United States of America v. Paul Davis, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1124
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
PAUL DAVIS, JR., et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 63 — John W. Darrah, Judge.
ARGUED MAY 21, 2014 — DECIDED SEPTEMBER 8, 2014
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. This appeal arises from one of
multiple criminal cases pending in the Northern District of
Illinois in which the defendants are charged with conspiring to
rob a non-existent “stash house” which, they were led to
believe by an undercover agent, contained many kilograms of
cocaine. At the request of the defendants, the district court
ordered the government to produce nine categories of docu-

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2 No. 14-1124
ments and data bearing on the exercise of the government’s
law enforcement and prosecutorial discretion with respect to
criminal charges based on non-existent stash houses. After
announcing its intent not to comply with the order, the
government asked the district court to dismiss the indictment
without prejudice in order to facilitate an immediate appeal of
the order, and the district court granted the government’s
request. The government filed this appeal pursuant to 18
U.S.C. § 3731. We conclude that because the district court
dismissed the indictment without prejudice, allowing the
government to re-file the case regardless of the outcome of the
appeal, the dismissal of the indictment is not a final order, and
consequently we lack jurisdiction over the appeal.
I.
We assume the truth of the following alleged facts, recog-
nizing that the case has not been tried. A government infor-
mant made several purchases of crack cocaine and heroin from
defendant Paul Davis, Jr. After Davis expressed an interest in
robbery to the informant, the informant introduced him to an
undercover special agent of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) who was posing as a
disgruntled drug courier for a Mexican cartel. The agent
recruited Davis into a scheme to rob his employer’s stash
house, which he told Davis contained 50 kilograms of cocaine
and was protected by armed guards. The stash house, of
course, was a fiction. Davis recruited his six co-defendants into
the scheme. When the day of the intended robbery arrived, the
assembled crew (several of whom were armed with semi-
automatic firearms) met the agent in a grocery store parking lot
and then followed him in their cars to a warehouse in order to

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No. 14-1124 3
make their final plans, including the means of overpowering
the stash-house guards. At the conclusion of that planning
session, which was covertly recorded, six of the seven defen-
dants were arrested. (The seventh, who had become lost on the
drive to the warehouse, was arrested later.) A grand jury
indicted all seven defendants for conspiring and attempting to
possess, with the intent to distribute, five or more kilograms of
cocaine, in violation of 21 U.S.C. § 846; conspiring and attempt-
ing to affect interstate commerce by means of a robbery, in
violation of 18 U.S.C. § 1951(a), and knowingly possessing a
firearm in furtherance of a drug trafficking crime and a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Two of the
defendants were additionally charged with being felons in
possession of firearms, in violation of 18 U.S.C. § 922(g)(1).
The defendants filed a joint motion seeking discovery of
information relevant to potential racial profiling and selective
prosecution. All of the defendants named in this case are
African-American, and because the principal offenses charged
in this case arose from a sting orchestrated by the government,
the defendants wished to explore the possibility that their race
may have influenced the government’s decision to recruit and
charge them for the stash-house robbery. As a preliminary
showing that discovery was warranted (see United States v.
Armstrong, 517 U.S. 456, 470, 116 S. Ct. 1480, 1489 (1996) (to
establish entitlement to discovery on selective prosecution,
defendant must produce some credible evidence that similarly
situated defendants of other races could have been prosecuted
but were not)), the defendants gathered and presented data
regarding some 25 stash-house sting cases that had been filed
in the Northern District of Illinois from 2006 through the filing

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4 No. 14-1124
of the instant prosecution in March 2013. By the defense
account, 75 of the 97 defendants charged in those cases were
African-American, 16 were Hispanic, and six were white. They
noted further that of the 13 of those 25 cases instituted in the
three years prior to the indictment of this case, 45 defendants
were African-American, 14 were Hispanic, and just one was
white. In sum, African Americans constituted 77 percent of all
defendants charged in these cases, while comprising roughly
25 percent of the population of Cook County and a lesser
percentage of the overall population of the Northern District of
Illinois. Viewed another way, although white, non-Hispanic
individuals comprise more than half of the population of the
Northern District, only six percent of the defendants named in
stash-house prosecutions filed from 2006 forward fall into that
demographic group.
The district court found this showing sufficient to warrant
the discovery the defendants had requested. “An examination
of the limited information available to the Defendants indicates
that since 2006, the prosecution in this District has brought at
least twenty purported phony stash house cases, with the
overwhelming majority of the defendants named being
individuals of color. In light of this information, it is necessary
to permit Defendants discovery … . “ R. 124 at 2. The district
court ordered the government to produce all of the informa-
tion and documents that the defendants had requested,
including:
• a complete listing of stash-house cases initiated by
the United States Attorney with the involvement of
the ATF or the FBI in the Northern District of Illinois

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No. 14-1124 5
from 2006 forward, along with disclosure of the race
of each defendant charged in these cases;
• the factual basis for the decision to initiate or
pursue an investigation against the defendants
named in the cases identified by the defense;
• disclosure of any prior criminal contact between
the defendants in each case and the agency responsi-
ble for investigating the case;
• internal ATF and FBI manuals, correspondence,
and other documents addressing fictitious stash-
house scenarios, including the protocols and direc-
tions to agents and informants with respect to such
scenarios; and
• any documents addressing how supervisory
personnel are to ensure that individuals in such
scenarios are not targeted on the basis of race, color,
ancestry, or national origin.
Id. at 2–3.
The government subsequently filed a “position paper” in
which it indicated that it would not comply with the discovery
order, and suggested that the court should dismiss the indict-
ment without prejudice as a sanction for its noncompliance,
thereby creating a final order that would be appealable to this
court. R. 129. At a hearing on January 7, 2014, the district court
granted the government’s request to dismiss the indictment,
confirming upon the prosecutor’s inquiry that the dismissal
was without prejudice. R. 132; R. 144 at 6.
This appeal followed.

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6 No. 14-1124
II.
The first question in any appeal is our jurisdiction. In re
Morse Elec. Co., 805 F.2d 262, 264 (7th Cir. 1986). Section 3731
expressly authorizes the government to appeal from the
dismissal of an indictment. Nonetheless, the defendants
contend that because the district court dismissed the indict-
ment without prejudice, and because the government has the
ability to re-indict them regardless of whether we affirm or
reverse the court’s discovery order, the dismissal is not a final
order subject to appellate review. The government, on the
other hand, contends that it followed “established practice” in
seeking dismissal of the indictment without prejudice as a
means of facilitating appellate review. See Government Br. 12.
We conclude that the defendants are correct: The dismissal of
the indictment without prejudice is not a final order that the
government may appeal pursuant to section 3731.
“The United States <has no right of appeal in a criminal case
absent explicit statutory authority.’” United States v. Byerley,
46 F.3d 694, 698 (7th Cir. 1995) (quoting United States v.
DiFrancesco, 449 U.S. 117, 131, 101 S. Ct. 426, 434 (1980)),
abrogated on other grounds by United States v. Clark, 538 F.3d 803,
810–11 (7th Cir. 2008); see also Sanabria v. United States, 437 U.S.
54, 67 n.21, 98 S. Ct. 2170, 2180 n.21 (1978) (“the Government is
not authorized to appeal from all adverse rulings in criminal
cases”). The source of authority for the government’s appeal in
this case is section 3731, which in full provides:
In a criminal case, an appeal by the United States
shall lie to a court of appeals from a decision, judg-
ment, or order of a district court dismissing an

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No. 14-1124 7
indictment or information or granting a new trial
after verdict or judgment, as to any one or more
counts, or any part thereof, except that no appeal
shall lie where the double jeopardy clause of the
United States Constitution prohibits further prosecu-
tion.
An appeal by the United States shall lie to a court of
appeals from a decision or order of a district court
suppressing or excluding evidence or requiring the
return of seized property in a criminal proceeding,
not made after the defendant has been put in jeop-
ardy and before the verdict or finding on an indict-
ment or information, if the United States attorney
certifies to the district court that the appeal is not
taken for purpose of delay and that the evidence is
a substantial proof of a fact material in the proceed-
ing.
An appeal by the United States shall lie to a court of
appeals from a decision or order, entered by a
district court of the United States, 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.
The appeal in all such cases shall be taken within
thirty days after the decision, judgment or order has
been rendered and shall be diligently prosecuted.

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8 No. 14-1124
The provisions of this section shall be liberally
construed to effectuate its purposes.
We quote the statute in full because several of its provisions
bear on our analysis; but plainly it is the first provision which
relates directly to this appeal. Without question, the statute
expressly authorizes the government to appeal from the
dismissal of the indictment, and the indictment in this case
indeed was dismissed.
The government is also assuredly correct in asserting that
an indictment need not necessarily be dismissed with prejudice
in order to be subject to appeal. The statute itself does not use
the words “with prejudice” or equivalent phrasing, and as the
Supreme Court has observed with respect to this very provi-
sion of the statute, “the form of the ruling is not dispositive of
appealability in a statutory sense.” United States v. Martin Linen
Supply Co., 430 U.S. 564, 567 n.4, 97 S. Ct. 1349, 1352 n.4 (1977).
Indeed, we have found jurisdiction to entertain an appeal
under this provision when the dismissal was without preju-
dice. United States v. Clay, 481 F.2d 133, 135–36 (7th Cir. 1973)
(Stevens, J.).
What does matter apart from the label given to the dis-
missal is its finality. With limited exceptions, our appellate
jurisdiction is limited to review of “final decisions” of the
district court. 28 U.S.C. § 1291; see United States v. Rodriguez, 975
F.2d 404, 408 (7th Cir. 1992). Interlocutory appeals are as
disfavored in the criminal context as they are in the civil—even
more so, actually. See United States v. Van Engel, 15 F.3d 623,
628–29 (7th Cir. 1993), abrogated on other grounds by United States
v. Sowa, 34 F.3d 447, 450–52 (7th Cir. 1994); United States v.

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No. 14-1124 9
Celani, 748 F.2d 363, 364–65 (7th Cir. 1984). Notably, there is no
provision in the criminal context akin to 28 U.S.C. § 1292(b)
authorizing the district court in civil cases to certify for appeal
interlocutory decisions that would otherwise not be appealable
as final orders. See United States v. White, 743 F.2d 488, 493 (7th
Cir. 1984); see also United States v. Guerrero, 693 F.3d 990, 998
(9th Cir. 2012); United States v. Blackwell, 900 F.2d 742, 746 (4th
Cir. 1990). Section 3731 does authorize the government to
appeal from certain categories of orders that are decidedly
non-final, including, in particular, orders suppressing or
excluding evidence (and orders directing the government to
return seized evidence). Such provisions stand as limited
exceptions to the rule that a decision must be final in order to
be appealable. See Flanagan v. United States, 465 U.S. 259, 265
n.3, 104 S. Ct. 1051, 1055 n.3 (1984); Rodriguez, 975 F.2d at 408;
White, 743 F.2d at 493; see also United States v. Chaudhry,
630 F.3d 875, 878 (9th Cir. 2011).
As the Supreme Court recognized in Flanagan, “[t]he final
judgment rule serves several important interests.” 465 U.S. at
263, 104 S. Ct. at 1054.
It helps preserve the respect due trial judges by
minimizing appellate-court interference with the
numerous decisions they must make in the pre-
judgment stages of litigation. It reduces the ability of
litigants to harass opponents and to clog the courts
through a succession of costly and time-consuming
appeals. It is crucial to the efficient administration of
justice. Firestone Tire & Rubber Co. v. Risjord, … 449
U.S. [368], at 374, 101 S. Ct. [669], at 673 [(1981)]. For

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10 No. 14-1124
these reasons, “[t]his Court has long held that the
policy of Congress embedded in [section 1291] is
inimical to piecemeal appellate review of trial court
decisions which do not terminate the ligation. …”
United States v. Hollywood Motor Car Co., 458 U.S. 263,
265, 102 S. Ct. 3081, 3083 (1982).
465 U.S. at 263–64, 104 S. Ct. at 1054. The Court went on to
recognize that the policy against piecemeal appeals “is at its
strongest in the field of criminal law.” Id. at 264, 104 S. Ct. at
1054 (quoting Hollywood Motor Car Co.). The Court observed
that the defendant has a right to a speedy trial; the government
has an interest in avoiding delays which make it more difficult
to meet its burden of proof; and the community has a strong
interest in swiftly bringing perpetrators of crime to justice. Id.
at 264–65, 104 S. Ct. at 1054.
The finality of a dismissal order takes on particular impor-
tance when the dismissal order serves as a gateway to the
review of other orders that would not, standing alone, be
subject to appeal. An indictment can be dismissed for the
classic reason that it fails (in the district court’s view) to state
a federal offense. See, e.g., United States v. Freed, 401 U.S. 601, 91
S. Ct. 1112 (1971). But a court may also order that the indict-
ment be dismissed (on its own motion or at the request of the
defendant), not for any perceived flaw in the pleading of the
crime, but as a sanction for some fault in the government’s
prosecution of the case. See, e.g., Zedner v. United States,
547 U.S. 489, 499, 126 S. Ct. 1976, 1984–85 (2006) (violation of
the Speedy Trial Act); United States v. Kerley, 787 F.2d 1147,
1148 (7th Cir. 1986) (per curiam) (failure to comply with

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No. 14-1124 11
discovery order). And, as was the case here, the government
itself may ask the district court to dismiss the indictment for
the express purpose of facilitating appellate review of an
otherwise unappealable, interlocutory order by terminating the
proceedings in the district court. See, e.g., United States v.
Deberry, 430 F.3d 1294, 1301–02 (10th Cir. 2005).
We have no doubt that inviting dismissal of the indictment
is a legitimate way for the government to establish jurisdiction
for an appeal pursuant to section 3731. The government did the
equivalent of that in United States v. Procter & Gamble Co.,
356 U.S. 677, 681, 78 S. Ct. 983, 985 (1958), a civil case, by
inviting the dismissal of its complaint as a means of obtaining
“expeditious review” of a discovery order pertaining to grand
jury transcripts that the government adamantly opposed. The
Court flatly rejected the defendants’ contention that because
the government had asked for the dismissal, it could not then
appeal the dismissal order. Id. at 680–81, 78 S. Ct. at 985–86.
The Court acknowledged that the government could have
chosen to follow the more conventional path of subjecting its
counsel to a contempt citation as a means of obtaining appel-
late review of the contested discovery order, but concluded
that soliciting the dismissal of its own complaint was an
equally effective means of securing an appealable order which
also had the advantage of avoiding an “unseemly conflict”
with the district court. Id. at 680, 78 S. Ct. at 985. Although
Procter & Gamble was a civil case, the same tactic has been used
in criminal litigation, e.g., Deberry, 430 F.3d at 1301–02, and we
have no reason to believe that the Supreme Court would
disapprove the practice. See Armstrong, 517 U.S. at 461 n.2, 116
S. Ct. at 1484 n.2 (without addressing finality or jurisdiction,

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12 No. 14-1124
Court notes that, in order to facilitate appeal of contested
discovery order, “it was the government itself that suggested
dismissal of the indictments so that an appeal might lie”)
(quoting United States v. Armstrong, 48 F.3d 1508, 1510) (9th Cir.
1995) (en banc)).
Our concern, rather, is that unless the dismissal solicited by
the government is genuinely final, invited dismissal will
essentially permit any number of interlocutory appeals that
section 3731 does not otherwise authorize. Cf. Central States,
Se. & Sw. Areas Health & Welfare Fund v. Lewis, 745 F.3d 283, 286
(7th Cir. 2014) (noting that adjudication of civil contempt for
failure to obey judicial order is appealable only if the underly-
ing order itself is appealable; “[o]therwise a litigant could
obtain appellate review of any interlocutory order, at will, by
defying it”) (emphasis in original) (citing Cleveland Hair Clinic,
Inc. v. Puig, 106 F.3d 165, 167 (7th Cir. 1997)). Flanagan recog-
nizes that “minimizing appellate-court interference with the
numerous decisions [district courts] must make in the pre-
judgment stages of litigation” is a key reason underlying the
final-judgment rule. 465 U.S. at 263–64, 104 S. Ct. at 1054.
Discovery orders are a prime example of pretrial decisions that
are entrusted to the district court’s ample discretion in the first
instance and that are ordinarily not subject to review, if at all,
until a final judgment in the case has been rendered. See
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107–09, 130 S. Ct.
599, 605–07 (2009) (discovery order is not a collateral order
appealable under Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 69 S. Ct. 1221 (1949)); Lewis, 745 F.3d at 286 (discovery
order is not appealable) (collecting cases); In re. Pet’n of
Boehringer Ingelheim Pharms., Inc., 745 F.3d 216, 219 (7th Cir.

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No. 14-1124 13
2014) (mandamus provides safety valve enabling interlocutory
review of discovery orders in exceptional cases).
The concern for genuine finality explains why both the
Supreme Court and this court, in decisions expressly address-
ing the appealability of an order dismissing an indictment for
reasons not having to do with the sufficiency of the indictment
itself, have emphasized that such an order is appealable when
the government lacks the ability to cure the problem that
triggered the dismissal. See United States v. Marion, 404 U.S.
307, 312, 92 S. Ct. 455, 459 (1971); Clay, 481 F.2d at 135–36. In
that scenario, even if the dismissal is without prejudice, the
litigation has been brought to a definitive close and therefore
the judgment is indeed final.
In Marion, the district court had dismissed an indictment
based on a delay of three years between the commission of the
crimes charged and the indictment for those offenses. The
version of section 3731 at issue in Marion permitted an appeal
directly to the Supreme Court in any case in which the trial
court had sustained “a motion in bar, when the defendant has
not yet been put in jeopardy.” 404 U.S. at 311–12, 92 S. Ct. at
459 (quoting 18 U.S.C. § 3731 (1964)). In considering its
jurisdiction to entertain the appeal, the Court ticked off the
various circumstances confirming that the defendants had not
yet been placed in jeopardy and that the order of dismissal was
appealable under the statute. Id. at 312, 92 S. Ct. at 459. Among
those was this observation relating to the finality of the
dismissal order: “The trial judge based his ruling on undue
delay prior to indictment, a matter that was beyond the power

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14 No. 14-1124
of the government to cure since re-indictment would not have
been permissible under such a ruling” Ibid.
Our decision in Clay in turn relied on Marion—and its
observation about the government’s inability to cure the reason
for the dismissal—as a justification for treating the dismissal of
an indictment without prejudice as an appealable order under
the current version of section 3731's first paragraph. The
district court in Clay had dismissed an indictment based on
what it perceived to have been unnecessary pre-indictment
delay, prompting a government appeal. Then-Judge Stevens,
writing for the court, began by noting that “[a]lthough the trial
judge may have intended to dismiss the indictment with
prejudice, such a result would have been unwarranted.” 481
F.2d at 135 (footnote omitted). He proceeded to articulate why
the dismissal was properly understood as being without
prejudice. Id. With that point resolved, Judge Stevens turned to
the question of finality, explaining why “[o]ur construction of
the order does not foreclose appealability.” Id. After highlight-
ing the passage from Marion that we have just quoted regard-
ing the government’s inability to rectify the defect that had
produced the dismissal, he elaborated on the reasons why the
dismissal in Clay likewise was, in practical terms, final and
therefore subject to appeal under section 3731:
In this case, if the district court’s ruling [on
preindictment delay] were correct, re-indictment
would not have been permissible. After the entry of
the order of dismissal, it was obviously too late to
shorten the preindictment delay that had already
occurred. Moreover the issue of necessity had been

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No. 14-1124 15
determined adversely to the government. Therefore,
even if the dismissal was technically without preju-
dice, as a practical matter, assuming the correctness
of that order, there was no possibility of another
indictment that would withstand an identical mo-
tion to dismiss.
Id. 136. Judge Stevens’ analysis in Clay leaves no doubt that the
government’s inability to address and correct the problem that
had led to dismissal of the indictment was crucial to our
finding that the dismissal was appealable, notwithstanding
that the dismissal was made without prejudice. See also United
States v. Correia, 531 F.2d 1095, 1097 (1st Cir. 1976) (expressing
doubt as to appellate jurisdiction in light of Marion and Clay,
noting “a lack of finality” when there is “no barrier to the
government’s reindicting defendant”; court went on to assume
without deciding that it had jurisdiction and address merits of
the appeal); cf. Anderson v. Catholic Bishop of Chicago, No.
13-1803, — F.3d —, 2014 2959129, at *3 (7th Cir. Jul. 2, 2014)
(dismissals without prejudice based on problems that readily
can be fixed typically are not final, appealable orders unless the
statute of limitations would preclude refiling).
Here, by contrast, the government could rectify the prob-
lem that culminated in the dismissal of the indictment. Al-
though the government’s decision to request dismissal of the
indictment has ended—for now—the proceedings in the
district court, the fact that the dismissal was without prejudice
leaves the door open to reindictment. Obviously, if we were to
reach the merits of the appeal and reverse both the dismissal
and the underlying discovery order that prompted it, that step
would be unnecessary. But even if we affirmed the discovery

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16 No. 14-1124
order as a reasonable exercise of the district court’s discretion,
and in turn sustained the dismissal, nothing other than the
statute of limitations would prevent the government from
reindicting the defendants and complying with the discovery
order. The government’s belated compliance with the man-
dated discovery would cure the problem that led to dismissal
in the first instance. And it is not unreasonable to suppose that
the government might choose to follow that path in the event
of affirmance. Discovery along the lines that the district court1
ordered in this case has been ordered in certain other pending
stash-house cases in the Northern District of Illinois, and the
defendants have represented without contradiction in the
briefs that the government is cooperating with discovery in
those cases.
In short, Clay’s rationale suggests in strong terms that the
dismissal of the indictment in this case is not final and appeal-
able. As we have said, in this case the government retains the
ability to reindict the defendants and to redress the reason for
dismissal; and by asking that the dismissal be entered without
prejudice, the government has preserved its ability to do so. By
contrast, had the dismissal been granted with prejudice, there
would be nothing that the government could do to reinstate
the prosecution assuming that the discovery order that it
resisted was an appropriate exercise of the district court’s
discretion; as in Clay, only if we deemed the order triggering
When asked at argument, the government confirmed that it would not1
necessarily dismiss the other stash-house cases pending in the Northern
District of Illinois in which selective-prosecution discovery has been
ordered if we were to affirm the district court’s discovery order in this case.

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No. 14-1124 17
dismissal (the discovery order) to be an abuse of discretion and
reversed would the government be free to resume the prosecu-
tion of the defendants. See, e.g., United States v. Jackson, 508 F.2d
1001, 1005–06 & n.3 (7th Cir. 1975), aff’g in part & rev’g in part
374 F. Supp. 168 (N.D. Ill. 1974) (reviewing dismissal of
indictment with prejudice based in part on government’s
refusal to comply with order requiring it to produce witness
list in advance of trial); United States v. Richter, 488 F.2d 170,
172–73 (9th Cir. 1973) (reviewing dismissal of indictment with
prejudice based on government’s refusal to comply with
discovery order). But, again, the district court dismissed the
indictment without prejudice at the government’s specific
request, leaving the door open to reindictment and compliance
with the discovery order at the government’s option.
True enough, as the government points out, there are a
number of cases which have entertained appeals from dis-
missal orders that were not final in the sense that we have been
discussing. These cases either do not address the subject of
jurisdiction at all, or they consider and find appellate jurisdic-
tion based on circumstances that can be reconciled with (or at
least distinguished from) our decision in Clay, even if their
reasoning may not be.
Armstrong, because it is a Supreme Court decision, is the
most prominent of these cases. As in this case, the underlying
merits issue in Armstrong had to do with the preliminary
showing that a defendant must make in order to justify
discovery from the government on the question of selective
prosecution. The district court in Armstrong had found that
discovery on the issue was warranted; as here, the government

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18 No. 14-1124
had indicated that it would not comply with the discovery
order, prompting the court to dismiss the case, evidently
without prejudice, at the government’s suggestion. The Ninth
Circuit reached the merits of the government’s appeal, as did
the Supreme Court; but neither court discussed the finality of
the district court’s order as it bore on appellate jurisdiction. See
517 U.S. at 461 n.2, 116 S. Ct. at 1484 n.2 (simply quoting the
Ninth Circuit’s recitation that “it was the government itself that
suggested dismissal of the indictments to the district court so
that an appeal might lie”). Indeed, the issue was not addressed
at all in the parties’ Supreme Court briefs. Overlooked jurisdic-
tional questions are by no means unheard of, and as the
defendants correctly point out, the Supreme Court itself has
repeatedly admonished that “the existence of unaddressed
jurisdictional defects has no precedential effect.” Lewis v. Casey,
518 U.S. 343, 352 n.2, 116 S. Ct. 2174, 2180 n.2 (1996) (collecting
cases). Thus, Armstrong supplies neither precedent nor guid-
ance on the subject of appellate jurisdiction. The decisions of
our sister circuits in United States v. Hastings, 126 F.3d 310, 313,
316–17 (4th Cir. 1997), United States v. Turner, 104 F.3d 1180,
1184 (9th Cir. 1997), United States v. Olvis, 97 F.3d 739, 743 (4th
Cir. 1996), United States v. Hamilton, 46 F.3d 271, 274 (3d Cir.
1995), and United States v. DiBernardo, 775 F.2d 1470, 1474 n.8
(11th Cir. 1985), which likewise involve dismissals without
prejudice but engage in no meaningful analysis of finality vis-
à-vis the jurisdictional issue, fall into the same category. The
same may be said of this court’s decision in Kerley, 787 F.2d at
1148, which summarily noted jurisdiction under section 3731
without citing or discussing Clay or the finality of the dismissal
order that was appealed.

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No. 14-1124 19
On the other hand, two of the cases relied on by the
government do broach the issue and find jurisdiction over
dismissals without prejudice. Their broad, unqualified lan-
guage regarding section 3731 and appellate review of dismiss-
als without prejudice is difficult to reconcile with Clay. But the
circumstances underlying the dismissals in those cases can,
nonetheless, be harmonized with Clay’s reasoning to some
extent.
In United States v. Lester, 992 F.2d 174 (8th Cir. 1993), the
district court dismissed the indictment without prejudice based
on a problem that could not be corrected by the government.
The defendant was charged in federal court with aggravated
sexual abuse after he had already been tried and convicted in
tribal court of rape and simple assault based on the same
underlying facts. The district court viewed the later, federal
charge as a violation of the government’s internal Petite policy
against charging an individual previously prosecuted by
another sovereign for the same offense conduct (see Petite v.
United States, 361 U.S. 529, 80 S. Ct. 450 (1960)) and dismissed
the indictment on that basis. The Eighth Circuit rejected the
defendant’s contention that because the dismissal was without
prejudice to reindictment, the dismissal order was not final and
appealable. The Court noted first and principally that section
3731 “gives the government the right to appeal the district
court’s dismissal of an indictment and does not distinguish
between dismissal with prejudice or without prejudice.” 992
F.2d at 176. That passage could be read to suggest that both
forms of dismissal are always subject to appeal by the govern-
ment. But what is unnoted by the Lester decision is that
although the dismissal without prejudice technically reserved

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20 No. 14-1124
to the government the ability to charge the defendant a second
time, reindictment could not solve the Petite problem which
had led to dismissal in the first instance. On the facts, then,
Lester is wholly consistent with our decision in Clay.
The Ninth Circuit’s decision in United States v. Woodruff,
50 F.3d 673 (9th Cir. 1995), is not so easily reconciled with Clay;
nonetheless, there are important distinctions between the two
cases. The district court in that case dismissed an indictment
charging the defendant with a violation of the Hobbs Act,
18 U.S.C. § 1951(a), finding that the government had not
alleged how, specifically, the defendant’s actions had affected
interstate commerce. Because the dismissal was without
prejudice, the defendant argued that the dismissal was non-
final and therefore not subject to appeal. The appellate court
was not persuaded. As in Lester, the Ninth Circuit relied on the
fact that section 3731 makes no distinction between dismissals
with or without prejudice. 50 F.3d at 675. The court also
emphasized the statute’s concluding language calling for a
liberal construction of its terms to effectuate its purposes
(which Lester likewise noted). Id. Woodruff’s reasoning too is
thus inconsistent with our own more cautious approach in
Clay. But two points are worth making about Woodruff. First,
the dismissal in Woodruff was based on the perceived insuffi-
ciency of the indictment. Often such defects are not correctable
as a practical matter because what was pleaded in the first
instance reflects what evidence the government has or what
facts it believes are sufficient to constitute an offense. Of
course, this was not true in Woodruff: the government could
have obtained a superseding indictment which expressly
articulated its theory as to the effect on interstate commerce. To

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No. 14-1124 21
that extent, the dismissal of the indictment would arguably not
qualify as final under Clay’s reasoning. Second, because the
dismissal at issue in Woodruff was the prototypical dismissal of
the indictment—that is, a dismissal having to do with the
adequacy of the indictment itself—the dismissal was not being
used as the gateway to appellate review of another order
which, standing alone, was interlocutory and unappealable.
There was therefore no need to consider the ramifications of
treating a dismissal without prejudice as invariably appealable,
regardless of whether the government has the power to
reindict and correct the underlying problem that led to the
dismissal.
In sum, none of these cases persuades us that we should
abandon our analysis in Clay. As we have said, we are particu-
larly 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 surrender-
ing 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.

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22 No. 14-1124
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 chal-
lenge 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.
The government has suggested that, notwithstanding its
ability to reindict the defendants, the burdens of doing so and
the need to convince a grand jury to reindict should serve as a
sufficient check on its ability to obtain appellate review by
dismissing an indictment without prejudice. We do not doubt
that there are some costs and risks associated with the path the
government has followed here (see United States v. Taylor,
487 U.S. 326, 342, 108 S. Ct. 2413, 2422 (1988) (noting that
“[d]ismissal without prejudice is not a toothless sanction”)),
although it seems safe to say that the likelihood of a grand jury
reindicting the defendants is high and the difficulty of present-
ing the case a second time to the grand jury is minimal, given
that the government’s own undercover agent was a witness to
most of the key events in the charged conspiracy. Ultimately,
however, our concern is less with the possibility that the
government might abuse its ability to obtain appellate review
by dismissing an indictment without prejudice than it is with
the fact that the statute confines interlocutory review to one

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No. 14-1124 23
category of orders that conspicuously does not include
discovery orders. As in Clay, when the government lacks the
practical ability to remedy the problem that led to the dismissal
of an indictment without prejudice, it is appropriate to treat the
dismissal as final and appealable. But we are unwilling to read
into section 3731 a right to invite dismissal without prejudice
and appeal any number of pretrial orders when the govern-
ment retains the ability to reindict the defendant and avoid
dismissal by belatedly complying with the order, even if it
loses the appeal.
Finally, we have not forgotten that section 3731 mandates
a liberal construction of its terms to effectuate the purposes of
the statute. Certainly that admonition counsels against stand-
ing on technicalities when it is clear that the appealed order is
of a type that Congress meant for the government to be able to
appeal. For example, although dismissal of an indictment
based on a defect in pleading may be the classic form of
dismissal and the one that comes first to mind, there is no
reason to think that Congress meant to preclude review of
dismissals ordered for other reasons. See Richter, supra, 488 F.2d
at 172–73. And because Congress has expressly authorized
appeals from orders suppressing or excluding evidence, an
order that threatens the suppression of evidence if the govern-
ment does not comply with a particular directive will be
appealable when the facts make sufficiently clear the govern-
ment’s intention not to comply, even if it has not formally
announced that intent. See United States v. Parks, 100 F.3d 1300,
1303–05 (7th Cir. 1996). But section 3731 speaks of effectuating
its purposes, and it is not a stated purpose of the statute to
permit review of interlocutory orders not otherwise identified

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24 No. 14-1124
as appealable by the statutory text. Section 3731 makes only
limited categories of interlocutory orders—including those
suppressing or excluding evidence—appealable. Other
interlocutory orders may be made reviewable when the court
dismisses the indictment under circumstances making clear
that the government lacks the ability to re-prosecute the
defendant without facing dismissal for the same reasons a
second time—when the dismissal is final, in other words. E.g.,
Clay, 481 F.2d at 136. But we are convinced that it is contrary to
the purposes of section 3731 to allow the government to use
dismissal without prejudice as a means of obtaining review of
an interlocutory order that the government could, in the event
of affirmance, choose to comply with later upon reindictment
of the defendant. Appealing such an order while retaining the
ability to re-indict and comply with the order would transform
a “narrow statutory grant” of appellate jurisdiction
(DiBernardo, supra, 775 F.2d at 1474 n.8) into one far broader
than section 3731's express terms. See United States v. Spilotro,
884 F.2d 1003, 1005–06 (7th Cir. 1989) (noting that section 3731's
liberal-construction provision does not permit appeals from
orders not identified in the statutory text).
III.
Because the dismissal of the indictment without prejudice
was not a final order under the circumstances of this case, we
lack jurisdiction over the government’s appeal. The appeal is
therefore DISMISSED.

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