(concurring).
I concur in the result.
I do not agree that selective prosecution should be treated in the same manner as the double jeopardy claim made in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) or the vindictive prosecution claims made in United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980). I do share with the majority their concern for the proliferation of interlocutory appeals caused by Griffin but do not approach the selective prosecution questions raised by this appeal from that standpoint. I differ with the majority because they run headlong into the semantic trap of putting vindictive and selective prosecution in the same basket when they come from totally different gardens.
No one should question the distinction between a claim of double jeopardy expressly prohibited by the 5th Amendment and a claim of selective prosecution. Double jeopardy — aside from its constitutional underpinnings — involves a defendant who is being put to the trauma and expense of a second prosecution for conduct already subjected to the scrutiny of a trier of fact and decided either for or against the defendant in the first prosecution. Selective prosecution involves a single prosecution. Clearly the distinction could lead courts to declare that the defendant now claiming his 5th Amendment double jeopardy rights need not be “forced to ‘run the. gauntlet’ a second time before an appeal could be taken; ...” Abney, 431 U.S. at p. 662, 97 S.Ct. at p. 2041.
*506The vindictive prosecution claim in Griffin brought this Court to apply the Abney rationale and raise vindictive prosecution claims to the same level of protection offered by the Constitution to 5th Amendment claims of double jeopardy. The wisdom or unwisdom of Griffin aside the Court there gave three reasons for the adherence to Abney rationale none of which is persuasive in a claim of selective prosecution. First, the Court said the denial of the motion to dismiss the vindictively brought prosecution is a complete and final determination of that claim in the trial court. Second, a vindictive prosecution claim is wholly collateral to the issue of guilt or innocence of the defendant on the first charge. The collateral nature of the claim is that a second prosecution is brought by the prosecutor in retaliation of the exercise of some legal right in the original prosecution. Third, vindictive prosecution claims involve a right to be free from the second prosecution itself. The claim in substance is that “I’m being prosecuted in this case because I made the prosecutor mad by exercising a legal or Constitutional right in another case.”
Selective prosecution, on the other hand involves a single prosecution. The claim arises out of the exercise of prosecutorial discretion in picking this defendant to prosecute for this crime at this time. The search into the motivation of a prosecutor— vigor, sincere belief of the deterrent value or bad faith — requires a court to delve into empirical data not vaguely relevant to guilt or innocence in the very prosecution in which the claim is made.
Prosecutorial discretion is certainly not untrammeled. Neither should it be subjected to the scrutiny of a Court except for a clear showing of abuse of discretion. This is not the stuff from which interlocutory appeals are made. To subject claims of abuse of discretion to the interlocutory appeal rationale of Abney and Griffin would in effect bring into the chambers of trial and appellate judges the day to day decisions of a prosecutor as to why this defendant was chosen for prosecution while the prosecution of some other person — claimed by the defendant to be guilty of the same conduct — is delayed or not prosecuted at all. I, for one, eschew the invitation to be such a super prosecutor.
If selective prosecution has any reviewability — and I believe it does — it can only intelligently be reviewed after all the facts relevant to the conduct being prosecuted are disclosed at trial. Otherwise prosecutors will be required to mini-try their entire portfolio of investigations to justify why this defendant was chosen to be prosecuted while others claimed by the defendant to be equally or more culpable of the same kind of conduct are not prosecuted. Prosecutors will be required to reveal and rationalize the relative strength of their case against this defendant as compared to others being considered for presentation to a Grand Jury or otherwise rejected for prosecution.
The appealability of rulings on selective prosecution claims ought to march hand in hand with the holding in United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) where the Supreme Court considering a speedy trial claim declined to “exacerbate pretrial delay by intruding upon accepted principles of finality ...” to allow an interlocutory appeal.
One last thought. What ultimately is the victory of a defendant claiming selective prosecution? None, for the remedy would be for the prosecutor to present to the Grand Jury all violations of the same criminal statute. Acceding to the majority’s view of selective prosecution claims would bring the Court into direct supervision of the prosecutor’s office. I cannot abide such a legal and logistic mistake.