Armstrong

ORDER

The opinion and dissent filed January 21, 1994, slip op. 599, and appearing at 14 F.3d 1387 (9th Cir.1994), are withdrawn. A new opinion and dissent are filed in their place, and the petitions for rehearing and suggestions for rehearing en banc are dismissed as moot without prejudice.

OPINION

A federal grand jury indicted defendants Christopher Armstrong, Aaron Hampton, Freddie Mack, Shelton Martin, and Robert Rozelle for conspiring to distribute cocaine base in violation of 21 U.S.C. § 846 (1988). Some of the defendants also were indicted on substantive cocaine base charges under 21 U.S.C. § 841 (a)(1) (1988), and using a firearm in connection with drug trafficking under 18 U.S.C. § 924 (c) (1988 & Supp. Ill 1991). The defendants moved for discovery on whether the government selected the defendants for prosecution because of their race, and the district court granted the motion. After denying the government’s motion to reconsider, the district court dismissed the indictments as a sanction for failure to comply with the discovery order, but stayed the execution of the dismissals pending appeal by the government.

We have jurisdiction to hear the government’s appeal from…

dissenting:

Rozelle and Armstrong, two black criminal defendants, present one of the most serious claims any person can raise — that the government has engaged in racial discrimination in selecting which offenders to prosecute. Such a claim deserves the most careful examination, for the ability to decide whether to bring charges gives prosecutors an awesome power to affect people’s lives. When prosecutors use this power in a racially discriminatory manner, courts must step in to protect the objects of that conduct. Moreover, when one of our experienced district judges finds credible evidence that federal prosecutors are engaging in such impermissible discrimination, we should be most hesitant to prevent her from gathering further information that will permit a full examination of the claim. Yet the majority here abruptly cuts off exploration of the explosive charge made by these *1439 two defendants, concluding, surprisingly, that Judge Marshall abused her discretion in ordering further discovery. I disagree strongly with my colleagues’ decision. The defendants have shown far more than a “colorable basis” for a belief that the practice of racially discriminatory prosecution…