In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3963

United States of America,

Plaintiff-Appellant,

v.

Anthony T. Centracchio, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 325--Robert W. Gettleman, Judge.

Submitted October 27, 2000--Decided October 27, 2000/*

Opinion January 11, 2001

 Before Posner, Easterbrook, and Manion, Circuit

Judges.

 Posner, Circuit Judge. The government in this

pending criminal case has appealed as is its

right from an order by the district judge

excluding certain evidence that the government

wanted to present at trial. 18 U.S.C. sec. 3731.

Believing that the judge intended to go ahead and

select (though not swear in) the jury despite the

pendency of the appeal, the government has filed

a motion with this court to stay the judge’s hand

till the appeal is resolved. We have granted the

motion and now explain our reasoning. As a

preliminary matter, we note with disapproval the

defendants’ motion to dismiss the appeal. Section

3731 requires, in appeals authorized by the

second paragraph of the section, as this one is,

that the U.S. Attorney certify that the appeal is

substantial and not taken for purposes of delay.

The U.S. Attorney did so certify, and since the

Solicitor General must in any event approve

federal government appeals, there is no

significant danger that the appeal will be

frivolous, warranting dismissal rather than

disposition on the merits (affirmance or

reversal). Furthermore, Paragraph 2 appeals are

usually from orders suppressing or excluding

evidence, and there is no basis on which, in

advance of trial, we could determine that the

evidence that the government wished to use was so
unimportant to any rational prosecutorial

strategy that the appeal was frivolous. We

therefore treat as conclusive of our jurisdiction

over a Paragraph 2 appeal the submission of the

certification required by the statute. That is

the view of this court, and of the other circuits

except the Ninth. United States v. Jarrett, 133

F.3d 519, 539 (7th Cir. 1998); United States v.

Comisky, 460 F.2d 1293, 1297-98 (7th Cir. 1972);

United States v. Johnson, 228 F.3d 920, 923-24

(8th Cir. 2000); United States v. Kepner, 843

F.2d 755, 761 (3d Cir. 1988); contra, United

States v. Loud Hawk, 628 F.2d 1139, 1150 (9th

Cir. 1979) (en banc); United States v. Adrian,

978 F.2d 486, 490 (9th Cir. 1992); United States

v. Poulsen, 41 F.3d 1330, 1333-34 (9th Cir.

1994).

 The government argues that the filing of a

notice of appeal automatically divests the trial

court of jurisdiction over the case, but this is

overbroad. As we explained in United States v.

Ienco, 126 F.3d 1016, 1018 (7th Cir. 1997), "the

general rule, and it is applicable to appeals

under section 3731, is that an appeal transfers

jurisdiction from the district court to the court

of appeals, so that the two courts will not be

stepping on each other’s toes. (For the general

rule, see Griggs v. Provident Consumer Discount

Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74

L.Ed.2d 225 (1982) (per curiam), and for its

application to appeals under section 3731 see

United States v. Tovar-Rico, 61 F.3d 1529, 1532

(11th Cir. 1995).) There are exceptions, however,

for situations in which the danger of such a

collision is remote, as when the only issue for

decision in the trial court is a motion for

attorneys’ fees. For a list of examples see Kusay

v. United States, 62 F.3d 192, 194 (7th Cir.

1995). Since the right to appeal conferred by

section 3731 is pinpointed on particular

evidentiary rulings, there will be many cases in

which the taking of the appeal will not require

the district court to relinquish jurisdiction;

that court will be able to continue getting the

case ready for trial." See also Apostol v.

Gallion, 870 F.2d 1335, 1337-38 (7th Cir. 1989).

 Section 3731 requires the government, in appeals

based on the second paragraph of the section

(appeals from orders "suppressing or excluding

evidence or requiring the return of seized

property in a criminal proceeding"), to file the

notice of appeal before jeopardy attaches to the

defendant. In a jury trial that occurs when the

jury is sworn; and courts have ruled that the

filing of the notice of appeal bars the district

court from proceeding to the swearing in of the

jury, lest by doing so the court make it

difficult for the government to obtain relief
(for example, that the trial start over again

with the evidence whose exclusion had been

challenged by the appeal). E.g., United States v.

Brooks, 145 F.3d 446, 453-54 (1st Cir. 1998);

United States v. Tovar-Rico, supra, 61 F.3d at

1532; United States v. Mavrokordatos, 933 F.2d

843, 846 (10th Cir. 1991). The district judge in

this case said that he would not swear in the

jury, merely empanel it, and so the concern about

double jeopardy that troubled the courts in the

cases that we have just cited is not engaged. But

empaneling the jury is not the kind of pretrial

preparation that should be permitted to go

forward while the government’s appeal from an

evidentiary ruling is pending in the court of

appeals. The decision of such an appeal can take

months--in fact is bound to take months from the

filing of the notice of appeal to the final

decision by the court of appeals. During that

time the jurors will be in a kind of limbo. It

will be difficult for them to plan their affairs,

and the risk of jury tampering will rise as

potential tamperers will have months in which to

make approaches to individual jurors. See United

States v. Mobley, 193 F.3d 492, 494 (7th Cir.

1999). We hold, therefore, in this case of first

impression so far as we have been able to

determine, that the filing of a notice of appeal

under section 3731 precludes the district judge’s

empaneling the jury.

/* With notation that an explanation of our

decision would follow.