United States v. 2008-09-08 | 07-30339 | USA VWEYHRAUCH | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 07-30339
Plaintiff-Appellee, D.C. No.
v. CR-07-00056-JWS
 District of Alaska,BRUCE WEYHRAUCH, AnchorageDefendant-Appellee.
ORDER

Filed September 8, 2008
Before: Dorothy W. Nelson, A. Wallace Tashima and
Raymond C. Fisher, Circuit Judges.
ORDER
The government initiated this interlocutory appeal after the
district court granted a pretrial motion excluding certain evi-
dence from a mail fraud prosecution. Because the government
has failed to establish that this interlocutory appeal has been
properly certified under 18 U.S.C. § 3731, we issue this third
and final order for the government to show cause why this
appeal should not be dismissed for lack of jurisdiction.
BACKGROUND
The government indicted Defendant-Appellee Bruce Wey-
hrauch for allegedly attempting to commit honest services
mail fraud, among other charges. On September 4, 2007, the
day before trial, the district court excluded evidence the gov-
ernment proffered to support its theory that Weyhrauch had
breached his duty to provide honest services by failing to dis-
close that he had solicited or was negotiating for employment
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with a company interested in pending legislation. At the final
pre-trial conference the next morning, Nicholas Marsh, an
attorney from the Department of Justice, Criminal Division,
Public Integrity Section (PIS), and lead trial counsel orally
advised the court that the government intended immediately
to appeal the ruling under 18 U.S.C. § 3731. Marsh further
represented that the appeal would not be taken for purpose of
delay and that the excluded evidence was substantial proof of
a fact material in the proceeding. The district court stayed the
trial to allow this interlocutory appeal.
Section 3731 authorizes interlocutory appeals by the gov-
ernment “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.” 18 U.S.C. § 3731.1 Because the purported certi-
fication to the district court was made by a PIS trial attorney
and not the United States Attorney, before oral argument we
issued an order to show cause why the appeal should not be
dismissed as improperly certified. In its response, the govern-
ment argued that trial attorney Marsh’s certification was suffi-
cient under § 3731 because it was made in consultation with
and at the direction of William M. Welch II, Chief of PIS,
who was overseeing this prosecution. Alternatively, the gov-
ernment submitted a written certification by Chief Welch,
dated July 25, 2008, that the interlocutory appeal is not being
taken for purpose of delay and that the evidence is a substan-
tial proof of a fact material in the proceeding.
1Section 3731 provides:
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 jeop-
ardy and before the verdict or finding on an indictment or infor-
mation, if the United States attorney certifies to the district court
that the appeal is not taken for purpose of delay and that the evi-
dence is a substantial proof of a fact material in the proceeding.
18 U.S.C. § 3731.
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Because this response did not explain how Chief Welch,
who is not a United States Attorney, could properly certify an
appeal under § 3731, we issued a second order to show cause
after oral argument requiring the government to provide
“whatever documentary evidence exists that the Attorney
General delegated authority to the Chief of Public Integrity
Section of DOJ, William M. Welch II, including authority to
certify the case for interlocutory appeal under 18 U.S.C.
§ 3731, or to explain the absence of such a delegation.”
In response to the second order to show cause, the govern-
ment submitted as its only evidence supporting Chief Welch’s
certification authority a formal notice, dated November 7,
2005, from the Executive Office for United States Attorneys
(EOUSA) stating that “that the Associate Deputy Attorney
General has approved the office-wide recusal of the United
States Attorney’s Office for the District of Alaska from the
investigation” that led to the prosecution of defendant Wey-
hrauch.2 The notice further explained that the “Department of
Justice, Public Integrity Section, has agreed to handle the mat-
ter in its entirety,” and referred to an earlier “partial recusal
of the District in September 2004.”
The government also continued to argue that trial attorney
Marsh’s September 5, 2007 certification was sufficient, but on
a new theory that he was himself authorized to certify the
appeal. The government submitted a May 24, 2004 letter to
Marsh from Deputy Assistant Attorney General John C.
Keeney, which states:
2The government characterized our August 6 order as requesting docu-
mentary evidence “concerning the recusal of the United States Attorney’s
Office for the District of Alaska,” (emphasis added), when the order actu-
ally requested documentation that “that the Attorney General delegated
authority to [Chief Welch] to perform the duties of acting United States
Attorney in this matter, which included certifying this appeal pursuant to
18 U.S.C. § 3731,” (emphasis added). The government’s apparent confu-
sion is difficult to understand in light of the lengthy discussion of the certi-
fication issue at oral argument.
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As an attorney for the Government employed full
time by the Department of Justice and assigned to
the Criminal Division, you are hereby authorized and
directed to file informations and to conduct in the
District of Alaska and any other judicial district any
kind of legal proceedings, civil or criminal, includ-
ing grand jury proceedings and proceedings before
United States Magistrate Judges, which the United
States Attorneys are authorized to conduct.
The government also submitted a copy of 28 C.F.R. § 0.13(a),
which provides:
Each Assistant Attorney General and Deputy Assis-
tant Attorney General is authorized to exercise the
authority of the Attorney General under 28 U.S.C.
515(a), in cases assigned to, conducted, handled, or
supervised by such official, to designate Department
attorneys to conduct any legal proceeding, civil or
criminal, including grand jury proceedings and pro-
ceedings before committing magistrates, which
United States attorneys are authorized by law to con-
duct, whether or not the designated attorney is a resi-
dent of the district in which the proceedings is
brought.
28 C.F.R. § 0.13(a).3 Although the government did not fully
articulate its argument, we assume it wants us to construe 28
C.F.R. § 0.13(a) as authorizing the Deputy Assistant Attorney
328 U.S.C. § 515(a) provides:
The Attorney General or any other officer of the Department of
Justice, or any attorney specially appointed by the Attorney Gen-
eral under law, may, when specifically directed by the Attorney
General, conduct any kind of legal proceeding, civil or criminal,
including grand jury proceedings and proceedings before com-
mitting magistrate judges, which United States attorneys are
authorized by law to conduct, whether or not he is a resident of
the district in which the proceeding is brought.
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General to designate any DOJ attorney to certify an appeal
under 18 U.S.C. § 3731, and that Marsh was so authorized by
the May 2004 letter.
ANALYSIS
In its two responses, the government has now advanced
three reasons why it believes this appeal is properly certified.
First, it contends that Marsh’s certification to the district court
was adequate because he made it at the direction of Chief
Welch. Second, it believes Chief Welch’s July 25, 2008 writ-
ten certification is sufficient to ratify the earlier oral certifica-
tion. Finally, it appears to argue that trial attorney Marsh was
authorized to certify the appeal to the district court because he
was specially appointed pursuant to 28 U.S.C.§ 515(a) and 28
C.F.R. § 0.13(a) in May 2004.
Before addressing each of these arguments, we note that
our prior decisions make clear that a § 3731 certification must
be made personally by the United States Attorney, see United
States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008) (en
banc) (“[A] certification by a United States Attorney (person-
ally, not by an Assistant United States Attorney) that the
appeal is not taken for the purpose of delay and that the evi-
dence is substantial proof of a fact material in the proceeding
is sufficient for purposes of establishing our jurisdiction under
§ 3731.” (emphasis added)); see also United States v. Gantt,
179 F.3d 782, 787 (9th Cir. 1999) (noting that “unlike many
other rules, § 3731 specifically requires certification by the
United States Attorney” (internal quotation marks omitted)),
amended on other grounds by 194 F.3d 987 (9th Cir. 1999),
or by someone acting with legitimate, delegated authority that
is sufficiently documented, see United States v. Wallace, 213
F.3d 1216, 1219 (9th Cir. 2000) (holding that a certification
made by someone other than the United States Attorney is
valid only if that person is properly delegated the United
States Attorney’s authority and the certification is “accompa-
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nied by the documents establishing [the other person’s]
authority to sign”).
A. A Trial Attorney’s Certification Made at the Direc-
tion of a United States Attorney is Insufficient Under
§ 3731.
In our recent en banc decision in Grace, we reconsidered
what 18 U.S.C. § 3731 requires of the government to establish
our jurisdiction to hear its interlocutory appeal. We overruled
long-standing circuit precedent that required the government
to make a preliminary showing, in addition to the certification
itself, that the excluded evidence is truly material to the prose-
cution. In so holding, we relied heavily upon the requirement
that the certification must be “by a United States Attorney
(personally, not by an Assistant United States Attorney).”
Grace, 526 F.3d at 506 (emphasis added). Although Grace
had not been decided at the time trial attorney Marsh pur-
ported to certify this appeal in the district court, our earlier
decisions already made clear that a trial attorney’s certifica-
tion is insufficient under the statute. See Wallace, 213 F.3d at
1219; Gantt, 179 F.3d at 787. Moreover, even though the gov-
ernment’s reply brief in this appeal cited Grace, the govern-
ment made no effort to cure or justify the absence of the
United States Attorney’s certification here until we raised the
issue sua sponte, and has still not effectively done so despite
our two orders to show cause.
B. A Certification by Anyone Other than the United
States Attorney Requires the Government to Submit
Documentation of That Person’s Properly Delegated
Authority to Certify the Appeal.
The government also has not demonstrated that Chief
Welch had sufficient authority to certify this appeal under
§ 3731. The November 2005 recusal notice shows only that
the Associate Deputy Attorney General authorized the recusal
of the United States Attorney’s office for the District of
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Alaska (initially a partial recusal) and suggests that the Asso-
ciate Deputy Attorney General approved the decision of the
PIS to take over the investigation and related proceedings.
If an entire United States Attorney’s office is recused from
an investigation, someone necessarily must take over as act-
ing United States Attorney. It is logical to assume that the per-
son in charge of whatever office takes over the investigation
would be acting United States Attorney. The government’s
submission nonetheless fails to explain the mechanism, pro-
cess or statutory authority by which the Associate Deputy
Attorney General (or some other ranking official in the
Department of Justice) would appoint Chief Welch as acting
United States Attorney once the entire United States Attor-
ney’s office for the District of Alaska was recused.
Although we have found no statutory framework specifi-
cally addressing office-wide recusals, see In re Special Sep-
tember 1978 Grand Jury (II), 590 F.2d 245, 248 (7th Cir.
1979) (noting that no statutory framework governs office-
wide recusal of a United States Attorney’s office), the United
States Attorney Manual (USAM) provides informal guidance.4
The General Counsel’s Office of the EOUSA coordinates
office-wide recusals, obtains necessary approvals and helps
arrange the transfer of responsibility to another office, “in-
cluding any designations of attorneys as a Special Attorney or
Special Assistant to the Attorney General (see USAM 3-
2.300) pursuant to 28 U.S.C. Sec. 515.” USAM 3-2.170.
When an entire office is recused,
the Attorney General may, pursuant to 28 U.S.C.
Sec. 515, appoint any officer of the Department of
Justice, or any attorney specially appointed under
law, to conduct any kind of legal proceeding which
4The United States Attorney Manual is available at http://www.usdoj.
gov/usao/eousa/foia_reading_room/usam/title3/2musa.htm (last visited
August 18, 2008).
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United States Attorneys are authorized by law to
conduct, whether or not such appointee is a resident
of the district in which the proceeding is brought.
Said appointee specially retained under authority of
the Department of Justice is appointed as a Special
Assistant or a Special Attorney to the Attorney Gen-
eral and reports directly to the Attorney General or
delegee. Such appointments are executed by the
Executive Office for United States Attorneys.
USAM 3-2.300. The manual thus suggests that DOJ
approaches office-wide recusals, and the need to appoint an
acting United States Attorney from outside the local United
States Attorney’s office, through the framework of 28 U.S.C.
§ 515(a).
The government has not submitted any documentation that
the Attorney General or his delegee in the EOUSA explicitly
appointed Chief Welch as a special attorney or special assis-
tant under 28 U.S.C. § 515(a) to be the acting United States
Attorney for the Weyhrauch investigation and prosecution.
The November 2005 recusal notice does not show such an
appointment occurred. Accordingly, Chief Welch’s July 25,
2008 certification is insufficient. See Wallace, 213 F.3d at
1219 (holding that a certification made by someone other than
the United States Attorney must be accompanied by the docu-
ments establishing that person’s authority to certify).
C. A Trial Attorney Specially Appointed Under 28
U.S.C. § 515(a) or 28 C.F.R. § 0.13(a) May Not Cer-
tify an Appeal Under 18 U.S.C. § 3731.
Under 28 U.S.C. § 515(a) and 28 C.F.R. § 0.13(a), the
Attorney General and other senior-level DOJ personnel can
authorize department attorneys to conduct “any legal proceed-
ing . . . which United States attorneys are authorized to con-
duct.” These provisions allow the Attorney General to give
authority otherwise restricted to United States Attorneys to
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certain other attorneys, considerably expanding who may
undertake those tasks.
In contrast, however, 18 U.S.C. § 3731 requires that the
United States Attorney personally certify an interlocutory
appeal. “By specifying that the United States Attorney must
certify the appeal, Congress plainly intended that the decision
to take an interlocutory appeal be a serious, considered judg-
ment . . . .” Grace, 526 F.3d at 507. Although we have recog-
nized some exceptions to this requirement, they have been
limited. See, e.g., Wallace, 213 F.3d at 1219 (allowing some-
one other than the United States Attorney to certify an appeal
only if such certification is accompanied by documentation of
that person’s valid authority). We therefore cannot read 28
U.S.C. § 515(a) as a blanket authority to substitute just any
DOJ attorney into the certification role Congress envisioned
in § 3731.
On its face, 28 U.S.C. § 515(a) allows DOJ to appoint
someone as a special attorney even while the United States
Attorney for the district is active and available (as appears to
have been the case here at the outset of the investigation). If,
as the government would have it, a § 515(a) appointment
without more implicitly authorizes a special attorney to certify
an interlocutory appeal, multiple individuals could be autho-
rized to certify an interlocutory appeal in the same district, at
the same time, as to the same matter. This would undercut the
strict statutory requirement of personal certification by the
United States Attorney and the carefully circumscribed excep-
tions this court has recognized; and it would eliminate the
considered, objective judgment of a senior DOJ official that
Congress intended. See Grace, 526 F.3d at 507 (emphasizing
that a decision to take an interlocutory appeal is to be a “seri-
ous, considered judgment” by the United States Attorney).
The flaw in the government’s argument is illustrated in this
very case. The authorization letter to Marsh is dated May 24,
2004, but the recusal notice was not issued until November 5,
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2005 and refers to a “partial” recusal in September 2004. The
letter to Marsh therefore predated by at least four months the
recusal of the United States Attorney for the District of
Alaska from the case. Under the government’s interpretation
of 28 C.F.R. § 0.13(a), Marsh would have had authority to
certify an appeal under § 3731 in May 2004, even though the
United States Attorney was active and not recused at that
time, and thus able to exercise the certification authority per-
sonally.
Finally, and most tellingly, the government’s belated effort
to invest Marsh directly with the United States Attorney’s cer-
tification authority is belied by its response to our first order
to show cause, wherein the government argued that the certifi-
cation was proper because Marsh made it at the direction of
Chief Welch. The government cannot credibly explain why
Marsh needed Chief Welch’s authorization if Marsh himself
already stood in the United States Attorney’s shoes by virtue
of a form letter specially appointing him lead trial prosecutor
three years earlier.
Plainly, someone above Marsh’s paygrade had to have been
properly designated the acting United States Attorney as to
this matter for purposes of making the requisite certification
under § 3731. The government has represented that person
was Chief Welch, but has failed to document or explain how
that occurred. Without a proper certification, we lack jurisdic-
tion to hear this interlocutory appeal.
* * *
The government has now made three unsuccessful attempts
to comply with the certification requirement of 18 U.S.C.
§ 3731.5 Although we appreciate that the circumstances of this
case are unique and that the issue tendered on the merits is a
5These three attempts consist of the government’s original “certifica-
tion” and its subsequent responses to our two previous orders.
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significant and serious one, at some point we must call a halt
to our repeated attempts to induce a proper certification; so
far, it appears that there is “no there there.” So there is no
misunderstanding about it, this order to show cause is the
final opportunity for the government to make a proper record
under § 3731.
Accordingly, we hereby ORDER:
1. The government shall submit evidence that Chief
Welch was properly delegated authority to certify this appeal
under 18 U.S.C. §3731 and shall explain the statutory or regu-
latory basis by which such delegation was authorized.
2. The government’s response shall be filed within 14
calendar days of the filed date of this Order and served on
Defendant-Appellee Weyhrauch, who may then file a
response within 7 calendar days, if he chooses.
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