USCA1 Opinion
November 3, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1341
UNITED STATES OF AMERICA,
Appellant,
v.
LESLIE ROBERTS,
Defendant, Appellee.
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ERRATA SHEET
ERRATA SHEET
The opinion of the Court issued on October 26, 1992, is
corrected as follows:
page 10, last line insert "of" between "all" and "these"
page 11, line 1 substitute "the list of factors" for
"it"October 26, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1341
UNITED STATES OF AMERICA,
Appellant,
v.
LESLIE ROBERTS,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Margaret D. McGaughey, Assistant United States Attorney,
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with whom Richard S. Cohen, United States Attorney, and Jonathan
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A. Toof, Assistant United States Attorney, were on brief, for
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appellant.
Richard S. Emerson, Jr., with whom Childs, Emerson,
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Rundlett, Fifield & Childs was on brief, for appellee.
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SELYA, Circuit Judge. The government appeals from an
SELYA, Circuit Judge.
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order entered in the United States District Court for the
District of Maine granting, and sustaining upon reconsideration,
the defendant's motion to suppress evidence. That order was
entered not on the merits, but by reason of the government's
failure to file a timely response to the defendant's suppression
motion. We vacate the order and remand with directions to hear
and determine the suppression motion.
I. BACKGROUND
I. BACKGROUND
The facts relevant to the disposition of this appeal
are largely undisputed. They can be succinctly summarized.
On January 16, 1992, a two-count indictment was
returned against defendant-appellee Leslie Roberts. Count I
alleged manufacture of more than 1,000 marijuana plants in
violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A) (1988 & Supp.
II 1990).1 Count II alleged possession of marijuana with intent
to distribute in violation of the same statutes. On Friday,
February 21, 1992, Roberts' counsel filed a substantial motion to
suppress evidence, addressing a copy to the prosecution.
According to regular office procedure, Friday's outgoing mail was
hand-carried to the post office either that day or the next
business day (Monday, February 24). On Monday, defense counsel
advised the prosecutor that the motion had been filed and should
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121 U.S.C. 841(a)(1) criminalizes, inter alia, the
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"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).
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3
arrive in that day's mail. The government never received the
mailed papers. On Wednesday, February 26, the prosecutor
requested another set. Defense counsel immediately forwarded
copies by facsimile transmission.
Under the applicable local rule, objections to filed
motions must themselves be filed within ten days.2 On March 10,
the district court, concluding that the response period had
elapsed, summarily granted the motion to suppress. 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 government filed its opposition to
the motion to suppress. 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." The
court, however, decreed that these circumstances constituted
neither "good cause" nor "excusable neglect" sufficient to
justify relieving the government "from the consequence of
untimely filing." This interlocutory appeal followed. We have
jurisdiction under 18 U.S.C. 3731(1988).
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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).
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4
II. A PROCEDURAL QUAGMIRE
II. A PROCEDURAL QUAGMIRE
Depending on how one reads the relevant rules, there
are several possible ways to assess the extent of the
government's delay. According to the letter of Local Rule 19(c),
the ten-day response period began on "filing," February 21.
Excluding intermediate weekends, see Fed. R. Crim. P. 45(a)
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("When a period of time prescribed or allowed is 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). The rule grants a three-day extension "[w]henever
a party has the right or is required to do an act within a
prescribed period after the service of a notice or other paper
upon that party and the notice or other paper is served by mail."
Fed. R. Crim. P. 45(e). Local Rule 19(c), however, appears to
emphasize filing, not service, and, notwithstanding the parties'
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agreement, we think it is an open question whether Rule 45(e)
applies in a case where the obligation to act is triggered by
filing rather than by service.
Assuming that the local rule is interpreted as allowing
5
an act to be done upon service,3 thus forcing Rule 45(e) into
play, the response deadline is still 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 now grown to more than eleven
days, the defendant argues, intermediate weekends should be
included in the count and the government should have filed its
opposition no later than March 5. See 3A Charles A. Wright,
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Federal Practice and Procedure 755, at 98 (2d ed. 1982). So
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viewed, the three-day extension is no extension at all; it leaves
the government with one less day in which to object than the
government would have enjoyed had the motion been served
personally a paradoxical result that frustrates the 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.
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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-
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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 the most sensible way to dispel this cloud
cover is to treat the weekend-exclusion provision of Rule 45(a)
as applying only to those periods of time in which a party is
expected to do something. The three days that Rule 45(e) allots
for service by mail is a period in which a respondent is required
to do nothing but wait for service. If we were to exclude
weekend days from the ten-day response period but count them for
the three-day period allotted for mail service, the objection
would have been due on March 9, leaving the government only one
day behind in moving to reconsider and two 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, pulls the trigger under Local Rule
19(c), thus implicating Rule 45(e). On that assumption, the
litany of problems is by no means finished. "Service by mail is
complete upon mailing." Fed. R. 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
7
its deadline at all.
In the midst of this babelism, one thing is perfectly
plain: the district court's order ought to be vacated.4
Viewing the record in the light most favorable to the defendant,
and making almost every intermediate interpretive decision in his
favor we except only the counter-intuitive paradox discussed
supra p.5 the government moved to reconsider no more than four
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days after its opposition to the suppression motion was due and
filed the opposition on the very next day. Even assuming,
arguendo, this worst-case scenario an assumption on which we
base the remainder of our opinion the ruling below cannot pass
muster.
III. STANDARD OF REVIEW
III. STANDARD OF REVIEW
A district court possesses great leeway in the
application and enforcement of its local rules. See United
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States v. Diaz-Villafane, 874 F.2d 43, 46 (1st Cir.), cert.
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denied, 493 U.S. 862 (1989); Aggarwal v. Ponce School of
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Medicine, 745 F.2d 723, 726 (1st Cir. 1984); Hawes v. Club
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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, 535 F.2d 140, 143-44 (1st Cir. 1976).
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This discretion, though broad, is not unbridled. See Aggarwal,
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745 F.2d at 726-27; Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d
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939, 943 (5th Cir. 1964). We review the trial court's refusal to
grant relief on reconsideration for possible abuse of
discretion.5
In making discretionary judgments, a district court
abuses its discretion when a relevant factor deserving of
significant weight is overlooked, or when an improper factor is
accorded significant weight, or when the court considers the
appropriate mix of factors, but commits a palpable error of
judgment in calibrating the decisional scales. See Independent
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Oil and Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg.
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Co., 864 F.2d 927, 929 (1st Cir. 1988); In re San Juan Dupont
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Plaza Hotel Fire Litig., 859 F.2d 1007, 1019 (1st Cir. 1988);
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United States v. Hastings, 847 F.2d 920, 924 (1st Cir.), cert.
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denied, 488 U.S. 925 (1988).
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IV. ANALYSIS
IV. ANALYSIS
This appeal arises in a peculiar procedural posture.
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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
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Odishelidze v. Aetna Life & Casualty Co., 853 F.2d 21, 25 (1st
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Cir. 1988) (per curiam); In re Sun Pipe Line Co., 831 F.2d. 22,
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26 (1st Cir. 1987), cert. denied, 486 U.S. 1055 (1988). The
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denial of a motion for leave to file an objection or other
pleading out of time is measured by the same yardstick. See
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Pontarelli v. Stone, 930 F.2d 104, 112 (1st Cir. 1991); Taumby v.
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United States, 902 F.2d 1362, 1367 (8th Cir. 1990); Clinkscales
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v. Chevron U.S.A., Inc., 831 F.2d 1565, 1568-69 (11th Cir. 1987);
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Ham v. Smith, 653 F.2d 628, 630-31 (D.C. Cir. 1981).
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9
Ordinarily, a district court faced with a motion to reconsider
must apply an interests-of-justice test. In Greene v. Union Mut.
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Life Ins. Co., 764 F.2d 19 (1st Cir. 1985), a case which involved
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the requested reconsideration of a dismissal order entered
because plaintiff failed to file a timely response to defendant's
motion to dismiss, we ruled that, when reconsideration of an
earlier ruling is requested, the district court should place
great emphasis upon the "interests of justice." Id. at 23. This
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is so, we reasoned, because such requests for reconsideration
rely, in the last analysis, on the trial court's inherent power
to afford relief from interlocutory decisions "as justice
requires." Id. at 22 (citation and internal quotation marks
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omitted).
The wrinkle that distinguishes this case is that,
rather than denying the motion to reconsider, as in Greene, the
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court below granted the motion to reconsider but then affirmed
its original ruling. See supra note 5. It can be argued that,
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in so doing, the court treated the motion to reconsider as a
motion for an extension of time, thus bringing Fed. R. Crim. P.
45(b)(2) to the fore.6 Rule 45(b)(2) provides that when an act
is required to be completed within a specified time, the court
"for cause shown" may, "upon motion made after expiration of the
specified period," extend the deadline if the movant's failure to
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6By contrast, in Greene we specifically noted that Fed. R.
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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.
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10
act resulted from "excusable neglect."
We do not choose to enter into a purely academic debate
over the controlling standard. Excusable neglect is a flexible
concept. In this case, as we demonstrate below, its parameters
are informed by, and roughly congruent with, the interests of
justice. (It would, after all, make very little sense to allow
reconsideration because justice requires, only to reassess the
underlying procedural default on some standard totally divorced
from the interests of justice.) Hence, we proceed to analyze the
lower court's rulings under both rubrics, mindful, withal, that
in the end the two standards coalesce.
A. Interests of Justice
A. Interests of Justice
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Justice is an ideal that defies precise definition.
It is, therefore, impossible to list a series of integers that
will necessarily dominate the interests-of-justice equation in
every case. We can, however, offer certain rules of thumb to
guide the district courts.
In determining this motion to reconsider the court's
response to the belated filing before us, it would have helped
had the district court examined the following seven factors: (1)
the nature of the case, (2) the degree of tardiness, (3) the
reasons underlying the tardiness, (4) the character of the
omission, (5) the existence vel non of cognizable prejudice to
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the nonmovant in consequence of the omission, (6) the effect of
granting (or denying) the motion on the administration of
justice, and (7) whether the belated filing would, in any event,
11
be more than an empty exercise. We emphasize these particular
factors because they assist in demonstrating that there was no
reasonable basis for the district court to deny the government's
request. The list is merely illustrative. We do not say that
courts must necessarily look at each and all of these factors in
every case, or that courts cannot, in a proper case, examine
other factors. At any rate, the list of factors will require
tailoring to reflect the nature of the ruling that underlies the
motion to reconsider. Because an interests-of-justice test
covers considerable ground, the trial court should strive to
acquaint itself with the totality of the relevant circumstances.
By the same token, an appellate court called upon to review such
a determination must take a panoramic view. We do so here.
1. Nature of the Case. This is a criminal case and,
1. Nature of the Case.
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importantly, a criminal case involving serious accusations. The
defendant was charged with manufacturing marijuana and with
possessing it for the intended purpose of commercial
distribution. There is a strong public interest in adjudicating
felony cases on the merits. See Hastings, 847 F.2d at 925.
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Moreover, "[t]he graver the crimes, the greater the insult to
societal interests if the charges are dropped, once and for all,
without a meaningful determination of guilt or innocence." Id.7
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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 factor cuts sharply in favor of the government's
position (just as the seriousness of the penalty would cut the
other way in a case in which the defendant had missed a filing
deadline).
2. Degree of Tardiness. The length of a supplicant's
2. Degree of Tardiness.
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delay is often a key factor in deciding whether to permit a
pleading to be filed out of time. The longer a litigant dawdles,
the less incentive exists for a court to reconsider. See In re
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Sun Pipe Line Co., 831 F.2d 22, 26 (1st Cir. 1987), cert. denied,
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486 U.S. 1055 (1988). Here, however, on a worst-case scenario,
the government was only four days late in requesting extra time
and five days late in filing its opposition to the suppression
motion. Thus, the delay was brief and the degree of tardiness,
if any, was correspondingly slight. This factor, too, favors the
government.
3. Reasons for Tardiness. We look next to the reasons
3. Reasons for Tardiness.
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underlying the procedural default. The district court credited
the prosecutor's explanation, but adopted a dismissive attitude,
literally and figuratively, discerning no excusable neglect. We
question the supportability of this conclusion. As we have
pointed out, see supra Part II, the interlocking rules that
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govern computation of time in this situation are freighted with
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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 good cause "is a mutable
standard, varying from situation to situation," Coon v. Grenier,
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867 F.2d 73, 76 (1st Cir. 1989), we think the lower court
probably undervalued the worth of appellant's explanation.
4. Character of the Omission. In determining whether
4. Character of the Omission.
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to hold a litigant to a nonjurisdictional procedural default, the
presence or absence of willfulness is invariably a salient
consideration. See, e.g., Velazquez-Rivera v. Sea-Land Serv.,
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Inc., 920 F.2d 1072, 1076 (1st Cir. 1990) (holding that, in
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connection with sanctions, an innocent mistake "must be
distinguished from more deliberate . . . delays in filing
[papers]"). The nisi prius court should always investigate the
degree of culpability, asking whether the omission was deliberate
or accidental, grossly negligent or merely careless.
In this case, the government's delay was not
intentional. It resulted from a simple mistake one that was
fully understandable in light of the local rule's ambiguity. The
omission was not a byproduct of bad faith or reckless disregard
of responsibilities owed to the court.8 We have said in an
analogous context that "[r]andom negligence, while not to be
condoned, is less blameworthy than purposeful misconduct."
Hastings, 847 F.2d at 925. Given the nature of the lapse, we
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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. Prejudice. We next inquire whether the interlude
5. Prejudice.
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caused cognizable prejudice. See Velazquez-Rivera, 920 F.2d at
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1078; cf. Greene, 764 F.2d at 23. There is absolutely no
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evidence that a four- or five-day delay hampered prosecution of
the motion to suppress, threatened to stall the trial, or
interfered with appellee's defense. Nor is there any showing
that appellee will be unfairly harmed should the motion be argued
now. Since we have consistently declined either to infer
prejudice from the mere passage of time (particularly a short
period of time) or to hold that simply requiring a party to
litigate amounts to prejudice, see Coon, 867 F.2d at 77, we place
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this factor in the government's column.
6. Institutional Interests. The court, too, has a
6. Institutional Interests.
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significant interest in the punctilious observation and strict
enforcement of its procedural rules, including temporal
requirements. See In re Sonoma V, 703 F.2d 429, 432 (9th Cir.
___ _______________
1983) (noting that strict enforcement of time constraints may
prove necessary to allow a court "responsible for the condition
of its docket and for the speed with which it administers
justice" to ensure "a proper flow of judicial business")
(citation omitted). While we think this factor deserves great
weight, we note that, in the instant case, there is no evidence
that delayed consideration of the suppression motion's merits
would have burdened judicial resources or interfered with the
court's administration of its docket. In the absence of other
15
considerations, the fact that the case was in its embryonic
stages argues persuasively against granting a dispositive motion
solely on the ground of a rather minimalistic period of
inadvertent delay. Cf., e.g., Velazquez-Rivera, 920 F.2d at
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1077; Coon, 867 F.2d at 76.
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7. Utility of the Pleading. We have indicated in
7. Utility of the Pleading.
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related settings that weight should be attached to the likelihood
of success if the party moving for reconsideration is allowed to
revisit the underlying issue. See Mackin v. Boston, 969 F.2d
___ ______ ______
1273, 1279 (1st Cir. 1992). Here, the government claims that it
has a meritorious argument against suppression. At first blush,
its position is plausible. While we take no view of the merits
of the suppression motion, we are unable to conclude at this
early stage that the proffered opposition is necessarily futile
or a waste of time. Thus, this factor cuts the government's way.
8. Recapitulation. The clear majority of the
8. Recapitulation.
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pertinent factors (perhaps as many as six out of seven) militates
in favor of reconsideration and reversal. The defendant has
identified no countervailing factors and we can think of none.
Indeed, the balance of justice seems to weigh more heavily in
this case than in Greene (a case in which the movant was afforded
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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 delay. Moreover, this is a criminal, not
a civil, case; and unlike Greene, appellant proffers sympathetic
16
reasons for its tardiness.9
B. Excusable Neglect
B. Excusable Neglect
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If we treat the lower court's ruling as the functional
equivalent of a refusal to allow the government to file an
opposition out of time, the defendant fares no better. 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 cause or
excusable neglect under its criminal analogue. See Fed. R. Crim.
___
P. 45 advisory committee note (1944) (explaining that because
Criminal Rule 45 "is in substance the same as [Civil Rule 6] . .
. matters covered by this rule should be regulated in the same
manner for civil and criminal cases"); 3A Wright, supra, 751,
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at 92-93 (stating that Civil Rule 6 "may usefully be consulted in
determining the meaning of [Criminal Rule 45]").
In general, mistake or inadvertence as to the meaning
of a rule is not a sufficient reason to grant a belated
application for more time. See, e.g., Spear, Leeds & Kellogg v.
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Public Serv. Co., 700 F. Supp. 791, 794 (S.D.N.Y. 1988).
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Nonetheless, ambiguity in a rule or court order can give rise to
excusable neglect sufficient to warrant an extension of time.
See, e.g., De Santa v. Nehi Corp., 171 F.2d 696, 698 (2d Cir.
___ ____ _________ ___________
1948); Spear, 700 F. Supp. at 794. In this case, the meaning of
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the local rule and its interplay with the criminal rules is
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9In Greene, plaintiff's counsel said that he was "on 'quasi-
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vacation,'" that he "'misunderstood' defendant's counsel," and
that "his office procedures broke down." Greene, 746 F.2d at 23.
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17
logogriphic. Thus, government counsel's inability to anticipate,
and conform 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 law in this circuit and beyond reveals
that the excusable neglect standard, in a situation like this
one,10 embodies a need to consider a matrix of factors not
materially different from those we have canvassed in connection
with the interests-of-justice standard, e.g., the significance of
____
the delay, see Coady v. Aguadilla Terminal Inc., 456 F.2d 677,
___ _____ _______________________
678 (1st Cir. 1972), prejudice to the other party, see Staggers
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v. Otto Gerdau Co., 359 F.2d 292, 296 (2d Cir. 1966), and bad
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faith, see Tatterson v. Koppers Co., 104 F.R.D. 19, 20 (W.D. Pa.
___ _________ ___________
1984); Vandervelde v. Put & Call Brokers & Dealers Ass'n, 43
___________ _____________________________________
F.R.D. 14, 20 (S.D.N.Y. 1967). As we have previously pointed
out, see supra Part IV(A), these factors counsel, with near
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unanimity, in favor of permitting the government to file its
objection out of time.
C. Totalling the Account
C. Totalling the Account
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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
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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
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strong family resemblance to the factors we have enumerated in
our interests-of-justice analysis.
18
We do not think it makes a difference in this case
which standard the district court applied (or should have
applied). The excusable neglect standard often acquires an
"interests of justice" gloss. See Coady, 456 F.2d at 678-79
___ _____
(holding that the "delay in filing a cost bond, where no other
action had taken place, is so insignificant and so unprejudicial
in any sense, that we think in justice it should be excused")
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(emphasis supplied); cf. Hibernia Nat'l Bank v. Administracion
___ ____________________ ______________
Central Sociedad Anonima, 776 F.2d 1277, 1281 (5th Cir. 1985)
_________________________
(discussing excusable neglect in terms of the "interest of
justice"). This is such a case.
Given the collocation of circumstances, we believe that
the district court, on either standard, abused its discretion in
two ways. First, the court apparently failed to weigh all the
proper factors in reaching its decision. Beyond this likelihood,
we are convinced that, in granting the suppression motion pro
___
forma and adhering to its order after receiving a credible
_____
explanation of what had gone wrong, the court below committed a
mistake of judgment that cannot be allowed to stand. When the
appropriate elements are placed on the scale, the balance tips
dramatically in favor of reconsidering and allowing the
opposition to be filed. Put another way, the government showed
sufficient cause to excuse its failure to respond more
celeritously to the suppression motion.
V. CONCLUSION
V. CONCLUSION
19
We need go no further.11 This is a serious criminal
case. At the very worst, the government inadvertently missed a
filing deadline in a situation where a miasma of doubt surrounded
the proper interpretation and interplay of the relevant rules.
Hence, the government had a plausible reason for the error. It
informed the court immediately upon recognition of its possible
mistake and filed the omitted response the very next day (no more
than five days after it was due). The record reveals no history
of recalcitrance, sloppiness, or sharp practice on the
government's part. There is no suggestion of cognizable
prejudice to the defendant or burden to the court's schedule. In
these circumstances, stony adherence to the district court's
debatable interpretation of Local Rule 19(c) was unwarranted.
Vacated and remanded.
Vacated and remanded.
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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