*

Honorable William T. Moore, Jr., U.S. District Judge for the Southern District of Georgia,

sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 97-6573.

UNITED STATES of America, Plaintiff-Appellant,

v.

David A. SALISBURY, Defendant-Appellee.

Oct. 29, 1998.

Appeal from the United States District Court for the Northern District of Alabama. (No. 97-5-74-

NE), William M. Acker, Jr., Judge.

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

, District Judge.

MOORE, District Judge:

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
 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. 

2

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.

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
3

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 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.1975); 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 underlying goal of preventing needless delay and prolonged worry in

criminal proceedings. See Carrillo-Bernal, 58 F.3d at 1492-97; 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
4

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, 106

S.Ct. 648, 88 L.Ed.2d 640 (1986); Carrillo-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., Carrillo-Bernal, 58 F.3d at 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.
 1

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.

18 U.S.C.§3731. 

5

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) that how this Court treats the

government's untimely section 3731 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 demonstrates 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. §3731.1
 2

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. 

6

First, the government's certificate was filed within a month of its notice of appeal.2 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 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, 966 F.Supp. 1082 (N.D. Ala. 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.
 3

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. 

7

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 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 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)3

; 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 issue
8

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, 106 S.Ct. 648 (1986),

the fact that the defendant was not incarcerated remains a valid factor to be considered in this Court's

exercise 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.