Professional Documents
Culture Documents
2001)
The government appeals from the Decision and Order of the United States
District Court for the Western District of New York, rendered orally on
July 5, 2000, by Judge William M. Skretny, adopting the Report and
Recommendation of the Honorable Carol E. Heckman, United States
Magistrate Judge, Western District of New York, which recommended
granting Romaszko's motion to suppress statements.
AFFIRM.
Marc Gromis, Assistant United States Attorney, Buffalo, NY (Denise E.
O'Donnell, United States Attorney, Western District of New York,
MaryEllen Kresse, Assistant United States Attorney, on the brief), for
Appellant.
David R. Alderman, Alderman & Marszalkowski, P.C., Buffalo, New
York, for Appellee.
Before: Meskill, Parker, and Katzmann, Circuit Judges.
PER CURIAM:
The government appeals from the Decision and Order of the United States
District Court for the Western District of New York, rendered orally on July 5,
2000, by Judge William M. Skretny, adopting the Report and Recommendation
of the Honorable Carol E. Heckman, United States Magistrate Judge, Western
The government argues that the district court's order should be reversed
because it failed to: (1) find at what point the interview became custodial; (2)
consider relevant factors for determining custody which would have required a
finding that Romaszko was not in custody; and (3) properly analyze the factors
it did consider. Defendant-appellee responds that this Court lacks appellate
jurisdiction due to the government's failure to file timely a certificate pursuant
to 18 U.S.C. 3731. Further, defendant-appellee asserts that the suppression
motion was properly granted.
I. BACKGROUND
during the meeting, the lead investigator told Romaszko, "No, you're not going
anywhere"; (7) Romaszko was not advised of her Miranda rights; and (8)
during the course of the interview, Romaszko was asked if she had taken
money from the Post Office, and she stated that she had not. On the basis of
this statement, Romaszko was charged with a felony under 18 U.S.C. 1001(a)
(2).
II. DISCUSSION
A. Appellate Jurisdiction is Proper
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We turn first to the jurisdictional question. This court has appellate jurisdiction
pursuant to 18 U.S.C. 3731 to review an order of a district court suppressing
evidence. Section 3731 requires that the appeal in such cases shall be taken
within thirty days after the decision, judgment or order has been rendered. The
district court rendered a decision adopting the Magistrate Judge's Report and
Recommendation on July 5, 2000. The government timely filed its notice of
appeal on August 4, 2000.
Section 3731 further requires that the United States Attorney certify to the
district court that an interlocutory appeal is not taken for purpose of delay and
that the evidence is a substantial proof of fact material in the proceeding. The
government acknowledges that prior to receipt of defendant-appellee's brief in
this action, a certification in keeping with section 3731 had not been filed. On
November 27, 2000, however, the United States Attorney filed a certification
which complied with section 3731.
We hold that the late filing of the certificate does not preclude jurisdiction but
does permit a court to exercise its discretion under Fed. R. App. P. 3(a) to
dismiss the appeal. The purpose of the certification requirement is to ensure
that the prosecutor carefully analyzed the case before deciding to appeal. See
United States v. Salisbury, 158 F.3d 1204, 1207 (11th Cir. 1998). In this case,
our decision to exercise our discretion and address the merits of the appeal is
justified because the Solicitor General authorized the appeal. This authorization
likely ensures that the purposes of section 3731 were met. In addition,
defendant-appellee does not allege any prejudice resulting from the
government's failure to file timely a section 3731 certification, and there does
not appear to be any prejudice resulting from the belated filing.
(informal oral notification to trial court and defense counsel sufficient to satisfy
section 3731 certification requirements); United States v. Flores, 538 F.2d 939,
942-43 (2d Cir. 1976) (liberally construing section 3731's time limits for filing
appeal).
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The district court's factual findings on a custody issue are reviewed for clear
error, see United States v. Kirsh, 54 F.3d 1062, 1067 (2d Cir. 1995), and its
legal conclusions are reviewed de novo, see United States v. Ali, 86 F.3d 275,
276 (2d Cir. 1996).
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Second, the government cites no case that requires the court to consider all of
the factors listed by the government. The court must consider factors relevant
to "how a reasonable [person] in the suspect's position would have understood
[the] situation," which is precisely what the district court did. Tankleff, 135
F.3d at 243 (quotation marks omitted).
15
Finally, the district court's findings were not clearly erroneous. The defendant
was ordered into a room and told on at least five occasions she could not leave.
III. CONCLUSION
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For the reasons set forth above, the Decision and Order of the district court is
AFFIRMED.