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 STEVEN MOSKOWITZ, ANDREW TEPFER, aka AVI, SEYMOUR EISENBERG, aka

11 JIMMY, GEORGE SPERANZA, THOMAS CAVANAGH, FRANK NICOLOIS,

12 Defendants,

13 MICHAEL METTER,

14 Defendant-Appellee.

15 -------------------------------------

16 Before: SACK, CHIN, and LOHIER, Circuit Judges.

17 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. Metter contends that

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
2

1 constitutes substantial proof of facts material in the

2 proceeding," the government has not in fact satisfied section

3 3731's requirements. We join every circuit to have considered

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. We therefore

7 deny the defendant's motion to dismiss this appeal.

8 Maranda E. Fritz, Hinshaw & Culbertson

9 LLP, New York, NY, for Defendant10 Appellee.

11 David C. James, Roger Burlingame, Nathan

12 Reilly, for Loretta E. Lynch, United

13 States Attorney for the Eastern District

14 of New York, Brooklyn, NY, for

15 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. Metter's motion is denied. He is directed to

26 file a scheduling notification proposing a deadline for his brief

27 on the merits. See Local Rule 31.2. 
3

1 BACKGROUND

2 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. The indictment alleged that

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

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"). But the government did not promptly

17 conduct a forensic review of the Seized Materials.

18 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. The

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
4

1 ordering blanket suppression of the Seized Materials. United

2 States v. Metter, 860 F. Supp. 2d 205, 216 (E.D.N.Y. 2012).

3 The government immediately appealed, asserting

4 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 An appeal by the United States shall lie to a

12 court of appeals from a decision or order of

13 a district court suppressing or excluding

14 evidence or requiring the return of seized

15 property in a criminal proceeding, not made

16 after the defendant has been put in jeopardy

17 and before the verdict or finding on an

18 indictment or information, if the United

19 States attorney certifies to the district

20 court that the appeal is not taken for

21 purpose of delay and that the evidence is a

22 substantial proof of a fact material in the

23 proceeding.

24 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." United States v. Helstoski, 442 U.S. 477, 487 n.6 (1979). 

30 It is undisputed that the government has satisfied these

31 requirements here: the district court issued a May 17, 2012 order
5

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." The government, he argues, represented several

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. And because

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 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." It argues, in other words,

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.
6

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. In re Grand Jury Investigation, 599 F.2d 1224,

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

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. The government has so

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). We now join our sister circuits in this

22 regard.

23 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
7

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." Id.

6 (emphases added). We see nothing in that language to establish

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

10 proceeding" -- and decline to impose such an obstacle absent even

11 a hint to that effect from the statutory text. See Johnson, 228

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 Viewing the issue from our own perspective, moreover,

17 we think a contrary rule too impracticable to be what Congress

18 intended. As the Seventh Circuit put it, "Paragraph 2 appeals

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." Centracchio, 236 F.3d at 813.

24 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. Certification is not
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 to be treated as no more than an "administrative formality." Id.

2 at 508. So, although we agree that "since the Solicitor General

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). While we are confident that the

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

itself in this regard.1 12 See W.R. Grace, 526 F.3d at 507.

13 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
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

suppressing evidence.2 1 Because the requirements of section 3731

2 are satisfied here, we have jurisdiction over this appeal. 

3 We have considered Metter's remaining contentions and

find them to be without merit.3 4 Metter's motion to dismiss the

5 appeal is denied. He is directed to file a scheduling

6 notification proposing a deadline for the filing of his brief on

7 the merits. See Local Rule 31.2.

8 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. See Local

13 Rule 31.2.