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