Plaintiff-Appellant United States of America (the “Government”) seeks review of the district court’s judgment of acquittal in favor of Defendant-Appellee Raul Rafael Arce-Jasso (“Arce-Jasso”) on possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The Government also seeks review of the district court’s denial of the Government’s motion for reconsideration of its order granting Arce-Jasso’s motion to suppress the cocaine. Because this Court finds we do not have appellate jurisdiction to review either the judgment of acquittal or the denial of the motion for reconsideration of the suppression, we DISMISS the Government’s appeal.
BACKGROUND
In the early evening hours on February 20, 2002, Arce-Jasso drove a 1996 Mercury Cougar to the border patrol checkpoint located on 1-35, 15 miles north of Laredo, Texas. Arce-Jasso pulled into the primary inspection lane, which Agent Jesus Garcia (“Garcia”) was manning. When Arce-Jasso pulled up, Agent Garcia questioned him about his citizenship. Arce-Jasso responded in Spanish that he was a U.S. citizen and presented a birth certificate indicating hе was born in Laredo and a photo ID (not a driver’s license). Agent Garcia examined the items and believed Arce-Jasso was a U.S. citizen at that time. He then proceeded to ask Arce-Jasso two more questions in Spanish: (1) where he was going and (2) who owned the Mercury Cougar. Arce-Jasso answered that he was going to San Antonio and that he had bought the car about a week ago. 1 Just *127 then, Arce-Jasso started pulling out of the checkpoint. Agent Garcia called after him to ask if he wanted his documents back, and Arce-Jasso stopped. At that point, Agent Garcia referred Arce-Jasso to the secondary inspection area where a canine alerted and agents discovered cocaine hidden in the side panel of the car. The entire episode took about five minutes.
On March 19, 2002, a Laredo federal grand jury returned an indictment charging Arce-Jasso with possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Arce-Jasso pleaded not guilty before a magistrate judge on March 28, 2002. Arce-Jasso filed a motion to suppress the cocaine on April 9, 2002, arguing his detention at the border checkpoint was unconstitutionally lengthy. After a hearing, the district court denied this motion by written order entered May 23, 2002. A bench trial took place on June 3, 2002. The parties entered a joint stipulation of fact that same day. During the trial, Arce-Jasso’s counsel made clear that Arce-Jasso agreed with the stipulation “other than the legality of the stop which is the issue that we seek to preserve for appeal by doing this.” The court found Arce-Jasso guilty and entered verdict on June 7, 2002.
Prior to sentencing, on January 3, 2003, Arce-Jasso filed a motion for reconsideration of the court’s original denial of the motion to suppress based on
United States v. Portillo-Aguirre,
On September 25, 2003, the Government filed a joint notice of appeal per 18 U.S.C. § 3731 of: (1) the court’s judgment of acquittal and (2) the court’s order denying the Government’s motion for reconsideration of the court’s prior order suppressing the cocaine evidence.
DISCUSSION
Whether this Court has appellate jurisdiction to review the denial of the Government’s motion to reconsider the district court’s suppression order.
Before reaching the merits, this Court must examine the basis, if any, of its appellate jurisdiction.
Giles v. NYLCare Health Plans, Inc.,
Aree-Jasso first contends that this Court does not have apрellate jurisdiction to review the district court’s decision to suppress the cocaine because the Government did not timely appeal that decision. He argues the 30-day clock began to run on August 12, the day the court denied the Government’s motion for reconsideration of the grant of suppression; therefore, the Government’s filing notice of appeal on September 25 fell outside the 30 days. The timing advanced by Arce-Jasso is correct. The clock would not have started running on May 9, 2003, when the suppression was actually granted, but would have started when the court denied the motion for reconsideration the Government made, on August 12.
See United States v. Greenwood,
The Government concedes that if the clock started on August 12, it did fail to meet the 30-day deadline. However, the Government points to the materiality requirement in § 3731 and argues that the outcome of the motion to suppress by itself did not have any legal effect on the prior guilty verdict and thus had no practical “material” effect on the proceedings until the district court granted Arce-Jasso’s motion for judgment of acquittal. Thus, the Government contends the real clock begаn with the entry of acquittal, both for appealing the suppression and the acquittal. The Government is correct that appealing the decision to suppress per § 3731 would be possible here, notwithstanding the Rule 4(b) timing problem. 3
Although Rule 4(b)’s timing requirement is considered jurisdictional,
see United States v. Wilson,
Unlike Rule 4(b), § 3731’s timing requirements are not jurisdictional; “we may still entertain § 3731 appeals certified in an untimely manner.”
United States v. Smith,
We find the Government’s untimeliness shоuld not be excused here. This Court has never treated or recognized the Government’s filing of an untimely motion within the 30-day additional period contemplated by Rule 4(b)(4) as a motion for a determination of excusable neglect or good cause. Whether this Court would do so is not before us because the Government advanced no such argument. However, even if we were tо treat the Government’s untimely appeal as a motion for a determination of excusable neglect or good cause, we find no excusable neglect or good cause for its tardiness here. Likewise, the Government’s case here is easily distinguishable from
Smith
not only because there the Government timely appealed the district court’s second quashing order (albeit with the certification flaw) within the 30 days as required by Rule 4(b)(1)(B)(i), but also because we find no “equities in this appeal [which] favor the [G]overnment.”
We now consider the Government’s argument that a post-verdict suppression order fails to become material to the proceedings until the court decides to grant acquittal. We find this argument lacks merit. Rule 4(b)(1)(B)® requires filing of notice of appeal “within 30 days after ... the entry of the judgment or order being appealed.” Fed. R.App. P. 4(b)(1)(B)(i). For appealing the denial of the motion for reconsideration of granting suppression entered on August 12, 2003, the deadline for the Government was September 11, 2003. The language of § 3731 does not extend or toll this deadline in any way, nor does it hinder the Government from appealing within 30 days; it also does not suggest that materiality is a different inquiry when a suppression is made pre- as opposed to post-verdict.
In
Smith,
this Court found an indicted suspect’s allegedly false allegations in an arson case, captured on videotape by a TV station, to be “substantial proof of a fact material in the proceedings”; this Court allowed appeal of the quashed subрoena as suppressed evidence under § 3731.
Therefore, although the Government is correct that therе are various hypothetical pathways the district court could choose to take after granting a post-guilty verdict suppression — immediately granting an acquittal, not changing the guilty verdict, or granting acquittal after some time has passed — if “the [suppressed] evidence is a substantial proof of a fact material in the proceeding,” then the Government should note whеn 30 days will have passed after the suppression decision is final and make the decision to file notice of appeal within 30 days, instead of waiting until a possible acquittal is granted.
Moreover, while it may not always be readily apparent to the parties what evidence is a “substantial proof of a fact material in the proceeding,” in Arce-Jas-so’s casе the evidence considered by the district court during the bench trial consisted only of the stipulation of fact. This stipulation detailed the immigration stop and the cocaine discovered as a result of it, and Arce-Jasso’s counsel clearly preserved the issue of the legality of the stop for appeal. 5 A successful appeal on that issue would result in suppression of the cocaine. Thus, the materiality of that very suppression by the district court to Arce-Jasso’s ultimate criminal fate under § 841(a)(1) and 841(b)(1)(A) was entirely clear when the suppression was made and reconsideration denied, even if how the district court would later practically deal with that suppression was not. The Government did not appeal in time; therefore, we lаck jurisdiction to review the suppression decision.
Whether this Court has appellate jurisdiction to review the judgment of acquittal.
Arce-Jasso first argues that the Government cannot appeal the judgment of acquittal because appellate review would contravene the Double Jeopardy Clause. This argument fails. The Supreme Court has expressly stated:
[T]he Government was entitled to appeal both the order granting the motion to suppress and the order setting aside the verdict of guilty, since further proceedings if the Government were successful on the appeal would not be barred by the Double Jeopardy Clause. The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion tо suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt. Unit *131 ed States v. Morrison,429 U.S. 1 ,97 S.Ct. 24 ,50 L.Ed.2d 1 (1976); United States v. Wilson,420 U.S. 332 , 352-353,95 S.Ct. 1013 , 1026,43 L.Ed.2d 232 (1975).
United States v. Ceccolini,
Arce-Jasso also contends § 3731 does not permit appeals from judgments of acquittal. This argument also fails. Although § 3731 is silent on appeals from judgments of acquittаl, this Circuit allows Government appeals per § 3731 from post-verdict judgments of acquittal.
United States v. Martiarena,
However, Arce-Jasso correctly argues that the law of the case doctrine precludes the Government from presenting an adequate case or controversy under Article III.
6
The law of the case doctrine is “a restriction self-imposed by the courts on themselves in the interests of judicial efficiency, [which] generally operates to preclude a reexamination of issues decided on appeal, either by the district court on remand or by the appellate court itself upon a subsequent appeal.”
Signal Oil & Gas Co. v. Barge W-701,
Thus, because this Court cannot disturb the improperly appealed suppression ruling, it becomes the law of the case by “necessary implication” and cannot be reconsidered by the district court. There is no other ground argued or available to remand the case. And even if this Court could do so, on remand the Government would face a Hobson’s choice
7
: dismiss the charges against Arce-Jasso due to lack of evidence or retry him without the cocaine.
8
This Court has recognized that “[a] claim becomes moot when ... the parties lack a legally cognizable interest in the outcome.”
Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
Neither of the Governmеnt’s options provides an effective remedy on remand, so the Government does not have any “interest in the outcome for which effective relief is available.”
Karaha Bodas,
CONCLUSION
Having carefully considered the parties’ respective briefing and arguments, for the *132 reasons set forth above, we DISMISS the Government’s appeal.
DISMISSED.
Notes
. Agent Garcia stated he asked these questions because certain cities are common destinations for illegal aliens and "disposable” vehicles are often used for smuggling drugs or aliens. He also stated that Cougar vehicles have been used for alien smuggling because of their large trunk and a void in the quarter panels, and freshly cleaned cars, such as *127 Arce-Jasso’s, suggest they have been wiped down for residue or odor.
. This Court has held that the 30 days start with the entry of the judgment or order in the docket per Rule 4(b), not the rendering of the judgment or order per § 3731.
United States v. Wilson,
. The Government has met § 3731’s other requirements. Section 3731 expressly allows for Government appeal from orders suppressing evidence; here, the cocaine discovered in the Cougar was suppressed by the court. Suppression must not be made "after the defendant has been put in jeopardy and before the verdict”; this is also met here because the order was entered after the bench trial ended and the court entered its guilty verdict.
See United States v. Kington,
. Although the Government makes the argument that the suppression decision did not ripen into a final decision under 28 U.S.C. § 1291 until the later judgment of acquittal and cites
United States v. Martinez,
. For example, "even though appellants stipulated all the essential facts necessary for their conviction, they did not withdraw their plеas of not guilty, and sought to expressly reserve their right to appeal from the order denying the motion to suppress.”
United States v. Mendoza,
. The Government responds by merely restating its argument that the suppression order itself is appealable.
. A Hobson's choice is defined as "an apparently free choice when there is no real alternative.” Merriam Webster Online Dictionary (2004), at http://www.m-w.com.
.These are the Government's only options. All but one of the facts Arce-Jasso stipulated to concerned the checkpoint stop found illegal by the district court or the cocaine found as a result of the stop, which was suppressed by the district court. Thus, little, and arguably no, factual evidence remains that could be used to convict Arce-Jasso under 21 U.S.C. § 841(a)(1) and (b)(1)(A) on retrial.