The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM — DECISION and ORDER
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 BACKGROUND
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,*fn1 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.
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 ...