United States v. Maria Eugenia Carrillo-Bernal
58 F.3d 1490
10th Cir.
1995
Check Treatment

*1 1490 FIRMED, REMANDED matter Employment Age Discrimination der opinion. with this proceedings consistent (“ADEA”), §§ which 29 U.S.C.

Act jury trial. provides for correctly counters jury right upon cannot base their

employees ADEA, right the ADEA under since in that stat express provisions

arises provides for the ADEA Specifically,

ute. “powers, with the in accordance

enforcement remedies, Pair Labor procedures” of the America, UNITED STATES 626(b), Act, § which see U.S.C. Standards Plaintiff/Appellant, jury right to a includes the well-established 575, 580, Pons, v. trial. Lorillard v. (1978). Ad 55 L.Ed.2d CARRILLO-BERNAL, Eugenia Maria recovery ditionally, ADEA authorizes Defendant/Appellee. relief.” 29 U.S.C. “legal equitable or 583, Lorillard, 626(b); 434 U.S. at see No. 94-2169. context, “legal relief’ is In this S.Ct. at 871. Appeals, United States Court Congress’s indicates of art which term Tenth Circuit. jury. to a be triable intent that such actions Id. June 1995. contrast, Deregula Airline By right provision regarding the Act has no tion Furthermore, mere fact jury

to a trial. age may not be

that the Act indicates according hiring preference

considered ac compel that this the conclusion

does A first- age action.

tion is an discrimination Deregulation under the Airline

hire action core, not, an at its antidiscrimination

Act “is Aviation, Inc., v.

suit.” Crocker Piedmont (D.C.Cir.1995).13

49 F.3d reply employees

In their brief jury they entitled to a argue

further are legal re complaint seeks

trial because their monetary damages such as

lief the form However, employees failed to pay.

back opening argument in their brief

raise this Therefore, they abandoned argument, and we will not ad

waived State Farm Fire &

dress it on the merits. Mhoon, n. 7

Casualty 31 F.3d Co.

(10th Cir.1994) (citing Headrick v. Rockwell (10th 1277-78 Cir. Corp.,

Int’l Trust,

1994)); Bank & Lyons v. Jefferson Cir.1993). stated, summary judg-

For the reasons REVERSED; of the district court is

ment jury is AF- striking the demand

the order argument was not jury which made Ultimately, was based on find a Crocker did However, employees' opening brief. that conclusion trial under the Act.

self. agreed Carrillo-Bernal that he could and was secondary directed to a inspection area where search, Holmes his conducted finding jumper cables jug and a of water in the trunk. Holmes next asked he could conduct a K-9 sniff of the Again vehicle. agreed. Carrillo-Bernal dog When the “Nick” alerted to presence drugs, further search of a secret-compartment agents Holmes and other found in the vehicle up pounds turned marijuana. Carrillo- Kelly, Atty., John J. Albuquerque, U.S. Bernal was rights advised of her placed (Judith Patton, NM A. Atty., Asst. U.S. Las under arrest. At first she sign refused Cruces, NM, brief), with him on the for Miranda waiver form and invoked her right plaintiff-appellant. counsel, but she later made self-incrimina- ting being remarks jail. while transported to Mandel,

Barbara A. Asst. Federal Public Defender, Cruces, NM, Las for defendant- 17, On March 1994 Carrillo-Bernal was appellee. possession indicted for intent distrib- marijuana ute in violation of 21 U.S.C. HENRY, McKAY, Before Judge, Circuit § 841(a)(1), and she later plea entered a Judge SHADUR, Senior Circuit Senior guilty. 31, May On 1994 the district Judge District *. suppressed court both marijuana and the ensuing self-incriminating statements on the SHADUR, Judge. Senior District grounds marijuana was obtained in Following evidentiary hearing on a mo- violation of Carrillo-Bernal’s Fourth Amend- tion Eugenia Maria Carrillo-Bernal ment against unreasonable searches (“Carrillo-Bernal”) for the suppression of ev- and that the statements were the fruit of that impending idence in case, her poisoned tree. It was the district court’s district granted court that motion. That or- view that questioning Carrillo-Bernal subject der is the of the United States’ at- about the contents of the trunk in the ab- tempted appeal here. We dismiss the “suspicious circumstances,” sence of Holmes for comply failure to with the certification exceeded the constitutionally of a per- (“Section of 18 U.S.C. missible checkpoint stop as set out United 3731”). Martinez-Fuerte, States v. 3074, 3080-85, 49 L.Ed.2d

Background (1976), Ludlow, States v. United Cir.1993) 262-65 and United At p.m. about 5:45 on March Sanders, States v. 1498-1502 stopped Carrillo-Bernal was primary at the (10th Cir.1991). July On 11 the district court inspection area of the United States Border denied the United States’ motion recon- checkpoint Cruces, Patrol outside Las New July sideration. On 19 the United States Mexico, by Agent Border Patrol Randy filed a notice in accordance with (“Holmes”). Holmes Holmes later testified 4(b). Fed.R.App.P. that his suspicions during were aroused rou- questioning by tine exceptional cleanli- That decision to was made As- ness of Bernal’s automobile and the absence States-Attorney sistant United Patton Judith luggage passenger compartment. attorney consultation with an unidentified Holmes asked Carrillo-Bernal what was in Appellate Section of Depart- (the the trunk. him empty. She told that it was Attorney”). ment of Justice “DOJ Sec- Holmes then asked if he see for him- governs could tion 3731 interlocutory government Shadur, Illinois, *The Milton I. sitting by Honorable Senior United designation. Judge District District of Northern away from Las Cruces from provides appeals in a criminal case August An supplied): until part (emphasis relevant Department of Appellate section of the lie to appeal by the States shall An Justice, already who had reviewed appeals from a decision or order a court of *3 case, counsel to file the notice of advised excluding suppressing or district court of a immediately. Undersigned appeal counsel requiring the of seized evidence or return immedi- Appeal Notice of almost filed the proceeding, not property in a criminal ately learning Judge Vazquez’ rul- after of put in the defendant has been made after Inadvertently, ing. counsel failed to file finding jeopardy and before the verdict pursuant certificate to 18 U.S.C. information, on an indictment or leaving § the office for three 3731 before to the dis- States United certifies weeks. appeal not taken trict court that the for delay and that the evidence is a purpose The branch office for the Office of proof material substantial fact District of United States proceeding. extremely an New Mexico at Las Cruces is [*] [*] [*] [*] [*] [*] high-volume office. It is located near the border. In addition to han- international appeal in all such shall be taken The cases dling reactive cases United States decision, thirty days judg- within after the checkpoints Patrol and United Border has been rendered and shall ment or order Entry, Customs Service Ports of diligently prosecuted. manages from numerous the office eases provisions shall The of this section be lib- agencies and state and task forces federal erally purposes. to effectuate its construed pace in southern New Mexico. While the for Because the certification called Sec- filing practice is no excuse for the appeal not at time the tion 3731 was filed error, hopes counsel this Honorable Court taken, August on 23 we alerted the accept explanation for the will the honest deficiency. August parties to that On 26 this prosecution permit omission and of this representation to the district court was made appeal. most Acting signature of over the any possible misunderstanding on dispel To Tierney: James func- part of the States as to the undersigned The has reviewed the Memo- importance of certifi- tion and Section 3731’s Opinion suppressing randum and Order requirement, compelled we are to re- cation crimi- the evidence in the above-referenced length thought visit at some an issue that we undersigned nal cause. The therefore by our decision had been laid to rest recent hereby appeal that is not certifies Hanks, 24 in United States v. F.3d 1235 purpose delay, taken for the Cir.1994). suppressed the evidence is substantial proceeding. proof of a fact material Requirement S731’s Section Certification 30, 1994 granted September we the Unit On supplement long motion to the record This Court has held that ed States’ timely August 26 certificate. to file a failure deprive not the court of 3731 certificate does government’s explanation for Here is the (United Welsch, jurisdiction States v. timely certifi- its failure to file a Section 3731 (10th Cir.1971)). 220, 224 Instead the F.2d 9-10): (Br. cate inquiry reviewing relevant is whether Undersigned counsel for the United States court should exercise its discretion to enter Cruces, works in the Las [AUSA Patton] defect, light tain the of such as Mexico, the district. New branch office of 3(a): provided by Fed.R.App.P. Appeal filed the Notice of Counsel any step appellant Failure of an to take in haste and an abundance caution, timely filing of a notice of to insure she would not miss the other than the validity thirty-day jurisdictional requirement. does affect ground only action planned appeal, but is for such Counsel to be out of office why accept filing the late appropriate, deems we as the court of certificate. Post hoc certification that an may include dismissal of which purposes was not taken Hanks dismissed from an order § reduces the suppressing on Miranda grounds certain meaningless formality. defendant, finding “no made statements government’s failure to excuse the reason Here the United States seeks to dis timely comply with the 3731 certification Hanks tinguish point by point, arguing Hanks, 1239). (24 id. requirement” only days the certificate was filed late favoring 1238-39 identified several factors 1), (point that Carrillo-Bernal was out on (2) (1) filing; 2]é a month dismissal: 2), (point untimely filing bond was the any criminal fact that final resolution of *4 regrettable byproduct busy (point aof office heavily mind weighs case on a defendant’s 3), legal present that issues are (3) (even bail); out the if he or she is on 4) (point oversight and that the initial explain why it did not government’s failure to 5). diligently (point Finally corrected the (4) manner; timely the file the certificate a points to liberal United States Section 3731’s impor- government’s failure to demonstrate provision support its construction re needing or oth- legal tant issues clarification proceed quest that we to the merits of the (5) appeal; significant reason to hear the er appeal. response upon government’s lackluster the deficiency learning of the and concomitant the Even those terms re- (6) resources;1 judicial the waste of sponse something to leaves be desired. As acknowledge government’s failure “even to point speak 2 it at all what to does not to requirement §in 3731 Hanks, that the certification (relying 24 F.3d at on two 1238 Su- Hanks, id. at seriously.” decisions) should be taken preme had Court said: original) put (emphasis 1239 these teeth during out Hanks has been on bond this requirement: into 3731’s certification Nonetheless, government’s ap- time. give meaning to We believe that we must delayed peal has final resolution of this requirement govern- 3731 case, weighs heavily which we do not doubt appeal certify taking that it is ment mind, though on the defendant’s even he is pro- proper purpose. “[T]he a certificate free on bond. cess cannot serve its function unless point government’s explanation responsible prosecuting official makes a As to 3 nothing than a thorough analysis conscientious amounts to more confession (or Every good lawyer deciding negligence: to The certifi- case before be) busy lawyer, excuse representation a but that does not cate is the official’s made, judicial (although may temper response it analysis has and we been to) lawyer’s missing a require to deadline. Even must therefore the certificates v. Her- importantly, we find it difficult to credit United States promptly.” be filed (5th Cir.1977). man, “important legal needing appel- issue n. 4 as an 794 4) (point clarification” the need to review appeal A has not been late certification credibility determination purpose be a on the merits the taken for the would judge found that an over- protection right to a district who hollow for defendant’s Agent had seized on quickly if we were zealous Border Patrol resolve his or her case any justify prede- regularly prosecutors to wait claimed rationalization to to allow (with assistance) canine at a verifying propriety termined search months before area, secondary inspection irrespective requiring their without some ex- reasonable planation showing of existence or nonexistence of or some brief; original appellate government filed its otherwise dress the issue in its 1. In Hanks the 1, 1993; timely appeal notice of on June panel hearing late learned of the issue; on 15 defendant raised the certification filing argument, only at when it or oral then government August 24 the filed its certificate (Hanks, supplemental briefing on the issue dered court; government with the district did not 1237-38). F.3d attempt supplement did it ad- to the record nor 394, 400, suspicion. last 354 U.S. 77 S.Ct. grounds for More on this (1957)) greater part and for the point L.Ed.2d later. century viewed with extreme were deficiencies, But in addition to those what By holding skepticism. that in the absence really to do is States has failed the United express legislative authority govern 3731’s cer- demonstrate that takes Section right no in a criminal ment has 6). (point seriously tification case, Sanges, against post hoc Despite Hanks’ admonition (1892) set 36 L.Ed. 445 S.Ct. (24 1239), again this case certification stage become for the United for what would pattern. appears to reflect the same What 70-year quest General is that the deci- the United States has said Congress secure from was made AUSA Patton sion rulings. certain district court Much later immediately and the DOJ “almost Manypenny, Arizona v. U.S. ruling, learning of the district court after” (1981) 1657, 1666-67, 68 L.Ed.2d representation having been made with no (citations omitted) explained the con twofold (and government none otherwise evident against presumption cerns that underlie the record) pre- that the decision was appeals: by a reasoned determination as to the ceded prudential Both and constitutional inter- expressly considerations *5 (and to this tradition. The ests contributed incorporated into into the Section 3731 by prosecutor appeals need to restrict Appeals versions of the Criminal Stat- earlier ute) prudential a concern that individ- reflected inception. since its Instead the certifi- uals should be free from the harassment eventually all cate that was filed has litigation by and vexation of unbounded stamp in earmarks of a rubber Hanks’ —or sovereign. This concern also underlies the “meaningless formality.” It was words against jeopardy, constitutional double ban by Acting sworn to United States by prosecutor which bars an Tierney, who on the record before us had following jury acquittal. of In verdict nothing up case to that mo- to do general, into both concerns translate post He tells us that his hoc under- ment. prosecution ap- presumption that the lacks standing gleaned of the matter was pellate authority express legislative absent By court definition that district order. does contrary. authorization to the pre-appeal analy- not constitute conscientious by responsible prosecuting sis official. Sanges, prompted At- To return to it explained it how a review of that Nor is torney repeated launch General to efforts to by an who was document conducted enabling legislation: no than secure fewer otherwise not involved in the case enabled proposals years seven in twelve five dif- represent him to the motivation and basis for General, Attorneys designed ferent all to ob- appeal by in the actual decisionmakers prosecutors Supreme tain for what the Court the first instance. only they by congres- had said could have Kurland, why (Philip sional action The It some- MERSEY understand Appeals Sug- and the Criminal Act: A thing might perceived purely sur- Case Statute, gestion Amendment terms as a formal is viewed face of 419, (1961); Note, seriously by U.Chi.L.Rev. 446-55 Scott more this and other Courts of (in Reviewing Judge: see, Shapiro, the Unreviewable Appeals respect e.g., the latter Unit- (5th Miller, 866, Appeals Federal Prosecution Mid-Trial v. ed States 875-76 905, Cir.1992); Eccles, Evidentiary Rulings, 99 Yale L.J. 907- v. (1990)). Cir.1988)). 1357, pur- 1359-60 For that pose it is useful to examine relevant yield repeated failed to Those efforts provision perspec- statutory from a historical desired It was not until President result. tive. Theodore Roosevelt entered the lists because having appeals in criminal cases have he viewed a district court as thwarted

Government unusual, traditionally “something policies by excep- directing been his antitrust a verdict (Carroll tional, States, favored” v. defendants’ favor in United States v. Armour not (N.D.Ill.1906) (the Co., days after the date the order was entered famous 142 F. 808 & Case”) responded diligently prosecuted. and shall be Trust “Beef enacting Appeals Act of 1907 the Criminal government’s perspective From the (1907 (Pub.L. 223, No. 34 Stat. — what scope provision limited was a quoted become, considerably revised since 1997, disappointment (S.Rep. Cong., No. 84th 3731)). form, According to United (1956)), and the 2d Sess. 19 General Sisson, 267, 90 399 U.S. S.Ct. redoubled his efforts to extend the (1970), three-day 26 L.Ed.2d 608 the Senate’s appeal suppression orders across the board legislation proposed “[r]e- on the floor debate (DiBella States, v. United 369 U.S. 130- legislation deep concern that the fleet[ed] (1962)). 7 L.Ed.2d 614 S.Ct. whose jeopardize not interests defendants given impetus by Those efforts were concrete (id. appealed by the cases were Government” Carroll, an which refused entertain 2132) and, generally at 90 S.Ct. at suppressing gam from a court district order 2134): (id. at at bling paraphernalia. rejecting gov In history strong legislative argument suppression reveals a [T]he ernment’s orders congressional appealable solicitude for the final current should be considered deci sions, Carroll, exposed plight a criminal defendant S.Ct. omitted) (footnote anxiety by gov- expense and additional 1340-41 invoked the ven possi- against government and the incumbent presumption ernment erable bility multiple appeals highlighted impor trials. underlying practical tant concern: Appeals Act original That was Criminal If there is serious need for particular exceedingly narrow —in orders, suppression Government suppres- provision made no unfairness to the interests of effective possibility That latter sion orders. *6 criminal law enforcement in the distinc- Congress until given consideration serious to, tions we have referred it is the function drug the national focused its attention on Congress initi- of the to decide whether to during Even problem the mid-1950’s. departure pattern ate a from the historical though representative the General’s jurisdiction appellate in crimi- of restricted proposed in favor of a amend- then testified nal must decide the case-on the cases. We Appeals allow ment to the Criminal Act to today, light statutes that exist of what suppression government appeal the to orders development jurisdic- has been the of the (S.Rep. in all criminal cases No. 84th only through legislative tion. It is resolu- (1956)), Congress 11 was Cong., 2d Sess. tion, furthermore, peripheral ques- that only drug It enacted persuaded as to cases. regarding government the conduct of tions provision part as the Narcotic Control this of regulated. appeals in this situation can be (18 repealed, § Act of 1956 U.S.C. later problems legisla- of the directed Some III, 1101(b)(1)(A), 91-513, Pub.L. Title judgment particulars such as tive involve (1970)) (emphasis supplied): Stat. 1291 defendant, or bail of the accel- confinement any right appeal, In addition to other to appeal, of the Government’s eration right States shall have the to the United discretionary right of the to take limitation appeal granting from an order a motion for the property sup- to the return of seized (id. by a footnote language That was followed press evidence made before the trial of a 1340) observing that at 408 n. 77 S.Ct. at person charged with a violation of— Congress had in fact allowed whenever [designated offenses] narcotics invariably government appeal, it had ad- “peripheral the listed apply respect to dressed one or This section shall not (confinement, timing and discre- questions” any the such motion unless limitations), including Narcotic tionary attorney certify, judge grant- shall motion, govern- requirement appeal is not Control Act’s ing such that certify that is not taken Any appeal ment purposes delay. taken for delay. purposes under this section shall be taken within following year appeal by the Government in criminal tri- during the the Senate When tightly pre- must drawn and must als be Improvements in the Fed- Subcommittee rights constitutional of the serve all of the up took eral Criminal Code Therefore, I believe certain defendant. legislative proposal permit General’s necessary safeguards appeals are pretrial suppression in all orders ... avoid frivolous the attor- [T]o cases, types of Subcommittee ney certify who seeks the must questions expressly the third of those took suppressed pretrial evidence limits) (discretionary (S.Rep. into account proof in represents motion a substantial (1958)): Cong., 2d No. 85th Sess. against his case the accused. against unnecessary by the To insure eventually passed as Title H.R. 8654 was legislation taking appeals, of frivolous VIII of the Omnibus Crime Control and Safe (1) provide proposes subcommittee will (Pub.L. Act of No. Streets that the United States shall certi- (1968)). subsequent Stat. 197 Minor amend- fy court that is not to the lower brought ments Section 3731 to its current (2) delay, purpose taken for the form. prosecution proceed with- is unable Although opinion spoken has sup- out the evidence which has been part most terms of the factor that pressed. certification, part forms of the Section 3731 (like governmental many that That effort remembered that it) preceded proved had still unsuccessful —it materiality made the of the evidence dis fully years proposed legis- ten before the pute equal partner in that certification. lation became law. specific- although And April Representative On Thomas addressing than case-oriented rather (H.R. 8654, submitted a bill 90th Railsback general significance jurisprudential of the le (1967)) Cong., 1st Sess. to amend the Crimi- presented, gal questions relatedly we are Appeals by providing nal Act (as court, 24 mindful was the Hanks F.3d at appeal: 1239) non-criticality particular of the order, granting From an a motion for re- orderly posed substantive issues here to an property turn of seized or a motion to juris development corpus suppres evidence, suppress made the trial of before (like others) many sion doctrine. This court person charged any with a violation of frequently past has been called on over the *7 States, law of the the United years to several deal with variants of the judge to certifies who presented by appeal. single facts this No granted such motion that the is not any case such as this one can make material purposes taken for and that the sup incremental contribution to the law of proof evidence is a substantial of the Benjamin pression the course of what charge pending against the defendant. long ago2 “leaving] Cardozo referred to as support Representative In his statement ‘pricked process to be out’ a of inclusion DiBella, quoted passage Railsback (The and exclusion in individual cases” Para describing at 656 U.S. S.Ct. (1928)) Legal doxes Science 96 — and piecemeal the hazards of and leaden-footed this area of substantive law Carrillo-Bernal's law, administration of the criminal and he that, provides graphic example case for explained how his bill addressed those con ruling the district court’s was so much a (Anti-Crime Program: Hearings cerns be credibility function court’s determina Subeomm. No. 5 the Comm. on the already tions to which we have referred. It fore Judiciary, Cong., 90th 1st Sess. 1530-33 light is in that that the factor related (1967)): despite prompt must be examined —and any handling appeal, year It seems action Con- full [] this almost a gress provide grounds to for additional for has serving

2. Justice Cardozo was then on the New Holmes as a Justice of the United States Su- Appeals, York Court of before he continued his preme Court. distinguished by succeeding career Justice certification terests that the suppression court’s district elapsed since the designed protect. defen- charges hanging over ruling, with (as Hanks while all the dant’s head appeal. Accordingly we DISMISS the out). pointed from the dis- opinion separates What HENRY, Judge, dissenting. Circuit a reasoned certainly reflects sent —which majority’s thoughtful agree fully with the I competing resolution of the though different analysis history scholarly weighing of different considerations —is However, significance of 18 U.S.C. Every oft- one of the those considerations. reasons, agree I not that the for several do presents a cases recurring officer-search be dismissed. government’s scenario, calling in turn different somewhat First, government’s I do not think that the previous- ease law’s application of the regarding' 3731 certifi- conduct the Section current factu- ly-announced standards equated cate can be majority pres- view the In our al variation. Hanks, conduct in coneededly case, though it is of course ent Hanks, (10th Cir.1994). In contrast to is) (as every case new different somewhat here does not indicate that the record before, not gone have is from those that “thought of the statuto- so little forgoing the sufficiently to merit our so as not even bother to ry obligation that it did recurring opportunity to frequently far less appellee’s argument or to respond to the of Hanks: As forcefully the lesson emphasize filing late of the certificate advise us of its directs, every prosecutorial deci- Section dur- explicitly until confronted the issue we interlocutory from an to take an sion Instead, Id. at 1239. ing argument.” oral preceded suppression ruling must be adverse file certifi- of the failure to when notified prosecutorial decision by a reasoned cate, promptly sup- government acted in that statute. expressly set out terms addition, In plement the record on his- summary, extended In this somewhat presentation government’s briefs and its excep- has illuminated torical excursion me that argument1 have convinced at oral appeals in governmental tional nature of approach to the the cavalier have been proceedings that criminal cases— identified Hanks requirements that we carefully circum- the courts curbed present here. (among of a desire by Congress out scribed Moreover, “im- reasons) I this case involves believe safeguard individuals from other needing appellate clarifi- legal issues prolonged portant inherent special hazards id., cation,” not war- that dismissal is suppres- sovereign. As to litigation with the held that an district court orders, trans- ranted. The concerns have been those sion regarding the contents of agent’s question express requirement lated into the perma- stopped at a of a vehicle certify to the the trunk contemporaneously prosecutor checkpoint “exceeded nent border appeal is not taken court that the district *8 permissible permanent inquiry limited delay and that the evidence purposes of in Martinez- checkpoints as delineated time and required great It deal of critical. subsequent Circuit deci- Fuerte Tenth General the United States effort Opinion Memorandum District Court any right sions.” to extract United Order, (citing doc. Hanks and this case re- Rec. orders. Both such Martinez-Fuerte, 543, 96 v. that we do States court’s determination flect this (1976)). Howev- 49 L.Ed.2d 1116 attorneys, in S.Ct. ask too much er, to me to our decisions seem long several of right, to slow down of that their exercise expansive view have taken a a man- enough conduct their evaluations’in at a border questioning allowed are consistent with at a time that ner and suspicion or checkpoint reasonable important in- without history and the 3731’s his term commenced. it arose before the District of States 1. The United case, though personally argued this New Mexico suspicious circumstances. See United States Rascon-Ortiz, (10th

v. 994 F.2d

Cir.1994) (“[A] questions few brief concern-

ing things ownership, cargo, as vehicle

destination, plans may appro- and travel

priate reasonably agent’s related to the

duty prevent entry the unauthorized country prevent

individuals into this and to smuggling contraband.”); Ludlow, v. 265 n. 4

Cir.1993) (“Questions regarding ... citizen-

ship and the contents of the vehicle were of directly

course related to the Border Patrol duties.”).

agent’s view, whether, my In suspicion suspi-

the absence of reasonable circumstances, agent

cious could ask Ms.

Carillo-Bernal what was the trunk of the driving through

car she was a border check-

point legal is an question that

warrants our consideration.

I do not condone the failure timely file the Section 3731 certificate.

However, given our broad discretion in this

matter, I proceed would to the merits of this

ease.

Accordingly, respectfully I dissent. AIR

VORNADO CIRCULATION SYS

TEMS, INC., corpora a Kansas

tion, Plaintiff-Appellee, CORPORATION,

DURACRAFT

Defendant-Appellant.

No. 94-3191. Appeals, Court of

Tenth Circuit.