United States v. Paul Davis, Jr.
2015 U.S. App. LEXIS 12054
7th Cir.2015Background
- Seven defendants (including Paul Davis) were charged in a federal "stash-house" sting; arrests occurred after undercover ATF/FBI operations. All defendants are Black; plaintiffs alleged racial targeting in stash-house operations.
- Defendants sought broad discovery into ATF/FBI selection criteria and prosecutorial practices to support a selective-prosecution/equal-protection claim. The prosecutor refused, invoking Armstrong.
- The district court granted a sweeping discovery order compelling extensive agency and USAO materials; the government declined to comply.
- To obtain appellate review of that discovery order (which § 3731 does not expressly list), the government suggested and the district court entered dismissal of the indictment without prejudice; the Solicitor General appealed under 18 U.S.C. § 3731.
- The en banc Seventh Circuit examined (1) whether § 3731 authorizes appeals from non-final dismissals without prejudice; and (2) whether the district court’s discovery order complied with Armstrong and other privileges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3731 permits appeal of an indictment dismissed without prejudice to re‑indictment | Government: § 3731 authorizes appeals from dismissal orders generally; § 3731 lists many interlocutory orders, so finality is not required | Defendants: § 3731 should be read to require finality (like § 1291); allowing appeals from sham/nonfinal dismissals circumvents final-judgment policy | Held: § 3731 authorizes appeals from dismissals of indictments (or counts/parts) even if without prejudice; no imported § 1291 finality requirement |
| Whether district court’s discovery order complied with Armstrong (selective‑prosecution discovery) | Defendants: racial disparity in stash-house prosecutions justified broad discovery into selection and agency practices | Government: Armstrong requires a showing that similarly situated persons of another race were not prosecuted before discovery; defendants’ data insufficient | Held: The order violated Armstrong to the extent it sought prosecutorial-discretion materials; but agency/agent-level targeting evidence is not protected by the same presumption and may warrant limited discovery |
| Whether the district court abused discretion by ordering broad agency and White House materials (privilege and overbreadth) | Defendants: needed comprehensive materials to show discriminatory targeting by ATF/FBI and USAO | Government: order was overbroad, invaded deliberative process and executive privilege, and risked exposing sensitive investigative criteria | Held: The discovery order as issued was an abuse of discretion — vastly overbroad and intrusive; some agent/supervisor inquiry may be permissible but must be narrowly tailored, staged, and may be conducted in camera |
| Appropriate remedial process for evaluating discrimination claims in sting-targeting | Defendants: broad discovery now to assess patterns and agency criteria | Government: protect investigative techniques; any discovery must be limited and respect privileges | Held: Court directs measured, stepwise inquiry: receive defendant proffer, conduct limited inquiry (affidavits/testimony of agents), in‑camera review of targeting criteria if warranted, and only then expand discovery consistent with Armstrong and privilege protections |
Key Cases Cited
- United States v. Armstrong, 517 U.S. 456 (1996) (selective-prosecution discovery requires a preliminary showing that similarly situated persons of other races were not prosecuted)
- Flanagan v. United States, 465 U.S. 259 (1984) (§ 1291 finality rule and history of government appeals distinguished)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (exceptions to final-decision rule must be applied sparingly)
- United States v. Wilson, 420 U.S. 332 (1975) (Criminal Appeals Act construed as removing many statutory barriers to government appeals)
- Martin Linen Supply Co. v. United States, 430 U.S. 564 (1977) (discussing scope of government appeals under § 3731)
- United States v. Bass, 536 U.S. 862 (2002) (per curiam) (assumed jurisdiction over interlocutory dismissal tied to discovery dispute concerning capital prosecution)
- United States v. Clay, 481 F.2d 133 (7th Cir. 1973) (appeal permitted from dismissal without prejudice when practical effect was finality)
- Gelboim v. Bank of America Corp., 135 S. Ct. 897 (2015) (definition of final decision under § 1291)
- Franks v. Delaware, 438 U.S. 154 (1978) (attack on government affidavits supporting warrants can trigger evidentiary hearings)