* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 “An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing o r excluding evidence . . . not made after the defendant has been put in jeopardy a nd before the verdict or finding on an indictment or information . . . .” 1 8 U.S.C. § 3731 (2002). 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 21 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES of AMERICA, Plaintiff-Appellant,

v. CARL J. PETERSEN, Defendant-Appellee. No. 02-1311 (D.C. No. 01-CR-431-WM) (D. Colorado)

ORDER AND JUDGMENT *

Before SEYMOUR , BALDOCK , and O’BRIEN , Circuit Judges.

Pursuant to 18 U.S.C. § 3731 (2002) 1 , the United States filed this interlocutory appeal of the ruling of the district court granting Carl J. Petersen’s motion to suppress evidence seized on his property during the execution of a search warrant. The certificate required by § 3731 to proceed with an2 On February 8, 2002, the district court ruled from the bench on Mr.

Petersen’s motion to suppress evidence, granting th e motion on the grounds of unreasonable execution of the search in violation o f the Fourth Amendment. The district court’s written order was filed June 19, 2 002. -2- interlocutory appeal was not timely filed by the go vernment, and we dismiss the appeal. On November 16, 2001, members of the El Paso County , Colorado Sheriff’s Office executed a search of real property belonging to Mr. Petersen, pursuant to a search warrant . Four firearms were seized, which provided the bas is for criminal charges against Mr. Petersen for being a felon in p ossession of a firearm in violation of 18 U.S.C. § 922(g)(1)(2002). Mr. Pete rsen filed a motion to suppress the evidence seized in the search of his property, and the district court granted the motion on June 19, 2002. 2 The government filed a notice of appeal of the di strict court order on July 9, but waited until July 26 to file its § 3731 certificate that the appeal was “not taken for the purpose of delay and that the evidence [seized and suppressed] is a substantial proof of a fact materi al in the proceeding.” 18 U.S.C. § 3731 (2002). The government attributed the delayin filing the § 3731 certificate to “a communication breakdown within th e office regarding the proper manner of perfecting an appeal.” As of March 12, 2 003, it was confirmed during appellate oral arguments that Mr. Petersen remained in jail pursuant to the federal3 18 U.S.C. §§3141-3150, 3062 (2002). The district c ourt denied Mr.

Petersen’s motion to set an appeal bond. He has been incarcerated since November 16, 2001.

4 “An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of th e appeal, but is ground only for -3- charges as a pre-trial detainee under the Bail Refo rm Act. 3 He alleges the filing of the § 3731 certificate was untimely and we shoul d exercise our discretion to dismiss the appeal. We agree. A § 3731 certificate is timely if filed contemporan eously with the notice of appeal. United States v. Carrillo-Bernal, 58 F.3d 1490, 1497 (10th Cir. 1995) (dismissing an appeal where there was a sixteen daydelay in filing the § 3731 certificate) . See also United States v. Hanks, 24 F.3d 1235, 1237 n.1 (10th Cir. 1994) (dismissing an appeal where there was a two and a half month delay in filing the § 3731 certificate). This is because “t he certificate process cannot serve its function unless the responsible prosecuting off icial makes a thorough and conscientious analysis of the case before deciding to appeal. The certificate is the official’s representation that such an analysis has been made . . . .” Id. at 1239 (quoting United States v. Herman, 544 F.2d 791, 794 n.4 (5th Cir. 1977) (emphasis in original)). While “the government’s f ailure to file a timely Section 3731 certificate does not deprive the court of juri sdiction[,] . . . the relevant inquiry is whether the reviewing court should exerc ise its discretion to entertain the appeal in light of such defect, as provided by F ED
. R. A PP
. P. 3(a).” 4 Carrillo-the court of appeals to act as it considers appropr iate, including dismissing the

appeal.” F ED
. R. A PP
. P. 3(a)(2). -4- Bernal, 58 F.3d at 1492 (internal citation omitted)

. To be sure, § 3731 advises its provisions “shall be liberally construed to effectu ate its purposes.” However, we are mindful of the admonition that “[p]ost hoc cert ification that an appeal was not taken for the purposes of delay reduces the § 3731 requirement to a meaningless formality.” Hanks, 24 F.3d at 1239. In Carrillo-Bernal and Hanks , we identified six factors to determine whether to dismiss an interlocutory appeal by the g overnment for untimely filing of a § 3731 certificate: (1) the length of delay in filing the certificate; (2) the fact that a delay in final resolution of a criminal case weighs heavily on a defendant’s mind, even in instances when he is free on bond; (3 ) the government’s failure to adequately explain why it filed an untimely certifi cate; (4) the government’s failure to identify important legal issues needing appellate clarification or other significant reason to hear the appeal; (5) the gove rnment’s “lackluster” response to its failure to timely file the certificate; and (6) the government’s failure to take seriously its obligation to timely file the certifi cate. Carrillo-Bernal , 58 F.3d at 1493; Hanks , 24 F.3d at 1238-39. Weighing these factors, we cannot excuse the govern ment’s failure to timely file the § 3731 certificate. We especially note the government was on-5-

notice as early as February 8, 2002, of the distric t court’s decision to grant the motion to suppress, thereby exacerbating its delayin filing the certificate. Further, Mr. Petersen remained confined on federal charges at least through the time of oral argument. Finally, the government’s o ffered reason for late filing is inadequate. Accordingly, we DISMISS the appeal.

ENTERED BY THE COURT

Terrence L. O’Brien Circuit Judge