USCA1 Opinion

November 3, 1992

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________

No. 92-1341
UNITED STATES OF AMERICA,
Appellant,
v.
LESLIE ROBERTS,
Defendant, Appellee.
_________________________
ERRATA SHEET
ERRATA SHEET
The opinion of the Court
corrected as follows:
page 10, last line
page 11, line 1
"it"October 26, 1992

issued on

October 26,

1992, is

insert "of" between "all" and "these"

substitute

"the

list of

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 92-1341
UNITED STATES OF AMERICA,
Appellant,
v.

factors" for

LESLIE ROBERTS,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________

________________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
_________________________

Margaret D. McGaughey, Assistant United States Attorney,

______________________
with whom Richard S. Cohen, United States Attorney, and Jonathan
________________
________
A. Toof, Assistant United States Attorney, were on brief, for
_______
appellant.
Richard S.
Emerson, Jr., with whom
Childs, Emerson,
___________________________
_________________
Rundlett, Fifield & Childs was on brief, for appellee.
__________________________
_________________________

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________
order

entered

in

the

The government

United States

District

appeals from an

Court

for

the

District of Maine granting, and

the

defendant's motion

entered

not on

failure to
motion.

sustaining upon reconsideration,

to suppress

the merits,

but by

evidence.
reason of

That

order was

the government's

file a timely response to the defendant's suppression

We vacate the

order and remand with directions

to hear

and determine the suppression motion.

I.
I.

BACKGROUND
BACKGROUND
The facts

relevant to

are largely undisputed.

On
returned
alleged

January

against

16,

of

violation of 21 U.S.C.
1990).1

to

distribute in

this appeal

They can be succinctly summarized.

1992,

two-count

defendant-appellee Leslie

manufacture

II

the disposition of

more

than 1,000

indictment

Roberts.
marijuana

was

Count
plants

841(a)(1), 841(b)(1)(A) (1988 &

in

Supp.

Count II alleged possession of marijuana with intent

violation of

the same

statutes.

On Friday,

February 21, 1992, Roberts' counsel filed a substantial motion to

suppress

evidence,

addressing

copy

to

the

prosecution.

According to regular office procedure, Friday's outgoing mail was

hand-carried
business
advised

to

the post

office either

day (Monday, February 24).

that

day or

the next

On Monday, defense counsel

the prosecutor that the motion had been filed and should

____________________
121

U.S.C.

841(a)(1)

criminalizes,

inter alia, the

_____ ____
"manufacture" of "a controlled substance." We have recently held
that growing marijuana falls squarely within this proscription.
See United States v. One Parcel of Real Property (Great Harbor
___ _____________
___________________________________________
Neck), 960 F.2d 200, 205 (1st Cir. 1992).
____

arrive in that
mailed

day's mail.

papers.

requested

On

another

The government

Wednesday,

set.

February

Defense counsel

never received
26,

the

the

prosecutor

immediately forwarded

copies by facsimile transmission.

Under the

applicable local rule,

objections to

motions must themselves be filed within ten days.2

the

district

elapsed,

court, concluding

summarily granted the

that

the

filed

On March 10,

response period

motion to suppress.

had

Later that

same day, the government moved for reconsideration, informing the

court

that its response to the suppression motion would be filed

instanter and explaining that its failure to object at an earlier

date resulted

from an interpretation

of Local

Rule 19(c)

that

differed from the district court's interpretation.

The next

day, the

the motion to suppress.

government filed its

opposition to

On reconsideration, the district

court

accepted the prosecutor's explanation at face value, finding that

the

government's bevue "was the result of a misinterpretation of

Local Rule 19 and of ignorance of its precise requirements."

court,
neither

however, decreed
"good

cause"

that
nor

these

circumstances

"excusable

neglect"

The

constituted

sufficient

to

justify

relieving

untimely

filing."

the

government

"from

This interlocutory

jurisdiction under 18 U.S.C.

the

consequence

appeal followed.

of

We have

3731(1988).

____________________

2The rule states:

"Unless within 10 days after the filing
of a motion the opposing party files a written objection thereto,
he shall be deemed to have waived objection."
D. Me. Loc. R.
19(c).
Local Rule 19(c) applies in civil as well as criminal
cases. See D. Me. Loc. R. 1(a).
___
4

II.
II.

A PROCEDURAL QUAGMIRE
A PROCEDURAL QUAGMIRE
Depending on

are

several

possible

government's delay.
the

ten-day

Excluding
("When

how one
ways

to

assess

the

rules, there

extent

of

the

According to the letter of Local Rule 19(c),

response period

intermediate

a period

reads the relevant

began

on

weekends, see
___

of time prescribed

"filing," February
Fed.

R.

Crim. P.

or allowed is

21.

45(a)

less than 11

days, intermediate Saturdays, Sundays and legal holidays shall be

excluded in the computation."), the government's objection to the

motion was due

by day's end on March 6.

The government moved to

reconsider on March 10 and filed its objection to the suppression

motion

on March 11.

Under this scenario, then, the government's

motion was four days late and its opposition five days late.
But,

there

is

more.

Both

sides

agree

that

the

government was entitled to an additional three days under Fed. R.

Crim P. 45(e).
a

party

The rule grants a three-day extension "[w]henever

has the

prescribed

right or

is required

period after the service

to do

an act

of a notice

within a

or other paper

upon that party and the notice or other paper is served by mail."
Fed. R. Crim.

P. 45(e).

emphasize filing,
______

in a case

appears to

not service, and, notwithstanding the parties'

_______

agreement, we think
applies

Local Rule 19(c), however,

it is

an open question

where the obligation

whether Rule

to act is

45(e)

triggered by

filing rather than by service.

Assuming that the local rule is interpreted as allowing

an

act to be

play,

the

done upon service,3

response

deadline

thus forcing Rule

is

still

45(e) into

problematic.

The

defendant's interpretation is that the government would then have

had a total of thirteen days within which to file its opposition.

Since the prescribed

period has

days, the

argues,

included

defendant

in the count and

opposition no

later than

now grown to

intermediate

more than

weekends

the government should

March 5.

Federal Practice and Procedure

_______________________________

See
___

755,

eleven

should

be

have filed its

3A Charles

A. Wright,

at 98 (2d ed.

1982).

So

viewed, the three-day extension is no extension at all; it leaves

the government with
government
personally

would
a

one less
have

day in

enjoyed

paradoxical

which to

had

the

result that

object than

motion

been

frustrates

the

the

served

core

purpose of Rule 45(e).

On the other extreme,

one might interpret the service-

by-mail extension as a period separate and apart from the ten-day

response period.

After all, each is "a period of time prescribed

or allowed [that] is less than 11 days."

Fed. R. Crim. P. 45(a).

So construed, weekends would be excluded from the count entirely.

____________________

3We are of the opinion that a protocol in which service,

rather than filing, triggers the obligation to respond would be
far more conventional
and far more logical. Rules requiring a
response within a specified period after service or notice
abound. E.g., Fed. R. Civ. P. 12(a) (answer to complaint, cross____
claim, or counterclaim), 12(e) (response to order for more
definite statement), 45(c)(2)(B) (objection to subpoena); Fed. R.
Crim. P. 12.1(b) (response to alibi defense), 12.3(a)(2) (reply
to demand for witness list), 32.1(b) (objection to probation
terms). Calculating a response period from the date of service
or notice is a commonly used device because such a paradigm
prevents a party from forfeiting an objection to a motion or
other pleading about which it had no knowledge.
6

On this hypothesis,

the prosecution

was not tardy

at all;

its

opposition to the suppression motion was not due until March 11.
Perhaps
cover
as

the most

is to treat the

applying only to

sensible

way to

dispel this

cloud

weekend-exclusion provision of Rule 45(a)

those periods of

expected to do something.

time in which

The three days that

a party is

Rule 45(e) allots

for service by mail is a period in which a respondent is required

to

do

weekend
the

nothing but

service.

If

we were

to exclude

days from the ten-day response period but count them for

three-day period

would have been due

day

wait for

behind

in

allotted for

mail service,

the objection

on March 9, leaving the government

moving to

reconsider

and

two

only one

days behind

in

opposing the suppression motion.

The calculations

we have been discussing

in the three

immediately preceding paragraphs are based on the assumption that

service, rather than filing,
19(c),

thus implicating

Rule 45(e).

litany of problems is by no
complete upon

mailing."

pulls the trigger under

On that

means finished.

Fed. R.

Local Rule

assumption, the

"Service by mail is

Civ. P. 5(b).

In retrospect,

defense counsel cannot say whether the motion was actually mailed
on Friday, February

21, or on Monday, February 24.

If the ten-

day response period

and the three days

for service by mail

are

counted from February 21, the government was probably in arrears;

if

those periods are counted from February

24, or if the actual

receipt of the documents by facsimile transmission on February 26

constituted service,

then the

government probably did

not miss

its deadline at all.

In
plain:

the midst of this babelism,

the

Viewing

district

court's

order

one thing is perfectly

ought

to

be

vacated.4

the record in the light most favorable to the defendant,

and making almost every intermediate interpretive decision in his

favor

we except

supra p.5
_____

only the counter-intuitive

the government moved

paradox discussed

to reconsider no more than four

days after its opposition

to the suppression motion was

filed

the very

the opposition

arguendo, this

on

worst-case scenario

base the remainder of our opinion

muster.
III.

STANDARD OF REVIEW

next

day.

Even

an assumption on

due and

assuming,

which we

the ruling below cannot

pass

III.

STANDARD OF REVIEW
A

district

application
States v.
______
denied,
______
Medicine,
________

and

court

enforcement of

Diaz-Villafane,
______________
493

possesses

U.S.

745 F.2d

862
723,

its

874 F.2d

(1989);

great

local rules.
43,

46 (1st

Aggarwal
________

726 (1st

leeway

Cir.

v.

in

the

See United
___ ______
Cir.),

cert.
_____

Ponce School of
_________________

1984); Hawes
_____

v.

Club
____

____________________

4We think it is equally plain that the district court's

local rule should be clarified. Literal application of the rule
as written would, in many cases, prove unfair to litigants.
Specifically, the district court should consider amending the
local rule to state clearly whether a response is due from date
of filing or date of service and, if the former, what the
consequence of lack of notice to the respondent entails. We also
hope the district court will clarify that weekends are to be
excluded from the computation of the ten-day response period.
Finally, the court may wish to clarify whether the three-day
period provided in Rule 45(e) can extend the ten-day limit and,
if so, whether those additional three days exclude weekends.
8

Ecuestre El Comandante,
_______________________
This discretion, though

535 F.2d 140,

143-44 (1st

broad, is not unbridled.

Cir. 1976).

See Aggarwal,
___ ________

745 F.2d at 726-27; Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d

_____
939, 943 (5th Cir. 1964).
grant

relief

on

__________________________

We review the trial court's refusal to

reconsideration

for

possible

abuse

of

discretion.5
In
abuses

its

making

discretion

significant weight is
accorded

discretionary judgments,
when

relevant

factor

overlooked, or when an

significant weight,
factors,

or

when the

but commits

judgment in

calibrating the decisional scales.

864 F.2d 927,

929 (1st Cir.

Plaza Hotel Fire Litig., 859

________________________
United States v. Hastings, 847
______________
________

deserving

court considers

mix of

Co.,
___

district court

of

improper factor is

appropriate

Oil and Chem. Workers of Quincy, Inc. v.

______________________________________

palpable error

the

of

See Independent
___ ___________

Procter & Gamble Mfg.

______________________

1988); In re San Juan Dupont

______________________

F.2d 1007, 1019

F.2d 920, 924

(1st Cir.

1988);

(1st Cir.), cert.

_____

denied, 488 U.S. 925 (1988).

______
IV.
IV.

ANALYSIS
ANALYSIS
This appeal

arises in a

peculiar procedural

posture.

____________________

5As a technical matter, the court below agreed to reconsider

but then refused to alter its earlier order. This maneuver does
not affect the standard of review.
The denial of a motion for
reconsideration is reviewable for abuse of discretion.
See
___
Odishelidze v. Aetna Life & Casualty Co., 853 F.2d 21, 25 (1st
___________
__________________________
Cir. 1988) (per curiam); In re Sun Pipe Line Co., 831 F.2d. 22,
________________________
26 (1st Cir. 1987), cert. denied, 486 U.S. 1055 (1988).
The
_____ ______

denial of a motion for leave to file an objection or other

pleading out of time is measured by the same yardstick.
See
___
Pontarelli v. Stone, 930 F.2d 104, 112 (1st Cir. 1991); Taumby v.
__________
_____
______
United States, 902 F.2d 1362, 1367 (8th Cir. 1990); Clinkscales
______________
___________
v. Chevron U.S.A., Inc., 831 F.2d 1565, 1568-69 (11th Cir. 1987);
____________________
Ham v. Smith, 653 F.2d 628, 630-31 (D.C. Cir. 1981).
___
_____
9

Ordinarily, a district

court faced with

a motion to

must apply an interests-of-justice test.

reconsider

In Greene v. Union Mut.

______
__________

Life Ins. Co., 764 F.2d 19 (1st Cir. 1985), a case which involved
_____________
the

requested

reconsideration

of

dismissal

order

entered

because plaintiff failed to file a timely response to defendant's

motion to
earlier

dismiss, we
ruling is

ruled that,

requested,

when

reconsideration of

the district

court should

great emphasis upon the "interests of justice."

is

so, we

reasoned, because

rely, in the last

to

afford

requires."

from
at

interlocutory

22 (citation

place

Id. at 23.
___

This

for reconsideration

analysis, on the trial court's

relief
Id.
___

such requests

an

decisions

and internal

inherent power
"as

justice

quotation marks

omitted).
The

wrinkle that

rather than denying the

court below granted

doing, the

motion for an
45(b)(2) to
is
"for

See
___

this

case

motion to reconsider, as in

the motion to

its original ruling.

in so

distinguishes

It can

the motion to

Rule 45(b)(2)

required to be completed

affirmed

be argued that,
reconsider as

extension of time, thus bringing Fed.

the fore.6

that,

Greene, the
______

reconsider but then

supra note 5.
_____

court treated

is

R. Crim. P.

provides that when an act

within a specified

time, the court

cause shown" may, "upon motion made after expiration of the

specified period," extend the deadline if the movant's failure to

____________________

6By contrast, in Greene we specifically noted that Fed. R.

______
Civ. P. 60(b), with its "excusable neglect" standard, did not
apply because the defendant had moved merely to dismiss certain
counts, not to dismiss the entire case. Greene, 764 F.2d at 22.
______
10

act resulted from "excusable neglect."

We do not choose to enter into a purely academic debate

over

the controlling standard.

concept.
are

In this

roughly congruent

(It would, after all,

reconsideration because
underlying procedural

its parameters

with, the

interests of

make very little sense to allow

justice requires,

only to reassess

default on some standard

from the interests of justice.)

lower court's

neglect is a flexible

case, as we demonstrate below,

informed by, and

justice.

Excusable

the

totally divorced

Hence, we proceed to analyze the

rulings under both rubrics,

mindful, withal, that

in the end the two standards coalesce.

A.
A.
Justice is
It
will

Interests of Justice
Interests of Justice
____________________

an ideal

that defies precise

is, therefore, impossible to

necessarily dominate

every case.

We can,

list a series

definition.

of integers that

the interests-of-justice

however, offer

equation in

certain rules of

thumb to

guide the district courts.

In
response

determining this motion

to the belated filing

to reconsider

before us, it

the court's

would have helped

had the district court examined the following seven factors:

the

nature of

reasons
omission,

the case,

underlying

the

(2) the
tardiness,

(5) the existence

degree of tardiness,
(4) the

vel non of
___ ___

character

(1)

(3) the
of

the

cognizable prejudice to

the nonmovant in consequence

of the omission, (6) the

granting

(or

motion

justice,

and (7) whether the belated filing would, in any event,

denying)

the

11

on

the

effect of

administration

of

be

more than an empty

factors because

exercise.

they assist in

We

emphasize these particular

demonstrating that there

reasonable basis for the district court to deny

request.

The list is merely

illustrative.

courts must necessarily look at each

every

case, or

other

factors.

tailoring

that courts
At any rate,

was no

the government's

We do

not say that

and all of these factors in

cannot, in

a proper

the list of

case, examine

factors will require

to reflect the nature of the ruling that underlies the

motion

to

reconsider.

covers

considerable ground,

acquaint itself with the

Because
the

an

interests-of-justice

trial court

should strive

a determination must take a panoramic view.

Nature of the Case.
Nature of the Case.
___________________

importantly, a criminal case

defendant

was

possessing
distribution.
felony

charged

it

for
There

cases on

to

totality of the relevant circumstances.

By the same token, an appellate court called upon to review

1.
1.

test

the

We do so here.

This is a criminal

case and,

involving serious accusations.

with manufacturing
intended

such

marijuana

purpose

of

and

The

with

commercial

is a strong public interest in adjudicating

the merits.

See
___

Hastings, 847
________

F.2d at

925.

Moreover, "[t]he
societal

graver the

crimes, the

greater the

insult to

interests if the charges are dropped, once and for all,

without a meaningful

determination of guilt or innocence."

Id.7
___

____________________

7We understand that, in granting the defendant's motion, the

district court did not dismiss the indictment, but instead
suppressed evidence.
The government has argued, however, that
the material suppressed
the government's entire storehouse of
physical evidence (including
2,577 marijuana plants, eight
firearms, a substantial sum of money, etc.) and evidence of the
defendant's admissions of guilt
is of such importance that,
12

Because drug-trafficking cases are by their very nature extremely

serious, this
position
other way

factor cuts sharply

(just as the seriousness

in a case in

in favor of

the government's

of the penalty

which the defendant had

would cut the

missed a filing

deadline).
2.
2.
delay

is often

Degree of Tardiness.
Degree of Tardiness.
___________________
a key

factor in

pleading to be filed out of time.

the less incentive

The length of a supplicant's

deciding

whether to

permit a

The longer a litigant dawdles,

exists for a court to reconsider.

See In re
___ _____

Sun Pipe Line Co., 831 F.2d 22, 26 (1st Cir. 1987), cert. denied,

_________________
486 U.S. 1055 (1988).
the government was only
and

five days late in

motion.

Thus, the delay

_____ ______
Here, however, on a

worst-case scenario,

four days late in requesting

filing its opposition

to the suppression

was brief and the degree of

if any, was correspondingly slight.

extra time

tardiness,

This factor, too, favors the

government.
3.
3.
underlying the

Reasons for Tardiness.

Reasons for Tardiness.
_____________________
procedural default.

We look next to the reasons

The

district court credited

the prosecutor's explanation, but adopted a dismissive

literally and figuratively, discerning
question
pointed

the supportability
out,

see supra
___ _____

Part

govern computation of time in

of

no excusable neglect.

this conclusion.
II, the

attitude,

interlocking

As we

We

have

rules that

this situation are freighted

with

____________________

unless the order is vacated, the case cannot be successfully

prosecuted.
The defendant
has not disagreed
with this
assessment. Hence, we regard the order appealed from as the
functional equivalent of an order for dismissal.
13

ambiguity.

Bearing

in mind

that

standard, varying from situation

867 F.2d

73,

76 (1st

Cir.

good

cause

"is a

mutable

to situation," Coon v. Grenier,

____
_______

1989),

we think

the

lower

court

probably undervalued the worth of appellant's explanation.

4.
4.

Character of the Omission.

Character of the Omission.
_________________________

In determining whether

to hold a litigant to a nonjurisdictional procedural default, the

presence

or

absence

consideration.
Inc.,
____

920

of

See, e.g.,
___ ____

F.2d 1072,

connection

with

distinguished
[papers]").

willfulness is

Velazquez-Rivera v.
________________

1076 (1st

sanctions,

from

more

invariably

an

Cir.

The nisi prius court

salient

Sea-Land Serv.,
_______________

1990) (holding

innocent

deliberate

. .

mistake
.

that, in
"must

delays

in

be

filing

should always investigate the

degree of culpability, asking whether the omission was deliberate

or accidental, grossly negligent or merely careless.
In
intentional.

this

case,

the

It resulted from a

government's

delay

simple mistake

was

one

that was

fully understandable in light of the local rule's ambiguity.

omission was not a
of

byproduct of bad faith or

responsibilities owed

analogous

context that

condoned,

is

less

Hastings, 847 F.2d

________

to the
"[r]andom

blameworthy
at 925.

court.8

The

reckless disregard
We have

negligence, while
than

not

purposeful

Given the nature

said in

an

not to

be

misconduct."

of the lapse,

we

____________________

8Indeed, the record reveals that diligence, rather than

dilatoriness, typified the government's behavior. The government

was prompt in notifying the defendant that it had not received

the relevant documents, in reporting its position to the court as
soon as it was notified that the court considered the response
period to have expired, and in filing a reply to the suppression
motion immediately thereafter.
14

count this factor as close to neutral.

5.
5.

Prejudice.
Prejudice.
_________

caused cognizable
1078; cf.
___

We next inquire

prejudice.

Greene,
______

764

the

motion to

See Velazquez-Rivera,
___ ________________

F.2d at

evidence that a four- or

suppress,

interfered with appellee's

whether the interlude

23.

There

absolutely

no

five-day delay hampered prosecution

of

threatened

to

defense.

is

920 F.2d at

stall

Nor is

the

trial,

there any

or

showing

that appellee will be unfairly harmed should the motion be argued

now.

Since

prejudice
period

we

have consistently

from the

of

time) or

mere passage of
to hold

declined

either

to

time (particularly

that simply

requiring a

infer

a short

party to

litigate amounts to prejudice, see Coon, 867 F.2d at 77, we place

___ ____
this factor in the government's column.
6.
6.

Institutional Interests.
Institutional Interests.

The

court, too,

has a

_______________________
significant interest
enforcement

of

requirements.
1983)

in the

its

punctilious observation

procedural

rules,

including

See In re Sonoma V, 703 F.2d 429,

___ _______________

(noting that

strict enforcement

of time

prove necessary

to allow a court "responsible

of

and for

its

docket

justice"

to

ensure

(citation omitted).
weight, we note
that

delayed

would
court's

the

"a

speed

proper

with

flow

While we think

have burdened

constraints may

for the condition

administers

judicial

business")

this factor deserves

that, in the instant case,

consideration of

temporal

432 (9th Cir.

which it

of

and strict

there is no evidence

the suppression

judicial resources

administration of its docket.

great

motion's merits

or interfered
In the

with the

absence of other

15

considerations,

the

fact that

the

stages argues persuasively against

solely

on

inadvertent

the

ground

delay.

of

Cf.,
___

1077; Coon, 867 F.2d at 76.

____

case was

in

its embryonic

granting a dispositive motion

rather

minimalistic

e.g., Velazquez-Rivera,
____ ________________

period

of

920 F.2d

at

7.
7.

Utility of the Pleading.

Utility of the Pleading.
_________________________

We have

indicated in

related settings that weight should be attached to the likelihood

of

success if the party moving for reconsideration is allowed to

revisit the underlying

1273, 1279 (1st

issue.

Cir. 1992).

See Mackin v.
___ ______

of

plausible.

the suppression

early stage

suppression.

While we take no

motion, we

are unable

that the proffered opposition

or a waste of time.
8.
8.

F.2d

Here, the government claims that it

has a meritorious argument against

its position is

Boston, 969
______

At first blush,

view of the merits

to conclude

at this

is necessarily futile

Thus, this factor cuts the government's way.

Recapitulation.
Recapitulation.
______________

The

clear

majority

of

the

pertinent factors (perhaps as many as six out of seven) militates

in

favor of

reconsideration and

identified no countervailing
Indeed, the balance

reversal.

factors and we

of justice

The defendant
can think of

seems to weigh

has

none.

more heavily

in

this case than in Greene (a case in which the movant was afforded
______
some

relief).

Greene

was

six days

late in

responding

to a

defense motion; here, the government, if late at all, fomented an

even shorter period of
a civil, case; and

delay.

Moreover, this is a criminal, not

unlike Greene, appellant proffers sympathetic

16

reasons for its tardiness.9

B.
B.

Excusable Neglect
Excusable Neglect
_________________

If we treat the lower court's ruling as

equivalent

of a

refusal

opposition out of

to allow

time, the

the

the functional

government to

defendant fares no

file

better.

an

Since

Fed. R. Civ. P. 6(b)(2) uses language virtually identical to that

of Fed. R. Crim. P. 45(b)(2), decisions construing the civil rule

are

instructive

in

determining

what

constitutes

excusable neglect under its criminal analogue.

P.

45 advisory

committee note

cause

or

See Fed. R. Crim.

___

(1944) (explaining

that because

Criminal Rule 45 "is in substance the same as [Civil Rule 6] .

.

matters

covered by this rule should be

manner for civil and

regulated in the same

criminal cases"); 3A Wright, supra,

_____

751,

at 92-93 (stating that Civil Rule 6 "may usefully be consulted in

determining the meaning of [Criminal Rule 45]").
In general,
of

rule

is

application for

not

mistake or inadvertence as
a

sufficient

more time.

Public Serv. Co.,

__________________

700

F.

reason

to the meaning

to grant

belated

See, e.g., Spear, Leeds & Kellogg v.

___ ____ ______________________
Supp.

791,

794

(S.D.N.Y.

1988).

Nonetheless, ambiguity in a rule or court order can give

excusable

neglect sufficient

to warrant

an extension

See, e.g., De Santa v. Nehi Corp., 171 F.2d

___ ____ _________
___________
1948); Spear, 700
_____
the

local

F. Supp. at 794.

rule and

its interplay

rise to

of time.

696, 698 (2d

Cir.

In this case, the meaning of

with

the criminal

rules is

____________________

9In Greene, plaintiff's counsel said that he was "on 'quasi______

vacation,'" that he "'misunderstood' defendant's counsel," and
that "his office procedures broke down." Greene, 746 F.2d at 23.
______
17

logogriphic.
and conform

Thus, government counsel's inability to anticipate,

strictly to, the district

court's less-than-obvious

interpretation of the requirements of Local Rule 19(c) strikes us

as excusable within the meaning of Rule 45(b).
Moreover, case
that
one,10

the excusable
embodies a

materially different

law in this circuit

neglect standard,
need

to consider

and beyond reveals

in a situation
a

from those we have

matrix of

like this

factors

not

canvassed in connection

with the interests-of-justice standard, e.g., the significance of

____

the

delay, see Coady v.

___ _____

678 (1st Cir. 1972),

prejudice to the other party,

v. Otto Gerdau Co., 359

________________
faith, see Tatterson v.
___ _________
1984);

Vandervelde v.
___________

F.R.D. 14, 20
out,

see
___

unanimity,

Aguadilla Terminal Inc.,

_______________________

F.2d 292, 296

in favor

see Staggers
___ ________

(2d Cir. 1966),

and bad

Koppers Co., 104 F.R.D. 19, 20 (W.D. Pa.

___________

Put & Call Brokers & Dealers Ass'n, 43

_____________________________________

(S.D.N.Y. 1967).

supra Part
_____

456 F.2d 677,

IV(A),

As we

have previously

these factors

of permitting

the

counsel,

government to

pointed

with near

file its

objection out of time.

C.
C.

Totalling the Account

Totalling the Account
_____________________

____________________

10The Ninth Circuit, in an analogous context, urged lower

courts to "apply[] a liberal definition of 'excusable neglect'"
and suggested a broad range of factors that might properly be
considered in attending to the task. In re Magouirk, 693 F.2d
_______________
948, 951 (9th Cir. 1982) (discussing excusable neglect in
connection with former Bankruptcy Rule 924).
The Fifth Circuit
took much the same tack in Hibernia Nat'l Bank v. Administracion
___________________
______________
Central Sociedad Anonima, 776 F.2d 1277, 1280-81 (5th Cir. 1985)
________________________
(discussing excusable neglect in the context of Civil Rule
60(b)(1)). The factors mentioned in Magouirk and Hibernia bear a
________
________
strong family resemblance to the factors we have enumerated in
our interests-of-justice analysis.
18

We
which

do not

standard

applied).

makes a

district

court

The excusable

"interests

of justice"

(holding that
action had
in

the

think it

neglect

gloss.

applied

(or

standard

See Coady,
___ _____

the "delay in filing

this case

should

often acquires
456 F.2d

have

an

at 678-79

a cost bond, where

no other

taken place, is so insignificant and so unprejudicial

any sense,

that we think

(emphasis supplied);

in justice it
__ _______

(discussing

should be excused")

cf. Hibernia Nat'l Bank

___ ____________________

Central Sociedad Anonima, 776

_________________________

justice").

difference in

excusable

F.2d 1277,

neglect

in

v. Administracion
______________

1281 (5th

terms of

the

Cir. 1985)

"interest

of

This is such a case.

Given the collocation of circumstances, we believe that

the district court,
two

ways.

First,

on either standard, abused its discretion in

the court apparently failed

to weigh all the

proper factors in reaching its decision.

Beyond this likelihood,

we are convinced

suppression motion

forma
_____

and

that, in

adhering to

explanation of what had

mistake of

its

granting the
order

after

receiving a

gone wrong, the court below

judgment that cannot be

allowed to stand.

pro
___

credible

committed a

When the

appropriate elements
dramatically

in

are placed on

favor

opposition to be filed.
sufficient

cause

to

of

the scale, the

reconsidering

and

Put another way, the

excuse

its

failure

balance tips
allowing

the

government showed
to

respond

more

celeritously to the suppression motion.

V.
V.

CONCLUSION
CONCLUSION

19

We
case.

need go no further.11

At the

This is

a serious criminal

very worst, the government inadvertently

missed a

filing deadline in a situation where a miasma of doubt surrounded

the proper

interpretation and

Hence, the government

informed the

interplay of the

relevant rules.

had a plausible reason for the

court immediately upon recognition

error.

It

of its possible

mistake and filed the omitted response the very next day (no more
than five
of

days after it was due).

recalcitrance,

government's

part.

sloppiness,
There

is

The record reveals no history

or

sharp

practice

no

suggestion

of

on

cognizable

prejudice to the defendant or burden to the court's schedule.

these

circumstances, stony

adherence

to the

the

district

In

court's

debatable interpretation of Local Rule 19(c) was unwarranted.

Vacated and remanded.

Vacated and remanded.
____________________

____________________

11Because we conclude that the district court abused its

discretion in failing to reconsider and accept the government's
opposition out of time, we need not address the government's
contention that, notwithstanding the lack of a timely opposition,
the
district court
was
nevertheless required
to review
defendant's motion on the merits before suppressing the evidence.
20