Racial Bias Discovery May be Appropriate from Agencies such as ATF and FBI

Seventh Circuit Criminal Case Summaries: Evidence - Discovery

United States v. Davis, No. 14-1124. The government appealed from the district court’s order dismissing an indictment in this stash house case but without prejudice to file a new indictment. The district court allowed the government to appeal for review of a discovery order, with which the government had declined to comply. A panel of the Seventh Circuit dismissed the appeal for lack of jurisdiction but the Court granted the government’s petition for rehearing en banc. The Court held 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. Therefore, the Court could consider whether the indictment was properly dismissed. On the merits, the Court held that while Armstrong might bar discovery regarding the United States Attorney’s exercise of prosecutorial discretion, because the defendants’ wanted discovery from the ATF and FBI, that discovery was not barred by Armstrong. 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 operations or when deciding which suspects to refer for prosecution. Judges Rovner and Hamilton dissented from the Court’s conclusion it had jurisdiction over the appeal.