     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
 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 Defendant-
10                                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.




                                         2
 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



                                      3
 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



                                       4
 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.

                                      5
 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

                                      6
 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

                                       7
 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

12   itself in this regard.1   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




          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   suppressing evidence.2    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

 4   find them to be without merit.3    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.


          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.

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