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United States v. Grace

United States Court of Appeals for the Ninth Circuit

December 12, 2007, Argued and Submitted En Banc, Pasadena, California; May 15, 2008, Filed

No. 06-30192

Opinion

 [*502]  FISHER, Circuit Judge:

We granted en banc review of this appeal by the government, brought pursuant to 18 U.S.C. § 3731, to resolve two questions. First, does a United States Attorney's simple certification under § 3731 that the government's interlocutory appeal in a pending criminal case is not taken for purpose of delay and that the evidence the district court suppressed or excluded is substantial proof of a fact material in the proceeding suffice to establish our jurisdiction to hear the interlocutory appeal? Second, if so, did the district court in this case have the authority to order pretrial disclosure by the government of its final list of witnesses and evidentiary documents and to exclude witnesses and evidence not timely disclosed in compliance with such orders?

First, we hold that the United States Attorney's bare certification regarding delay and materiality in accordance with the terms of § 3731 was sufficient to give us appellate jurisdiction to address the government's objections to the  [**4] district court's orders. We therefore overrule our prior decisions to the extent that they conflict with our ruling today, including United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979) (en banc), and United States v. Adrian, 978 F.2d 486 (9th Cir. 1992). Second,  [*503]  we hold that the district court did have the authority to issue and enforce its pretrial orders compelling the government to disclose its witness list and did not abuse its discretion in doing so. We therefore also overrule United States v. Hicks, 103 F.3d 837 (9th Cir. 1996), to the extent that it purported to deny the district court such authority.

OVERVIEW

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526 F.3d 499 *; 2008 U.S. App. LEXIS 10453 **; 38 ELR 20123

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. W. R. GRACE; ALAN R. STRINGER; HENRY A. ESCHENBACH; JACK W. WOLTER; WILLIAM J. MCCAIG; ROBERT J. BETTACCHI; O. MARIO FAVORITO; ROBERT C. WALSH, Defendants-Appellees.

Subsequent History: On remand at United States v. Grace, 2009 U.S. Dist. LEXIS 13904 (D. Mont., Feb. 10, 2009)

Prior History:  [**1] Appeal from the United States District Court for the District of Montana. D.C. No. CR-05-00007-DWM. Donald W. Molloy, Chief District Judge, Presiding.

United States v. Grace, 493 F.3d 1119, 2007 U.S. App. LEXIS 16602 (9th Cir. Mont., 2007)United States v. Grace, 402 F. Supp. 2d 1178, 2005 U.S. Dist. LEXIS 32453 (D. Mont., 2005)

Disposition: AFFIRMED.

CORE TERMS

district court, certification, disclosure, witnesses, interlocutory appeal, witness list, orders, appeals, discovery, certification requirements, courts, purpose of delay, enforcement order, suppression, disclose, pretrial, parties, certifies, cases, substantial proof, suppress evidence, court of appeals, material fact, proceedings, conditions, documents, manage, merits, rights, suppression order

Criminal Law & Procedure, Appeals, Right to Appeal, Government, Appellate Jurisdiction, Authority of Appellate Court, Jurisdiction & Venue, Jurisdiction, Standards of Review, De Novo Review, Discovery & Inspection, Discovery by Government, Appellate Review & Judicial Discretion, Discovery by Defendant, General Overview, Governments, Legislation, Interpretation, Preliminary Proceedings, Pretrial Motions & Procedures, Courts, Authority to Adjudicate, Trials, Judicial Discretion, Rule Application & Interpretation, Tangible Objects, Scope of Disclosure, Expert Testimony, Reports of Examinations & Tests