United States v. Metter, No. 12-2423 (2d Cir. 2012)
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Defendant moved to dismiss the government's interlocutory appeal from an order of the district court suppressing certain evidence in connection with a criminal trial. The court concluded that the U.S. Attorney's certification that "the evidence is a substantial proof of a fact material in the proceeding" was conclusive of that issue for purposes of 18 U.S.C. 3731 and therefore was sufficient to give the court jurisdiction under section 3731 of timely appeals from orders suppressing evidence. Because the requirements of section 3731 were satisfied in this case, the court had jurisdiction over the appeal.
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12-2423 United States v. Metter 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2012 4 (Submitted: November 27, 2012 Decided: December 27, 2012) 5 Docket No. 12-2423-cr 6 ------------------------------------- 7 UNITED STATES OF AMERICA, 8 Appellant, 9 - v - 10 11 STEVEN MOSKOWITZ, ANDREW TEPFER, aka AVI, SEYMOUR EISENBERG, aka JIMMY, GEORGE SPERANZA, THOMAS CAVANAGH, FRANK NICOLOIS, 12 Defendants, 13 MICHAEL METTER, 14 Defendant-Appellee. 15 ------------------------------------- 16 17 Before: SACK, CHIN, and LOHIER, Circuit Judges. Defendant-appellee Michael Metter has made a motion 18 pursuant to Federal Rule of Appellate Procedure 27 and Local Rule 19 27.1 to dismiss for want of appellate jurisdiction the 20 government's appeal from an order of the United States District 21 Court for the Eastern District of New York (Dora L. Irizarry, 22 Judge) suppressing evidence sought to be employed in a criminal 23 trial in which Metter is a defendant. 24 despite the U.S. Attorney's certification in accordance with 18 25 U.S.C. § 3731 "that the appeal is not taken for purposes of delay 26 and that the evidence that has been ordered suppressed Metter contends that 1 constitutes substantial proof of facts material in the 2 proceeding," the government has not in fact satisfied section 3 3731's requirements. 4 the issue in concluding that the U.S. Attorney's certification 5 conclusively establishes that the evidence is a substantial proof 6 of a material fact in satisfaction of section 3731. 7 deny the defendant's motion to dismiss this appeal. We join every circuit to have considered We therefore 8 9 10 Maranda E. Fritz, Hinshaw & Culbertson LLP, New York, NY, for DefendantAppellee. 11 12 13 14 15 David C. James, Roger Burlingame, Nathan Reilly, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellant. 16 PER CURIAM: 17 Defendant-Appellee Michael Metter moves pursuant to 18 Federal Rule of Appellate Procedure 27 and Local Rule 27.1 to 19 dismiss the government's interlocutory appeal from an order of 20 the United States District Court for the Eastern District of New 21 York (Dora L. Irizarry, Judge) suppressing certain evidence in 22 connection with a criminal trial in which Metter is a defendant. 23 He maintains that we are without jurisdiction over the appeal. 24 We conclude that we have jurisdiction under paragraph two of 18 25 U.S.C. § 3731. 26 file a scheduling notification proposing a deadline for his brief 27 on the merits. Metter's motion is denied. See Local Rule 31.2. 2 He is directed to 1 2 BACKGROUND On October 14, 2010, a grand jury sitting in the 3 Eastern District of New York returned a superseding indictment 4 against Metter and six codefendants. 5 Metter had participated in a fraudulent scheme related to 6 transactions in the common stock of Spongetech Delivery Systems, 7 Inc. ("Spongetech"), a corporation of which Metter was, at all 8 relevant times, the president and chief executive officer. 9 In May and November 2010, the government secured The indictment alleged that 10 warrants to seize computers from Spongetech's offices and 11 Metter's home, and data from Metter's personal email account. 12 All told, law enforcement recovered the contents of sixty-one 13 Spongetech hard drives, including Spongetech's email server, the 14 contents of four of Metter's personal hard drives, and a 15 "snapshot" of activity on Metter's email account (collectively, 16 the "Seized Materials"). 17 conduct a forensic review of the Seized Materials. 18 But the government did not promptly On May 25, 2011, Metter filed a motion to suppress the 19 Seized Materials. He argued, in relevant part, that the 20 government's delay in conducting a forensic review constituted an 21 unreasonable execution of the warrants that authorized seizure of 22 that evidence, in contravention of the Fourth Amendment. 23 government conceded that it had yet to review the Seized 24 Materials, but it argued that its delay was not "unreasonable." 25 The district court sided with Metter, granting his motion and 3 The 1 ordering blanket suppression of the Seized Materials. 2 States v. Metter, 860 F. Supp. 2d 205, 216 (E.D.N.Y. 2012). 3 4 United The government immediately appealed, asserting appellate jurisdiction under 18 U.S.C. § 3731. 5 DISCUSSION 6 Section 3731 of Title 18 of the United States Code, 7 authorizes, in certain circumstances, interlocutory appeals by 8 the United States from district court orders in criminal cases. 9 Relevant here is the second paragraph of section 3731, which 10 provides: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, 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. 25 Paragraph two thus appears to provide three 26 requirements for appealability: "[t]here was an order of a 27 district court excluding evidence; a United States attorney filed 28 the proper certification; and the appeal was taken within 30 29 days." 30 It is undisputed that the government has satisfied these 31 requirements here: the district court issued a May 17, 2012 order United States v. Helstoski, 442 U.S. 477, 487 n.6 (1979). 4 1 suppressing the Seized Materials; on June 15, 2012, Loretta E. 2 Lynch, the U.S. Attorney for the Eastern District of New York, 3 certified to the district court that the "appeal is not taken for 4 purposes of delay and that the evidence that has been ordered 5 suppressed constitutes substantial proof of facts material in the 6 proceeding"; and the government filed a notice of appeal the same 7 day, within 30 days of the district court's order. 8 Yet Metter maintains that we lack jurisdiction. He 9 contests the U.S. Attorney's certification that the Seized 10 Materials are "substantial proof of facts material in the 11 proceeding." 12 times in the proceedings before the district court that it had 13 not yet conducted a review of the Seized Materials -- indeed, 14 this was the basis for Metter's suppression motion. 15 the government did not review the Seized Materials, he continues, 16 the U.S. Attorney had no basis upon which to rest her 17 certification of substantiality and materiality. 18 The government, he argues, represented several And because The government argues in reply that the U.S. Attorney's 19 certification should be treated as conclusive under section 3731 20 as to whether the suppressed evidence is a "substantial proof of 21 a fact material in the proceeding." 22 that our jurisdictional inquiry begins and ends with timely 23 filing of the certification itself - we thus need not look 24 behind the certification to determine its veracity or 25 correctness, and an appellee may not move to dismiss an appeal on 26 the basis that the certification is untrue or incorrect. 5 It argues, in other words, 1 Although we have yet to hold as much, every circuit to 2 have considered the question has reached the conclusion urged by 3 the government. 4 1226 (3d Cir. 1979) ("The district court having received this 5 certification, we are not required by section 3731 to evaluate 6 independently the substantiality or the materiality of the 7 contested material."); United States v. Centracchio, 236 F.3d 8 812, 813 (7th Cir. 2001) ("We therefore treat as conclusive of 9 our jurisdiction over a Paragraph 2 appeal the submission of the In re Grand Jury Investigation, 599 F.2d 1224, 10 certification required by the statute."); United States v. 11 Johnson, 228 F.3d 920, 924 (8th Cir. 2000) ("[W]e need not 12 examine whether [the suppressed evidence] would actually be 13 substantial proof of a material fact. 14 certified; that suffices."); United States v. W.R. Grace, 526 15 F.3d 499, 506 (9th Cir. 2008) (en banc) ("[W]e now hold that a 16 certification by a United States Attorney . . . that the appeal 17 is not taken for the purpose of delay and that the evidence is 18 substantial proof of a fact material in the proceeding is 19 sufficient for purposes of establishing our jurisdiction under 20 § 3731."), overruling United States v. Loud Hawk, 628 F.2d 1139, 21 1150 (9th Cir. 1979). 22 regard. 23 The government has so We now join our sister circuits in this We are persuaded that for purposes of section 3731, the 24 U.S. Attorney's timely certification is conclusive as to whether 25 the suppressed evidence is substantial proof of a material fact. 26 We begin with section 3731's text, which "shall be liberally 6 1 construed to effectuate its purposes." 18 U.S.C § 3731. 2 Semantically, section 3731 provides that jurisdiction "shall 3 lie . . . if the United States attorney certifies . . . that the 4 appeal is not taken for purpose of delay and that the evidence is 5 a substantial proof of a fact material in the proceeding." 6 (emphases added). 7 that the government is also required to prove either or both of 8 what we read as parallel requirements -- "not taken for purpose 9 of delay" and "substantial proof of a fact material in the Id. We see nothing in that language to establish 10 proceeding" -- and decline to impose such an obstacle absent even 11 a hint to that effect from the statutory text. 12 F.3d at 923-24; W.R. Grace, 526 F.3d at 505; see also Helstoski, 13 442 U.S. at 487 n.6 ("[T]he purpose of [§ 3731] was to remove all 14 statutory barriers to Government appeals . . . ." (quotation 15 marks omitted)). 16 See Johnson, 228 Viewing the issue from our own perspective, moreover, 17 we think a contrary rule too impracticable to be what Congress 18 intended. 19 are usually from orders suppressing or excluding evidence, and 20 there is no basis on which, in advance of trial, we could 21 determine that the evidence that the government wished to use was 22 so unimportant to any rational prosecutorial strategy that the 23 appeal was frivolous." 24 As the Seventh Circuit put it, "Paragraph 2 appeals Centracchio, 236 F.3d at 813. We emphasize, as did the Ninth Circuit, that "we are 25 not diluting a standard implicit in the certification 26 requirement." W.R. Grace, 526 F.3d at 507. 7 Certification is not 1 to be treated as no more than an "administrative formality." 2 at 508. 3 must in any event approve federal government appeals, there is no 4 significant danger that the appeal will be frivolous," 5 Centracchio, 236 F.3d at 813, we nevertheless reiterate our 6 expectation that the government will "carefully analyze[] the 7 case before deciding to appeal," United States v. Romaszko, 253 8 F.3d 757, 760 (2d Cir. 2001). 9 U.S. Attorney will carry out her certification responsibilities 10 in good faith, we note that our power to impose direct sanctions 11 is a sufficient guarantor that the government will not overstep 12 itself in this regard.1 13 Id. So, although we agree that "since the Solicitor General While we are confident that the See W.R. Grace, 526 F.3d at 507. We conclude that the U.S. Attorney's certification that 14 "the evidence is a substantial proof of a fact material in the 15 proceeding" is conclusive of that issue for purposes of section 16 3731, and is therefore alone sufficient to vest us with 17 jurisdiction under section 3731 of timely appeals from orders 1 Although the rule we adopt here obviates any need to examine further the U.S. Attorney's certification, we have reviewed the materials submitted by the parties and think sanctions plainly unwarranted. 8 1 suppressing evidence.2 2 are satisfied here, we have jurisdiction over this appeal. 3 Because the requirements of section 3731 We have considered Metter's remaining contentions and 4 find them to be without merit.3 5 appeal is denied. 6 notification proposing a deadline for the filing of his brief on 7 the merits. 8 Metter's motion to dismiss the He is directed to file a scheduling See Local Rule 31.2. CONCLUSION 9 For the foregoing reasons, Metter's motion to dismiss 10 the appeal for want of appellate jurisdiction is denied. He is 11 directed to file forthwith a scheduling notification proposing a 12 deadline for the filing of his brief on the merits. 13 Rule 31.2. See Local 2 The rule we adopt renders the U.S. Attorney's certification conclusive only as to the issue of jurisdiction. We in no way suggest that a certification is conclusive as to any matter that may be relevant to the merits of the appeal. See United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008) (en banc). Nor should our conclusion be read to limit in any way our discretion to dismiss an appeal under Fed. R. App. P. 3(a) where the required certification is not timely filed. See Romaszko, 253 F.3d at 760. 3 Metter argues that this motion is not governed by the rule we adopt today because he challenges not the correctness of the U.S. Attorney's substantiality and materiality determination, but her very basis for making such a determination. It seems obvious to us that underlying the U.S. Attorney's certification that the suppressed evidence is substantial and material is the premise that she has an understanding of the nature of the evidence sufficient to make that judgment. And we think, to the extent the concepts are separable, that it follows a fortiori from the principle that a certification's averment of substantiality and materiality is not subject to an appellee's challenge that neither is the existence of a basis upon which that averment rests. 9
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