U.S. v. Adrian

• Decision Date: 19 October 1992
• Docket Number: Nos. 91-10523,91-10587,s. 91-10523
• Citation: 978 F.2d 486
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Clinton ADRIAN, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. James Clinton ADRIAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 486

978 F.2d 486

UNITED STATES of America, Plaintiff-Appellant, v. James Clinton ADRIAN, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. James Clinton ADRIAN, Defendant-Appellee.

Nos. 91-10523, 91-10587.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 17, 1992.

Decided Oct. 19, 1992.

Nina Goodman, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Stanton Bloom, Tucson, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: WALLACE, Chief Judge, and GOODWIN and POOLE, Circuit Judges.

POOLE, Circuit Judge:

I.

Appellee James Clinton Adrian was indicted on December 19, 1990, for conspiracy and possession with intent to distribute marijuana. On August 20, 1991, prior to jury selection, the government sought permission to introduce evidence during its case in chief that Adrian had previously been convicted in Arizona for possession of cocaine. The court initially ruled that the evidence could be introduced with a limiting instruction. Following impanelment of a jury, the government moved in limine for permission to introduce evidence that Adrian had a federal conviction for conspiracy to distribute cocaine. The district court expressed concern that it had erred in its prior ruling that the state court conviction would be admissible, and withheld a ruling on both convictions. A mistrial was declared on August 22, 1991, and trial was reset for October 15, 1991.

The government filed a motion on September 4, 1991, seeking to have the district court reconsider the request to use Adrian's prior convictions in the case in chief. A hearing was held on the motion, and the district court subsequently denied the request. The court reasoned that evidence of appellant's two prior convictions tended only to prove a criminal disposition, and consequently found that any probative value was "vastly outweighed by the almost certainty of prejudice."

On September 27, 1991, the government filed a timely notice of appeal with this court, and certified to the district court that it was appealing the order excluding evidence, that the appeal was not taken for purposes of delay, and that the evidence excluded was "substantial proof of a material fact in the proceedings." The government moved at the same time to stay proceedings pending appeal, and a hearing was held on that motion. On October 10, 1991, the district court denied the motion for stay, finding that the evidence suppressed was not substantial proof of a fact material to the government's case. The court ordered the indictment dismissed without prejudice in order to "best protect[ ] the government's right to appeal." The government filed a timely notice of appeal from the order denying the Motion to Stay Proceedings. We vacate the order dismissing the appeal, and remand for reconsideration of the government's motion to introduce the evidence.

II.

Before reaching the merits of the case, we must address Adrian's claim that the appeal is moot. The second notice of appeal filed by the government advised that:

the United States of America ... appeals to the United States Court of Appeals for the Ninth Circuit from the order denying the Plaintiff's September 27, 1991 Motion to Stay Proceedings Pending Interlocutory Appeal to the Ninth Circuit Court of Appeals, entered in this action on October 10, 1991.

Adrian argues that because the government described the order in this manner, it was only appealing from the district court's denial of the Motion to Stay Proceedings, and not from the dismissal of the indictment. Adrian thus concludes that the government's appeal has been mooted by the dismissal. We disagree, however, with his reading of the government's notice of appeal. The Federal Rules of Appellate Procedure require that:

The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.

Fed.R.App.P. 3(c). The order specified by the government as the subject of its appeal was the order dismissing the case without prejudice. Thus, the government provided adequate notice under Federal Rule of Appellate Procedure 3(c) that it was appealing from the order dismissing the case. Even if the government failed to explicitly note that it intended to appeal from that part of the order dismissing the indictment, however, we have held that such a mistake "does not bar an appeal if the intent to appeal a specific judgment can be inferred and the appellee is not prejudiced or misled by the mistake." United States v. Shin, 953 F.2d 559, 560 (9th Cir.1992). Adrian has fully briefed and argued the merits of the district court's dismissal of the indictment, and thus has not been harmed by the government's oversight. See id. We therefore decline to hold that the government's appeal is barred, either by mootness, or by a failure to file an adequate notice of appeal.

III.

Adrian next contests our jurisdiction to hear the government's appeal from the order excluding the evidence of his prior conviction. Based on the district court's finding that the evidence suppressed was not substantial proof of a material fact, appellee claims that the statutory prerequisites to jurisdiction have not been met. ¹ The government argues that we derive jurisdiction over the interlocutory appeal from 18 U.S.C. § 3731 (1988), which provides in relevant part:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] 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.

Adrian first postulates that section 3731 does not allow appeals from orders excluding evidence of a defendant's prior conviction. He offers no support for this argument other than his belief that section 3731 is concerned exclusively with evidence excluded or suppressed on constitutional grounds. Were we to read such a limitation into the statute, however, we would find ourselves in conflict with the Supreme Court's directive that the purpose of the statute is "to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975). Moreover, as the government notes, we have always entertained appeals under section 3731 regardless of the justification for excluding the evidence. See, e.g., United States v. Layton, 767 F.2d 549 (9th Cir.1985) (Layton II ) (evidence excluded under Fed.R.Evid. 403); United States v. Layton, 720 F.2d 548 (9th Cir.1983) (Layton I ) (evidence excluded under Fed.R.Evid. 801), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984). The district court's suppression of the evidence under Federal Rule of Evidence 404(b) in this case provides a legitimate basis for interlocutory appeal under section 3731.

Adrian also argues, however, that the evidence of his prior convictions is not "substantial proof of a fact material in th[is] proceeding," and that therefore the government may not bring an appeal under section 3731. The district court, in its order dismissing the indictment, agreed with appellant. The government contests the district court's finding, and argues in the alternative that the plain language of section 3731 permits an appeal whenever the government certifies to the district court that the evidence is "substantial proof of a fact material," regardless of the truth of that certification.

In the past we have required more than the prosecutor's bare certification that the conditions enumerated in section 3731 exist. In United States v. Loud Hawk, 628 F.2d 1139 (9th Cir.1979) (en banc) (Loud Hawk I ), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980), for example, we predicated the right to appeal not only upon certification, but also upon satisfaction of those conditions. Id. at 1150. We have intermittently reaffirmed this holding. See, e.g., United States v. Gatto, 763 F.2d 1040, 1050 (9th Cir.1985) ("The government has a conditional right to appeal a suppression order."). The government has asked us to revisit these rulings, arguing that Loud Hawk I has been overruled. We disagree. Following remand to the district court in Loud Hawk I, a second appeal was brought on different grounds. We affirmed, but the Supreme Court reversed. See United States v. Loud Hawk, 741 F.2d 1184 (9th Cir.1984), rev'd, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (Loud Hawk II ). The government contends that this subsequent history "casts doubt on the correctness" of the en banc court's decision in Loud Hawk I. Even if this were true, however, the Supreme Court's decision in Loud Hawk II in no way addressed the prerequisites for jurisdiction under section 3731, and we have subsequently reaffirmed our holding that the government's right to appeal is conditional. Gatto, 763 F.2d at 1050.

The government also argues that imposing additional jurisdictional requirements conflicts with United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979). The Supreme Court there noted:

We agree with the Court of Appeals that 18 U.S.C. § 3731 authorized the Government to appeal the District Court order restricting the evidence that could be used at trial. All of the requisites of § 3731 were met. There 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.

442 U.S. at 487 n. 6, 99 S.Ct. at 2439 n. 6...