EDITH BROWN CLEMENT, Circuit Judge:
In this interlocutory appeal brought pursuant to 18 U.S.C. § 3731,
Defendants Mose Jefferson and Renee Gill Pratt are charged, inter alia, with conspiracy to violate the Racketeer Influenced and Corrupt Organizations (RICO) Act. On August 21, 2009, Jefferson was convicted of two counts of bribery in violation of 18 U.S.C. § 666(a)(2) and two counts of obstruction of justice in violation
That same day, the government filed a notice of appeal to this court pursuant to 18 U.S.C. § 3731, accompanied by the required certification of United States Attorney Jim Letten to the district court that "the instant appeal is not taken for purposes of delay and that the evidence [excluded by Judge Lemelle's order] is substantial proof of a fact material in the proceedings."
Issues of subject matter jurisdiction are questions of law and are reviewed de novo. See Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 327 (5th Cir.2008) (quotations omitted). Before turning to the merits of the appeal, this court will address Defendants' and the district court's misconception regarding our jurisdiction over appeals taken pursuant to § 3731. Section 3731 "permits the United States to appeal orders `suppressing or excluding' evidence in criminal cases so long as the relevant United States Attorney `certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.'" United States v. Smith, 135 F.3d 963, 967 (5th Cir.1998) (quoting 18 U.S.C. § 3731). "The provisions of this section shall be liberally construed to effectuate its purposes." 18 U.S.C. § 3731. We have interpreted § 3731 as providing "the government with as broad a right to appeal as the Constitution will permit." Smith, 135 F.3d at 967.
The Supreme Court addressed the "requisites of § 3731" appeals in United States v. Helstoski, 442 U.S. 477, 487 n. 6, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979). Specifically, the Court found that § 3731 requires that "[t]here was an order of a District Court excluding evidence; a United States Attorney filed the proper certification; and the appeal was taken within 30 days." Id. The Court also noted that "the purpose of the section was to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." Id. (quotations omitted).
We have little difficulty concluding that § 3731 affords the government a basis for an appeal in this case: 1) the district court entered an order excluding evidence; 2) United States Attorney Jim Letten filed the proper certification; and 3) the appeal was taken within 30 days. The "requisites of § 3731 [are] met." Helstoski, 442 U.S. at 487 n. 6, 99 S.Ct. 2432. The district court's conclusion that § 3731 "does not apply to an evidentiary ruling concerning a matter that is not an element of the charged offense" is erroneous. First, the statute contains no such limitation and instructs
Indeed, once the government timely files an appeal under § 3731 and the United States Attorney makes the required certification, we cannot evaluate the materiality of the excluded evidence to determine whether or not to hear the appeal. Defendants rely on Smith for the proposition that this court must look beyond the United States Attorney's certification and make an independent inquiry as to whether the evidence sought was "substantial proof of a fact material to the proceeding." Although Smith did state that the evidence excluded in that case, a videotape containing allegedly false allegations, was substantial proof of a fact material to that case, Smith does not stand for the proposition that this court must make a materiality determination prior to hearing a § 3731 appeal.
Our sister circuits that have considered this issue are in accord that the United States Attorney's certification is sufficient to establish appellate jurisdiction. See, e.g., United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir.2008) (en banc) ("[W]e now hold that a certification by a United
In United States v. DeQuasie, the Fourth Circuit concisely explained the policy underlying § 3731's certification requirement:
373 F.3d 509, 515 (4th Cir.2004); see also United States v. Smith, 263 F.3d 571, 577 (6th Cir.2001) (quotation omitted) ("The certification is intended to ensure a `conscientious pre-appeal analysis by the responsible prosecuting official.'"); United States v. Herman, 544 F.2d 791, 794 (5th Cir. 1977) ("The requirement is not a mere formality; its purpose is to protect the accused from undue delay."). We additionally note that, although not required by the statute, the United States Attorney's Manual provides an additional level of review—"[a]ll appeals to the lower appellate courts handled by . . . United States Attorneys . . . must be authorized by the Solicitor General. This includes interlocutory appeals . . . ." U.S. ATTY MANUAL 2-2.121.
This is not a close case. The statute is clear—the United States Attorney's certification that the appeal is not taken for purpose of delay and that the evidence excluded by the district court's order is a substantial proof of a fact material in the proceeding is the final word on materiality for the purposes of determining whether we have jurisdiction to hear the appeal. Neither the district court nor this court can hold otherwise. As the government recognizes, the United States Attorney remains subject to this court's general supervisory powers for discipline for frivolous or abusive interlocutory appeals. But that in an appropriate case we may potentially sanction the government for abusing its authority under § 3731 does not mean that we do not have jurisdiction to hear the appeal.
Having determined that we have jurisdiction to hear this appeal, we turn to its merits. Evidentiary rulings are reviewed for abuse of discretion. United States v. Parks, 68 F.3d 860, 867 (5th Cir.1995).
Federal Rule of Evidence 609 governs the admissibility of evidence of convictions for impeachment purposes. Relevant here, the rule provides that "[f]or the purpose of attacking the character for truthfulness of a witness . . . evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness." FED R. EVID. 609(a)(2). "Crimes qualifying for admission under Rule 609(a)(2) are not subject to Rule 403 balancing and must be admitted." United States v. Harper, 527 F.3d 396, 408 (5th Cir.2008). Rule 609(a)(2) contains "mandatory language [and] requires that a trial court admit evidence of such crimes to
Jefferson's prior convictions for bribery are crimes involving dishonesty. "[B]ribery is a crimen falsi in that it involves dishonesty . . . . Hence, it is automatically admissible [under] FED.R.EVID. 609(a)(2)." United States v. Williams, 642 F.2d 136, 140 (5th Cir.1981).
Jefferson's prior convictions for obstruction of justice in violation of 18 U.S.C. § 1512(b)(3) are admissible under Rule 609(a)(2) "if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness." FED R. EVID. 609(a)(2). Section 1512 provides:
18 U.S.C. § 1512(b)(3). "Ordinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement." FED.R.EVID. 609, advisory committee's note to 2006 amendments. A defendant can be convicted of § 1512(b)(3) for intimidating or threatening another person—actions which do not involve acts of dishonesty or false statement. The statutory elements of § 1512(b)(3) therefore do not indicate whether Jefferson's convictions thereunder are crimes of dishonesty or false statement warranting automatic admission under Rule 609(a)(2). However, "[w]here the deceitful nature of the crime is not apparent from the statute and the face of the judgment. . . a proponent may offer information such as an indictment . . . or jury instructions to show that the factfinder had to find . . . an act of dishonesty or false statement in order for the witness to have been convicted." Id.
We turn to the indictment in the earlier case and conclude that Jefferson's convictions for obstruction of justice involve dishonesty or false statement. The obstruction of justice charges contained therein, counts 6 and 7, read, in relevant part, as follows:
Indictment at 9, United States v. Mose Jefferson, No. 08-CR-085 (E.D.La. Apr. 2, 2009). Because counts 6 and 7 each charge that Jefferson knowingly and corruptly attempted to persuade another to lie to the authorities, we hold that the indictment shows that "the factfinder had
The record reflects that the district court was concerned with the effect that Jefferson's convictions might have on the jury pool during voir dire. First, we note that this matter is not before this court and that we express no opinion on the district court's management of the voir dire process, which has yet to begin.
"The admission of prior convictions involving dishonesty and false statement is not within the discretion of the Court." FED.R.EVID. 609, advisory committee's note to subsection (a). "Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted. Thus, judicial discretion granted with respect to the admissibility of other prior convictions is not applicable to those involving dishonesty or false statement." Id. Accordingly, we hold that the district court abused its discretion in excluding evidence of Jefferson's convictions for impeachment purposes.
All orders entered by the district court following the filing of the notice of appeal and United States Attorney Letten's certification pursuant to § 3731 are VACATED AS ISSUED WITHOUT JURISDICTION. The district court's order excluding evidence of Jefferson's convictions for purposes of impeachment is VACATED and this case is REMANDED for further proceedings consistent with this opinion.
Id.
FED.R.EVID. 404(b).
The authorities cited by Defendants, neither of which involve § 3731 appeals, are inapposite. In United States v. Lafayette, the D.C. Circuit held that "[i]mpeachment of a witness who testified as to a peripheral fact as a part of a substantial and massive government case" was not material enough to warrant a new trial. 983 F.2d 1102, 1106 (D.C.Cir. 1993). Jefferson is a defendant, not merely a witness, and presumably the questions directed at him on cross-examination will expand beyond peripheral facts. Contrary to Defendants' assertions, Lafayette does not stand for the proposition that impeachment evidence is always peripheral such that it cannot be considered substantial proof of a fact material in the proceeding. Nor is the unpublished report and recommendation from a Magistrate Judge in Skinner v. Duncan, No. 01 Civ. 6656, 2003 WL 21386032 (S.D.N.Y. June 17, 2003) helpful to Defendants. "Suppressed impeachment evidence is material . . . where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case." Id. at *23 (discussing suppressed evidence to impeach government's witness and concluding that where the witness did not testify, the suppressed impeachment evidence was not material). Here, of course, the evidence of Jefferson's convictions will only be admitted if he chooses to testify.