U.S. v. Carrillo-Bernal, CARRILLO-BERNA

• Decision Date: 28 June 1995
• Docket Number: No. 94-2169,CARRILLO-BERNA,D,94-2169
• Parties: UNITED STATES of America, Plaintiff/Appellant, v. Maria Eugeniaefendant/Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1490

58 F.3d 1490

UNITED STATES of America, Plaintiff/Appellant, v. Maria Eugenia CARRILLO-BERNAL, Defendant/Appellee.

No. 94-2169.

United States Court of Appeals Tenth Circuit.

June 28, 1995.

John J. Kelly, U.S. Atty., Albuquerque, NM (Judith A. Patton, Asst. U.S. Atty., Las Cruces, NM, with him on the brief), for plaintiff-appellant.

Barbara A. Mandel, Asst. Federal Public Defender, Las Cruces, NM, for defendant-appellee.

Before HENRY, Circuit Judge, McKAY, Senior Circuit Judge and SHADUR, Senior District Judge ^*.

SHADUR, Senior District Judge.

Following an evidentiary hearing on a motion by Maria Eugenia Carrillo-Bernal ("Carrillo-Bernal") for the suppression of evidence in her impending criminal case, the district court granted that motion. That order is the subject of the United States' attempted appeal here. We dismiss the appeal for failure to comply with the certification requirement of 18 U.S.C. Sec. 3731 ("Section 3731").

Background

At about 5:45 p.m. on March 11, 1994 Carrillo-Bernal was stopped at the primary inspection area of the United States Border Patrol checkpoint outside Las Cruces, New Mexico, by Border Patrol Agent Randy Holmes ("Holmes"). Holmes later testified that his suspicions were aroused during routine questioning by the exceptional cleanliness of Bernal's automobile and the absence of luggage in the passenger compartment. Holmes asked Carrillo-Bernal what was in the trunk. She told him that it was empty. Holmes then asked if he could see for himself. Carrillo-Bernal agreed that he could and was directed to a secondary inspection area where Holmes conducted his search, finding jumper cables and a jug of water in the trunk. Holmes next asked if he could conduct a K-9 sniff of the vehicle. Again Carrillo-Bernal agreed. When the dog "Nick" alerted to the presence of drugs, a further search of a secret compartment that Holmes and other agents found in the vehicle turned up 60 pounds of marijuana. Carrillo-Bernal was advised of her rights and placed under arrest. At first she refused to sign a Miranda waiver form and invoked her right to counsel, but she later made self-incriminating remarks while being transported to jail.

On March 17, 1994 Carrillo-Bernal was indicted for possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1), and she later entered a plea of not guilty. On May 31, 1994 the district court suppressed both the marijuana and the ensuing self-incriminating statements on the grounds that the marijuana was obtained in violation of Carrillo-Bernal's Fourth Amendment right against unreasonable searches and that the statements were the fruit of that poisoned tree. It was the district court's view that by questioning Carrillo-Bernal about the contents of the trunk in the absence of "suspicious circumstances," Holmes exceeded the scope of a constitutionally permissible checkpoint stop as set out in United States v. Martinez-Fuerte, 428 U.S. 543, 556-64, 96 S.Ct. 3074, 3080-85, 49 L.Ed.2d 1116 (1976), United States v. Ludlow, 992 F.2d 260, 262-65 (10th Cir.1993) and United States v. Sanders, 937 F.2d 1495, 1498-1502 (10th Cir.1991). On July 11 the district court denied the United States' motion for reconsideration. On July 19 the United States filed a notice of appeal in accordance with Fed.R.App.P. 4(b).

That decision to appeal was made by Assistant United States Attorney Judith Patton in consultation with an unidentified attorney from the Appellate Section of the Department of Justice (the "DOJ Attorney"). Section 3731 governs interlocutory government appeals in a criminal case and provides in relevant part (emphasis supplied):

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.

* * * * * *

The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

The provisions of this section shall be liberally construed to effectuate its purposes.

Because the certification called for by Section 3731 was not filed at the time the appeal was taken, on August 23 we alerted the parties to that deficiency. On August 26 this representation was made to the district court over the signature of Acting United States Attorney James Tierney:

The undersigned has reviewed the Memorandum Opinion and Order suppressing the evidence in the above-referenced criminal cause. The undersigned therefore hereby certifies that this appeal is not taken for the purpose of delay, and that the evidence suppressed is substantial proof of a fact material in the proceeding.

On September 30, 1994 we granted the United States' motion to supplement the record with the August 26 certificate.

Here is the government's explanation for its failure to file a timely Section 3731 certificate (Br. 9-10):

Undersigned counsel for the United States [AUSA Patton] works in the Las Cruces, New Mexico, branch office of the district. Counsel filed the Notice of Appeal on July 19, 1994, in haste and in an abundance of caution, to insure she would not miss the thirty-day jurisdictional requirement. Counsel planned to be out of the office and away from Las Cruces from July 25, 1994, until August 15, 1994. An attorney from the Appellate section of the Department of Justice, who had already reviewed the case, advised counsel to file the notice of appeal immediately. Undersigned counsel filed the Notice of Appeal almost immediately after learning of Judge Vazquez' ruling. Inadvertently, counsel failed to file the certificate pursuant to 18 U.S.C. Sec. 3731 before leaving the office for three weeks.

The branch office for the Office of the United States Attorney for the District of New Mexico at Las Cruces is an extremely high-volume office. It is located near the international border. In addition to handling reactive cases from the United States Border Patrol checkpoints and United States Customs Service Ports of Entry, the office manages cases from numerous federal and state agencies and task forces in southern New Mexico. While the pace of the practice is no excuse for the filing error, counsel hopes this Honorable Court will accept the honest explanation for the omission and permit the prosecution of this most important appeal.

To dispel any possible misunderstanding on the part of the United States as to the function and importance of Section 3731's certification requirement, we are compelled to revisit at some length an issue that we thought had been laid to rest by our recent decision in United States v. Hanks, 24 F.3d 1235 (10th Cir.1994).

Section 3731's Certification Requirement

This Court has long held that the government's failure to file a timely Section 3731 certificate does not deprive the court of jurisdiction (United States v. Welsch, 446 F.2d 220, 224 (10th Cir.1971)). Instead the relevant inquiry is whether the reviewing court should exercise its discretion to entertain the appeal in light of such defect, as provided by Fed.R.App.P. 3(a):

Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal.

Hanks dismissed an appeal from an order suppressing on Miranda grounds certain statements made by a defendant, finding "no reason to excuse the government's failure timely to comply with the Sec. 3731 certification requirement" (24 F.3d at 1239). Hanks, id. at 1238-39 identified several factors favoring dismissal: (1) a 2 1/2 month delay in filing; (2) the fact that final resolution of any criminal case weighs heavily on a defendant's mind (even if he or she is out on bail); (3) the government's failure to explain why it did not file the certificate in a timely manner; (4) the government's failure to demonstrate important legal issues needing clarification or other significant reason to hear the appeal; (5) the government's lackluster response upon learning of the deficiency and concomitant waste of judicial resources; ¹ and (6) the government's failure "even to acknowledge that the certification requirement in Sec. 3731 should be taken seriously." Hanks, id. at 1239 (emphasis in original) put these teeth into Section 3731's certification requirement:

We believe that we must give meaning to the Sec. 3731 requirement that the government certify that it is taking the appeal for a proper purpose. "[T]he certificate process cannot serve its function unless the responsible prosecuting official makes a thorough and conscientious analysis of the case before deciding to appeal. The certificate is the official's representation that such an analysis has been made, and we must therefore require the certificates to be filed promptly." United States v. Herman, 544 F.2d 791, 794 n. 4 (5th Cir.1977). A certification that the appeal has not been taken for the purpose of delay would be a hollow protection for a defendant's right to resolve his or her case quickly if we were regularly to allow prosecutors to wait months before verifying the propriety of their appeals without requiring some explanation for the delay or some showing of why we should accept the late filing of the certificate. Post hoc certification that an appeal was not taken for the purposes of delay reduces the Sec. 3731 requirement to meaningless formality.

Here the United States seeks to distinguish Hanks point by point, arguing that the certificate was filed only 16 days...