                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                        REVISED FEBRUARY 8, 2005
                                                                    January 12, 2005
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                       Clerk
                         _______________________

                               No. 05-20001
                         _______________________

                    In Re:   United States of America,

                                                               Petitioner.


                   Petition for Writ of Mandamus to the
                       United States District Court
               for the Southern District of Texas, Houston




Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:

           In this case, the Government has requested a writ of

mandamus to prevent the federal district court from enforcing

discovery orders in a federal death penalty case not by dismissing

the Government’s Notice of Intent to seek the death penalty against

this defendant, but by poisoning the jury’s consideration of that

option with an impermissible punishment phase instruction.                 The

court   also    threatened   to   delay   the   scheduled   start     of   the

proceedings for a year.       For the following reasons, we grant the

writ, and expect proceedings to resume promptly.

                                  Background

           Defendant    Tyrone     Mapletoft    Williams   (“Williams”)     is

awaiting trial for his alleged role in an illegal alien smuggling
conspiracy that resulted in the deaths of nineteen undocumented

aliens.   According to the indictment, on or about May 13, 2003,

after several co-conspirators loaded seventy-four illegal aliens

into an enclosed trailer at or near Harlingen, Texas, Williams and

co-defendant    Fatima   Holloway,          the    only    two    African-American

participants,    drove   the   tractor-trailer            rig    to    a    prearranged

destination at or near Victoria, Texas.               Williams was the driver

and Holloway was sitting in the passenger seat.

          As alleged, during the trip, several aliens began to bang

on the locked trailer, begging to be released from the oppressive

heat inside.    As the aliens screamed for mercy, Holloway allegedly

told Williams to turn on the refrigeration device in the trailer,

or, alternatively, to let the aliens out.                       Williams allegedly

rejected these requests and continued to drive.                        The Government

alleges that as a direct result of this decision nineteen of the

aliens died from heat exhaustion and/or suffocation.

          On March 15, 2004, a grand jury in the Southern District

of Texas returned a sixty-count superseding indictment charging all

fourteen co-defendants with various alien smuggling offenses in

violation of 8 U.S.C. § 1324.        Because of the deaths of some of the

illegal   aliens,    nearly       all       defendants          involved       in     the

transportation    were    death      penalty-eligible.                  8    U.S.C.     §

1324(a)(1)(B)(iv).       On    the   day     the    grand       jury    returned      the

superseding indictment, the United States filed a Notice of Intent



                                        2
to Seek the Death Penalty only against Williams.1            Two days later,

Judge Vanessa Gilmore severed Williams’s case2 and set his trial

for January 5, 2005.

            On October 22, 2004, Williams filed a Motion to Dismiss

the Notice of Intent to Seek the Death Penalty, or alternatively,

for Discovery of Information Relating to the Government’s Capital-

Charging Practices.      Williams’s motion substantively states:

           The United States of America has determine [sic] to
      seek the death penalty against TYRONE MAPLETOFT WILLIAMS
      because of his race.
           According to the original and superceding [sic]
      indictment returned in this case, TYRONE MAPLETOFT
      WILLIAMS is the only person of African-American descent,
      other than FATIMA HOLLOWAY, who was indicted for activity
      relating to the facts and circumstances charged in the
      indictment. Upon the original return of the indictment,
      the United States of America made many far-reaching and
      profound statements which had the pendency [sic] to
      demonize many of the alleged participants in the activity
      that resulted in the indictment.       All of the other
      persons mentioned in the indictment are of Hispanic


      1
            Before filing the Notice, the Government went through the protocol
required by the Department of Justice (DOJ) before a United States Attorney may
seek the death penalty in the case. This requires the U.S. Attorney to seek the
opinion of the Capital Crimes Unit in Washington, D.C., and final approval from
the United States Attorney General. This process began when the grand jury
returned the initial indictment on June 12, 2003. Interestingly, while pursuing
this procedure, the United States submitted an unopposed motion to extend the
death penalty notice deadline, which Judge Gilmore denied. Judge Gilmore did not
reconsider this motion and grant an extension until after the Government filed
an unopposed motion to reconsider and United States Attorney Michael Shelby
personally appeared before her to explain the delay.
      2
            The status of the co-defendants varies.      Some have pled guilty,
others have apparently fled the country and have not yet been served with arrest
warrants, and still others have been found guilty at trial. One co-defendant,
Claudia Araceli Carrizales-Gonzales, was ordered immediately released by Judge
Gilmore on the last day of trial based on the judge’s ruling that the Government
failed to prove one of the elements of its case. This order was entered despite
the Government’s vociferous objection. Another co-defendant awaits trial after
being severed from the original co-defendants upon Judge Gilmore’s willingness
to suppress her confession. The Government has appealed that decision. United
States v. Cardenas, No. 04-20449. We express no opinion as to the other cases.

                                       3
     descent and none are African-American. Of the persons
     who are alleged to have concocted the conspiracy,
     profited greatly from the conspiracy and who undertook a
     leadership role in the conspiracy, none are African-
     American. Of all the persons named in the indictment,
     the Government is seeking the death penalty only as to
     TYRONE MAPLETOFT WILLIAM [sic].
          WHEREFORE,     PREMISES    CONSIDERED,     Defendant
     respectfully prays that the Notice of Intent to Seek the
     Death Penalty be dismissed, that the Notice of Special
     Findings be stricken, or, in the alternative, that the
     Court provide an evidentiary hearing at which time the
     Defendant will make a credible showing that all of the
     similarly situated individuals in this indictment are of
     a different race and not subjected to the death penalty,
     and the Defendant further prays that the Court grant this
     Motion for Discovery of Information Relating to the
     Government’s Capital-Charging Practices, and for such
     other relief to which he may show himself entitled.

          Williams also filed a Memorandum of Points and Authori-

ties in Support of his motion, which states in its entirety:

          In United States v. Armstrong, 517 U.S. 456, 465,
     116 S.Ct. 1480 (1996), the United States Supreme Court
     held that a defendant who seeks discovery on a claim of
     selective prosecution must show some evidence of
     discriminatory effect and discriminatory intent. United
     States v. Bass, 536 U.S. 862, 122 S.Ct. 2389 (2002). The
     Defendant in this case will not rely upon a statistical
     showing based upon nationwide information relating to the
     way the United States charges blacks with death-eligible
     offenses in comparison to the way that they charge
     whites.   In this case, the discriminatory effect and
     discriminatory intent are clear to the naked eye.
     Similarly situated persons are treated differently and
     they are named in the same indictment with this
     Defendant.   A prima facia [sic] case is made by the
     indictment itself.
          Under the equal protection component of the Fifth
     Amendment’s Due Process Clause, the decision whether to
     prosecute   may   not   be   based   on   an   arbitrary
     classification, such as race or religion.       Oyler v.
     Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505-06. In order
     to prove a selective-prosecution claim, this Defendant
     must demonstrate that the prosecutorial policy had a
     discriminatory effect and a discriminatory purpose.
     Ibid. To establish a discriminatory effect in a race

                                4
     case, this Defendant must show that similarly-situated
     individuals of a different race were not prosecuted. Ah
     Sin v. Wittman, 198 U.S. 500, 25 S.Ct. 756, Batson v.
     Kentucky, 476 U.S. 79, 109 S.Ct. 1712, Hunter v.
     Underwood, 471 U.S. 222, 105 S.Ct. 1916, distinguished.
     The Court, in Armstrong, ruled that a defendant must
     produce   credible   evidence   that   similarly-situated
     defendants of other races could have been prosecuted, but
     were not. In the Armstrong case, the Court held that the
     required threshold was not met.      In this case, that
     threshold is met on its face. It is abundantly clear
     that TYRONE MAPLETOFT WILLIAMS is black and is the only
     person for whom the death penalty is being sought. It is
     abundantly clear that all of the other Co-Defendants are
     not black, with the exception of FATIMA HOLLOWAY.
          WHEREFORE, PREMISES CONSIDERED, the Defendant
     respectfully prays that this Court grant his Motion to
     Dismiss and Strike, or in the alternative, the Motion for
     Discovery, and grant him an evidentiary hearing in order
     that he may make a prima facia [sic] case on the
     allegations contained in his Motion, which is filed
     contemporaneously with this Memorandum of Points and
     Authorities in support of same.

After summarily declaring that Williams had made a prima facie case

under Armstrong, Judge Gilmore granted Williams’s vague “Motion for

Discovery of Information Relating to the Government’s Capital-

Charging Practices.”       After a series of clarifications,3 Judge

Gilmore declared that the Government was required to produce

information    that   “relates   generally    to   the   capital   charging

practices of the Attorney General of the United States including

but not limited to the charging practices that were employed in

this specific case.”      Nov. 10, 2004, Order.       Judge Gilmore noted

that her order did “not, however, prohibit the Government from


      3
            Initially, Judge Gilmore explained that the order’s language on
“capital charging practices” was “inclusive of this case but not this case
exclusively.”   Status Conference, Nov. 1, 2004, Tr. at 17.      The scope of
discovery grew at the November 10 status conference, as indicated above.

                                     5
raising any legitimate objections based on privilege or work

product.”        Id. (emphasis in original).

                Attempting to comply with Judge Gilmore’s order, the

Government on November 24, 2004, filed a “Notice of Discovery in

Response        to    Court     Order,”    which    discussed    the    United     States

Attorney’s           protocol    for    federal     death    penalty     prosecutions,

including how the determination to seek the death penalty is made.

The filing included statistical information about the capital

charging practices of the Attorney General.                      At a November 29,

2004, status hearing, Judge Gilmore rejected the Government’s

filing as non-responsive, and expressed anger at the Government’s

lack       of   compliance        and     refusal    to     assert     privilege    with

specificity.4          The United States then filed an Addendum, in which

       4
             See, e.g. Tr. at 18:
       . . . my specific instructions and our discussions were that [the
       discovery order] applied to this case and generally; but to the
       extent that there was any claim of privilege or work product, that
       that claim could be made in response to making discovery, and that
       the United States could specifically say, “[T]here were other things
       that occurred, but we are making this privilege or that privilege
       claim.” But no privilege claim was made and then no information was
       provided.

       Tr. at 20:
       I said, if you have something for which you think that there is a
       claim of a privilege, then you need to tell me what it is. You
       didn’t bother to even say that. I mean, nowhere in here did you
       say, “There were other things that we considered; and we did not
       produce them or disclose them in discovery even though we were
       ordered to do so, and here’s the privilege we’re claiming.” That’s
       all I asked you to do. Because the way that it is now, it’s sort of
       like a thumb your nose at the Court kind of response.

       Tr. at 23:
       No.     Stop.    I don’t care about that stupid motion for
       reconsideration. I didn’t think you should have filed it anyway.
       I thought that you were being, you know, obtuse when you filed that
       motion for reconsideration. All I care about is the discovery. To
       me that [deliberative] information should have been filed here. . .I

                                              6
it formally asserted privilege as to all other information rendered

discoverable   by   Judge   Gilmore.      The   Government     specifically

asserted privilege under the theories of deliberative process, work

product, and attorney-client privilege.

           On December 16, Williams responded by filing a Motion for

Contempt, and moved in the alternative to dismiss the Death Notice.

Williams attached a “report” of about sixty-eight other cases

involving alien smuggling and asserted that the defendants in those

cases were “similarly situated” with Williams. At a status hearing

the next day, Judge Gilmore praised the information, commenting to

the Government that “[t]he information that he got from this other

guy is exactly the kind of stuff y’all should have been giving.

That’s better information than what y’all gave.”           Tr. at 14.      When

the Government attempted to refute the information contained in the

exhibit, Judge Gilmore stopped the Government attorneys and instead

asked why they had not complied with her discovery order.5              After

additional attempts by the Government attorneys to explain that


     am not asking what [the Attorney General of the United States’s]
     thought process were [sic] when he looked at the facts. We just
     want the facts. I don’t care what he was thinking about.
     5
           See, e.g., Tr. at 17:
     Y’all are just kind of piddling around, piddling around trying to
     make up your mind if you can just kind of get away with not giving
     it. . . . So, you have just sort of looked at my order and then
     said, disclose the information about why you sought the death
     penalty on this guy, the only black defendant, and not anybody else
     based on the defendant’s motion, and tell me what the rationale and
     what the thinking was.     And then you said, “Yes, I will.       I
     understand your order.” And you walked out of here and basically
     said, “Phff. We got problems with it; it’s separation of powers.
     We are just not going to basically do it.”       That is contempt.
     Mr. Washington [Williams’s counsel] is right.

                                     7
they were asserting privilege, based on their own analysis and

after   consultation    with   Department   of   Justice   officials   in

Washington, the following exchange occurred:

     The Court: Well, then you tell them [the DOJ officials
     in Washington] to write me a letter, because if they
     don’t you’re getting held in contempt. I want a letter
     on my desk this afternoon from them saying, from the
     Attorney General that needs to be signed saying that they
     are refusing to comply with the Court’s order, and that
     the reason that you can’t do it is because the Attorney
     General of the United States has ordered you not to do
     so.

     Mr. Roberts: Okay, well, Your Honor, I am here as a
     representative of them; and I am advising you that we are
     not going to comply with this order.

     The Court: No. That is not good enough. Otherwise you
     are going to be in contempt this afternoon. I need it in
     writing; it needs to be signed by the Attorney General
     saying that the reason that you as an Assistant United
     States Attorney in Houston cannot comply with my order is
     because the Attorney General of the United States is
     prohibiting you from doing so based on separation of
     powers theory; that you will not disclose to this Court
     the basis upon which you chose in this case to indict the
     only black defendant for a death penalty crime in a case
     in which 14 defendants were involved in this smuggling
     and in which he was not the leader or the organizer or
     manager of this smuggling operation.       I need it in
     writing, and I need it today. And if I don’t have it by
     the end of the day, then you are going to be held in
     contempt. Do you understand me?

Tr. at 19-20.

             Mr. Roberts then attempted to bring up sanctions.     Judge

Gilmore refused to address sanctions at that time, and then stated,

“But presumably, you are going to just go back and get a letter

from the Attorney General telling me to kiss their butt basically.”

Tr. at 21.    As we discern, Judge Gilmore’s order, with a threat of


                                    8
contempt behind it, required the Government to allow Williams

access to its internal, privileged data concerning its use of its

discretion in seeking the death penalty, or a letter from the

Attorney General of the United States himself asserting privilege.

Rather than supply this discovery, the Government continued to

assert privilege and to explain why Attorney General Ashcroft would

not be personally participating in the case.

           On December 29, Judge Gilmore entered an order refusing

to dismiss the Notice of Intent to Seek the Death Penalty, which

the   Government   had   proffered       as   an   appropriate   sanction.

Cf. Armstrong, 516 U.S. at 1484 n.2 (noting that the Government

suggested dismissing the indictment so that an interlocutory appeal

might lie); see also United States v. Frye, 372 F.3d 729, 733-34

(5th Cir. 2004) (discussing the ability of the government to seek,

and a court of appeals to hear, an interlocutory appeal where a

district court strikes the death penalty pursuant to 18 U.S.C.

§ 3731).    Instead, Judge Gilmore crafted a “sanction”:           a jury

instruction which she intended to read to the jury during the

punishment phase of the trial if Williams were found guilty:

      [The Government] failed and refused to obey an order of
      this Court that [it disclose to the Defendant information
      relating to the Government’s capital charging practices
      and to the issue of whether the Government is seeking the
      death penalty against the Defendant because of his race.]

      The Court’s order was a lawful one [].

      The refusal to obey the order is not sufficient to
      [dismiss the Government’s Notice of Intent to Seek the
      Death Penalty.] You may consider the failure and refusal

                                     9
      of [the Government] to obey a lawful order of the Court,
      however, and may give it such weight as you think it is
      entitled to as tending to prove [that the Government is
      seeking the death penalty against the Defendant for
      discriminatory reasons.]

                                     *****

      If it is peculiarly within the power of [the Government]
      to produce [evidence relating to the Government’s capital
      charging practices], failure to [produce that evidence]
      may give rise to an inference that this [evidence] would
      have been unfavorable to [the Government].       No such
      conclusion should be drawn by you, however, with regard
      to [evidence that] is equally available to both parties
      or where the [admission of the evidence] would be merely
      repetitive or cumulative.

      The jury must always bear in mind that the law never
      imposes on a defendant in a criminal case the burden or
      duty of calling any witness or producing any evidence.

Order,    Dec.   29,   2004.6     Judge     Gilmore   denied   a   motion    for

reconsideration, a motion for a stay, and a motion for a final

order, and then ordered the case to proceed to trial as scheduled

on January 5, 2005.

            On December 31, the Government petitioned this court for

a brief stay to enable the filing of a writ of mandamus concerning




      6
            Judge Gilmore further used this opportunity to excoriate the
Government for its lack of decorum, and also for its incorrect capitalization as
mandated by The Bluebook. See, e.g., Dec. 29, 2004, Order at 5 n.1 (“In addition
to capitalizing ‘Court’ when naming any court in full or when referring to the
U.S. Supreme Court, practitioners should also capitalize ‘Court’ in a court
document when referring to the court that will be receiving that document.” The
Bluebook: A Uniform System of Citation P. 6(a) at 17 (Columbia Law Review Ass’n
et al. eds., 17th ed. 2000)”); id. at 11 (“Based on this conduct, the Court feels
compelled to admonish the Government lawyers that continued verbal argument after
a court rules is not in keeping with the decorum expected and required in a court
of law. Moreover, repeated written argument after a ruling has been made and a
proper motion for reconsideration has been denied is truly a waste of judicial
resources.”).

                                       10
the discovery orders7 and sanctions imposed by Judge Gilmore.                We

stayed proceedings in the trial court pending our review of the

Government’s petition.8

                                Jurisdiction

             The common-law writ of mandamus is codified at 28 U.S.C.

§ 1651(a).    A writ of mandamus is an extraordinary remedy.            “It is

charily used and is not a substitute for appeal.”             In re Chesson,

897 F.2d 156, 159 (5th Cir. 1990).           Mandamus is appropriate only

“when the trial court has exceeded its jurisdiction or has declined

to exercise it, or when the trial              court has so clearly and

indisputably abused its discretion as to compel prompt intervention

by the appellate court.”      In re Dresser Indus., Inc., 972 F.2d 540,

543 (5th Cir. 1992) (citing In re Chesson, 897 F.2d at 159).

Specifically, a court must find three requirements before a writ

will issue:     (1) “the party seeking issuance of the writ [must]

have no other adequate means to attain the relief he desires”;

(2) “the petitioner must satisfy the burden of showing that [his]

      7
            Specifically, the Government requests that the following discovery
orders (all interrelated) be vacated: the discovery order entered October 29,
2004, requiring the United States to produce discovery evidence relating to the
United States’s capital charging practices; an oral order announced at the
December 17, 2004, status conference, purporting to compel the United States to
submit a signed letter from the United States Attorney General asserting that he
will not comply with the discovery order because the requested information is
privileged; and a December 29, 2004, written order detailing the sanctions the
district court will impose for the United States’s failure to comply with the
discovery orders.
      8
            Although this court had granted a stay on December 31, 2004, Judge
Gilmore entered yet another order denying the Government’s motion for a stay of
the proceedings on January 3, 2005. In that order, she stated that any stay of
the proceedings could make it “unlikely that this case could be rescheduled for
trial before January 2006.” Amended Order, Jan. 3, 2005.

                                      11
right to issuance of the writ is clear and indisputable”; and

(3) “even if the first two prerequisites have been met, the issuing

court, in the exercise of its discretion, must be satisfied that

the writ is appropriate under the circumstances.” Cheney v. United

States District Court for the District of Columbia, __ U.S. __,

124 S. Ct. 2576, 2587, 159 L.Ed.2d 459 (2004) (partially quoting

Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 274, 19

L.Ed.2d 305 (1967) (alterations in original; internal citations and

quotations omitted).

            As   the   Supreme   Court    has   recently   noted,   “[t]hese

hurdles, however demanding, are not insuperable.           [Federal courts]

ha[ve] issued the writ to restrain a lower court when its actions

would threaten the separation of powers by ‘embarass[ing] the

executive arm of the Government.’” Id. at __, 124 S. Ct. at 2587

(quoting Ex parte Peru, 318 U.S. 578, 588, 63 S. Ct. 793, 799, 87

L.Ed. 1014 (1943)).      In fact, “[a]ccepted mandamus standards are

broad enough to allow the court of appeals to prevent a lower court

from interfering with a coequal branch’s ability to discharge its

constitutional responsibilities.”           Cheney, __ U.S. at __, 124

S. Ct. at 2587 (citing Clinton v. Jones, 520 U.S. 681, 701, 117

S. Ct. 1636, 1648, 137 L.Ed.2d 945 (1997)).

            Relevant to this case, various courts of appeals have

found mandamus appropriate in all three issues intertwined in this

petition:    jury instructions, discovery orders, and assertions of

privilege.    Both the Second and Third Circuits have permitted the

                                     12
Government to obtain writs of mandamus when a proposed criminal

jury instruction clearly violated the law, risked prejudicing the

Government at trial with jeopardy attached, and provided the

Government no other avenue of appeal.    See United States v. Pabon-

Cruz, 391 F.3d 86, 91-92 (2d Cir. 2004); United States v. Wexler,

31 F.3d 117, 121 (3d Cir. 1994).     Further, this court, in accord

with other circuits, has considered and issued writs of mandamus

over discovery orders implicating privilege claims.       See In re

Avantel, 343 F.3d 311, 317 (5th Cir. 2003); accord In re Occidental

Petroleum Corp., 217 F.3d 293, 295 (5th Cir.2000); In re Spalding

Sports Worldwide, Inc., 203 F.3d 800, 804 (Fed. Cir. 2000); In re

General Motors Corp., 153 F.3d 714, 715 (8th Cir. 1998); Chase

Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163

(2d Cir. 1992); Harper & Row Publishers, Inc. v. Decker, 423 F.2d

487, 492 (7th Cir. 1970), aff’d, 400 U.S. 348, 91 S. Ct. 479, 27

L.Ed.2d 433 (1971) (“[B]ecause maintenance of the attorney-client

privilege up to its proper limits has substantial importance to the

administration of justice, and because an appeal after disclosure

of the privileged communication is an inadequate remedy, the

extraordinary remedy of mandamus is appropriate.”).

                            Discussion

          As the petitioner, the Government must first show that it

has no alternative means of relief.      In her final ruling on the

discovery issue, Judge Gilmore could have dismissed the Death



                                13
Notice, as the Government requested, and her ruling would have been

immediately appealable.     See 18 U.S.C. § 3731; Frye, 372 F.3d at

733-34.    Instead, Judge Gilmore styled her order a discovery

“sanction” on the Government, which is ordinarily unavailable for

interlocutory appeal.      If Williams were acquitted of the death

penalty,   double   jeopardy   would    preclude    the   Government   from

appealing Judge Gilmore’s unusual jury instruction.             Thus, the

Government’s only recourse was through a writ of mandamus.              Cf.

Pabon-Cruz, 391 F.3d at 91 (“Challenges to a proposed jury charge

may properly be considered on a petition for a writ of mandamus.”);

accord United States v. Wexler, 31 F.3d at 117.

           Next, the Government must show that its right to issuance

of the writ is “clear and indisputable.”           Cheney, __ U.S. at __,

124 S. Ct. at 2587 (quotations omitted).           The Government asserts

that Judge Gilmore clearly erred in two principal, related ways:

(1) by incorrectly applying United States v. Armstrong, 517 U.S.

456, 117 S. Ct. 1480, 134 L.Ed.2d 687 (1996), and thus improperly

ordering discovery against the United States; and (2) by styling a

discovery “sanction” that contravenes the Federal Death Penalty Act

and creates an unauthorized defense against the death penalty.           We

agree as to both claims.

           “[S]o long as the prosecutor has probable cause to

believe that the accused committed an offense defined by statute,

the decision, whether or not to prosecute, and what charge to file

or bring before a grand jury, generally rests entirely in his

                                   14
discretion.”      Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct.

663, 668, 54 L.Ed.2d 604 (1978).                The exercise of prosecutorial

discretion is limited by the Equal Protection Clause, however.                     A

court’s    consideration       of   an    Equal       Protection-based    claim   of

selective prosecution necessarily begins with a presumption of good

faith     and     constitutional         compliance       by   the     prosecutors.

See Armstrong, 517 U.S. at 465-66, 116 S. Ct. at 1486-87.                         To

overcome    this       presumption,       a     defendant      must    prove    both

discriminatory effect and discriminatory purpose by presenting

“clear evidence.”       Id. at 465, 116 S. Ct. at 1486 (quoting United

States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S. Ct.

1, 6, 71 L.Ed. 131 (1926)).              Before a criminal defendant is en-

titled to any discovery on a claim of selective prosecution, he

must make out a prima facie case.                      The prima facie case of

selective prosecution requires the criminal defendant to bring

forward some evidence that similarly situated individuals of a

different       race   could   have      been     prosecuted,    but     were   not.

Armstrong, 517 U.S. at 465, 116 S. Ct. at 1487; United States v.

Webster, 162 F.3d 308, 333-34 (5th Cir. 1999).                 More specifically,

a defendant must first present evidence of both discriminatory

effect and discriminatory intent.               Id.

            In concluding that Williams had made a prima facie case

of selective prosecution, Judge Gilmore ignored Supreme Court

precedent and the plain facts as stated by the defendant himself.

First, Williams’s counsel admits in his Memorandum that he needs

                                          15
discovery so “that he may make a prima facia [sic] case on the

allegations” of selective prosecution. Williams thus concedes that

he cannot make out a prima facie case, which is what he must do

prior to receiving any discovery.            See Armstrong, 517 U.S. at 468,

116 S. Ct. at 1488; Webster, 162 F.3d at 333-34.

            Equally     important,     Williams’s        scant   court   filings

acknowledge that the Government declined to pursue the death

penalty against a similarly situated, black co-defendant.9                    To

adopt the language of Williams’s counsel, it is “clear to the naked

eye” that    Williams     has   not   made    the   requisite    showing    under

Armstrong to warrant discovery on a selective prosecution claim.

As   the   Government    continually    argued      to   Judge   Gilmore,   only

Williams and Holloway — both of whom are African-American — were in

the truck at the time of the alleged events, making them the only

“similarly situated” co-defendants.             In stark contrast, no other

co-defendants, although part of the conspiracy and ultimately

responsible for the acts (if proven at trial), were on the scene

during the lethal interval.            Only Williams, the driver of the

truck, was allegedly able to prevent the victims’ deaths; for this

reason, the Government is pursuing the death penalty against

Williams alone.       The Notice of Intent to Seek the Death Penalty

emphasizes    this      distinction.         Because     Williams   could    not



      9
            By contrast, Williams now asserts that Holloway was not similarly
situated because she cooperated with the Government. This does nothing to help
his claim of selective prosecution.

                                       16
demonstrate    that    similarly      situated,      non-African-American      co-

defendants were treated differently, he could not sustain his

burden even as to this prong of Armstrong.10

            Finally, the “study” submitted by Williams is exactly the

type of evidence that warranted summary reversal of a court of

appeals when used to justify discovery in a selective prosecution

claim.     See Bass, 536 U.S. at 862, 122 S. Ct. at 2389.                Although

Williams’s “study” does involve defendants charged with alien

smuggling,    sharing     a    charge   alone    does     not   make    defendants

“similarly    situated”       for   purposes    of   a   selective     prosecution

claim.11    A much stronger showing, and more deliberative analysis,

is required before a district judge may permit open-ended discovery

into a matter that goes to the core of a prosecutor’s function and

implicates serious separation of powers concerns.                Judge Gilmore’s

misapplication of Armstrong represents clear legal error.

            Nevertheless, under the second prong of mandamus review,



      10
             Further, the indictment, coupled with the Government’s rationale
offered to Judge Gilmore after Williams raised a selective prosecution claim,
offered a valid, non-discriminatory explanation for seeking the death penalty
against Williams. Cf. Webster, 162 F.3d at 335 (finding a non-discriminatory
explanation where the Government’s determination to pursue the death penalty
against one defendant and not others “is justified by the objective circumstances
of the crime and the sufficiency and availability of evidence to prove the
required elements under the law”).
      11
            See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S. Ct. 1064,
1073, 30 L.Ed. 220 (1886) (demonstrating that Government officials denied the
applications of 200 Chinese nationals seeking to operate laundries in wooden
buildings, but granted the applications of 80 non-Chinese individuals desiring
to operate laundries in wooden buildings) (cited by Armstrong, 517 U.S. at 466,
116 S. Ct. at 1487, in explaining the extremely high, “but not impossible,”
standard a criminal defendant must meet to demonstrate the “similarly situated”
requirement).

                                        17
the writ should not issue unless Judge Gilmore’s discovery orders

and   sanction   also    represented     a     clear   abuse     of   discretion.

See Cheney, __ U.S. at __, 124 S. Ct. at 2587.              This they did.

            First, the court continually expanded the breadth of

permissible discovery.         Initially, she permitted broad and vague

discovery of the Government’s “capital-charging practices.”                   See

Order, Oct. 29,      2004.12      Next, after the Government provided

significant, generalized information, Judge Gilmore ordered the

Government to reveal its capital-charging practices “inclusive of

this case but not this case exclusively.”              See Status Conference,

Nov. 1, 2004, Tr. at 17.        The Government repeatedly asserted work

product,   attorney-client,       and   deliberative       process     privileges

against these orders.

            In the ordinary case, a party must claim privilege with

specificity, and a court can ultimately demand in camera review of

privileged documents.      See, e.g., In re Grand Jury Proceedings, 55

F.3d 1012, 1015 (5th Cir. 1995).             In this extreme situation, how-

ever, the Government’s assertion of privilege was sufficient.                 Cf.

Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d

375, 380 (2d Cir. 1973) (refusing to permit even in camera review

of    information    relating     to    the     exercise    of    prosecutorial

      12
            However, Judge Gilmore later conceded, as she was required by
Armstrong, that this type of information was not subject to the requirements of
Federal Criminal Rule of Procedure 16. See Armstrong, 517 U.S. at 463, 116
S. Ct. at 1485 (“We hold that Rule 16(a)(1)(C) authorizes defendants to examine
Government documents material to the preparation of their defense against the
Government’s case in chief, but not to the preparation of selective-prosecution
claims.”); accord Order, Dec. 29, 2004, at 15.

                                        18
discretion).       The court’s ever-changing and inspecific orders

afforded no boundaries on discovery, and in effect compelled the

Government to volunteer information (as opposed to responding to a

request by Williams), contrary to Armstrong and to Federal Rule of

Criminal Procedure 16.          See Armstrong, supra n.13.           Moreover,

turning over any further information — even in camera — would

require documents, affidavits, or perhaps even depositions from

several levels of the Department of Justice, all of which could

engender various privilege claims, and as a precedent, could be

subject to abuse in this and in future cases.            Based on the minimal

showing     made   by    Williams,    Judge   Gilmore    clearly    abused   her

discretion in granting wide-ranging discovery.13

              The nature of the “sanction” imposed by the trial court

is also relevant to whether the trial court abused its discretion.

A severely disproportionate penalty may well indicate whether the

court      objectively    considered     protection     of   the   Government’s

prosecutorial privilege or reacted emotionally to a superficially

questionable indictment.             Racially selective prosecution is a

challenge to the prosecution, not a defense to the crime charged.

Accordingly, the Federal Death Penalty Act affords no mitigation of

penalty based on selective prosecution.14             See generally 18 U.S.C.

      13
            We state no opinion on the appropriate parameters required when and
if a criminal defendant makes a showing sufficient under Armstrong to obtain
discovery.
      14
            Further, the premise of Judge Gilmore’s proposed instruction is
false. The proposed instruction states that the order the Government declined
to follow was “lawful”; as our previous analysis has discussed, this was not the

                                        19
§ 3592.       The court’s “sanction” instruction would, however, place

the burden on the Government to prove that it had not engaged in

discriminatory selective prosecution of Williams; this would turn

on its head the Armstrong requirement that the defendant carry the

high burden of proof of selective prosecution.             See Armstrong, 517

U.S.     at   465-66,   116   S.    Ct.   at   1486-87.   In   this   way,   the

instruction would create an extra-statutory, wholly unauthorized

defense of selective prosecution.              See 18 U.S.C. § 3592(a)(1)-(8)

(delineating permissible mitigating factors a defendant may raise).

Judge Gilmore’s jury instruction appears simultaneously to be

preventing the Government from enforcing the death penalty against

Williams, while prohibiting any ordinary appellate review of the

court’s determination.15           This combination of legislating from the

bench and acting as a quasi-defense attorney vis-à-vis the jury is

unprecedented and ultra vires.16


case.
      15
            Although Williams is correct in asserting that “capitally charged
defendants must be permitted to present all relevant mitigating evidence” (Br.
in Opp. to Petition at 41), the defendant is not entitled to have the district
judge make such arguments for him from the bench under the guise of a “jury
instruction.”
        16
            We will not devote much effort to Judge Gilmore’s demand that the
Attorney General of the United States himself sign a letter asserting privilege.
This request was obviously inappropriate. See 28 U.S.C. § 541 (President of the
United States appoints each United States Attorney); 28 U.S.C. § 547 (defining
the powers of the United States Attorneys); 28 U.S.C. §§ 516-520 (vesting plenary
power in the Attorney General of the United States to supervise and conduct all
litigation to which the United States is a party); 28 U.S.C. §§          542, 547
(allowing delegation of responsibilities from the Attorney General and the United
States Attorney to Assistant United States Attorneys); see also In re Office of
Inspector General, 933 F.2d 276, 278 (5th Cir. 1991) (“[T]op executive department
officials should not, absent extraordinary circumstances, be called to testify
regarding their reasons for taking official actions.”) (quoting Simplex Time
Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985)).

                                          20
            Based on the Government’s extraordinary showing under the

first two parts of the mandamus test, we conclude that issuance of

the   writ,    though    discretionary,      is   appropriate      under    the

circumstances.     Cheney, __ U.S. at __, 124 S. Ct. at 2587.              While

we are loath to interfere with the manner in which a district court

runs its cases, mandamus is demanded in this death penalty case

where over two hundred venirepersons are poised to be impanelled,

where the consequence of the court’s instructional error could

deprive society of a lawful punishment, and where the trial court

has disregarded controlling law and in a gross abuse of discretion,

prejudiced the Government’s case and stymied orderly appellate

review. We grant the Government’s writ of mandamus and vacate both

the discovery orders17 and the sanctions.

                                 Conclusion

            On remand, we expect the case to proceed as expeditiously

as possible18 while advancing the legitimate goals of the federal

judicial system and protecting the rights of both parties.                   The

writ of mandamus is GRANTED, and the discovery orders and sanction

are VACATED.       IT IS FURTHER ORDERED that the stay of trial



      17
            Judge Gilmore appeared to reconsider her demand that the Attorney
General of the United States respond to her requests in writing in her Decem-
ber 29, 2004, Order.   See Order, Dec. 29, 2004, at 14-15. However, because she
never formally vacated that order, the writ of mandamus should be read to vacate
that discovery order to the extent it still exists.
      18
            This includes using the current jury pool, each member of which has
obeyed his civic duty and gone through the laborious process of completing the
questionnaires submitted by counsel. If trial is not commenced within thirty
days, the Government may seek further mandamus relief to that end.

                                      21
proceedings is hereby LIFTED and the case is REMANDED for IMMEDIATE

proceedings not inconsistent with this opinion.




                                22
