United States v. Davis

Decision Date13 July 2015
Docket NumberNo. 14–1124.,14–1124.
PartiesUNITED STATES of America, Plaintiff–Appellant, v. Paul DAVIS, Jr., et al., Defendants–Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Bolling W. Haxall, Mark E. Schneider, Meghan Morrissey Stack, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellant.

Carol A. Brook, William H. Theis, Office of The Federal Defender Program, John M. Beal, John M. Beal, Attorney at Law, Jack P. Rimland, Jack P. Rimland & Associates, Ralph E. Meczyk, Meczyk Goldberg, Damon M. Cheronis, Law Offices of Damon M. Cheronis, Eugene O'Malley, Chicago, IL, Lauren Weil Solomon, Highland Park, IL, Joshua Sachs, Law Office of Joshua Sachs & Associates, Evanston, IL, for DefendantsAppellees.



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 comply. 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.


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 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, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), forbids discovery into prosecutorial selectivity unless the defense first shows that similarly 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.


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. 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, 130 S.Ct. 599, 175 L.Ed.2d 458 (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, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Compare Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), with United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (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.
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...

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