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U.S. v. CHIOCHVILI

February 25, 2000

UNITED STATES OF AMERICA
V.
LILI CHIOCHVILI, DEFENDANT.



The opinion of the court was delivered by: Kahn, District Judge.

DECISION AND ORDER

In this criminal action, Defendant is charged with transporting three aliens in the United States in knowing or reckless disregard of the fact that they were present in the United States illegally in violation of 18 U.S.C. § 1324(a)(1)(A)(ii) and with conspiring to do the same in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). Presently before the court is the Government's motion for reconsideration of the Court's 1 December 1999 order that granted in part and denied in part Defendant's motion to suppress statements Defendant made between the time Government Agents started questioning her and the time they advised her of her Miranda*fn1 rights. See United States v. Chiochvili, 81 F. Supp.2d 393 (N.D.N.Y. 1999).

I. Standard of Review for Motions for Reconsideration

Motions for reconsideration proceed in the Northern District of New York under Local Rule 7.1(g), unless otherwise governed by Fed.R.Civ.P. 60. The Government submits that the moving party must "point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." (Mot. Recons. Ct.'s Decision to Suppress Gov't's Evid. (hereinafter "Mot. Recons.") at 1 (Doc. 50, 13 Dec. 1999), quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (Calabresi, J.).) The "clearly erroneous" standard of review applies to motions for reconsideration. 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 controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice." In re C-TC 9th Ave. Partnership, 182 B.R. 1, 3 (N.D.N.Y. 1995) (McAvoy, C.J.).

In the present case, the Government does not contend that the first ground, an intervening change in controlling law, applies. Although the Government does state that it wishes to draw the Court's attention to certain testimonial evidence, that evidence was before the Court when it made its previous ruling. Thus, the Government is not contending that the second ground, the availability of new evidence not previously available, applies. It appears that the Government is instead arguing on the basis of the third ground, that its motion for reconsideration should be granted in order to correct a clear error of law or prevent a manifest injustice.

This is a demanding standard.

It is not enough . . . that [the moving party] could now make a more persuasive argument. . . . "[M]ere doubt on our part is not enough to open [up] the point for full reconsideration." The law of the case will be disregarded only when the court has "a clear conviction of error" with respect to a point of law on which its previous decision was predicated.

Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981) (Friendly, J.) (citations omitted) (quoting White v. Higgins, 116 F.2d 312, 317 (1st Cir. 1940), and Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964) (Friendly, J.)). A simple difference of opinion, no matter how deep it runs, will not warrant reconsideration. "[A]ny litigant considering bringing a motion for reconsideration must evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant." In re C-TC 9th Ave. Partnership, 182 B.R. at 3.

II. Timeliness of Motion

Defendant argues that the Government's motion for reconsideration is untimely. "Motions for reconsideration . . . may be served not later than TEN CALENDAR DAYS after the entry of the challenged judgment, order or decree." L.R. 7.1(g). Defendant notes that the Court's decision was filed 1 December 1999; the Government filed and served its Memorandum of Law and Affidavit in support of its motion for reconsideration on 13 December 1999, and filed its Notice of Motion on 15 December 1999. Therefore, Defendant asserts, the motion was served and filed later than ten days after the decision, and should be denied as untimely.

At first glance that appears an obvious conclusion, but Defendant has not properly calculated the time period. "When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Fed.R.Civ.P. 6(a). Accordingly, the 4th, 5th, 11th and 12th of December must be excluded in the computation of this ten-day period. Computed properly, the Government's Memorandum of Law and Affidavit were filed eight days after the Court's decision, and its Notice of Motion was filed ten days after the decision. The Government's motion is timely.

Defendant's counsel should have known the proper rules for computing the pertinent time period. Nevertheless, the Court also acknowledges that L.R. 7.1(g) on its face appears to set forth a very straightforward requirement, but, in conjunction with the Federal Rules, does not really mean "calendar days," but "business days." This method of stating time periods, in which an ostensibly plain-language requirement invisibly presumes the reader's knowledge of a separate provision in the rules, is not ideal.

III. Discussion

As detailed in the Court's earlier decision, the events in question began when Canadian authorities alerted United States Government Agents to suspicious activities near the international border. (Untitled mem. at 3*fn2 (Doc. 44, 16 Aug. 1999) (hereinafter "mem.").) The Agents established surveillance positions near the border, and observed individuals making a surreptitious crossing of the border, through the woods and under cover of night. (Id. at 2.) They then observed suspicious actions by a car that picked up the individuals who had crossed the border on foot. (Id.) Soon thereafter, a Border Patrol Agent, John Letourneau, stopped the vehicle the agents had observed, and questioned the Defendant, who was driving, and her three adult passengers. Defendant was "Mirandized " not at the ...


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