United States v. Grace , 526 F.3d 499 ( 2008 )

Opinion by Judge FISHER; Concurrence by Judge MICHAEL DALY HAWKINS.

FISHER, Circuit Judge:

We granted en banc review of this appeal by the government, brought pursuant to 18 U.S.C. § 3731, to resolve two questions. First, does a United States Attorney’s simple certification under § 3731 that the government’s interlocutory appeal in a pending criminal case is not taken for purpose of delay and that the evidence the district court suppressed or excluded is substantial proof of a fact material in the proceeding suffice to establish our jurisdiction to hear the interlocutory appeal? Second, if so, did the district court in this case have the authority to order pretrial disclosure by the government of its final list of witnesses and evidentiary documents and to exclude witnesses and evidence not timely disclosed in compliance with such orders?

First, we hold that the United States Attorney’s bare certification regarding delay and materiality in accordance with the terms of § 3731 was sufficient to give us appellate jurisdiction to address the government’s objections to the district court’s orders. We therefore overrule our prior decisions to the extent that they conflict with our ruling today, including United States v. Loud Hawk, 628 F.2d 1139 (9th Cir.1979) (en banc), and United States v. Adrian, 978 F.2d 486 (9th Cir.1992). Second, we hold that the district court did have the authority to issue and enforce its pretrial orders compelling the government to disclose its witness list and did not abuse its discretion in doing so. We therefore also overrule United States v. Hicks, 103 F.3d 837 (9th Cir.1996), to the extent that it purported to deny the district court such authority.

Overview

W.R. Grace & Co. mined and processed vermiculite ore outside Libby, Montana, from the early 1960s until the early 1990s. On February 7, 2005, the United States indicted Grace and several of its officers on numerous charges alleging that they engaged in criminal acts during the course of Grace’s mining operations, related to the improper disposal of asbestos-contaminated vermiculite. The district court, recognizing the magnitude of the case— with a relevant time period spanning nearly 30 years and potentially more than a thousand victims — held a pretrial case management conference in March 2005 and thereafter entered a case management order memorializing the results of the conference.

The March 2005 order established a “firm” trial date of September 11, 2006, and set forth a discovery schedule. In pertinent part, the schedule required the government to produce “all discoverable materials specified in Fed.R.Crim.P. 16(a)” by April 29, 2005, “a preliminary list of its intended witnesses and exhibits” by May 27, 2005, and a “finalized list of witnesses and trial exhibits, including [a] finalized disclosure of prosecution’s expert witnesses” by September 30, 2005. Moreover, to the extent that the parties intended to engage expert witnesses at trial, the order required “full[] compliance] with the requirements of Rule 16(a)(1)(E) and Rule 16(b)(1)(C),” including that “expert reports ... are complete, comprehensive, accurate, and tailored to the issues on which the expert is expected to testify.” The government did not object to the district court’s order, and subsequently made significant disclosures in compliance with it.

On September 30, 2005, the government notified the district court that it had produced for the defendants its “final witness list and final exhibit list,” but stated that the government “reserve[d] its right to update its witness list and exhibit list through the close of all evidence at trial.” The government’s disclosure included more than 230 witnesses.

The defendants disputed the sufficiency of the government’s disclosures. On November 23, 2005, the district court issued three orders pursuant to Federal Rule of Criminal Procedure 16, chiding the government for its “impermissibly narrow view of the obligations under Brady ” and clarifying the materials the government was required to produce pursuant to Rule 16.

On December 2, 2005, the parties met with the district court for a status conference. At this conference, the discussion included the sufficiency of the prosecution’s expert disclosures, its compliance with the previous discovery orders, and the defendants’ concern about the growing size of the government’s witness list. Shortly thereafter, the district court entered an order on December 5, 2005 (“the December 2005 order”), limiting the government’s presentation of witnesses at trial “to those witnesses that have been disclosed as of the filing of this Order” and limiting the reports the government experts may rely upon to those “contained in the discovery produced to date or ... currently subject to an order of this Court requiring production.”

In response to government objections, the court on February 17, 2006 clarified that, if necessary for rebuttal, the government could call unlisted witnesses and use other evidence. The government then brought an interlocutory appeal under 18 U.S.C. § 3731, challenging the district court’s pretrial orders — specifically the March 2005 case management order and the court’s December 2005 and February 2006 enforcement orders (collectively, the “enforcement orders”).

Section 3731 provides in 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 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.

(Emphasis added.) Here, the United States Attorney for the District of Montana certified in the words of the statute that the government’s interlocutory appeal “is not taken for purpose of delay and that the evidence excluded by the district court’s order described in [the] notice of appeal is substantial proof of a fact material in the proceeding ongoing before the district court.” The government contends that its unembellished certification suffices to establish appellate jurisdiction. On the merits of its appeal, the government challenges the district court’s authority to require or enforce a finalized pretrial list of witnesses and trial exhibits, and argues that, even if authorized, the enforcement orders were an abuse of the court’s discretion. The defendants counter that the government’s § 3731 certification did not adequately establish the materiality of the excluded evidence,¹ so we lack jurisdiction to hear the government’s appeal; and, in any event, the district court acted within its authority.

Adhering to existing Ninth Circuit law, a three-judge panel of this court declined to accept the government’s bare certification that simply recited the language of § 3731, and requested the parties to submit supplemental briefs discussing whether the excluded evidence was in fact “substantial proof of a fact material in the proceeding.” United States v. W.R. Grace, 493 F.3d 1119, 1124 (9th Cir.2007), reh’g en banc granted, 508 F.3d 882 (9th Cir.2007). After receiving more specific information from the government about the nature and relevance of the excluded evidence, the panel concluded that the government’s proffer, albeit belated, had satisfied its burden to demonstrate materiality under Loud Hawk, 628 F.2d at 1150 (holding that the “government’s right to appeal” is available only “conditionally”), and Adrian, 978 F.2d at 490 (the government must provide more than a “bare certification” to establish appellate jurisdiction). On the merits of the appeal, the panel affirmed the district court’s rulings with respect to expert witnesses and related documents, but followed Hicks and held that the district court exceeded its authority in excluding from the government’s case-in-chief undisclosed nonexpert witnesses.

We agreed to rehear this case en banc to reexamine the precedents that governed the decision of the three-judge panel.

Discussion

I. Standard of Review

“Jurisdiction is a question of law subject to de novo review.” United States v. Neville, 985 F.2d 992, 994 (9th Cir.1993). We review de novo a district court’s rulings on the scope of its authority to order discovery under Federal Rule of Criminal Procedure 16. United States v. Mendoza-Paz, 286 F.3d 1104, 1111 (9th Cir.2002).

II. Section 3731

Section 3731 grants the government the right to an interlocutory appeal from a district court’s evidentiary rulings in certain circumstances. We have previously explained that the government’s “right (via § 3731) to appeal a district court’s order suppressing evidence is conditional.” Loud Hawk, 628 F.2d at 1150; see Adrian, 978 F.2d at 490-91. “First, the appeal is not available if the defendant has been put in jeopardy. Second, the appeal must not be taken for purpose of delay. Third, the evidence suppressed must be substantial proof of a fact material in the proceeding.” Loud Hawk, 628 F.2d at 1150. We have required that the government’s bare certification be backed up by a preliminary showing that the excluded evidence truly is material. See id. (emphasizing that the materiality “condition must be met before appeal of the suppression order can properly be taken”). In Adrian, we defined materiality for purposes of § 3731 thus: “assuming that the evidence would be admissible, a reasonable trier of fact could find the evidence persuasive in establishing the proposition for which the government seeks to admit it.” 978 F.2d at 491.

The purposes of our certification-plus rule were salutary — to assure that the government’s decision to involve us in the trial process was a carefully considered judgment and to provide us with enough information to determine whether a time-consuming appeal was truly justified. Nonetheless, we are now persuaded that the plain language of the statute shows that Congress intended that, as long as the other requirements of § 3731 are present, mere certification regarding the delay and materiality prerequisites is all the statute requires to invoke our appellate jurisdiction. This is evident from § 3731’s phrasing, “An appeal by the United States shall lie to a court of appeals ... 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.” (Emphasis added.) We read Congress as specifying what the government must do to establish those jurisdictional preconditions. Nothing in the statute requires the government to go further and prove that the evidence suppressed or excluded by the district court is actually material to the proceeding before our jurisdiction can attach. Where congressional intent “has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (internal quotation marks omitted). Moreover, Congress specifically instructed us in § 3731 that its “provisions ... shall be liberally construed to effectuate its purposes.” 18 U.S.C. § 3731. The purpose of § 3731 is to give the government a window of opportunity to challenge a district court’s exclusion of allegedly material evidence before jeopardy attaches; we should not, therefore, read into the statute an unwritten additional hurdle, even if well intentioned.²

Accordingly, we now hold that a certification by a United States Attorney (personally, not by an Assistant United States Attorney) that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material in the proceeding is sufficient for purposes of establishing our jurisdiction under § 3731. The certification-rule of Loud Hawk and its progeny is overruled. See United States v. Gantt, 194 F.3d 987, 998 (9th Cir.1999); United States v. Poulsen, 41 F.3d 1330,1333-34 (9th Cir.1994); Adrian, 978 F.2d at 490-91; United States v. Layton, 720 F.2d 548, 554 (9th Cir.1983).

By so holding, we align ourselves with our sister circuits that have held that § 3731 is satisfied as long as the United States Attorney certifies that the statutory conditions are met. See Gov’t of Virgin Is. v. Hodge, 359 F.3d 312, 325 & n. 13 (3d Cir.2004) (holding that jurisdiction was proper based on the filing of the certification); United States v. Centracchio, 236 F.3d 812, 813 (7th Cir.2001) (“We therefore treat as conclusive of our jurisdiction over a [§ 3731] appeal the submission of the certification required by the statute.”); United States v. Johnson, 228 F.3d 920, 923 (8th Cir.2000) (holding that “appellate jurisdiction is proper if the government simply certifies that the evidence suppressed is substantial proof of a material fact”); see also United States v. McNeill, 484 F.3d 301, 308-09 (4th Cir.2007) (suggesting certification alone is sufficient if timely).³ These holdings are all consistent with § 3731’s mandate that an interlocutory appeal “shall lie ... if’ the United States Attorney makes the specified representations in his or her certification. Our former rule added a hurdle that had to be cleared before our jurisdiction could attach; that is not what Congress instructed.

The concurring opinion raises two principal concerns based on its fears of what might go wrong under the prevailing certification-only rule we are adopting. First, it worries about delays in the trial proceedings, to the disadvantage of defendants. We acknowledge those concerns but do not believe that they allow us to impose a two-step screening process that Congress has not required. Section 3731 not only requires the United States Attorney to certify that the interlocutory appeal is not for purpose of delay, but also mandates that the appeal “shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.” We have the authority to assure that these affirmative requirements are met.⁴ Moreover, we also have the ability to expedite the appellate process should that become necessary in an individual case, or even on a systemic basis if our experience warrants it. In that regard, we have no evidence that the certification-plus rule of Loud Haiolc is more efficient than simply accepting certification as sufficient to establish our jurisdiction.⁵

Second, the concurrence urges that, by accepting the United States Attorney’s certification as sufficient to invoke our jurisdiction, we are “blindly trusting] United States Attorneys,” adopting a rule that “permits a prosecutor to disrupt proceedings with the stroke of a pen” and giving the prosecution “unchecked authority to pursue interlocutory appeals from all suppression orders.” Concurring op. at 524, 527, 525-26. Not so. The certification itself is a representation by the United States Attorney, as an officer of the court, that the appeal is not for purposes of delay and that the suppressed evidence is indeed material.⁶ As to materiality, § 3731 provides that the certification establishes only our jurisdiction. If the merits of the appeal independently require us to question whether the evidence truly is material, the government’s certification is not conclusive^ — as the concurrence acknowledges, id. at 524- 25 & n. 10 — so we are not required to “mak[e] new law in a near factual vacuum.” Id. at 525. Moreover, should we find the government’s appeal to be patently frivolous or have reason to believe its certification is false, we could directly sanction such misconduct, surely a potent “check” on prosecutorial abuse of the certification process. In short, the certification-only rule that we adopt today and which is followed in other circuits does not give prosecutors any benefit beyond the statutory right to the interlocutory appeal that Congress provided in § 3731, or permit a United States Attorney to misuse the certification process.

In that regard, we emphasize that we are not diluting a standard implicit in the certification requirement. 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 judgment, not simply an administrative formality. The Fourth Circuit recently emphasized this point:

The authorization to file these interlocutory appeals is important to the prosecution of criminal cases because it permits the government to obtain appellate review, before jeopardy attaches, of trial court decisions suppressing what the government believes is evidence necessary to prove a crime. But because such an appeal necessarily disrupts trial court proceedings, the authorization contains an important limitation that is intended to protect defendants from undue delay ...

The certification requirement of § 3731 operates to ensure that before the United States interrupts a criminal proceeding (and thereby delays a defendant from obtaining resolution of the charges against him) by taking an interlocutory appeal, it has evaluated whether the appeal is warranted.

Thus, the filing of a § 3731 certification is not merely an administrative formality; it serves the important purpose of assuring the defendant’s protection from undue delay.

McNeill, 484 F.3d at 308 (emphasis in original) (internal quotations and citation omitted).

Significantly, the United States Attorney’s decision to appeal requires the concurrence of the Solicitor General of the United States. See Centracchio, 236 F.3d at 813 (concluding that the Solicitor General’s approval means there is “no significant danger that the appeal will be frivolous, warranting dismissal rather than disposition on the merits”); Romaszko, 253 F.3d at 760 (“[T]he Solicitor General authorized the appeal. This authorization likely ensures that the purposes of section 3731 were met.”); see also McNeill, 484 F.3d at 307 (referring to the United States Attorney obtaining approval from the Solicitor General “in accordance with internal Department of Justice policy”); United States v. Colomb, 419 F.3d 292, 296-97 (5th Cir.2005) (noting that the appeal followed the government obtaining approval of the Acting Solicitor General). Thus we expect the concerns about frivolous or disruptive attempts to involve us prematurely in ongoing trial proceedings that animated our previous certification-plus rule (and trouble our concurring colleague) will be addressed by the government’s wise and careful invocation of § 3731 appeals.

In sum, we conclude that the United States Attorney’s certification in this case suffices to establish our jurisdiction to hear the government’s interlocutory appeal. We therefore turn to the government’s challenges to the district court’s pretrial orders.

III. The Pretrial Case Management and Enforcement Orders

The government advances several arguments why the challenged pretrial orders are flawed: First, the district court lacked the authority to require in its March 2005 order that the government proride a pretrial witness list; second, even if the court had such authority, it could not require a final list, especially a year before trial; finally, the exclusionary effect of the enforcement orders was an inappropriate sanction. In response, the defendants argue that the district court had authority to order witness lists and acted within its discretion in enforcing its orders. We agree with the defendants.

A. Authority

We begin with the principle that the district court is charged with effectuating the speedy and orderly administration of justice. There is universal acceptance in the federal courts that, in carrying out this mandate, a district court has the authority to enter pretrial case management and discovery orders designed to ensure that the relevant issues to be tried are identified, that the parties have an opportunity to engage in appropriate discovery and that the parties are adequately and timely prepared so that the trial can proceed efficiently and intelligibly.

The principal orders at issue are the district court’s March 2005 order that, among other things, required the government to disclose by September 30, 2005 a “finalized list of witnesses”; and the court’s enforcement orders that limited the government’s use of witnesses in its casein-chief (but not rebuttal) to those who had been timely disclosed. The government did not object to the March 2005 order at the time, but when it filed its proposed witness list in September it purported to reserve “its right to update its witness list and exhibit list through the close of all evidence at trial.” The government now argues that the district court had no authority to require the government to produce such a witness list, particularly not a finalized list one year before trial, and to preclude the government from calling additional witnesses not disclosed by the time of the court’s mandated deadline.

We disagree. The district court’s March 2005 pretrial order and the enforcement orders fit comfortably within the court’s authority under Federal Rules of Criminal Procedure 2 and 16, and its more general inherent authority to manage its docket. Although our decision in United States v. Hicks, 103 F.3d 837 (9th Cir.1996), would suggest otherwise, we disapprove of Hicks’ reasoning and overrule it to the extent that it conflicts with our decision today. Rather, we align ourselves with the other circuit courts that, although not all relying on a uniform source of authority, widely agree that a witness disclosure order directed to the government is within the district court’s discretion to impose and enforce.⁷

There is a “well established” principle that “[district courts have inherent power to control their dockets.” Atchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir.1998) (alteration in original) (internal quotation marks omitted). Further, “judges exercise substantial discretion over what happens inside the courtroom.” United States v. Simpson, 927 F.2d 1088, 1091 (9th Cir.1991). We have accepted that “ ‘[a]ll federal courts are vested with inherent powers enabling them to manage their cases and courtrooms effectively and to ensure obedience to their orders.’ ” Aloe Vera of Am., Inc. v. United States, 376 F.3d 960, 964-65 (9th Cir.2004) (per curiam) (quoting F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128,1136 (9th Cir.2001)).

Other circuits that have addressed a district court’s authority to require the government to disclose its witness list in advance of trial have agreed that the court may do so. See United States v. Cannone, 528 F.2d 296, 299 (2d Cir.1975) (“The general discretion of district courts to compel the government to identify its witnesses is acknowledged widely____”). Some have invoked the court’s “inherent power, exercisable under appropriate circumstances, to assure the proper and orderly administration of criminal justice.” United States v. Jackson, 508 F.2d 1001, 1007 (7th Cir.1975); see United States v. Napue, 834 F.2d 1311, 1318 (7th Cir.1988) (“[A] district court has the authority to require the government to provide the defendant with such a list ____ [as] part of the court’s inherent power”) (internal quotation marks omitted); United States v. Higgs, 713 F.2d 39, 44 n. 6 (3d Cir.1983) (“While it is true that the government is not automatically required to make such disclosure, the district court, within its discretion, may order such disclosure to ensure the effective administration of the criminal justice system.”) (citation omitted); Cannone, 528 F.2d at 298 (“It is recognized that wide latitude is reposed in the district court to carry out successfully its mandate to effectuate, as far as possible, the speedy and orderly administration of justice.”) (internal quotation marks omitted). Others have not explained the source of authority, but simply have stated that it is within a district court’s discretion to order the government to produce a witness list under appropriate circumstances. See, e.g., United States v. DeCoteau, 186 F.3d 1008, 1010 n. 2 (8th Cir.1999) (“[A] district court in this circuit may exercise its discretion to require such disclosure in a proper case.”) (internal quotation marks omitted); United States v. Rosales, 680 F.2d 1304, 1305 (10th Cir.1981); United States v. Colson, 662 F.2d 1389, 1391 (11th Cir.1981); United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir.1980) (per curiam). Finally, some have grounded the authority in Rule 16 itself, see, e.g., United States v. Jordan, 466 F.2d 99, 101 (4th Cir.1972), or in a combination of Rule 16 and Rule 2, see United States v. Fletcher, 74 F.3d 49, 54 (4th Cir.1996).

We first examine the rule-based approach. Rule 16 specifies categories of witnesses and documentary evidence that are subject to mandato^ pretrial disclosure. See Fed.R.Crim.P. 16(a)(1) & (b)(1) (e.g., requiring the government to disclose at the defendant’s request a written summary of expert testimony the government intends to use during its case-in-chief). The rule also identifies kinds of information that are not included in the mandatory disclosure categories. See Fed.R.Crim.P. 16(a)(2) & (b)(2) (e.g., exempting government investigative or prosecuting documents). With respect to the district court’s authority, Rule 16(d)(1) permits the court, “for good cause, [to] deny, restrict, or defer discovery or inspection, or grant other appropriate relief,” and Rule 16(d)(2) grants the court broad authority to enforce “this rule,” including by any order “that is just under the circumstances.”

Congress has thus addressed the kinds of information the government and defendants are obligated to provide to each other before trial by way of discovery and the district court’s authority to enforce those obligations. Rule 2 bolsters that authority by instructing that the rules “are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.” The thrust of Rule 16 — viewed in light of Rule 2 — is to allow the district court to ensure that the parties comply with the letter and spirit of the rule. Much of the government’s challenge to the district court’s orders here can be disposed of under the express provisions of Rule 16 — such as the disclosure of scientific reports and expert witnesses, which we shall discuss presently.⁸

Although Rule 16 does not expressly mandate the disclosure of nonexpert witnesses, it is not inconsistent with Rule 16 and Rule 2 for a court to order the government to produce a list of such witnesses as a matter of its discretion. See Fletcher, 74 F.3d at 54 (citing Rule 16 and Rule 2 in upholding an order for disclosure of witnesses); Jackson, 508 F.2d at 1007 (citing Rule 2 in rejecting the government’s argument that the district court’s authority to order it to disclose its witness list should be conditioned on the defense’s showing of materiality and reasonableness). Above all, nothing in Rule 16 expressly prohibits the district court from ordering additional pretrial discovery or disclosures that will also further the objectives set forth in Rule 2. See Jackson, 508 F.2d at 1006 (stating that “the present [Rule 16] is no bar to the order”). The Supreme Court has recognized that federal courts “may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress.” United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).⁹ Of course, “[w]hatever the scope of this ‘inherent power,’ ... it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure.” Carlisle v. United States, 517 U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996); see Atchison, 146 F.3d at 1074 (“[District courts have inherent power to control their dockets, but not when its exercise would nullify the procedural choices reserved to parties under the federal rules.”). Ordering the pretrial disclosure of nonexpert witnesses does not “circumvent or conflict” with Rule 16. Carlisle, 517 U.S. at 426, 116 S.Ct. 1460. The rule does not entitle the defendant to a list of such witnesses, but by the same token it does not suggest that a district court is prohibited from ordering such a disclosure. See Jackson, 508 F.2d at 1006 (“[T]he Government fails to distinguish between the right of the defendant to demand a list of witnesses, and the authority of the court to order such disclosure under the appropriate circumstances.”).

As noted earlier, some courts have found an affirmative grant of authority to order the pretrial disclosure of all of the government’s proposed witnesses in Rule 16’s enforcement provisions (sometimes also invoking Rule 2). In doing so, these decisions have elided the language of Rule 16(d)(1) and (2) that appears to focus on enforcing the mandatory disclosure provisions of Rule 16 itself.¹⁰ We do not, however, have to resolve whether Rule 16 alone or in combination with Rule 2 provides sufficient authority for the district court’s orders regarding nonexpert witnesses. At the very least these rules do not preclude such orders. Further, they reinforce the logic and fairness of requiring the government to produce a pretrial witness list of both experts and nonexperts (subject to appropriate conditions) so that the parties — and the district court — may be adequately prepared for trial. That is the essential premise of the court’s inherent power to manage its cases to ensure the fair and effective administration of the criminal justice system. See United States v. Richter, 488 F.2d 170, 173-74 (9th Cir.1973) (“It is recognized that wide latitude is reposed in the district court to carry out successfully its mandate to effectuate, as far as possible, the speedy and orderly administration of justice.... It would be ill-advised to limit improvidently this inherent power for fear of misuse.”).¹¹

Insofar as we held in Hicks that a district court has no authority to order the government to produce a pretrial witness list beyond that specified in Rule 16, we now join our sister circuits and hold to the contrary. See Hicks, 103 F.3d at 841. In retrospect, our decision did not correctly distinguish between the mandatory disclosure requirements of Rule 16 and the district court’s discretionary authority to order pretrial disclosures of government witnesses in appropriate circumstances. In Hicks, the district court had ordered the parties to exchange witness lists and short summaries of anticipated witness testimony. Id. at 840. The defendant (not the government) objected, but eventually complied and appealed the district court’s order, arguing that “the district court did not have the authority under Rule 16 ... to issue such an order.” Id. We agreed, stating that a “district court that orders the Government and the defendant to exchange witness lists and summaries of anticipated witness testimony in advance of trial has exceeded its authority under Rule 16 of the Federal Rules of Criminal Procedure and has committed error.” Id. at 841 (emphasis added). To support this conclusion, Hicks relied on Congress’ rejection in 1975 of a proposed amendment to Rule 16 that would have required both the government and the defense to disclose their witnesses before trial. We inferred from this rejection that Congress intended to deny a district court any authority to order any pretrial witness disclosure other than that expressly provided under Rule 16. See id.

Inferring from the legislative history such a sweeping denial of authority was not an inevitable conclusion. There was no suggestion that Congress intended to bar district courts from exercising their discretionary authority to order pretrial discovery and disclosures from the government under terms and conditions that courts normally use to manage the fair and efficient conduct of trials. Rather, Congress was concerned that a mandatory disclosure rule would discourage government witnesses from testifying and lead to witness intimidation. See Napue, 834 F.2d at 1317 (“The conference committee expressed concern that such a requirement would discourage witnesses from testifying and would lead to ‘improper contact directed at influencing their testimony.’ ”) (quoting H.R.Rep. No. 94-414, at 12 (1975) (Conf. Rep.), reprinted in 1975 U.S.C.C.A.N. 713, 716). Congress said nothing about the district court’s discretion to order such a pretrial disclosure, subject to the court’s ability to tailor disclosures to specific concerns in a particular case, including the use of protective orders. See, e.g., United States v. Fort, 472 F.3d 1106, 1131 (9th Cir.2007). We therefore conclude that Hicks adopted an overly broad reading of Rule 16 and unnecessarily restricted the district court’s discretionary authority to order discovery from the prosecution.

In sum, we hold that a district court, consistent with Rule 16 and Rule 2 and as part of the court’s inherent authority to manage its docket, may in appropriate circumstances require the government to disclose a final list of its proposed trial witnesses and has the authority to enforce such an order. Hicks is overruled to the extent that it applied to such disclosures by the government.

B. The District Court’s Exercise of its Authority

The government contends that, even if the orders were authorized, both the March 2005 order and the enforcement orders were an abuse of the court’s discretion. We do not agree. Although a district court’s discretion to order pretrial discovery is not unfettered, the district court did not abuse its discretion here.

We first address the court’s orders insofar as they concerned expert disclosures and scientific reports, the disclosure of which is governed by Rule 16(a). Subsections (a)(1)(G), (a)(l)(E)(ii) and (a)(1)(F) of Rule 16 require the government to disclose, at the defendant’s request, a summary of any expert witness testimony the government intends to use during its case-in-chief at trial as well as “the bases and reasons for those opinions”; documents within the government’s possession, custody or control that the government intends to use; and certain scientific reports. The March 2005 case management order expressly implemented those provisions by requiring the timely disclosure of the government’s expert witnesses and an expert report tailored to the issues on which each expert is expected to testify. The December 2005 enforcement order also clarified that expert disclosures must identify the documents or information that the expert reviewed in preparing his or her report, a condition well within Rule 16’s requirement that expert disclosures describe “the bases and reasons for those opinions.” The district court’s orders imposing and enforcing these expert witness disclosures were clearly within its Rule 16 authority and not an abuse of its discretion.

Next, as to both expert and non-expert witnesses, the government argues that requiring it to disclose its final list of witnesses a year before trial was unreasonable and that the district court’s exclusion of witnesses and reports not disclosed by December 5, 2005 was an inappropriate sanction. We reject the government’s objections for several reasons.

First, the district court’s March 2005 order set a relatively early deadline for the government to provide a final witness list in advance of the then-scheduled September 2006 trial. The record reflects that the court had good reason to impose such a deadline, however; the court believed that the deadline would bring the necessary focus and organization to ready the case for trial. The charged conspiracy reaches back nearly 30 years, the government now proposes to call more than 200 witnesses, there are many defendants and allegations, and millions of pages of documents have been produced during discovery. Such a complex case poses special challenges to the parties in preparing for trial and to the court in managing the litigation. Moreover, the government itself had initially suggested a September 2005 trial date, indicating to the district court that the government could be prepared for trial by then. When asked in the March 2005 status conference whether the government could make its expert disclosures by the end of September, the prosecutor responded, “[t]hat would be good,” and when asked about a finalized list of witnesses and trial exhibits by the end of September, he said he “d[id]n’t have a problem with that.” The government also did not object to the disclosure deadlines set by the March 2005 order. Rather, when it filed its supposed “final” list in September 2005 it simply and unilaterally reserved its “right” to supplement the list up to the time of trial. Given the size and complexity of the case and the government’s acquiescence in the dates for final witness and document disclosures, the district court’s March 2005 order was reasonable and not an abuse of discretion.¹²

Second, the government mischaracterizes the enforcement orders as an exclusionary “sanction.” The enforcement orders were not imposed as a sanction; they simply enforce the earlier pretrial order requiring the timely identification of trial witnesses and documentary evidence. In March 2005, when the government told the court it was prepared to try the case that September, the government estimated it would be calling 60 to 80 witnesses; by the time it filed its witness list on September 30, the number of witnesses had grown to 233 and counting. At the December 2005 status hearing, the district court rejected the government’s arguments for expanding the list further, finding that the government “cannot now credibly claim that it is necessary to continue adding witnesses to an already unwieldy list.” Accordingly, it ruled that “the government’s presentation at trial will be limited to those witnesses that have been disclosed as of the filing of this Order [i.e., December 5, 2005],” later clarifying in the February 2006 order that this limitation applied only to the government’s case-in-chief, not to rebuttal witnesses. Given the many discussions the court had with counsel about the fluid nature of the government’s evolving case and the court’s expressed concerns that the government seemed unable to get its trial preparation under control, it could hardly have been a surprise that the court froze the witness list when and as it did.

Third, even if we were to view the enforcement orders as a sanction, they still would not be an abuse of the court’s discretion. At the outset, we emphasize that we are addressing only the preclusive effect of the enforcement orders as they currently stand because, apart from this interlocutory appeal, the government has thus far sought no relief from the district court’s orders with respect to any particular excluded witness. We do not know whether the district court would be persuaded to allow the government to add or substitute one or more new witnesses for good cause. See, e.g., D. Mont. R. 7.3 (permitting a party to seek relief from the district court if it finds new evidence and can demonstrate good cause). Nonetheless, the government relies on United States v. Finley, 301 F.3d 1000 (9th Cir.2002), for the proposition that the exclusion of witnesses can be imposed as a sanction only when the district court finds the violation of a disclosure order was “willful and motivated by a desire to obtain a tactical advantage.” Id. at 1018 (quoting Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)). Because the district court made no such findings in this case, the government contends the exclusion orders cannot stand. Finley, however, like Taylor, involved a defendant’s right to present evidence, not the government’s, and has no bearing here. See Finley, 301 F.3d at 1018 (“Because the Supreme Court has recognized that ‘[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense,’ Taylor, 484 U.S. at 408, 108 S.Ct. 646, courts should use particular caution in applying the drastic remedy of excluding a witness altogether.”).

Finally, the government argues that even if a court can legitimately compel the government to disclose its witness list, it cannot force the government to finalize that list on penalty of exclusion of later discovered witnesses, particularly a year before trial. Relying on United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir.1985), it contends the district court’s orders violated the separation of powers principle by improperly commandeering the government’s investigatory and prosecutorial functions. Of course, the orders did no such thing — as we have discussed, they dealt with managing the proceedings inside the courtroom, not with the government’s performance of its prosecutorial duties outside the courtroom. The government’s discretion to investigate and present'its case does not override the district court’s authority to manage the trial proceedings — including by setting discovery and disclosure deadlines — and Gatto does not hold otherwise.¹³

The government’s reliance on Gatto is misplaced. That case involved a district court order requiring the government to provide discovery in accordance with Rule 16. Four weeks before trial and well after the discovery disclosure deadline had passed, the government belatedly learned that cooperating state officials had relevant documents that should have been produced to the defendants. Invoking its authority under both Rule 16(d)(2) and the court’s inherent supervisory power, the district court precluded use of the evidence during the government’s case in-chief. Id. at 1043. On the government’s § 3731 appeal, we held that the court lacked authority under either its supervisory power or Rule 16. As to the former, we emphasized that the government’s delay in disclosure had not violated “any constitutional provision, federal statute, specific discovery order, or any other recognized right except perhaps [R]ule 16.” Id. at 1046. There was no need to resort to the court’s inherent supervisory power to create any other remedy for a violation of Rule 16 because the rule itself contains specific remedies for its violation. See id. As to Rule 16, we expressly held that the government’s failure to disclose the documents earlier did not violate the rule because the state-held documents were not in the government’s actual possession. Id. at 1049.

Unlike Gatto, here the government would violate Rule 16 if it were to call expert witnesses who were not timely disclosed. Therefore, the district court may properly rely on its Rule 16 authority where appropriate to enforce its orders. As to the disclosures not mandated by Rule 16, the court has inherent authority to enforce its specific discovery order, which the government would violate if it were to call undisclosed nonexpert witnesses. First, with respect to the expert disclosures, the district court’s March 2005 order was well within the bounds of Rule 16, as we have already discussed. The government did not object to the order, but instead reserved to itself a right to supplement its disclosures through the close of evidence at trial. The district court had the authority under Rule 16(d)(2) to reject this unilateral reservation of rights and enforce the discovery requirements mandated by the rule; it did not need to resort to its inherent authority. Second, as to the March 2005 order’s mandate to disclose nonexpert witnesses, who do not come within the express terms of Rule 16, nothing in Gatto — or in Rule 16 itself, as we have discussed in Section 111(A) — precludes a district court from relying on its inherent authority to order such witness disclosures or to enforce its order. As Gatto expressly noted, the government had not violated “any ... specific discovery order.” Id. at 1046. Here there was such an order, and if it is violated, the district court may exclude evidence as a sanction. Although there are limits to the district court’s inherent authority, the district court here is well within its authority to manage its docket in enforcing a valid pretrial discovery order. See United States v. Talbot, 51 F.3d 183, 187-88 & n. 5 (9th Cir.l995)(distinguishing Gatto and upholding exclusion of government witnesses for violation of pretrial disclosure order).

IV. Conclusion

In conclusion, we hold that the United States Attorney’s § 3731 certification to the district court sufficed to invoke our appellate jurisdiction over this interlocutory appeal. We further hold that the district court had authority to order and enforce the pretrial disclosures of government witnesses and evidentiary documents and that the district court did not abuse its discretion in doing so here. Should the government seek leave to add a specific witness or report it believes is foreclosed by the district court’s pretrial orders, we leave it to the district court to address the request in accordance with the principles we have set forth in this opinion.

AFFIRMED.

1 . The defendants do not challenge the government’s certification that the interlocutory appeal is not taken for purposes of delay.

2 . The concurrence looks to the Westfall Act, 28 U.S.C. § 2679(d)(1), as a point of reference for interpreting § 3731. As the concurrence itself candidly concedes, however, given the contrast between the Westfall Act’s certification regime and that of § 3731, the Act does not resolve our ultimate inquiry. Concurring op. at 518-19 & n. 3. We are satisfied that § 3731 means what it says, a conclusion shared by our sister circuits. More importantly, our reading does not require accepting the United States Attorney's certification as conclusive on the merits, only as sufficient to trigger our jurisdiction to reach them.

3 . Two circuits — the Eighth and the Third— have expressly noted the circuit split, in which 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." Johnson, 228 F.3d at 923; see Hodge, 359 F.3d at 325 n. 13.

4 . For example, we have previously dealt with certificates that are not timely filed in the district court. See, e.g., United States v. Becker, 929 F.2d 442, 445 (9th Cir.1991) (noting that whether the government could supplement the record on appeal with an untimely filed § 3731 certification was a discretionary matter for the court); see also McNeill, 484 F.3d at 306-10 (noting that although failure to timely file a § 3731 certification does not deprive the court of jurisdiction over the appeal, the court had discretion to impose any sanction necessary to enforce the requirement of filing a § 3731 certification, including dismissal); United States v. Romaszko, 253 F.3d 757, 759-60 (2d Cir.2001) (per curiam) (holding that the late filing of a § 3731 certification does not preclude jurisdiction but does permit the court to exercise its discretion under Federal Rule of Appellate Procedure 3(a) to dismiss the appeal). The merits of whether the government should ever be excused from failure to file a § 3731 certification on a timely basis are not before us in this appeal.

5 . The concurrence notes that "[i]t currently takes nine to ten months from the filing of an interlocutory appeal in a criminal case to its placement on an argument calendar.” Concurring op. at 525-26. That may be, although such is not the case when the proceedings are expedited. In any event, Congress has made the judgment that the government is entitled to an interlocutory appeal in specified circumstances, and the Loud Hawk certification-plus rule does nothing to get the appeal on an argument calendar any faster than the prevailing certification-only rule. Indeed, because we must first determine the jurisdictional issue and then determine the merits separately, a final determination under the Loud Hawk rule may well take longer. Although the concurrence invokes the appeal in this case to "demonstrate the Loud Hawk rule’s necessity” to prevent delay, id., it actually shows the opposite. But for Loud Hawk, the original panel would not have had to look beyond the certification and spend time forcing the government to prove the suppressed evidence was material (it was) before getting to the merits of the appeal. (That "the trial date remains in limbo,” id. at 526, is largely a function of our en banc process.)

6 . The definition of materiality governing the United States Attorney’s certification is well established, see Adrian, 978 F.2d at 491 (quoted in text, above), and remains the law of this circuit.

7 . We do not decide whether or to what extent the defense can be compelled to disclose a list of its witnesses before trial, and do not address those issues here.

8 . See Fed.R.Crim.P. 16(a)(1)(E)(ii), (a)(1)(F) & (a)(1)(G).

9 . We have previously read Hasting as "limit[ing]” federal courts’ inherent powers to "three specific areas”:

(1) to implement a remedy for a violation of recognized rights; (2) to preserve judicial integrity by ensuring that a criminal conviction rests on appropriate considerations validly before the jury; and (3) to deter future illegal conduct.

United States v. Gonsalves, 781 F.2d 1319, 1320 (9th Cir.1986); see also United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir.1991). Here, the government argues that because the district court's order does not fall within any of those "three specific areas,” the order is beyond the court's inherent powers. Our previous cases read Hasting too narrowly. There is nothing in that opinion that "limit[s]” the inherent powers to these three areas. The Supreme Court has, since Hasting, approved several exercises of inherent power that are beyond the “three specific areas” we thought Hasting delimited. E.g., Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (district courts have inherent power to punish bad-faith conduct by awarding attorneys’ fees to the other side); Thomas v. Arn, 474 U.S. 140, 142, 146-47, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (circuit courts have inherent power to establish a rule that "the failure to file objections to the magistrate’s report waives the right to appeal the district court’s judgment”). We therefore return to the understanding of inherent power that we recognized in United States v. Richter, 488 F.2d 170, 173-74 (9th Cir.1973), according to which district courts have the inherent power to "order the government to divulge names of prospective witnesses.”

10 . By its plain terms, Rule 16 speaks to specified kinds of discovery in criminal cases, and its enforcement provisions parallel this specificity rather than addressing the general authority of the court. Rule 16(d)(1) refers to granting relief related to "discovery or inspection,” which is Rule 16’s title; and (d)(2) authorizes courts to take certain actions "if a party fails to comply with this rule." (Emphasis added.) But see, e.g., Fletcher, 74 F.3d at 54 (citing Rule 16 as granting authority to regulate discovery broadly).

11 . Richter predated the 1993 amendments to Rule 16, in which Congress adopted provisions concerning expert witness disclosures. Notwithstanding these amendments, we do not read Congress as precluding district courts’ authority to regulate the discovery of nonexpert witnesses just because Congress specifically adopted certain rules pertaining to expert witness disclosures. The reasons for not limiting such authority are well expressed in Richter, 488 F.2d at 173-74.

12 . Notably, the district court did not take a rigid approach, effectively converting the September 30 deadline to a December 5 deadline by virtue of the December 2005 order.

13 . Although Gatto has been bemoaned as ”lay[ing] down an inflexible rule — the government has an absolute right to call its lately acquired witness whatever the consequences to the administration of justice in other respects,” United States v. Schwartz, 857 F.2d 655, 660 (9th Cir.1988) (Hupp, J., concurring), we disavow that it did create such an "absolute rule,” as we explain in text. As the majority in Schwartz itself recognized, a district court may exclude documents or witnesses for failure to comply with the court’s pretrial or discovery orders. See Schwartz, 857 F.2d at 659.