United States v. Centracchio, Anthony

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3963
United States of America,
Plaintiff-Appellant,
v.
Anthony T. Centracchio, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 325--Robert W. Gettleman, Judge.
Submitted October 27, 2000--Decided October 27, 2000/*
Opinion January 11, 2001
Before Posner, Easterbrook, and Manion, Circuit
Judges.
Posner, Circuit Judge. The government in this
pending criminal case has appealed as is its
right from an order by the district judge
excluding certain evidence that the government
wanted to present at trial. 18 U.S.C. sec. 3731.
Believing that the judge intended to go ahead and
select (though not swear in) the jury despite the
pendency of the appeal, the government has filed
a motion with this court to stay the judge’s hand
till the appeal is resolved. We have granted the
motion and now explain our reasoning. As a
preliminary matter, we note with disapproval the
defendants’ motion to dismiss the appeal. Section
3731 requires, in appeals authorized by the
second paragraph of the section, as this one is,
that the U.S. Attorney certify that the appeal is
substantial and not taken for purposes of delay.
The U.S. Attorney did so certify, and since the
Solicitor General must in any event approve
federal government appeals, there is no
significant danger that the appeal will be
frivolous, warranting dismissal rather than
disposition on the merits (affirmance or
reversal). Furthermore, Paragraph 2 appeals are
usually from orders suppressing or excluding
evidence, and there is no basis on which, in
advance of trial, we could determine that the
evidence that the government wished to use was so
unimportant to any rational prosecutorial
strategy that the appeal was frivolous. We
therefore treat as conclusive of our jurisdiction
over a Paragraph 2 appeal the submission of the
certification required by the statute. That is
the view of this court, and of the other circuits
except the Ninth. United States v. Jarrett, 133
F.3d 519, 539 (7th Cir. 1998); United States v.
Comisky, 460 F.2d 1293, 1297-98 (7th Cir. 1972);
United States v. Johnson, 228 F.3d 920, 923-24
(8th Cir. 2000); United States v. Kepner, 843
F.2d 755, 761 (3d Cir. 1988); contra, United
States v. Loud Hawk, 628 F.2d 1139, 1150 (9th
Cir. 1979) (en banc); United States v. Adrian,
978 F.2d 486, 490 (9th Cir. 1992); United States
v. Poulsen, 41 F.3d 1330, 1333-34 (9th Cir.
1994).
The government argues that the filing of a
notice of appeal automatically divests the trial
court of jurisdiction over the case, but this is
overbroad. As we explained in United States v.
Ienco, 126 F.3d 1016, 1018 (7th Cir. 1997), "the
general rule, and it is applicable to appeals
under section 3731, is that an appeal transfers
jurisdiction from the district court to the court
of appeals, so that the two courts will not be
stepping on each other’s toes. (For the general
rule, see Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74
L.Ed.2d 225 (1982) (per curiam), and for its
application to appeals under section 3731 see
United States v. Tovar-Rico, 61 F.3d 1529, 1532
(11th Cir. 1995).) There are exceptions, however,
for situations in which the danger of such a
collision is remote, as when the only issue for
decision in the trial court is a motion for
attorneys’ fees. For a list of examples see Kusay
v. United States, 62 F.3d 192, 194 (7th Cir.
1995). Since the right to appeal conferred by
section 3731 is pinpointed on particular
evidentiary rulings, there will be many cases in
which the taking of the appeal will not require
the district court to relinquish jurisdiction;
that court will be able to continue getting the
case ready for trial." See also Apostol v.
Gallion, 870 F.2d 1335, 1337-38 (7th Cir. 1989).
Section 3731 requires the government, in appeals
based on the second paragraph of the section
(appeals from orders "suppressing or excluding
evidence or requiring the return of seized
property in a criminal proceeding"), to file the
notice of appeal before jeopardy attaches to the
defendant. In a jury trial that occurs when the
jury is sworn; and courts have ruled that the
filing of the notice of appeal bars the district
court from proceeding to the swearing in of the
jury, lest by doing so the court make it
difficult for the government to obtain relief
(for example, that the trial start over again
with the evidence whose exclusion had been
challenged by the appeal). E.g., United States v.
Brooks, 145 F.3d 446, 453-54 (1st Cir. 1998);
United States v. Tovar-Rico, supra, 61 F.3d at
1532; United States v. Mavrokordatos, 933 F.2d
843, 846 (10th Cir. 1991). The district judge in
this case said that he would not swear in the
jury, merely empanel it, and so the concern about
double jeopardy that troubled the courts in the
cases that we have just cited is not engaged. But
empaneling the jury is not the kind of pretrial
preparation that should be permitted to go
forward while the government’s appeal from an
evidentiary ruling is pending in the court of
appeals. The decision of such an appeal can take
months--in fact is bound to take months from the
filing of the notice of appeal to the final
decision by the court of appeals. During that
time the jurors will be in a kind of limbo. It
will be difficult for them to plan their affairs,
and the risk of jury tampering will rise as
potential tamperers will have months in which to
make approaches to individual jurors. See United
States v. Mobley, 193 F.3d 492, 494 (7th Cir.
1999). We hold, therefore, in this case of first
impression so far as we have been able to
determine, that the filing of a notice of appeal
under section 3731 precludes the district judge’s
empaneling the jury.
/* With notation that an explanation of our
decision would follow.