*1 Dr. White ited to whether invented America, UNITED GAD-graft device” at L.A. STATES

“overlapping Plaintiff-Appellant, Given the exact terms of Biomed. agreement signed, Dr. re- White which quired “every possible pat- him to disclose GRACE; Stringer; Henry W.R. Alan R. device,” merit. entable this contention has Eschenbach; Wolter; A. Jack W. Wil precise jury It is clear more instruc- McCaig; J. Bettacchi; liam Robert J. tions on this central point contention Favorito; Walsh, O. Mario Robert C. have given. needed to been Defendants-Appellees. We leave rectification this issue No. 06-30192. However, court the district on remand. United States Court of Appeals, given parties’ willingness manifest end- Ninth Circuit. argued lessly dispute on who when, presented what and what who Argued and Submitted En instructions, multiple conferences Dec. Banc 2007. we advise would both the court and May Filed parties will have a —now great respect fresh start —to take care to nothing

Rule 51 and to either to leave imagination.

inference to the rec-We

ognize history the convoluted of this case court,

in the trial but turns out that parties

allowing preserved” to “deem objections

previous created an unneces-

sary on appeal. Rule battlefield

Ill

CONCLUSION we agen-

Because conclude both the

cy instruction and the in- corroboration given were in error each

struction and that prejudicial,

was RE- REVERSE and

MAND the district trial a new opinion.

consistent

REVERSED REMANDED. *3 (argued),

James C. Kilbourne M. Kevin Cassidy Brabender, and Allen M. Attor- Justice, neys, Department DC; Mercer, Washington, William W. McLean, Attorney; United States Kris A. Attorney; Assistant Ronald United States Tenpas, Acting Attorney J. Assistant Gen- eral, for plaintiff-appellant. Christopher Landau, (argued), Lau- P.C. Urgenson, Tyler rence A. D. Mace and Shumsky, D. Michael Kirkland & Ellis DC; LLP, Washington, R. Stephen KOZINSKI, ALEX Chief Brown, and Kathleen Before: E. McNeil Charles PREGERSON, Robinson, DeSoto, Judge, Garlington Lohn & HARRY L. MT, REINHARDT, PLLP, Missoula, J. defendant-appel- ANDREW STEPHEN lee, HAWKINS, KLEINFELD, Grace & Co. P. W.R. SUSAN McKEOWN, GRABER, M. MARGARET Waterman, Shanahan, Gough, Ronald F. WARDLAW, RAYMOND KIM McLANE Waterman, MT; Helena, David & Johnson FISHER, T. BEA CARLOS C. Winters, Gary Mayer A. Krakoff and S. JR„ SMITH, Judges. D. Circuit MILAN DC, LLP, Washington, for defen- Brown Henry A. Eschenbach. dant-appellee, FISHER; Judge Opinion by Milodragovich and W. Adam Mike *4 DALY by Judge MICHAEL Concurrence Dale,

Duerk, Milodragovich, Steinbrenner HAWKINS. Missoula, MT; Jeremy Maltby, Binney, & LLP, O’Melveny Myers Angeles, Los & FISHER, Judge: Circuit CA, defendant-appellee, W. for Jack Wol- ter. ap- granted We en banc review of Hoovestal, Firm, Lаw

Palmer Hoovestal brought peal by government, pursuant PLLC, Helena, MT; Elizabeth Van Doren ques- to to 18 resolve two U.S.C. & Laffitte, Sowell, Gray, Gray, Stepp First, Attor- States tions. does United Coates, Columbia, SC; LLC, A. William ney’s certification under simple PA, Price, & Cassidy Green- Roe Coates interlocutory appeal government’s SC, ville, defendant-appellee, William for is taken for pending criminal case McCaig. J. delay purpose of and that evidence Goetz, Baldwin, Gallik, suppressed Brian & district court excluded Gallik Bozeman, MT; P.C., Frongillo, C. proof Thomas a fact material substantial Boston, LLP, Weil, Manges Gotshal & jurisdic- proceeding suffice to establish our Weil, MA; Broderick, Gotshal & Vernon S. interlocutory appeal? tion to hear York, NY, LLP, for defen- Manges New Second, so, did in this if the district court J. dant-appellee, Robert Bettacchi. authority pretrial to case have final by the of its disclosure Firm, Johnson, Kalkstein Law Mis- C.J. evidentiary docu- list of witnesses MT; soula, A. Stephen Jonas Robert to and evi- ments and exclude witnesses Keefe, Pickering Hale and Wilmer Cutler timely compliance dence not disclosed LLP, Boston, MA, Dorr for defendant- with orders? such appellee, Mario Favorito. Laughner A. and Aimee M. Catherine First, hold that the United States we Berry Grmoljez, Browning Kaleczyc & Ho- de- Attorney’s regarding bare certification P.C., Helena, MT; ven, ‍​‌​‌​​​​‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌‌​‌‍R. Stephen Spi- lay with the materiality accordance LLP, vack, Arant & Bradley Rose White give us 3731 was sufficient to terms Roth, DC; Bradley Washington, David E. jurisdiction gov- appellate to address LLP, Birmingham, Arant Rose & White objections to the district court’s ernment’s AL, defendant-appellee, for Robert C. prior orders. We therefore overrule our

Walsh. to the conflict decisions extent United ruling today, including

with our Hawk, 628 F.2d 1139 States v. Loud Cir.1979) (en banc), v. and United States (9th Cir.1992). Adrian, Sec- ond, hold that reports did ... are complete, comprehensive, accurate, to have the issue and enforce its to tailored the issues on compelling orders expert which the expected testify.” its disclose witness list and did not The government object did not dis- its in doing order, abuse discretion so. We there- trict court’s and subsequently made Hicks, fore also overrule significant in compliance disclosures (9th Cir.1996), 103 F.3d 837 extent it. purported deny

that it the district court On September the government authority. such notified the district pro- court that it had duced defendants its “final witness Overview list,” list and final exhibit but stated that processed Grace & W.R. Co. mined and right “reserve[d] its Montana, vermiculite ore Libby, outside update its witness list and exhibit list early early from the until 1960s 1990s. through the close of all evidence at trial.” 7, 2005, February On the United States The government’s disclosure included indicted Grace and several officers more than 230 witnesses. *5 on numerous charges alleging The defendants disputed sufficiency the in engaged criminal acts the during course of government’s the disclosures. On No- mining operations, of Grace’s related to 23, 2005, vember the district court issued improper disposal

the of asbestos-contami- pursuant three orders to Federal Rule of court, nated The vermiculite. district 16, Criminal Procedure chiding gov- the recognizing magnitude the of the case— ernment for its “impermissibly narrow with period spanning a relevant time near- ” Brady obligations view of the under and ly 30 years potentially and than more clarifying the government materials the pretrial thousand victims—held a case required produce pursuant was to Rule management conference March 2005 and management thereafter entered case order the memorializing results the con- 2, 2005, On December the met parties ference. with the for a district court status confer- March conference, 2005 order established a еnce. At this the discussion 11, “firm” trial September 2006, date of sufficiency included the of the prosecu- discovery disclosures, and set forth a schedule. In tion’s expert compliance its pertinent part, required orders, the previous discovery schedule the with the and government produce “all discoverable the defendants’ growing concern about the 16(a)” specified materials in Fed.R.Crim.P. size government’s witness list. 29, by 2005, April thereafter, “a list preliminary Shortly of its the district court en- (“the intended witnesses and May 5, exhibits” tered an order on December 2005, 27, order”), and a “finalized list gov- of witnesses December 2005 limiting the exhibits, and trial including presentation [a] finalized ernment’s at tri- witnesses of prosecution’s expert disclosure wit- al “to those dis- witnesses have been 30, September nesses” 2005. More- closed as of the of this filing Order” and over, to the parties limiting government extent that the intend- the reports ex- engage trial, ed to expert perts rely may upon witnesses to those “contained in required discovery compliance] produced “full[] to date ... cur- or 16(a)(1)(E) the requirements rently subject of Rule to an order of this Court 16(b)(1)(C),” Rule including “expert requiring production.” authorized, that, objections, if enforcement even response February clarified of the court’s discre- orders were abuse court rebuttal, that, counter that necessary if tion. The defendants use unlisted witnesses ment could call 3731 certification did government’s then materiality other evidence. adequately establish the interlocutory appeal under brought an evidence,1 jurisdiction we lack excluded so challenging and, U.S.C. appeal; government’s hear specifically court’s event, any district court acted within orders — order and management 2005 case March authority. February 2005 and December the court’s law, a existing Ninth Circuit Adhering to (collectively, the enforcement orders panel of this court declined three-judge orders”). “enforcement bare certification accept government’s provides part: Section 3731 language simply recited the by the States shall An United sup- requested parties submit appeals to a from decision lie discussing briefs whether plemental suppressing order of a district court or fact evidence was in “substantial excluded requiring evidence or excluding or proceeding.” proof a fact material property in a criminal return of seized Grace, F.3d United States W.R. after the defen- proceeding, not made (9th Cir.2007), reh’g en banc put jeopardy and be- dant has been (9th Cir.2007). Af- granted, 508 or on an indict- finding the verdict fore receiving specific information ter more information, if ment from the about nature *6 attorney to the district States certifies evidence, the the relevance of excluded appeal court the is not taken that for government’s the panel concluded that delay the evidence purpose and that of belated, had its proffer, albeit satisfied proof material is a substantial aof fact materiality under demonstrate burden to proceeding. the in Hawk, (holding that Loud 628 F.2d at 1150 added.) Here, the United (Emphasis appeal” avail- right the is “government’s of Mon- Attorney for the District States Adrian, only “conditionally”), and able the the tana in words of statute certified (the government provide F.2d must at interlocutory government’s appeal the

that estab- more than a “bare certification” to delay purpose “is not of taken jurisdiction). On merits lish the appellate by the district the evidence excluded the dis- panel of the affirmed appeal, the in notice of [the] court’s order described rulings respect expert trict court’s proof of a fact materi- appeal substantial documents, fol- witnesses and related but the proceeding ongoing al in the before and held that the district lowed Hicks contends district court.” excluding authority its court exceeded suffices that its unembellished certification undis- government’s from the case-in-chief jurisdiction. appellate On to establish nonexpert witnesses. closed chal- appeal, merits of banc to rehear this case en authority agreed We to re- lenges the district court’s precedents governed of to reexamine a finalized list quire enforce exhibits, three-judge panel. argues trial decision witnesses and govern- peal delay. of challenge purposes taken for do not is not 1. The defendants interlocutory ap- that the ment’s certification process trial a carefully was considered Discussion judgment provide and to enough us with I. Standard Review information to determine whether a time- question “Jurisdiction is of law consuming appeal truly justified. was subject to de novo review.” United States Nonetheless, persuaded we are now (9th Cir.1993). Neville, the plain language of the statute shows de rul We review novo a district court’s Congress that, long intended as as ings scope of its to order requirements other present, 3731 are discovery under Federal Rule of Criminal regarding delay mere certification 16. Procedure United States v. Mendoza- materiality prerequisites is all statute Paz, (9th Cir.2002). F.3d requires to our appellate jurisdic- invoke tion. This is phras- evident 3731’s II. Section 3731 ing, appeal “An United States shall grants Section 3731 the govern lie a court appeals ... the United if right ment interlocutory appeal attorney certifies to the district evidentiary rulings from a district court’s appeal is not taken for in certain circumstances. We have previ delay purpose and that the evidence is a ously explained government’s proof substantial fact material in the (via 3731) “right appeal a district added.) proceeding.” (Emphasis We read suppressing court’s order evidence con specifying what the Hawk, 1150; ditional.” Loud 628 F.2d at jurisdic- ment must do to establish those Adrian, “First, see 978 F.2d at 490-91. preconditions. tional Nothing the stat- appeal is not if available the defendant requires ute go has put Second, been further jeopardy. prove must not be taken for that the evidence purpose suppressed or Third, delay. suppressed evidence excluded is actually the district court must proof be substantial of a fact material material to proceeding juris- our before Hawk, in the proceeding.” Loud can attach. congressional diction Where gov have required We that the expressed “has reasonably intent been *7 up ernment’s bare certification be backed terms, plain language that ordinarily must by preliminary a showing that the exclud regarded be as conclusive.” v. Griffin (em truly ed evidence is material. See id. Contractors, Inc., 564, Oceanic 458 U.S. phasizing materiality that “condition 3245, (1982) 570, 102 S.Ct. 73 973 L.Ed.2d must be appeal suppres met before (internal omitted). quotation marks More- taken”). sion can properly be over, Congress specifically instructed us Adrian, materiality pur we defined for § ... “provisions 3731 its shall be poses § “assuming of 3731 thus: that the liberally pur- construed effectuate its admissible, evidence would be a reasonable poses.” § purpose 18 U.S.C. 3731. The of trier of fact could persua find the evidence § give is to a 3731 window sive in establishing proposition for opportunity challenge which it.” seeks admit allegedly court’s exclusion of material evi- 491. 978 F.2d at attaches; jeopardy dence before we should not, therefore, our read into the statute an purposes certification- plus salutary hurdle, rule if were assure that the unwritten additional even well —to government’s decision to involve intentioned.2 us Act, 2679(d)(1), 2. point § The concurrence to the looks Westfall 28 U.S.C. as a of reference 506 proof that a certifi is substantial of a material

Accordingly, pressed we now hold Attorney (per fact”); McNeill, States cation a United see also v. United States Cir.2007) (4th United States sonally, 301, not Assistant (sug- 484 F.3d 308-09 that the not taken for Attorney) appeal is if certification alone is sufficient gesting delay and that the evidence purpose all timely).3 holdings These are consistent of a fact material in the proof substantial is that an interlocu- 3731’s mandate purposes is sufficient for proceeding tory appeal “shall ... if’ the lie United jurisdiction under establishing our Attorney specified repre- States makes Hawk and The certification-rule of Loud in his or Our sentations her certification. United progeny is overruled. See that had to former rule added a hurdle be (9th Gantt, 194 998 v. F.3d States our could jurisdiction cleared before at- Poulsen, Cir.1999); 41 United States v. tach; that is not what instructed. (9th Adrian, Cir.1994); 1330,1333-34 F.3d concurring prin- raises two opinion 490-91; Lay F.2d at v. 978 United States Cir.1983). cipal concerns based on its fears what (9th ton, 720 F.2d wrong certi- might go prevailing under the By holding, align so ourselves with fication-only First, rule adopting. we are circuits have held that our sister delays pro- it worries about in the trial long § 3731 is satisfied as United ceedings, disadvantage to the of defen- Attorney statutory certifies that the those acknowledge dants. We concerns Virgin are met. Is. conditions See Gov’t of not believe us but do allow (3d F.3d & n. 13 Hodge, two-step impose screening process that Cir.2004) (holding jurisdiction was Congress has not required. Section proper filing based on of the certifica- only requires Attor- the United States Centracchio, tion); United Stаtes v. certify interlocutory ney appeal (7th (“We Cir.2001) there- purpose delay, not for also man- but jurisdiction fore treat as conclusive of our appeal that the dates “shall be taken with- submission of [§ 3731] over days decision, thirty judgment after statute.”); required by has been Johnson, 920, or order rendered and shall be States v. 228 F.3d Cir.2000) diligently prosecuted.” have the au- (holding “appellate We jurisdiction proper thority if to assure that these affirmative Moreover, sup- certifies that evidence are simply requirements met.4 we also interpreting actually upcoming 3731. As the concurrence 'material' trial." to the concedes, however, Johnson, 923; candidly given Hodge, itself see contrast between Westfall Act’s certifica- F.3d at 325 n. 13. *8 3731, regime § that tion the Act does example, previously 4. For we dealt have inquiry. Concurring not resolve our ultimate timely certificates that are filed in the not op. & n. that at 518-19 3. We are satisfied See, e.g., district court. United States Beck says, § what a conclusion 3731 means er, 442, (9th Cir.1991) (noting 929 F.2d impor- our sister More shared circuits. supple the that whether could reading tantly, require accepting our does not appeal on untimely ment the record with an Attorney's States the United certification § discretionary filed was a certification merits, only the conclusive on as sufficient to McNeill, court); matter for the also see trigger jurisdiction our to reach them. although (noting F.3d at 306-10 that failure Eighth timely § 3. Two circuits—the and the Third— to file a certification does expressly ‍​‌​‌​​​​‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌‌​‌‍split, deprive ap jurisdiction have noted the circuit the court over the alone, Circuit, apparently impose peal, any which the "Ninth the court had to discretion requires prove necessary requirement the sanction to enforce certification, suppressed by filing including § is evidence the district court a dis- ability expedite appellate peal independently have the require us question process necessary material, should become whether the truly evidence is case, systemic an government’s individual even on a certification is not conclu- experience if it. In basis our warrants acknowledges, sive^—as concurrence id. regard, we have no evidence at 25 & n. 524- 10—so are not required we certification-plus rule of Loud Haiolc is to “mak[e] new law in a near factual vacu- than simply accepting Moreover, more efficient certi- at um.” Id. should we juris- government’s fication as sufficient to our establish find the appeal patent- to be diction.5 ly frivolous or have reason to believe its false, certification is we could directly Second, that, by concurrence urges misconduct, such surely sanction a potent accepting Attorney’s the United States prosecutorial “check” on abuse the certi- ju- certification as sufficient our to invoke short, process. fication the certifica- risdiction, trusting] are “blindly we Unit- tion-only rule that adopt today we Attorneys,” ed adopting States a rule that which followed in is other circuits does not “permits prosecutor proceed- a to disrupt give prosecutors any beyond benefit ings with stroke of a pen” giving statutory right to the interlocutory appeal prosecution “unchecked Congress provided § or per- pursue interlocutory all appeals sup- Attorney mit a United States to misuse the pression orders.” at Concurring op. process. certification 527, 525-26. Not so. The certification representation by itself is a regard, In that emphasize we that we Attorney, court, as an diluting officer of the are not a implicit standard that the is not for appeal purposеs delay requirement. By specifying suppressed and that evidence indeed Attorney that the United States must cer- to materiality, pro- material.6 As tify appeal, Congress plainly intended only vides that the certification establishes decision to take an interlocutory jurisdiction. our serious, If the ap- merits of the appeal judgment, be considered missal); Romaszko, Indeed, vailing certification-only United States v. rule. be- (2d curiam) (hold- Cir.2001) (per 759-60 jurisdic- cause must first determine the ing filing that the late of a 3731 certification tional issue and then determine the merits preclude jurisdiction permit does not but does separately, a final determination under the the court to exercise its Fed- discretion under longer. may Loud Hawk rule well take Al- 3(a) Appellate eral Rule of Procedure to dis- though appeal the concurrence invokes the appeal). miss the The merits of whether this case to the Loud "demonstrate Hawk government should ever be from fail- excused id., necessity” prevent delay, rule’s it actu- timely ure to file a certification on Hawk, ally opposite. shows the for Loud But before appeal. basis are not us in this original panel would not have had to look beyond spend the certification time forc- currently 5. The concurrence notes that "[i]t ing prove suppressed filing takes ten nine to months from the of an was) (it getting evidence was material before interlocutory in a criminal case to its (That appeal. merits of the to the "the trial placement argument calendar.” Con- limbo,” largely date remains in id. at be, curring op. may although 525-26. That process.) of our function en banc *9 proceedings such is not case when the the are event, expedited. any In has made materiality governing definition of The the judgment government the that the is entitled Attorney’s Stаtes interlocutory appeal United certification is well specified to an cir- established, Adrian, cumstances, (quot- see at the 978 F.2d Loud Hawk certification- text, above), plus nothing get appeal rule to on an ed in and remains the law of does the this argument any pre- calendar faster than the circuit. ney approval from the formality. obtaining Solicitor an administrative simply not recently emphasized with internal De- General “in accordance The Fourth Circuit point: partment policy”); of Justice United Colomb, 419 F.3d 296-97 States v. file these inter- The authorization to Cir.2005) (noting appeal that the followed to the locutory important is appeals approval of the obtaining the it criminal cases because prosecution of General). Acting expect Thus we Solicitor appel- to obtain permits the attaches, disruptive the about frivolous review, of concerns jeopardy late before attempts prematurely involve us on- suppressing what to trial court decisions going proceedings evidence that animated our the believes is nec- trial (and But rule essary previous certification-plus a crime. because trou- prove disrupts concurring necessarily colleague) trial our will be ad- appeal such ble government’s the authorization con- the wise and proceedings, dressed appeals. limitation that in- careful important tains an is invocation from un- protect tended to defendants sum, In the we conclude United delay due ... Attorney’s States certification this case requirement jurisdiction to to establish our suffices operates ensure before interlocutory ap- hear government’s the a criminal interrupts United peal. therefore turn to We (and delays a thereby defen- proceeding challеnges ment’s the district court’s obtaining resolution dant from pretrial orders. him) taking an charges inter- against locutory appeal, has evaluated wheth- Management III. The Pretrial Case warranted. appeal er the is and Enforcement Orders Thus, filing of a 3731 certifica- argu- several government advances merely an tion is administrative for- not why challenged pretrial ments orders mality; important purpose it serves First, are flawed: the district court lacked protection assuring defendant’s authority require in its March 2005 delay. from undue government proride pre- order that the McNeill, (emphasis list; second, if trial witness even the court (internal original) quotations and citation authority, had require such it could omitted). list, trial; especially year final before finally, exclusionary effect the en-

Significantly, the At United States inappropriate orders was an forcement torney’s requires appeal decision response, sanction. the defendants ar- concurrence of Solicitor General of had gue that the district court Centracchio, States. 236 F.3d See order witness lists and acted within its (concluding at 813 the Solicitor Gener in enforcing discretion its orders. We approval significant means is “no al’s there agree with the defendants. frivolous, danger that the will be disposi rather than warranting dismissal Authority A. Romaszko, merits”); tion on (“[T]he begin principle at 760 Solicitor authorized We with General likely appeal. charged This authorization en district court effectuat orderly purposes ing speedy of section administration sures that McNeill, met.”); justice. There universal acceptance were see also 484 F.3d at that, in carrying out (referring to the United States Attor- federal courts

509 mandate, a district court has the au- not all on a relying uniform source of thority pretrial management to entеr widely case authority, agree that a witness dis- discovery to designed and orders ensure closure order directed to government tried relevant issues to be are is within the district court’s discretion to identified, that parties oppor- have impose enforce.7 and engage discovery to tunity appropriate There is a “well established” the parties adequately and that are and principle that “[district courts have inher timely prepared pro- so that trial can power ent to control their dockets.” At efficiently and intelligibly. ceed chison, & Topeka Ry. Santa Fe v. Co. principal are orders at issue Inc., (9th 1071, Hercules 146 F.3d 1074 that, district court’s March 2005 order Cir.1998) (alteration (internal original) among things, required other omitted). Further, quotation marks 30, to disclose September ment 2005 a “judges exercise substantial discretion witnesses”; “finalized list of and the happens over what inside the courtroom.” court’s enforcement orders limited 1088, v. Simpson, United States 927 F.2d government’s use of in its witnesses case- (9th Cir.1991). accepted We have (but rebuttal) not in-chief to those who had “ federal courts ‘[a]ll are vested with timely been disclosed. The government powers enabling inherent manage them to object not to did the March 2005 order at their cases and effectively courtrooms and time, proposed but when it filed its ” to ensure obedience to their orders.’ in September witness list to purported Am., States, Aloe Vera Inc. v. United right “its update reserve to its witness list (9th Cir.2004) (per F.3d 964-65 through list of all exhibit the close curiam) Enters., (quoting F.J. Hanshaw government evidence trial.” The now Dev., Inc., Inc. v. Emerald River argues the district no au- court had (9th Cir.2001)). 1128,1136 to thority require pro- to list, duce such witness not a particularly Other circuits have dis addressed a trial, year list one before authority gov trict to require finalized court’s preclude cаlling ad- disclose ernment to its witness list in ad witnesses ditional not disclosed the time agreed vance of trial have court that the of the court’s mandated deadline. Cannone, may do See United so. States v. (2d Cir.1975) (“The gen F.2d disagree.

We The district court’s compel eral discretion of district courts to March 2005 order and the enforce identify its witnesses ment orders fit within comfortably acknowledged widely____”). have Some authority court’s under Rules of Federal court’s power, invoked the “inherent exer Criminal Procedure and its more circumstances, appropriate cisable under general authority manage inherent proper orderly assure the adminis Although docket. our decision United Hicks, (9th justice.” v. tration criminal United States 103 F.3d 837 Cir. Jackson, 1996), suggest otherwise, would Cir. disap we 1975); prove of Hicks’ see United States v. reasoning Napue, and overrule it (7th Cir.1988) (“[A] 1311, 1318 to the extent it conflicts with our F.2d Rather, today. gov decision align require ourselves has that, with the other circuit although provide courts ernment defendant trial, 7. We do not decide what whether or to extent of its witnesses before and do ad- compelled the defense can be to disclose list dress issues here. those *11 510 ____ case-in-chief). during to use the court’s intends part of [as] a list

such (internal of informa- quotation marks rule also identifies kinds power”) inherent mandatory F.2d omitted); Higgs, v. 713 not included tion that are United Cir.1983) (3d (“While it true 39, categories. 44 n. 6 See Fed.R.Crim.P. disclosure automatically 16(a)(2) (b)(2) is not government exempting govern- that the (e.g., & disclosure, the dis make such required to prosecuting or docu- investigative ment discretion, may court, order ments). trict within its to the district respect With ad ensure the effective 16(d)(1) disclosure to such authority, permits Rule court’s justice sys the criminal ministration of cause, restrict, court, deny, good [to] “for Cannone, tem.”) (citation omitted); 528 discovery inspection, grant or defer or or (“It recognized wide F.2d at 298 16(d)(2) relief,” and Rule appropriate other court to in the district reposed latitude is authority to enforce the court broad grants successfully its mandate to effec carry out rule,” by any order “that is including “this tuate, speedy and possible, far as just under the circumstances.” (inter justice.”) orderly administration of kinds has thus addressed the omitted). Others quotation nal marks government and defen- of information authority, the source of explained have not provide to to each oth- obligated dants are that it is within a simply have stated but by way discovery trial and the er before gov discretion to order the court’s district authority court’s to enforce those list under produce ernment witness authority 2 obligations. Rule bolsters See, e.g., appropriate circumstances. “are to be by instructing that the rules DeCoteau, 1008, 186 F.3d States v. United just for the determi- interpreted provide (8th Cir.1999) (“[A] 2 district court 1010 n. every proceeding, criminal to se- nation of may circuit exercise its discretion and fairness simplicity procedure cure case.”) in a require proper such disclosure administration, unjusti- and to eliminate (internal omitted); marks Unit quotation delay.” The thrust of expense fiable Rosales, 1304, 1305 ed States v. light Rule 16—viewed in of Rule 2—is Colson, (10th Cir.1981); States v. that the court to ensure allow the district (11th Cir.1981); 662 F.2d Unit comply spirit with the letter and parties Kendricks, 1165, 1168 623 F.2d ed States v. chal- government’s rule. Much of the Cir.1980) curiam). (6th Finally, some (per here lenge to the district court’s orders in Rule 16 grounded have pro- disposed express can be of under the Jordan, see, itself, e.g., United States the disclosure visions of Rule 16—such as (4th Cir.1972), in a 466 F.2d witnesses, reports expert of scientific of Rule 16 and Rule see combination presently.8 which we shall discuss Fletcher, 74 F.3d United States v. Cir.1996). not ex Although Rule 16 does of nonex pressly mandate thе disclosure ap- first examine the rule-based We witnesses, it inconsistent with pert is not specifies categories Rule 16 proach. to order the Rule 16 and Rule for documentary evidence witnesses produce a list of such wit subject disclo- are mandato^ 16(a)(1) (b)(1) a matter of its discretion. See nesses as Fed.R.Crim.P. & sure. See Fletcher, (citing Rule 16 and to disclose (e.g., requiring for disclosure upholding Rule in request a written sum- at the defendant’s Jackson, witnesses); 508 F.2d at 1007 mary expert testimony (a)(1)(F) (a)(1)(G). 16(a)(1)(E)(ii), & 8. See Fed.R.Crim.P. *12 rejecting govern- 2 in the when its

(citing nullify proce- Rule exercise would the argument the that district court’s ment’s parties dural choices reserved to under the to order it disclose authority to its witness rules.”). Ordering federal pretrial the dis- be on the defense’s list should conditioned closure of nonexpert witnesses does not materiality and reasonable- showing “circumvent or conflict” with Rule 16. ness). all, nothing in Rule 16 ex- Above Carlisle, 426, at 517 U.S. 116 S.Ct. 1460. district court from pressly prohibits the The rule does entitle the defendant to discovery additional or ordering pretrial witnesses, of such by a list but the same objec- that will further the disclosures also a suggest token does not that district Jackson, tives forth in 2. See 508 set Rule prohibited ordering court is such a present F.2d at 1006 that “the (stating Jackson, See at disclosure. 508 F.2d 1006 order”). is no bar the The [Rule to 16] (“[T]he distinguish to Government fails be- Supreme recognized Court has that feder- the the right tween defendant to de- limits, “may, al within formulate courts witnesses, a list authority mand and the procedural specifically required rules not to order such under disclosure by or Congress.” the Constitution circumstances.”). appropriate 499, Hasting, v. United States 461 U.S. earlier, As noted some have courts found (1983).9 505, 1974, L.Ed.2d 96 103 S.Ct. 76 grant an affirmative to authority order course, scope Of of this “[w]hatever disclosure of all of the power,’ ... it does not include ‘inherent proposed ment’s witnesses in Rule 16’s to power develop rules that circumvent (sometimes provisions in- enforcement also or with Crim- conflict the Federal Rules of 2). voking so, Rule In doing these deci- inal Procedure.” Carlisle v. United have language sions elided Rule States, 426, 1460, 416, U.S. 116 S.Ct. 517 16(d)(1) (2) (1996); Atchison, appears and that to focus on 134 613 see 146 L.Ed.2d (“[District enforcing mandatory provi- disclosure F.3d at 1074 courts have inher- dockets, not, power ent to control their but not of Rule how- sions 16 itself.10 We do (1991) (district previously Hasting 9. We "lim- have read L.Ed.2d courts have inher it[ing]” powers power federal to punish courts’ inherent ent to bad-faith conduct side); specific awarding "three areas”: attorneys’ fees to the other Arn, 140, 142, 146-47, (1) v. implement remedy Thomas 474 U.S. for a to violation 466, (1985) (circuit (2) recognized rights; preserve judicial to 106 S.Ct. 88 L.Ed.2d 435 integrity ensuring power have criminal convic- courts inherent to establish rule appropriate objections mag tion rests on "the considerations failure to file to (3) jury; validly right before the deter report istrate’s waives illegal judgment”). future conduct. We therefore re district court’s Gonsalves, 1319, understanding power United States v. 781 F.2d to the turn of inherent (9th 1986); Richter, Cir. also v. see United States recognized Cir.1973), 1088, (9th Cir.1991). Simpson, 173-74 ordi acc Here, government argues that because ng to which district courts have the inherent any district court's order not fall does within divulge power to "order the areas,” specific of those "three prospective names of witnesses.” beyond powers. pre the court's inherent Our terms, By plain speci- Hasting narrowly. speaks read too There 10. Rule vious cases cases, nothing discovery opinion fied kinds of criminal "limit[s]” powers parallel speci- provisions to these three inherent areas. its enforcement has, addressing Supreme Hasting, approved ficity general Court rather au- since than 16(d)(1) power thority are several exercises of inherent of the court. Rule refers to thought inspec- beyond specific granting "discovery relief the “three areas” we related NASCO, tion,” title; (d)(2) Hasting E.g., delimited. Chambers v. which is Rule 16’s Inc., U.S. 111 S.Ct. to take certain actions "if a authorizes courts testimony. Id. defendant ever, resolve Rule 16 whether have (not objected, Rule 2 pro government) but even- alone or in combination for the authority tually complied appealed vides sufficient the district nonexpert regarding wit order, court’s orders that “the district arguing court’s do very least these rules nesses. At under court did not have *13 Further, preclude such orders. not ... Id. Rule 16 to issue such order.” requir and of logic fairness reinforce the stating a agreed, We that “district pretrial to a ing government produce that the Government and the de- orders experts and nonexperts list of both witness witness and exchange fendant to lists conditions) (subject so that appropriate to of testimo- anticipated summaries witness may parties district court— —and in ny advance of trial has exceeded adequately prepared trial. That is be for of authority under Rule 16 the Federal premise essential of the court’s inher Rules of Procedure has com- Criminal power manage its cases to ensure ent to (emphasis Id. add- mitted error.” at 841 fair and effective administration ed). conclusion, Hicks support To this justice system. criminal See United States a Congress’ rejection relied on 1975 of Richter, 173-74 Cir. to Rule proposed amendment 1973) (“It recognized that wide latitude required government would have both reposed carry in the district court to out to their defense disclose witnesses effectuate, successfully its to as mandate rejec- trial. We inferred from this before orderly possible, speedy far as a Congress deny tion that intended to justice.... It administration of would be any authority any to district court order improvidently limit in ill-advised to other than that pretrial witness disclosure misuse.”).11 power herent for fear expressly provided under Rule id. 16. See Insofar as we held in Hicks a dis- history Inferring legislative from the authority trict court has no to order the sweeping authority was such denial government produce pretrial to witness not an inevitable There was conclusion. beyond specified in Rule list Congress no suggestion intended join hold now our sister circuits and to the exercising bar courts their district from Hicks, contrary. at 841. In See 103 F.3d discretionary authority pretrial to order retrospect, correctly our decision did not discovery and disclosures from the mandatory distinguish disclo- between ment under and conditions terms requirements sure of Rule 16 and the dis- normally manage use to the fair and courts discretionary authority trict to or- court’s Rather, efficient conduct of trials. Con- pretrial der disclosures of mandatory gress was concerned that dis- appropriate circumstances. witnesses Hicks, discourage government would closure rule the district court had ordered exchange testifying and lead to wit- parties witness lists and witnesses Napue, ness F.2d at anticipated short summaries witness intimidation. See (Em- comply Congress precluding party this rule." not read fails see, Fletcher, added.) phasis e.g., But authority discovery 74 F.3d regulate courts’ (citing authority granting at 54 Rule 16 as nonexpert just witnesses because regulate discovery broadly). specifically adopted pertaining certain rules expert witness disclosures. reasons predated Richter 1993 amendments to limiting expressed such are well Congress adopted provi- Rule in which Richter, 173-74. at concerning expert sions witness disclosures. amendments, Notwithstanding these we do (“The (a)(1)(F) conference committee ex- 16 require Rulе the govern- disclose, a requirement concern that such ment to at the pressed re- defendant’s quest, a discourage testifying summary any would witnesses from expert witness would contact ‘improper testimony lead to direct- intends to use ”) influencing testimony.’ (quot- during ed their its case-in-chief at trial as well as 94-414, (1975) H.R.Rep. No. at 12 “the bases ing and reasons for those opin- (Conf. ions”; Rep.), reprinted government’s documents within the 716). possession, Congress said custody U.S.C.C.A.N. control nothing use; about court’s the district discre- intends to and certain disclosure, tion to order such a scientific reports. The March 2005 case subject ability management expressly to the court’s to tailor dis- implemented *14 in specific particular to a provisions by timely closures concerns those requiring the case, protective including the use or- government’s disclosure of the expert wit- Fort, See, States v. e.g., ders. report nesses and an expert tailored to the Cir.2007). We there- expert issues on which expected each is to adopted overly fore conclude Hicks an testify. The December 2005 enforcement reading broad of Rule 16 and unnecessari- order expert also clarified that disclosures the ly restricted district court’s discretion- identify must the documents or informa- authority ary discovery to order from the tion that the expert reviewed in preparing prosecution. his or a report, her condition well within requirement Rule 16’s that expert disclo- sum, court, we hold that district sures describe bases and for “the reasons and consistent with Rule 16 Rule and as opinions.” those The district or- court’s part authority court’s inherent to imposing enforcing ders and expert these manage docket, inmay appropriate its cir- clearly witness were disclosures within its require government cumstances to the dis- authority Rule ‍​‌​‌​​​​‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌‌​‌‍16 and not an its abuse of a final list of trial proposed close its wit- discretion. nesses has the to enforce an order. such Hicks overruled to the Next, both expert as to and non- applied extent that it to such disclosures witnesses, expert government argues the by government. the requiring disclose it to list final year witnesses a before trial was unrea B. The District Exercise Court’s of its sonable and that the district court’s exclu Authority reports sion of witnesses disclosed that, government contends even if by December was an inappropriate authorized, orders the were both the reject government’s sanction. the ob We March 2005 order and the enforcement jections for reasons. several were an the orders abuse of court’s discre- First, the district court’s March 2005 We agree. Although tion. do not a dis- relatively early the order set a deadline for trict court’s discretion to order government to a final witness list provide unfettered, discovery is not the district Septem- advance of the then-scheduled did court not abuse its discretion here. ber 2006 trial. The record reflects that reason to good impose

We first address court’s or court had such however; deadline, expert insofar as the court ders concerned dis believed reports, bring closures and scientific the disclo the deadline would the neces- 16(a). by sary ready of which Rule governed organization sure focus and (a)(l)(E)(ii) (a)(1)(G), charged case for conspiracy Subsections trial. grown the number of witnesses had nearly years, govern- reaches back At the December 2005 counting. call than 200 233 and now more proposes ment hearing, rejected district court witnesses, many are defendants status there arguments expanding for government’s of docu- pages millions allegations, and further, finding govern- during discov- the list produced ments hаve been credibly claim that it is special “cannot now complex poses case ment ery. Such a adding necessary to continue witnesses challenges parties preparing to the already unwieldy Accordingly, list.” managing court in trial and to the Moreover, presentation it- that “the government’s ruled litigation. those trial will be limited to witnesses initially suggested September self had filing date, indicating that have been disclosed as trial [i.e., 5, 2005],” pre- December later could be this Order clarifying February asked pared for trial then. When only applied whether this limitation the March 2005 status conference case-in-chief, dis- ment’s not to rebuttal wit- expert could make its many Given the discussions September, closures the end nesses. about the fluid would be court had with counsel prosecutor responded, “[t]hat evolving case government’s asked a finalized nature of good,” and when about *15 by expressed trial the the that and and court’s concerns list witnesses exhibits government get have the unable to September, he said he seemed “d[id]n’t end control, government preparation The also trial under it could problem a that.” with hardly surprise have a that the court object not to the disclosure deadlines been did Rather, the when and it did. by 2005 order. froze witness list as set the March supposed it “final” list when filed its Third, even if were to the en we view unilaterally September simply it and sanction, they forcement orders as a still “right” supplement the list reserved its the would not be an abuse of court’s dis up to the time of trial. Given the size outset, emphasize At the we cretion. complexity the case and the addressing only preclusive are the ef for final acquiescence ment’s dates fect of the enforcement orders as disclosures, the dis- witness and document because, currently apart this stand trict wаs reason- court’s March order interlocutory government the has appeal, able and an of discretion.12 not abuse sought thus far no relief from the district Second, respect to government any particu the mischaracter- court’s orders with the an exclu- do not know izes enforcement orders as lar excluded witness. We sionary per or- whether the court be “sanction.” enforcement district would sanction; they government were to allow the to add or imposed ders a suaded simply the earlier order substitute one or more new witnesses for enforce See, timely e.g., of trial cause. D. Mont. R. 7.3 requiring good identification a documentary (permitting party witnesses evidence. to seek relief from the government March told the court finds new when district if it evidence cause). good it case that can Nonethe prepared try court was demonstrate less, government it relies September, estimated on United witnesses; by the calling Finley, would be 60 to 80 301 F.3d 1000 Cir. 2002), September proposition time filed its witness list the exclu- a Notably, the district did not take tember 30 deadline to a December 5 deadline court effectively Sep- rigid approach, converting virtue of the 2005 order. December imposed can sion of witnesses be as a ent'its case does not override district only sanction when the district court finds authority manage court’s the trial pro- of a violation disclosure was ceedings including by setting discovery — motivated desire to obtain “willful and a and disclosure deadlines—and Gatto does advantage.” (quoting a tactical Id. at 1018 not hold otherwise.13 Illinois, 400, 415, Taylor v. 484 U.S. government’s reliance on Gatto is (1988)). 646, 98 L.Ed.2d Be- S.Ct. misplaced. That case involved district court no such find- cause the district made case, requiring court order ings contends Finley, the exclusion orders cannot stand. provide discovery in accordance Rule however, Taylor, like involved defen- 16. Four weeks before trial well after evidence, right present dant’s not the discovery disclosure deadline had government’s, bearing and has no here. passed, government belatedly learned (“Because Finley, See 301 F.3d at 1018 cooperating state had rele- officials has Supreme recognized Court ‘[f]ew vant documents should been pro- have rights more than that are fundamental Invoking duced to the defendants. its au- present accused witnesses his own 16(d)(2) thority both under Rule and the defense,’ Taylor, 484 U.S. S.Ct. court’s supervisory power, inherent should particular courts use caution precluded use of the evidence applying remedy excluding the drastic during government’s case in-chief. Id. altogether.”). witness government’s at 1043. ap- On Finally, government argues peal, we held that the court lacked authori- a court legitimately compel even if can ty power under either its supervisory *16 list, government the to its disclose witness former, emphasized Rule 16. As to the we it government cannot force the to finalize government’s delay the in disclosure penalty list on of exclusion of later “any provi- had not violated constitutional witnesses, particularly year discovered sion, statute, specific discovery federal or- Relying before trial. on States v. der, any recognized right or other except (9th Gatto, 1040, Cir.1985), 16.” perhaps Id. at 1046. There [R]ule it the district contends court’s orders vio was no resort to need to the court’s inher- separation powers principle by lated the supervisory power any ent to other create improperly commandeering govern the remedy for a violation of Rule because investigatory prosecutorial ment’s and the specific rule itself contains remedies course, functions. Of orders did the no 16, for its violation. See id. As to Rule discussed, such thing we have —as we held that expressly government’s dealt managing with in proceedings failure to disclose the documents earlier courtroom, govern side the not with the did not violate the rule the state- because performance prosecutorial ment’s of its govern- held documents were not in the govern duties outside the courtroom. The investigate to 1049. pres- possession. ment’s discretion ment’s actual Id. at Although ring), Gatto has been bemoaned we that it such as disavow did create an rule,” ”lay[ing] govern- explain an down inflexible rule—the "absolute as we in text. As the right lately majority recognized, to call ment has absolute its in itself a dis- Schwartz acquired consequences may witness whatever the trict court exclude or wit- documents justice comply to the administration of in other nesses to re- for failure with court’s Schwartz, Schwartz, spects,” pretrial discovery United States v. or orders. See J., Cir.1988) (Hupp, concur- 857 F.2d at 659. Conclusion Gatto, IV. here Unlike if it to call were violate Rule would conclusion, we hold that the United timely dis were not expert witnesses who to § 3731 Attorney’s Therefore, may court the district closed. invoke our district court sufficed to authority Rule rely properly jurisdiction over interlocu- appellate its orders. appropriate to enforce where appeal. further hold tory We not mandated As to disclosures authority order and court had to district authority has inherent Rule the court pretrial disclosures of enforce order, discovery specific enforce its to evidentiary witnesses and documents ment if it violate would which not abuse its that the district court did wit nonexpert to call undisclosed were doing so here. Should discretion First, respect expert to nesses. a specific leave to add government seek disclosures, March 2005 the district court’s is foreclosed report witness believes of Rule was well within bounds orders, we by the district court’s already as we have discussed. leave it to the district to address order, object did not to principles with the request accordance right to instead reserved itself but opinion. have set in this forth through supplement its disclosures AFFIRMED. at trial. The district close of evidence Rule under court had the HAWKINS, DALY Circuit MICHAEL 16(d)(2) reject this unilateral reservation Judge, with whom PREGERSON discovery re rights and enforce WARDLAW, Judges, join, Circuit rule; it did quirements mandated III, concurring concurring Part as to authority. its inherent not need resort to judgment: Second, man the March 2005 order’s witnesses, nonexpert who date disclose issues, closely face both We two related express not come terms do within dealing ability judges with the district in Rule 16 nothing Rule Gatto —or criminal One is manage complex trials. itself, as we have discussed Section judge may order the whether *17 111(A) precludes a district court from re a final witness list provide — authority its to order lying on inherent to the of trial. This one prior beginning its witness disclosures to enforce such absolutely holding Opinion gets right, noted, gov expressly As order. Gatto continuity trial out- that the interests of “any specific had not violated ... ernment any withholding those weigh interest discovery Id. at Here there order.” disclosing only them when the names violated, order, an and if it was such The appropriate. deems it prosecution as a may court exclude evidence delay can prosecution is whether the other Although there are limits to the sanction. interlocutory require appeal a trial and authority, inherent the dis district court’s evidentiary ruling nothing more on an court within its trict here is well say By my lights, Opinion than so. enforcing a valid manage its docket only gets wrong, one but also not discоvery order. pretrial way colleague See along creates what our Talbot, 183, 187-88 n. & 5 “hazard to Judge States Goodwin describes as a (9th Cir.l995)(distinguishing up evenhand- navigation” Gatto to the efficient and justice in trial holding exclusion of witnesses ed administration of our order). courts. for violation of disclosure reasons, following respectfully

For the I the time of the incident out of which the part portion from the Opinion deal- 2679(d)(1). § claim arose.” Id. A sepa- ing § with 18 U.S.C. 3731. rate subsection of the provides same Act that a suit commenced state court shall Statutory

I. Text be removed to federal upon the At- According majority, plain to the lan- torney General’s scope-of-employment cer- § guage of precludes this court from tification, and that “[t]his certification of exercising any independent judgment over the Attorney General shall conclusively jurisdiction. its own I disagree. scope establish of office or employment for purposes 2679(d)(2) § The removal.” Id. paragraph second pro- added). (emphasis vides: Importantly, there is no similar provision 2679(d)(1); §in appeal by An Con- the United States shall lie gress never stated that the Attorney to a court of Gen- appeals from a decision or eral’s certification order of a district court would be conclusive suppressing or excluding inquiry. substitution requiring evidence or the re- property turn of seized in a criminal Supreme Court has considered both proceeding, not made after the defen- the removal and substitution subsections of put dant has been in jeopardy and be- the Westfall Act. Interpreting the removal fore the verdict or on an finding indict- provision, the explained Court that “Con information, ment or if the United gress gave district no authority courts attorney certifies to the district return cases to state ground courts on the court thаt is not taken for Attorney General’s certification purpose of delay and that the evidence is was unwarranted.... For purposes of es proof a substantial of a fact material in tablishing a adjudicate forum to the case proceeding. 2679(d)(2) ... renders Attorney this, Reading majority believes that General’s dispositive.” Os it is evident from the statute’s phrasing Haley, born v. 549 U.S. 127 S.Ct. appeals courts of are forbidden (2007). 166 L.Ed.2d 819 reading This from applying even the most modest scru- perfect sense, makes textual for if it were tiny to Attorney’s the United States certi- “open to a district court to remand a re my fication. reading, On the statute is ground moved action on the that the Attor ambiguous and nothing the text compels ney erroneous, General’s certification was majority’s interpretation. 2679(d)(2) the final instruction in would begin We a straightforward propo- weightless. be Attorney General’s only sition: not knows how to certification would ‘conclusively estab appeals tell courts of completely to defer *18 scope lish of office employment’ or for Attorney, to the United States it has done either trial or removal.” Id. at 895. just that in the confines of a remarkably contrast, By similar the Supreme certification Court has statute. Under the Act, 2679, held that scope-of-employment § Westfall the U.S.C. when a certifi- 2679(d)(1) § cation employee federal is sued for a under wrongful or substitution —the act, negligent provision the United reviewable. States is to be Gutierrez de —is party 417, 434, substituted as the Martinez v. “[u]pon Lamagno, defendant 515 U.S. (1995). by Attorney 2227, certification the General that S.Ct. 132 L.Ed.2d 375 employee 2679(d)(1) the defendant acting § was As a syntax, within matter of cannot scope employment of his office or meaningfully at be distinguished from by the Attor- “[u]pon certification phrase Act of Westfall § That section 3731. “shall,”2 General,” the word made ney or in full: рrovides, preclude intent Congress’s evident Attorney Gen- Upon beyond Attorney looking courts employee was the defendant eral that Instead, naked certification. General’s of his office or scope acting within “Congress did not ad- believed Court time of the incident employment at the if unambiguously, precise issue dress arose, any civil claim which the out of all____ is, Act on the at Westfall [T]he upon commenced proceeding action or confront, question open we ‘who decides’ in a United States such claim 424, Id. at divergent interpretation.”3 against an action shall be deemed 2227. S.Ct. provisions under States thereto, all references of this title and Supreme perceived Court Where States shall be substitut- and the United 2227, 425, fog,” id. “statutory at 115 S.Ct. party ed as the defendant. intent majority congressional finds added). 2679(d)(1) (emphasis 28 U.S.C. reasonably expressed “has been Martinez, “[njothing terms.” We are told de Supreme plain Gutierrez requires ... the statute question [as] framed sole “[t]he Court prove the evidence decides on which side [scope-of- go of the further who or excluded the district suppressed case falls: the local employment] line the or, proceeding unreviewably actually court is material to the Attorney, United States contested, jurisdiction can A fair our attach.” decision is before when that official’s 423-24, that establishes point, at but not one 515 U.S. S.Ct. the court.”1 unambiguous. Using the same majority present statute is Unlike nothing clear that case, reasoning, not hold that seems did Court here, argue Attorney acting I the contrast was in the outcome 1. The local United States pre- Act and Attorney General. 515 U.S. between the Westfall on behalf 421, Supreme suggesting that the cludes me from S.Ct. 2227. inquiry. Court resolved our ultimate For ex- Martinez, Attorney ample, in de Gutieirez majority emphasizes the wоrd "shall” 2. The would have led to an 3731, it, General’s certification suggesting, I we must take sovereign automatic dismissal of the case jurisdiction if the United States Attor- exercise immunity grounds, and "when a Government necessary ney facts. As a textual certifies determination of a fact or circum- matter, official's provides very guidance, little the word example, 'scope employment'— stance—for "legal reality that writers even aside from the controversy, misuse, dispositive of a court federal use, mean sometimes 'shall' ” 'will,' generally do not the determina- 'should,' courts hold 'may.' de or even Gutieirez Martinez, 9, Martinez, de tion unreviewable.” at 432 n. 115 S.Ct. Gutieirez 515 U.S. And, 2227; U.S. at 115 S.Ct. 2227. id. at 433 n. 115 S.Ct. 2227 see also discussed, the inclusion of the word "conclu- (noting Rule of Civil Procedure that Federal removal, 16(e) sively” respect to and its ab- and Federal Rule of Criminal Procedure issue, authorize, 11(b) respect but sence with to the substitution "use the word 'shall' action”). judicial agree provided strong evidence that the lat- require, I textual not to jurisdiction discretion to decline if ter was reviewable. See id. at 115 S.Ct. have no 2227; Attorney's Haley, certification obli- also 549 U.S. the United see Osborn 881, 895, (2007). dispute only gation is I the nature satisfied. 127 S.Ct. 166 L.Ed.2d 819 *19 obligation, question upon Additionally, particu- of that which is the court looked to the bearing. impetus adoption which the word "shall” has no unique that led to lar and 425-26, the Westfall Act. 515 U.S. at legislative backdrop only my 2227. That does rely de S.Ct. 3. I on Gutieirez Martinez Although apply here. analysis. the case resulted not textual prohibits statute the court from exam- that the United Attorney States must cer- ining Attorney’s the United States certifi- tify appeal, Congress plainly intended cation. that the decision to an interlocutory take serious, appeal be a considered judgment, majority guidance por-

The finds simply not an administrative formality.” reads, §of provisions tion 3731 that “The liberally shall be [§ 3731] construed to Deterring appeals frivolous is as much purposes.” Congress effectuate its did of a statutory purpose enabling worthy explicitly purposes, state its so provi- this ones, and the liberally Loud Hawk rule question-begging.4 sion invites some The construes the requirement certification majority posits purpose that “[t]he effectuate purposes. both Far being § give 3731 is to a window hurdles, jurisdictional unwritten condi- opportunity challenge a district tions identified Loud Hawk are drawn court’s exclusion of allegedly material evi- straight § from 3731’stext. majority, The attaches; jeopardy dence before we should however, appears content liberally con- not, therefore, read into the statute an strue the first half of paragraph, while hurdle, unwritten additional if even well strictly construing the second half. intentioned.” Interestingly, jurisdiction- of the three This reading Congress’s distorts intent. conferring provisions §of only the majority’s The description would accu- be one at issue this requires gov- case if rate there no require- were certify ernment facts to the district ment in the statute. But requirement exists, court.5 This suggests Congress undoubtedly espe- and it was reflects Con- cially gress’s prosecutors concern that the concerned that federal might Indeed, appellate rights. might abuse its ability abuse the to interlocutorily majority recognizes “[b]y specifying appeal orders,6 suppression thereby unnec- majority wisely ignores 4. The appeal by In a criminal case an the United Wilson, ment's invocation of United appeals States shall lie to a court of from a decision, judgment, which held that 3731 was "intended to re- or order of a district dismissing court statutory move all an indictment or informa- barriers to Government granting tion or appeals new trial after verdict appeals and to allow or whenever the counts, judgment, any as to one or more or permit.” Constitution would 420 U.S. thereof, any part except that no (1975). shall 95 S.Ct. 43 L.Ed.2d 232 jeopardy lie where the double clause of the appreciate fails to that Wil- prohibits United States Constitution further entirely separate dealt son with an and inde- prosecution. pendent portion §of 3731 that enables the case, prosecution appeal, in a criminal “a appeal by An the United States shall lie to a decision, judgment, or order of a district order, appeals court of from a decision or dismissing an indictment or information entered a district court ‍​‌​‌​​​​‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌‌​‌‍of the United granting judg- or a new trial after verdict or States, granting person the release of a ment.” The Wilson Court’s conclusion that offense, charged with or convicted of an or appeals intended to "allow whenev- of, denying a motion for revocation or mod- permit” er the Constitution would rested on of, ification of the conditions a decision or legislative history applied exclusively granting release. 337-39, paragraph of 3731. See id. at 95 S.Ct. 1013. stylistic purposes, rely "sup- 6.For I will orders,” evidence,” pression “suppressing 5. provision that concerns us in this case phrases and like as shorthand for an "order paragraph is found in the second suppressing excluding of a district court paragraphs The first and third of this requiring section evidence or the return of seized property read in full: proceeding.” ain criminal *20 520 accompa- report and the and that Allott’s remarks proceedings,

essarily disrupting three concerns ad- nying act a H.R. 8654 reveal supposed to as certification was by provision. possible it dressed While is meaningful check. potential counter decided to First, designed was legislation an unre- by requiring prоsecutorial abuse by grant- prosecutions facilitate successful

viewable, by boilerplate opportunity to chal- ing alone, § the text of 3731 does prosecution important evi- lenge suppression express this intent. unambiguously not that “our hoped Allott dence. Senator agencies given will be law-enforcement History Legislative II. meaningful a tools with which to launch statutory language ambig- problem critical of crime Where attack on the uous, legislative history for country,” explained we “turn to and he “[i]t congressional intent.” Dent v. obviously prove evidence of much better to case with Inc., Vegas, upon Las 502 F.3d than tangible Cox Commc’ns and concrete evidence (9th Cir.2007). 1141, Although the 1145 wit- testimony oral and observation of (state- history directly resolve legislative fails at Cong. nesses.” Rec. Allott). here, it does shed question presented report The House ment of Sen. Congress’s purpose adopt- light granting some a motion to noted that an order paragraph. effect, ing 3731’ssecond “in suppress evidence is often to an bringing prosecution final order paragraph adopted, second was end, pro- for the Government is unable to slightly language,7 part as of the different evidence.” suppressed ceed without Streets Omnibus Crime Control Safe (1967). 90-603, H.R.Rep. No. 90-351, VIII, 1968, Act No. tit. Pub.L. 197, Second, 1301(a), origi- provision was intended to 82 Stat. 237-38. The development complete of a nal and House bills did not contain lead to “the Senate proposed body regarding legality as an of law provision; was presently hampered to the Senate bill Senator searches and seizures amendment inability bring v. of the Government to Allott of Colorado. United States Gree- (D.C.Cir.1969) 1103, appellate significant 1104 n. 2 to the courts cases” ly, 413 F.2d curiam); 14787, Cong. arising suppression Rec. out of orders. Id. at 3. (per (1968). The amendment was law of search and seizure and con- “[T]he 14787-89 uncertain,” bill, highly House fessions and the previously-passed [was] identical to (1967). 8654, that uncer- Cong. H.R. amendment would ameliorate 90th Senator amending suppression paragraph original language the certification 7. The Government’s, requirement provided Stales including that the United was to make "the " Attorney certify judge who was to 'to the hearings, merely probation revocation granted appeal motion that the is not such 91-1296, pretrial suppressions." S.Rep. No. delay purpose and that the evi taken Hines, (1970); at 2 see also United States v. proof charge dence is a substantial 173, (10th Cir.1969) (holding 419 F.2d 174-5 ” pending against the defendant.’ See United government's right that the under (D.C.Cir. Greely, apply probation the 1968 statute did not 1969) curiam). (per requirement was hearings). One final amendment revocation part amended to its current form 1971 paragraph corrected a to the now-second of the Omnibus Crime Control Act of grammatical error. Violent Crime Control 91-644, III, Stat. Pub.L. No. tit. and Law Enforcement Act of Pub.L. No. (1971). Although amendment the 1971 103-322, XXXIII, 330008(4), tit. Stat. language slightly altered of tire certifica 1796, 2142. requirement, primary purpose tion

521 (state- ney’s 114 at tainty. Cong. By revealing Rec. 14788 certification. Con- Allott) (internal quotation concerns, however, ment of Sen. gress’s history omitted). Dior, In United States v. marks guides liberally us our efforts to con- concern, recognized noting that the we strue the statute in order effectuate all overriding purpose provision “the of the purposes. of its government appeals permitting immediate suppression

from to deal with orders was Proper Interpretation III. of government the harm which the lack of legislative history confirms appeals development worked on the of the Congress exclusively was not concerned suppression.” law with fаcilitating prosecutions; successful Cir.1982). rather, Congress was eager also to see the goals These two were not to come at the develop body courts coherent of search expense rights. of a criminal defendant’s law, and seizure and was solicitous of de- A report authored the President’s rights. fendants’ It goals is these latter on Commission Law Enforcement and Ad- that inform our understanding of the certi- Justice, favorably by ministration of cited requirement. fication Allott, Senator stated that “[w]here dispute There is no government prosecution permitted from appeal appealing is forbidden from for pur- orders, rules should be established pose delay or from an suppressing protect the defendant’s interest in ob- evidence that is insubstantial or immateri- taining speedy Cong. trial.” Rec. at al, modify and Loud Hawk does not those Commission admonished the precise substantive conditions. The ques- “appeals should not be tion before us procedure by concerns the routinely every pre- taken from adverse which chose to enforce these re- They trial ruling. should be reserved for How, words, strictions: other does the cases in which there is a substantial law requirement impact ability our enforcement interest.” Id. The House to ensure that comply- Judiciary Committee stressed that ing jurisdictional with the conditions? defendants, course, “rights have been taken into consideration and are If the same present conditions were way impinged upon” by no the bill. requirement, without a certification 90-603, H.R.Rep. provision No. 3. The presumably would have the required prosecution pursue appeals duty to ensure were satisfied. thirty days within of the district court’s Corp., v.Y H Arbaugh See & 546 U.S. prosecute and to “diligent- decision them 126 S.Ct. 163 L.Ed.2d 1097 ly.” appeals expected The courts of were (2006) (stating that сourts “have an inde- dispose appeals despatch these “with pendent obligation to determine whether justice, so the interest of both on the exists, subject-matter jurisdiction even Government, part of the defendant any par- a challenge the absence of quickly possible.” will be met as Id. If, ty”). example, vio- §of nothing legislative paragraph There is histo- lated the fourth thirty ry speaks directly filing appeal to the its notice of more than propriety order, reviewing days pertinent courts the United States Attor- after the this court paragraph provides: 8. The fourth or order has been and shall be dili- rendered "The in all such shall be taken gently prosecuted.” cases decision, thirty days judgment within after the Coopers Lybrand Livesay, & dismissing appeal, appeals.” even would consider *22 463, 474-75, 2454, 57 expressly does not 437 U.S. 98 S.Ct. though the statute (1978). though, review grant right independently Importantly, L.Ed.2d 351 us See, filing. e.g., judge opens gate Unit- the timeliness of the once the district 1177, court, F.3d 1180 Belgarde, complete, ed v. 300 this we exercise undefer Cir.2002) (9th timeliness of (considering ential review to determine whether 1292(b)’s Shaffer, § v. filing); § 3731 United States properly court found that certi (9th Cir.1986) 682, n. 3 789 F.2d 686 requirements fication were satisfied. (same). Sloan, Inc., James v. Price Stern 283 F.3d (9th 1064, Cir.2002); n. In re Ce 1068 6 ability presumptive to deter- Given this 1020, Litig., ment Antitrust 673 F.2d jurisdiction, majority mine own our (9th Cir.1982). Only judge’s the district para- that the second must have concluded deny escapes decision to certification our graph only expressly impos- §of not Am., scrutiny. Executive N. Inc. on the At- obligation es an United States Software (9th Court, v. Dist. F.3d U.S. torney, silently strips also this court of but Cir.1994); L.A. Oppenheimer County v. jurisdictional facts. to review (9th Dist., Flood 453 F.2d 895 Control not, however, why Congress told We are Cir.1972) curiam). (per highly step would wish to take the unusual precluding independently of us from re- of a Our review district court’s decision viewing jurisdiction. our grant deny petition- a habeas corpus or gatekeeping 3731 serves a func- Section request Appealabil- for a of er’s Certificate by balancing prosecution’s tion desire (“COA”) ity is even broader. “In federal appeal suppression orders the de- with corpus proceedings, ... exer- habeas prompt in a fense’s and court’s interest jurisdiction appellate dependent cise of orderly Congress may and trial. have entirely of a upon issuance COA.” prosecutors reviewing poten- tasked Alameda, Phelps v. 366 F.3d interlocutory in- appeals tial the first 2253(c). Cir.2004); see also 28 U.S.C. stance, experience but with certification judge a district panel When motions provisions significant in two other contexts one, grants a court of appeals panel merits suggests did not intend to irrevocably jurisdiction vested with wholly jurisdictional inquiry. outsource our Alameda, appeal. Phelps over the In actions, may appeals beyond

In civil courts of we held that “COAs are not merits interlocutory scrutiny”; appeal panel granted, entertain an after one is if retain contract “power non-final district court order the district to vacate or to judge fashioning it.” In opinion certifies he is “of the rule, controlling ques- Phelps acknowledged such order involves court ga- tion of law as to which there is substantial that “we must be ever mindful of the ground opinion tekeeping efficiency of functions of the difference may appealability.” an immediate from the order certificate of Id. at 728 omitted). (internal materially termi- quotation advance the ultimate marks Nev- ertheless, litigation.” explained, pursuit nation the court “the 28 U.S.C. 1292(b). efficiency support “serves the alone does not The certification purpose ensuring [appellate] against examining validity dual absolute bar And, appropriate review will be confined to of a COA.” Id. in contrast 1292(b) denials, juris- avoiding time-consuming cases and when a dis- COA, dictional trict court we review its determinations denies limitations, upon petitioner’s type-volume R.App. re- Fed. P. determination See, Schriro, e.g., 28.1(e)(2), 32(a)(7)(B), Stokes v. quest. they must con- (9th Cir.2006). Compliance tain a Certificate at- tests that the applica- brief adheres to the examples two show the remarka- These 32(a)(7)(C). limitations, P. R.App. ble Fed. majority’s ruling. two ble nature jurisdiction, Congress of our core areas These certifications do not a ga- serve employed the device of certification to has function, tekeeper not a are *23 eliminating assist us in—without de- —our presenting means of the courts with useful jurisdictional termination of conditions. They information. a much serve more ba- why Congress explanation Without as to purpose: sic reminding parties of their result, majority such a would desire obligation comply to with the courts’ rules. much prosecutor tells us that a deserves See, e.g., 11 advisory Fed.R.Civ.P. commit- judges than greater deference (“The require tee’s note rule continues to analogous gatekeeper-like re- tasked with litigants to ‘stop-and-think’ initially before sponsibilities. simply This does not contentions.”). making legal or factual It that square with the notion the decision to goes without saying give weight no is, bottom, jurisdiction, judi- exercise to such certifications when determining cial, not a function. prosecutorial, attorneys any whether the have committed con- paradox puzzling This is when one violations; attorneys’ sanctionable self- § require- of the ceives inherently interest makes the certification device, gatekeeping ment as a but it be- untrustworthy. troubling comes when the certification is in admonitory viewed as nature. §in requirement The certification purpose serves a similar to these rules. It formalities, and in Certifications are provides a forceful reminder to federal they may “perform some contexts a cau- prosecutors “Congress recognized tionary by acting or function deterrent importance minimizing appellate of inter- action.” Lon against a check inconsiderate process,” ference the trial United States Form, Fuller, L. Consideration Dior, Cir.1982), (1941). L.Rev. Parties in Colum. and that the is to take serious- the federal courts are familiar with certifi- ly obligation respect defendants’ requirements cation serve caution- so, By doing implicitly it rights. recog- ary function. Under Federal Rule of Civil Attorneys nizes that United States are 11, attorneys fil- sign Procedure must participants prosecu- biased in criminal court, and, ings they to the district submit way private tions. In the same that most attorneys upon filing, certify that the realize, in attorneys would the absence of being improper not filed for an papers are signing require- Rule ll’s and certification delay; such as to harass or cause purpose, ment, improper pursue legal that it is legal supported contentions are opponent, claims in order to harass an few arguments nonfrivolous existing law or prosecutors needed 3731 to inform them law; existing to alter that factual conten- file an for the improper likely evidentiary tions have or are to have delay disrupt purpose proceedings or to support; and that denials of factual con- evidence, unimportant piece over an evidence. tentions are warranted on belief, requirements exist The certification or lack of information. Fed. (b). 11(a), level, simply to describe the appellate At the both instances R.Civ.P. put parties on no- attorneys’ subject specific regulations, briefs are but to statute, purpose and the courts take of the the fa- tice that identifiable attorneys prosecutions. make. cilitation successful Pros- seriously the choices pursuing worthy appeals ecutors have little Congress’s clearly expressed con- Given precedents. Certifying to fear from our potential prosecutors cern over the requirements presents little ad- appellate rights, abuse their it is hard to inconvenience, prosecu- ministrative and a requires the statute us to believe actively tor involved in the case should blindly Attorneys or trust United States difficulty making necessary have no supervise who them.9 The men and those fact, showing majori- to the court. Department are women Justice ty’s rule and the Loud Hawk rule would servants, public fíne dedicated to advanc- divergent only lead to results those Nevertheless, ing public interest. in which appealing cases recognition Congress’s prosecutors’ self- delay, purpose challenging for the interest is inherent and we suppression of immaterial or insubstantial unfaithful congressional would be intent *24 majority evidence. The approach the if repudiated recognition that when adopts today appeals will allow such to construing the statute. proceed, although appears this to contra- By my lights, the Loud rule Hawk more Congress’s vene clear intent. effectively statutory goals advances the Congress hoped also that 3731 would majority’s approach. than the For start- yield well-developed body of search-and- ers, the Loud Hawk rule is modest. Sec- jurisprudence. seizure The Loud Hawk government tion 3731 that provides goal ways. rule furthers in two may only appeal suppression of evi- First, keeps government it honest proof dence that “is a substantial of a fact ensuring prosecutors ap- that do not takе material proceeding.” peals suppression from the of immaterial Adrian, States v. we held that “we will find in insubstantial evidence order to es- government to have satisfied this addi- repeat players tablish favorable law. As jurisdictional requirement if, tional assum- courts, prosecutors the federal have admissible, ing that the evidence would be long-term incentive to take the view. a reasonable trier of fact could find the opportunity When an to seemingly make persuasive evidence in establishing the “good along, law” comes there will abe proposition government for which the temptation pursue to it even if it will have seeks to admit it.” 978 F.2d impact little a prose- the case which Cir.1992) added). (emphasis Adrian ex- currently cutor is example, involved. For plicitly rejected an interpretation that suppresses if the district court some trivi- “require would to demon- al prosecutor evidence that feels is strate that the highly proba- evidence is unnecessary particular prosecu- tive.” Id. tion, may appeal anyway she if the facts prosecution burden on the is thus are such that she has the chance to have slight, allay any and this should fear that appeals courts of announce a might ment-friendly Loud Hawk undermine the first rule of law.10 great respect 9. While I have Attorneys might always for the author of United be placed. Opinion distinguished McKay, well See John Train WreckAt prior and his ser- Department: Eyewitness the Justice official, An Ac- Department vice as a senior of Justice count, (2008). Seattle U.L.Rev. 265 experience might suggest I wonder if recent supervision that the comfort he finds in the appeals 10. That the chooses its Main Justice officials over activities of Rather, speculation. with care is not mere it circuits); Kojayan, Hawk rule favors United States v. Additionаlly, the Loud cf. (9th Cir.1993) by enabling the development (stating of the law gain a better under- appeals overwhelming majority prosecu- courts of “[t]he cases. appealed decent, ethical, of the facts of standing lawyers tors are honorable or- Interlocutory appeals suppression power who understand the awesome trial, taken before typically wield, ders are responsibility goes and the with necessarily limited. the record is therefore temptation always it. But the there: could be tasked panel This means that thing peo- It’s the easiest in the world for in a near factual making with new law ple trained in adversarial ethic develops properly vacuum. The law most win”; job think a prosecutor’s simply all judges when can evaluate facts relevant citing in support). cases case, just pertain to a and not those explicitly If had made the Hawk, discrete issue. Under Loud some Attorneys’ United States certifications con- familiarity with the case gains this court clusive, it scope-of-employ- did for the the excluded evi- by assessing whether ment certifications under the Act Westfall a fact mate- proof dence is a substantial issue, when removal was at I would con- proceeding. rial in the court would cede be left no explain why meaningful will the evidence is choice faith in place but our the execu- light larger evidentiary picture, reads, currently tive branch. As howev- opportunity and the defense has the er, § places no such restrictions on explanation. By ju- the time contest *25 jurisdictional our review. Loud Hawk cor- established, judges the will risdiction is rectly juris- respect demands that we our a sense of what the case is greater have limits, so, in doing dictional shield consequences poten- and the of their about trial speedy rights defendants and their rulings. tial misguided occasional prosecutor. the accommo- The Loud Hawk rule also Recognizing improper our concern about purpose, protect- dates the statute’s final majority appeals, attempts to minimize majority The finds ing rights. defendants’ impact holding. of its It insists that rhetoric; aspirational my comfort in its blindly government, will not trust “expect the concerns about friv- colleagues disrupt proceedings on a nor allow to disruptive attempts olous or to involve us This is because the merits of “[i]f whim. prematurely ongoing proceedings trial appeal independently require us to government’s ... will be addressed truly ma- question whether the evidence § ap- and careful invocation of wise terial, government’s certification is not peals.” experience opti- belies this Our conclusive.” “[ujnfortu- that, mism. have noted We sequitur completely mischarac- nately, government attorneys from This non some my position. § I do not assert that time to time treat the 3731 certification terizes formality Hawk rule affects our merits requirement as a mere and even the Loud timely analysis; recognize in a I that under either the neglect to file the certification rule, Gantt, majority’s Hawk rule or the manner.” States v. 194 Loud Cir.1999); bearing any § on see id. at 997 3731 certification has no materiality assessment of the (citing & n. 4 cases from this and other substantive appealing. policy requires before See FEC d’etre of the tor General raison 88, 96, Fund, Victory 513 U.S. government lawyers approv- to obtain NRA Political federal (1994). Solici- 115 S.Ct. 130 L.Ed.2d 439 al from the Office of the United States delay purpose for the will achieve point The re- suppressed evidence.11 alacrity. however, purpose regardless of our mains, prosecution will pursue inter- have unchecked Indeed, very appeal demonstrаtes this suppression all or- locutory appeals from necessity. gov- rule’s The the Loud Hawk certain in a Even if this court were ders. in this appeal ernment filed its notice certification was inac- given case It filed another case on March jurisdictional condi- curate and that interlocutory regarding separate appeal violated, we would be tions of 3731 were 23, 2006, August yet another issue on dismiss, and we would be powerless September appeal, on 2006. In this adjudicate appeal on the forced to initially provide refused to Laville, e.g., United States v. merits. See any three-judge panel evidence to (3d Cir.2007) 187, 196-98 sup- that the support its bare certification (McKee, J., concurring) (expressing “con- material, further de- pressed evidence was the certification the Govern- cern[ ] liti- laying proceedings. government’s pursuant filed to 18 U.S.C. ment gation strategy effectively has derailed the that “it may disingenuous,” noting ap- be trial, criminal while it no doubt continues filed,” reflexively pears to have been for more its search witnesses victims. “doubt[ing] that 3731 certification limbo, The trial date remains and the afforded the consideration was right speedy defendants’ trial has intended,” acknowledging but that circuit completely been frustrated. possibility foreclosed the of re- precedent Further, majority to apprehend fails view). majority’s dogged attack on rule, design point- Loud Hawk suggests recognizes this straw man that it ing precedent nothing out that our “does that it is un- problematic result and get argument calendar with the breadth of its own comfortable any prevailing than the certification- faster ruling. rule,” only and that “because we must first review, jurisdictional By raising power expedite our determine the issue and then *26 majority disruptive separately, also determine the merits a final thе discounts the § currently of It determination under the Loud Hawk rule appeals. value filing may longer.” to ten of well take This the takes nine months the misses interlocutory major- in a criminal if it true that appeal point. an case Even were the ity’s a placement argument slightly to its on an calen- rule will lead to faster dis- position appeals, dar.12 Even if we were able to somehow of individual half, hardly reduce that time it would still warrants the conclusion that Loud delay pro- pro- amount to an in trial Hawk is not “efficient.” Loud Hawk inordinate ceedings. power appeals. Under the naked the ma- vides a deterrent to frivolous As deterrents, jority gives government, the taken with the benefit appeals most is not above, majority requires gov- in 12. the somehow finds consolation As noted have the notion that certification will no appeal suppression an a ernment to file of bearing analysis. The ma- substantive thirty days ruling. order within of the Al- teriality suppressed vd non of the evidence though provision salutary, this is defendants most, many, will not be relevant in if not (which and district courts also have an inter- Thus, interlocutory appeals. the Loud speedy proceedings) in still endure est must inquiry typically only oppor- Hawk will be the lag government's the substantial between the tunity reviewing this court has for appeal and our notice of decision. suppressed ment's claim that the evidence is in fact material. prosecutor seriously process follows a has incentive to realized rule, interlocutory consider whether to seek an underlying but breach of scrupulously appeal. hasty rule is Even a decision to chal- cases in which the process.13 lenge suppression for fear of that To of insubstantial or observed confusion, immaterial may helpful might any be evidence be reconsid- eliminate way actually facing in which Loud Hawk ered when to review the task operates compliance. ‍​‌​‌​​​​‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌​​​​‌‌​‌‌​‌‍Similarly, as a deterrent. Loud Hawk a writ- showing provides prosecutor’s ten su- today, only adopt Under the rule we periors something they truly can standing prosecutor a thing between evaluate; rely need not on the trial interlocutory appeal piece paper. an is a prosecutor’s vague assurances an prosecutor A faced with unfavorable suppressed important. evidence is thir- suppression order must decide within majority, my hope expecta- and must leave Like the ty days appeal, whether to wisely approval tion is that the will act enough time obtain carefully suppressed deciding If the evi- when whether to Solicitor General.14 value, interlocutory appeal, questionable pursue will she dence is ability fully time to consider its material- its unchecked to do so will take the independent judgment chance diminish the of dis- ity? slightest If there is even the prose- judges making important trict might that the evidence bolster buy pre- evidentiary rulings. majority, time further Unlike the cution’s case or case, temptation though, will be there I would measure that confidence pare its any paraphrase serious consideration of the with caution. To a former forgo President, “trust, verify.”15 I requirements, secure would but certification question Only way provide congres- will not can we knowledge sionally necessary desired to safe- justification appeal. for the decision to review guard rights. defendants’ contrast, rule, by Hawk The Loud thoughtful pro- to a The Loud Hawk rule secures the conti- conducive Knowing showing sup- nuity proceedings by ensuring that the cess. modest required, purposes delay not taken port of the certification will be example: regulations is mоre efficient than 13.An Traffic are de- rule of Loud Hawk safe, signed keep pedestrians accepting drivers and simply certification as sufficient to patrols and law enforcement vehicle further jurisdiction.” I am not the one establish our goal by providing monitoring and en- seeking prece- to overturn three-decades-old *27 forcement mechanism. When a violator is majority If the seeks to im- dent however. pursued, momentary danger detected and empiri- pugn my reasoning it because is not may high-speed be elevated if a chase ensues. substantiated, cally I would think it would patrols keep Are we to conclude that do of its own. offer some evidence safe, pedestrians drivers and then? Do very goal they to ad- undermine the seek Nothing requires the local Unit- 14. Hardly. obey Countless drivers vance? Attorney approval ed States to seek the being traffic laws because of threat of nothing in the rule the Solicitor General and safety gains punished, and that is how the are today gives majority the courts fashions aggregate. things achieved in the All other question it appeals the whether long safety gain being equal, as the so occurred. has outweighs deterred the elevated the violations chases, danger during police levels of law See, Signing e.g., the Interme- Remarks on 15. provide positive benefit. enforcement will Treaty, diate-Range Nuclear Forces II Pub. intuition, beyond my I concede that own I (Dec. 1987) (Ronald Reagan). Papers 1455 certification-plus “have no evidence that the that is both substan- and involves evidence majority rule the

tial and material. The today prosecutor permits

embraces the stroke of a

disrupt proceedings with

pen. Congress require per- did not us to and we

mit that when enacted

should not do so now. America,

UNITED STATES

Plaintiff-Appellant,

WEALTH AND TAX ADVISORY

SERVICES, INC., Defendant-

Appellee.

No. 06-55915. Appeals,

United States Court

Ninth Circuit. O’Connor, Metzler, Eileen J. Robert W. Argued April and Submitted 2008. Wolfinger, and Gretehen M. United States May Filed Justice, D.C., Department Washington, plaintiff-appellant. for the David Jacobs and Deanna L. Balleste- ros, Green, Epstein Ange- Becker & Los les, CA, defendant-appellee. for the HALL, Before: CYNTHIA HOLCOMB *28 NELSON, T.G. and BARRY G. SILVERMAN, Judges. Circuit PER CURIAM: today 29-page We hold that a “draft opinion taxpayers’ letter” sent ac-