U.S. v. Gagnon, 02-CR-127.

• Decision Date: 11 March 2003
• Docket Number: No. 02-CR-127.,02-CR-127.
• Citation: 250 F.Supp.2d 15
• Parties: UNITED STATES of America, Plaintiff, v. Eric GAGNON, Defendant.
• Court: U.S. District Court — Northern District of New York

250 F.Supp.2d 15

UNITED STATES of America, Plaintiff, v. Eric GAGNON, Defendant.

No. 02-CR-127.

United States District Court, N.D. New York.

March 11, 2003.

Glenn T. Suddaby, United States Attorney, Northern District of New York, Albany, NY, Carlos A. Moreno, Assistant U.S. Attorney, Of Counsel.

Gerstenzang, O'Hern, Hickey & Gerstenzang, Attorneys for Defendant, Albany, NY, Thomas J. O'Hern, Of Counsel.

MEMORANDUM-DECISION and ORDER

HURD, District Judge.

I. INTRODUCTION

Defendant Eric Gagnon ("the defendant") was charged in a two-count superseding indictment, filed on September 13, 2002, with conspiracy to possess with intent to distribute, and distribution of, marijuana in violation of 21 U.S.C. § 846, and attempt to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841, 846. The defendant, as part of an omnibus motion, moved to suppress the evidence seized from his tractor trailer. After it was determined in a Memorandum-Decision and Order ("MDO") on July 24, 2002, that no probable cause existed to arrest the defendant prior to the search and seizure, (see Docket No. 22), and the issue was narrowed to whether the defendant voluntarily consented to the search of his tractor trailer, a suppression hearing was held on August 15, 2002, and August 23, 2002, in Utica and Albany, New York.

By Memorandum-Decision and Order ("MDO₂") dated November 6, 2002, the defendant's motion to suppress was granted on the basis that he did not consent to the warrantless search. United States v. Gagnon, 230 F.Supp.2d 260 (N.D.N.Y. 2002). On November 21, 2002, the United States of America ("United States" or "government") filed a motion for reconsideration.

II. FACTUAL/PROCEDURAL BACGROUND

The findings of fact relevant to the instant motion are expansively set out in MDO₂ granting the defendant's motion to suppress. Id. at 261-66. These findings will not be repeated. Suffice it to say that it was found that the defendant had very poor English language skills, and that he did not give voluntary consent to a warrantless search by several law enforcement officers. In reaching this conclusion, the testimony of the defendant and his brother was found to be credible. Less credible was the testimony of two law enforcement officers who solicited the alleged consent, and a motel clerk who spoke to the defendant that night.

Though the standard for determining whether a consent took place does not focus solely on the defendant's individual characteristics, but rather on whether an objective law enforcement officer would have believed consent was given, the fact that the defendant was found to be virtually without any substantive English language skills heavily influenced the decision. Specifically, it was held that the defendant could not have possibly exhibited actions or speech that would indicate to a reasonable law enforcement officer that consent had been given. It was also held that sufficient evidence was presented that the defendant's alleged "consent," even if "voluntary," was coerced.

In its instant motion, the government seeks reconsideration of MDO₂ granting the motion to suppress, and of the MDO that no probable cause existed to arrest the defendant prior to the search and seizure. Two main grounds for said motion can be gleaned from the United States' moving papers: (1) newly discovered evidence; and (2) evidence previously thought to be cumulative but is now considered material.

The evidence that the government claims is newly discovered comes from a prison inmate, Lester Crandall ("inmate Crandall" or "Crandall"), incarcerated at the same time as the defendant. Crandall claims, in a letter dated September 8, 2002,¹ that the defendant, in English, told him that he had testified falsely at the suppression hearing, and that he had, in fact, verbally consented to the search of the tractor-trailer. Interestingly, the letter from inmate Crandall contained very specific facts about the case and even contained the defendant's case number—02-CR-127. It was received by the AUSA approximately 58 days before the MDO₂ granting the defendant's suppression motion was issued.

After receiving Crandall's letter, the government undertook what it called an investigation. Phone calls were made to prosecutors, a defense attorney, and a parole officer. Nine days after the MDO₂ granting the defendant's motion to suppress was filed, and approximately 67 days after receipt of his letter, the government finally interviewed Crandall. At no time prior to the filing of MDO₂ was Crandall's existence and alleged testimony ever disclosed in the form of a motion to reopen the hearing or to stay the issuance of the decision until the government had an opportunity to investigate his claims.

The evidence previously thought to be cumulative by the government comes from prison employees and tape recordings. The United States apparently had this information prior to or during the suppression hearing, but decided it was merely cumulative of the testimony of the two law enforcement officers and motel clerk.

III. DISCUSSION

A. Timeliness of motion to reconsider

Unless otherwise governed by Fed. R.Civ.P. 60, motions for reconsideration proceed under Local Rule 7.1(g). See Bath Petroleum Storage, Inc. v. Sovas, 136 F.Supp.2d 52, 56 (N.D.N.Y.2001). Local Rule 7.1(g) controls the instant motion, as it seeks reconsideration of an order that is not "final." Sharpe v. Conole, 123 F.Supp.2d 87, 88 n. 2 (N.D.N.Y.2000). Though couching it in language that implies reconsideration of only one prior Order, the United States essentially seeks reconsideration of two prior rulings—the MDO that there was not probable cause to arrest the defendant prior to the search of the tractor-trailer, made July 24, 2002 (see Docket No. 22); and MDO₂ that the defendant did not possess the English skills needed to allow a reasonable officer to conclude that consent to search the tractor-trailer was given, made November 6, 2002 (see Docket No. 35).

1. July 24, 2003—MDO

Local Rule 7.1(g) provides, in relevant part, that "[m]otions for reconsideration ... may be served not later than TEN CALENDAR DAYS after the entry of the challenged judgment, order, or decree." (emphasis in original). With respect to the first issue sought to be reconsidered, the United States points to footnote 13 of the November 6, 2002, MDO₂ granting the defendant's motion to suppress. Specifically, the footnote states that "[i]t has already been determined that the officers did not have probable cause to arrest Gagnon prior to the search. (See Docket No. 22, Memorandum-Decision and Order granting in part and denying part defendant's omnibus motion)." Gagnon, 230 F.Supp.2d at 273 n. 13. Clearly, the footnote does not make the finding that no probable cause existed; it merely references the prior MDO. That prior MDO was entered on July 24, 2002. Thus, in order to have the finding reconsidered, pursuant to Local Rule 7.1(g), the United States was required to challenge it within ten days of July 24, 2002. This motion to reconsider, which contained the challenge to this decision was not made until November 21, 2002. It is therefore untimely.

2. November 6, 2003—MDO₂

The United States also seeks reconsideration of the November 6, 2002, MDO₂ granting the defendant's motion to suppress. At first glance, it appears that this, too, is untimely, as more than "TEN CALENDAR DAYS" elapsed between November 6, 2002, and November 21, 2002, when the motion to reconsider was filed. It is "acknowledge[d] that L.R. 7.1(g) on its face appears to set forth a very straightforward requirement, but in conjunction with the Federal Rules, [it] does not really mean `calendar days,' but `business days'." United States v. Chiochvili, 103 F.Supp.2d 526, 529 (N.D.N.Y.2000) (emphasis in original). Excluding weekend days and a holiday, exactly ten days passed from the date of MDO₂ granting the defendant's motion to suppress to the date the United States filed its motion to reconsider. The motion to reconsider MDO₂ granting the defendant's motion to suppress is therefore timely and will be discussed.

B. Merits of motion to reconsider MDO₂

While the government's motion to reconsider the MDO₂ granting the defendant's motion to suppress is timely, it fails on its merits. In deciding whether to grant such a motion, a "clearly erroneous" standard is employed. John and Vincent Arduini Inc. v. NYNEX, 129 F.Supp.2d 162, 167 (N.D.N.Y.2001); United States v. Bocio, 105 F.Supp.2d 1, 2 (N.D.N.Y.2000). This high burden is imposed "in order to dissuade repetitive arguments on issues that have already been considered by the court," and "to ensure finality and prevent the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters." See Ruiz v. Commissioner of the Dept. of Transp. of the City of New York, 687 F.Supp. 888, 890 (S.D.N.Y.1988).

"Generally, the prevailing rule in the Northern District recognizes only three possible grounds upon which motions for reconsideration may be granted: they are (1) an intervening change in the controlling law; (2) the availability of new evidence; or (3) the need to correct a clear error of law or prevent manifest injustice." Chiochvili 103 F.Supp.2d at 528 (internal quotations and citation omitted); see also Bartz v. Agway, Inc., 849 F.Supp. 166, 167 (N.D.N.Y.1994). The government asserts that reconsideration is proper in light of newly discovered evidence in the form of a letter and interview with inmate Crandall, who allegedly spoke to the defendant in English at the jail. Crandall's information was confirmed by another inmate, from county sheriff department employees, and tape recordings that were originally viewed by the government as merely cumulative evidence. According to the government, all demonstrate that the defendant possessed sufficient English-speaking skills to allow the officers who searched the tractor-trailer to...