UNITED STATES of America, Appellant, v. STEVEN MOSKOWITZ, Andrew Tepfer, aka Avi, Seymour Eisenberg, aka Jimmy, George Speranza, Thomas Cavanagh, Frank Nicolois, Defendants, Michael Metter, Defendant-Appellee.
Docket No. 12-2423-cr.
United States Court of Appeals, Second Circuit.
Submitted: Nov. 27, 2012. Decided: Dec. 27, 2012.
706 F.3d 731
Having considered these factors, we conclude that they support the exercise of personal jurisdiction in this case. First, although Deiter would have to travel to Connecticut to defend this suit, this burden alone does not render the exercise of personal jurisdiction unreasonable. See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 244 (2d Cir.1999) (holding that burden on Japanese defendant was insufficient to overcome its minimum contacts, particularly because “the conveniences of modern communication and transportation ease what would have been a serious burden only a few decades ago“). Second, both Connecticut and MacDermid have significant interests in resolving the matter in Connecticut. Not only is the company based in Connecticut, which is where the majority of corporate witnesses are located, but also Connecticut has an interest in the proper interpretation of its laws. Chloe, 616 F.3d at 173 (holding that exercise of personal jurisdiction is reasonable where, inter alia, forum state has an interest “in providing effective means of redress for its residents“); Kernan, 175 F.3d at 244-45 (holding that exercise of personal jurisdiction is reasonable in New York where injured plaintiff was a New York resident and New York laws indisputably applied). Cf. Metropolitan Life Ins. Co. v. Robertson-Ceco, Corp., 84 F.3d 560, 574 (2d Cir.1996) holding that exercise of personal jurisdiction was not reasonable where injury did not occur in forum state and plaintiff was not based in forum state. Further, efficiency and social policies against computer-based theft are generally best served by adjudication in the state from which computer files have been misappropriated. Accordingly, we conclude that jurisdiction is reasonable in this case.
CONCLUSION
For the reasons stated, we reverse the judgment of the district court and remand for further proceedings.
David C. James, Roger Burlingame, Nathan Reilly, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellant.
Before: SACK, CHIN, and LOHIER, Circuit Judges.
PER CURIAM:
Defendant-Appellee Michael Metter moves pursuant to
BACKGROUND
On October 14, 2010, a grand jury sitting in the Eastern District of New York returned a superseding indictment against Metter and six codefendants. The indictment alleged that Metter had participated in a fraudulent scheme related to transactions in the common stock of Spongetech Delivery Systems, Inc. (“Spongetech“), a corporation of which Metter was, at all relevant times, the president and chief executive officer.
In May and November 2010, the government secured warrants to seize computers from Spongetech‘s offices and Metter‘s home, and data from Metter‘s personal email account. All told, law enforcement recovered the contents of sixty-one Spongetech hard drives, including Spongetech‘s email server, the contents of four of Metter‘s personal hard drives, and a “snapshot” of activity on Metter‘s email account (collectively, the “Seized Materials“). But the government did not promptly conduct a forensic review of the Seized Materials.
On May 25, 2011, Metter filed a motion to suppress the Seized Materials. He argued, in relevant part, that the government‘s delay in conducting a forensic review constituted an unreasonable execution of the warrants that authorized seizure of that evidence, in contravention of the Fourth Amendment. The government conceded that it had yet to review the Seized Materials, but it argued that its delay was not “unreasonable.” The dis-
The government immediately appealed, asserting appellate jurisdiction under
DISCUSSION
Section 3731 of Title 18 of the United States Code, authorizes, in certain circumstances, interlocutory appeals by the United States from district court orders in criminal cases. Relevant here is the second paragraph of section 3731, which provides:
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 or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
Paragraph two thus appears to provide three requirements for appealability: “[t]here was an order of a district court excluding evidence; a United States attorney filed the proper certification; and the appeal was taken within 30 days.” United States v. Helstoski, 442 U.S. 477, 487 n. 6, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979). It is undisputed that the government has satisfied these requirements here: the district court issued a May 17, 2012 order suppressing the Seized Materials; on June 15, 2012, Loretta E. Lynch, the U.S. Attorney for the Eastern District of New York, certified to the district court that the “ap-
Yet Metter maintains that we lack jurisdiction. He contests the U.S. Attorney‘s certification that the Seized Materials are “substantial proof of facts material in the proceeding.” The government, he argues, represented several times in the proceedings before the district court that it had not yet conducted a review of the Seized Materials—indeed, this was the basis for Metter‘s suppression motion. And because the government did not review the Seized Materials, he continues, the U.S. Attorney had no basis upon which to rest her certification of substantiality and materiality.
The government argues in reply that the U.S. Attorney‘s certification should be treated as conclusive under section 3731 as to whether the suppressed evidence is a “substantial proof of a fact material in the proceeding.” It argues, in other words, that our jurisdictional inquiry begins and ends with timely filing of the certification itself—we thus need not look behind the certification to determine its veracity or correctness, and an appellee may not move to dismiss an appeal on the basis that the certification is untrue or incorrect.
Although we have yet to hold as much, every circuit to have considered the question has reached the conclusion urged by the government. In re Grand Jury Investigation, 599 F.2d 1224, 1226 (3d Cir.1979) (“The district court having received this certification, we are not required by section 3731 to evaluate independently the substantiality or the materiality of the contested material.“); United States v. Centracchio, 236 F.3d 812, 813 (7th Cir.2001) (“We therefore treat as conclusive of our jurisdiction over a Paragraph 2 appeal the submission of the certification required by the statute.“); United States v. Johnson, 228 F.3d 920, 924 (8th Cir.2000) (“[W]e need not examine whether [the suppressed evidence] would actually be substantial proof of a material fact. The government has so certified; that suffices.“); United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir.2008) (en banc) (“[W]e now hold that a certification by a United States Attorney . . . that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material in the proceeding is sufficient for purposes of establishing our jurisdiction under § 3731.“), overruling United States v. Loud Hawk, 628 F.2d 1139, 1150 (9th Cir.1979). We now join our sister circuits in this regard.
We are persuaded that for purposes of section 3731, the U.S. Attorney‘s timely certification is conclusive as to whether the suppressed evidence is substantial proof of a material fact. We begin with section 3731‘s text, which “shall be liberally construed to effectuate its purposes.”
Viewing the issue from our own perspective, moreover, we think a contrary rule too impracticable to be what Congress intended. As the Seventh Circuit put it, “Paragraph 2 appeals are usually from orders suppressing or excluding evidence, and there is no basis on which, in advance of trial, we could determine that the evidence that the government wished to use was so unimportant to any rational prosecutorial strategy that the appeal was frivolous.” Centracchio, 236 F.3d at 813.
We emphasize, as did the Ninth Circuit, that “we are not diluting a standard implicit in the certification requirement.” W.R. Grace, 526 F.3d at 507. Certification is not to be treated as no more than an “administrative formality.” Id. at 508. So, although we agree that “since the Solicitor General must in any event approve federal government appeals, there is no significant danger that the appeal will be frivolous,” Centracchio, 236 F.3d at 813, we nevertheless reiterate our expectation that the government will “carefully analyze[] the case before deciding to appeal,” United States v. Romaszko, 253 F.3d 757, 760 (2d Cir.2001). While we are confident that the U.S. Attorney will carry out her certification responsibilities in good faith, we note that our power to impose direct sanctions is a sufficient guarantor that the government will not overstep itself in this regard.1 See W.R. Grace, 526 F.3d at 507.
We conclude that the U.S. Attorney‘s certification that “the evidence is a sub-
We have considered Metter‘s remaining contentions and find them to be without merit.3 Metter‘s motion to dismiss the appeal is denied. He is directed to file a scheduling notification proposing a deadline for the filing of his brief on the merits. See Local Rule 31.2.
CONCLUSION
For the foregoing reasons, Metter‘s motion to dismiss the appeal for want of appellate jurisdiction is denied. He is directed to file forthwith a scheduling notification proposing a deadline for the filing of his brief on the merits. See Local Rule 31.2.