US v. Gantt

• Citation: 179 F.3d 782
• Decision Date: 07 June 1999
• Docket Number: No. 98-50171.,98-50171.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Pamela Jean GANTT, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

179 F.3d 782

UNITED STATES of America, Plaintiff-Appellant, v. Pamela Jean GANTT, Defendant-Appellee.

No. 98-50171.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 7, 1999.

Submission withdrawn January 12, 1999.

Resubmitted May 25, 1999.

Filed June 7, 1999.

COPYRIGHT MATERIAL OMITTED

Joseph Brannigan, Assistant United States Attorney, San Diego, California, for the plaintiff-appellant.

Benjamin Coleman, Federal Public Defender, San Diego, California, for the defendant-appellee.

Before: LAY,¹ GOODWIN, and SCHROEDER, Circuit Judges.

GOODWIN, Circuit Judge:

In this interlocutory appeal from a suppression order, the government argues that F.R.Cr.P. 41(d) does not require agents to serve a copy of a search warrant on a person present at the search of her property. Instead, the government contends that Rule 41(d) is satisfied if a copy of the warrant is left behind at the scene after the search is completed, even if the person is first arrested and thus has no opportunity to examine the warrant left behind. We reject the government's interpretation of Rule 41(d) and affirm the district court's suppression order. Before we reach the merits of the appeal, however, we must consider whether this appeal is properly taken under 18 U.S.C. § 3731.

I. Procedural and Factual Background

The parties appear to agree on all of the facts essential to this appeal. The government has indicted Gantt under 18 U.S.C. §§ 115, 876, and 1114 for threatening to assault and kill an FBI agent. The threats were made in numerous phone calls and letters. The government suspects Gantt because she plead guilty in 1993 to making similar threats to a Federal Public Defender in Washington state who had represented a man accused of raping Gantt. The FBI Agent began receiving the threats while she was investigating the Public Defender's complaint that Gantt had recently resumed the threatening phone calls.

At 6:30 am, on November 25, 1997, the FBI executed a search warrant on Gantt's room in a San Diego hotel. The warrant did not specify the suspected criminal activity.² Instead of describing the items to be seized, the warrant stated "see Attachment A." Attachment A was a two-page, typed list of items to be seized including specific kinds of envelopes, paper, and postage stamps, items with the name or address of the FBI agent or Public Defender, typing materials, and items reflecting control of the apartment searched such as mail or keys.

Upon entering Gantt's residence, the agents did not present her with a copy of the warrant. Instead, they directed her to sit in the hallway while they conducted their three-hour search. The agents did not show Gantt the warrant under the authority of which they had invaded her privacy until Gantt herself asked to see the search warrant. The agents responded by showing her the face of the warrant but not Attachment A. Gantt did not specifically ask to see Attachment A. After concluding their search, the agents gave Gantt an inventory of items seized and left a copy of the warrant with Attachment A behind in the hotel room. Before Gantt could examine the copy of the warrant left in the hotel room, however, the agents arrested her and took her to an FBI office. Only at the FBI office was Gantt shown the entire warrant including Attachment A. Among the items seized that do not appear on the list in Attachment A were a fake grenade, Spanish language materials, business cards, pawn shop receipts, a check register, a vehicle registration, and ammunition.

The district court granted Gantt's motion to suppress the evidence seized from the hotel room. The government appeals.

II. The Government's Failure to Timely Satisfy 18 U.S.C. § 3731

We must first consider whether the government's appeal should be dismissed for failure timely to meet the certification requirements of 18 U.S.C. § 3731.

Beginning in 1907, Congress has granted the government limited rights of appeal in criminal cases. See Criminal Appeals Act of 1907, 34 Stat. 1246 (March 2, 1907) (codified as amended at 18 U.S.C. § 3731). But not until 1968 did Congress provide the government the ability to bring interlocutory appeals of district court decisions to suppress evidence. See Omnibus Crime Control and Safe Streets Act of 1968, Title VIII, Pub.L. 90-351, 82 Stat. 197 (1968) (codified as amended at 18 U.S.C. § 3731). Prior to the enactment of this provision, government appeals of suppression orders had been prohibited in keeping with both the policy against piecemeal litigation and the traditional reluctance to allow government appeals in criminal cases. See DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). The Supreme Court had held that "orders granting or denying suppression . . . are truly interlocutory" and not final orders for purposes of 28 U.S.C. § 1291.³ Id.

In abrogating the common law position reaffirmed in DiBella, Congress did not go so far as to grant the government unfettered authority to appeal suppression orders. Appeals are not permitted "after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information." 18 U.S.C. § 3731. Before an appeal is filed, Congress also requires that "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." This requirement is designed to force federal prosecutors to consider whether the appeal is taken for a proper purpose before they force a defendant to relitigate the evidentiary issue. See United States v. Carrillo-Bernal, 58 F.3d 1490, 1493 (10th Cir.1995).

Unfortunately, some government attorneys from time to time treat the § 3731 certification requirement as a mere formality and even neglect to file the certification in a timely manner.⁴ The failure to file the certificate does not oust our jurisdiction but does require us to decide whether to exercise our discretion under F.R.App.P. 3(a) to dismiss the appeal. See United States v. Becker, 929 F.2d 442, 445 (9th Cir.1991). While "the complete failure to file a certificate would clearly constitute a violation of the statute," id. at n. 1, we have previously accepted certificates filed even after oral argument. See id.; United States v. Eccles, 850 F.2d 1357, 1359-60 (9th Cir.1988). Other circuits have not been as generous, especially in recent years. See, e.g., United States v. Salisbury, 158 F.3d 1204, 1206-07 (11th Cir.1998) (dismissing appeal where certificate filed one month after notice of appeal); Carrillo-Bernal, 58 F.3d at 1492 (dismissing appeal where certificate filed after court alerted parties of deficiency); United States v. Miller, 952 F.2d 866, 876 (5th Cir.1992) (dismissing appeal where certificate filed after deficiency raised in defendant's brief).

In the present case, the government did certify that it was not pursuing this appeal for purposes of delay but failed to certify that the evidence suppressed is a "substantial proof" of a material fact. The deficiency was raised sua sponte by this court in a pre-argument order to show cause. Before oral argument, the government filed the appropriate certification. We choose to exercise our discretion not to dismiss this appeal.

The United States Attorney's Office for the Southern District of California has shown that despite its mistake, it does take the certification requirements of § 3731 seriously. Cf. Carrillo-Bernal, 58 F.3d at 1494 (condemning government's treating the certification requirement as a "meaningless formality"). The Office has described its internal procedures requiring senior officials carefully to review, in light of the requirements of § 3731, each request by a trial attorney for an appeal of a suppression order. The Office has also assured this Court that those procedures were followed in the present case, that the failure to provide the certification was a clerical error, and that those procedures are being reinforced as a result of this error. Given the serious attention the United States Attorney appears to be devoting to the issue, we do not dismiss the appeal. Moreover, though the government's oversight has led to a considerable waste of judicial resources, the defendant has suffered no prejudice.

The Ninth Circuit does require "more than the prosecutor's bare certification" to the district court to establish § 3731 compliance; the government must also demonstrate to this Court the existence of the two § 3731 conditions. United States v. Adrian, 978 F.2d 486, 490-91 (9th Cir.1992); see also United States v. Poulsen, 41 F.3d 1330, 1333 (9th Cir.1994). The government concedes that it erred in not making a case for the § 3731 conditions in its opening brief. But because there has been no allegation or indication that the appeal is being pursued for delay and because the relevance to the indictment of the items seized is unquestioned, we conclude that § 3731 has been satisfied.

III. Appointment of United States Attorneys By District Courts under 28 U.S.C. § 546(d)

In her reply to the government's response to our order to show cause, Gantt argues that the government's § 3731 certification is invalid because the appointment of the current United States Attorney for the Southern District of California by the judges of the Southern District of California pursuant to 28 U.S.C. § 546(d) violates the Appointments Clause. U.S. Const., Art. II, § 2, cl. 2.

Since the Civil War, the judiciary has been empowered to fill vacancies in the office of United States Attorney. See Act of March 3, 1863, chap. 93, § 2, 12 Stat. 768 (1863) (Rev.Stat.1873, § 793). The current version of this appointment power is codified at 28 U.S.C. § 546(d). Section 546(a)-(c) authorizes the Attorney General "to appoint a United States attorney for the district in which the office of United States attorney is vacant" for 120 days. Upon the expiration...