Argued: November 6, 2017
Appeal from the United States District Court for the Eastern
District of Pennsylvania (E.D. Pa. No. 2-16-cr-00012-001)
District Judge: Honorable Gerald A. McHugh
D. Lappen Acting United States Attorney Robert A. Zauzmer
[ARGUED] Denise S. Wolf Office of the United States Attorney
for the Eastern District of Pennsylvania Counsel for
G. Sweitzer [ARGUED] Leigh M. Skipper Federal Community
Defender Office for the Eastern District of Pennsylvania
Counsel for Appellee
Before: JORDAN, HARDIMAN, and SCIRICA, Circuit Judges.
SCIRICA, CIRCUIT JUDGE.
government appeal under 18 U.S.C. § 3731, we must decide
if a motion for reconsideration, filed after the statutory
appeal period elapsed but considered on the merits,
nonetheless keeps the appeal period from expiring. Section
3731 imposes a thirty-day filing requirement, which can be
stopped by a timely filed motion for reconsideration. In this
case, the government filed a motion for reconsideration more
than thirty days after the District Court entered an order
granting defendant-appellee Eric Kalb's motion to
suppress. The District Court denied the motion for
reconsideration on the merits, and the government appealed
on the statute's text and structure, recent clarifying
opinions from the Supreme Court, and legislative history, we
believe the thirty-day period for appeal in § 3731 is
jurisdictional. As to the timeliness of the government's
motion, we conclude that a timely motion for reconsideration
under § 3731, for the purpose of rendering the order
non-final, is one made within the thirty-day appeal period.
To hold otherwise would rejuvenate an extinguished appeal
period. Accordingly, we will dismiss for lack of jurisdiction
the government's appeal of the order granting Kalb's
suppression motion. We will affirm the denial of the
government's motion for reconsideration.
Kalb was stopped by Upper Merion Township police in the early
morning hours of September 13, 2014. Prior to that stop,
around 4:00 a.m., an unidentified caller to the Upper
Montgomery County 911 Call Center reported that a man had
been electrocuted near Valley Forge Park. He also stated the
man "may have been scrapping." App. 289. When
asked for details, the caller was elusive. He claimed he was
calling from a store but that the store was closing. He also
refused to give his name and professed ignorance of the model
of vehicle he was driving. Police were sent to the scene of
the electrocution and to the unidentified caller's
location, which police identified as a fast food restaurant.
At Valley Forge Park, officers found a deceased man next to
an electrical box.
restaurant, the responding officer spoke with a security
guard who said a white male driving a small Ford pickup truck
had recently used the phone and driven away onto Markley
Street. The identifying information was broadcast over the
police radio. Approximately four minutes later and only four
blocks from the unidentified caller's location, an
officer spotted a vehicle matching the broadcast
description-driven by Kalb-and stopped it. Kalb immediately
admitted he was the caller and his friend had been
electrocuted. He was taken to the Upper Merion Township
police station to give a statement. Kalb admitted to driving
his friend to the scrapping location, seeing his friend
"sitting in front of an electrical box" while it
"was sparking, " and driving to use a payphone to
call 911. App. 85.
was indicted by a grand jury on charges of depredation
against United States property, 18 U.S.C. § 1361;
destruction of property on United States land, 18 U.S.C.
§ 1363; and aiding and abetting, 18 U.S.C. §
Kalb filed a pretrial motion to suppress evidence obtained
after police stopped his vehicle. After conducting a
suppression hearing, the court entered an order granting the
motion on October 21, 2016, followed by a written opinion
three days later.
District Court held a conference call with counsel and
scheduled a status conference for November 29. During the
conference call, the government "sought leave to review
the transcript of the suppression hearing before
proceeding." App. 13. On November 29, the government
filed a motion to reconsider the suppression order, and Kalb
objected to its filing as untimely. The District Court denied
the motion to reconsider its suppression order, thereby
confirming its suppression of the challenged evidence, on
January 13, 2017. In doing so, it rejected the defense's
Preliminarily, the defense argues that the Motion should be
rejected as untimely. I disagree. In a conference call with
the Court on October 29, 2016, the Government made clear that
it sought leave to review the transcript of the suppression
hearing before proceeding, and the Court scheduled a status
conference for November 29. At a minimum, it would be
understandable if the Government interpreted the Court's
actions as granting it a 30-day extension. The transcript
became available on November 14, and the Government's
Motion was filed on November 29, after providing notice to
the Court that it would be slightly delayed because of a
competing trial listing. Rigid enforcement of the Local
governing timeliness of motions for reconsideration would be
inconsistent with the collegial manner in which counsel have
dealt with each other, and dealt with the Court.
App. 13. On February 10, the government filed a notice of
appeal from the orders granting suppression and denying
District Court had jurisdiction under 18 U.S.C. § 3231.
Our jurisdiction over the government's appeal of the
suppression order is contested but would arise under 18
U.S.C. § 3731. We exercise plenary review over the
question of whether a notice of appeal was timely filed.
State Nat'l Ins. Co. v. County of Camden, 824
F.3d 399, 404 (3d Cir. 2016).
jurisdiction under § 3731 to review the District
Court's order denying the government's motion for
reconsideration. "We review the denial of a motion for
reconsideration for abuse of discretion." United
States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010).
§ 3731, the government is permitted to file
interlocutory appeals of district court orders suppressing or
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 s ...