PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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FILED
No. 97-6573
U.S. COURT OF APPEALS
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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:
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*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.
2
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
10
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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