                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 21 2003
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 UNITED STATES of AMERICA,

          Plaintiff-Appellant,

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

          Defendant-Appellee.


                             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 an

      *
        This order and judgment is not binding precedent except under the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 judgments; nevertheless, an order
and judgment may be cited under the terms and conditions 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 or excluding evidence . . . not
made after the defendant has been put in jeopardy and before the verdict or
finding on an indictment or information . . . .” 18 U.S.C. § 3731 (2002).
interlocutory appeal was not timely filed by the government, 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 basis for criminal

charges against Mr. Petersen for being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1)(2002). Mr. Petersen 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 district

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 material in the proceeding.” 18 U.S.C.

§ 3731 (2002). The government attributed the delay in filing the § 3731

certificate to “a communication breakdown within the office regarding the proper

manner of perfecting an appeal.” As of March 12, 2003, it was confirmed during

appellate oral arguments that Mr. Petersen remained in jail pursuant to the federal




      2
        On February 8, 2002, the district court ruled from the bench on Mr.
Petersen’s motion to suppress evidence, granting the motion on the grounds of
unreasonable execution of the search in violation of the Fourth Amendment. The
district court’s written order was filed June 19, 2002.

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charges as a pre-trial detainee under the Bail Reform Act. 3 He alleges the filing

of the § 3731 certificate was untimely and we should exercise our discretion to

dismiss the appeal. We agree.

      A § 3731 certificate is timely if filed contemporaneously 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 day delay 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 “the certificate process cannot serve

its function unless the responsible prosecuting official 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 failure to file a timely Section

3731 certificate does not deprive the court of jurisdiction[,] . . . the relevant

inquiry is whether the reviewing court should exercise its discretion to entertain

the appeal in light of such defect, as provided by F ED . R. A PP . P. 3(a).” 4 Carrillo-

      3
       18 U.S.C. §§3141-3150, 3062 (2002). The district court 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 the appeal, but is ground only for

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Bernal, 58 F.3d at 1492 (internal citation omitted). To be sure, § 3731 advises its

provisions “shall be liberally construed to effectuate its purposes.” However, we

are mindful of the admonition that “[p]ost hoc certification 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 government 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 certificate; (4) the government’s

failure to identify important legal issues needing appellate clarification or other

significant reason to hear the appeal; (5) the government’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 certificate. Carrillo-Bernal, 58 F.3d at

1493; Hanks, 24 F.3d at 1238-39.

      Weighing these factors, we cannot excuse the government’s failure to

timely file the § 3731 certificate. We especially note the government was on




the court of appeals to act as it considers appropriate, including dismissing the
appeal.” F ED . R. A PP . P. 3(a)(2).

                                           -4-
notice as early as February 8, 2002, of the district court’s decision to grant the

motion to suppress, thereby exacerbating its delay in filing the certificate.

Further, Mr. Petersen remained confined on federal charges at least through the

time of oral argument. Finally, the government’s offered reason for late filing is

inadequate.

      Accordingly, we DISMISS the appeal.


                                        ENTERED BY THE COURT


                                        Terrence L. O’Brien
                                        Circuit Judge




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