United States v. Jefferson

Case: 10-30941 Document: 00511254734 Page: 1 Date Filed: 10/06/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 6, 2010

No. 10-30941 Lyle W. Cayce

Summary Calendar Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellant

v.

MOSE JEFFERSON; RENEE GILL PRATT,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

Before BENAVIDES, CLEMENT, and ELROD, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

In this interlocutory appeal brought pursuant to 18 U.S.C. § 3731,1 the

government appeals the district court’s pretrial order excluding evidence of the

1

In relevant part, § 3731 states:

An appeal by the United States shall lie to a court of appeals from a decision or

order of a district court suppressing or excluding evidence or requiring the

return of seized property in a criminal proceeding, not made after the defendant

has been put in jeopardy and before the verdict or finding on an indictment or

information, if the United States attorney certifies to the district court that the

appeal is not taken for purpose of delay and that the evidence is a substantial

proof of a fact material in the proceeding.

Id.

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prior convictions of Defendant Mose Jefferson for purposes of impeachment. We

VACATE the exclusion order and REMAND this matter for further proceedings

consistent with this opinion.

FACTS AND PROCEEDINGS

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 of 18 U.S.C. § 1512(b)(3). The government moved to introduce evidence

of Jefferson’s prior convictions in its case-in-chief as intrinsically related to the

conduct at issue in the pending trial pursuant to Federal Rule of Evidence

404(b).2 The district court denied the government’s motion by written order on

August 27, 2010, but stated that “the Government is allowed to use defendant

Mose Jefferson’s prior conviction for purposes of cross-examination if the

defendant testifies.”(emphasis in original).3 Jefferson later made a motion to

change venue and Defendants made a joint motion to quash jury venire. In those

motions, Defendants raised the issue of voir dire regarding jurors’ knowledge of

Jefferson’s convictions. United States District Judge Ivan L.R. Lemelle held a

2

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or

accident, provided that upon request by the accused, the prosecution in a

criminal case shall provide reasonable notice in advance of trial, or during trial

if the court excuses pretrial notice on good cause shown, of the general nature

of any such evidence it intends to introduce at trial.

FED . R. EVID . 404(b).

3

The district court’s decision to exclude the introduction of Jefferson’s convictions

under Rule 404(b) is not at issue.

2

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hearing on the motions and ordered additional briefing. After receiving the

additional briefs, Judge Lemelle denied both motions, but “FURTHER

ORDERED that evidence of Defendant Mose Jefferson’s prior conviction is

inadmissible.” (emphasis in original). The government then moved for

reconsideration, or in the alternative, to continue the trial for forty days so that

the government could seek authorization to appeal the district court’s decision.

Defendants filed an opposition. On September 29, 2010, the district court denied

the government’s motion to reconsider and its alternative motion to continue the

trial.

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.” 4 Later

in the same day, the district court held a status conference during which the

government moved for stay of the criminal trial proceedings. Judge Lemelle

denied the motion for stay, stating “it was my interpretation under the cited

statute [§ 3731] then that evidence of a prior conviction in this context is not an

essential element of the crime charged and, therefore, in my interpretation, not

substantial proof of a fact material in the proceedings.” Judge Lemelle gave the

government until noon the following day, September 30, to comply with its other

pre-trial orders, to submit “something on point on [the issue of whether the

4

As will be explained below, the filing of the § 3731 appeal and the United States

Attorney’s accompanying certification instantly divested the district court of its jurisdiction

over this case. Therefore, although we discuss the remainder of the actions taken by the

district court to give context to our discussion, we note that the district court was without

jurisdiction to take any further action on this case as of the time and date that the government

filed its notice of appeal and certification.

3

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district court was divested of jurisdiction upon the filing of the § 3731 appeal]

before we start trial,” or face dismissal of the Third Superseding Indictment.

On September 30, the government filed an emergency motion seeking stay

of the criminal trial proceedings5 in this court, which Defendants opposed. That

same day, this court granted the emergency motion for stay until October 11,

2010. This court additionally ordered simultaneous expedited briefing on the

merits of the appeal and ordered the district court to instruct the jury venire to

be available for trial on October 11, 2010. Immediately before this court granted

the government’s emergency motion, and although without jurisdiction to do so,

the district court reconsidered its earlier order. Judge Lemelle reiterated his

belief that Ҥ 3731 does not apply to an evidentiary ruling concerning a matter

that is not an element of the charged offense” and stated that “the Government’s

appeal in this case does not require this Court to relinquish jurisdiction.” He

then concluded that “because as far as this Court can determine, the underlying

evidentiary ruling is one of first impression, the Court will stay the case to allow

the Government to seek relief from the Fifth Circuit.” In granting the

government’s emergency motion to stay, this court explained it would render a

decision in an expedited manner. This matter is ripe for adjudication.

DISCUSSION

I. 18 U.S.C. § 3731

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

5

The trial was scheduled to start on October 4, 2010.

4

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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 (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. 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 courts to “liberally construe [the statute] to effectuate its purpose.”

Id. Second, the plain text of § 3731 limits it to “evidence [that] is substantial

proof of a fact material in the proceeding,” id., not evidentiary rulings concerning

matters that involve elements of the charged offense as stated by the district

court. Evidence may be “substantial proof of a fact material in the proceeding”

without being an element of the charged offense. Moreover, and more

5

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importantly, the evaluation as to whether the evidence excluded by the district

court “is substantial proof of a fact material in the proceeding” is to be made by

the United States Attorney, not the district court.6

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.7 Smith is also distinguishable from this case because it required the

court to determine whether the equities of the case excused the government’s

failure to comply with § 3731’s non-jurisdictional timing requirements. Smith,

135 F.3d at 967–68. In Smith, the court had the discretion to exercise appellate

jurisdiction under § 3731 because the government’s appeal was untimely. Id. at

967 (“[W]e may still entertain § 3731 appeals certified in an untimely manner.”)

(emphasis added). Where, as here, the appeal is timely filed, “[a]n appeal by the

United States shall lie to a court of appeals . . .” and we need not consider the

6

Cf. 28 U.S.C. § 1292(b) (In civil cases, we may entertain interlocutory appeals from

a non-final district court order if the district court certifies that it is “of the opinion that such

order involves a controlling question of law as to which there is substantial ground for

difference of opinion and that an immediate appeal from the order may materially advance the

ultimate termination of the litigation.”).

7

Smith also recognized that, “[a]s the statute instructs . . . the government considered

whether its appeal would delay justice and whether it sought substantial proof of a material

fact.” Smith, 135 F.3d at 968 (emphasis added).

6

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equities of this case because we do not have the discretion to decline

jurisdiction.8 18 U.S.C. § 3731 (emphasis added).

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 States Attorney

(personally, not by an Assistant United States Attorney) that the appeal is not

taken for the purpose of delay and that the evidence is substantial proof of a fact

material in the proceeding is sufficient for purposes of establishing our

jurisdiction under § 3731.”); United States v. Centracchio, 236 F.3d 812, 813 (7th

Cir. 2001) (“We therefore treat as conclusive of our jurisdiction over a [§ 3731]

Paragraph 2 appeal the submission of the [United States Attorney’s] certification

required by the statute.”); In re Grand Jury Investigation, 599 F.2d 1224, 1226

(3d Cir. 1979) (“Pursuant to 18 U.S.C. § 3731, the United States Attorney has

certified that this appeal ‘is not taken for the purpose of delay and that the

evidence is a substantial proof of a fact material in the proceeding.’ The district

court having received this certification, we are not required by section 3731 to

evaluate independently the substantiality or the materiality of the contested

material.”); United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000) (“The

language of § 3731 implies that mere certification is required to demonstrate

materiality.”); United States v. Juvenile Male No. 1, 86 F.3d 1314, 1326 (4th Cir.

1996) (Wilkinson, J., concurring) (“[C]ertification by the U.S. Attorney under 18

8

Defendants additionally rely on United States v. Arce-Jasso for the same proposition.

389 F.3d 124 (5th Cir. 2004). In Arce-Jasso, the court rejected the government’s contention

that “a post-verdict suppression order fails to become material to the proceedings until the

court decides to grant acquittal” such that § 3731’s 30-day time limit was tolled. Id. at 129.

Although the court discussed the materiality of the suppressed evidence to determine when

the 30-day period began to run, it did not evaluate materiality in order to determine its

jurisdiction. Indeed, the court dismissed the appeal on the basis of untimeliness, not

materiality. Id. at 130 (“The Government did not appeal in time; therefore, we lack jurisdiction

to review the suppression decision.”).

7

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U.S.C. § 3731 that an appeal from an adverse suppression ruling is not taken for

purposes of delay and involves evidence material to the proceedings” is

an“executive determination [that has been] deemed outside the scope of judicial

review”).

In United States v. DeQuasie, the Fourth Circuit concisely explained the

policy underlying § 3731’s certification requirement:

The certification requirement of § 3731 operates to ensure that

before the United States interrupts a criminal proceeding (and

thereby delays a defendant from obtaining resolution of the charges

against him) by taking an interlocutory appeal, it has evaluated

whether the appeal is warranted . . . the certificate itself operates

as proof of the evaluation.

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. A TTY M ANUAL 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

8

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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.9 Accordingly, we hold that we have jurisdiction to hear the appeal

under § 3731, and that as of the time the government filed its notice of appeal

and the United States Attorney filed the required certification under the statute,

the district court was instantly divested of its jurisdiction to take any further

action in the case pending resolution of the appeal and remand from this court.

All orders entered by the district court following the filing of the notice of appeal

9

There is no abuse of authority in this case. We need devote only a footnote to

dismissing Defendants’ contention that Mose Jefferson’s prior convictions are not substantial

proof of a fact material in the proceedings. If he testifies, Jefferson’s prior convictions are

“substantial proof of a fact material in the proceedings.” We again highlight the district court’s

conflation of “substantial proof of a fact material in the proceedings” with “an evidentiary

ruling concerning a matter that is not an element of the charged offense.” A practitioner’s

treatise defining materiality in the context of evidence law is instructive: “Materiality is the

relationship between the proposition on which the evidence is offered and the issues in the

case.” ANTHONY J. BOCCHINO & DAVID A. SONENSHEIN , A PRACTICAL GUIDE TO FEDERAL

EVIDENCE 46 (Nat’l Institute of Trial Advocacy 2006). In this case, if he testifies, the

proposition for which evidence of Jefferson’s convictions will be offered is Jefferson’s

credibility. If he testifies, Jefferson will have made his credibility an issue in the case—his

credibility clearly will be “a fact material in the proceedings” and his convictions will clearly

be “substantial proof” of that fact.

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.

9

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and United States Attorney Letten’s certification pursuant to § 3731 are hereby

VACATED AS ISSUED WITHOUT JURISDICTION.

II. Whether the District Court Erred by Excluding Evidence of

Jefferson’s Convictions for Impeachment Purposes

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.” F ED R. E VID. 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 allow a party to impeach an

adversary witness’s credibility.” Coursey v. Broadhurst, 888 F.2d 338, 341–42

(5th Cir. 1989) (emphasis added).10

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] F ED. R. E VID . 609(a)(2).” United States v.

Williams, 642 F.2d 136, 140 (5th Cir. 1981).

10

We note with express disapproval that none of the cases cited by Defendants in

support of their proposition that Jefferson’s convictions should not be admitted for

impeachment purposes involved a court applying Rule 609(a)(2). Defendants’ uncontroversial

assertion that convictions admitted under Rule 609(a)(1) are subject to balancing by the

district court under Rule 403 is irrelevant.

10

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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.” F ED R.

E VID. 609(a)(2). Section 1512 provides:

(b) Whoever knowingly uses intimidation, threatens or corruptly

persuades another person, or attempts to do so, or engages in misleading

conduct toward another person, with intent to—

....

(3) hinder, delay, or prevent the communication to a law enforcement

officer or judge of the United States of information relating to the

commission or possible commission of a Federal offense or a violation of

conditions of probation, supervised release, parole, or release pending

judicial proceedings.

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.” F ED. R. E VID. 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

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obstruction of justice charges contained therein, counts 6 and 7, read, in relevant

part, as follows:

Count 6: On or about May 21, 2007, in the Eastern District of

Louisiana, defendant MOSE JEFFERSON did knowingly and

corruptly attempt to persuade Ellenese Brooks-Simms to lie to

federal law enforcement authorities . . . .

Count 7: On or about May 25, 2007, in the Eastern District of

Louisiana, defendant MOSE JEFFERSON did knowingly and

corruptly attempt to persuade Ellenese Brooks-Simms to lie to

federal law enforcement authorities . . . .

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 to find . . . an act of dishonesty or

false statement in order for [Jefferson] to have been convicted.” F ED. R. E VID.

609, advisory committee’s note to 2006 amendments. Accordingly, we hold that

evidence of Jefferson’s obstruction of justice convictions must be admitted for

impeachment purposes under Rule 609(a)(2) should he choose to testify.

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.11 But the district court’s decision to avoid applying Rule 609(a)(2) due to

its view that the “overriding principal [sic] is constitutional law in the criminal

context [and] is to avoid manifest injustice period” was an abuse of discretion.

“[R]eliance on the ‘interest of justice,’ without more, does not afford the district

11

Relatedly, although we are highly dubious of Defendants’ argument that the

application of Rule 609(a)(2) contravenes the constitutional safeguard of the right to a fair

trial, this argument is not ripe. Evidence of Jefferson’s convictions has not yet been introduced

and indeed may ultimately never be introduced if Jefferson chooses not to testify.

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court any basis to ignore the Federal Rules of Evidence . . . .” United States v.

Atkins, 294 F. App’x 892, 894 (5th Cir. 2008) (per curiam).

“The admission of prior convictions involving dishonesty and false

statement is not within the discretion of the Court.” F ED. R. E VID. 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.

CONCLUSION

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.

13