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United States of America v. Steven Moskowitz

December 27, 2012

UNITED STATES OF AMERICA, APPELLANT,
v.
STEVEN MOSKOWITZ, ANDREW TEPFER, AKA AVI, SEYMOUR EISENBERG, AKA JIMMY, GEORGE SPERANZA, THOMAS CAVANAGH, FRANK NICOLOIS, DEFENDANTS, MICHAEL METTER, DEFENDANT-APPELLEE.



Per curiam.

12-2423

United States v. Metter

(Submitted: November 27, 2012

Before: SACK, CHIN, and LOHIER, Circuit Judges.

Defendant-appellee Michael Metter has made a motion 18 pursuant to Federal Rule of Appellate Procedure 27 and Local Rule 19 27.1 to dismiss for want of appellate jurisdiction the 20 government's appeal from an order of the United States District 21 Court for the Eastern District of New York (Dora L. Irizarry, 22 Judge) suppressing evidence sought to be employed in a criminal 23 trial in which Metter is a defendant. Metter contends that 24 despite the U.S. Attorney's certification in accordance with 18 25 U.S.C. § 3731 "that the appeal is not taken for purposes of delay 26 and that the evidence that has been ordered suppressed 1 constitutes substantial proof of facts material in the 2 proceeding," the government has not in fact satisfied section 3 3731's requirements. We join every circuit to have considered 4 the issue in concluding that the U.S. Attorney's certification 5 conclusively establishes that the evidence is a substantial proof 6 of a material fact in satisfaction of section 3731. We therefore 7 deny the defendant's motion to dismiss this appeal.

Defendant-Appellee Michael Metter moves pursuant to 18 Federal Rule of Appellate Procedure 27 and Local Rule 27.1 to 19 dismiss the government's interlocutory appeal from an order of 20 the United States District Court for the Eastern District of New 21 York (Dora L. Irizarry, Judge) suppressing certain evidence in 22 connection with a criminal trial in which Metter is a defendant. 23 He maintains that we are without jurisdiction over the appeal.

24 We conclude that we have jurisdiction under paragraph two of 18 25 U.S.C. § 3731. Metter's motion is denied. He is directed to 26 file a scheduling notification proposing a deadline for his brief 27 on the merits. See Local Rule 31.2.

BACKGROUND

On October 14, 2010, a grand jury sitting in the 3 Eastern District of New York returned a superseding indictment 4 against Metter and six co-defendants. The indictment alleged that 5 Metter had participated in a fraudulent scheme related to 6 transactions in the common stock of Spongetech Delivery Systems, 7 Inc. ("Spongetech"), a corporation of which Metter was, at all 8 relevant times, the president and chief executive officer.

9 In May and November 2010, the government secured 10 warrants to seize computers from Spongetech's offices and 11 Metter's home, and data from Metter's personal email account. 12 All told, law enforcement recovered the contents of sixty-one 13 Spongetech hard drives, including Spongetech's email server, the 14 contents of four of Metter's personal hard drives, and a 15 "snapshot" of activity on Metter's email account (collectively, 16 the "Seized Materials"). But the government did not promptly 17 conduct a forensic review of the Seized Materials.

18 On May 25, 2011, Metter filed a motion to suppress the 19 Seized Materials. He argued, in relevant part, that the 20 government's delay in conducting a forensic review constituted an 21 unreasonable execution of the warrants that authorized seizure of 22 that evidence, in contravention of the Fourth Amendment. The 23 government conceded that it had yet to review the Seized 24 Materials, but it argued that its delay was not "unreasonable."

The district court sided with Metter, granting his motion and 1 ordering blanket suppression of the Seized Materials. United 2 States v. Metter, 860 F. Supp. 2d 205, 216 (E.D.N.Y. 2012). 3 The government immediately appealed, asserting 4 appellate jurisdiction under 18 U.S.C. § 3731.

DISCUSSION

Section 3731 of Title 18 of the United States Code, 7 authorizes, in certain circumstances, interlocutory appeals by 8 the United States from district court orders in criminal cases. 9 Relevant here is the ...


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