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United States v. Kalb

United States Court of Appeals, Third Circuit

May 31, 2018

UNITED STATES OF AMERICA, Appellant
v.
ERIC KALB

          Argued: November 6, 2017

          On 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

          Louis 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 Appellant

          Brett 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.

          OPINION

          SCIRICA, CIRCUIT JUDGE.

         In this 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 both orders.

         Based 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.

         I.

         Eric 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."[1] 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.

         At the 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.

         Kalb 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. § 2.[2]

         Subsequently, Kalb filed a pretrial motion to suppress evidence obtained after police stopped his vehicle.[3] 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.

         The 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 untimeliness argument:

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 Rule[4] 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 reconsideration.

         II.

         The 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).

         We have 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).

         III.

         Under § 3731, the government is permitted to file interlocutory appeals of district court orders suppressing or excluding evidence:

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 ...

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