United States v. Zone

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-10361

Plaintiff-Appellee, D.C. No.

v.  CR-02-00475-PMP/

CORTRAYER ZONE, LRL

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

April 13, 2004—San Francisco, California

Filed April 18, 2005

Before: J. Clifford Wallace, Alex Kozinski and

Sidney R. Thomas, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Wallace

4329

4332 UNITED STATES v. ZONE

COUNSEL

Jason F. Carr and Alexander Modaber, Assistant Federal Pub-

lic Defenders, Las Vegas, Nevada, for the defendant-

appellant.

UNITED STATES v. ZONE 4333

Kathleen Bliss, Assistant United States Attorney, Organized

Crime Strike Force, Las Vegas, Nevada, for the plaintiff-

appellee.

OPINION

PER CURIAM:

Cortrayer Zone appeals from the district court’s order deny-

ing his motion to dismiss his federal criminal indictment. He

argues that the instant federal prosecution violates his rights

under the Double Jeopardy Clause because federal prosecu-

tors orchestrated a previous state plea agreement in order to

obtain a sworn admission for use in the federal proceedings.

Because Zone has produced no evidence that “the state in

bringing its prosecution was merely a tool of the federal

authorities,” United States v. Figueroa-Soto, 938 F.2d 1015,

1019 (9th Cir. 1991) (quoting Bartkus v. Illinois, 359 U.S.

121, 123 (1959)) (internal quotation marks omitted), we

affirm the district court’s denial of his motion to dismiss and

deny his request to remand for an evidentiary hearing and fur-

ther discovery.

I

In early 2002, law enforcement officials in the Las Vegas

area assembled a federally funded task force to address

escalating gun violence. According to United States Attorney

Daniel Bogden, the task force’s ultimate objective was to “at-

tack the violence of gun offenders” and “tak[e] them off the

streets immediately.” J.M. Kalil, New Approach: Prosecutors

Take Aim at Gun Crimes, LAS VEGAS REV.-J., Mar. 8, 2002,

at 1B, available at 2002 WL 6871941. Task force participants

included representatives of the United States Attorney for the

District of Nevada; Clark County deputy district attorneys;

Bureau of Alcohol, Tobacco and Firearms (ATF) agents; and

4334 UNITED STATES v. ZONE

local police department investigators. To promote cooperation

and information-sharing between state and federal officials,

the task force conducted weekly meetings to discuss and coor-

dinate participants’ activities. In each case where federal and

county prosecutors both claimed jurisdiction over a gun-

related offense, the task force would “make a strategic deci-

sion where to prosecute it.” Id.

Around the time state and federal officials were forming

the task force, Zone was involved in criminal activity that

potentially fell within its purview. On December 21, 2001,

Nevada police arrested Zone on charges associated with car-

rying a concealed firearm (a handgun). Zone retained counsel

and engaged in plea negotiations with the prosecutors. On

April 16, 2002, he pleaded guilty to a violation of Nev. Rev.

Stat. § 202.350 (carrying a concealed weapon), a gross misde-

meanor. The local court assessed a $500 fine and a $25

administrative fee. Thereafter, the handgun was released to

the ATF for further testing. The ATF determined that Zone’s

palm print was on the weapon.

Several months after his state court plea, the federal gov-

ernment indicted Zone for a violation of 18 U.S.C.

§ 922(g)(1), which prohibits felons from possessing “any fire-

arm or ammunition” in interstate commerce, a charge predi-

cated on the same conduct underlying his prior state

conviction. The federal charge carried a higher statutory pen-

alty: a fine, up to ten years imprisonment, or both. Id.

§ 924(a)(2). Suspecting that federal prosecutors might have

orchestrated the prior plea proceedings in order to secure an

admission of guilt for use in federal court, Zone asked the

United States Attorney to produce records from the task

force’s weekly meetings. Zone hoped that these records

would establish federal prosecutors’ collusion with, or domi-

nation of, their county counterparts in the task force. The fed-

eral prosecutors rejected Zone’s discovery request, and the

district court denied his subsequent motion to compel infor-

mation and documents.

UNITED STATES v. ZONE 4335

Zone then filed a motion to dismiss the indictment. The

motion restated Zone’s suspicion that his state conviction was

a sham or a cover for the federal prosecution and asserted that

the federal proceedings violated Zone’s rights under the Dou-

ble Jeopardy Clause. The district court denied the motion to

dismiss and stayed Zone’s federal proceedings pending the

outcome of this interlocutory appeal.

II

[1] We review de novo the district court’s denial of Zone’s

motion to dismiss on double jeopardy grounds. United States

v. Price, 314 F.3d 417, 420 (9th Cir. 2002). We will not exer-

cise jurisdiction over Zone’s interlocutory appeal from the

denial of his motion to dismiss unless his double jeopardy

claim is “colorable.” Id. “A double jeopardy claim is color-

able if it has ‘some possible validity.’ ” Id. (quoting United

States v. Sarkisian, 197 F.3d 966, 983 (9th Cir. 1999)). Few

double jeopardy claims based on successive state and federal

prosecutions are “colorable” under this definition because, as

a general rule, “an act denounced as a crime by both national

and state sovereignties is an offense against the peace and dig-

nity of both and may be punished by each” without offending

the Double Jeopardy Clause. United States v. Lanza, 260 U.S.

377, 382 (1922); see also Heath v. Alabama, 474 U.S. 82, 89

(1985) (“[T]he [Supreme] Court has uniformly held that the

States are separate sovereigns with respect to the Federal

Government because each State’s power to prosecute is

derived from its own ‘inherent sovereignty,’ not from the Fed-

eral Government.” (quoting United States v. Wheeler, 435

U.S. 313, 320 n.14 (1978))).

[2] Lanza’s separate-sovereigns rule has one important

exception, however. In Bartkus, the Supreme Court suggested

that the Double Jeopardy Clause might proscribe consecutive

state and federal prosecutions in cases where federal authori-

ties commandeer a state’s prosecutorial machinery, convert-

ing the state prosecution into “a sham and a cover for a

4336 UNITED STATES v. ZONE

federal prosecution, and thereby in essential fact another fed-

eral prosecution.” 359 U.S. at 123-24. Although the Court

explored this narrow exception in dicta, we have adopted the

“Bartkus exception” as the controlling law of this circuit. See,

e.g., Figueroa-Soto, 938 F.2d at 1019; United States v. Bern-

hardt, 831 F.2d 181, 182-83 (9th Cir. 1987).

[3] Invoking Bartkus, Zone speculates that federal officials

might have cajoled or prodded state prosecutors into conclud-

ing a plea bargain with Zone in order to facilitate a conviction

in his subsequent federal trial. Even if Zone could prove this

hypothesis true through testimonial or documentary evidence,

he would not qualify for relief under the Bartkus exception.

The Double Jeopardy Clause does not prevent federal prose-

cutors from encouraging their state counterparts to pursue

plea bargains, nor does it prevent them from taking advantage

of the evidentiary record developed in connection with a

defendant’s previous state conviction. See, e.g., United States

v. Koon, 34 F.3d 1416, 1439 (9th Cir. 1994) (“[T]he fact that

evidence developed from the state trial was used in the federal

trial does not create a double jeopardy problem.”), rev’d in

part on other grounds, 518 U.S. 81 (1996). “As Bartkus

makes plain, there may be very close coordination in the pros-

ecutions, in the employment of agents of one sovereign to

help the other sovereign in its prosecution, and in the timing

of the court proceedings so that the maximum assistance is

mutually rendered by the sovereigns. . . . No constitutional

barrier exists to this norm of cooperative effort.” Figueroa-

Soto, 938 F.2d at 1020. Instead, the Double Jeopardy Clause

limits consecutive state and federal criminal proceedings only

when federal prosecutors “so throughly dominate[ ] or manip-

ulate[ ] the [state’s] prosecutorial machinery . . . that the latter

retains little or no volition in its own proceedings.” United

States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996); see also

Bernhardt, 831 F.2d at 183 (holding “that sufficient indepen-

dent federal involvement would save” state-dominated prose-

cutions in federal court from the Bartkus exception); United

States v. Liddy, 542 F.2d 76, 79 (D.C. Cir. 1976) (“The bur-

UNITED STATES v. ZONE 4337

den . . . of establishing that federal officials are controlling or

manipulating the state processes is substantial; the [defendant]

must demonstrate that the state officials had little or no inde-

pendent volition in the state proceedings.”). Thus, to the

extent Zone’s motion to dismiss alleges only collaboration

between state and federal authorities, it fails to state a color-

able double jeopardy claim.

[4] On the other hand, Zone’s contention that his “State

prosecution was a sham or a cover for the subsequent Federal

prosecution” could be interpreted to mean that federal authori-

ties so thoroughly dominated the task force that state prosecu-

tors exercised no independent volition in the decision to

negotiate a state plea bargain prior to bringing federal

charges. Although we have never considered a defendant’s

allegation that the first of two prosecutions was a “sham” or

“cover,” there is no logical reason why the Bartkus exception

would not apply under such circumstances. Therefore, reading

Zone’s allegations in the light most favorable to his claim, we

hold that his double jeopardy claim is sufficiently “colorable”

to furnish jurisdiction over his interlocutory appeal.

III

We must decide next whether Zone, as the party moving

for dismissal, has tendered sufficient evidence to establish a

prima facie double jeopardy claim. See Guzman, 85 F.3d at

827 (holding that a defendant “must produce some evidence

tending to prove that . . . one sovereign was a pawn of the

other, with the result that the notion of two supposedly inde-

pendent prosecutions is merely a sham”); United States v.

McKinney, 53 F.3d 664, 676 (5th Cir. 1995) (“[T]he defen-

dant has the burden of producing evidence to show a prima

facie double jeopardy claim.”).

[5] We affirm the district court’s determination that Zone

has not satisfied this evidentiary burden. Zone’s only evi-

dence consists of newspaper articles appended to his motion

4338 UNITED STATES v. ZONE

to dismiss that report the task force’s formation and describe

its mission. These articles contain general information that at

most suggests that federal and state prosecutors collaborate as

equal, independent partners in the task force’s weekly strategy

sessions. They do not establish that federal prosecutors domi-

nated or manipulated their state counterparts in Zone’s spe-

cific instance, transforming his state plea agreement into a de

facto federal conviction. Since Zone’s double jeopardy claim

rests on nothing more than speculation and conjecture, we

conclude that the district court did not commit error when it

denied his motion to dismiss.

IV

[6] Zone petitions this court to remand his case to the dis-

trict court with instructions to conduct an evidentiary hearing

on his Bartkus claim. In past decisions, we have held that an

evidentiary hearing may be necessary when the factual record

does not support a district court’s order granting a defendant’s

motion to dismiss on double jeopardy grounds. See, e.g.,

Bernhardt, 831 F.2d at 183 (remanding a Bartkus claim to the

district court with instructions to “consider whether [an evi-

dentiary] hearing would aid in the factfinding process” after

“[b]oth sides . . . requested [a] hearing to address the extent

of federal involvement in” successive state and federal prose-

cutions). In this case, however, we deny Zone’s request for

remand and an evidentiary hearing because he has not pre-

sented any evidence of undue coercion or collusion by federal

authorities, see Koon, 34 F.3d at 1439 (holding that at the

very least a defendant “must make more than ‘conclusory

allegations’ of collusion” to qualify for an evidentiary hearing

(citation omitted)), and the government actively opposed his

request for an evidentiary hearing on the double jeopardy

claim in the district court.

V

[7] Zone also asks that we reverse the district court’s order

denying discovery into the task force’s confidential decision-

UNITED STATES v. ZONE 4339

making process. Discovery decisions are generally not final

judgments that may be appealed under 28 U.S.C. § 1291. See

Catlin v. United States, 324 U.S. 229, 233 (1945) (“A ‘final

decision’ generally is one which ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment.”); see also Midland Asphalt Corp. v. United States,

489 U.S. 794, 798 (1989). However, the Supreme Court has

recognized an exception to the normal application of section

1291’s finality requirement, known as the collateral order

doctrine, that allows us to hear interlocutory appeals of orders

that (1) “conclusively determine [a] disputed question,” (2)

“resolve an important issue completely separate from the mer-

its of the action,” and (3) are “effectively unreviewable on

appeal from a final judgment.” Coopers & Lybrand v. Live-

say, 437 U.S. 463, 468 (1978); see also Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). The district

court conclusively determined that Zone is not entitled to dis-

covery, and its decision is collateral to the merits of Zone’s

criminal prosecution. The only question is whether the deci-

sion implicates a right that would be lost if review awaited

final judgment.

[8] The collateral order doctrine is frequently applied where

a district court denies a motion to dismiss on the basis of “an

explicit statutory or constitutional guarantee that trial will not

occur,” Midland Asphalt, 489 U.S. at 801, because an appeal

after trial would be too late to protect the right not to be tried.

For instance, we have jurisdiction to review the district

court’s denial of Zone’s motion to dismiss on double jeopardy

grounds. See pages 4335-37 supra; see also Helstoski v.

Meanor, 442 U.S. 500, 506-08 (1979) (allowing interlocutory

appeal of motions to dismiss under the Speech or Debate

Clause).

[9] Although we are dealing here with Zone’s discovery

request rather than his motion to dismiss, the two are clearly

related: The purpose of the discovery request is to provide a

basis for the motion to dismiss. Zone seeks information that,

4340 UNITED STATES v. ZONE

he hopes, will establish his right, by virtue of the Double

Jeopardy Clause, not to be tried. If we decline to consider

Zone’s discovery request until after trial and then reverse the

district court’s decision to deny discovery, whatever informa-

tion Zone obtains would come too late; even if the discovered

material established Zone’s right not to be tried, that right

would have been lost.

Our caselaw thus indicates that we should look to the right

a defendant seeks to establish through discovery in order to

decide whether we may consider an interlocutory appeal of

the decision denying that discovery. In United States v.

Almany, 872 F.2d 924 (9th Cir. 1989), the defendant had

requested grand jury transcripts that could have established

that the government had not “inform[ed] the grand jury of cer-

tain Lanham Act defenses.” Id. at 925. But, we noted, only a

“defect so fundamental that it causes the grand jury no longer

to be a grand jury . . . gives rise to the constitutional right not

to be tried.” Id. at 926 (quoting Midland Asphalt, 489 U.S. at

802) (internal quotation marks omitted). Even if the tran-

scripts proved exactly what the defendant wished to show, he

would not thereby have established a constitutional right not

to be tried, see id., so he was not entitled to interlocutory

review of the district court’s decision to deny his request.

[10] Zone’s discovery request differs fundamentally from

the one in Almany because Zone seeks to establish his right

not to be tried. Since this right would be lost if trial proceeds,

and since the district court’s denial of Zone’s discovery

request meets the other two requirements of the collateral

order doctrine, we have jurisdiction to consider Zone’s inter-

locutory appeal.*

*Contrary to Judge Wallace’s suggestion, see Concur. op. at 4343, we

are mindful of the Supreme Court’s guidance that “the issue of appeala-

bility under § 1291 is to be determined for the entire category to which a

claim belongs.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.

863, 868 (1994). We simply hold that interlocutory appeals are appropriate

for a particular category of discovery requests: those discovery requests

that seek information to establish a statutory or constitutional right not to

be tried.

UNITED STATES v. ZONE 4341

[11] However, “[t]o obtain discovery under Rule 16, a

defendant must make a prima facie showing of materiality.”

United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990).

The district court did not abuse its discretion in denying

Zone’s discovery request because he did not make a prelimi-

nary showing of “inter-sovereign collusion,” as opposed to

mere “inter-sovereign cooperation.” See pages 4335-37 supra

(noting that defendant “has not presented any evidence of

undue coercion or collusion by federal authorities”).

VI

[12] In an era when close collaboration between state and

federal prosecutors has become “the conventional practice . . .

throughout the country,” Bartkus, 359 U.S. at 123, we reaf-

firm the settled rule that “[n]o constitutional barrier exists to

this norm of cooperative effort.” Figueroa-Soto, 938 F.2d at

1020. Defendants raising double jeopardy challenges to suc-

cessive state and federal prosecutions bear “the burden of pro-

ducing evidence to show a prima facie double jeopardy

claim.” McKinney, 53 F.3d at 676. As Zone has not satisfied

this preliminary evidentiary burden, we affirm the district

court’s order denying his motion to dismiss and deny his

request that we remand for an evidentiary hearing and further

discovery.

AFFIRMED.

WALLACE, Senior Circuit Judge, concurring:

I agree that we have jurisdiction to review the district

court’s order denying Zone’s motion to dismiss on double

jeopardy grounds; that the district court did not err in denying

that motion; and that Zone is not entitled to an evidentiary

hearing on his double jeopardy claim. I write separately, how-

ever, to discuss the majority’s analysis of whether we have

4342 UNITED STATES v. ZONE

jurisdiction to review the district court’s denial of Zone’s dis-

covery request. I would dismiss the appeal from the district

court’s order denying discovery for a lack of jurisdiction. I

therefore concur in all but Part V of the opinion and concur

in the result.

Pursuant to 28 U.S.C. § 1291, we “have jurisdiction of

appeals from all final decisions of the district courts.” In

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949),

the Supreme Court established the “collateral order doctrine,”

which provides an exception to section 1291’s requirement of

finality. In order to ensure that the exception does not swal-

low the rule, we have often expressed a reluctance, if not out-

right unwillingness, to allow interlocutory review of

discovery orders under the collateral order doctrine. See, e.g.,

Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486,

1490(9th Cir. 1989) (“Discovery orders are not final appeal-

able orders under 28 U.S.C. § 1291, and courts have refused

interlocutory review of such orders under the collateral order

doctrine”); In re Nat’l Mortgage Equity Corp. Mortgage Pool

Certificates Litig., 821 F.2d 1422, 1425 (9th Cir. 1987)

(“Although the collateral order rule has been applied in a vari-

ety of circumstances, courts have generally denied review of

pretrial discovery orders”). Indeed, one of the very cases that

the majority cites in support of its assertion that we have juris-

diction to review the order denying discovery, United States

v. Almany, 872 F.2d 924 (9th Cir. 1989), states that “[a]n

order denying a motion for discovery . . . is not an appealable

collateral order.” Id. at 926.

However, other cases have chipped away at section 1291’s

limitation on our jurisdiction by deciding, on a case-by-case

basis, that a particular discovery order satisfies the require-

ments of the collateral order doctrine. See, e.g., Bittaker v.

Woodford, 331 F.3d 715, 717-18 (9th Cir. 2003) (en banc)

(protective order precluding state from using privileged mate-

rials for any purpose other than litigating habeas petition

alleging ineffective assistance), cert. denied, 540 U.S. 1013

UNITED STATES v. ZONE 4343

(2003); Osband v. Woodford, 290 F.3d 1036, 1039-41 (9th

Cir. 2002) (similar); Wharton v. Calderon, 127 F.3d 1201,

1203-04 (9th Cir. 1997) (protective order precluding warden

from interviewing habeas petitioner’s former counsel except

at deposition in presence of current counsel); United States v.

Columbia Broad. Sys., Inc., 666 F.2d 364, 369-71 (9th Cir.

1982) (stating that “most discovery orders do not meet the

requirements of the collateral order doctrine,” but holding that

an order denying nonparty witnesses’ post-production motion

for reimbursement of discovery costs satisfied Cohen).

In my view, we have gone astray in this latter group of

cases. To say, as we sometimes have, that “most” discovery

orders do not satisfy Cohen but nonetheless conclude that the

particular order under review does, is to pay lip service to the

fundamental limitations on our jurisdiction. As the Supreme

Court has explained:

[W]e have . . . repeatedly stressed that the “narrow” excep-

tion [provided by the collateral order doctrine] should stay

that way and never be allowed to swallow the general rule,

that a party is entitled to a single appeal, to be deferred until

final judgment has been entered, in which claims of district

court error at any stage of the litigation may be ventilated. We

have accordingly described the conditions for collateral order

appeal as stringent, and have warned that the issue of appeala-

bility under § 1291 is to be determined for the entire category

to which a claim belongs, without regard to the chance that

the litigation at hand might be speeded, or a “particular injus-

tic[e]” averted, by a prompt appellate court decision.

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,

868 (1994) (citations omitted). Thus, rather than continue to

apply a case-by-case approach, I would hold, as the better-

reasoned of our decisions suggest, that “the entire category”

of discovery orders do not qualify as collateral orders. Such

a rule would obviate the majority position which leads to an

unfortunate anomaly. The majority says we have jurisdiction

4344 UNITED STATES v. ZONE

to review an order denying discovery whenever the discovery

request “seek[s] information to establish a statutory or consti-

tutional right not to be tried,” Ante at 4340 n.*, even though

we “will [not] exercise jurisdiction over an interlocutory

appeal of [the] denial of a motion to dismiss on double jeop-

ardy grounds [unless] the double jeopardy claim is ‘color-

able.’ ” United States v. Price, 314 F.3d 417, 420 (9th Cir.

2002). Thus, a defendant who fails to allege a colorable dou-

ble jeopardy claim is precluded from obtaining interlocutory

review of an order denying his motion to dismiss, but has

immediate access to the court of appeals to review an order

denying his discovery request.

This is not to suggest that the majority necessarily misap-

plies our precedents in holding that the discovery order at

issue here is an appealable collateral order. Almany held that

an order denying discovery was not appealable only after con-

cluding that the denial did not implicate the appellant’s con-

stitutional “right not to be tried.” 872 F.2d at 926. Almany

could therefore plausibly be read to suggest that a denial of

discovery that does implicate the right not to be tried would

be appealable under Cohen. However, I believe that this read-

ing of Almany, like the reasoning of some of the other cases

cited above, is not faithful to Congress’s clear intent and the

Supreme Court’s teachings.

A holding that discovery orders do not satisfy the collateral

order doctrine would not preclude all review of such orders

before final judgment. We have held that “review of a discov-

ery order through the exceptional remedy of mandamus may

be appropriate in the proper circumstances.” Admiral Ins. Co.,

881 F.2d at 1490. See also City of Las Vegas v. Foley, 747

F.2d 1294, 1297 (9th Cir. 1984) (“Mandamus review has been

held to be appropriate for discovery matters which otherwise

would be reviewable only on direct appeal after resolution on

the merits”). The distinction between review by mandamus

and review by appeal is important because “[t]he method of

review will determine the standard of review. Mandamus is

UNITED STATES v. ZONE 4345

available only when there has been a usurpation of judicial

power or a clear abuse of discretion below.” Garamendi v.

Allstate Ins. Co., 47 F.3d 350, 352 n.6 (9th Cir. 1995), aff’d

sub nom. Quackenbush v. Allstate Ins. Co., 517 U.S. 706

(1996). However, on appeal, “[a] district court’s discovery

rulings are reviewed for an abuse of discretion.” United States

v. Rivera-Relle, 333 F.3d 914, 918 (9th Cir. 2003). Because

the standard of review employed in mandamus is more gener-

ous to district courts, a holding that all discovery orders may

be reviewed only by mandamus would help ensure that trials

progress smoothly towards final judgment without undue

appellate interference, while still maintaining an avenue of

review for the most egregious district court errors.

Moreover, although Zone did not seek a writ of mandamus,

“[w]e have the discretion to treat an appeal as a petition for

writ of mandamus when appropriate,” Lee v. City of Beau-

mont, 12 F.3d 933, 936 (9th Cir. 1993), and we have occa-

sionally exercised that discretion in “appeals that fail to meet

the strict requirements of the ‘collateral order’ doctrine.”

Executive Software N. Am., Inc. v. United States Dist. Court,

24 F.3d 1545, 1550 (9th Cir. 1994). Indeed, we may even

construe an appeal as a petition for writ of mandamus sua

sponte. See Reynaga v. Cammisa, 971 F.2d 414, 417, 418 (9th

Cir. 1992); In re Allen, 896 F.2d 416, 419 (9th Cir. 1990) (per

curiam), citing Unified Sewerage Agency v. Jelco, Inc., 646

F.2d 1339, 1343 (9th Cir. 1981). “Whether we will do so in

a particular case depends upon whether the order qualifies for

extraordinary relief under the guidelines set forth in Bauman

v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977).”

Unified Sewerage Agency, 646 F.2d at 1343. Those guidelines

are:X(1) The party seeking the writ has no other adequate

means, such as a direct appeal, to attain the relief he or she

desires. (2) The petitioner will be damaged or prejudiced in

a way not correctable on appeal. . . . (3) The district court’s

order is clearly erroneous as a matter of law. (4) The district

court’s order is an oft-repeated error, or manifests a persistent

disregard of the federal rules. (5) The district court’s order

4346 UNITED STATES v. ZONE

raises new and important problems, or issues of law of first

impression.

Bauman, 557 F.2d at 654-55. If a consideration of these fac-

tors suggests mandamus would be unjustified, we will “de-

cline to construe the appeal as a writ of mandamus.” In re

Nat’l Mortgage Equity Corp. Mortgage Pool Certificates

Litig., 821 F.2d at 1425.

Consequently, rather than creating yet another exception to

section 1291 for discovery orders that implicate a “right not

to be tried,” I would ask whether Zone would be entitled to

a writ of mandamus directing the district court to grant Zone’s

discovery request. Among the five Bauman considerations, “it

is clear that the third factor, the existence of clear error as a

matter of law, is dispositive. Accordingly, [I] first examine

whether the district court clearly erred.” Executive Software

N. Am., Inc., 24 F.3d at 1551 (citations omitted).

We have not previously decided what showing a defendant

must make to obtain discovery in aid of a double jeopardy

claim based on the “sham” prosecution exception established

in Bartkus v. Illinois, 359 U.S. 121 (1959). The majority con-

cludes that a defendant need only make the showing required

by Federal Rule of Criminal Procedure 16, i.e., a “prima facie

showing of materiality,” see Ante at 4341, quoting United

States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990), but the

majority’s conclusion is doubtful. See United States v.

Rashed, 234 F.3d 1280, 1285 (D.C. Cir. 2000) (“Because [a

sham prosecution] defense . . . relates not to refutation of the

government’s case in chief but to establishment of an inde-

pendent constitutional bar to the prosecution, Rule

16(a)(1)(C) of the Fed. R. Crim. P. is inapplicable”). In

Rashed, the D.C. Circuit concluded that a defendant seeking

discovery in aid of a “sham” prosecution claim, like a defen-

dant seeking information to prove a selective-prosecution

claim, must “adduce ‘some evidence tending to show the

essential elements of’ the defense, not just evidence ‘material’

UNITED STATES v. ZONE 4347

to that defense as required by Rule 16.” Id., quoting United

States v. Armstrong, 517 U.S. 456, 462, 470 (1996). The Sev-

enth Circuit has also concluded that a defendant seeking dis-

covery on a sham prosecution claim must make a showing

similar to that required in the selective-prosecution context.

See United States v. Heidecke, 900 F.2d 1155, 1159, 1160

(7th Cir. 1990) (requiring defendant to make a “colorable

showing” of sham prosecution).

I need not definitively decide what showing Zone had to

make to obtain discovery, however. Zone would not be enti-

tled to mandamus unless he could demonstrate “clear error as

a matter of law,” and the district court did not commit such

error even if the relatively lenient Rule 16 standard applied to

Zone’s discovery request. “Because this case clearly fails the

test for issuing a writ of mandamus set forth in [Bauman], [I

would] decline to treat the appeal as an application for manda-

mus.” Lee, 12 F.3d at 936. And, “[b]ecause [I] decline to treat

the appeal as a petition, [I conclude that] we lack mandamus

jurisdiction required to review the district court’s [discovery]

order.” Id. at 938. I would therefore dismiss the appeal from

the order denying discovery for a lack of jurisdiction.