In United States v. Musaibli, No. 22-1013 (6th Cir. Aug. 2, 2022), holds that 18 U.S.C. § 3731, which gives the court of appeals jurisdiction to hear the U.S. Government’s appeal of any “decision or order of a district court suppressing or excluding evidence” also applies to a lower-court order denying the government’s motion to admit evidence.
Defendant Musaibli was charged with conspiring “with others to provide material support and resources in the form of personnel and services” to a terrorist group (ISIS) in violation of 18 U.S.C. § 2339B. The government moved prior to trial to admit a variety of evidence intended to prove a conspiracy. It argued that the “records documenting that group’s organizational structure, logistics, and activities qualify as statements of co-conspirators under Federal Rule of Evidence 801(d)(2)(E).” The district court excluded the evidence, holding among other things that “the record does not yet establish the scope of the conspiracy that the defendant allegedly joined with sufficient precision to permit the statements in the exhibits to be considered his ‘vicarious admissions.’” The government appealed.
The Sixth Circuit reverses. It addresses the threshold issue of whether the denial of a motion to admit fell within the category of “decision[s] or order[s] of a district court suppressing or excluding evidence.”
“The procedural posture of this case is unique to criminal law. Our jurisdiction to review district-court decisions is normally limited to appeals brought once a final judgment has issued. See 28 U.S.C. § 1291. When the government prosecutes a criminal case, this limitation poses a dilemma. Waiting to file an appeal until after the district court issues a final judgment runs up against the Fifth Amendment’s prohibition against putting a defendant in jeopardy of punishment twice for the same offense. U.S. Const. amend V. Indeed, the Double Jeopardy Clause severely constricts the timeline of when the government can seek appellate review during a jury trial because ‘jeopardy attaches when a jury is empaneled and sworn.’”
Congress thus added 18 U.S.C. § 3731 to enable the government to appeal pretrial decisions. “To proceed down this avenue, five criteria must be met. First, there must be ‘a decision or order of a district court suppressing or excluding evidence’ from which the government is appealing. 18 U.S.C. § 3731 (emphasis added). Second, the defendant cannot have already been put in jeopardy. Id. Third, the ‘United States attorney [must] certif[y] 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. Fourth, the government must appeal ‘within thirty days after the decision . . . or order has been rendered.’ Id. Fifth, the government must ‘diligently prosecute[]’ the appeal. Id.”
The defendant contested only the first criterion, arguing that because denial of a motion to admit is not one of the enumerated categories of permissible interlocutory appeals, therefore it could not benefit from § 3731. But the aim of the law “was the removal of ‘all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit’ of adverse evidentiary rulings.” Thus it is the substance of the order rather than the form that governs appellate jurisdiction.
“[T]he government has proffered what is likely the best foundation that can be expected prior to trial, leaving the issue of admissibility thoroughly ventilated below and nothing but a set of legal questions—namely, whether the government’s foundation is sufficient for any hearsay exemption or exception to apply—for us to consider. The district court has also provided every indication that it believes the documents to be hearsay, and we have every reason to conclude that this qualifies as a de facto exclusion of the ISIS documents. The fact that the district court might change its mind does not alter the analysis under 18 U.S.C. § 3731.” And so the Sixth Circuit exercised appellate jurisdiction.
Reaching the merits, the panel holds that the district court clearly erred in finding that the government did not lay a proper foundation for admissibility under Fed. R. Evid 801(d)(2)(E). “[T]he district court … concluded that the government’s proffer was [only] sufficient to “suggest[]” that Musaibli enlisted in, was trained by, and fought for ISIS . . . . This evidence, however, does more than merely suggest these facts; it establishes them by a preponderance of the evidence. By the same standard, the repeated references to other fighters and description of the training that Musaibli underwent and the oath he took also establish that he did not engage in the described conduct alone or absent coordination. Rather, that conduct was clearly undertaken with compatriots to provide ISIS with personnel and services.”
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