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 appealed from a district court’s order dismissing an indictment, 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 discovery 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 rehearing en banc.

I

The indictment charges Paul Davis and six confederates—Alfred Withers, Julius Morris, Jayvon Byrd, Vernon 

Smith, Corey Barbee, and Dante Jeffries—with several federal 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 approached 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 reports, agents bought drugs from Davis three times; this gave 

some credibility to the informant’s report that Davis was interested 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 courier, 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 discussed 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 carried firearms.

They maintain that the prosecutor, the FBI, and the ATF 

engaged in racial discrimination, in violation of the Due Process Clause’s equal-protection component. The defendants 

told the district court that since 2006 the United States Attorney 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 defendants in this prosecution are black. Defendants asserted that 

these figures “present a picture of stark discriminatory practices by the ATF and FBI who target, through the use of informants 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 decisions after receiving reports from investigators. The prosecutor opposed this motion, contending that United States v. 

Armstrong, 517 U.S. 456 (1996), forbids discovery into prosecutorial selectivity unless the defense first shows that simi-
4 No. 14-1124

larly situated persons have not been prosecuted. The defense’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 explanation 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 individuals 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 person 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 authorize appeals from orders dismissing indictments. The district judge agreed to facilitate appellate review by dismissing 

the indictment without prejudice, and the United States appealed. That brings us to the jurisdictional question.

II

If this were a civil case, and a complaint had been dismissed without prejudice in an attempt to permit immediate 

review of a discovery order, an appeal would not be possible. See, e.g., Doctor’s Associates, Inc. v. Duree, 375 F.3d 618 

(7th Cir. 2004) (dismissing an appeal where the parties reserved 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 decision 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 pending 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 prosecutor’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 further 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 excluding 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 proceeding.
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 modification of the conditions of, a decision or order granting release.

The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall 

be diligently prosecuted.

The provisions of this section shall be liberally construed to effectuate 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 purpose of an appeal under §1291.

The rest of §3731 provides context for evaluating this position—as does a comparison with §1291, which permits appeals from “final” decisions. The word “final” does not appear 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 dismissing 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 excluding 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 exception to the final judgment rule”. Flanagan, 465 U.S. at 265 n.3. 

If finality were essential then, when responding to the holding 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 permission under §1292(b). (Defendant and prosecutor alike also 

could use 18 U.S.C. §3742, which authorizes appeals of sentences 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 because 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 district court errs, an appeal from the final decision usually allows 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 cannot appeal from a mid-trial acquittal by the judge, or an endof-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 remedy. 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 contains).

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 appellate review of orders remanding suits that had been removed on the authority of the Class Action Fairness Act. 

And §1447(d) permits appeals of remands in civil-rights cases 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 exceptions 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 obtain 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 further barrier.

Because discovery orders are not on the §3731 list, appellate review depended on the district court’s cooperation. The 

judge chose a response that was listed; if the judge had decided to exclude vital evidence as a sanction for the prosecutor’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 interlocutory 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 requirements 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 appealable 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 illustration. 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 prosecuted, a defendant contended that the Attorney General took 

race into account when deciding when to authorize a prosecutor 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 district court ordered discovery into the exercise of prosecutorial discretion and, when the United States declined to provide 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 summarily 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 interlocutory (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 jurisdictional 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 indictments without prejudice. See, e.g., United States v. Lester, 

992 F.2d 174, 176 (8th Cir. 1993), and United States v. Woodruff, 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 holding 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 into 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 repeatedly 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 developments 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 depends 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 present 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 individuals of color. In light of this information, it is necessary 
No. 14-1124 13

to permit Defendants discovery” about prosecutorial practices and criteria. That decision is inconsistent with Armstrong. The record in Armstrong showed that every defendant 

in every crack-cocaine prosecution filed by a particular United States Attorney’s office and assigned to the public defender was black. If, as the Supreme Court held, that evidence did not justify discovery into the way the prosecutor 

selected cases, then proof that in the Northern District of Illinois 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 letting 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 disparate 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 Executive Branch exercises prosecutorial discretion. In order to 

give a measure of protection (and confidentiality) to the Executive 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 comparable 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 insuperable 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 prosecuted every case the agencies presented, or chosen 25% of 

them in a race-blind lottery, would not matter, since the constitutional 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 employment-discrimination suit).

Agents of the ATF and FBI are not protected by a powerful privilege or covered by a presumption of constitutional 

behavior. Unlike prosecutors, agents regularly testify in 

criminal cases, and their credibility may be relentlessly attacked by defense counsel. They also may have to testify in 

pretrial proceedings, such as hearings on motions to suppress 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 statements 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 evidence. 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 regularly, and properly, allow discovery into nonprivileged aspects 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 operations, or when deciding which suspects to refer for prosecution.

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 Northern 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 responsible for the investigation had with each defendant prior to initiating 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 regarding how to conduct such operations, how to determine 

which persons to pursue as potential targets or ultimate defendants, 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 Northern 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 investigation against each of the individuals listed as defendants in 

each case cited in Paragraph 7 of Defendants’ Motion for Discovery and in response to each case produced pursuant to the request contained in Paragraph (1) above.

(7) All documents containing instructions given during the tenure 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 individuals 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 defendant’s race, color, ancestry, or national origin. 

(8) All documents that contain information about all actions taken during the tenure 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 have not been targeted due to their race, color, ancestry, 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 agency have not been targeted due to their race, color, ancestry or national 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 independent 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 deliberativeprocess privilege.

To say that some of the information is potentially discoverable 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 concerning 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 lawenforcement 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 understanding and acceptance of their selection criteria by releasing 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 discretion.

The racial disproportion in stash-house prosecutions remains 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 robbery 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. Defendants 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 stashhouse robbery, it might be appropriate to require the FBI 

and ATF to disclose, in confidence, their criteria for stashhouse 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 enforcement 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 discrimination may have led to this prosecution, more information 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 resolution 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 during 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’ constitutional 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, CircuitJudge,

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 government 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. Howeverfar 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 prudentialreasons 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 appealof 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 order, we’re willing to suggest—or, pardon me, to accept

dismissal of the indictment as a

sanctionpermitting the government 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 proposal. 

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 refile 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 specifically 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 aggrieved 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 prejudgment 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 administrationofjustice. Firestone Tire &

Rubber Co. v. Risjord, supra, 449 U.S. [368], at 374,

 Cf. JTC Petroleum, 190 F.3d at 776-77 (finding appellate jurisdiction only

1

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 unappealable 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 government 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 independent 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 sanction, 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 dismissal 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.

See ITOFCA, 235 F.3d at 364 (noting that dismissal of counterclaims 2

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 dismissal 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 necessarilywouldhave resultedindismissal

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 declaration, 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 government 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 adifferent 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 discovery related to the question of selective prosecution in the stash

house cases. By the time the government asked him to dismiss

this casemore than two months later, otherjudges 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 interruption 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 indictment, 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,” “powerful,” “serious,” and “extreme” sanction for party’s misconduct). Before taking that course, it would have been my

obligation to consider not only the egregiousness of the

government’snon-compliancebut 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 witnesses, district court rejected parties’ shared proposal to

dismiss indictment, and instead dismissed death notice and

foreclosed certain lines of evidence and argument to government). 

Finally, assuming that I did decide to dismiss the indictment as a sanction, I surely would have done so with prejudice. 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 government’s opposition to the discovery order. The second indictment would in all likelihood end up in my courtroom (see N.D.

ILL.LOCALRULE 40.3(b)(2) and N.D.ILL.LOCALCRIM.RULE1.2),

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 government 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 aphorism is

3

 Thirty years ago, Solomon Wachtler, then Chief Judge of the New York

3

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 government 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 misallocating 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 shamjudgment forthepurpose 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 presuming, 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 unnecessary, 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 nonfinal 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 interlocutory 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 andextraordinary’

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 defendants 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. The fact that they have had to post bond 4

I recognize that none of the defendants objected to the dismissal of the 4

indictment, seeR. 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 section3731,

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 dismissFor purposes of pretrial release, when the government takes an appeal 5

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 dismissals 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 anotherinterlocutory 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 consistent with the longstanding prudential concerns underlying the

finality rule.Inother 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 precisely 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 unauthorized. “In view of the tendency of the courts to expand discovery 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,inturn, 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 indictment without prejudice whenever it wished to seek interlocutory 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 recognition 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 latterrule 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 theDouble 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 government’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

dismissalto 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 discovery 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 appealableunder 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 discretion, 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 prejudice, “[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] construction ... 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 indictment 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 jurisdiction. 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 jurisdiction:

[T]he appeal is properly before us only because

the government knowingly accepted the consequence 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 dismissal order was a genuinely final order.

Forthese and all of the otherreasons 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.