                                      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   ap-­‐‑
pealed   from   a   district   court’s   order   dismissing   an   indict-­‐‑
ment,  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  discov-­‐‑
ery   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   re-­‐‑
hearing  en  banc.  

                                        I  
      The   indictment   charges   Paul   Davis   and   six   confeder-­‐‑
ates—Alfred   Withers,   Julius   Morris,   Jayvon   Byrd,   Vernon  
Smith,  Corey  Barbee,  and  Dante  Jeffries—with  several  feder-­‐‑
al   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   ap-­‐‑
proached   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  re-­‐‑
ports,  agents  bought  drugs  from  Davis  three  times;  this  gave  
some  credibility  to  the  informant’s  report  that  Davis  was  in-­‐‑
terested  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  couri-­‐‑
er,  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   dis-­‐‑
cussed  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   car-­‐‑
ried  firearms.  
    They  maintain  that  the  prosecutor,  the  FBI,  and  the  ATF  
engaged  in  racial  discrimination,  in  violation  of  the  Due  Pro-­‐‑
cess   Clause’s   equal-­‐‑protection   component.   The   defendants  
told   the   district   court   that   since   2006   the   United   States   At-­‐‑
torney  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   defend-­‐‑
ants   in   this   prosecution   are   black.   Defendants   asserted   that  
these  figures  “present  a  picture  of  stark  discriminatory  prac-­‐‑
tices  by  the  ATF  and  FBI  who  target,  through  the  use  of  in-­‐‑
formants   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  de-­‐‑
cisions  after  receiving  reports  from  investigators.  The  prose-­‐‑
cutor   opposed   this   motion,   contending   that   United   States   v.  
Armstrong,  517  U.S.  456  (1996),  forbids  discovery  into  prose-­‐‑
cutorial   selectivity   unless   the   defense   first   shows   that   simi-­‐‑
4                                                                    No.  14-­‐‑1124  

larly   situated   persons   have   not   been   prosecuted.   The   de-­‐‑
fense’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   explana-­‐‑
tion  that  “the  prosecution  in  this  District  has  brought  at  least  
twenty   purported   phony   stash   house   cases,   with   the   over-­‐‑
whelming   majority   of   the   defendants   named   being   individ-­‐‑
uals   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  per-­‐‑
son  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  au-­‐‑
thorize  appeals  from  orders  dismissing  indictments.  The  dis-­‐‑
trict  judge  agreed  to  facilitate  appellate  review  by  dismissing  
the  indictment  without  prejudice,  and  the  United  States  ap-­‐‑
pealed.  That  brings  us  to  the  jurisdictional  question.  

                                         II  
    If   this   were   a   civil   case,   and   a   complaint   had   been   dis-­‐‑
missed  without  prejudice  in  an  attempt  to  permit  immediate  
review   of   a   discovery   order,   an   appeal   would   not   be   possi-­‐‑
ble.   See,   e.g.,   Doctor’s   Associates,   Inc.   v.   Duree,   375   F.3d   618  
(7th   Cir.   2004)   (dismissing   an   appeal   where   the   parties   re-­‐‑
served   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  de-­‐‑
cision   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  pend-­‐‑
ing  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   prosecu-­‐‑
tor’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   fur-­‐‑
    ther  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   ex-­‐‑
    cluding  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   pro-­‐‑
    ceeding.  
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  modifica-­‐‑
      tion  of  the  conditions  of,  a  decision  or  order  granting  release.  
      The  appeal  in  all  such  cases  shall  be  taken  within  thirty  days  af-­‐‑
      ter  the  decision,  judgment  or  order  has  been  rendered  and  shall  
      be  diligently  prosecuted.  
      The   provisions   of   this   section   shall   be   liberally   construed   to   ef-­‐‑
      fectuate  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  pur-­‐‑
pose  of  an  appeal  under  §1291.  
    The  rest  of  §3731  provides  context  for  evaluating  this  po-­‐‑
sition—as  does  a  comparison  with  §1291,  which  permits  ap-­‐‑
peals   from   “final”   decisions.   The   word   “final”   does   not   ap-­‐‑
pear  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   dismiss-­‐‑
ing  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   ex-­‐‑
cluding  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  excep-­‐‑
tion  to  the  final  judgment  rule”.  Flanagan,  465  U.S.  at  265  n.3.  
If  finality  were  essential  then,  when  responding  to  the  hold-­‐‑
ing   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   permis-­‐‑
sion   under   §1292(b).   (Defendant   and   prosecutor   alike   also  
could  use  18  U.S.C.  §3742,  which  authorizes  appeals  of  sen-­‐‑
tences  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  be-­‐‑
cause   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  dis-­‐‑
trict  court  errs,  an  appeal  from  the  final  decision  usually  al-­‐‑
lows   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   can-­‐‑
not  appeal  from  a  mid-­‐‑trial  acquittal  by  the  judge,  or  an  end-­‐‑
of-­‐‑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  rem-­‐‑
edy.   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   con-­‐‑
tains).  
    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   ap-­‐‑
pellate   review   of   orders   remanding   suits   that   had   been   re-­‐‑
moved   on   the   authority   of   the   Class   Action   Fairness   Act.  
And  §1447(d)  permits  appeals  of  remands  in  civil-­‐‑rights  cas-­‐‑
es   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  ex-­‐‑
ceptions  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  ob-­‐‑
tain   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  fur-­‐‑
ther  barrier.  
    Because  discovery  orders  are  not  on  the  §3731  list,  appel-­‐‑
late  review  depended  on  the  district  court’s  cooperation.  The  
judge  chose  a  response  that  was  listed;  if  the  judge  had  de-­‐‑
cided  to  exclude  vital  evidence  as  a  sanction  for  the  prosecu-­‐‑
tor’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  interlocu-­‐‑
tory  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   re-­‐‑
quirements   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  appeal-­‐‑
able  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  illustra-­‐‑
tion.   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  prose-­‐‑
cuted,  a  defendant  contended  that  the  Attorney  General  took  
race  into  account  when  deciding  when  to  authorize  a  prose-­‐‑
cutor   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  dis-­‐‑
trict  court  ordered  discovery  into  the  exercise  of  prosecutori-­‐‑
al   discretion   and,   when   the   United   States   declined   to   pro-­‐‑
vide   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  sum-­‐‑
marily   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  inter-­‐‑
locutory   (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   ju-­‐‑
risdictional  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  in-­‐‑
dictments  without  prejudice.  See,  e.g.,  United  States  v.  Lester,  
992   F.2d   174,   176   (8th   Cir.   1993),   and   United   States   v.   Wood-­‐‑
ruff,  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  hold-­‐‑
ing   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  in-­‐‑
to  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   repeat-­‐‑
edly   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   devel-­‐‑
opments   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   de-­‐‑
pends   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  pre-­‐‑
sent  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   in-­‐‑
dividuals  of  color.  In  light  of  this  information,  it  is  necessary  
No.  14-­‐‑1124                                                                  13  

to   permit   Defendants   discovery”   about   prosecutorial   prac-­‐‑
tices   and   criteria.   That   decision   is   inconsistent   with   Arm-­‐‑
strong.  The  record  in  Armstrong  showed  that  every  defendant  
in  every  crack-­‐‑cocaine  prosecution  filed  by  a  particular  Unit-­‐‑
ed   States   Attorney’s   office   and   assigned   to   the   public   de-­‐‑
fender   was   black.   If,   as   the   Supreme   Court   held,   that   evi-­‐‑
dence   did   not   justify   discovery   into   the   way   the   prosecutor  
selected  cases,  then  proof  that  in  the  Northern  District  of  Il-­‐‑
linois   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  let-­‐‑
ting   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  dispar-­‐‑
ate   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  Ex-­‐‑
ecutive  Branch  exercises  prosecutorial  discretion.  In  order  to  
give  a  measure  of  protection  (and  confidentiality)  to  the  Ex-­‐‑
ecutive   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  com-­‐‑
parable   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  insupera-­‐‑
ble   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  prose-­‐‑
cuted   every   case   the   agencies   presented,   or   chosen   25%   of  
them  in  a  race-­‐‑blind  lottery,  would  not  matter,  since  the  con-­‐‑
stitutional   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   em-­‐‑
ployment-­‐‑discrimination  suit).  
     Agents  of  the  ATF  and  FBI  are  not  protected  by  a  power-­‐‑
ful   privilege   or   covered   by   a   presumption   of   constitutional  
behavior.   Unlike   prosecutors,   agents   regularly   testify   in  
criminal   cases,   and   their   credibility   may   be   relentlessly   at-­‐‑
tacked  by  defense  counsel.  They  also  may  have  to  testify  in  
pretrial   proceedings,   such   as   hearings   on   motions   to   sup-­‐‑
press  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   state-­‐‑
ments  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   evi-­‐‑
dence.   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  regu-­‐‑
larly,   and   properly,   allow   discovery   into   nonprivileged   as-­‐‑
pects   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   op-­‐‑
erations,  or  when  deciding  which  suspects  to  refer  for  prose-­‐‑
cution.  
   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  North-­‐‑
    ern  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  respon-­‐‑
    sible  for  the  investigation  had  with  each  defendant  prior  to  initi-­‐‑
    ating  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   re-­‐‑
       garding   how   to   conduct   such   operations,   how   to   determine  
       which  persons  to  pursue  as  potential  targets  or  ultimate  defend-­‐‑
       ants,  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  North-­‐‑
       ern  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   in-­‐‑
       vestigation  against  each  of  the  individuals  listed  as  defendants  in  
       each  case  cited  in  Paragraph  7  of  Defendants’  Motion  for  Discov-­‐‑
       ery   and   in   response   to   each   case   produced   pursuant   to   the   re-­‐‑
       quest  contained  in  Paragraph  (1)  above.  
       (7)   All   documents   containing   instructions   given   during   the   ten-­‐‑
       ure  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  individu-­‐‑
       als   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   de-­‐‑
    fendant’s  race,  color,  ancestry,  or  national  origin.    
    (8)  All  documents  that  contain  information  about  all  actions  tak-­‐‑
    en  during  the  tenure  of  Patrick  Fitzgerald  or  Gary  Shapiro  as  the  
    U.S.   Attorney   for   the   Northern   District   of   Illinois   about   the   re-­‐‑
    sponsibilities   of   prosecutors   to   ensure   that   defendants   in   cases  
    brought  by  the  Office  of  the  U.S.  Attorney  for  the  Northern  Dis-­‐‑
    trict  of  Illinois  have  not  been  targeted  due  to  their  race,  color,  an-­‐‑
    cestry,   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  agen-­‐‑
    cy  have  not  been  targeted  due  to  their  race,  color,  ancestry  or  na-­‐‑
    tional   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  independ-­‐‑
ent   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   deliberative-­‐‑
process  privilege.  
    To  say  that  some  of  the  information  is  potentially  discov-­‐‑
erable   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  concern-­‐‑
ing  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   law-­‐‑
enforcement   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   under-­‐‑
standing  and  acceptance  of  their  selection  criteria  by  releas-­‐‑
ing  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   discre-­‐‑
tion.  
   The   racial   disproportion   in   stash-­‐‑house   prosecutions   re-­‐‑
mains   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  rob-­‐‑
bery  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.   Defend-­‐‑
ants   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   stash-­‐‑
house   robbery,   it   might   be   appropriate   to   require   the   FBI  
and   ATF   to   disclose,   in   confidence,   their   criteria   for   stash-­‐‑
house  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   enforce-­‐‑
ment   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  dis-­‐‑
crimination   may   have   led   to   this   prosecution,   more   infor-­‐‑
mation  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  reso-­‐‑
lution   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   dur-­‐‑
ing   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’  constitution-­‐‑
al  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, Circuit Judge,
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 govern-
ment 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. However far 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 prudential reasons 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 appeal of 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 or-
                         der, we’re willing to sug-
                         gest—or, pardon me, to accept
                         dismissal of the indictment as a
                         sanction permitting the govern-
                         ment 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 pro-
                         posal.
                         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 re-
file 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 specifi-
cally 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 ag-
grieved 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 pre-
        judgment 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 administration of justice. Firestone Tire &
        Rubber Co. v. Risjord, supra, 449 U.S. [368], at 374,

1
   Cf. JTC Petroleum, 190 F.3d at 776-77 (finding appellate jurisdiction only
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 unap-
pealable 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 govern-
ment 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 independ-
ent 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 sanc-
tion, 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 dis-
missal 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.


2
   See ITOFCA, 235 F.3d at 364 (noting that dismissal of counterclaims
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 dis-
missal 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 necessarily would have resulted in dismissal
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 declara-
tion, 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 govern-
ment 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 a different 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 discov-
ery related to the question of selective prosecution in the stash
house cases. By the time the government asked him to dismiss
this case more than two months later, other judges 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 interrup-
tion 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 indict-
ment, 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,” “power-
ful,” “serious,” and “extreme” sanction for party’s miscon-
duct). Before taking that course, it would have been my
obligation to consider not only the egregiousness of the
government’s non-compliance but 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 wit-
nesses, district court rejected parties’ shared proposal to
dismiss indictment, and instead dismissed death notice and
foreclosed certain lines of evidence and argument to govern-
ment).
   Finally, assuming that I did decide to dismiss the indict-
ment as a sanction, I surely would have done so with preju-
dice. 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 govern-
ment’s opposition to the discovery order. The second indict-
ment would in all likelihood end up in my courtroom (see N.D.
ILL. LOCAL RULE 40.3(b)(2) and N.D. ILL. LOCAL CRIM. RULE 1.2),
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 govern-
ment 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 aphorism3 is


3
  Thirty years ago, Solomon Wachtler, then Chief Judge of the New York
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 govern-
ment 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 mis-
allocating 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 sham judgment for the purpose 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 presum-
ing, 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 unneces-
sary, 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 non-
final 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 interlocu-
tory 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 and extraordinary’
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 defen-
dants 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.4 The fact that they have had to post bond




4
  I recognize that none of the defendants objected to the dismissal of the
indictment, see R. 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 section 3731,
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 dismiss-



5
   For purposes of pretrial release, when the government takes an appeal
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 dismiss-
als 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 another interlocutory 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 consis-
tent with the longstanding prudential concerns underlying the
finality rule. In other 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 pre-
cisely 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 unautho-
rized. “In view of the tendency of the courts to expand discov-
ery 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, in turn, 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 indict-
ment without prejudice whenever it wished to seek interlocu-
tory 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 recogni-
tion 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 latter rule 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 the Double 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 govern-
ment’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
dismissal to 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 discov-
ery 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 appealable under 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 discre-
tion, 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 preju-
dice, “[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] construc-
tion … 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 indict-
ment 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 jurisdic-
tion. 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 jurisdic-
tion:
       [T]he appeal is properly before us only because
       the government knowingly accepted the conse-
       quence 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 dis-
missal order was a genuinely final order.
   For these and all of the other reasons 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.
