686 F2d 748 United States v. H Sasway

686 F.2d 748

UNITED STATES of America, Plaintiff-Appellee,
Benjamin H. SASWAY, Defendant-Appellant.

No. 82-1497.

United States Court of Appeals,
Ninth Circuit.

Aug. 23, 1982.

Charles T. Bumer, San Diego, Cal., for defendant-appellant.

Robert D. Rose, Yesmin S. Annen, Asst. U. S. Attys., on the brief, Peter K. Nunez, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before CHOY, SKOPIL and SCHROEDER, Circuit Judges.


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This is an interlocutory criminal appeal from the district court's denial of appellant's motion to dismiss the indictment on selective prosecution grounds. We granted appellee's motion to dismiss for the following reasons.


In United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980), we held that a pretrial order denying a motion to dismiss on the ground of vindictive prosecution is appealable under 28 U.S.C. § 1291. In United States v. Wilson, 639 F.2d 500, 501-02 (9th Cir. 1981), we noted the lack of "substantive difference" between vindictive and selective prosecution claims, and extended the Griffin rule to orders denying motions alleging selective prosecution.


The Supreme Court recently held that a pretrial order denying a motion to dismiss because of vindictive prosecution is not appealable. United States v. Hollywood Motor Car Co., Inc., --- U.S. ----, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982) (per curiam). We therefore hold we are without jurisdiction to review appellant's claim of selective prosecution.