The Ninth Circuit held that the government could appeal a discovery order by inviting the district court to dismiss the indictment. But why didn’t that invitation waive appellate review?
December 23, 2024
In United States v. Wilson, the Ninth Circuit permitted the government to appeal from a discovery order in a criminal case after the government asked the district court to dismiss the indictment to facilitate an appeal. Although the order was interlocutory, the Ninth Circuit could review it under 18 U.S.C. § 3731. That’s because § 3731 doesn’t require finality. And the district court’s involvement in the dismissal assuaged any concerns about manufacturing an appeal.
I think the court was right about appellate jurisdiction. After all, the district court had dismissed the indictment, which is an appealable decision under § 3731. Notably, this was fairly different from how courts treat similar efforts to manufacture an appeal in the civil context.
But I still think the appeal was improper. In my view, the government waived any challenge to the judgment by consenting to a dismissal before the case had been effectively resolved.
The Discovery Order in Wilson
Wilson stemmed from the prosecution of defendants who allegedly set fire to a police car during a protest. The defendants sought discovery from the government in support of a selective-prosecution argument (the defendants thought they were singled out for prosecution due to their political views).
The district court ordered the requested discovery. But the government refused to produce it. The government instead told the district court that it intended to seek appellate review. To facilitate that appeal, the government asked the district court to dismiss the indictments.
The district court obliged. It noted that it was doing so rather than holding the government in contempt (which would have permitted immediate review of the discovery order). The government then appealed, and the defendants argued that the court lacked appellate jurisdiction.
Appellate Jurisdiction Under § 3731
Government appeals in criminal cases fall under 18 U.S.C. § 3731. That statute gives the courts of appeals jurisdiction to review a variety of decisions in criminal cases. Among them are orders dismissing an indictment.
The government’s appeal in Wilson thus seemed to neatly fall within that provision.
The defendants nevertheless argued that the government could not appeal because the dismissal was not “final.” After all, the dismissal was without prejudice. And the government was using the dismissal to secure immediate review of what would otherwise be a non-appealable interlocutory discovery order.
The Ninth Circuit rejected this argument. It agreed with the Seventh Circuit that § 3731 has nothing to do with finality. The word doesn’t appear in the statute. And several of the decisions appealable under § 3731 (e.g., orders suppressing evidence) are not final. Indeed, “all of § 3731 is an exception to the final-decision rule.”
The Ninth Circuit also saw no issue with manufacturing an interlocutory appeal, as the invited dismissal required district court involvement.
Manufactured Finality in Criminal Cases
The government’s appeal in Wilson was an example of manufacturing an appeal. The district court had issued a decision that did not formally end the case, and the government secured an appeal through something other than the adversarial litigation of the charges. But according to the Ninth Circuit, it was an acceptable act of manufacturing an appeal.
This is a fairly stark contrast to the reception that manufactured appeals get in the civil context. Courts frequently (though not always) reject efforts to manufacture a civil appeal. Courts are leery of both piecemeal review and litigants’ attempts to circumvent the established avenues for interlocutory review. The government does not appear to receive similar hostility in criminal cases.
What About Waiver?
I’ve argued that many instances of manufactured appeals do not create appellate-jurisdiction issues. This is not to say that litigants should be able to secure appellate review though manufactured appeals. They shouldn’t. But the problem isn’t appellate jurisdiction. (Nor is it appellate standing, as some have suggested.) The problem is waiver.
When the government wanted to appeal in Wilson, it had not lost the case. It had instead suffered an adverse interlocutory decision—one that made further litigation less attractive, but not one that effectively resolved the case. The government nevertheless asked the district court to dismiss the action.
In other words, the government consented to the judgment. And consent to the judgment when you have not effectively lost should waive appellate review. This rule of federal practice goes back to at least 1881’s United States v. Babbitt (and probably earlier). Given this waiver, the appellate court can do nothing but affirm.
For more on this waiver point, see my article Voluntary Dismissals, Jurisdiction & Waiving Appellate Review.
United States v. Wilson, 2024 WL 5163081 (9th Cir. Dec. 19, 2024), available at the Ninth Circuit and Westlaw