United States v. Salisbury

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
_________________
FILED
No. 97-6573
U.S. COURT OF APPEALS
__________________
D.C. Docket No. 97-S-74-NE ELEVENTH CIRCUIT
10/29/98
THOMAS K. KAHN
UNITED STATES OF AMERICA, CLERK

Plaintiff-Appellant,

versus

DAVID A. SALISBURY,

Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Alabama
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(October 29, 1998)

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

MOORE, District Judge:

___________________
*Honorable William T. Moore, Jr., U.S. District Judge for the
Southern District of Georgia, sitting by designation.

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.

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 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

1
The Ninth Circuit announced a similar approach, See United
States v. Eccles, 850 F.2d 1357 (9th Cir. 1988), but has more
recently retreated from that position. See United States v.
Becker, 929 F.2d 442 (9th Cir. 1991). The Eccles court declared
that it would no longer accept section 3731 appeals unless
properly certified, although it felt compelled by precedent to
permit the government to proceed in the case before the court.
Eccles, 850 F.2d at 1359-60. Three years later, the Becker court
allowed an appeal even though the government had not complied
with the certification requirement. Becker, 929 F.2d at 444-45.

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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. 1971); 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

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underlying goal of preventing needless delay and prolonged worry in

criminal proceedings. See Carillo-Bernal, 58 F.3d at 1292-97;

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 (1986);

Carillo-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., Carillo-Bernal, 58 F.3d at

5
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

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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. § 3731.2

2
Section 3731 provides in pertinent part:

An appeal by the United States shall lie to a court of appeals
from a decision . . . of a district court suppressing . . . evidence . . .
in a criminal proceeding, . . . if the United States attorney certifies .
. . 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 provisions of this section shall be liberally construed to
effectuate its purposes.

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 First, the government’s certificate was filed within

a month of its notice of appeal.3 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

18 U.S.C. § 3731.
3
The government’s notice of appeal and an amended notice of appeal were filed on July
14, 1997. On August 8, 1997, this Court sent a letter advising that the absence of the section
3731 certification presented a jurisdictional issue and requesting briefs. The government
promptly filed the certificate on August 14, 1997, long before the first merits brief was due on
March 31, 1998, and oral argument held on August 27, 1998. Another Assistant U.S. Attorney
filed the notice of appeal for the out-of-town Assistant U.S. Attorney assigned to the case. The
inadvertent omission of the certificate was diligently corrected upon discovery.

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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

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Valley Authority, was interviewed at his work place by a

special agent of the Office of the Inspector General of

the TVA. The agent was conducting a civil investigation

of possible fraudulent travel vouchers of that private

company’s employees. The district court suppressed

virtually all evidence against this defendant finding:

(1) that this defendant’s non-custodial statements during

an administrative agency interview at a private work

place were involuntary under the Fifth Amendment and (2)

that all other evidence subsequently gathered was “fruit

of the poisonous tree.” 966 F. Supp. at 1083-84, 1087.

Investigations by administrative agencies are common and

often involve non-custodial interviews at private

facilities. This appeal raises significant legal issues

with application well beyond this case.

Fourth, the other circuits’ cases, cited by the

majority, present facts more egregious than those here.

United States v. Miller, 952 F.2d 866 (5th Cir. 1992)

(certificate filed six months after government’s notice

of appeal and only after the defendants’ briefs raised

the issue); United States v. Hanks, 24 F.3d 1235 (10th

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Cir. 1994) (defendant raised certification issue early,

government filed certificate the next month but did not

inform the circuit court or otherwise respond to

defendant’s motion)4; United States v. Carrillo-Bernal, 58

F.3d 1490 (10th Cir. 1995) (majority found that the fact

specific credibility determinations in that case failed

to qualify as important legal issues supporting

interlocutory appeal but dissent disagreed and found

government’s prompt attention to certificate should

permit appeal).

Finally, the majority improperly discounts the

government’s argument that the defendant suffered no harm

from any delay because he is not incarcerated. While

pre-trial release is certainly a deprivation of freedom,

see United States v. Loud Hawk, 474 U.S. 302, 311 (1986),

the fact that the defendant was not incarcerated remains

a valid factor to be considered in this Court’s exercise

4
The Tenth Circuit observed: “Not only did the government offer no explanation for its
delay, but it apparently thought so little of the statutory obligation that it did not even bother to
respond to the appellee’s argument or to advise [the court] of its late filing of the certificate until
[the court] explicitly confronted the issue during oral argument.” Id. at 1239. Accordingly, the
Tenth Circuit would not excuse the government’s failure to timely comply with the § 3731
requirement.

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of discretion. See United States v. Becker, 929 F.2d

442, 445 (9th Cir. 1991) (excusing late filing of § 3731

certification and considering as one factor that the

defendant was free on bond). The certificate requirement

protects a defendant from unjustified government delay,

but the delay here was less than 30 days. This appeal is

justified by the government and dismissing this appeal

now after briefing and oral argument does not effectuate

section 3731's purpose.

In conclusion, this appeal undisputedly meets the

statutory requirements of section 3731: (1) the appeal is

not taken for delay, and (2) the evidence suppressed

involves proof of facts material in this proceeding.

While the majority correctly states that section 3731 is

not jurisdictional, the majority’s strict application of

the time element of section 3731 converts the lack of a

timely certificate to an event of almost jurisdictional

significance. The majority’s decision exalts form over

substance. Thus, I respectfully dissent.

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