Belated § 3731 Certification May Be Cured by Ratification and Attorney General Certification Without Defeating Appellate Jurisdiction

1. Introduction

In United States v. Robinson (2d Cir. June 16, 2026), the Second Circuit addressed whether it had appellate jurisdiction over the Government’s interlocutory appeal from a suppression order under 18 U.S.C. § 3731. The case arose after customs officers searched Jason Robinson’s cellphone at JFK Airport, allegedly discovering child sexual abuse material; a later warrant-based forensic search found additional contraband. The district court suppressed the cellphone evidence, holding the initial border search unlawful absent probable cause or a warrant, and rejecting the Government’s good-faith argument.

The Government filed a timely notice of appeal, but Robinson moved to dismiss on jurisdictional grounds: § 3731 requires the “United States attorney” to certify that the appeal is not for delay and that the evidence is substantial proof of a material fact. Robinson argued the interim U.S. Attorney who signed the certification was unlawfully appointed under 28 U.S.C. § 546, rendering the certification invalid; he further argued the lack of a valid certification within the statutory timeframe defeated appellate jurisdiction.

2. Summary of the Opinion

The Second Circuit (Jacobs, J.) denied Robinson’s motion to dismiss. Assuming—without deciding—that the interim U.S. Attorney’s initial appointment (and thus the June 3, 2025 certification) was invalid, the court held that the Government nevertheless satisfied § 3731 via two later-filed measures:

• Ratification after a lawful district-court appointment: after the district court appointed the interim U.S. Attorney under § 546(d), he ratified his earlier actions, which the court treated as the functional equivalent of a belated certification.
• A supplemental certification by the Attorney General: the Attorney General filed her own § 3731 certification, which the court held was authorized by 28 U.S.C. § 515(a).

Because the Second Circuit treats late § 3731 certifications as non-jurisdictional, the issue became whether the court should exercise discretion under Federal Rule of Appellate Procedure 3(a) to dismiss. It declined to do so after finding (1) the Government carefully analyzed the appeal decision and (2) Robinson showed no sufficient prejudice. The panel emphasized that its decision was confined to appellate jurisdiction and did not decide the merits of suppression.

3. Analysis

3.1. Precedents Cited

United States v. Romaszko, 253 F.3d 757 (2d Cir. 2001) (per curiam)

Romaszko is the cornerstone of the panel’s jurisdictional framework. It establishes that “late filing of the certificate does not preclude jurisdiction” but permits discretionary dismissal under Rule 3(a). The Robinson court used this rule to reframe the dispute: even if the original certification was invalid (or treated as absent), later certifications could still support jurisdiction, leaving only a discretionary-dismissal question.

United States v. Moskowitz, 702 F.3d 731 (2d Cir. 2012) (per curiam)

Moskowitz supplies the Second Circuit’s articulation of § 3731’s “three requirements for appealability,” quoting United States v. Helstoski. It also underscores that certification is not a mere formality. Robinson relies on Moskowitz to test whether the Government’s conduct reflected the careful deliberation the certification is meant to guarantee.

United States v. Helstoski, 442 U.S. 477 (1979)

The Supreme Court’s footnote in Helstoski is cited (via Moskowitz) for the canonical enumeration of § 3731’s elements. In Robinson, that formulation frames the defendant’s argument that defective certification defeats appellate review.

United States v. Amrep, 545 F.2d 797 (2d. Cir. 1976) (per curiam)

Amrep supports the opinion’s pragmatic and purposive approach: the Second Circuit previously accepted “informal means” of meeting § 3731’s certification requirement (including oral notification). Robinson extends that flexibility to the ratification context, treating later endorsement as functionally achieving what the statute demands.

United States v. Weyhrauch, 548 F.3d 1237 (9th Cir. 2008), vacated on other grounds, 561 U.S. 476 (2010)

The panel adopts the Ninth Circuit’s view in Weyhrauch that the Attorney General may certify a § 3731 appeal. Even though Weyhrauch was vacated on other grounds, the Second Circuit treated its reasoning on certification authority as persuasive and consistent with the Attorney General’s statutory litigation powers.

United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008)

W.R. Grace is used (via Moskowitz) to reiterate the certification requirement’s substantive purpose: ensuring the prosecutor carefully analyzed the case before appealing. Robinson uses this to justify denying dismissal where multiple supervisors reviewed the decision and the suppression issue was case-dispositive.

United States v. Salisbury, 158 F.3d 1204 (11th Cir. 1998)

The panel cites Salisbury for the proposition that ongoing prosecution conditions can impose psychological and liberty burdens, but it uses the citation to contextualize—rather than validate—the claim of prejudice.

United States v. Smith, 263 F.3d 571 (6th Cir. 2001)

Smith supports the conclusion that typical pretrial-release restrictions, without more, generally do not amount to “substantial prejudice” warranting discretionary dismissal of a § 3731 appeal.

3.2. Legal Reasoning

The court’s reasoning proceeds in three linked steps.

1. (a) Assume the appointment problem, then bypass it.
   Rather than decide whether the interim U.S. Attorney’s June 3 certification was invalid due to an alleged violation of 28 U.S.C. § 546, the panel assumed the contention “as a convenience” and treated the question as whether later actions cured any defect without defeating jurisdiction.

2. (b) Treat § 3731 certification timing as non-jurisdictional under circuit law.
   Relying on United States v. Romaszko, the court reaffirmed that an untimely certificate does not eliminate jurisdiction. Instead, it triggers a discretionary decision under Rule 3(a) whether to dismiss.

   The panel also noted an interpretive nuance: § 3731 expressly sets a 30-day deadline for taking the appeal but does not explicitly tie that deadline to certification; nonetheless, Romaszko treated a late certificate as “late” and supplied the controlling discretionary framework.

3. (c) Find certification satisfied by ratification and independently by the Attorney General.
   Two separate grounds defeated Robinson’s jurisdictional challenge:

   • Ratification after proper appointment: Once the district court appointed the interim U.S. Attorney under § 546(d), his September ratification of the earlier certification and appeal decision was accepted as equivalent to a “belated filing,” consistent with § 3731’s instruction that it be “liberally construed.”
   • Attorney General certification: The Attorney General’s supplemental certification was valid because 28 U.S.C. § 515(a) authorizes her to conduct proceedings that U.S. Attorneys may conduct, and the panel agreed with United States v. Weyhrauch that this includes § 3731 certifications.

Having found certification (even if belated), the court then declined to dismiss in its discretion because:

• multiple senior officials reviewed and approved the appeal decision, demonstrating the careful analysis required by United States v. Romaszko and emphasized by United States v. Moskowitz and United States v. W.R. Grace; and
• Robinson failed to show substantial prejudice beyond ordinary pretrial-release restrictions and the psychological burden of a pending case.

3.3. Impact

The opinion’s most significant doctrinal contribution is its practical, curative approach to § 3731 certification defects when the defect is intertwined with contested executive-branch appointment authority:

• Ratification can cure a disputed certification where a later lawful appointment removes the alleged defect and the same official reaffirms the earlier decision—especially when the original certification was timely in form and function.
• The Attorney General can independently satisfy § 3731’s certification requirement, giving the Government a fallback when a local U.S. Attorney’s authority is questioned.
• Jurisdiction is insulated from technical certification timing disputes in the Second Circuit, shifting litigation toward discretionary dismissal arguments (careful analysis and prejudice) rather than hard jurisdictional bars.

Practically, Robinson reduces the leverage defendants may gain from appointment-based challenges to interlocutory appeals in suppression cases, because the Government can attempt cure by ratification and/or Attorney General intervention. At the same time, the decision preserves a check: appellate courts retain discretion to dismiss if the Government’s deliberation is thin or the defendant shows meaningful prejudice.

4. Complex Concepts Simplified

• Interlocutory appeal: An appeal taken before the criminal case ends. Under § 3731, the Government can appeal certain suppression orders immediately rather than waiting for trial.
• § 3731 certification: A written assurance to the district court that the appeal is not a stalling tactic and that the suppressed evidence matters substantially. Its purpose is to prevent routine or strategic appeals and to ensure serious internal review.
• Jurisdictional vs. non-jurisdictional requirements: If a requirement is “jurisdictional,” missing it means the court lacks power to hear the case. If “non-jurisdictional,” the court may still hear the case, though it might impose consequences (like discretionary dismissal).
• Ratification: A later, validly authorized official act that approves and adopts an earlier act that might have been unauthorized at the time.
• 28 U.S.C. § 546 interim U.S. Attorney appointments: The Attorney General may appoint an interim U.S. Attorney for up to 120 days; if the vacancy persists, the district court may appoint an interim U.S. Attorney.

5. Conclusion

United States v. Robinson strengthens the Second Circuit’s functional approach to § 3731 certification disputes: even assuming an initial certification was invalid due to an alleged appointment defect, jurisdiction is not defeated where (1) a later lawful appointment enables ratification that the court treats as a belated certification, and/or (2) the Attorney General provides an independent certification under § 515(a). The ultimate safeguard remains discretionary: appellate courts may dismiss if the Government did not carefully analyze the appeal decision or if the defendant can show substantial prejudice.