concurring:
I agree that the government has complied with its certification requirements under our present case law, and agree fully with the disposition. I write separately because I believe that our cases relating to the government’s certification requirements under 18 U.S.C. § 3731 were wrongly decided and should be reviewed en banc.
To establish appellate jurisdiction, our case law unaccountably “require[s] more than the prosecutor’s bare certification that the- conditions enumerated in section 3731 exist.” United States v. Adrian, 978 F.2d 486, 490 (9th Cir.1992). The standard to be met by the government is as follows: “assuming that the evidence *1134would be admissible, a reasonable trier of fact could find the evidence persuasive in establishing the proposition for which the government seeks to admit it.” • Id. at 491. This requirement is directly contrary to the language and aims of the statute and conflicts with the decisions of every other circuit to have expressed an opinion on the issue.
The relevant part of section 3731 states: 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 or requiring the return of seized property in a criminal proceeding, 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.
18 U.S.C. § 3731 (emphasis added). The statute also tells us that its provisions “shall be liberally construed to effectuate its purposes.” Id.
As a starting point, a plain reading of the statute indicates that, contrary to our cases, mere executive certification is sufficient for appellate jurisdiction. As the Eighth Circuit has observed, “[t]he second and third requirements ... share the common modifying phrase, ‘if the United States attorney certifies to the district court.’ The syntax implies that executive certification establishes both lack of delay and materiality.” United States v. Johnson, 228 F.3d 920, 923-24 (8th Cir.2000) (citation omitted). “The United States Attorney’s word is enough; the reviewing court does not consider the truth of the certification.” Gov’t of the Virgin Islands v. Hodge, 359 F.3d 312, 325 (3d Cir.2004). Any other reading of the statute is implausible. Nowhere in the text of the statute is there mention of a requirement of anything more than the prosecutor’s certification. Indeed, the imposition of such a requirement violates the admonition that the provisions of the statute be liberally construed.
The circumstances surrounding the enactment of the current form of section 3731 further demonstrate the error of our case law. Prior to the 1968 amendments to the statute, the government’s ability to appeal pretrial decisions in criminal,cases was far more limited. In Di Bella v. United States, the Supreme Court held that the government could not appeal from a post-indictment order suppressing evidence. 369 U.S. 121, 131, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). The Court stated that allowance of such a right of appeal “must be sought from Congress and not this Court.” Id. (citation omitted).
The problem was clear. If the district court improperly suppressed evidence, the right of the government to appeal was frustrated. If the defendant were convicted, the government had no need to appeal. If the defendant were acquitted, double jeopardy prevented review. Thus, district court suppression orders were essentially unreviewable by government request.
After Di Bella, Congress amended section 3731 to allow for appeals from orders granting motions to suppress evidence. Pub.L. 90-351, 82 stat. 197 (1968). Thereafter, in 1971, Congress expanded the government’s right of appeal to include all orders suppressing or excluding evidence in a criminal proceeding, and added the provision requiring that the statute be “liberally construed.” Pub.L. 91-644, 84 Stat. 1890. The Senate Report on the amendment explains its purpose:
The amended Criminal Appeal Act is intended to be liberally construed so as to effectuate its purpose of permitting the Government to appeal ... from all *1135suppressions and exclusions of evidence in criminal proceedings, except those ordered during trial of an indictment or information. S. 3132 (the 1971 amendment) places on the face of section 3731 an explicit expression of this intent, in view of the restrictive judicial interpretations of congressional intent which have resulted from the histories of the earlier versions of section 3731 despite strong indications in the debate on the 1907 act that it should be broadly interpreted.
S.Rep. No. 91-1296, 91st Cong., 2d Sess. 18-19 (1970); see also In the Matter of Grand Jury Empanelled, 597 F.2d 851, 855-56 (3d Cir.1979) (detailing history of section 3731).
The Supreme Court has also interpreted the statute and its history as granting the government a wide power of appeal. “[T]he legislative history [of the statute] makes it clear that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.” Unied States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (emphasis added). Wilson, which discusses the legislative history of section 3731 in some detail, goes so far as to conclude that “it seems inescapable that Congress was determined to avoid creating nonconstitutional bars to the Government’s right to appeal. The District Court’s order ... is therefore appealable unless the appeal is barred by the Constitution.” Id. at 339, 95 S.Ct. 1013 (emphasis added).
The statute expresses Congress’s intent to permit all constitutional government appeals from pretrial evidentiary rulings. See Arizona v. Manypenny, 451 U.S. 232, 243 n. 18, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) (“By enacting the current version of 18 U.S.C. § 3731, Congress manifested an intent to remove all statutory barriers to a criminal appeal taken by the Federal Government” (citations omitted)). There is not the slightest indication that the barrier created by our circuit is constitutionally based. Instead, we have created an unwarranted hurdle in violation of the language of the statute, its legislative history, and the specific dictate of the Supreme Court. Although I was on the en banc court in United States v. Loud Hawk, 628 F.2d 1139, 1150 (9th Cir.1979) (en banc), and on the panel in Adrian, I am now convinced they were wrong on this issue. These cases should be reconsidered by our court en banc, and our ill-conceived limitations should be abandoned.