United States v. Metter

12-2423
United States v. Metter
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2012 3
(Submitted: November 27, 2012 Decided: December 27, 2012) 4
Docket No. 12-2423-cr 5
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UNITED STATES OF AMERICA, 7
Appellant, 8
- v - 9
STEVEN MOSKOWITZ, ANDREW TEPFER, aka AVI, SEYMOUR EISENBERG, aka 10
JIMMY, GEORGE SPERANZA, THOMAS CAVANAGH, FRANK NICOLOIS, 11
Defendants, 12
MICHAEL METTER, 13
Defendant-Appellee. 14
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Before: SACK, CHIN, and LOHIER, Circuit Judges. 16
Defendant-appellee Michael Metter has made a motion 17
pursuant to Federal Rule of Appellate Procedure 27 and Local Rule 18
27.1 to dismiss for want of appellate jurisdiction the 19
government's appeal from an order of the United States District 20
Court for the Eastern District of New York (Dora L. Irizarry, 21
Judge) suppressing evidence sought to be employed in a criminal 22
trial in which Metter is a defendant. Metter contends that 23
despite the U.S. Attorney's certification in accordance with 18 24
U.S.C. § 3731 "that the appeal is not taken for purposes of delay 25
and that the evidence that has been ordered suppressed 26

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2
constitutes substantial proof of facts material in the 1
proceeding," the government has not in fact satisfied section 2
3731's requirements. We join every circuit to have considered 3
the issue in concluding that the U.S. Attorney's certification 4
conclusively establishes that the evidence is a substantial proof 5
of a material fact in satisfaction of section 3731. We therefore 6
deny the defendant's motion to dismiss this appeal. 7
Maranda E. Fritz, Hinshaw & Culbertson 8
LLP, New York, NY, for Defendant- 9
Appellee. 10
David C. James, Roger Burlingame, Nathan 11
Reilly, for Loretta E. Lynch, United 12
States Attorney for the Eastern District 13
of New York, Brooklyn, NY, for 14
Appellant. 15
PER CURIAM : 16
Defendant-Appellee Michael Metter moves pursuant to 17
Federal Rule of Appellate Procedure 27 and Local Rule 27.1 to 18
dismiss the government's interlocutory appeal from an order of 19
the United States District Court for the Eastern District of New 20
York (Dora L. Irizarry, Judge) suppressing certain evidence in 21
connection with a criminal trial in which Metter is a defendant. 22
He maintains that we are without jurisdiction over the appeal. 23
We conclude that we have jurisdiction under paragraph two of 18 24
U.S.C. § 3731. Metter's motion is denied. He is directed to 25
file a scheduling notification proposing a deadline for his brief 26
on the merits. See Local Rule 31.2. 27

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3
BACKGROUND 1
On October 14, 2010, a grand jury sitting in the 2
Eastern District of New York returned a superseding indictment 3
against Metter and six codefendants. The indictment alleged that 4
Metter had participated in a fraudulent scheme related to 5
transactions in the common stock of Spongetech Delivery Systems, 6
Inc. ("Spongetech"), a corporation of which Metter was, at all 7
relevant times, the president and chief executive officer. 8
In May and November 2010, the government secured 9
warrants to seize computers from Spongetech's offices and 10
Metter's home, and data from Metter's personal email account. 11
All told, law enforcement recovered the contents of sixty-one 12
Spongetech hard drives, including Spongetech's email server, the 13
contents of four of Metter's personal hard drives, and a 14
"snapshot" of activity on Metter's email account (collectively, 15
the "Seized Materials"). But the government did not promptly 16
conduct a forensic review of the Seized Materials. 17
On May 25, 2011, Metter filed a motion to suppress the 18
Seized Materials. He argued, in relevant part, that the 19
government's delay in conducting a forensic review constituted an 20
unreasonable execution of the warrants that authorized seizure of 21
that evidence, in contravention of the Fourth Amendment. The 22
government conceded that it had yet to review the Seized 23
Materials, but it argued that its delay was not "unreasonable." 24
The district court sided with Metter, granting his motion and 25

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ordering blanket suppression of the Seized Materials. United 1
States v. Metter, 860 F. Supp. 2d 205, 216 (E.D.N.Y. 2012). 2
The government immediately appealed, asserting 3
appellate jurisdiction under 18 U.S.C. § 3731. 4
DISCUSSION 5
Section 3731 of Title 18 of the United States Code, 6
authorizes, in certain circumstances, interlocutory appeals by 7
the United States from district court orders in criminal cases. 8
Relevant here is the second paragraph of section 3731, which 9
provides: 10
An appeal by the United States shall lie to a 11
court of appeals from a decision or order of 12
a district court suppressing or excluding 13
evidence or requiring the return of seized 14
property in a criminal proceeding, not made 15
after the defendant has been put in jeopardy 16
and before the verdict or finding on an 17
indictment or information, if the United 18
States attorney certifies to the district 19
court that the appeal is not taken for 20
purpose of delay and that the evidence is a 21
substantial proof of a fact material in the 22
proceeding. 23
18 U.S.C. § 3731. 24
Paragraph two thus appears to provide three 25
requirements for appealability: "[t]here was an order of a 26
district court excluding evidence; a United States attorney filed 27
the proper certification; and the appeal was taken within 30 28
days." United States v. Helstoski, 442 U.S. 477, 487 n.6 (1979). 29
It is undisputed that the government has satisfied these 30
requirements here: the district court issued a May 17, 2012 order 31

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suppressing the Seized Materials; on June 15, 2012, Loretta E. 1
Lynch, the U.S. Attorney for the Eastern District of New York, 2
certified to the district court that the "appeal is not taken for 3
purposes of delay and that the evidence that has been ordered 4
suppressed constitutes substantial proof of facts material in the 5
proceeding"; and the government filed a notice of appeal the same 6
day, within 30 days of the district court's order. 7
Yet Metter maintains that we lack jurisdiction. He 8
contests the U.S. Attorney's certification that the Seized 9
Materials are "substantial proof of facts material in the 10
proceeding." The government, he argues, represented several 11
times in the proceedings before the district court that it had 12
not yet conducted a review of the Seized Materials -- indeed, 13
this was the basis for Metter's suppression motion. And because 14
the government did not review the Seized Materials, he continues, 15
the U.S. Attorney had no basis upon which to rest her 16
certification of substantiality and materiality. 17
The government argues in reply that the U.S. Attorney's 18
certification should be treated as conclusive under section 3731 19
as to whether the suppressed evidence is a "substantial proof of 20
a fact material in the proceeding." It argues, in other words, 21
that our jurisdictional inquiry begins and ends with timely 22
filing of the certification itself –- we thus need not look 23
behind the certification to determine its veracity or 24
correctness, and an appellee may not move to dismiss an appeal on 25
the basis that the certification is untrue or incorrect. 26

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Although we have yet to hold as much, every circuit to 1
have considered the question has reached the conclusion urged by 2
the government. In re Grand Jury Investigation, 599 F.2d 1224, 3
1226 (3d Cir. 1979) ("The district court having received this 4
certification, we are not required by section 3731 to evaluate 5
independently the substantiality or the materiality of the 6
contested material."); United States v. Centracchio, 236 F.3d 7
812, 813 (7th Cir. 2001) ("We therefore treat as conclusive of 8
our jurisdiction over a Paragraph 2 appeal the submission of the 9
certification required by the statute."); United States v. 10
Johnson, 228 F.3d 920, 924 (8th Cir. 2000) ("[W]e need not 11
examine whether [the suppressed evidence] would actually be 12
substantial proof of a material fact. The government has so 13
certified; that suffices."); United States v. W.R. Grace, 526 14
F.3d 499, 506 (9th Cir. 2008) (en banc) ("[W]e now hold that a 15
certification by a United States Attorney . . . that the appeal 16
is not taken for the purpose of delay and that the evidence is 17
substantial proof of a fact material in the proceeding is 18
sufficient for purposes of establishing our jurisdiction under 19
§ 3731."), overruling United States v. Loud Hawk, 628 F.2d 1139, 20
1150 (9th Cir. 1979). We now join our sister circuits in this 21
regard. 22
We are persuaded that for purposes of section 3731, the 23
U.S. Attorney's timely certification is conclusive as to whether 24
the suppressed evidence is substantial proof of a material fact. 25
We begin with section 3731's text, which "shall be liberally 26

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construed to effectuate its purposes." 18 U.S.C § 3731. 1
Semantically, section 3731 provides that jurisdiction "shall 2
lie . . . if the United States attorney certifies . . . that the 3
appeal is not taken for purpose of delay and that the evidence is 4
a substantial proof of a fact material in the proceeding." Id. 5
(emphases added). We see nothing in that language to establish 6
that the government is also required to prove either or both of 7
what we read as parallel requirements -- "not taken for purpose 8
of delay" and "substantial proof of a fact material in the 9
proceeding" -- and decline to impose such an obstacle absent even 10
a hint to that effect from the statutory text. See Johnson, 228 11
F.3d at 923-24; W.R. Grace, 526 F.3d at 505; see also Helstoski, 12
442 U.S. at 487 n.6 ("[T]he purpose of [§ 3731] was to remove all 13
statutory barriers to Government appeals . . . ." (quotation 14
marks omitted)). 15
Viewing the issue from our own perspective, moreover, 16
we think a contrary rule too impracticable to be what Congress 17
intended. As the Seventh Circuit put it, "Paragraph 2 appeals 18
are usually from orders suppressing or excluding evidence, and 19
there is no basis on which, in advance of trial, we could 20
determine that the evidence that the government wished to use was 21
so unimportant to any rational prosecutorial strategy that the 22
appeal was frivolous." Centracchio, 236 F.3d at 813. 23
We emphasize, as did the Ninth Circuit, that "we are 24
not diluting a standard implicit in the certification 25
requirement." W.R. Grace, 526 F.3d at 507. Certification is not 26

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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
to be treated as no more than an "administrative formality." Id. 1
at 508. So, although we agree that "since the Solicitor General 2
must in any event approve federal government appeals, there is no 3
significant danger that the appeal will be frivolous," 4
Centracchio, 236 F.3d at 813, we nevertheless reiterate our 5
expectation that the government will "carefully analyze[] the 6
case before deciding to appeal," United States v. Romaszko, 253 7
F.3d 757, 760 (2d Cir. 2001). While we are confident that the 8
U.S. Attorney will carry out her certification responsibilities 9
in good faith, we note that our power to impose direct sanctions 10
is a sufficient guarantor that the government will not overstep 11
itself in this regard. 1 See W.R. Grace, 526 F.3d at 507. 12
We conclude that the U.S. Attorney's certification that 13
"the evidence is a substantial proof of a fact material in the 14
proceeding" is conclusive of that issue for purposes of section 15
3731, and is therefore alone sufficient to vest us with 16
jurisdiction under section 3731 of timely appeals from orders 17

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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.
9
suppressing evidence. 2 Because the requirements of section 3731 1
are satisfied here, we have jurisdiction over this appeal. 2
We have considered Metter's remaining contentions and 3
find them to be without merit. 3 Metter's motion to dismiss the 4
appeal is denied. He is directed to file a scheduling 5
notification proposing a deadline for the filing of his brief on 6
the merits. See Local Rule 31.2. 7
CONCLUSION 8
For the foregoing reasons, Metter's motion to dismiss 9
the appeal for want of appellate jurisdiction is denied. He is 10
directed to file forthwith a scheduling notification proposing a 11
deadline for the filing of his brief on the merits. See Local 12
Rule 31.2. 13

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