the parties—perhaps something not too different from the
incremental approach to discovery that the majority has
outlined today—that would have circumvented the impasse
and permitted the case to move forward without the interrup-
tion that this appeal has occasioned. Cf. In re Blodgett, 502 U.S.
236, 240, 112 S. Ct. 674, 676-77 (1992) (faulting government for
No. 14-1124 29
not asking court of appeals to vacate or modify its order
indefinitely staying prisoner’s execution before seeking writ of
mandamus from Supreme Court).
Even if the government had persisted in its refusal to
comply with some or all aspects of my discovery order, I
cannot say that I inevitably would have dismissed the indict-
ment, the weightiest of the penalties available to me. See
Barnhill v. United States, 11 F.3d 1360, 1367-69 (7th Cir. 1993)
(variously describing entry of judgment, including dismissal
with prejudice, as a “draconian,” “severe,” “harsh,” “power-
ful,” “serious,” and “extreme” sanction for party’s miscon-
duct). Before taking that course, it would have been my
obligation to consider not only the egregiousness of the
government’s non-compliance but the burden it inflicted on the
defendants and the public’s interest in seeing that those who
have broken the law are brought to justice. See id. It is entirely
possible that I might have chosen a different sanction, and one
that might or might not have been immediately appealable, if
it was appealable at all. See, e.g., United States v. Moussaoui,
382 F.3d 453, 459-60 (4th Cir. 2004) (after inviting briefing as to
appropriate sanction for government’s refusal to comply with
order granting defendant access to enemy combatant wit-
nesses, district court rejected parties’ shared proposal to
dismiss indictment, and instead dismissed death notice and
foreclosed certain lines of evidence and argument to govern-
ment).
Finally, assuming that I did decide to dismiss the indict-
ment as a sanction, I surely would have done so with preju-
dice. Why, after all, would I leave the option of re-indictment
open to the government if I believed that its refusal to comply
with my order were serious enough to warrant dismissal of the
case? Its sole effect would be to force the government to
30 No. 14-1124
present its case to a grand jury for a second time, while
changing nothing about the nature of the case, the relevance of
the discovery I had ordered, or the reasons for the govern-
ment’s opposition to the discovery order. The second indict-
ment would in all likelihood end up in my courtroom (see N.D.
ILL. LOCAL RULE 40.3(b)(2) and N.D. ILL. LOCAL CRIM. RULE 1.2),
and the parties and I would be back where we started. In short,
dismissal without prejudice would resolve nothing. By
contrast, dismissal of the indictment with prejudice would
resolve the impasse, and that dismissal would be a genuinely
final order that would permit the government to appeal.
Just as we cannot be sure that the district court inevitably
would have dismissed the indictment, we cannot be sure that
the government would have persisted in its blanket refusal to
comply with any part of the court’s discovery order had it been
subject to a genuine sanctions inquiry by the district court.
When the government suggested dismissal of the indictment
without prejudice to the district judge, it was proposing a
“sanction” that had a great deal of upside and very little
downside for the government. It opened the door to an
immediate appeal of the discovery order, and even if the
appeal failed and we affirmed the order, all that the govern-
ment had to do is re-indict the defendants in order to resurrect
the prosecution. And that is a modest burden. Among other
things, the government runs the show, its burden of proof is
relatively low, and, especially in a sting, most of the evidence
is in its hands. A grand jury’s refusal to indict is, needless to
say, itself a rare occurrence. The ham sandwich aphorism3 is
3
Thirty years ago, Solomon Wachtler, then Chief Judge of the New York
Court of Appeals, famously remarked that prosecutors could convince a
grand jury to “indict a ham sandwich” if that is what they wanted. See
No. 14-1124 31
not too far from the truth. See Tyson v. Trigg, 50 F.3d 436, 441
(7th Cir. 1995) (“Instances in which grand juries refuse to
return indictments at the behest of the prosecutor are almost as
rare as hen’s teeth.”). By contrast, had the district court instead
taken it upon itself to decide what sanction was appropriate for
the government’s refusal to comply with its discovery order,
including potentially a contempt finding or dismissal of the
indictment with prejudice, one wonders whether the govern-
ment might have modified its position and agreed to supply at
least some discovery to the defendants. It is one thing to
submit oneself to a sanction of one’s own design (and that
serves one’s own ends) and very much another thing to defy
the district court and face uncertain, and potentially grave,
consequences.
All of this shows why the dismissal in this case was a
complete fiction as a sanction, and why we are potentially mis-
allocating our time to an appeal that might have been obviated
by further proceedings in the district court. In short, we have
permitted the government and the district court to do exactly
what we have forbidden in the civil context: collaborate to
produce a sham judgment for the purpose of facilitating review
of an otherwise unappealable, interlocutory order, when the
finality typically required for such an appeal is entirely absent.
See Horwitz v. Alloy Auto. Co., supra, 957 F.2d at 1435-36, 1437.
And this is precisely why our opinion is advisory: we are
presuming, without knowing, that the discovery order would
have remained as broad as it is had the district judge been
invited to reconsider the order rather than collaborating to
manufacture appellate jurisdiction; we are presuming, without
Marcia Kramer & Frank Lombardi, New top state judge: Abolish grand juries
& let us decide, N.Y. DAILY NEWS, Jan. 31, 1985, at 3.
32 No. 14-1124
knowing, that the government would have persisted in
refusing to comply with the discovery order had the choice of
sanction been left up to the district judge; and we are presum-
ing, without knowing, that the judge would have selected
dismissal of the indictment as its sanction after a genuine
inquiry.
Apart from authorizing an appeal that might be unneces-
sary, the court’s jurisdictional determination is inconsistent in
several other ways with the concerns animating the finality
requirement.
First, in accepting an appeal based on the invited and non-
final dismissal of the indictment, we are potentially interfering
with the district court’s management of the case by permitting
the government to appeal a discretionary, pretrial discovery
order that Congress has not identified as one of the interlocu-
tory orders that may be appealed. See Flanagan, 465 U.S. at 263-
64, 104 S. Ct. at 1054; ITOFCA, 235 F.3d at 364 n.1. Of course,
Judge Darrah cannot be heard to complain on that point, given
that he willingly entered the dismissal order that paved the
way for this appeal. But he is only one of multiple judges in the
Northern District of Illinois presiding over similar stash house
prosecutions in which the defendants are pursuing claims of
selective prosecution; and all of them will now be bound by the
discovery framework this court has outlined. There is much to
be said for the clarity that this court has brought to that issue.
If I agreed that we had jurisdiction over this appeal, I might
well be joining the court’s opinion. But the danger in an
appellate court reaching an issue prematurely or unnecessarily
is that we might make a decision without the illumination that
further development in the lower court would have given us,
and in doing so hobble the district courts and ourselves with a
rule that will not stand the test of time. That, by the way, is one
No. 14-1124 33
advantage of mandamus, which permits us to intervene when
truly necessary but restricts our role to policing the very
outermost boundaries of the district court’s authority, and
reserves ample discretion to the trial judges to manage their
cases as they see fit. Not incidentally, by accepting this appeal,
we are circumventing the limits that mandamus would
otherwise impose on disruptive appeals of this type. See Cheney
v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380, 124 S. Ct.
2576, 2586 (2004) (“[Mandamus] is a ‘drastic and extraordinary’
remedy ‘reserved for really extraordinary cases.’”) (quoting Ex
Parte Fahey, 332 U.S. 258, 259-60, 67 S. Ct. 1558, 1559 (1947)).
Second, we are placing significant burdens on the defen-
dants by allowing the government to interrupt the litigation in
order to pursue the appeal of a non-dispositive order. See
Flanagan, 465 U.S. at 264, 104 S. Ct. at 1054; ITOFCA, 235 F.3d
at 364 n.1. Nominally, the indictment has been dismissed, but
because the dismissal was without prejudice, the prosecution
of the defendants likely would have resumed regardless of
whether we affirmed or reversed the challenged discovery
order. In the meantime, while the advancement toward trial
has ceased, the defendants have remained under the cloud of
unresolved charges.4 The fact that they have had to post bond
4
I recognize that none of the defendants objected to the dismissal of the
indictment, see R. 144 at 6-7, but then of course they might have anticipated,
particularly in light of United States v. Clay, supra, 481 F.2d at 135-36, that we
would not permit the appeal of a non-final dismissal of the indictment
without prejudice. That, indeed, has been their position throughout the
course of this appeal.
34 No. 14-1124
in order to secure their release while this appeal is pending is
merely one illustration of that fact.5
Third, we have burdened the time and resources of first
three and now ten judges of this court in order to resolve an
issue that later events in the district court might have rendered
moot, had we not permitted the government to engineer the
dismissal of the indictment. See Union Oil, 121 F.3d at 309
(“[L]ike the parties, we too must be concerned with our
resources.”). In short, this appeal has all of the hallmarks of
piecemeal appellate litigation that the Supreme Court has
cautioned against. Flanagan, 465 U.S. at 263-64, 104 S. Ct. at
1053-54; see also ITOFCA, 235 F.3d at 364 n.1; West, 197 F.3d at
1189; Union Oil, 121 F.3d at 310.
My colleagues nonetheless hold that finality is not required
when the government is appealing the dismissal of the
indictment, reasoning that because each of the other orders
that section 3731 authorizes the government to appeal (orders
suppressing evidence, for example) is a non-final order,
Congress must have intended to permit the appeal of any
order dismissing an indictment, whether final or not. Ante at
8-9. The final judgment rule embodied in section 1291 thus can
have no application to government appeals under section 3731,
ante at 8-9, which is an interpretation that even the government
has not urged upon us.
The argument is somewhat ahistorical, in that Congress
originally permitted appeals only from certain orders dismiss-
5
For purposes of pretrial release, when the government takes an appeal
pursuant to section 3731, 18 U.S.C. § 3143(c) requires the district court to
treat the defendant as if the case were still active and apply the criteria set
forth in 18 U.S.C. § 3142.
No. 14-1124 35
ing an indictment (including dismissals based on defects in the
statute underlying an indictment) or otherwise disposing of a
case (including an order sustaining a plea in bar), and those
orders were indisputably final. 34 Stat. 1246; see United States
v. Wilson, 420 U.S. 332, 336-37, 95 S. Ct. 1013, 1018-19 (1975)
(discussing the original and successor versions of the Criminal
Appeals Act). With the 1970 amendments to the Criminal
Appeals Act, Congress surely did expand the range of dismiss-
als that were appealable, but it is not obvious that it meant to
expand that range so far as to include non-final dismissals,
simply because it added other categories of interlocutory
orders to the list of decisions that the government can appeal.
More to the point, what this reasoning misses, in my view,
is the singular way in which finality concerns come into play
when the order deemed appealable by section 3731 is being
used as a gateway to review of another interlocutory order that
section 3731 does not recognize as appealable. For all of the
reasons that I have discussed, requiring that such a dismissal
be genuine, i.e. final, ensures that appellate review of the order
underlying the dismissal (here, the discovery order) is consis-
tent with the longstanding prudential concerns underlying the
finality rule. In other words, we would have a genuine sanction
based on the government’s genuine refusal to comply with the
underlying order as to which review is sought. That is pre-
cisely the scenario that Congress had in mind when it enacted
the 1970 amendments to the Criminal Appeals Act. Although
the Act had been modified subsequent to its enactment, the
statute in 1970 still authorized appeal from only a limited
subset of orders dismissing indictments. See Wilson, 420 U.S. at
336-37, 95 S. Ct. at 1018-19; S. Rep. No. 91-1296, at 2, 5-6 (1970)
(Report of Senate Judiciary Committee). While Congress was
considering modifications to the statute, the Department of
36 No. 14-1124
Justice pointed out that the statute as it had been interpreted
did not permit the government to appeal dismissals based on
grounds other than defects in the indictment or in the statute
on which the indictment is based. Id. at 22 (Dep’t of Justice
Comments on S. 3132). Thus, for example, the government had
no ability to appeal when the district court had dismissed the
indictment as a sanction for the government’s refusal to
comply with a discovery order that it believed was unautho-
rized. “In view of the tendency of the courts to expand discov-
ery rights, even beyond those recognized in the Federal Rules
of Criminal Procedure, and a growing tendency by courts to
dismiss indictments on such grounds, the Government will
inevitably be severely handicapped by its inability to appeal
such dismissals.” Id. Congress, in turn, broadened the language
of section 3731 specifically to accommodate that concern. Id. at
5 (Report of Senate Judiciary Committee). But nowhere in the
legislative history is there any hint that Congress thought that
discovery orders generally should be appealable and that the
government should be free to invite a dismissal of the indict-
ment without prejudice whenever it wished to seek interlocu-
tory review of such orders. That would have represented a
dramatic expansion of the government’s appeal rights in and
of itself, and an equally dramatic departure from finality
principles; and yet nowhere in the history is there any recogni-
tion of the competing interests implicated by such a significant
step nor any other hint that Congress understood the breadth
of the appeal rights it would be granting to the government.
There is every reason to think that what Congress meant to
authorize when it broadened the relevant language of section
3731 was an appeal from a dismissal entered as a true
sanction—that is, a dismissal that was considered, final, and
thus dispositive of the case. Permitting an appeal in that
No. 14-1124 37
instance would address the concern that the government had
raised with Congress, while honoring the concerns underlying
the finality rule and not granting the government a broad right
to appeal discovery orders.
Wilson’s extravagant language—that Congress, when it
enacted the current Criminal Appeals Act, “intended to
remove all statutory barriers to Government appeals and to
allow appeals whenever the Constitution would permit,”
420 U.S. at 337, 95 S. Ct. at 1019—provides only tepid support
for the notion that the final judgment rule embodied in section
1291 has no application to government appeals in criminal
cases. We have previously cautioned that Wilson’s sweeping
declaration cannot be taken literally. See United States v.
Spilotro, 884 F.2d 1003, 1005-06 (7th Cir. 1989); United States v.
Horak, 833 F.2d 1235, 1246-47 (7th Cir. 1987). Wilson dealt with
a double jeopardy issue and had nothing whatever to say on
the subject of invited dismissals and the final judgment rule.
Given the prominent role that the latter rule has long played in
criminal as well as civil appeals, see Flanagan, 465 U.S. at 264-65,
104 S. Ct. at 1054-55, I would have expected a clearer signal
from Congress that it was jettisoning the finality rule and
granting the government a license no other party enjoys—the
ability to invite a dismissal and use that as the gateway to
appeal an interlocutory order that is otherwise not appealable,
all the while reserving the right to proceed with the case even
if it loses the appeal.
Likewise, Flanagan’s observation that section 3731 is “a
statutory exception to the final judgment rule,” 465 U.S. at 265
n.3, 104 S. Ct. at 1055 n.3, quoted ante at 7, was actually
addressed to the statute’s specific and separate provision
permitting appeals from orders suppressing or excluding
evidence. The Court was not referring to the entire statute, or
38 No. 14-1124
to the provision authorizing appeals from an order dismissing
an indictment in particular.
Certainly it is true that the Double Jeopardy Clause imposes
significant constraints on the government’s ability to take an
appeal, ante at 8; see Wilson, 420 U.S. at 352, 95 S. Ct. at 1026,
but requiring that a dismissal of an indictment be final before
it may be appealed would in no way jeopardize the govern-
ment’s ability to exercise its appellate rights. If the district court
decided, after an independent inquiry, that dismissal of the
indictment was the appropriate sanction for the government’s
refusal to comply with the court’s discovery order—in which
case, as discussed, the court would undoubtedly dismiss the
indictment with prejudice—then the government would have
a truly final order to appeal. Likewise, if the government were
so certain of its position that it was willing to invite the
dismissal of the indictment with prejudice, it could take that
course (presuming the district court were amenable), eliminate
the need for a sanctions inquiry, and still have a final order of
dismissal to appeal. Its willingness to accept such a disposition
would be confirmation that the challenged discovery order is,
from its point of view, dispositive of the case. Finally, to the
extent the government believes that a discovery order is truly
beyond the bounds of reason, it always has the option of
seeking a writ of mandamus. See, e.g., Spilotro, 884 F.2d at 1006-
1007. In any of these three scenarios, we would have either a
genuinely final judgment to review or a claim that the discov-
ery order was so beyond the district court’s authority to
impose as to warrant interlocutory intervention.
My colleagues do recognize one meaningful limitation on
the government’s power to take an immediate appeal of an
order with which it does not wish to comply by inviting a
dismissal of the indictment without prejudice: the district
No. 14-1124 39
court’s discretion to decline the invitation. Ante at 9-10. The
government conceded at argument that the district court has
this power, and rightly so. In the face of the government’s
unwillingness to comply with the court’s order, a judge surely
is not bound to accept a sanction of the government’s choosing.
But our recognition that the district court has the discretion
to accept or reject an invitation to dismiss the indictment, and
thus to open or close the door to an appeal of an order that is
otherwise not appealable under the terms of section 3731, more
than anything else makes clear that we have created a right of
appeal that Congress itself has not authorized. What we are
saying, in effect, is that if the government wishes to take an
appeal of an interlocutory order (like a discovery order), it may
do so if it is willing to accept a temporary dismissal of the
indictment and the district court, in the exercise of its discre-
tion, is willing to go along and dismiss the indictment without
prejudice in order to make the appeal possible. In everything
but name, this is the criminal equivalent of the discretionary,
interlocutory appeal that 28 U.S.C. § 1292(b) authorizes in civil
cases. Whatever the merits of such an appeal might be, suffice
it to say that Congress has not authorized it. See, e.g., United
States v. White, 743 F.2d 488, 493 (7th Cir. 1984). (If Congress
had authorized it, we no doubt would have been given the
same discretion we possess in the civil context not to permit
the appeal. Ironically, that is the one point that distinguishes
this type of interlocutory appeal from one taken under section
1292(b): so long as the district court in the exercise of its
discretion allows the appeal by dismissing the indictment, we
have no choice but to accept the appeal.)
The finding of jurisdiction in this case is also inconsistent
with the spirit, if not the letter, of our prior decision in United
States v. Clay, supra, 481 F.2d at 135-36 (Stevens, J.). The district
40 No. 14-1124
court in that case had dismissed the indictment based on the
government’s eight-month delay in indicting the defendant
after he was arrested. On the government’s appeal of that
ruling, this court explained that although the district court’s
order was properly understood as a dismissal without preju-
dice, “[o]ur construction of the order does not foreclose
appealability.” Id. at 135. Preindictment delay was not a flaw
that the government could fix by seeking another indictment
from the grand jury: the damage had already been done, and
consequently a second indictment would meet the same fate as
the first. Id. at 136. The dismissal was, in other words, final and
therefore appealable. Id.
My colleagues pooh-pooh the notion that Clay demands
finality, ante at 11-12, but I have a hard time reading Clay
otherwise. It is true that the dismissal order in that case was
final, and so, strictly speaking, the court did not have to
consider whether a non-final order of dismissal would have
been appealable. But the significance of finality to the court’s
finding of appellate jurisdiction is hard to miss. Why else
would the court have gone out of its way to observe that,
although the court’s dismissal of the indictment was properly
construed as having been without prejudice, “[that] construc-
tion … does not foreclose appealability,” id. at 135, and then
devote several paragraphs to explaining why the order was
appealable precisely because it was final, id. at 135-36? Under
Clay’s straightforward reasoning, the dismissal of the indict-
ment in this case simply is not final and appealable.
The Supreme Court’s decisions in United States v.
Armstrong, 517 U.S. 456, 116 S. Ct. 1480 (1996), and United States
v. Bass, 536 U.S. 862, 122 S. Ct. 2389 ( 2002) (per curiam), by
contrast, are utterly silent on the subject of appellate jurisdic-
tion. Certainly it is safe to say that jurisdiction in both cases
No. 14-1124 41
was assumed, see ante at 10-11, but we are obliged to honor the
Court’s express directive not to read jurisdictional holdings
into precedents that do not address jurisdiction. See Lewis v.
Casey, 518 U.S. 343, 352 n.2, 116 S. Ct. 2174, 2180 n.2 (1996)
(collecting cases).
Moreover, there are reasons to think that the dismissal
orders at issue in both Bass and Armstrong were, in contrast to
the order at issue here, final. In Bass, the district court had
dismissed the government’s notice of intent to seek the death
penalty as a sanction for the government’s refusal to comply
with the district court’s discovery order. The Sixth Circuit
treated the dismissal of the death notice as a partial dismissal
of the indictment, which of course section 3731 expressly
recognizes as an appealable order. United States v. Bass,
266 F.3d 532, 535-36 (6th Cir. 2001) ; see also United States v.
Moussaoui, supra, 382 F.3d at 463 (likewise treating dismissal of
death notice as an appealable order and collecting cases). And
because the dismissal of the death notice was a genuine
sanction that the government could not avoid or undo except
by obtaining reversal of the discovery order, the Sixth Circuit
expressly labeled the dismissal “a final, appealable order under
18 U.S.C. § 3731.” 266 F.3d at 535 (emphasis mine). As for
Armstrong, the Ninth Circuit’s opinion, although it did not
expressly engage in a discussion of finality in the same sense
we are discussing it here (the court instead was addressing the
fact that dismissal of the indictment had been stayed pending
appeal), had the following to say on the matter of its jurisdic-
tion:
[T]he appeal is properly before us only because
the government knowingly accepted the conse-
quence of opting for an immediate appeal rather
than complying with the discovery order. That
42 No. 14-1124
consequence is that, if we affirm, the dismissal of
the indictments must now be implemented
unless the order dismissing them is further
stayed pending review by the Supreme Court. It
is too late for the government to change its mind
and comply with the discovery order. Were that
not the rule, we would simply be permitting
appeals of discovery orders under the guise of
dismissal orders that were either only tentative
or were never intended to take effect. In either
case, we would not have jurisdiction over the
appeals under § 3731.
48 F.3d 1508, 1510 (9th Cir. 1995) (en banc). This discussion
reads very much as if the Ninth Circuit did not believe the
option was open to the government, as it was here, to re-indict
the defendants and belatedly comply with the district court’s
order in the event the government lost the appeal. Perhaps that
reads too much into the court’s language. But so long as we are
talking about why the Supreme Court “may have let the issue
[of jurisdiction] pass” in silence, ante at 11, it is worth pointing
out that the Court in Armstrong may have thought the dis-
missal order was a genuinely final order.
For these and all of the other reasons set forth in the panel’s
opinion, 766 F.3d 722, I respectfully dissent from the court’s
holding that we have jurisdiction over the government’s
appeal in this case.