concurring in part and dissenting in part:
Confronted with a material, prejudicial violation of Fed.R.Crim.Pr. 16, the district court struggled to find an appropriate remedy. The court was inclined to grant a mistrial on all counts, but was dissuaded from doing so by the government’s concern (probably erroneous, and diametrically opposite its current position) that a mistrial at that juncture would have precluded retrial. Persuaded by the government that the Rule 16 violation tainted only Counts Eight and Twelve, the district court suggested that entry of a “judgment of acquittal” on those counts would be a just remedy under Rule 16, and trial on the remaining counts could proceed. The government, fearful of a total mistrial, seized the moment, and the prosecutor stated that the government could agree to “drop” those counts. Council’s motion for judgment of acquittal on Counts Eight and Twelve was later formally granted, without a peep, let alone a protest, from the government, and notation of that judgment was entered on the court’s docket. No appeal from that judgment was taken. Now, without objection, appeal, or even reindictment, the government seeks to try Robert Council on those two counts. Counts Eight and Twelve are long dead; I dissent from their resurrection.
I.
Fed.R.Crim.Pr. 16(d)(2) provides that, as a sanction for failures to comply with discovery requests or orders, the district court may enter any “order as it deems just under the circumstances.” In an extreme case, this rule authorizes the district court to dismiss an indictment with prejudice, barring, as does an acquittal, further prosecution of the defendant on the charges. United States v. Peveto, 881 F.2d 844, 861-863 (10th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); United States v. Jacobs, 855 F.2d 652, 655 (9th Cir.1988); United States v. Welborn, 849 F.2d 980, 985 (5th Cir.1988); cf. Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). This may not have been such an extreme case; on the other hand, the issue is not before us. We have no power to correct an error of the district court, if error there were, without an appeal by the government:
Unlike the typical mistrial, the granting of a motion such as this [dismissal for preindictment delay] obviously contemplates that the proceedings will terminate then and there in favor of the defendant. The prosecution, if it wishes to reinstate the proceedings in the face of such a ruling, ordinarily must seek reversal of the decision of the trial court.
United States v. Scott, 437 U.S. 82, 94, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). In this case, the government invites us to make a dismissal out of Council’s acquittal,1 and cites several cases supposedly supporting its request. The problem with the government’s — and the majority’s — authorities is that they all involve the propriety of appeals by the government from “acquittals” or “dismissals.” The issue faced by the courts in these cases is whether, if the court were to correct the error complained of by the government, double jeopardy would nonetheless bar retrial.
II.
18 U.S.C. § 3731 permits the United States to appeal orders of the district court *257“dismissing an indictment or information ... as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” The appeal must be taken within thirty days of the challenged order and must be “diligently prosecuted.” Id.
For the bulk of our nation’s history, the word “acquittal” carried such a magical quality that its utterance by a trial court, however glaringly erroneous, not only immunized the defendant from further prosecution, but also precluded the government from appealing the court’s ruling. E.g., Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672 (1962). In 1971, the language of 18 U.S.C. § 3731 was broadened to generally permit government appeals in criminal cases, except where prohibited by the double jeopardy clause. In the late 1970s, the Supreme Court, in construing § 3731, removed the magic from the term “acquittal.” It held that the only sort of “acquittal” that the government could not appeal was one in which
the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.
United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354 (1977) (quoted in Scott, 437 U.S. at 98, 98 S.Ct. at 2197.)
The cases relied on by the majority simply address this appealability question, and hold that the appealability of an “acquittal” (or a “dismissal” or ‘''mistrial” for that matter) is not dependent on the label the trial judge affixes to its action. United States v. Appawoo, 553 F.2d 1242, 1245 (10th Cir.1977) (“the appeal of the Government does not violate the double jeopardy clause”); United States v. Hospital Mon-teflores, Inc., 575 F.2d 332 (1st Cir.1978) (dismissing government appeal because trial court’s “dismissal” rested on failure of government’s proof, and was thus an “acquittal”).2
iii.
If, instead of acquiescing, the government had kicked, screamed, and appealed the “acquittal” of Council, double jeopardy would not prohibit us from reviewing the propriety of such an extreme sanction. The cases cited by the majority could hardly be more on point for that proposition. They are no support, however, for the government’s current attempt to ignore a valid judgment of the district court.
In United States v. Huffman, 595 F.2d 551 (10th Cir.1979), the defendant appealed his conviction, arguing that his earlier acquittal on a charge arising out of the same conduct barred his reprosecution. The government argued, among other things, that the acquittal was not an “acquittal” for double jeopardy purposes, and it relied on Appawoo. Though the Tenth Circuit eventually found that the second prosecution did not involve the “same offense” under the Blockburge?3 test, it rejected the government’s reliance on Appawoo (595 F.2d 551 at 554):
[I]n Appawoo the Government appealed the “judgment of acquittal” and obtained a reversal to lay a predicate for retrial, along with an appellate ruling that the constitutional holding of the trial court had been in error. Here, there was no appeal by the Government from the “judgment of acquittal.” The judgment was not reversed as was the case in Appawoo. The first contention of the Government is thus untenable and we *258must reckon with the effect of the “judgment of acquittal” on the subsequent prosecution....
I agree with this analysis, inasmuch as it comports with general principles of finality of judgments, res judicata, and the like. The government has the power to appeal an adverse judgment; if it fails to do so, it must “reckon with the effect” of it. The effect of Council’s judgment — acquittal— absolutely bars prosecution on Counts Eight and Twelve.
IV.
A final judgment of acquittal is on the books in favor of the defendant. Aside from this fundamental ground, there are other reasons why we should not permit Robert Council to be again tried on Counts Eight and Twelve. As a technical matter, even under the government’s theory, those counts were dismissed, and there is no current indictment charging Council with those offenses. Moreover, the government’s failure to object to the acquittal, combined with its affirmative agreement to “drop” the counts, constitutes a virtual stipulation that it would not seek to prosecute the charges further. Justice is not served by relieving the government of a promise it would have doubtless kept had the trial of the remaining counts not been later aborted.
I agree with the majority’s analysis of the double jeopardy issue as it relates to Counts Nine and Eleven, and I join that portion of the opinion. However, I respectfully dissent from the majority’s holding that Council may be tried on Counts Eight and Twelve.
ORDER
Nov. 5, 1992.
In his petition for rehearing, Robert Council, Jr., asserted that the district court lacked jurisdiction to reinstate counts eight and twelve, conceding, however, that this aspect of the case was “neither factually nor legally presented to this Court when this matter was originally briefed and argued.” The basis of Council’s argument on this issue is that the government did not appeal from the entry of judgments of acquittal on these counts.
Because this argument was raised for the first time in the petition for rehearing, the court requested the parties to file supplemental briefs. In its supplemental brief the government concedes that “its failure to preserve an objection to the District Court’s ‘acquittal’ of counts eight (8) and twelve (12) bars further prosecution of those charges.”
Upon consideration of the petition for rehearing and the government’s response and concession, rehearing having been granted by order of September 23, 1992, IT IS ADJUDGED AND ORDERED:
(1) Further prosecution of counts eight and twelve is barred;
(2) The court reiterates that prosecution on counts nine and eleven is barred by the Double Jeopardy Clause.
The case is remanded to the district court with instructions to dismiss the prosecution against Council on all counts.
Entered at the direction of Senior Judge Butzner, with the concurrence of Judge Hall and Judge Michael.
. Even if the "acquittal" is just a “dismissal,” reinstitution of a dismissed count must entail *257more than the unilateral decision of the prosecutor. Without a new indictment, it seems to me that a "dismissed" count is as dead as an "acquitted” count. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141 (1977) (defendant’s prosecution under second indictment not barred by dismissal of first indictment for reasons unrelated to factual guilt or innocence).
. In addition to the cases cited by the majority, see United States v. Affinito, 873 F.2d 1261, 1264 (9th Cir.1989) ("The government is not barred by the double jeopardy clause from appealing a judgment of acquittal ... where the trial court’s ruling was unrelated to factual guilt or innocence”); United States v. Torkington, 874 F.2d 1441 (11th Cir.1989) (judgment of acquittal entered as sanction was appealable under 18 U.S.C. § 3731); United States v. Lasater, 535 F.2d 1041 (8th Cir.1976) (“acquittal” based on pretrial legal assessment of materiality of alleged false statements was appealable).
. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).