# United States v. Timothy Dequasie

> Court of Appeals for the Fourth Circuit · July 1, 2004 · 373 F.3d 509

URL: https://www.frixlaw.com/law-library/cases/9497113

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. Timothy DEQUASIE, Defendant-Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** July 1, 2004
- **Citations:** 373 F.3d 509; 2004 U.S. App. LEXIS 13625; 2004 WL 1470591
- **Precedential status:** Published
- **Opinion:** Dissent by Motz
- **Judges:** Williams, Motz, Shedd
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9497113

## How later opinions describe it (automated extraction)

- holding that Leon exception was applicable where two informants told police in a face-to-face meeting that a family member, Lora, was being held captive at the defendant’s residence,' where the informants’ only source of this information was Lora’s sister Tiffany,' who accompa…
- recognizing that informant's "obvious personal interest in [the victim’s] well-being” supplied "a corresponding motive to be truthful”
- noting that “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”
- recognizing that informant's "obvious personal interest in [the *469 victim’s] well-being” supplied "a corresponding motive to be truthful”
- stating that the Supreme Court adopted the exclusionary rule even though the Fourth Amendment does not expressly contain such a provision

## Opinion text

DIANA GRIBBON MOTZ, Circuit Judge,
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, 354 U.S. 394, 400 , 77 S.Ct. 1332 , 1 L.Ed.2d 1442 (1957). However, in 18 U.S.C. § 3731 (2000), Congress has provided the United States with the right to file an interlocutory appeal of an order suppressing evidence in a criminal case “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.” Id. (emphasis added). Here, the Government expressly relied on § 3731 to establish jurisdiction in this court, but failed to comply with that statute’s clear directive. Not only did the Government fail to file the requisite § 3731 certification prior to, or concurrent with, its notice of appeal, but it failed to file the certification for more than a year afterwards, in the meantime ignoring notice from this court that certifications must be timely filed. Indeed, the Government waited fourteen months after filing its notice of appeal to finally comply with the statute. It did so then only after this court intervened, ordering the parties to file supplemental briefs on the effect of the Government’s failure to file the certification.
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, 365 F.3d 332, 337 (4th Cir.2004); see also Fed. R.App. P. 3(a)(2). Although not a defect depriving an appellate court of jurisdiction, id., noncompliance with § 3731 is viewed with disfavor. Accordingly, courts have readily dismissed appeals in which the Government has failed to file a prompt certification with the district court. See, e.g., United States v. Salisbury, 158 F.3d 1204, 1207 (11th Cir.1998); United States v. Carrillo-Bernal, 58 F.3d 1490, 1493-97 (10th Cir.1995); United States v. Hanks, 24 F.3d 1235, 1238 (10th Cir.1994); United States v. Miller, 952 F.2d 866, 875-76 (5th Cir.1992).
We recently considered precisely the same late certification issue, in a case arising from the same United States Attorney’s Office. Hatfield, 365 F.3d at 337-38 . After weighing the equities in Hatfield , we concluded that the “novel legal issue” presented and the fact that we had never before “fully explicated the importance of the certification requirement,, and the grave consequences resulting from the [G]overnment’s failure to timely file,” weighed in favor of hearing the case despite the untimely, filing. Id. at 338 . However, we unequivocally warned the Government that “future failures to timely file will not be taken lightly.” Id. Despite this admonition, the majority, while claiming that it does not “condone the United States’ tardiness in complying with § 3731,” ante at 517, nevertheless deems it “appropriate” to consider the merits of this appeal. Id. at 517. Because the equities in the case at hand favor dismissal, and because words unaccompanied by any meaningful consequences become empty rhetoric, I must respectfully dissent.
*528 The strongest factor weighing in favor of dismissal is, of course, the extraordinary and inexcusable lapse of time between the filing of the notice of appeal and the filing of the certification. The district court granted DeQuasie’s suppression motion on February 20, 2003, and the Government noted an appeal of that order on March 19, 2003; yet, the Government did not file its certification with the district court until May 4, 200k Our sister circuits have dismissed appeals when the Government’s delay was considerably less egregious. See, e.g., Salisbury, 158 F.3d at 1207 (certification filed one month after notice of appeal); Carrillo-Bernal, 58 F.3d at 1491-92 (filed notice of appeal on July 19, 1994, and filed certification on August 26, 1994); Hanks, 24 F.3d at 1237 (certification filed two and one-half months after notice of appeal).
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. 365 F.3d at 337 . Then, in early January 2004, this court issued a supplemental briefing order in Hatfield , specifically alerting the Government to the consequences of its failure to file § 3731 certifications. And, in late January, during oral argument in Hatfield , we yet again drew the Government’s attention to the certification requirement. Further, the Hatfield opinion, which issued on April 23, 2004, discussed § 3731 certifications and, as detailed above, warned the Government of the consequences of its failure to file certifications in the future.
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, 158 F.3d at 1207 (“Simple negligence ... cannot excuse noncompliance with the express mandate of the statute”); see also United States v. Smith, 263 F.3d 571, 578 (6th Cir.2001) (same). But even if such institutional errors could excuse the Government’s failure prior to July 2003— when the Government acknowledges the Hatfield case put it on actual notice as to this requirement — surely it cannot explain the Government’s continued failure to file the certificate during the subsequent ten-month period.
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 *529 also this appeal, unlike Hatfield , utterly fails to present “a novel legal issue.” Hatfield, 365 F.3d at 337-38 . In Hatfield , we addressed an important question involving application of the “knock and announce” rule that needed appellate clarification. Id. at 338-41 . Conversely, the appeal at hand merely requires application of well-established principles as to the validity of a warrant and the good faith exception to the facts of this case. In this fact-bound area of the law, “[n]o single case such as this one can make any material incremental contribution to the law of suppression.” Carrillo-Bernal, 58 F.3d at 1496 .
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. C f. Hanks, 24 F.3d at 1238 n. 1 (explaining that the certification “requirement would lose meaning if we excuse late performance on the ground that harm is incurable at that point”). Moreover, although DeQuasie may not have been imprisoned during the pendency of his appeal, his liberty was significantly restricted: DeQuasie was subject to home confinement for seven months after the Government filed its notice of appeal, and although he is no longer subject to home confinement or electronic monitoring, he still must comply with other conditions of bond. Salisbury, 158 F.3d at 1207 ([P]retrial release is still a deprivation of liberty and the burden of an impending trial weighs heavy on the mind of the accused.”); Hanks, 24 F.3d at 1238 .
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, 24 F.3d at 1239 .
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, 158 F.3d at 1207 . This purpose is soundly defeated by the “perfunctory filing of the certificate after the appeal has been doeketed[,] briefed,” and argued to this court. Miller, 952 F.2d at 875 . For the certification requirement to have any real meaning, we must be willing to go beyond hollow admonitions and hold the Government to its statutory obligation. In Hatfield , we expressly put the Government on notice that we intended to vigorously enforce the certification requirement. This is the appropriate time to breathe life into our warning and dismiss the Government’s appeal.
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 *530 timely raise a suppression claim — we do not hesitate to impose on him the consequences of that error. See, e.g., United States v. Ruhe, 191 F.3d 376, 385-87 (4th Cir.1999). Simple justice requires us to treat the Government in the same fashion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497113. Public record. Not legal advice.