UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,	Nos. 01-4077

01-4078

01-4079
v.	(D. Utah)
ERNEST GLENN AMBORT, WILLIAM J. LEWIS, and JOHN W. BENSON,

Defendants - Appellants.

(D.C. No. 98-CR-197-B)

ORDER AND JUDGMENT*

Before MURPHY, ANDERSON, and O'BRIEN, Circuit Judges.

This matter is before us on interlocutory appeal for the second time in an attempt by Defendants-Appellants ("Defendants") to avoid trial on various charges alleging violation of federal tax laws.1 Relying principally on United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992), Defendants assert that they have a First Amendment "right not to be tried." Specifically, they contend that the government is waging a vindictive prosecution against them, motivated by a desire to chill their First Amendment rights.

We rejected the identical argument the first time this case was before us, and dismissed the appeal for lack of jurisdiction. United States v. Ambort, 193 F.3d 1169 (10th Cir. 1999) ("Ambort I"). We concluded that nothing in the record placed the case in the category of P.H.E.,2 and that the "collateral order doctrine" therefore did not apply.3 In reasserting their arguments now, Defendants contend that a newly discovered piece of information, to wit: a document entitled "Operation Phoenix Prospectus," App. to Jurisdictional Briefs of all Appellants at 44-63 ("Prospectus"), provides the evidence of pre-textual prosecution lacking in Ambort I.

The relevant background information for this case is set forth in Ambort I, 193 F.3d at 1170-71, and need not be repeated here. Our central task is to determine whether the Prospectus, together with inferences the Defendants contend should be drawn therefrom, places this case in a posture sufficiently different from Ambort I to support a conclusion that Defendants have proved the existence of a "right not to be tried" under P.H.E. Having carefully reviewed the document in question, Defendants' arguments relating thereto, and the posture of the case at the present time, we adhere to the conclusions reached in Ambort I, and continue to hold that this is not a proper case for interlocutory appeal. The differences between this case and P.H.E. remain obvious and significant, and Defendants have wholly failed to demonstrate the existence of a "right not to be tried."4 This case is now in a posture to proceed to trial where Defendants will be free to make their arguments on the merits, subject, of course, to the rules governing trials, including the Rules of Evidence. In the eventuality of a conviction, the Defendants will likewise be entitled to pursue their claims on appeal. Accordingly, Defendants' interlocutory appeal is DISMISSED.

Defendants alternatively petition for a writ of mandamus ordering the district court to allow further discovery relevant to Operation Phoenix. Mandamus is an extraordinary remedy, see Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980); Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir. 1994), one that we will not ordinarily use prior to trial to scrutinize or interfere with a district court's discretionary discovery decisions. See Paramount Film Dist. Corp. v. Civic Ctr. Theatre, Inc., 333 F.2d 358, 361 (10th Cir. 1694) ("A writ of mandamus to a trial court in matters relating to discovery should only issue under exceptional circumstances which amount to a clear abuse of discretion, an abdication of the judicial function, or the usurpation of judicial power.").5 On the record before us, we hold that the district court did not clearly abuse its discretion, and that Defendants are not entitled to the extraordinary relief sought. Accordingly, Defendants' petition for a writ of mandamus is DENIED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge