United States v. Cortrayer Zone

*1108 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, however, to discuss the majority’s analysis of whether we have jurisdiction to review the district court’s denial of Zone’s discovery 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 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (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 swallow the rule, we have often expressed a reluctance, if not outright 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 appealable 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 variety 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 jurisdiction 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 requirements 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 materials for any purpose other than litigating habeas petition alleging ineffective assistance), cert. denied, 540 U.S. 1013 , 124 S.Ct. 536 , 157 L.Ed.2d 424 (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 ha-beas 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” exception [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 en *1109 tered, 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 appealability 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 injustice]” averted, by a prompt appellate court decision.

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 , 114 S.Ct. 1992 , 128 L.Ed.2d 842 (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 to review an order denying discovery whenever the discovery request “seek[s] information to establish a statutory or constitutional right not to be tried,” Ante at 1107 n. *, even though we “will [not] exercise jurisdiction over an interlocutory appeal of [the] denial of a motion to dismiss on double jeopardy 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 double 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 misapplies our precedents in holding that the discovery order at issue here is an appealable collateral order. Al-many held that an order denying discovery was not appealable only after concluding that the denial did not implicate the appellant’s constitutional “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 appeal-able under Cohen . However, I believe that this reading 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 discovery 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 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 , 116 S.Ct. 1712 , 135 L.Ed.2d 1 (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 generous 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.

*1110 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 Beaumont, 12 F.3d 933, 936 (9th Cir.1993), and we have occasionally 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(l) 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 raises new and important problems, or issues of law of first impression.

Bauman, 557 F.2d at 654-55 . If a consideration of these factors suggests mandamus would be unjustified, we will “decline 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 , 79 S.Ct. 676 , 3 L.Ed.2d 684 (1959). The majority concludes 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 1107, 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 independent 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 defendant 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’ to that defense as required by Rule 16.” Id., quoting United States v. Armstrong, 517 U.S. 456, 462, 470 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (1996). The Seventh Circuit has also concluded that a defendant seeking discovery 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 *1111 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 entitled 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 mandamus.” Lee, 12 F.3d at 936 . And, “[because [I] decline to treat the appeal as a petition, [I conclude that] we lack mandamus jurisdiction required to review the district eourt’s[discovery] order.” Id. at 938 . I would therefore dismiss the appeal from the order denying discovery for a lack of jurisdiction.