UNITED STATES of America, Plaintiff-Appellant, v. Maximiliano GOMEZ-LOPEZ, Defendant-Appellee

Circuit-wide discovery of the criminal history and prior deportations of defendants prosecuted for illegal reentry by a deported alien in violation of 8 U.S.C. § 1326 was ordered by the district court before our decision in United States v. Armstrong, 48 F.3d 1508, 1512 (9th Cir.1995) (en banc). The government declined to comply, and Maximi-liano Gomez-Lopez’s indictment was dismissed. We have jurisdiction, 18 U.S.C. § 3731 , and we reverse dismissal of the indictment because the scope of the discovery ordered bears no relationship to the decision to prosecute Gomez-Lopez.

I

Gomez-Lopez was found in the United States after being deported three times and being convicted three times for committing felonies (selling marijuana, possessing heroin, and first degree burglary). Following indictment for illegal reentry by a deported alien in violation of 8 U.S.C. § 1326 (a), (b)(1), and (b)(2), Gomez-Lopez sought discovery on his claim of selective prosecution.

His threshold showing included national data on defendants presented by the INS for prosecution under § 1326, along with data showing a predominance of Latino surnames among those prosecuted within the Central District. The…