U.S. v. Arce-Jasso

• Decision Date: 20 October 2004
• Docket Number: No. 03-41377.,03-41377.
• Citation: 389 F.3d 124
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Raul Rafael ARCE-JASSO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

389 F.3d 124

UNITED STATES of America, Plaintiff-Appellant, v. Raul Rafael ARCE-JASSO, Defendant-Appellee.

No. 03-41377.

United States Court of Appeals, Fifth Circuit.

October 20, 2004.

COPYRIGHT MATERIAL OMITTED

Mitchel Neurock (argued), Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellant.

Marjorie A. Meyers, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def. (argued), Houston, TX, Marissa Perez-Garcia, Laredo, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before DeMOSS, STEWART and CLEMENT, Circuit Judges.

DeMOSS, Circuit Judge:

Plaintiff-Appellant United States of America (the "Government") seeks review of the district court's judgment of acquittal in favor of Defendant-Appellee Raul Rafael Arce-Jasso ("Arce-Jasso") on possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The Government also seeks review of the district court's denial of the Government's motion for reconsideration of its order granting Arce-Jasso's motion to suppress the cocaine. Because this Court finds we do not have appellate jurisdiction to review either the judgment of acquittal or the denial of the motion for reconsideration of the suppression, we DISMISS the Government's appeal.

BACKGROUND

In the early evening hours on February 20, 2002, Arce-Jasso drove a 1996 Mercury Cougar to the border patrol checkpoint located on I-35, 15 miles north of Laredo, Texas. Arce-Jasso pulled into the primary inspection lane, which Agent Jesus Garcia ("Garcia") was manning. When Arce-Jasso pulled up, Agent Garcia questioned him about his citizenship. Arce-Jasso responded in Spanish that he was a U.S. citizen and presented a birth certificate indicating he was born in Laredo and a photo ID (not a driver's license). Agent Garcia examined the items and believed Arce-Jasso was a U.S. citizen at that time. He then proceeded to ask Arce-Jasso two more questions in Spanish: (1) where he was going and (2) who owned the Mercury Cougar. Arce-Jasso answered that he was going to San Antonio and that he had bought the car about a week ago.¹ Just then, Arce-Jasso started pulling out of the checkpoint. Agent Garcia called after him to ask if he wanted his documents back, and Arce-Jasso stopped. At that point, Agent Garcia referred Arce-Jasso to the secondary inspection area where a canine alerted and agents discovered cocaine hidden in the side panel of the car. The entire episode took about five minutes.

On March 19, 2002, a Laredo federal grand jury returned an indictment charging Arce-Jasso with possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Arce-Jasso pleaded not guilty before a magistrate judge on March 28, 2002. Arce-Jasso filed a motion to suppress the cocaine on April 9, 2002, arguing his detention at the border checkpoint was unconstitutionally lengthy. After a hearing, the district court denied this motion by written order entered May 23, 2002. A bench trial took place on June 3, 2002. The parties entered a joint stipulation of fact that same day. During the trial, Arce-Jasso's counsel made clear that Arce-Jasso agreed with the stipulation "other than the legality of the stop which is the issue that we seek to preserve for appeal by doing this." The court found Arce-Jasso guilty and entered verdict on June 7, 2002.

Prior to sentencing, on January 3, 2003, Arce-Jasso filed a motion for reconsideration of the court's original denial of the motion to suppress based on United States v. Portillo-Aguirre, 311 F.3d 647 (5th Cir. 2002). After a hearing, the district court granted this motion by written order entered on May 9, 2003, and suppressed the drug evidence. The Government filed a motion for reconsideration of this decision; and after hearing additional testimony, the court entered another written order on August 12, 2003, reaffirming its decision to suppress the cocaine. Arce-Jasso then filed a motion seeking either a judgment of acquittal or a new trial, which the court granted by entering a judgment for acquittal and also a conditional order for a new trial on August 29, 2003.

On September 25, 2003, the Government filed a joint notice of appeal per 18 U.S.C. § 3731 of: (1) the court's judgment of acquittal and (2) the court's order denying the Government's motion for reconsideration of the court's prior order suppressing the cocaine evidence.

DISCUSSION

Whether this Court has appellate jurisdiction to review the denial of the Government's motion to reconsider the district court's suppression order.

Before reaching the merits, this Court must examine the basis, if any, of its appellate jurisdiction. Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 335 (5th Cir.1999). The Government's ability to appeal suppression of evidence in criminal cases is governed by 18 U.S.C. § 3731. Section 3731 states: "An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence ... not made after the defendant has been put in jeopardy and before the verdict." 18 U.S.C. § 3731 (2004). The U.S. Attorney must also "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. All appeals under § 3731 "shall be taken within thirty days after the decision, judgment or order has been rendered." Id. Federal Rule of Appellate Procedure 4(b)(1)(B)(i) requires: "When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after ... the entry of the judgment or order being appealed."² Fed. R.App. P. 4(b)(1)(B)(i).

Arce-Jasso first contends that this Court does not have appellate jurisdiction to review the district court's decision to suppress the cocaine because the Government did not timely appeal that decision. He argues the 30-day clock began to run on August 12, the day the court denied the Government's motion for reconsideration of the grant of suppression; therefore, the Government's filing notice of appeal on September 25 fell outside the 30 days. The timing advanced by Arce-Jasso is correct. The clock would not have started running on May 9, 2003, when the suppression was actually granted, but would have started when the court denied the motion for reconsideration the Government made, on August 12. See United States v. Greenwood, 974 F.2d 1449, 1466-67 (5th Cir. 1992).

The Government concedes that if the clock started on August 12, it did fail to meet the 30-day deadline. However, the Government points to the materiality requirement in § 3731 and argues that the outcome of the motion to suppress by itself did not have any legal effect on the prior guilty verdict and thus had no practical "material" effect on the proceedings until the district court granted Arce-Jasso's motion for judgment of acquittal. Thus, the Government contends the real clock began with the entry of acquittal, both for appealing the suppression and the acquittal. The Government is correct that appealing the decision to suppress per § 3731 would be possible here, notwithstanding the Rule 4(b) timing problem.³

Although Rule 4(b)'s timing requirement is considered jurisdictional, see United States v. Wilson, 306 F.3d 231, 236 (5th Cir.2002), the Rule allows the district court to extend the time to file a notice of appeal for a period up to 30 days from the expiration of the Government's initial 30-day deadline. See FED. R.APP. P. 4(b)(4). However, the district court may only do so "upon a finding of excusable neglect or good cause." Id. This Court has "customarily treated" the filing of an untimely notice of appeal within the 30-day additional period contemplated by Rule 4(b)(4) "as a motion for a determination whether excusable neglect or good cause entitles the defendant to an extension of time to appeal." United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000) (citation omitted). However, we have only granted this equitable treatment to criminal defendants, not to the Government as prosecutor. See id.; United States v. Golding, 739 F.2d 183, 184 (5th Cir.1984); United States v. Awalt, 728 F.2d 704, 705 (5th Cir.1984); United States v. Shillingford, 568 F.2d 1106, 1106 (5th Cir.1978); United States v. Guiterrez, 556 F.2d 1217, 1218 (5th Cir.1977).

Unlike Rule 4(b), § 3731's timing requirements are not jurisdictional; "we may still entertain § 3731 appeals certified in an untimely manner." United States v. Smith, 135 F.3d 963, 967 (5th Cir.1998). In Smith, the Government filed notice to appeal an order quashing a subpoena within 30 days of that order's entry but did not certify its appeal until a few months later. Id. When the district court issued a second order confirming its decision to quash the subpoena, the Government reinstated its original appeal within 30 days of the second order's entry. Id. This Court viewed the Government's "reinstated appeal as incorporating the proper, but untimely, § 3731 certification from its first appeal." Id. at 968. We agreed to hear the Government's appeal, in spite of the untimely certification, because the "[G]overnment effectively complied with the time limit in the statute" and "[t]o the extent the [G]overnment did not follow the precise letter of the law, the defendant, the person meant to be protected by § 3731, suffered no harm." Id.

We find the Government's untimeliness should not be excused here. This Court has never treated or recognized the Government's filing of an untimely motion within the 30-day additional period contemplated by Rule 4(b)(4) as a motion for a determination of excusable neglect or good cause. Whether this Court would do so is not before us because the Government advanced no such argument. However, even if we were to treat the Government's untimely appeal as a motion for...