In United States v. Wilson, --- F.4th ---, No. 23-50016 (9th Cir. 2024), the Court reversed the district court’s selective-prosecution discovery order, reversed the district court’s order dismissing without prejudice an indictment charging Defendants with arson, and remanded for further proceedings.
Defendants moved to dismiss their indictment, arguing that they were unconstitutionally singled out for prosecution based on the perception that they held anti-government views. Alternatively, Defendants sought discovery on their selective-prosecution claim. The district court denied Defendants’ motion for dismissal but granted them discovery regarding selective prosecution. But after the Government indicated that it would seek appellate review rather than produce the ordered discovery, the district court dismissed the indictment without prejudice.
The first issue that we must resolve is whether we have jurisdiction.In criminal cases, we have jurisdiction over Government appeals from three types of decisions: (1) an order “dismissing an indictment or information or granting a new trial after verdict or judgment” unless double jeopardy has attached; (2) an order “suppressing or excluding evidence or requiring the return of seized property” made before jeopardy has attached or a verdict rendered; and (3) orders “granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release.” 18 U.S.C. § 3731. Congress instructs us to “liberally construe[]” these provisions.Although this case seems to fall into the first category because the Government appeals the district court’s order dismissing Defendants’ indictment without prejudice, Defendants argue that we lack jurisdiction. Defendants assert that § 3731 cabins the statutory authorization to appeal to only final judgments and that the Government manufactured “review of an otherwise non-appealable [discovery] order that is not specifically listed in § 3731” in a way that raises “serious constitutional and prudential problems.”Nothing in the text of § 3731 indicates that appellate jurisdiction exists only for final decisions or orders. This contrasts with the statute governing appellate jurisdiction in civil cases, which does limit our jurisdiction to appeals “from all final decisions of the district courts.” 28 U.S.C. § 1291. And as the Seventh Circuit recounted, the plain language of § 3731 makes multiple non-final decisions appealable. Thus, § 3731 is “a statutory exception to the final judgment rule.”This is not a close call; we have jurisdiction over this appeal.We review for an abuse of discretion a district court’s determination that the defendant has made the requisite showing to obtain discovery on a claim of unconstitutional selective prosecution. Id. at 851–52. “The court necessarily abuses its discretion when it applies the wrong legal standard.”Given the separation-of-powers concerns at play, the standard for proving selective prosecution is “a demanding one.” The Supreme Court has established a two-factor standard: the defendant must demonstrate “clear evidence,” first that the decision to prosecute “had a discriminatory effect and[, second,] that it was motivated by a discriminatory purpose.” “[T]he showing necessary to obtain discovery” on a selective-prosecution claim is “correspondingly rigorous,” and is intended to be a “significant barrier to the litigation of insubstantial claims,” id. at 464. A defendant seeking “discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent.” Here, the district court correctly articulated this governing test but erred in applying it.To show discriminatory effect sufficient to warrant discovery, a defendant must “produce some evidence that similarly situated defendants . . . could have been prosecuted, but were not.”Following Armstrong and Turner, we resolve this case on the discriminatory-effect factor alone and decline to address whether Defendants presented evidence of discriminatory intent. Because Defendants failed to meet their burden to produce some evidence that similarly situated individuals could have been prosecuted but were not, we reverse the district court’s selective-prosecution discovery order and its dismissal of the Defendants’ indictment without prejudice, and we remand for further proceedings consistent with this opinion.
