978 F.2d 17 (1st Cir. 1992), 92-1341, United States v. Roberts

Docket Nº:92-1341.
Citation:978 F.2d 17
Party Name:UNITED STATES of America, Appellant, v. Leslie ROBERTS, Defendant, Appellee.
Case Date:October 26, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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978 F.2d 17 (1st Cir. 1992)

UNITED STATES of America, Appellant,


Leslie ROBERTS, Defendant, Appellee.

No. 92-1341.

United States Court of Appeals, First Circuit

October 26, 1992

Heard Sept. 17, 1992.

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Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Jonathan A. Toof, Asst. U.S. Atty., Portland, Me., were on brief, for appellant.

Richard S. Emerson, Jr., with whom Childs, Emerson, Rundlett, Fifield & Childs, Portland, Me., was on brief, for appellee.

Before BREYER, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The government appeals from an 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.


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 arrive in that day's mail. The government never received the mailed papers. On Wednesday,

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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).


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) ("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' 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 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, Federal Practice and Procedure § 755, at 98 (2d ed. 1982). So viewed, the three-day extension is no extension at all;

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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. 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 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. 19-20--the government moved to reconsider no more than four 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.


A district court possesses great leeway in the application and enforcement of its local rules. See United States v. Diaz-Villafane, 874 F.2d 43, 46 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); Aggarwal v. Ponce School of Medicine, 745 F.2d 723, 726 (1st Cir.1984); Hawes v. Club Ecuestre El Comandante, 535 F.2d 140, 143-44 (1st Cir.1976). This discretion, though broad, is not unbridled. See Aggarwal, 745 F.2d at 726-27; Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d 939, 943 (5th Cir.1964). We review the trial court's refusal to grant relief on reconsideration for possible abuse of discretion. 5

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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 Oil and Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.1988); In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1019 (1st Cir.1988); United States v. Hastings, 847 F.2d 920, 924 (1st Cir.), cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988).


This appeal arises in a peculiar procedural posture. Ordinarily, a district court faced with a motion to reconsider must apply an interests-of-justice test. In Greene v. Union Mut. Life Ins. Co., 764 F.2d 19 (1st Cir.1985), a case which involved the requested reconsideration of a dismissal order entered...

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