                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                FEB 3 2003
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellant,
                                                            No. 01-2371
 v.
                                                       D.C. No. CR-01-697 LH
                                                          (D. New Mexico)
 VICTOR VEGA,

               Defendant - Appellee.


                              ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, ALDISERT, Senior Circuit Judge,** and
McWILLIAMS, Senior Circuit Judge.


      On June 7, 2001, Victor Vega (“Vega”) was charged in a two count indictment

filed in the United States District Court for the District of New Mexico as follows: Count

1, with conspiring with others on or about February 27, 2001, to possess and distribute

more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; in Count 2, with

possession on or about February 27, 2001, with an intent to distribute more than 100


      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

       Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court of
      **

Appeals, Third Circuit, sitting by designation.
kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(3)

and 18 U.S.C. § 2. Prior to trial, Vega filed a motion to suppress the marijuana found by

the use of a fiber optic gas tank scope in the gas tank of the car he was driving when he

was stopped on February 27, 2001, by Beau Johnston, a New Mexico State Police Officer

near Deming, New Mexico, for making an illegal turn. At a hearing on the motion to

suppress, Officer Johnston was examined and cross-examined at length concerning the

stopping of the vehicle Vega was driving and the facts and circumstances leading up to

the discovery of marijuana hidden in the car’s gas tank. Thereafter, the district court, on

August 9, 2001, granted Vega’s motion to suppress, concluding that after Vega was

issued a traffic citation, he was unlawfully detained for further questioning in violation of

his Fourth Amendment rights.

       On September 4, 2001, the government filed a motion to reconsider, asserting that,

even if the continued detention of Vega after the officer had given him a ticket violated

Vega’s Fourth Amendment rights, Vega thereafter voluntarily gave consent to search his

vehicle. After a further hearing was held on November 13, 2001, at which time Officer

Johnston again testified, the district court denied the government’s motion to reconsider,

holding that “when a consensual search is preceded by a Fourth Amendment violation,

the government must prove not only the voluntariness of the consent under the totality of

the circumstances, but the government must also establish a break in the causal

connection between the illegality and the evidence thereby obtained,” and that the


                                            -2-
government had failed to discharge its “heavy burden of showing that the primary taint of

the violation was purged.”

       The government filed a timely notice of appeal pursuant to 18 U.S.C. § 3731 on

December 17, 2001. However, the government did not certify to the district court that the

“appeal is not taken for the purpose of delay and that the evidence is a substantial proof of

a fact material in the proceeding,” as required by 18 U.S.C. § 3731.

       On January 11, 2002, this Court tolled briefing on the merits and ordered counsel

to file within 21 days memorandum briefs addressing the question of “[w]hether Plaintiff

United States of America has complied with the certificate requirement set forth in 18

U.S.C. § 3731? See United States v. Carrillo-Bernal, 58 F.3d 1490, 1492-93 (10th Cir.

1995); United States v. Hanks, 24 F.3d 1235, 1238-39 (10th Cir. 1994).”1

       In response to our order to show cause, the government on January 22, 2002, filed

in this court a “Motion to Permit Filing of Certificate Required by 18 U.S.C. § 3731 Out

of Time” and counsel for Vega on January 31, 2002, filed with us a “Memorandum Brief

in Support of Dismissal of Appeal for Violation of 18 U.S.C. § 3731.” By our order of

March 28, 2002, we reserved judgment on the certification matter, and ordered that

briefing on the merits proceed. The case was orally argued on September 27, 2002.

       18 U.S.C. § 3731 reads as follows:



       1
         In both of these cases we dismissed the appeal because of the failure to comply
with the certificate requirement of 18 U.S.C. § 3731.

                                            -3-
              § 3731. Appeal by United States
                      ....
                     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.
                     The appeal in all such cases shall be taken within thirty
              days after the decision, judgment, or order has been rendered
              and shall be diligently prosecuted.
                     The provisions of this section shall be liberally
              construed to effectuate its purposes.

       We have held that a failure to file a timely certification pursuant to 18 U.S.C. §

3731 with the trial court does not deprive this court of jurisdiction to hear an appeal.

United States v. Hanks, 24 F.3d 1235, 1237 (10th Cir. 1994). However, in United States

v. Carrillo-Bernal, 58 F.3d 1490, 1492 (10th Cir. 1995) we said that though we have

jurisdiction when there is an untimely certification, the relevant inquiry thereafter is

whether “the reviewing court should exercise its discretion to entertain the appeal in light

of such defect, as provided by Fed. R. App. P. 3(a).” That rule reads as follows:

              Rule 3. Appeal as of Right–How Taken
                 (a) Filling the Notice of Appeal
                                     ....
                     (2) 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 is ground only for the court of
              appeals to act as it considers appropriate, including dismissing

                                             -4-
              the appeal.

       As stated, the government filed no “response,” as such, to our show cause order of

January 11, 2002. Apparently in lieu thereof, the government on January 22, 2002, filed

in this Court a “Motion to Permit Filing of Certificate Required by 18 U.S.C. § 3731 Out

of Time,” accompanied by a certificate and an affidavit of an Assistant United States

Attorney for the District of New Mexico. In that motion counsel argues that we have “the

authority to excuse the untimely filing of a section 3731 certification and should do so in

this case,” citing Carrillo-Bernal, 58 F.3d 1490. In support of its argument that in the

exercise of our discretion we should excuse the government’s untimely tender of a

certificate, counsel identifies the following factors to be considered: (1) the government is

seeking to file the certification required by 18 U.S.C. § 3731 only 30 days after the notice

of appeal was filed (in this regard, we note that the government’s untimely request to

certify was filed in this Court only after our order that the parties brief the jurisdictional

issue posed by 18 U.S.C. § 3731) ; (2) Vega is not confined, but on release; (3) this was

the first notice of appeal filed by the Assistant United States Attorney who had initial

responsibility for the instant case and “he did not know that the certificate was required;”

(4) the appeal raises important legal issues; and (5) the government is “keenly aware that

section 3731 should be, and is, taken seriously by every Department of Justice attorney

who has any responsibility in handling interlocutory appeals by the United States in a

criminal case.”


                                              -5-
       The certificate accompanying the aforementioned motion simply stated that the

“appeal was not taken for the purpose of delay and that the evidence suppressed or

excluded is a substantial proof of a fact material in the proceeding.” The affidavit in

support of the government’s motion and tendered certificate was made by another

Assistant United States Attorney in the District of New Mexico who outlined the

procedure followed by that office when a district court has made a decision contrary to

the position taken by the United States and for which “the United States has a statutory

right to seek appellate review under 18 U.S.C. § 3731.” The affidavit concludes with the

statement that the notice of appeal filed in the instant case was the first notice of appeal

ever filed by that particular assistant and “he did not include the certification required by

18 U.S.C. § 3731 on the notice of appeal.”

       Our reading of Hanks and Carrillo-Bernal, leads us to conclude that the

government’s appeal in the instant case should be dismissed for about the same reasons

we dismissed the appeals in those cases. There are factual similarities between those

cases and the instant one, and, admittedly, some dissimilarities. No two cases are

completely alike. However, in our view, the dissimilarities are insufficient to take the

instant case out from under Hanks and Carrillo-Bernal, and it is on that basis we dismiss

this appeal. The “excuse” offered in the present case for the untimely certificate is that

this was “the first notice of appeal that he [the Assistant United States Attorney having

initial responsibility of the case] had ever filed.” In Carrillo-Bernal, the excuse offered


                                             -6-
for the untimely certificate was “the regrettable by-product of a busy office,” and in

Hanks, the government offered no explanation for its delay in filing the certificate.2 In


       2
         For a detailed “historical perspective” of 18 U.S.C. § 3731, see Carrillo-Bernal.
From that case we learn that the so-called “competing interests” behind § 3731 are, on the
one hand, the government’s understandable interest in having an interlocutory appeal, for
example, of a district courts’ pre-trial order granting a motion to suppress, where the
suppressed evidence jettisons the government’s entire case, and, on the other hand a
defendant’s Sixth Amendment right to a speedy trial. An interlocutory appeal necessarily
delays final disposition of a criminal proceeding. The certification requirement of § 3731
is intended to prevent the government from taking frivolous interlocutory appeals, thus
eliminating, at least in some instances, the delay occasioned the defendant. In Carrillo-
Bernal, we quoted the following from Arizona v. Manypenny, 451 U.S. 232, 246 (1981),
which examined the competing interests that underlie the presumption against
government criminal appeals:

       Both prudential and constitutional interests contributed to this tradition.
       The need to restrict appeals by the prosecutor reflected a prudential concern
       that individuals should be free from the harassment and vexation of
       unbounded litigation by the sovereign. This concern also underlies the
       constitutional ban against double jeopardy, which bars an appeal by the
       prosecutor following a jury verdict of acquittal. In general, both concerns
       translate into the presumption that the prosecution lacks appellate authority
       absent express legislative authorization to the contrary.

Carrillo-Bernal, 58 F.3d at 1494.

       As concerns the “prejudice” to a defendant occasioned by an interlocutory appeal
by the government in a criminal case, in Hanks, we spoke as follows:

       The circumstances surrounding the instant case lead us to dismiss the
       government’s appeal. Admittedly, the delay in filing the certificate with the
       district court in this case, two and one-half months, was less than that in
       Becker or Miller. Further, Hanks has been out on bond during this time.
       Nevertheless, the government’s appeal has delayed final resolution of this
       case, which we do not doubt weighs heavily on the defendant’s mind, even
       though he is free on bond. United States v. Loud Hawk, 474 U.S. 302, 311
       (1986) (“The speedy trial guarantee is designed to minimize the possibility

                                            -7-
this case, the excuse is understandable but cannot be controlling.

       Appeal dismissed.



                                                   ENTERED FOR THE COURT

                                                   Robert H. McWilliams
                                                   Senior Circuit Judge




       of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless
       substantial, impairment of liberty imposed on an accused while released on
       bail, and to shorten the disruption of life caused by arrest and the presence
       of unresolved criminal charges.”) (quoting United States v. MacDonald,
       456 U.S. 1,8 (1982)).

United States v. Hanks, 24 F.3d at 1238.

                                             -8-
