Summary
The Ninth Circuit addressed whether it possessed appellate jurisdiction over the government's appeal of a district court's selective-prosecution discovery order and subsequent dismissal of an indictment without prejudice. The panel held that 18 U.S.C. § 3731 authorizes appeals from such non-final orders, establishing jurisdiction. On the merits, the court reversed the discovery order, ruling that the district court abused its discretion by failing to require defendants to produce evidence that similarly situated individuals could have been prosecuted but were not. The case was remanded for further proceedings consistent with this opinion.
Topics
Practice areas
Questions Presented
- Whether 18 U.S.C. § 3731 authorized the Government's appeal from the district court's dismissal of the indictment without prejudice and related selective-prosecution discovery order.
- Whether the defendants made the showing required to obtain discovery on their selective-prosecution claim by presenting some evidence that similarly situated defendants could have been prosecuted but were not.
Holdings
- The Ninth Circuit had jurisdiction over the Government's appeal because § 3731 does not limit Government criminal appeals to final decisions and expressly makes certain non-final orders appealable.
- A defendant seeking discovery on a selective-prosecution claim must produce some evidence of both discriminatory effect and discriminatory intent.
- To establish discriminatory effect sufficient to obtain selective-prosecution discovery, a defendant must present some evidence that similarly situated individuals could have been prosecuted but were not; similarly situated means the same as the defendant in all relevant respects, not merely persons who committed the same crime in the same geographic area.
Key quotations
“Nothing in the text of § 3731 indicates that appellate jurisdiction exists only for final decisions or orders.” (at 11)
“A defendant seeking “discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent.”” (at 13)
“To be similarly situated means more than merely committing the same crime in the same place.” (at 16)
“A proper comparator must be “the same [as the defendant] in all relevant respects.”” (at 17)
Factual background
During nationwide protests following George Floyd's death, Nathan Wilson and Christopher Beasley allegedly participated in a May 31, 2020 protest in Santa Monica, California, and set fire to a police car. They were federally indicted for arson of a vehicle belonging to an institution or organization receiving federal financial assistance. Defendants claimed they were selectively prosecuted because the Government perceived them as holding anti-government views and relied primarily on statistics concerning other arson prosecutions in the Central District of California.
Procedural history
Wilson and Beasley were federally indicted for arson under 18 U.S.C. § 844(f)(1), (2), and 2(a), arising from the burning of a police car during a 2020 protest. The district court denied their motion to dismiss for selective prosecution but granted their alternative request for discovery. After the Government declined to comply and sought appellate review, the district court dismissed the indictment without prejudice. The Government appealed the discovery order, dismissal order, and judgment.
Remand instructions
The case was remanded for further proceedings consistent with the opinion. The Ninth Circuit reversed both the selective-prosecution discovery order and the dismissal without prejudice of the indictment.