12-2423 United States v. Metter UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2 August Term, 2012 3 (Submitted: November 27, 2012 Decided: December 27, 2012) 4 Docket No. 12-2423-cr 5

------------------------------------- 6 UNITED STATES OF AMERICA, 7 Appellant , 8

- v - 9 STEVEN MOSKOWITZ, ANDREW TEPFER, aka AVI, SEYMOUR EISENBERG, aka 10 JIMMY, GEORGE SPERANZA, THOMAS CAVANAGH, FRANK NICOLOIS, 11 Defendants , 12 MICHAEL METTER, 13 Defendant-Appellee

. 14

------------------------------------- 15 Before: SACK, CHIN, and LOHIER, Circuit Judges

. 16 Defendant-appellee Michael Metter has made a motion 17 pursuant to Federal Rule of Appellate Procedure 27 and Local Rule 18 27.1 to dismiss for want of appellate jurisdiction the 19 government's appeal from an order of the United States District 20 Court for the Eastern District of New York (Dora L. Irizarry, 21 Judge ) suppressing evidence sought to be employed in a criminal 22 trial in which Metter is a defendant. Metter contends that 23 despite the U.S. Attorney's certification in accordance with 18 24 U.S.C. § 3731 "that the appeal is not taken for purposes of delay 25 and that the evidence that has been ordered suppressed 262 constitutes substantial proof of facts material in the 1 proceeding," the government has not in fact satisfied section 2 3731's requirements. We join every circuit to have considered 3 the issue in concluding that the U.S. Attorney's certification 4 conclusively establishes that the evidence is a substantial proof 5 of a material fact in satisfaction of section 3731. We therefore 6 deny the defendant's motion to dismiss this appeal. 7 Maranda E. Fritz, Hinshaw & Culbertson 8 LLP, New York, NY, forDefendant9 Appellee

. 10 David C. James, Roger Burlingame, Nathan 11 Reilly, for Loretta E. Lynch, United 12 States Attorney forthe Eastern District 13 of New York, Brooklyn, NY, for 14 Appellant

. 15

PER CURIAM: 16 Defendant-Appellee Michael Metter moves pursuant to 17 Federal Rule of Appellate Procedure 27 and Local Rule 27.1 to 18 dismiss the government's interlocutory appeal from an order of 19 the United States District Court for the Eastern District of New 20 York (Dora L. Irizarry, Judge ) suppressing certain evidence in 21 connection with a criminal trial in which Metter is a defendant. 22 He maintains that we are without jurisdiction over the appeal. 23 We conclude that we have jurisdiction under paragraph two of 18 24 U.S.C. § 3731. Metter's motion is denied. He is directed to 25 file a scheduling notification proposing a deadline for his brief 26 on the merits. SeeLocal Rule 31.2. 273 **BACKGROUND** 1 On October 14, 2010, a grand jury sitting in the 2 Eastern District of New York returned a superseding indictment 3 against Metter and six codefendants. The indictment alleged that 4 Metter had participated in a fraudulent scheme related to 5 transactions in the common stock of Spongetech Delivery Systems, 6 Inc. ("Spongetech"), a corporation of which Metter was, at all 7 relevant times, the president and chief executive officer. 8 In May and November 2010, the government secured 9 warrants to seize computers from Spongetech's offices and 10 Metter's home, and data from Metter's personal email account. 11 All told, law enforcement recovered the contents of sixty-one 12 Spongetech hard drives, including Spongetech's email server, the 13 contents of four of Metter's personal hard drives, and a 14 "snapshot" of activity on Metter's email account (collectively, 15 the "Seized Materials"). But the government did not promptly 16 conduct a forensic review of the Seized Materials. 17 On May 25, 2011, Metter filed a motion to suppress the 18 Seized Materials. He argued, in relevant part, that the 19 government's delay in conducting a forensic review constituted an 20 unreasonable execution of the warrants that authorized seizure of 21 that evidence, in contravention of the Fourth Amendment. The 22 government conceded that it had yet to review the Seized 23 Materials, but it argued that its delay was not "unreasonable." 24 The district court sided with Metter, granting his motion and 254 ordering blanket suppression of the Seized Materials. United 1
States v. Metter, 860 F. Supp. 2d 205, 216 (E.D.N.Y. 2012). 2 The government immediately appealed, asserting 3 appellate jurisdiction under 18 U.S.C. § 3731. 4
**DISCUSSION** 5 Section 3731 of Title 18 of the United States Code, 6 authorizes, in certain circumstances, interlocutory appeals by 7 the United States from district court orders in criminal cases. 8 Relevant here is the second paragraph of section 3731, which 9 provides: 10 An appeal by the United States shall lie to a 11 court of appeals from a decision or order of 12 a district court suppressing or excluding 13 evidence or requiring the return of seized 14 property in a criminal proceeding, not made 15 after the defendant has been put in jeopardy 16 and before the verdict or finding on an 17 indictment or information, if the United 18 States attorney certifies to the district 19 court that the appeal is not taken for 20 purpose of delay and that the evidence is a 21 substantial proof of a fact material in the 22 proceeding. 23 18 U.S.C. § 3731. 24 Paragraph two thus appears to provide three 25 requirements for appealability: "[t]here was an order of a 26 district court excluding evidence; a United States attorney filed 27 the proper certification; and the appeal was taken within 30 28 days." United States v. Helstoski , 442 U.S. 477, 487 n.6 (1979). 29 It is undisputed that the government has satisfied these 30 requirements here: the district court issued a May 17, 2012 order 315 suppressing the Seized Materials; on June 15, 2012, Loretta E. 1 Lynch, the U.S. Attorney for the Eastern District of New York, 2 certified to the district court that the "appeal is not taken for 3 purposes of delay and that the evidence that has been ordered 4 suppressed constitutes substantial proof of facts material in the 5 proceeding"; and the government filed a notice of appeal the same 6 day, within 30 days of the district court's order. 7 Yet Metter maintains that we lack jurisdiction. He 8 contests the U.S. Attorney's certification that the Seized 9 Materials are "substantial proof of facts material in the 10 proceeding." The government, he argues, represented several 11 times in the proceedings before the district court that it had 12 not yet conducted a review of the Seized Materials -- indeed, 13 this was the basis for Metter's suppression motion. And because 14 the government did not review the Seized Materials, he continues, 15 the U.S. Attorney had no basis upon which to rest her 16 certification of substantiality and materiality. 17 The government argues in reply that the U.S. Attorney's 18 certification should be treated as conclusive under section 3731 19 as to whether the suppressed evidence is a "substantial proof of 20 a fact material in the proceeding." It argues, in other words, 21 that our jurisdictional inquiry begins and ends with timely 22 filing of the certification itself –- we thus need not look 23 behind the certification to determine its veracity or 24 correctness, and an appellee may not move to dismiss an appeal on 25 the basis that the certification is untrue or incorrect. 266 Although we have yet to hold as much, every circuit to 1 have considered the question has reached the conclusion urged by 2 the government. In re Grand Jury Investigation, 599 F.2d 1224, 3 1226 (3d Cir. 1979) ("The district court having received this 4 certification, we are not required by section 3731 to evaluate 5 independently the substantiality or the materiality of the 6 contested material."); United States v. Centracchio , 236 F.3d 7 812, 813 (7th Cir. 2001) ("We therefore treat as conclusive of 8 our jurisdiction over a Paragraph 2 appeal the submission of the 9 certification required by the statute."); United States v. 10 Johnson, 228 F.3d 920, 924 (8th Cir. 2000) ("[W]e need not 11 examine whether [the suppressed evidence] would actually be 12 substantial proof of a material fact. The government has so 13 certified; that suffices."); United States v. W.R. Grace , 526 14 F.3d 499, 506 (9th Cir. 2008) (en banc ) ("[W]e now hold that a 15 certification by a United States Attorney . . . that the appeal 16 is not taken for the purpose of delay and that the evidence is 17 substantial proof of a fact material in the proceeding is 18 sufficient for purposes of establishing our jurisdiction under 19 § 3731."), overrulingUnited States v. Loud Hawk, 628 F.2d 1139, 20 1150 (9th Cir. 1979). We now join our sister circuits in this 21 regard. 22 We are persuaded that for purposes of section 3731, the 23 U.S. Attorney's timely certification is conclusive as to whether 24 the suppressed evidence is substantial proof of a material fact. 25 We begin with section 3731's text, which "shall be liberally 267 construed to effectuate its purposes." 18 U.S.C § 3731. 1 Semantically, section 3731 provides that jurisdiction "shall 2 lie . . . ifthe United States attorney certifies . . . thatthe 3 appeal is not taken for purpose of delay and thatthe evidence is 4 a substantial proof of a fact material in the proceeding." Id. 5 (emphases added). We see nothing in that language to establish 6 that the government is also required to proveeither or both of 7 what we read as parallel requirements -- "not taken for purpose 8 of delay" and "substantial proof of a fact material in the 9 proceeding" -- and decline to impose such an obstacle absent even 10 a hint to that effect from the statutory text. SeeJohnson, 228 11 F.3d at 923-24; W.R. Grace , 526 F.3d at 505; see alsoHelstoski , 12 442 U.S. at 487 n.6 ("[T]he purpose of [§ 3731] was to remove all 13 statutory barriers to Government appeals . . . ." (quotation 14 marks omitted)). 15 Viewing the issue from our own perspective, moreover, 16 we think a contrary rule too impracticable to be what Congress 17 intended. As the Seventh Circuit put it, "Paragraph 2 appeals 18 are usually from orders suppressing or excluding evidence, and 19 there is no basis on which, in advance of trial, we could 20 determine that the evidence that the government wished to use was 21 so unimportant to any rational prosecutorial strategy that the 22 appeal was frivolous." Centracchio , 236 F.3d at 813. 23 We emphasize, as did the Ninth Circuit, that "we are 24 not diluting a standard implicit in the certification 25 requirement." W.R. Grace , 526 F.3d at 507. Certification is not 261Although 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 to be treated as no more than an "administrative formality." Id. 1 at 508. So, although we agree that "since the Solicitor General 2 must in any event approve federal government appeals, there is no 3 significant danger that the appeal will be frivolous," 4 Centracchio , 236 F.3d at 813, we nevertheless reiterate our 5 expectation that the government will "carefully analyze[] the 6 case before deciding to appeal," United States v. Romaszko , 253 7 F.3d 757, 760 (2d Cir. 2001). While we are confident that the 8 U.S. Attorney will carry out her certification responsibilities 9 in good faith, we note that our power to impose direct sanctions 10 is a sufficient guarantor that the government will not overstep 11 itself in this regard. 1SeeW.R. Grace , 526 F.3d at 507. 12 We conclude that the U.S. Attorney's certification that 13 "the evidence is a substantial proof of a fact material in the 14 proceeding" is conclusive of that issue for purposes of section 15 3731, and is therefore alone sufficient to vest us with 16 jurisdiction under section 3731 of timely appeals from orders 172The 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.

3Metter 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. 2Because the requirements of section 3731 1 are satisfied here, we have jurisdiction over this appeal. 2 We have considered Metter's remaining contentions and 3 find them to be without merit. 3Metter's motion to dismiss the 4 appeal is denied. He is directed to file a scheduling 5 notification proposing a deadline for the filing of his brief on 6 the merits. SeeLocal Rule 31.2. 7
**CONCLUSION** 8 For the foregoing reasons, Metter's motion to dismiss 9 the appeal for want of appellate jurisdiction is denied. He is 10 directed to file forthwith a scheduling notification proposing a 11 deadline for the filing of his brief on the merits. SeeLocal 12 Rule 31.2. 13