Criminal Procedure – dismissal — appeal

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U.S. Court of Appeals for the 7th Circuit

Criminal

Criminal Procedure – dismissal — appeal

The government cannot appeal a dismissal without prejudice.

“In sum, none of these cases persuades us that we should abandon our analysis in Clay. As we have said, we are particularly concerned that allowing appeals from invited dismissals without prejudice would grant to the government a right to appeal interlocutory orders that section 3731 otherwise does not authorize except as to orders suppressing or excluding evidence. Our decision in Reise v. Bd. of Regents of Univ. of Wis. Sys., 957 F.2d 293, 295–96 (7th Cir. 1992), sets out all of the reasons why a district court’s discovery orders ordinarily are not and should not be subject to interlocutory review; those reasons are as pertinent in the criminal context as they are in the civil. See, e.g., United States v. Butler, 316 F. App’x 503, 504–05 (7th Cir. 2009) (nonprecedential decision). Inviting dismissal of the indictment with prejudice, and thus surrendering the ability to reindict the defendants, would make clear that the government views the disputed discovery order (or other interlocutory order) as dispositive of the case; appellate review would therefore be confined to a truly final order. Cf. John’s Insulation, Inc. v. L. Addison & Assocs., 156 F.3d 101, 107 (1st Cir. 1998) (correct way for plaintiff in civil litigation to create final judgment permitting review of interlocutory order is to voluntarily dismiss complaint with prejudice). Inviting dismissal without prejudice, on the other hand, presents the problem that we noted in Lewis: appellate review of a wide range of interlocutory orders not otherwise authorized by statute. 745 F.3d at 286. To the extent that the government, in contrast to the defendant, lacks the practical ability to challenge discovery and other interlocutory orders at the close of the case, we note that mandamus also remains available as a means of obtaining review of such orders in exceptional cases.”

Dismissed.

14-1124 U.S. v. Davis

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Rovner, J.