United States v. Robinson

• Court: Court of Appeals for the Second Circuit
• Decided: June 16, 2026
• Docket: 25-1428
• Status: Published

Opinion

25-1428-cr United States v. Robinson

United States Court of Appeals for the Second Circuit AUGUST TERM 2025 No. 25-1428-cr

UNITED STATES OF AMERICA, Appellant,

v.

JASON ROBINSON, Defendant-Appellee.

ARGUED: APRIL 14, 2026 DECIDED: JUNE 16, 2026

Before: JACOBS, WESLEY, and PARK, Circuit Judges.

Defendant-Appellee Jason Robinson challenges our jurisdiction to hear this interlocutory appeal from an order of suppression issued by the United States District Court for the Eastern District of New York (Morrison, J.). The notice of appeal was timely, but 18 U.S.C. § 3731 also requires that “the United States attorney certif[y] 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.” Robinson argues that the interim United States Attorney who signed the certification was (at the time) unlawfully appointed, that the certification was therefore invalid, and that the lack of a certification defeats timely filing and, with it, our jurisdiction. We assume the validity of these contentions as a convenience for the purpose of deciding Robinson’s motion to dismiss the Government’s appeal. We conclude that certification was achieved here in two ways: (i) by a later certification from the interim United States Attorney, after he was duly appointed by the district court; and (ii) by a supplemental certification from the then Attorney General of the United States. While both certifications were filed after the time to appeal had expired, “late filing of the certificate does not preclude jurisdiction but does permit a court to exercise its discretion under [Federal Rule of Appellate Procedure] P. 3(a) to dismiss the appeal.” United States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (per curiam). We exercise that discretion to hear the merits.

GILBERT REIN (Saritha Komatireddy and Amy Busa, on the brief) Assistant United States Attorneys, for Joseph Nocella, Jr., United States Attorney for the Eastern District of New York, Brooklyn, NY, for the United States of America.

ASHOK CHANDRAN (Brett Parker, Law Fellow, on the brief), Assistant Federal Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellee.

2 DENNIS JACOBS, Circuit Judge:

Defendant-Appellee Jason Robinson challenges our jurisdiction to hear this

interlocutory appeal from an order of suppression issued by the United States

District Court for the Eastern District of New York (Morrison, J.). The notice of

appeal was timely, but 18 U.S.C. § 3731 also requires that “the United States

attorney certif[y] 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.” Robinson argues that the interim United States Attorney who

signed the certification was (at the time) unlawfully appointed, that the

certification was therefore invalid, and that the lack of a certification defeats timely

filing and, with it, our jurisdiction. We assume the validity of these contentions

as a convenience for the purpose of deciding Robinson’s motion to dismiss the

Government’s appeal.

We conclude that certification was achieved here in two ways: (i) by a later

certification from the interim United States Attorney, after he was duly appointed

by the district court; and (ii) by a supplemental certification from the then Attorney

General of the United States. While both certifications were filed after the time

to appeal had expired, “late filing of the certificate does not preclude jurisdiction

3 but does permit a court to exercise its discretion under [Federal Rule of Appellate

Procedure] 3(a) to dismiss the appeal.” United States v. Romaszko, 253 F.3d 757,

760 (2d Cir. 2001) (per curiam). We exercise that discretion to hear the merits.

I

When Robinson landed back in the United States after a trip abroad in 2022,

he was diverted for a customs inspection at JFK Airport. A search of his

cellphone turned up evidence of child sexual abuse material. Based on images

found during this search, the Government obtained a warrant to conduct a forensic

search, which turned up more videos and photographs of child pornography.

Robinson was charged with child pornography offenses. In May 2025, the

district court granted Robinson’s motion to suppress the cellphone evidence

because the initial search was unlawful for want of probable cause or a search

warrant. The district court also concluded that the Government could not rely

on the good faith exception to the exclusionary rule. This interlocutory appeal

followed.

Robinson interposes a motion to dismiss the appeal on the ground that this

Court lacks appellate jurisdiction under 18 U.S.C. § 3731. As relevant here,

Section 3731 permits the Government to take interlocutory appeal of district court

4 orders “suppressing or excluding evidence” when the appeal is taken “within

thirty days after the decision.” 18 U.S.C. § 3731. It further requires that “the

United States attorney certif[y] 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.” Id. Section 3731 thus imposes “three requirements for

appealability: ‘[t]here was an order of a district court excluding evidence; a

United States attorney filed the proper certification; and the appeal was taken

within 30 days.’” United States v. Moskowitz, 702 F.3d 731, 733 (2d Cir. 2012) (per

curiam) (alteration in original) (quoting United States v. Helstoski, 442 U.S. 477, 487

n.6 (1979)). Here, the district court issued the order suppressing evidence on May

9, 2025. The Government timely filed a notice of appeal within thirty days, on

June 3, 2025. The same day, Joseph Nocella, Jr. – as the interim United States

Attorney for the Eastern District of New York – filed a certification in the district

court with the requisite assurances.

Robinson, however, argues that Nocella was not lawfully appointed when

he filed the certification. Nocella was the second of two interim appointees in the

Eastern District of New York in the first half of 2025: the Attorney General first

appointed John Durham as interim United States Attorney effective January 21,

5 2025, and then appointed Nocella effective May 5, 2025. Robinson contests the

latter appointment.

Under 28 U.S.C. § 546, the Attorney General may appoint an interim United

States Attorney for a maximum of 120 days. See 28 U.S.C. § 546(c)(2). If the

Senate and President have not acted to fill a post by the end of that 120-day period,

any further interim appointment must be made by the district court for the

relevant district. See id. § 546(d). Robinson contends that Nocella was not the

validly appointed United States Attorney on June 3, 2025, the date he certified the

appeal, because the district court did not appoint him when the 120-day period

following Durham’s initial appointment expired on May 21, 2025. So (it is

argued) neither Durham nor Nocella could serve as the United States Attorney –

or file a Section 3731 certification – after that date.

We need not address the validity of Nocella’s appointment as of June 3 in

order to resolve Robinson’s jurisdictional claim. Timely filing of the Section 3731

certification, while important, is not a jurisdictional requirement. Romaszko, 253

F.3d at 760. Rather, “late filing of the certificate . . . permit[s] a court to exercise

its discretion under [Federal Rule of Appellate Procedure] 3(a) to dismiss the

appeal.” Id. We conclude that, even without the June 3 certification, the

6 Government submitted a valid, if “belated,” certification. Id. Here, two

measures taken by the Government in September 2025 provide independent

grounds for finding that a valid certificate was filed.

First, Nocella has now ratified his prior actions after an intervening

appointment. On August 26, 2025, the District Court for the Eastern District of

New York exercised its authority under 28 U.S.C. § 546(d) to appoint Nocella as

the interim United States Attorney – i.e., the very step that Robinson argues was

lacking earlier in the year. Shortly thereafter, the Government submitted a

September 2, 2025 memorandum in which Nocella ratified the actions he took

under his earlier (disputed) appointment by the Attorney General.

In tandem with Nocella’s original June 3, 2025 certification, that is enough

to satisfy the statute. Section 3731 must be “liberally construed to effectuate its

purposes.” 18 U.S.C. § 3731. This Court has previously accepted certain

informal means of complying with the certification requirement. See United

States v. Amrep, 545 F.2d 797, 798 n.1 (2d. Cir. 1976) (per curiam) (holding that oral

notification to the trial court and defense counsel was sufficient to satisfy Section

3731’s certification requirement). And there is no dispute here that Nocella filed

an otherwise compliant certification within the statute’s thirty-day window. If it

7 was invalid by reason of Nocella’s appointment status, his subsequent ratification

confirms (as is obvious) that he endorses a decision he himself made only a few

months earlier. Under these circumstances, we accept Nocella’s September 2025

ratification as equivalent to a “belated filing” of the original June 3, 2025

certification. Romaszko, 253 F.3d at 760. That is enough to defeat Robinson’s

challenge to this Court’s jurisdiction.

In addition, the Attorney General herself filed a supplementary Section 3731

certification on September 5, 2025. That alone constitutes certification. The

Attorney General is authorized to “conduct any kind of legal proceeding, civil or

criminal, . . . which United States attorneys are authorized by law to conduct.” 28

U.S.C. § 515(a). We agree with the Ninth Circuit that the Attorney General may

certify an appeal under Section 3731. See United States v. Weyhrauch, 548 F.3d

1237, 1241–42 (9th Cir. 2008), vacated on other grounds, 561 U.S. 476 (2010). The

Attorney General’s certification constitutes a second, independent basis for

defeating Robinson’s jurisdictional challenge.

II

Assuming that a certification is untimely when filed after the thirty days

specified in Section 3731, we have discretion to dismiss the appeal. See Romaszko,

8 253 F.3d at 760. 1 But we will not exercise this discretion if we find that “the

prosecutor carefully analyzed the case before deciding to appeal,” and the

defendant would not thereby suffer prejudice. Id. As we have previously

explained, “[c]ertification is not to be treated as no more than an ‘administrative

formality.’” Moskowitz, 702 F.3d at 734 (quoting United States v. W.R. Grace, 526

F.3d 499, 508 (9th Cir. 2008)).

Prior to filing the notice of appeal on June 3, 2025, a cadre of supervisors at

the local United States Attorney’s Office reviewed the decision to do so: the Co-

Chief of the National Security and Cybercrime Section, the Chief of Appeals, the

Chief of the Criminal Division, and the First Assistant United States Attorney (and

of course Nocella himself). The facts of this case corroborate why thoughtful

consideration would justify an appeal. The parties agree that the suppression

issue is case-dispositive. And all acknowledge that this appeal raises important

1 While Section 3731 states that “[t]he appeal” must be taken within thirty days, the statute does not expressly link that time requirement to the certification by the United States Attorney. 18 U.S.C. § 3731. But in Romaszko, we characterized as “late” a certification that was not filed until more than three months after the government’s time to appeal had expired, and we explained that “[t]he purpose of the certification requirement is to ensure that the prosecutor carefully analyzed the case before deciding to appeal.” Romaszko, 253 F.3d at 760 (emphasis added). In any event, no matter the applicable time period, “late filing of the certificate does not preclude jurisdiction.” Id.

9 questions about the Government’s constitutional authority to search electronic

devices at the border, questions that district courts have decided differently. For

these reasons, we are satisfied that the Government gave the matter due

consideration before deciding to appeal.

As to prejudice, the Government’s belated filing of the certification has not

delayed the parties’ briefing or this Court’s consideration of any issue. Nor is

Robinson detained while the appeal proceeds. His claim of prejudice instead

rests on “the psychological weight of [his] pending case” and certain conditions of

his pre-trial release. Robinson’s Motion to Dismiss at 19. For example,

Robinson is subject to a curfew, and he is restricted in his travel, his contact with

minors, and his use of electronic devices. He must also attend (and pay for)

mental health counseling. But while those conditions constitute a “deprivation

of liberty and [a] burden . . . on the mind of the accused,” United States v. Salisbury,

158 F.3d 1204, 1207 (11th Cir. 1998), they are not so onerous as to warrant dismissal

of the appeal, see United States v. Smith, 263 F.3d 571, 580 (6th Cir. 2001) (finding no

“substantial prejudice” beyond the defendant’s conditions of pre-trial release that

would justify discretionary dismissal of an appeal under Section 3731).

10 In sum, this Court has appellate jurisdiction under Section 3731. We do

not decide whether Nocella’s certification on June 3, 2025 was valid because the

Government’s subsequent late-filed certifications suffice for us to exercise

discretion to hear the merits. Robinson’s motion to dismiss is therefore DENIED.

This decision is confined to the issue of appellate jurisdiction, however, and the

case awaits decision on the merits.