IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40979
Summary Calender
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
FRANCIS MICHAEL CARDEN, STEPHEN AUSTIN NEWBERRY,
KELLY BETH McFATTER, ALFRED FLOYD SIMMONS, III,
RODNEY A. VICK, JORDAN ROSS NOVELLI,
STEPHEN RAY LAUSEN, and DEBBIE LAUSEN,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(G-95-CR-2)
_________________________
May 29, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
The government brings this interlocutory appeal of an order
excluding most of its evidence. Concluding that the district court
abused its discretion, we reverse and remand.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I.
The defendants are charged with conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. § 846;
defendant Carden is also charged with money laundering in violation
of 18 U.S.C. § 1956. The indictments seek criminal forfeiture of
the defendants' property obtained from the proceeds of their
alleged drug dealing.
In anticipation of trial, Novelli filed five discovery
motions, requesting that the government be compelled to disclose
all evidence it intended to offer under FED. R. EVID. 404(b); to
produce all agreements between the government and its witnesses; to
produce all Jencks Act materials; to disclose all evidence the
government intended to offer under FED. R. EVID. 405; and to
disclose all statements of alleged indicted and unindicted co-
conspirators. The prosecutor then in charge of the case agreed to
the requests and, on May 30, 1996, pursuant to FED. R. CRIM. P. 16,
the magistrate judge entered a discovery order requiring the
government to turn over the aforementioned information at least one
week in advance of trial, which was then set to begin April 4,
1997.1 Before that date, however, the court granted a defense
motion for a continuance and set a new trial date of Monday, August
1
The discovery order stated in relevant part:
It is further ORDERED that, subject to reconsideration, the
government's production as to [Novelli's motions] shall be made, as
the government has agreed, one week before commencement of trial.
2
18, 1997; a status conference was set for Friday, August 15, 1997.
The government replaced its attorney in charge; the new
attorney was not aware that he needed to comply with the discovery
order.2 Instead, he instituted other discovery procedures that may
or may not have availed the defendants of the information they were
requesting.
The defendants let the discovery order deadline pass without
comment. Then, the day before the status conference, the
defendants filed a motion to sanction the government for its
failure to comply with the discovery order; the government had not
made the required productions and disclosures at least “one week”
before the commencement of trial. The defendants sought to prevent
the government from introducing any evidence connected with its
untimely compliance with the order. Upon the filing of the motion
for sanctions, the government complied with the discovery order.
Finding that the government had violated the order, the
magistrate judge granted the motion in limine and excluded all
evidence related to that order from being introduced against any of
the defendants. The magistrate gave the government the option of
proceeding to trial without being able to introduce the body of its
proof, or of dismissing the indictment without prejudice and
attempting to re-indict.
The government appealed the in limine order unsuccessfully to
2
Neither the defendants nor the district court has suggested willfulness
as the cause of the government's failure to comply with the discovery deadline.
3
the district court. After the district court denied the
government's motion for reconsideration, the government filed a
timely notice of interlocutory appeal to this court under 18 U.S.C.
§ 3731.3 Pursuant to § 3731, the Assistant United States Attorney
certified that “the appeal is not being taken for purposes of delay
and that the court's conditional order will result in either
dismissal of the indictment or the exclusion of evidence that is
substantial and material to the government's prosecution in this
case.”
II.
Novelli, Stephen Lausen, and Debbie Lausen contest our
jurisdiction to hear this appeal under § 3731 because the limine
orders are conditional; these orders prevent the government from
introducing the evidence identified therein unless it first obtains
approval from the district court. Therefore, according to these
3
Section 3731 provides in relevant part:
An appeal by the United States shall lie to a court of appeals
from a decision or order of a district court suppressing or
excluding evidence . . . not made after the defendant has been put
in jeopardy and before the verdict or finding on an indictment or
information, if the United States attorney certifies to the district
court that the appeal is not taken for purpose of delay and that the
evidence is a substantial proof of a fact material in the
proceeding. . . .
The appeal in all such cases shall be taken within thirty days
after the decision, judgment or order has been rendered and shall be
diligently prosecuted.
4
three defendants,4 “[t]his appeal must fail as the Limine orders do
not suppress or exclude evidence. . . . Section 3731 does not
apply to orders which require some action which may later result in
the exclusion of evidence. United States v. Camisa, 969 F.2d 1428,
1429 (2d Cir. 1992); United States v. Kane, 646 F.2d 4, 5-6 (1st
Cir. 1981).”
“Title 18, U.S.C. § 3731, permits the United States to appeal
orders 'suppressing or excluding' evidence in criminal cases so
long as the relevant United States Attorney 'certifies to the
district court that the appeal is not taken for purpose of delay
and that the evidence is substantial proof of a fact material in
the proceeding.'” United States v. Smith, 1998 LEXIS U.S. App.
2598, at *5-*6 (5th Cir. Feb. 23, 1998) (No. 97-30320) (quoting
18 U.S.C. § 3731). The jurisdictional issue is whether the
“conditional” limine orders constitute an “exclusion” of evidence
for purposes of § 3731.
A reading of the magistrate judge's and district judge's
orders reveals that the government faces an exclusion of most of
the evidence needed to prove its case and therefore can appeal
under the terms of § 3731. Unlike the circumstance in the cases
the defendants cite, in this case the evidentiary exclusion is not
4
The other defendants affirmatively state that this court has jurisdiction;
they raise no jurisdictional challenge.
5
conditioned upon some future event that may or may not occur.5
Rather, here it is the admission of evidence that is
conditioned upon some future event that is probabilistically
uncertain: the court's change of heart concerning its adoption of
Novelli's motion in limine. Should that event fail to occurSSand
that seems likely, given the language in the opinions of the
magistrate judge and the district judgeSSthe government will not be
allowed to introduce most of its evidence. Plainly, this situation
is one that Congress intended § 3731 to address when it chose to
allow interlocutory appeals from an order “excluding evidence.”6
III.
Addressing the merits, the defendants contend that the
district court acted within its sound discretion. “When a party in
a criminal case fails to comply with a FED. R. CRIM. P. 16 discovery
order, the district court 'may order such party to permit the
discovery or inspection, grant a continuance, or prohibit the party
from introducing evidence not disclosed, or it may enter such other
5
In Camisa, the court rejected the government's invocation of § 3731
jurisdiction to appeal an order disqualifying a lawyer that could, thereafter,
have precipitated the exclusion of evidence. See Camisa, 969 F.2d at 1429. Such
cases are explained by the loose nexus between the district court's order and the
eventual exclusion of evidence. Although § 3731 is to be construed broadly, see
Woolard, 981 F.2d at 757, at some point the actions of the district court will
be too tenuous to support a challenge under this section. In contrast to the
cases defendants cite, the nexus between the orders and the exclusion of evidence
is very tight here. Accordingly, we have § 3731 jurisdiction.
6
Cf. United States v. Woolard, 981 F.2d 756, 757 (5th Cir. 1993) (arguing for
a liberal construction of § 3731 appealability of the “dismissal” of an indictment).
6
order as it deems just under the circumstances . . . .'” United
States v. Sarcinelli, 667 F.2d 5, 5 (5th Cir. Unit B Jan. 1982)
(quoting FED. R. CRIM. P. 16).7
We previously have held that “[i]mplicit in the discretion
granted the district court under rule 16(d)(2) is that the district
court, in deciding what sanction to impose, consider several
factors: 'the reasons why disclosure was not made, the extent of
the prejudice, if any, to the opposing party, the feasibility of
rectifying that prejudice by a continuance, and any other relevant
circumstances.' 8 MOORE'S FED. PRACTICE ¶ 16.04(3) (2d ed. 1981).”
Sarcinelli, 667 F.2d at 6-7.8 In determining what remedy is “just
under the circumstances,” FED. R. CRIM. P. 16(d)(2), “the court
should impose the least severe sanction that will accomplish the
desired resultSSprompt and full compliance with the court's
discovery order.” Id. at 7; accord United States v. Bentley,
7
“[A]ll Unit B cases are precedent in the Fifth Circuit.” United States
v. Rojas-Martinez, 968 F.2d 415, 420 n.11 (5th Cir. 1992).
8
In Sarcinelli, we made explicit the inquiry implicit in the court's
review of the sanctions imposed in United States v. Campagnuolo, 592 F.2d 852,
858 (5th Cir. 1979). Although Campagnuolo upheld the exclusion of evidence for
the government's violation of a discovery order “even if the nondisclosure did
not prejudice the defendants,” id., the test outlined in Sarcinelli does not
mandate that all of the factors of its test be met before exclusion of evidence
is warranted; the Sarcinelli test merely requires that the district court
consider each of the factors, and that there be some justification for a more
extreme sanction than a continuance, given the factors weighed. In any event,
from our reading of Campagnuolo, it appears that the defendant was seriously
prejudiced by the government's non-disclosure, thereby making the court's
aforementioned statement dictum.
7
875 F.2d 1114, 1118 (5th Cir. 1989).9
Our conclusion in Sarcinelli that the wholesale suppression of
the government's evidence was an abuse of discretion applies with
equal force to the broad exclusion effected here. Neither the
magistrate judge's written opinion nor the district judge's oral
opinion was “the product of a careful consideration of the factors
we have cited that dictate the type of sanction, if any, that
should be imposed when a party fails to comply with a rule 16
discovery order.” Id.
Neither opinion indicates the prejudice, if any, that the
defendants faced from the delayed discovery.10 Nor do the opinions
seriously discuss the option of a continuance to remedy the missed
discovery deadline. The district court, therefore, could not
reasonably have decided that this sweeping order was the “least
severe sanction” needed to promote “prompt and full compliance with
the court's discovery order.”
Accordingly, the order excluding the evidence covered by the
May 30, 1996, discovery order is REVERSED, and this matter is
REMANDED for reconsideration in light of this opinion.
9
Although Newberry, McFatter, and Simmons suggest that “fundamental
fairness” and the “Due Process Clause” justify the instant extreme sanction, we
do not see how the Due Process Clause circumscribes the inquiry we set forth in
Sarcinelli. And, absent a more detailed showing by the defendants, we find
nothing in our jurisprudence, or that of the Supreme Court, to support their
general assertion of prejudice in this regard.
10
Indeed, the magistrate judge states that “Even if the government's
failure to disclose were harmless, it would not change this Court's opinion.”
8