Before Steadman, Farrell and Glickman, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Hiram E. Puig-Lugo, Trial Judge)
Argued September 21, 2000
This pretrial government appeal stems from a juvenile proceeding in which J.W. was charged with possession with intent to distribute marijuana. The trial court order suppressed any testimony about drug testing by the Drug Enforcement Agency when the chemist refused to submit to pretrial questioning by defense counsel except in the presence of government counsel. We reverse.
We must first address a challenge to the jurisdiction of this court to hear this appeal. A pretrial appeal by the government of a motion suppressing evidence is authorized by D.C. Code § 23-104(a)(1) "if the United States attorney or the Corporation Counsel conducting the prosecution for such violation certifies to the judge who granted such motion that the appeal is not taken for purpose of delay and the evidence is a substantial proof of the charge pending against the defendant." In the case before us, oral argument was heard by this court on September 21, 2000. A fully conforming certificate was not filed until September 26, 2000. *fn1
Although compliance with this statutory language may appear to be mandatory, the federal courts of appeal, in construing the very similar statute governing pretrial appeals of suppression orders by federal district courts, *fn2 have declined to treat the certification requirement as jurisdictional. Rather, the failure to certify prior to filing the notice of appeal is treated as a filing irregularity which may, but need not mandatorily, warrant dismissal of the appeal under Fed. R. App. P. 3(a)(2). *fn3 See United States v. Salisbury, 158 F.3d 1204, 1206 (11th Cir. 1998) (citing cases).
We conclude that D.C. Code § 23-104(a)(1) should be given the same construction. We have previously noted the similarity between the District and the federal statutes governing this type of pretrial criminal appeal. District of Columbia v. McConnell, 464 A.2d 126, 128 (D.C. 1983). Although our appellate rules do not contain the same provision as Fed R. App. P. 3(a)(2), we have declined to treat as jurisdictional prerequisites the failure to pay a filing fee and to provide a stated number of copies of the notice of appeal as required by our appellate rules. Montgomery v. Docter, Docter & Salus, 578 A.2d 176 (D.C. 1990). However, we pointedly observed in that case that "our holding today `does not leave [these rules] without other sanctions.'" Id. at 178 n.6 (quoting Parissi v. Telechron, Inc., 349 U.S. 46, 47 (1955) (per curiam)). *fn4
In United States v. Salisbury, supra, the government did not file the required certificate until one month after it filed the notice of appeal. The court observed that the certification requirement "serves the very important purpose of ensuring that the prosecutor carefully analyzes the case before deciding to appeal," and "furthers the vital underlying goal of preventing needless delay and prolonged worry in criminal proceedings." Id. at 1207. Since the record contained no indication that the decision to appeal "was based on a conscientious preappeal analysis," the court dismissed the appeal.
We share the concern that the certificate requirement be carefully observed. The certificate, when filed, is conclusive and not subject to substantive review by the appellate court. United States v. Jackson, 441 A.2d 937 (D.C. 1982). Every effort should be made by the government to carefully follow the precise statutory requirements, including that the certification be made by the attorney "conducting the prosecution" and that it be made "to the judge who granted such motion." *fn5
Although we shall expect such compliance and are prepared to impose "other sanctions," such as dismissal, in appropriate circumstances, *fn6 we will not do so in this particular case. The record before us reflects that the government made a considered decision. The original order of the trial court dismissed the case outright. The government asked the trial court to vacate the dismissal and enter the lesser sanction of precluding the government from entering any evidence resulting from the DEA analysis so that the government could take an expedited pretrial appeal. The trial court did change its order. The notice of appeal itself contained a statement that the appeal was not taken for purposes of delay, and the statute has since been fully complied with. We turn to the merits.
In November 1999, respondent J.W. was charged with possession with intent to distribute marijuana. On December 3, 1999, he requested documents and information regarding testing procedures and evidence-handling practices of the Drug Enforcement Agency Mid-Atlantic Laboratory ("DEA"). At a hearing on J.W.'s motion to compel discovery regarding DEA practice and procedure, the trial court ruled that Superior Court Criminal Rule 16 disclosure had been satisfied, and therefore did not order production of documents. However, the court did state that under D.C. Code § 33-556, *fn7 J.W. had the right to subpoena a DEA chemist, Lance Kvetko, for examination. The ...