U.S. v. Salisbury

• Decision Date: 29 October 1998
• Docket Number: No. 97-6573,97-6573
• Citation: 158 F.3d 1204
• Parties: 12 Fla. L. Weekly Fed. C 205 UNITED STATES of America, Plaintiff-Appellant, v. David A. SALISBURY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1204

158 F.3d 1204

12 Fla. L. Weekly Fed. C 205

UNITED STATES of America, Plaintiff-Appellant, v. David A. SALISBURY, Defendant-Appellee.

No. 97-6573.

United States Court of Appeals, Eleventh Circuit.

Oct. 29, 1998.

D. Douglas Jones, U.S. Atty., Shirley I. McCarty, Asst. U.S. Atty., Birmingham, AL, H. Victor Conrad, Asst. U.S. Atty., Huntsville, AL, for Plaintiff-Appellant.

James T. Baxter, III, Huntsville, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before HATCHETT, Chief Judge, HULL, Circuit Judge, and MOORE ^*, District Judge.

MOORE, District Judge:

I.

In this case, the United States ("Government")appeals the district court's order suppressing evidence obtained during an interview of David Salisbury conducted by a Special Agent from the Tennessee Valley Authority Office of the Inspector General ("OIG"). Mr. Salisbury was indicted under 18 U.S.C. § 1101 for submitting false information regarding his eligibility for temporary living expenses. We decline to reach the merits and dismiss the appeal for failure to comply with the certification requirements of 18 U.S.C. § 3731.

II.

Mr. Salisbury was indicted after being interviewed by an OIG Special Agent. On May 5, 1997 the district court held a hearing on Mr. Salisbury's Motion to Suppress the evidence obtained during that meeting. The district court advised the parties that it intended to suppress the Government's evidence and on May 7 entered an Order and Memorandum Opinion to that effect. On June 2, the Government filed a Motion to Reconsider which the court denied on June 16. The Government timely filed a Notice of Appeal, but neglected to certify, pursuant to 18 U.S.C. § 3731, that the appeal was not undertaken for delay and concerned evidence of a material fact in the proceeding. The clerk of this court informed the Government that it had not filed the Section 3731 certificate and on August 14, one month after its Notice of Appeal, the Government filed that document.

III.

Whether the government should be permitted to proceed on appeal when it neglects to file timely the certification required by 18 U.S.C. § 3731 is an issue of first impression in this circuit. The Fifth and Tenth Circuits have dismissed appeals when the government has not complied with the certification requirements of 18 U.S.C. § 3731. ¹ See United States v. Carrillo-Bernal, 58 F.3d 1490, 1497 (10th Cir.1995); United States v. Hanks, 24 F.3d 1235, 1239 (10th Cir.1994); United States v. Miller, 952 F.2d 866, 876 (5th Cir.1992). We agree with and adopt the rationale of our sister circuits.

18 U.S.C. § 3731 governs appeals by the government in criminal cases. Among other things, it permits the government to appeal a district court decision or order suppressing evidence "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." 18 U.S.C. § 3731. While the statutory language appears mandatory, compliance with the certification requirement is not considered a jurisdictional issue. See United States v. Eccles, 850 F.2d 1357, 1358 (9th Cir.1988); United States v. Crumpler, 507 F.2d 624, 624 (5th Cir.1975); United States v. Welsch, 446 F.2d 220, 224 (10th Cir.1971).

It is clear that noncompliance with Section 3731's certification requirement does not rob this court of jurisdiction; rather, a failure to certify is treated as a filing irregularity. Federal Rule of Appellate Procedure 3(a) governs defects in the filing process and provides that such irregularities are "ground[s] only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal." Fed.R.App.P. 3(a) (1998). Thus, how we treat failures to comply with Section 3731's certification requirement is a discretionary matter. Like our sister circuits, we believe that the certification requirement "is not a mere formality." United States v. Herman, 544 F.2d 791, 794 (5th Cir.1977); see also Carrillo-Bernal, 58 F.3d at 1493.

The certification requirement imposed by Section 3731 serves the very important purpose of ensuring that the prosecutor carefully analyzes the case before deciding to appeal. See Hanks, 24 F.3d at 1239; Herman, 544 F.2d at 794, n. 4. Certification to the district court forces the prosecutor to represent that she has, in fact, thoroughly and conscientiously considered the decision to appeal. By forcing the prosecutor to take these pre-appeal steps, Section 3731's certification requirement furthers the vital underlying goal of preventing needless delay and prolonged worry in criminal proceedings. See Carrillo-Bernal, 58 F.3d at 1492-97; Miller, 952 F.2d at 875.

In the instant case, the Government certified the propriety of its appeal one month after it filed its notice of appeal. Obviously, the purpose of the certification process is defeated when the prosecutor files her representation after initiating the appeal. See Miller, 952 F.2d at 875; Hanks, 24 F.3d at 1239. In response, the government offers three arguments.

First, the Government argues that Mr. Salisbury suffered no harm from any delay the appeal may have caused because he was not incarcerated while the appeal proceeded. This position ignores the fact that pre-trial release is still a deprivation of liberty and the burden of an impending trial weighs heavy on the mind of the accused. See United States v. Loud Hawk, 474 U.S. 302, 311, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986); Carrillo-Bernal, 58 F.3d at 1493; Hanks, 24 F.3d at 1238.

Second, the Government contends that its delinquency should be excused because the Assistant United States Attorney assigned to the case was out of town and another prosecutor unfamiliar with the case filed the appeal. Simple negligence, like not ensuring that the certification is properly filed even if the responsible attorney is out of town, cannot excuse noncompliance with the express mandate of the statute. Cf., Carrillo-Bernal, 58 F.3d at 1493 (refusing to excuse late certification because the prosecutor in charge was very busy).

Third, the Government argues that even though it failed to certify properly, the decision to appeal was based on a conscientious pre-appeal analysis. While the responsible prosecutors may have complied with the spirit of the statute, nothing in the record supports this position. We cannot accept such a naked assertion as sufficient.

IV.

We believe the purpose underlying Section 3731's requirement is thwarted when the government certifies the propriety and weight of its appeal after it has initiated the appeal. Absent some compelling justification, we shall decline to hear such appeals.

Accordingly, we DISMISS the appeal.

HULL, Circuit Judge, dissenting:

This case presents an issue of first impression in this Circuit. I agree with the majority's conclusions that: (1) the government's failure to file a timely section 3731 certificate does not oust jurisdiction but constitutes only a "filing irregularity"; and (2) how this Court treats the government's untimely section 3731 certification is discretionary. I dissent because this appeal should not be dismissed for these reasons: (1) the government's certificate was filed shortly after its notice of appeal; (2) the defendant, free on bond, did not object; (3) the government's appeal of the suppression of virtually all evidence against the defendant is not taken for delay; and (4) the government's Motion for Reconsideration in the district court and the significant legal issues in the suppression order demonstrate that the government's appeal is justified and not perfunctory. The majority opinion contravenes Congress's statutory instruction that "[t]he provisions of this section shall be liberally construed" to effectuate its purpose of allowing interlocutory appeals by the government. 18 U.S.C. § 3731. ¹ First, the government's certificate was filed within a month of its notice of appeal. ² This Court often excuses similar "filing irregularities" by defendants' counsel and should afford government's counsel equal treatment. Second, the defendant did not object initially. Instead, this Court raised the issue. Only then did the defendant brief the issue at the Court's direction.

Third, the majority concludes that the government's assertion of a conscientious pre-appeal analysis lacks support in the record and that permitting the prosecutor's untimely certificate defeats the purpose of the certification process. I disagree. The record demonstrates a principled appeal and certificate, and not a purely ad hoc certificate by the prosecutor as the majority finds. The district court orally suppressed virtually all evidence and later entered a detailed suppression decision published at 966 F. Supp. 1082 (N.D. Ala. 1997). The record shows that at the time of the oral ruling, the government indicated an appeal would be filed. The district court also entered an order acknowledging that the government asserted that "it cannot proceed to trial without the suppressed evidence." United States v. Salisbury, CR 97-AR-74-NE (N.D. Ala. May 7, 1997). The government also filed an extensive Motion for Reconsideration in the district court pointing out why the suppression order involved important legal issues and should be revisited. The government's section 3731 brief attaches that Motion for Reconsideration as evidence of the government's pre-appeal analysis of the legal issues. The record sufficiently demonstrates that the government made a conscientious pre-appeal analysis but inadvertently omitted the certificate.

Moreover, the nature of the legal issues makes it self evident that the government's decision to appeal was principled and not perfunctory. The defendant, employed by a private company contracting with the Tennessee Valley Authority, was interviewed at his work place by a special agent of the Office of the...