                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1017
                                    ___________

United States of America,                *
                                         *
      Appellant,                         * Appeal from the United States
                                         * District Court for the
             v.                          * Eastern District of Arkansas
                                         *
Mary Jane Johnson;                       *
Rickey Joe Bradshaw,                     * [PUBLISHED]
                                         *
      Appellees.                         *
                                    ___________

                              Submitted: September 15, 2000

                                   Filed: October 10, 2000
                                    ___________

Before BOWMAN, BEAM, and BYE, Circuit Judges.
                          ___________

BYE, Circuit Judge.

        Six days before trial, the government informed counsel for defendants Mary Jane
Johnson and Rickey Joe Bradshaw that it intended to elicit expert testimony at trial.
The defendants immediately moved to suppress that expert evidence. The district court
concluded that the government had reneged on a promise to provide expert testimony
in discovery, and granted defendants’ motion to suppress. The court then stayed the
trial so the government could pursue this interlocutory appeal. We reverse.
                                 BACKGROUND

       A grand jury in the Eastern District of Arkansas indicted Johnson and Bradshaw
(along with others not party to this appeal) on February 10, 1999. The indictment
charged them with a single count of conspiracy to distribute methamphetamine in
violation of 18 U.S.C. § 846.

       Johnson and Bradshaw were represented by separate counsel. On May 18,
1999, Bradshaw filed a motion requesting discovery from the United States Attorney’s
office. The motion sought information pertaining to statements made by the
defendants, the defendants’ prior criminal records, documents and other objects relied
upon by the government, and scientific or medical reports or examinations. The request
for discovery tracked the language in Fed. R. Crim. P. 16(a)(1)(A)-(D).

        On May 21, 1999, the government responded to the motion, agreeing to produce
all of the information sought by Bradshaw. Although Bradshaw had not specifically
asked the government to provide any “expert evidence,”1 the government’s response
agreed to provide such evidence. The government sent an identical response to
Johnson, although her lawyer had not moved for discovery.

      On June 16, 1999, the court ordered discovery in accordance with the
government’s response. The order provided that “the Government, by its Responses,
has agreed to comply with, or exceed, the requirements of Rule 16 . . . [t]he
Government is hereby ordered to provide what it has agreed to do in its Responses.”

      After several continuances, the trial was scheduled for December 16, 1999. The
Friday before trial, December 10, the Assistant United States Attorney (AUSA) faxed


      1
        Bradshaw’s lawyer later conceded, while arguing the motion before the district
court, that he had neglected to request disclosure of expert evidence.

                                         -2-
a letter to counsel for Johnson and Bradshaw. That letter disclosed, for the first time,
the government’s intention to call DEA Agent Roger Case as an expert witness. The
letter stated that Agent Case would testify about the methods of distribution employed
by methamphetamine gangs, indicia of distribution, the street values of
methamphetamine, and several other matters.

       Agent Case had worked on the investigation and prosecution of Johnson and
Bradshaw, and the defendants knew that Case would testify at trial as a fact witness.
But the defendants did not know that Case would be called to opine as an expert. On
December 13, the first working day after receiving the AUSA’s faxed letter, Johnson
and Bradshaw jointly moved to suppress Agent Case’s proposed expert testimony. The
defendants argued that the government had violated Rule 16(a)(1)(E) by failing to
disclose Agent Case as an expert in response to the May 18 discovery demand. In
addition, the defendants pointed to the government’s May 21 response, in which the
government agreed to disclose “expert evidence.”

       Two days before trial, the district court held a telephone conference regarding
the defendants’ motion. The court granted the defendants’ motion and excluded Agent
Case’s proposed expert testimony, finding that the government had broken its promise
to reveal any expert testimony in its May 21 response to Johnson and Bradshaw. The
next day, the government filed a motion for reconsideration; the court denied that
motion after a further telephone conference. The government then filed this
interlocutory appeal, and the district court stayed the trial pending its outcome.

                                  JURISDICTION

       Johnson and Bradshaw challenge our exercise of appellate jurisdiction. We
must, of course, establish a proper basis for jurisdiction before analyzing the merits of
a case. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998).


                                          -3-
      Section 3731 of Title 18 permits the government to pursue an interlocutory
appeal from an order suppressing evidence upon satisfaction of three requirements:

      (1)    the defendant has not been put in jeopardy;
      (2)    the appeal is not taken for purpose of delay; and
      (3)    the evidence is a substantial proof of a fact material in the proceeding.

        Johnson and Bradshaw do not challenge the government’s compliance with the
first two requirements, non-jeopardy and lack of delay. Rather, they concentrate their
attack on the third element, materiality. They interpret § 3731 to require an
independent evaluation of the “materiality” of the facts prompting the government’s
appeal. Employing that standard, they contend that Agent Case’s expert opinion is not
material to the government’s case-in-chief, and they therefore conclude that our
jurisdiction is lacking.

       We have not previously had occasion to examine what showing must be made
to permit an interlocutory appeal under this portion of § 3731. Other circuits have split
on this question. The Ninth Circuit, apparently alone, requires the government to prove
that the evidence suppressed by the district court is actually “material” to the upcoming
trial. Sitting en banc, the Ninth Circuit held that

      [o]ne of the conditions [for appeal via § 3731] is that the evidence
      suppressed must be substantial proof of a fact material in the proceeding.
      This condition must be met before appeal of the suppression order can
      properly be taken. . . . [T]he suppressed evidence (dynamite) is not
      substantial proof of any material fact in the nondynamite counts of the
      indictment. The trial court found as much. Given the government’s
      failure to satisfy this condition, its appeal of the suppression order as it
      relates to the nondynamite counts was improper.

United States v. Loud Hawk, 628 F.2d 1139, 1150 (9th Cir. 1979) (en banc); see
United States v. Adrian, 978 F.2d 486, 490 (9th Cir. 1992).

                                          -4-
       In contrast, at least two other circuits have decided that appellate jurisdiction is
proper if the government simply certifies that the evidence suppressed is substantial
proof of a material fact. These circuits suggest that a court of appeals need look no
further than the existence of an executive certification that the evidence suppressed is
material. See United States v. Kepner, 843 F.2d 755, 761 (3d Cir. 1988); 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. Comiskey, 460 F.2d 1293, 1297-98 (7th Cir.
1972).

      Although we have not adopted a position, one of our prior cases suggested
(purely in dictum) that we would follow the latter approach. See United States v.
Juvenile Male J.A.J., 134 F.3d 905, 907 (8th Cir. 1998) (“Other unreviewable acts of
prosecutorial discretion include . . . a United States Attorney’s certification under 18
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”) (citing Kepner,
843 F.2d at 761).

       A textual analysis of § 3731 supports the latter approach, requiring only
executive certification to establish appellate jurisdiction. The second and third
requirements (lack of delay and materiality) share the common modifying phrase, “if
the United States attorney certifies to the district court.” See 18 U.S.C. § 3731. The
syntax implies that executive certification establishes both lack of delay and materiality.
Further, the “lack of delay” and “materiality” elements of § 3731 are joined in parallel
structure, demarcated by two instances of the word “that.” See id. § 3731 (“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

                                           -5-
proceeding.”) (emphasis added). The language of § 3731 implies that mere
certification is required to demonstrate materiality.

       The government’s Notice of Appeal states that “[t]he United States Attorney
hereby certifies that this appeal is not taken for the purpose of delay and that the
evidence excluded is a substantial proof of facts material in the proceeding.” In light
of our conclusion above, we need not examine whether Agent Case’s expert testimony
would actually be substantial proof of a material fact. The government has so certified;
that suffices.2 We have jurisdiction to hear this interlocutory appeal.

                                     DISCUSSION

      We review for an abuse of discretion a district court’s decision to sanction the
government for discovery violations. See United States v. DeCoteau, 186 F.3d 1008,
1009 (8th Cir. 1999).

A.    Defendants’ Right to Discovery

      Criminal defendants do not have a general constitutional right to discovery. See
Weatherford v. Bursey, 429 U.S. 545, 559 (1977). In most circumstances, then, a
defendant must point to a statute, rule of criminal procedure, or other entitlement to
obtain discovery from the government.

       The government acknowledges that Rule 16 permits a defendant to request
disclosure of expert evidence upon which the government will rely at trial. See Fed.


      2
        At least one circuit has considered an interlocutory appeal from a district court’s
order suppressing expert drug testimony. See United States v. Rodriguez, 192 F.3d
946, 949 (10th Cir. 1999). To be fair, Rodriguez contains no discussion of appellate
jurisdiction. The Tenth Circuit implicitly assumed that jurisdiction was proper.

                                           -6-
R. Crim. P. 16(a)(1)(E). But the government argues that “in the case at hand, neither
Johnson nor Bradshaw requested pre-trial disclosure of expert witnesses,” and thus the
government’s obligation to disclose was never triggered. The government is correct.
Johnson never requested discovery. Bradshaw requested some discovery, but concedes
that he did not ask for “expert evidence.” Accordingly, neither Johnson nor Bradshaw
triggered the government’s disclosure obligation under Rule 16(a)(1)(E). See United
States v. Salerno, 108 F.3d 730, 743 (7th Cir. 1997) (refusing to suppress the
government’s expert evidence because “[f]rom the record, it does not appear that the
defendant ever requested any expert discovery material, as Rule 16 required him to
do”); United States v. Haidara, No. 96-4305, 1997 WL 205378, at *1 (4th Cir. Apr. 28,
1997) (unpublished per curiam opinion) (“Haidara complains that he did not receive
proper notice of Agent Winand’s [expert] testimony prior to trial under Fed. R. Crim.
P. 16(a)(1)(E). The rule, however, requires notice only when the defendant requests
such disclosure, and Haidara does not even allege that he requested disclosure in this
case.”).

      Although the government had no duty to disclose expert evidence under Rule 16,
the government nevertheless represented to defense counsel that it would disclose
expert evidence. In its May 21 response to Bradshaw’s discovery demand (sent to
counsel for both Johnson and Bradshaw), the government agreed to provide

      any statements made by the Defendant to government agents, the
      Defendant’s criminal history, the government’s tangible evidence, items
      which may be material to the defense, and scientific or expert evidence.
      (Emphasis added).

      At the motion hearing before the district court, the AUSA attempted to downplay
the importance of that statement. But the district court determined that

      under the rules you may well not have been required to disclose, but from
      my reading of your paragraph . . . you just make a flatfooted assertion that

                                          -7-
      you’re going to provide expert evidence. I don’t see how a lawyer could
      read that otherwise.

       Moreover, the district court embodied the government’s disclosure agreement
in the June 16 order. By failing to disclose its expert evidence in timely fashion, the
government neglected to comply with the court’s order. We acknowledge that, strictly
speaking, the court’s order applied only to Bradshaw, not to Johnson. That doesn’t
change the fact that the government promised, in a response mailed both to Bradshaw
and Johnson, that it would disclose its expert evidence. In sum, we agree with the
district court: the government failed to keep its promise. But the government’s broken
promise doesn’t end our inquiry.

B.    Prejudice to the Defendants

        The government contends that exclusion was unnecessary because neither
Johnson nor Bradshaw suffered actual prejudice. See United States v. Valentine, 984
F.2d 906, 910 (8th Cir. 1993) (“Evidence should be excluded when the discovery rules
have been violated in a manner that prejudices the defendant’s substantive rights.”)
(citation omitted). The defendants contend that they would have hired an expert to
rebut Agent Case’s expert testimony if they had been informed of the government’s
intentions sufficiently in advance of trial.

        We faced a similar situation in United States v. Ortega, 150 F.3d 937 (8th Cir.
1998), cert. denied, 525 U.S. 1087 (1999). In Ortega, the government failed to disclose
its proposed experts before trial. Two law enforcement agents listed only as fact
witnesses prior to trial were permitted to testify at trial as experts on drug transactions
and paraphernalia. We affirmed the district court’s decision to permit the agents’
expert testimony for a variety of reasons. First, we recognized that expert evidence has
become routine in drug cases. Second, we noted that Ortega had raised no objection
to the substance of the agents’ expert testimony, only to its untimely disclosure. Third,


                                           -8-
Ortega failed to move for a continuance, thereby undercutting his claim of prejudice
based on an inability to hire his own expert. Finally, Ortega’s counsel had seen every
exhibit which was the subject of the officers’ expert testimony in the week prior to trial.
See Ortega, 150 F.3d at 943-44. On this basis, we concluded that “Ortega has
demonstrated no facts indicating that he was surprised or unfairly prejudiced by the
substance of the officers’ testimony.” Id. at 944.

       Though not all these factors are present in the instant case, we find Ortega to be
persuasive authority. The proposed expert testimony of Agent Case (pertaining to drug
transactions and drug paraphernalia) is the sort of “routine” drug expert testimony we
permitted in Ortega. In addition, neither Johnson nor Bradshaw questions the
admissibility of Agent Case’s expert testimony. Both defendants protest only the
government’s untimely disclosure of that testimony. Although the defendants
reluctantly moved for a continuance (unlike Ortega) when it initially appeared that the
district court would allow Agent Case to testify as an expert, we do not believe that this
distinction alone devalues our analogy to Ortega. Perhaps the most persuasive of these
facts is the defendants’ failure to object to Agent Case’s expert conclusions. A claim
of prejudice based on untimely disclosure is less convincing when unaccompanied by
an objection to the object of that disclosure.

      In any event — whether the government’s failure to disclose Agent Case’s
expert status was truly prejudicial or not — the district court’s failure to identify any
prejudice to Johnson or Bradshaw was error. A district court’s discretion in ruling on
evidentiary matters is ample, but not unbounded. We have previously held that a
district court abused its discretion by dismissing an indictment for a discovery violation
without first establishing grounds for prejudice. See DeCouteau, 186 F.3d at 1010.
Likewise, in this case, we believe that the district court abused its discretion by striking
Agent Case’s expert testimony without identifying or establishing any basis for
prejudice, if such there was.


                                            -9-
C.     Least Severe Sanction

       The government also argues that an exclusionary sanction was harsher than
necessary. See DeCoteau, 186 F.3d at 1010 (“‘When a court sanctions the government
in a criminal case for its failure to obey court orders, it must use the least severe
sanction which will adequately punish the government and secure future compliance.’”)
(quoting United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997), cert. denied, 523
U.S. 1060 (1998)).

       The government notes that the district court might have chosen alternative, less
severe, sanctions. We agree. The district court could have continued the trial to permit
Johnson and Bradshaw to hire their own expert. Or the court could have permitted the
defendants to depose Agent Case to learn the gist of his proposed expert testimony.
In any event, the court had an obligation at least to explore the possibility of less severe
sanctions. The record reflects that the district court settled on an exclusionary sanction
as soon as the government’s broken promise was identified. Ignoring the very
possibility of less severe sanctions constitutes a clear abuse of discretion. See
DeCoteau, 186 F.3d at 1011 (“[T]he court also failed to engage in any analysis
concerning whether a less severe sanction would have been sufficient to remedy any
prejudice DeCoteau may have suffered.”).

                                           ***

      We are somewhat sympathetic to the defense attorney’s view that this appeal
was unnecessary. At the suppression hearing, Johnson’s lawyer ventured that the
government had “so much evidence, I don’t even know why [the AUSA] wants to use
[expert testimony].” Be that as it may, the government may employ expert evidence
in drug cases if it so chooses.




                                           -10-
       Our prior cases indicate that a district court must substantiate a defendant’s claim
of prejudice before adopting the most severe discovery sanction available — wholesale
exclusion of evidence. We therefore reverse the district court’s order.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -11-
