Lead Opinion
OPINION
During the late evening and early morning hours of March 18-19, 2002, law enforcement officers executed two search warrants at the Summerlee, West Virginia, residence of Timothy DeQuasie. The purpose of the first search was to attempt to locate two women, one of whom was reportedly missing and being held against her will by DeQuasie in the residence. While law enforcement officers were executing the first search warrant, they observed evidence of apparent drug activity at DeQuasie’s residence, and they therefore obtained a second warrant to search the residence for drugs and drug-related materials. During the second search the officers seized (among other things) a firearm and ammunition.
A federal grand jury subsequently indicted DeQuasie under 18 U.S.C. §§ 922(g)(3) and (g)(9) for illegal firearm possession by an unlawful user of a controlled substance and by a person who has been convicted of a misdemeanor crime of domestic violence. Before trial, DeQuasie moved to suppress the firearm and ammunition on the ground that those items were seized from his residence in violation of the Fourth Amendment. The district court agreed and granted the suppression motion, United States v. Dequasie,
I
At approximately 5:30 p.m. on March 18, 2002, Shawn Bandy (“Shawn”) telephoned Detective-Corporal J.L. Brown of the Fay-ette County, West Virginia, Sheriffs Office and reported that his wife, Lora Bandy (“Lora”), had been missing for several days.
Detective-Corporal Brown relayed this information to his supervisor, Detective-Corporal J.K Sizemore. Deputy M.A. Webb was then sent to meet with Shawn and complete a missing person report. Deputy Webb met with, and obtained statements from, Shawn and Shawn’s mother-in-law, Cynthia Mason (“Cynthia”), and he completed a missing person report. Shawn and Cynthia told Deputy Webb that Lora and Tiffany had willingly gone to DeQuasie’s residence, but DeQuasie was then holding Lora there against her will by using drugs to keep her in a stupor, the effect of which was to prevent her from leaving the residence. Shawn and Cynthia also told Deputy Webb that DeQuasie had threatened to kill any family members who attempted to get Lora from the residence and that Tiffany had seen a large quantity
Other than the fact that Lora was missing, it appears that all of the information that Shawn and Cynthia reported was based on what Tiffany had told them. Although it is not apparent from the record, the district court assumed that Tiffany told them this information over the telephone, see
Sometime during the evening Detective-Corporal Brown drove to DeQuasie’s residence to obtain a description of the residence for purposes of a search warrant. While there, Detective-Corporal Brown observed several unidentified people inside the residence, but he did not approach the residence.
Based on this information, Detective-Corporal Sizemore applied to a magistrate for a warrant to search DeQuasie’s residence for Lora and Tiffany.
The magistrate issued a warrant for the purpose of searching DeQuasie’s residence for Lora and Tiffany. At 10:30 p.m., Detective-Corporal Sizemore and a team of law enforcement officers executed the search warrant and found Lora and Tiffany, who were unharmed, at DeQuasie’s residence.
In his sworn affidavit and application for this warrant, Detective-Corporal Sizemore detailed (among other things) his law enforcement experience and training (including his training and knowledge of illegal drug activities) and his observations of apparent illegal drug activity during the execution of the first search warrant. Detective-Corporal Sizemore also referred to statements made by Shawn and Cynthia to Deputy Webb that Tiffany had told them that “DeQuasie had approximately $20,000.00 in cash at his residence as well as a large quantity of drugs including crack cocaine earlier in the day.” (J.A. 22). Detective-Corporal Sizemore noted that while this information could not be “judged as to reliability,” it, combined with his observations at DeQuasie’s residence, tended to confirm that DeQuasie probably had in his possession a controlled substance. (J.A. 22).
The magistrate issued the second warrant for the purpose of searching DeQua-sie’s residence for controlled substances, materials used to facilitate the use and sale of controlled substances, records pertaining to the sale of controlled substances, cash and financial information, and weapons. At 12:05 a.m., Detective-Corporal Sizemore executed the second warrant. At the beginning of this search, DeQuasie was advised of his Miranda rights, and he agreed to answer questions. DeQuasie stated that although he did smoke marijuana, he did not use cocaine and he did not have any controlled substances in his residence at that time. DeQuasie also stated that he had previously been convicted of domestic battery and that he kept a revolver concealed under his living room couch. DeQuasie denied having any knowledge of, or participation in, sales of controlled substances.
The search of DeQuasie’s residence yielded a loaded Smith and Wesson .32 Long revolver, which was found under the cushion of the living room couch; ammunition for this revolver; a battery-operated Pointscale; . a stem for a crack pipe; a roach-clip; a plastic bag containing white powder residue; a section of copper scrub pad (commonly used to make screens for crack pipes); a package of E-Z Wider rolling papers; a cell phone bill in DeQua-sie’s name; two cell phones; and $699 cash, which was concealed under a dresser drawer in DeQuasie’s bedroom. After completing the search, Detective-Corporal Sizemore arrested DeQuasie and charged him with being a prohibited person in possession of a firearm and with possession of a controlled substance. A federal grand jury subsequently indicted DeQuasie for illegal possession of the revolver.
Before trial, DeQuasie moved to suppress the revolver and the accompanying ammunition. DeQuasie argued that the magistrate issued the first search warrant without sufficient probable cause because the officers did not speak with Tiffany or independently verify statements that Shawn and Cynthia attributed to her; and because the first search warrant was invalid, the evidence seized during the second search is “fruit of the poisonous tree” and must be suppressed. DeQuasie also argued that the evidence is not admissible under the good-faith exception to the exclusionary rule set forth in United States v. Leon,
The district court granted the suppression motion and ordered that all evidence seized during the first and second searches must be excluded. Considering first the Leon good-faith exception, the district court concluded that the affidavit for the first warrant is a “bare bones” affidavit and that a “number of inconsistencies” indicate the absence of objectively reasonable law enforcement activity; consequently, the district court held that under our decision in United States v. Wilhelm,
Pursuant to 18 U.S.C. § 3731, the United States has appealed the district court’s order. The United States argues that the district court erred with respect to' both its probable cause and Leon rulings.
II
Before addressing the merits of the appeal, we must address a procedural problem created by the United States: that is, its failure to certify to the district court in a timely manner “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.” 18 U.S.C. § 3731.
This is an issue that was not raised by DeQuasie, and it only became apparent to
A.
In Hatfield, the United States filed a timely appeal from an adverse suppression ruling, but it did not file the § 3731 certificate until one week before oral argument, and several months after the appellee had moved to dismiss the appeal. The United States explained during oral argument that its failure to file the certificate initially was a “regretful oversight.”
The Hatfield panel reaffirmed the settled principle that the certification requirement of § 3731 is not jurisdictional, and it noted that “[i]n the case of a delayed filing, the appellate court may, within its discretion, hear the case despite the irregularity in the perfection of the appeal.”
The panel then applied these factors to the facts of the case:
Analyzing these factors, although all do not favor the government, we believe the equities of the case favor the • United States. It is not disputed that the government did undertake the required process to obtain permission from the Solicitor General to pursue this appeal. The attorney for the government also candidly admitted the oversight which led to the delay in filing the certification. More importantly, the issue raised on appeal is a novel legal issue and one which will further delineate the boundaries imposed by the Fourth Amendment on searches and seizures. Also weighing heavily in favor of entertaining the government’s appeal is the fact that, unlike other circuits, before today we had not yet fully explicated the importance of the certification requirement, and the grave consequences resulting from the government’s failure to timely*517 file. And finally, whatever prejudice the defendant suffered from pre-trial release, it was not substantial enough to outweigh these other factors.
Id. at 338. In light of the foregoing, the panel denied the motion to dismiss the appeal, but it also took the opportunity “to emphasize the importance of the certification requirement and to serve notice on the government that future failures to timely file will not be taken lightly.” Id.
B.
We have carefully considered the parties’ supplemental briefs and have weighed the equities of the case, and we now conclude that it is “appropriate” under Fed. R.App. 3(a)(2) to allow this appeal to continue despite the procedural irregularity. We note particularly that DeQuasie does not claim any prejudice resulting directly from the United States’ failure to certify. See In re Grand Jury Subpoena,
To be sure, we do not condone the United States’ tardiness in complying with § 3731, and we are particularly troubled by the United States’ failure to file the certificate promptly after the issue was raised in Hatfield. We are also mindful of the Hatfield panel’s admonition that “future failures to timely file will not be taken lightly.”
Ill
The Fourth Amendment guarantees “[t]he right of the people to be secure in their ... houses ... against unreasonable searches and seizures.” Under the Fourth Amendment, “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant,” and “[i]n cases in which the Fourth Amendment requires that a warrant to search be obtained, ‘probable cause’ is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness.” Camara v. Municipal Court of San Francisco,
Probable cause is "a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates,
It is well settled that probable cause may be founded upon hearsay and information received from informants. Franks v. Delaware,
Although “[t]he Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Leon,
In Leon, the Supreme Court established the good-faith exception to the exclusiom ary rule. Finding that “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule,”
The Court identified four circumstances in which the good-faith exception would not apply: (1) “if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;” (2) if “the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York,
IV
Although the evidence that is the primary subject of the suppression motion— the revolver and ammunition — was seized during the second search pursuant to the second warrant, the pertinent inquiry for us involves the first warrant. This is so for two reasons. First, DeQuasie’s only argument, and the district court’s only basis, for suppressing this evidence is that the invalidity of the first warrant tainted the second warrant. Second, the United States has not properly argued that the evidence supporting issuance of the second warrant has a source that is independent of the first search.
Without deciding whether the first warrant is supported by probable cause, we will exercise our discretion and proceed directly to consideration of the Leon exception. See Leon,
There is no evidence in the record to suggest that Detective-Corporal Sizemore “misled” the magistrate by knowingly or recklessly presenting false information, or that the magistrate “wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales.” Moreover, there is no claim that the first warrant was “so facially deficient” that the executing officers could not have reasonably presumed it to be valid. Therefore, the dispositive question is whether (as the district court found), under all the circumstances, the first affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” We believe that it is not.
A.
The district court grounded its Leon analysis on our decision in Wilhelm. In that case, a law enforcement officer ob
After finding that the search warrant was issued without probable cause, we concluded “that the good-faith exception to the exclusionary rule should not apply ... due to the ‘bare bones’ nature of the affidavit, and because the state magistrate could not have acted as other than a ‘rubber stamp’ in approving such an affidavit.” Id. at 121. In doing so, we defined a “bare bones” affidavit as “one that contains ‘wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause.’ ” Id. (quoting United States v. Laury,
We explained that the case was “not a case of ‘objectively reasonable law enforcement activity.’ ”
The district court described this case as being “nearly identical to the circumstances present in Wilhelm ” because “the only information included in Detective-Corporal Sizemore’s affidavit as to Lora’s alleged kidnaping, and Mr. DeQuasie’s alleged drug activities, came from Tiffany,” who was unknown to the officers involved and who had never provided them with information.
As we explain more fully below, the district court’s reliance on Wilhelm is misplaced for two reasons.
B.
The warrant at issue in Wilhelm was supported only by an affidavit that “depended on information from an unnamed informant, and provided no indication of that informant’s truthfulness or reliability.”
As we stated above, there is no'“simple rule” that covers all information supplied by informants. However, we have noted that because an informant who meets face-to-face with an officer provides the officer with an opportunity to assess his credibility and demeanor and also exposes himself to accountability for making a false statement, “courts have had no difficulty distinguishing between cases involving face-to-face encounters with informants and cases involving anonymous tipsters.” United States v. Christmas,
Each of these principles distinguishes this case from Wilhelm. Unlike the anonymous informant in Wilhelm, Shawn and Cynthia met face-to-face with Deputy Webb when they reported the information to him for preparation of the missing person report. In doing so, they provided Deputy Webb with an opportunity to observe their demeanor and assess their credibility, and they also exposed themselves to potential criminal liability for filing a false report. Moreover, Shawn and Cynthia (as well as Tiffany) had an obvious personal interest in Lora’s well-being and a corresponding motive to be truthful, and there is nothing in the record to suggest that Deputy Webb (or the other officers) reasonably should have doubted their credibility.
C.
We also believe the district court erred in its analogy to the “bad faith” circumstances we discussed in Wilhelm. As we noted, the district court identified “a number of inconsistencies in Detective-Corporal Sizemore’s statements that indicate the absence of an ‘objectively reasonable law enforcement activity.’ ”
First, the district court found Detective-Corporal Sizemore’s statement that Lora’s “life may be in jeopardy if she continues to stay at [DeQuasie’s] residence” to be inconsistent with the fact that officers did not “take[] action” such as knock on the door and ask to speak with Lora or inquire about her whereabouts when they observed the residence prior to seeking the warrant. Id While the officers could have taken this step before seeking the warrant, the fact that they did not does not necessarily make Detective-Corporal Sizemore’s statement “inconsistent.”
Based on the information presented to the officers, an objective law enforcement officer very reasonably could have believed, and the district court did not find otherwise, that although Lora’s life or well-being may have been in jeopardy if she continued to stay at DeQuasie’s residence, the prudent course was to seek the warrant. While it is certainly possible that an inquiry to DeQuasie by officers prior to obtaining the warrant may have resolved this matter, it is equally possible — and not unreasonable for the officers to have believed — that such an inquiry may have not only proven to be fruitless, but also may have increased the danger to Lora or to themselves.
Notwithstanding counsel’s statement that Tiffany had “returned” from DeQua-sie’s residence, there is no evidence in the record that Tiffany ever left the ' residence.
In any event, were we to consider counsel’s statement that Tiffany “returned” from DeQuasie’s residence as being supported by the facts of this case, we do not find that it' creates an inconsistency with the officers’ belief that Tiffany was in De-Quasie’s residence that night. Even if Tiffany had actually “returned” from DeQua-sie’s residence at some point in time, this simply does not establish that she could not, or did not, go back to the residence that night.
D.
The officers in this case were presented with specific information from Shawn and Cynthia that Lora was missing and being held against her will by DeQuasie in his residence, and that DeQuasie had threatened to kill any family member who attempted to rescue her. This information was reported in a face-to-face meeting with Deputy Webb, and it led to his preparation of a missing person report. No reason appears in the record to suggest that the officers had any reason to doubt the credibility of these family members.
The officers confirmed that there were people in DeQuasie’s residence, but they did not attempt to conduct a warrantless entry. Instead, Detective-Corporal Size-more presented the information the officers had gathered to a magistrate in order for the magistrate to make a probable cause determination and issue a warrant. Detective-Corporal Sizemore set forth the source of the information (including an acknowledgment of Tiffany as a source), the fact that Deputy Webb had met face-to-face with the family members, and the factual circumstances underlying Lora’s alleged captivity. He also stated under oath that he believed that Lora’s life “may be in jeopardy if she continues to stay at this residence.” Despite having information about drug activity at the residence, Detective-Corporal Sizemore did not seek authorization to search for anything other than Lora and Tiffany. The magistrate authorized the officers to conduct a limited search at DeQuasie’s residence, and there is no evidence to suggest that they exceeded the scope of the search.
Reasonable minds may differ on whether the officers could have done more investigative work before seeking the first warrant and, perhaps, whether the first affidavit was sufficient to establish probable cause for the search. We need not answer either of those questions today. The issue before us is whether, under all of the specific circumstances of this case, a reasonably well-trained officer would have known that the search for Lora and Tiffany was illegal despite the fact that the magistrate issued the warrant for that search. This requires us to determine whether Detective-Corporal Sizemore’s first affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. For all of the reasons we have set forth above, we conclude that it is not. Therefore, “application of the extreme sanction of exclusion is inappropriate.” Leon,
Based on the foregoing, we reverse the suppression order and remand this case to the district court for further proceedings.
REVERSED AND REMANDED
Notes
. Although Ms. Bandy’s name appears in the record as "Lora” and "Laura,” the district court referred to her as "Lora,” and we will do likewise.
. The district court stated that [n]o attempt was made to interview Tiffany ... prior to Detective-Corporal Sizemore's application for a search warrant,”
. Detective-Corporal Sizemore's reason for listing Tiffany as a subject of the warrant does not appear in the record.
. Detective-Corporal Sizemore also stated in his affidavit that DeQuasie is "associated with Giuseppe Wallace,” who the United States asserts in its appellate brief was recently convicted in the Southern District of West Virginia on charges of drug trafficking. The significance of this purported association is not readily apparent in the affidavit.
.It is not clear from the record whether Lora was found inside or out-side the residence, and the parties’ positions differ on this point. Compare J.A. 37 (United States' assertion that officers "found Ms. Bandy in defendant’s residence") with J.A. 64 (DeQuasie’s assertion that Lora met officers outside the residence). The record is silent on where Tiffany was found.
. Although § 3731 does not specify a time limit for the certificate to be filed, see United States v. Bookhardt,
. The Hatfield panel pointed to Rule 3(a)(2) of the Federal Rules of Appellate Procedure, which reads: "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 it is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.”
. The United States has explained in its supplemental brief that before this appeal was filed, the case was evaluated by the local United States Attorney’s Office, the Criminal Division of the Department of Justice, and the Office of the Solicitor General. We note that in a motion to continue the trial filed by the United States in the district court five days after the district court's suppression order, the United States represented that it "need[ed] additional time wherein to consider filing an appeal of the Court’s ruling on defendant's Motion to Suppress Evidence.”
. In what appears to be the only interlocutory appeal filed by this United States Attorney’s Office since this issue was raised in Hatfield, the § 3731 certificate appears to have been properly filed. See United States v. Perez, No. 04-4091 (4th Cir.) (certificate filed in the district court with the notice of appeal).
. DeQuasie concedes that the district court's suppression order is "fatal” to the United States’ case against him.
. Section 3731 requires the certificate to be filed in the district court. At least two circuits appear to require that the United States must include the certificate in the appellate record. See United States v. Becker,
. The Supreme Court has cautioned that questions of reasonableness under the Fourth Amendment must be decided on the facts and circumstances of each case, and that seldom will one determination be a useful precedent for another. Ornelas,
. Adams (as well as some other cases we cite) involves a question of reasonable suspicion rather than probable cause. We do not suggest that the reasonable suspicion standard is applicable in this case.
. In Lo-Ji Sales, a judge accompanied law enforcement officers to an adult bookstore, inspected materials inside the bookstore, determined whether each inspected item was obscene, and authorized seizure of items deemed obscene. The Supreme Court invalidated the search, finding that the judge “did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure” because he "allowed himself to become a member, if not the leader, of the search party which was essentially a police operation.”
. At oral argument, counsel for the United States (in response to questioning) asserted for the first time that the second warrant may be independently valid because the officers executing the first warrant may have observed the suspected drug activity (i.e., the odor of marijuana and the green vegetation) from outside the residence. While there is some evidence in the record that arguably supports this assertion, because of the United States' failure to raise this argument below, and the absence of a factual finding by the district court, we decline to consider it. See United States v. Moss,
. In Gates, the Supreme Court noted that a warrant affidavit "must provide the magistrate with a substantial basis for determining the existence of probable cause” and must not be "a mere conclusory statement that gives the magistrate virtually no basis at all for making [such] a judgment.”
. We have since recognized that Wilhelm’s "substantial basis” standard is improper: " 'Substantial basis' provides the measure for determination of whether probable cause exists in the first instance. If a lack of substantial basis also prevented application of the Leon objective good faith exception, the exception would be devoid of substance.” Bynum,
. We stated that "[t]he conclusion that an informant is reliable and mature based only on brief telephone conversations is dubious” and that the affidavit did not "disclose any basis for [the officer’s] conclusion that her tipster was a 'concerned citizen.’ ”
. Unlike Wilhelm, which involved a search of a residence for evidence of a drug crime, Detective-Corporal Sizemore obtained the first warrant for the purpose of searching for a missing person. While probable cause is a necessary predicate to the first search, we believe that the officers' conduct must be evaluated in the proper context. See State v. Diloreto,
. Other than speaking with Tiffany, there was not much the officers could have done to attempt to corroborate the missing person report. If the officers had attempted, but failed, to speak with Tiffany (who they correctly believed to be in DeQuasie's residence), they would have expended additional time and would have had no additional information to support the warrant. That fact aside, we note that although the district court discounted any significance of the fact that the officers had confirmed the presence of people in DeQuasie’s residence on the night in question, see
. See also Blount,
.Their personal interest stands in stark contrast to many of the potential interests of informants in drug cases and "other common garden varieties of crime.” See Jaben v. United States,
. The district court noted a third "significant inconsistency’’ that it considered not to be pertinent because it related to the second warrant: despite Detective-Corporal Size-more's observation of green vegetation that appeared to be marijuana, no green vegetation was seized during the second search.
. We have noted in the related context of a qualified immunity claim:
There are, of course, many instances where pre-arrest interviews serve to confirm or dispel suspicion and where properly conducted conversations with suspects will prove an invaluable investigatory tool. There are also numerous reasons why a reasonable police officer might choose not to interview a suspect prior to arrest. For example, an officer might legitimately fear that questioning may alert a suspect that he is a target of an investigation, enabling him to destroy evidence or flee the jurisdiction before police have established probable cause for his arrest. The decision of whether or not to interview is inescapably discretionary. ...
Torchinsky v. Siwinski,
. Counsel for the United States stated at oral argument that he had mistakenly made this assertion.
. Despite finding these purported "inconsistencies,” the district court did not make a factual finding that the officers obtained and executed the first warrant for any purpose other than to locate Lora and Tiffany or that they misstated evidence in order to obtain the second warrant. Indeed, there is no evidence in this record to support such a finding. Yet, that is precisely the theory advanced by De-Quasie:
We would argue that the. most reasonable chain of events was an officer who heard second or third-hand of a residence which contained a large quantity of drugs, $20,000.00 in cash, many weapons and scanners, and that these reports excited him to the point that he failed to verify the claims on the chance that the witness would recant. The officer then went to a Magistrate who he worked with a lot and obtained a warrant for the alleged captive despite the lack of support for the claims. When he reached the residence only to find the object of the first warrant outside and in no distress, he stretched a bit to obtain a second warrant to get to his true object, the non-existent drugs and money .
Brief of Appellee, at 14. DeQuasie made similar assertions before the district court1. See J.A. 64 ("[I]t would appear that the officers
. In seeking the second warrant, Detective-Corporal Sizemore stated that information attributed to Tiffany concerning the presence of "a large quantity of drugs” and cash in De-Quasie’s residence "cannot be judged as to reliability.” (J.A. 22). Although this candid admission (about a matter separate from Lora’s well-being) relates to the second warrant, it demonstrates that Detective-Corporal Sizemore acted forthrightly in seeking that warrant.
Dissenting Opinion
dissenting:
With respect, I dissent. Because the Government inexcusably delayed filing the certification necessary for its interlocutory appeal in this criminal case, I would dismiss the appeal.
Government appeals in criminal cases have long been regarded as “something unusual, exceptional, [and] not favored.” Carroll v. United States,
The Government’s failure to file a § 3731 certification unquestionably constitutes an irregularity in perfecting an appeal, giving an appellate court discretion to take any -appropriate action. United States v. Hatfield,
We recently considered precisely the same late certification issue, in a case arising from the same United States Attorney’s Office. Hatfield,
Moreover, in the case at hand, unlike those cases, the record reveals that the Government had specific actual notice of the certification requirement for nearly a year before it finally filed the certificate. Indeed, during the relevant fourteen-month period in which the Government never made an effort to file its § 3731 certification, it received express notification of that requirement on numerous occasions. First, in July 2003, ten months before the Government filed the certification in this case, the defendant in Hatfield (a case, as I noted above, from the same United States Attorney’s Office) moved to dismiss his appeal because of the Government’s failure to file a § 3731 certification in that case.
Despite these repeated notifications and admonitions, and the Government’s earnest assurances to us that it recognized the importance of the certification requirement, the Government still neglected to file the requisite § 3731 certification in the case at hand. It was only after we ordered the Government to submit a supplemental brief on the issue of the lack of a § 3731 certification in this case, that the Government finally complied with the requirements of that statute. Even then, it took the Government more than a week to do so.
The Government does not dispute this chronology. Moreover, it candidly admits the reason for its inordinate delay: prior to July 2003, this particular United States Attorney’s office was simply unaware that any certification requirement existed. I am not sure such institutional oversight can ever qualify as a valid excuse for the total failure to comply with § 3731. See Salisbury,
Not only is the governmental delay in filing the certificate here a good deal longer than that involved in Hatfield, and in the face of actual notice of the certification requirement not present in Hatfield, but
Nonetheless, the Government contends that we should ignore its delay and hear the present appeal because DeQuasie suffered no prejudice since he was “released from incarceration without objection by the United States, and the appeal proceeded in a normal fashion.” But, in this context, we cannot possibly define prejudice in such a narrow fashion. Otherwise, the prejudice factor would almost always weigh in the Government’s favor, and the Government would be permitted to ignore the certification requirement with impunity. Cf. Hanks,
Further, despite the Government’s current assurances that it has revised its internal procedures to comply with the certification requirement, the efficacy of the Government’s new procedures is subject to debate. After all, back in January, the Government also assured us that the “internal procedural flaw had been corrected,” yet we find ourselves in the same posture once again. But even if I were to credit fully the Government’s representations, dismissal would still be warranted because freely crediting such “[p]ost hoc certification[s] ... [would] reduce! ] the § 3731 requirement to a meaningless formality.” Hanks,
The certification requirement serves an important purpose — it “forces the prosecutor to represent that she [or he] has, in fact, thoroughly and conscientiously considered the decision to appeal” prior to filing the appeal. Salisbury,
In closing, I want to make it clear that I do not question thé integrity or ability of the United States Attorney’s Office, or the particular prosecutor, involved in this case. Both have performed admirably in other instances. But in this case the Government inexcusably erred in failing to act in a timely manner. When a defendant errs in this way — for example, in failing to