United States v. Arce-Jasso

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004

Charles R. Fulbruge III
Clerk
No. 03-41377

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

RAUL RAFAEL ARCE-JASSO,

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

1
Agent Garcia stated he asked these questions because certain
cities are common destinations for illegal aliens and “disposable”
vehicles are often used for smuggling drugs or aliens. He also
stated that Cougar vehicles have been used for alien smuggling
because of their large trunk and a void in the quarter panels, and
freshly cleaned cars, such as Arce-Jasso’s, suggest they have been
wiped down for residue or odor.

2
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,

3
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 §

4
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

2
This Court has held that the 30 days start with the entry of
the judgment or order in the docket per Rule 4(b), not the
rendering of the judgment or order per § 3731. United States v.
Wilson, 306 F.3d 231, 237 (5th Cir. 2002). Here, the dates of
rendering and entry for reconsideration of the suppression are the
same (August 12) and for the acquittal are one day apart (rendered
on August 28, entered on August 29).

5
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

3
The Government has met § 3731's other requirements. Section
3731 expressly allows for Government appeal from orders suppressing
evidence; here, the cocaine discovered in the Cougar was suppressed
by the court. Suppression must not be made “after the defendant
has been put in jeopardy and before the verdict”; this is also met
here because the order was entered after the bench trial ended and
the court entered its guilty verdict. See United States v.
Kington, 801 F.2d 733, 735 (5th Cir. 1986) (explaining that § 3731
forbids the interruption of trial). The Government also made the
proper certifications in its notice of appeal per § 3731.

6
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. Gutierrez, 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

7
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 a determination of excusable neglect or good cause,

we find no excusable neglect or good cause for its tardiness here.

Likewise, the Government’s case here is easily distinguishable from

Smith not only because there the Government timely appealed the

district court’s second quashing order (albeit with the

certification flaw) within the 30 days as required by Rule

4(b)(1)(B)(i), but also because we find no “equities in this appeal

[which] favor the [G]overnment.” 135 F.3d at 968.

We now consider the Government’s argument that a post-verdict

suppression order fails to become material to the proceedings until

the court decides to grant acquittal. We find this argument lacks

merit. Rule 4(b)(1)(B)(i) requires filing of notice of appeal

8
“within 30 days after . . . the entry of the judgment or order

being appealed.” FED. R. APP. P. 4(b)(1)(B)(i). For appealing the

denial of the motion for reconsideration of granting suppression

entered on August 12, 2003, the deadline for the Government was

September 11, 2003. The language of § 3731 does not extend or toll

this deadline in any way, nor does it hinder the Government from

appealing within 30 days; it also does not suggest that materiality

is a different inquiry when a suppression is made pre- as opposed

to post-verdict.

In Smith, this Court found an indicted suspect’s allegedly

false allegations in an arson case, captured on videotape by a TV

station, to be “substantial proof of a fact material in the

proceedings”; this Court allowed appeal of the quashed subpoena as

suppressed evidence under § 3731. 135 F.3d at 967. Materiality

did not depend on what legal decisions the district court

hypothetically might later make in response to the quashing of the

subpoena nor on any practical effect on the defendant’s case.

Neither party nor this Court knew precisely what evidence the

videotape might yield, if any; in fact, there, the defendant Smith

had joined the Government on the motion to subpoena the footage

because he thought the evidence might be exculpatory to him. Id.

This Court simply and briefly considered the materiality of the

9
contents of the footage at the time the quashing was final.4 There

was no need to wait until such evidence practically affected the

case.

Therefore, although the Government is correct that there are

various hypothetical pathways the district court could choose to

take after granting a post-guilty verdict suppression – immediately

granting an acquittal, not changing the guilty verdict, or granting

acquittal after some time has passed – if “the [suppressed]

evidence is a substantial proof of a fact material in the

proceeding,” then the Government should note when 30 days will have

passed after the suppression decision is final and make the

decision to file notice of appeal within 30 days, instead of

waiting until a possible acquittal is granted.

Moreover, while it may not always be readily apparent to the

parties what evidence is a “substantial proof of a fact material in

the proceeding,” in Arce-Jasso’s case the evidence considered by

4
Although the Government makes the argument that the
suppression decision did not ripen into a final decision under 28
U.S.C. § 1291 until the later judgment of acquittal and cites
United States v. Martinez, 763 F.2d 1297, 1307-08 (11th Cir. 1985),
for the idea that Government appeals must be appealable per both §
1291 and § 3731, this Circuit only requires meeting the
requirements of § 3731. United States v. Smith, 135 F.3d 963, 967
(5th Cir. 1998). Nor does a suppression decision have to qualify
as appealable as a collateral order. Section 3731 is the proper
vehicle for interlocutory criminal appeals by the Government, as
even Martinez recognizes. 763 F.2d at 1308 n.10. The suppression
order was ripe for appeal when the district court denied the
Government’s motion for reconsideration on August 12. See United
States v. Greenwood, 974 F.2d 1449, 1466-67 (5th Cir. 1992).

10
the district court during the bench trial consisted only of the

stipulation of fact. This stipulation detailed the immigration

stop and the cocaine discovered as a result of it, and Arce-Jasso’s

counsel clearly preserved the issue of the legality of the stop for

appeal.5 A successful appeal on that issue would result in

suppression of the cocaine. Thus, the materiality of that very

suppression by the district court to Arce-Jasso’s ultimate criminal

fate under § 841(a)(1) and 841(b)(1)(A) was entirely clear when the

suppression was made and reconsideration denied, even if how the

district court would later practically deal with that suppression

was not. The Government did not appeal in time; therefore, we lack

jurisdiction to review the suppression decision.

Whether this Court has appellate jurisdiction to review the
judgment of acquittal.

Arce-Jasso first argues that the Government cannot appeal the

judgment of acquittal because appellate review would contravene the

Double Jeopardy Clause. This argument fails. The Supreme Court

has expressly stated:

[T]he Government was entitled to appeal both the order
granting the motion to suppress and the order setting
aside the verdict of guilty, since further proceedings if
the Government were successful on the appeal would not be

5
For example, “even though appellants stipulated all the
essential facts necessary for their conviction, they did not
withdraw their pleas of not guilty, and sought to expressly reserve
their right to appeal from the order denying the motion to
suppress.” United States v. Mendoza, 491 F.2d 534, 536 (5th Cir.
1974) (explaining that a stipulated bench trial is a proper means
to preserve a pretrial suppression issue for appeal).

11
 barred by the Double Jeopardy Clause. The District Court
had sensibly first made its finding on the factual
question of guilt or innocence, and then ruled on the
motion to suppress; a reversal of these rulings would
require no further proceedings in the District Court, but
merely a reinstatement of the finding of guilt. United
States v. Morrison, 429 U.S. 1, 97 S. Ct. 24, 50 L. Ed.
2d 1 (1976); United States v. Wilson, 420 U.S. 332,
352-353, 95 S. Ct. 1013, 1026, 43 L. Ed. 2d 232 (1975).

United States v. Ceccolini, 435 U.S. 268, 270-71 (1978) (internal

citation and footnote omitted) (finding so in context where bench

trial resulted in guilty verdict).

Arce-Jasso also contends § 3731 does not permit appeals from

judgments of acquittal. This argument also fails. Although § 3731

is silent on appeals from judgments of acquittal, this Circuit

allows Government appeals per § 3731 from post-verdict judgments of

acquittal. United States v. Martiarena, 955 F.2d 363, 366 (5th

Cir. 1992); United States v. Varkonyi, 611 F.2d 84, 85 (5th Cir.

1980).

However, Arce-Jasso correctly argues that the law of the case

doctrine precludes the Government from presenting an adequate case

or controversy under Article III.6 The law of the case doctrine is

“a restriction self-imposed by the courts on themselves in the

interests of judicial efficiency, [which] generally operates to

preclude a reexamination of issues decided on appeal, either by the

district court on remand or by the appellate court itself upon a

6
The Government responds by merely restating its argument that
the suppression order itself is appealable.

12
subsequent appeal.” Signal Oil & Gas Co. v. Barge W-701, 654 F.2d

1164, 1169 (5th Cir. 1981); see also Browning v. Navarro, 887 F.2d

553, 556 (5th Cir. 1989) (“Later courts may not consider matters

which were decided by necessary implication as well as those

decided explicitly.”) (internal quotation marks omitted).

Thus, because this Court cannot disturb the improperly

appealed suppression ruling, it becomes the law of the case by

“necessary implication” and cannot be reconsidered by the district

court. There is no other ground argued or available to remand the

case. And even if this Court could do so, on remand the Government

would face a Hobson’s choice7: dismiss the charges against Arce-

Jasso due to lack of evidence or retry him without the cocaine.8

This Court has recognized that “[a] claim becomes moot when . . .

the parties lack a legally cognizable interest in the outcome.”

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas

Bumi Negara, 335 F.3d 357, 365 (5th Cir. 2003) (alteration in

original) (quoting Piggly Wiggly Clarksville, Inc. v. Mrs. Baird's

Bakeries, 177 F.3d 380, 383 (5th Cir. 1999)).

7
A Hobson’s choice is defined as “an apparently free choice
when there is no real alternative.” Merriam Webster Online
Dictionary (2004), at http://www.m-w.com.
8
These are the Government’s only options. All but one of the
facts Arce-Jasso stipulated to concerned the checkpoint stop found
illegal by the district court or the cocaine found as a result of
the stop, which was suppressed by the district court. Thus,
little, and arguably no, factual evidence remains that could be
used to convict Arce-Jasso under 21 U.S.C. § 841(a)(1) and
(b)(1)(A) on retrial.

13
 Neither of the Government’s options provides an effective

remedy on remand, so the Government does not have any “interest in

the outcome for which effective relief is available.” Karaha

Bodas, 335 F.3d at 365. The Government’s appeal does not present

an adequate case or controversy. Therefore, this appeal of Arce-

Jasso’s judgment of acquittal is moot.

CONCLUSION

Having carefully considered the parties’ respective briefing

and arguments, for the reasons set forth above, we DISMISS the

Government’s appeal.

DISMISSED.

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