Armstrong

Opinion by Judge REINHARDT;. Concurrence by Judge WALLACE; Dissent by Judge RYMER.

We review this ease en banc to resolve a conflict in our circuit over the proper standard for determining whether an adequate showing has been made by a defendant seeking discovery in connection with a selective prosecution charge. The conflict arises from two cases filed within days of each other that adopted different approaches to this question. United States v. Redondo-Lemos, 955 F.2d 1296, 1302 (9th Cir.1992), held that the government could be ordered to provide discovery only upon a “prima facie showing that wrongful discrimination is probably taking place.” By contrast, United States v. Bourgeois, 964 F.2d 935, 939 (9th Cir.1992), stated that a prima facie showing was not necessary. Instead, Bourgeois adopted a “color-able basis” test. Id. We conclude that the colorable basis standard better accommodates the competing concerns implicated by discovery in selective prosecution cases.

We have jurisdiction to hear the government’s appeal only because the district judge ordered dismissal of the defendants’ indictments. 18 U.S.C. § 3731 . Under 18 U.S.C. § 3731 , the government is not permitted…

concurring:

This case requires us to set forth the appropriate test for determining whether a sufficient showing has been made to allow discovery in. a selective prosecution claim. I thought we could all agree that this test should be the one that our court developed in United States v. Bourgeois, 964 F.2d 935 (9th Cir.) (Bourgeois), cert. denied, — U.S. -, 113 S.Ct. 290 , 121 L.Ed.2d 215 (1992). There, we held that “to obtain discovery on a selective prosecution claim, a defendant must present specific facts, not mere allegations, which establish a colorable basis for the existence of both discriminatory application of a law and discriminatory intent on the part of government actors.” Id, at 939. ,What divides us is whether that standard should be rewritten and its application to this case. I believe that the result the majority reaches is correct, and to that extent I concur. I write separately, however, to discuss why I do so.

I

The majority correctly points out that the dismissal of the indictment as a sanction for noncomplianee with the discovery order creates the appealable order that gives us jurisdiction over this appeal. However, this does not mean that the dismissal…