United States v. Moskowitz

U.S. COURT OF APPEALS, SECOND CIRCUIT
Appeals

New York Law Journal

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Per Curiam

Under 18 USC §3731, the government appealed a May 2012 order suppressing evidence sought to be used against Metter at trial. The government did not forensically review the evidence. On June 15, the U.S. attorney certified that "appeal is not taken for purposes of delay and that the evidence that has been ordered suppressed constitutes substantial proof of facts material in the proceeding." Metter sought the appeal's dismissal under Federal Rule of Appellate Procedure 27 for lack of jurisdiction. He argued that because the government did not review the seized evidence, the U.S. attorney's certification of substantiality and materiality lacked any basis. Discussing rulings from the Third, Seventh, Eight and Ninth circuits, the Second Circuit joined every other circuit that considered the question in holding the U.S. attorney's certification conclusively established the evidence was substantial proof of a material fact in satisfaction of §3731, and vested the circuit with jurisdiction over timely appeals from orders suppressing evidence. However, it emphasized that certification is not to be treated as no more than an "administrative formality," and expected the government to "carefully analyze the case before deciding to appeal."

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