concurring:
I join all of Judge Kozinski’s well-written opinion except Section A of Division II, dealing with the asserted violation of due process. Even there, I agree with the result and with much that Judge Kozinski says about the delicacy and difficulty attending judicial inquiry into prosecutorial decision-making.
My disagreement is with Judge Kozin-ski’s categorical conclusion that there can be no judicial enforcement of the constitutional right of due process with regard to prosecutorial charging decisions. Judge Kozinski indicates that, if the prosecutor adopted an office procedure of selecting charges by the throw of a dart or a toss of the coin, such arbitrariness would violate the due process clause. He then concludes, if I read his opinion correctly, that even in such an extreme case there could be no judicial remedy because of considerations of separation of powers.
There is no call to make such a categorical pronouncement in this case. Although the district court had sufficient information to support further inquiry into an equal protection violation, it had no comparable evidence of a due process violation. The fact that some defendants had been allowed to “plead around” mandatory minimum sentences, while others had not, is insufficient to make a prima facie case of due process violation. United States v. Kidder, 869 F.2d 1328, 1335-36 (9th Cir.1989). Further due process inquiry is precluded for that reason. It is unnecessary to go further and proclaim that there can never be a due process inquiry into the internal charging decisions of the prosecution, no matter what kind of showing is made of an egregious violation.1
It is certainly true that there are constitutional and practical reasons for avoiding systematic judicial scrutiny of prosecutorial decisions. I do not understand, however, why the separation of powers precludes judicial inquiry under the rubric of due process when it does not preclude similar inquiry under the rubric of equal protection. Judge Kozinski is willing in rare instances, after a prima facie case has been sustained, to permit in camera inspection of prosecutorial files to determine whether a charging decision was based on gender bias. Why is such an inquiry less of an intrusion than a similar inquiry, in even rarer instances, when a prima facie case of due process violation has been sustained?
Perhaps part of Judge Kozinski’s point is that the occasions when equal protection inquiry is justified are more easily identified than comparable occasions of suspected due process violation. That fact, however, simply makes it harder for defen*1304dants and judges to make out or discover a prima facie case of due process violation. I do not object to keeping the barriers to such inquiry high; but I see no reason to declare due process violations totally out of bounds for the judiciary. The separation of powers is a fundamental constitutional concept, but so is due process of law.
. I do not read Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), as laying down such a categorical rule. Wayte challenged the government policy of selecting for prosecution only those who had written letters to the government stating that they would not register for the draft. The Court stated: "It *1304is appropriate to judge selective prosecution claims according to ordinary equal protection standards.” Id. at 608, 105 S.Ct. at 1531. It was certainly appropriate in Wayte, as it will be in almost all cases where prosecution is based on an action or characteristic of the person prosecuted. The Court did not say, as the majority opinion does here, that in a case of pure arbitrariness, such as a coin toss decision, due process inquiry would be precluded.