* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-40979

Summary Calender

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

FRANCIS MICHAEL CARDEN, STEPHEN AUSTIN NEWBERRY,

KELLY BETH McFATTER, ALFRED FLOYD SIMMONS, III,

RODNEY A. VICK, JORDAN ROSS NOVELLI,

STEPHEN RAY LAUSEN, and DEBBIE LAUSEN,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(G-95-CR-2)

_________________________

May 29, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

The government brings this interlocutory appeal of an order

excluding most of its evidence. Concluding that the district court

abused its discretion, we reverse and remand.
1 The discovery order stated in relevant part:

It is further ORDERED that, subject to reconsideration, the

government's production as to [Novelli's motions] shall be made, as

the government has agreed, one week before commencement of trial.

2

I.

The defendants are charged with conspiracy to possess with

intent to distribute cocaine in violation of 21 U.S.C. § 846;

defendant Carden is also charged with money laundering in violation

of 18 U.S.C. § 1956. The indictments seek criminal forfeiture of

the defendants' property obtained from the proceeds of their

alleged drug dealing.

In anticipation of trial, Novelli filed five discovery

motions, requesting that the government be compelled to disclose

all evidence it intended to offer under FED. R. EVID. 404(b); to

produce all agreements between the government and its witnesses; to

produce all Jencks Act materials; to disclose all evidence the

government intended to offer under FED. R. EVID. 405; and to

disclose all statements of alleged indicted and unindicted coconspirators. The prosecutor then in charge of the case agreed to

the requests and, on May 30, 1996, pursuant to FED. R. CRIM. P. 16,

the magistrate judge entered a discovery order requiring the

government to turn over the aforementioned information at least one

week in advance of trial, which was then set to begin April 4,

1997.1 Before that date, however, the court granted a defense

motion for a continuance and set a new trial date of Monday, August
2 Neither the defendants nor the district court has suggested willfulness

as the cause of the government's failure to comply with the discovery deadline.

3

18, 1997; a status conference was set for Friday, August 15, 1997.

The government replaced its attorney in charge; the new

attorney was not aware that he needed to comply with the discovery

order.2 Instead, he instituted other discovery procedures that may

or may not have availed the defendants of the information they were

requesting.

The defendants let the discovery order deadline pass without

comment. Then, the day before the status conference, the

defendants filed a motion to sanction the government for its

failure to comply with the discovery order; the government had not

made the required productions and disclosures at least “one week”

before the commencement of trial. The defendants sought to prevent

the government from introducing any evidence connected with its

untimely compliance with the order. Upon the filing of the motion

for sanctions, the government complied with the discovery order.

Finding that the government had violated the order, the

magistrate judge granted the motion in limine and excluded all

evidence related to that order from being introduced against any of

the defendants. The magistrate gave the government the option of

proceeding to trial without being able to introduce the body of its

proof, or of dismissing the indictment without prejudice and

attempting to re-indict.

The government appealed the in limine order unsuccessfully to
3 Section 3731 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 court suppressing or

excluding evidence . . . 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. . . .

The appeal in all such cases shall be taken within thirty days

after the decision, judgment or order has been rendered and shall be

diligently prosecuted.

4

the district court. After the district court denied the

government's motion for reconsideration, the government filed a

timely notice of interlocutory appeal to this court under 18 U.S.C.

§ 3731.3 Pursuant to § 3731, the Assistant United States Attorney

certified that “the appeal is not being taken for purposes of delay

and that the court's conditional order will result in either

dismissal of the indictment or the exclusion of evidence that is

substantial and material to the government's prosecution in this

case.”

II.

Novelli, Stephen Lausen, and Debbie Lausen contest our

jurisdiction to hear this appeal under § 3731 because the limine

orders are conditional; these orders prevent the government from

introducing the evidence identified therein unless it first obtains

approval from the district court. Therefore, according to these
4 The other defendants affirmatively state that this court has jurisdiction;

they raise no jurisdictional challenge.

5

three defendants,4 “[t]his appeal must fail as the Limine orders do

not suppress or exclude evidence. . . . Section 3731 does not

apply to orders which require some action which may later result in

the exclusion of evidence. United States v. Camisa, 969 F.2d 1428,

1429 (2d Cir. 1992); United States v. Kane, 646 F.2d 4, 5-6 (1st

Cir. 1981).”

“Title 18, U.S.C. § 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, 1998 LEXIS U.S. App.

2598, at *5-*6 (5th Cir. Feb. 23, 1998) (No. 97-30320) (quoting

18 U.S.C. § 3731). The jurisdictional issue is whether the

“conditional” limine orders constitute an “exclusion” of evidence

for purposes of § 3731. 

A reading of the magistrate judge's and district judge's

orders reveals that the government faces an exclusion of most of

the evidence needed to prove its case and therefore can appeal

under the terms of § 3731. Unlike the circumstance in the cases

the defendants cite, in this case the evidentiary exclusion is not
5 In Camisa, the court rejected the government's invocation of § 3731

jurisdiction to appeal an order disqualifying a lawyer that could, thereafter,

have precipitated the exclusion of evidence. See Camisa, 969 F.2d at 1429. Such

cases are explained by the loose nexus between the district court's order and the

eventual exclusion of evidence. Although § 3731 is to be construed broadly, see

Woolard, 981 F.2d at 757, at some point the actions of the district court will

be too tenuous to support a challenge under this section. In contrast to the

cases defendants cite, the nexus between the orders and the exclusion of evidence

is very tight here. Accordingly, we have § 3731 jurisdiction.

6 Cf. United States v. Woolard, 981 F.2d 756, 757 (5th Cir. 1993) (arguing for

a liberal construction of § 3731 appealability of the “dismissal” of an indictment).

6

conditioned upon some future event that may or may not occur.5

Rather, here it is the admission of evidence that is

conditioned upon some future event that is probabilistically

uncertain: the court's change of heart concerning its adoption of

Novelli's motion in limine. Should that event fail to occurSSand

that seems likely, given the language in the opinions of the

magistrate judge and the district judgeSSthe government will not be

allowed to introduce most of its evidence. Plainly, this situation

is one that Congress intended § 3731 to address when it chose to

allow interlocutory appeals from an order “excluding evidence.”6

III.

Addressing the merits, the defendants contend that the

district court acted within its sound discretion. “When a party in

a criminal case fails to comply with a FED. R. CRIM. P. 16 discovery

order, the district court 'may order such party to permit the

discovery or inspection, grant a continuance, or prohibit the party

from introducing evidence not disclosed, or it may enter such other
7 “[A]ll Unit B cases are precedent in the Fifth Circuit.” United States

v. Rojas-Martinez, 968 F.2d 415, 420 n.11 (5th Cir. 1992).

8 In Sarcinelli, we made explicit the inquiry implicit in the court's

review of the sanctions imposed in United States v. Campagnuolo, 592 F.2d 852,

858 (5th Cir. 1979). Although Campagnuolo upheld the exclusion of evidence for

the government's violation of a discovery order “even if the nondisclosure did

not prejudice the defendants,” id., the test outlined in Sarcinelli does not

mandate that all of the factors of its test be met before exclusion of evidence

is warranted; the Sarcinelli test merely requires that the district court

consider each of the factors, and that there be some justification for a more

extreme sanction than a continuance, given the factors weighed. In any event,

from our reading of Campagnuolo, it appears that the defendant was seriously

prejudiced by the government's non-disclosure, thereby making the court's

aforementioned statement dictum.

7

order as it deems just under the circumstances . . . .'” United

States v. Sarcinelli, 667 F.2d 5, 5 (5th Cir. Unit B Jan. 1982)

(quoting FED. R. CRIM. P. 16).7

We previously have held that “[i]mplicit in the discretion

granted the district court under rule 16(d)(2) is that the district

court, in deciding what sanction to impose, consider several

factors: 'the reasons why disclosure was not made, the extent of

the prejudice, if any, to the opposing party, the feasibility of

rectifying that prejudice by a continuance, and any other relevant

circumstances.' 8 MOORE'S FED. PRACTICE ¶ 16.04(3) (2d ed. 1981).”

Sarcinelli, 667 F.2d at 6-7.8 In determining what remedy is “just

under the circumstances,” FED. R. CRIM. P. 16(d)(2), “the court

should impose the least severe sanction that will accomplish the

desired resultSSprompt and full compliance with the court's

discovery order.” Id. at 7; accord United States v. Bentley,
9 Although Newberry, McFatter, and Simmons suggest that “fundamental

fairness” and the “Due Process Clause” justify the instant extreme sanction, we

do not see how the Due Process Clause circumscribes the inquiry we set forth in

Sarcinelli. And, absent a more detailed showing by the defendants, we find

nothing in our jurisprudence, or that of the Supreme Court, to support their

general assertion of prejudice in this regard.

10 Indeed, the magistrate judge states that “Even if the government's

failure to disclose were harmless, it would not change this Court's opinion.”

8

875 F.2d 1114, 1118 (5th Cir. 1989).9

Our conclusion in Sarcinelli that the wholesale suppression of

the government's evidence was an abuse of discretion applies with

equal force to the broad exclusion effected here. Neither the

magistrate judge's written opinion nor the district judge's oral

opinion was “the product of a careful consideration of the factors

we have cited that dictate the type of sanction, if any, that

should be imposed when a party fails to comply with a rule 16

discovery order.” Id. 

Neither opinion indicates the prejudice, if any, that the

defendants faced from the delayed discovery.10 Nor do the opinions

seriously discuss the option of a continuance to remedy the missed

discovery deadline. The district court, therefore, could not

reasonably have decided that this sweeping order was the “least

severe sanction” needed to promote “prompt and full compliance with

the court's discovery order.”

Accordingly, the order excluding the evidence covered by the

May 30, 1996, discovery order is REVERSED, and this matter is

REMANDED for reconsideration in light of this opinion.