
USCA1 Opinion

	




          November 3, 1992  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1341                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                   LESLIE ROBERTS,                                 Defendant, Appellee.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of  the Court  issued on  October 26,  1992, is          corrected as follows:               page 10, last line   insert "of" between "all" and "these"               page  11,  line 1    substitute  "the  list of  factors" for          "it"October 26, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1341                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                   LESLIE ROBERTS,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                               ________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                              _________________________               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with whom Richard S. Cohen,  United States Attorney, and Jonathan                    ________________                               ________          A. Toof, Assistant  United States  Attorney, were  on brief,  for          _______          appellant.               Richard  S.   Emerson,  Jr.,  with  whom   Childs,  Emerson,               ___________________________                _________________          Rundlett, Fifield & Childs was on brief, for appellee.          __________________________                              _________________________                              _________________________                    SELYA, Circuit  Judge.  The government  appeals from an                    SELYA, Circuit  Judge.                           ______________          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.          I.  BACKGROUND          I.  BACKGROUND                    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                                        ____________________               121  U.S.C.      841(a)(1)  criminalizes,  inter  alia,  the                                                          _____  ____          "manufacture" of "a controlled substance."  We have recently held          that growing  marijuana falls squarely within  this proscription.          See  United States v. One  Parcel of Real  Property (Great Harbor          ___  _____________    ___________________________________________          Neck), 960 F.2d 200, 205 (1st Cir. 1992).          ____                                          3          arrive in that  day's mail.   The government  never received  the          mailed  papers.    On  Wednesday,  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).                                        ____________________               2The rule states:   "Unless within 10 days after  the filing          of a motion the opposing party files a written objection thereto,          he shall  be deemed to  have waived objection."   D. Me.  Loc. R.          19(c).   Local Rule 19(c)  applies in civil  as well as  criminal          cases.  See D. Me. Loc. R. 1(a).                  ___                                          4          II.  A PROCEDURAL QUAGMIRE          II.  A PROCEDURAL QUAGMIRE                    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                                          5          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; 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.                                        ____________________               3We are of  the opinion  that a protocol  in which  service,          rather  than filing, triggers the obligation  to respond would be          far more conventional   and far  more logical.  Rules requiring a          response  within  a  specified  period after  service  or  notice          abound.  E.g., Fed. R. Civ. P. 12(a) (answer to complaint, cross-                   ____          claim,  or  counterclaim),  12(e)  (response to  order  for  more          definite statement), 45(c)(2)(B) (objection to subpoena); Fed. R.          Crim. P.  12.1(b) (response to alibi  defense), 12.3(a)(2) (reply          to  demand for  witness  list), 32.1(b)  (objection to  probation          terms).  Calculating a  response period from the date  of service          or  notice  is a  commonly used  device  because such  a paradigm          prevents  a party  from forfeiting  an objection  to a  motion or          other pleading about which it had no knowledge.                                          6          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                                          7          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.5   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.          III.  STANDARD OF REVIEW          III.  STANDARD OF REVIEW                    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  (1989);  Aggarwal  v.  Ponce  School  of          ______                            ________      _________________          Medicine,  745 F.2d  723,  726 (1st  Cir.  1984); Hawes  v.  Club          ________                                          _____      ____                                        ____________________               4We  think it  is  equally plain  that the  district court's          local  rule should be clarified.  Literal application of the rule          as  written  would, in  many  cases, prove  unfair  to litigants.          Specifically,  the district  court  should consider  amending the          local rule to  state clearly whether a response  is due from date          of  filing or  date  of  service and,  if  the former,  what  the          consequence of lack of notice to the respondent entails.  We also          hope  the district  court will  clarify that  weekends are  to be          excluded  from the  computation of  the ten-day  response period.          Finally,  the court  may  wish to  clarify whether  the three-day          period provided in Rule  45(e) can extend the ten-day  limit and,          if so, whether those additional three days exclude weekends.                                           8          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                    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 (1988).            ______          IV.  ANALYSIS          IV.  ANALYSIS                    This appeal  arises in a  peculiar procedural  posture.                                        ____________________               5As a technical matter, the court below agreed to reconsider          but then refused  to alter its earlier order.  This maneuver does          not affect  the standard of review.   The denial of  a motion for          reconsideration  is  reviewable for  abuse  of  discretion.   See                                                                        ___          Odishelidze v.  Aetna Life &  Casualty Co., 853 F.2d  21, 25 (1st          ___________     __________________________          Cir. 1988) (per curiam); In  re Sun Pipe Line Co., 831  F.2d. 22,                                   ________________________          26 (1st  Cir. 1987),  cert. denied,  486 U.S. 1055  (1988).   The                                _____ ______          denial  of  a motion  for leave  to  file an  objection  or other          pleading out  of time  is measured  by the  same yardstick.   See                                                                        ___          Pontarelli v. Stone, 930 F.2d 104, 112 (1st Cir. 1991); Taumby v.          __________    _____                                     ______          United  States, 902 F.2d 1362, 1367  (8th Cir. 1990); Clinkscales          ______________                                        ___________          v. Chevron U.S.A., Inc., 831 F.2d 1565, 1568-69 (11th Cir. 1987);             ____________________          Ham v. Smith, 653 F.2d 628, 630-31 (D.C. Cir. 1981).          ___    _____                                          9          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          because plaintiff failed to file a timely response to defendant's          motion to  dismiss, we  ruled that,  when  reconsideration of  an          earlier  ruling is  requested,  the district  court should  place          great emphasis upon the "interests of justice."  Id. at 23.  This                                                           ___          is  so, we  reasoned, because  such requests  for reconsideration          rely, in the last  analysis, on the trial court's  inherent power          to  afford  relief  from  interlocutory  decisions   "as  justice          requires."   Id.  at  22 (citation  and internal  quotation marks                       ___          omitted).                    The  wrinkle that  distinguishes  this  case  is  that,          rather than denying the  motion to reconsider, as in  Greene, the                                                                ______          court below granted  the motion to  reconsider but then  affirmed          its original ruling.  See  supra note 5.  It can  be argued that,                                ___  _____          in so  doing, the  court treated  the motion to  reconsider as  a          motion for an  extension of time, thus bringing Fed.  R. Crim. P.          45(b)(2) to  the fore.6  Rule 45(b)(2)  provides that when an act          is  required to be completed  within a specified  time, the court          "for  cause shown" may, "upon motion made after expiration of the          specified period," extend the deadline if the movant's failure to                                        ____________________               6By contrast, in Greene  we specifically noted that  Fed. R.                                ______          Civ. P.  60(b), with its  "excusable neglect"  standard, did  not          apply because the  defendant had moved merely to  dismiss certain          counts, not to dismiss the entire case.  Greene, 764 F.2d at 22.                                                   ______                                          10          act resulted from "excusable neglect."                      We do not choose to enter into a purely academic debate          over  the controlling standard.  Excusable  neglect is a flexible          concept.  In this  case, as we demonstrate below,  its parameters          are  informed by, and  roughly congruent  with, the  interests of          justice.   (It would, after all,  make very little sense to allow          reconsideration because  justice requires,  only to reassess  the          underlying procedural  default on some standard  totally divorced          from the interests of justice.)  Hence, we proceed to analyze the          lower court's  rulings under both rubrics,  mindful, withal, that          in the end the two standards coalesce.                               A.  Interests of Justice                               A.  Interests of Justice                                   ____________________                    Justice is  an ideal  that defies precise  definition.           It  is, therefore, impossible to  list a series  of integers that          will  necessarily dominate  the interests-of-justice  equation in          every case.   We can,  however, offer  certain rules of  thumb to          guide the district courts.                    In  determining this motion  to reconsider  the court's          response  to the belated filing  before us, it  would have helped          had the district court examined the following seven factors:  (1)          the  nature of  the case,  (2) the  degree of tardiness,  (3) the          reasons  underlying  the  tardiness,  (4) the  character  of  the          omission,  (5) the existence  vel non of  cognizable prejudice to                                        ___ ___          the nonmovant in consequence  of the omission, (6) the  effect of          granting  (or  denying)  the  motion  on  the  administration  of          justice,  and (7) whether the belated filing would, in any event,                                          11          be  more than an empty  exercise.  We  emphasize these particular          factors because  they assist in  demonstrating that there  was no          reasonable basis for the district court to deny  the government's          request.   The list is merely  illustrative.  We do  not say that          courts must necessarily look at each  and all of these factors in          every  case, or  that courts  cannot, in  a proper  case, examine          other  factors.   At any rate,  the list of  factors will require          tailoring  to reflect the nature of the ruling that underlies the          motion  to  reconsider.   Because  an  interests-of-justice  test          covers  considerable ground,  the  trial court  should strive  to          acquaint itself with the  totality of the relevant circumstances.          By the same token, an appellate court called upon to review  such          a determination must take a panoramic view.  We do so here.                    1.  Nature of the  Case.  This is a criminal  case and,                    1.  Nature of the  Case.                        ___________________          importantly, a criminal case  involving serious accusations.  The          defendant  was  charged  with manufacturing  marijuana  and  with          possessing   it   for   the   intended  purpose   of   commercial          distribution.  There  is a strong public interest in adjudicating          felony  cases on  the merits.   See  Hastings, 847  F.2d at  925.                                          ___  ________          Moreover, "[t]he  graver the  crimes, the  greater the  insult to          societal  interests if the charges are dropped, once and for all,          without a meaningful  determination of guilt or innocence."  Id.7                                                                       ___                                        ____________________               7We understand that, in granting the defendant's motion, the          district  court  did  not  dismiss the  indictment,  but  instead          suppressed evidence.   The  government has argued,  however, that          the material  suppressed   the government's  entire storehouse of          physical  evidence  (including   2,577  marijuana  plants,  eight          firearms, a substantial sum  of money, etc.) and evidence  of the          defendant's admissions  of guilt    is  of such importance  that,                                          12          Because drug-trafficking cases are by their very nature extremely          serious, this  factor cuts sharply  in favor of  the government's          position  (just as the seriousness  of the penalty  would cut the          other way  in a case in  which the defendant had  missed a filing          deadline).                    2.   Degree of Tardiness.  The length of a supplicant's                    2.   Degree of Tardiness.                         ___________________          delay  is often  a key  factor in  deciding  whether to  permit a          pleading to be filed out of time.  The longer a litigant dawdles,          the less incentive  exists for a court to reconsider.   See In re                                                                  ___ _____          Sun Pipe Line Co., 831 F.2d 22, 26 (1st Cir. 1987), cert. denied,          _________________                                   _____ ______          486 U.S. 1055 (1988).   Here, however, on a  worst-case scenario,          the government was only  four days late in requesting  extra time          and  five days late in  filing its opposition  to the suppression          motion.  Thus, the delay  was brief and the degree of  tardiness,          if any, was correspondingly slight.  This factor, too, favors the          government.                    3.  Reasons for Tardiness.  We look next to the reasons                    3.  Reasons for Tardiness.                        _____________________          underlying the  procedural default.  The  district court credited          the prosecutor's explanation, but adopted a dismissive  attitude,          literally and figuratively, discerning  no excusable neglect.  We          question  the supportability  of  this conclusion.    As we  have          pointed  out,  see supra  Part  II, the  interlocking  rules that                         ___ _____          govern computation of time in  this situation are freighted  with                                        ____________________          unless  the  order is  vacated, the  case cannot  be successfully          prosecuted.     The  defendant   has  not  disagreed   with  this          assessment. Hence,  we  regard the  order  appealed from  as  the          functional equivalent of an order for dismissal.                                          13          ambiguity.    Bearing  in mind  that  good  cause  "is a  mutable          standard, varying from situation  to situation," Coon v. Grenier,                                                           ____    _______          867 F.2d  73,  76 (1st  Cir.  1989),  we think  the  lower  court          probably undervalued the worth of appellant's explanation.                    4.  Character of the Omission.   In determining whether                    4.  Character of the Omission.                        _________________________          to hold a litigant to a nonjurisdictional procedural default, the          presence  or  absence  of  willfulness is  invariably  a  salient          consideration.   See, e.g.,  Velazquez-Rivera v.  Sea-Land Serv.,                           ___  ____   ________________     _______________          Inc.,  920  F.2d 1072,  1076 (1st  Cir.  1990) (holding  that, in          ____          connection  with  sanctions,   an  innocent   mistake  "must   be          distinguished  from  more  deliberate  . .  .  delays  in  filing          [papers]").   The nisi prius court  should always investigate the          degree of culpability, asking whether the omission was deliberate          or accidental, grossly negligent or merely careless.                    In   this  case,   the  government's   delay  was   not          intentional.   It resulted from a  simple mistake   one  that was          fully understandable in light of the local rule's ambiguity.  The          omission was not a  byproduct of bad faith or  reckless disregard          of  responsibilities owed  to the  court.8   We have  said in  an          analogous  context that  "[r]andom  negligence, while  not to  be          condoned,  is  less   blameworthy  than  purposeful  misconduct."          Hastings, 847 F.2d  at 925.   Given the nature  of the lapse,  we          ________                                        ____________________               8Indeed,  the  record reveals  that  diligence, rather  than          dilatoriness, typified the government's behavior.  The government          was  prompt in notifying the  defendant that it  had not received          the relevant documents, in reporting its position to the court as          soon  as it was notified  that the court  considered the response          period  to have expired, and in filing a reply to the suppression          motion immediately thereafter.                                          14          count this factor as close to neutral.                    5.  Prejudice.   We next inquire  whether the interlude                    5.  Prejudice.                        _________          caused cognizable  prejudice.  See Velazquez-Rivera,  920 F.2d at                                         ___ ________________          1078; cf.  Greene,  764  F.2d at  23.   There  is  absolutely  no                ___  ______          evidence that a four- or  five-day delay hampered prosecution  of          the  motion to  suppress,  threatened  to  stall  the  trial,  or          interfered with appellee's  defense.   Nor is  there any  showing          that appellee will be unfairly harmed should the motion be argued          now.    Since  we  have consistently  declined  either  to  infer          prejudice  from the  mere passage of  time (particularly  a short          period  of  time) or  to hold  that simply  requiring a  party to          litigate amounts to prejudice, see Coon, 867 F.2d at 77, we place                                         ___ ____          this factor in the government's column.                     6.   Institutional Interests.   The  court, too,  has a                    6.   Institutional Interests.                         _______________________          significant interest  in the  punctilious observation  and strict          enforcement   of   its  procedural   rules,   including  temporal          requirements.   See In re Sonoma  V, 703 F.2d 429,  432 (9th Cir.                          ___ _______________          1983)  (noting that  strict enforcement  of time  constraints may          prove necessary  to allow a court "responsible  for the condition          of  its  docket  and for  the  speed  with  which it  administers          justice"  to  ensure  "a   proper  flow  of  judicial  business")          (citation omitted).   While we think  this factor deserves  great          weight, we note  that, in the instant case,  there is no evidence          that  delayed  consideration of  the suppression  motion's merits          would  have burdened  judicial resources  or interfered  with the          court's  administration of its docket.   In the  absence of other                                          15          considerations,  the  fact that  the  case was  in  its embryonic          stages argues persuasively against  granting a dispositive motion          solely  on  the  ground  of  a  rather  minimalistic   period  of          inadvertent  delay.   Cf.,  e.g., Velazquez-Rivera,  920 F.2d  at                                ___   ____  ________________          1077; Coon, 867 F.2d at 76.                ____                    7.   Utility  of the  Pleading.   We have  indicated in                    7.   Utility  of the  Pleading.                         _________________________          related settings that weight should be attached to the likelihood          of  success if the party moving for reconsideration is allowed to          revisit the underlying  issue.   See Mackin v.  Boston, 969  F.2d                                           ___ ______     ______          1273, 1279 (1st  Cir. 1992).  Here, the government claims that it          has a meritorious argument against  suppression.  At first blush,          its position is  plausible.  While we take no  view of the merits          of  the suppression  motion, we  are unable  to conclude  at this          early stage  that the proffered opposition  is necessarily futile          or a waste of time.  Thus, this factor cuts the government's way.                    8.    Recapitulation.     The  clear  majority  of  the                    8.    Recapitulation.                          ______________          pertinent factors (perhaps as many as six out of seven) militates          in  favor of  reconsideration and  reversal.   The defendant  has          identified no countervailing  factors and we  can think of  none.          Indeed, the balance  of justice  seems to weigh  more heavily  in          this case than in Greene (a case in which the movant was afforded                            ______          some  relief).   Greene  was  six days  late in  responding  to a          defense motion; here, the government, if late at all, fomented an          even shorter period of  delay.  Moreover, this is a criminal, not          a civil, case; and  unlike Greene, appellant proffers sympathetic                                          16          reasons for its tardiness.9                                 B.  Excusable Neglect                                B.  Excusable Neglect                                    _________________                    If we treat the lower court's ruling as  the functional          equivalent  of a  refusal  to allow  the  government to  file  an          opposition out of  time, the  defendant fares no  better.   Since          Fed. R. Civ. P. 6(b)(2) uses language virtually identical to that          of Fed. R. Crim. P. 45(b)(2), decisions construing the civil rule          are  instructive   in  determining  what  constitutes   cause  or          excusable neglect under its criminal analogue.  See Fed. R. Crim.                                                          ___          P.  45 advisory  committee note  (1944) (explaining  that because          Criminal Rule 45 "is in substance the same as [Civil Rule 6] .  .          .  matters  covered by this rule should be  regulated in the same          manner for civil and  criminal cases"); 3A Wright, supra,    751,                                                             _____          at 92-93 (stating that Civil Rule 6 "may usefully be consulted in          determining the meaning of [Criminal Rule 45]").                    In general,  mistake or inadvertence as  to the meaning          of  a  rule  is  not  a  sufficient  reason  to grant  a  belated          application for  more time.  See, e.g., Spear, Leeds & Kellogg v.                                       ___  ____  ______________________          Public  Serv.  Co.,  700  F.  Supp.  791,  794  (S.D.N.Y.  1988).          __________________          Nonetheless, ambiguity in a rule or court order can give  rise to          excusable  neglect sufficient  to warrant  an extension  of time.          See, e.g., De  Santa v. Nehi  Corp., 171 F.2d  696, 698 (2d  Cir.          ___  ____  _________    ___________          1948); Spear, 700  F. Supp. at 794.  In this case, the meaning of                 _____          the  local  rule and  its interplay  with  the criminal  rules is                                        ____________________               9In Greene, plaintiff's counsel said that he was "on 'quasi-                   ______          vacation,'"  that he  "'misunderstood' defendant's  counsel," and          that "his office procedures broke down."  Greene, 746 F.2d at 23.                                                    ______                                          17          logogriphic.  Thus, government counsel's inability to anticipate,          and conform  strictly to, the district  court's less-than-obvious          interpretation of the requirements of Local Rule 19(c) strikes us          as excusable within the meaning of Rule 45(b).                    Moreover, case  law in this circuit  and beyond reveals          that  the excusable  neglect standard,  in a situation  like this          one,10  embodies a  need  to consider  a  matrix of  factors  not          materially different  from those we have  canvassed in connection          with the interests-of-justice standard, e.g., the significance of                                                  ____          the  delay, see Coady v.  Aguadilla Terminal Inc.,  456 F.2d 677,                      ___ _____     _______________________          678 (1st Cir. 1972),  prejudice to the other party,  see Staggers                                                               ___ ________          v. Otto  Gerdau Co., 359  F.2d 292, 296  (2d Cir. 1966),  and bad             ________________          faith, see Tatterson v.  Koppers Co., 104 F.R.D. 19, 20 (W.D. Pa.                 ___ _________     ___________          1984);  Vandervelde v.  Put &  Call Brokers  & Dealers  Ass'n, 43                  ___________     _____________________________________          F.R.D. 14, 20  (S.D.N.Y. 1967).   As we  have previously  pointed          out,  see  supra Part  IV(A),  these factors  counsel,  with near                ___  _____          unanimity,  in favor  of permitting  the  government to  file its          objection out of time.                              C.  Totalling the Account                              C.  Totalling the Account                                  _____________________                                        ____________________               10The Ninth  Circuit, in  an analogous context,  urged lower          courts to  "apply[] a liberal definition  of 'excusable neglect'"          and suggested a  broad range  of factors that  might properly  be          considered in  attending to the  task.  In re  Magouirk, 693 F.2d                                                  _______________          948,  951  (9th  Cir.  1982)  (discussing  excusable  neglect  in          connection with  former Bankruptcy Rule 924).   The Fifth Circuit          took  much the same tack in Hibernia Nat'l Bank v. Administracion                                      ___________________    ______________          Central Sociedad Anonima, 776 F.2d  1277, 1280-81 (5th Cir. 1985)          ________________________          (discussing  excusable  neglect  in  the context  of  Civil  Rule          60(b)(1)).  The factors mentioned in Magouirk and Hibernia bear a                                               ________     ________          strong  family resemblance to  the factors we  have enumerated in          our interests-of-justice analysis.                                          18                    We  do not  think it  makes a  difference in  this case          which  standard  the  district  court  applied  (or  should  have          applied).    The excusable  neglect  standard  often acquires  an          "interests  of justice"  gloss.   See Coady,  456 F.2d  at 678-79                                            ___ _____          (holding that  the "delay in filing  a cost bond, where  no other          action had  taken place, is so insignificant and so unprejudicial          in  any sense,  that we think  in justice it  should be excused")                                         __ _______          (emphasis supplied);  cf. Hibernia  Nat'l Bank  v. Administracion                                ___ ____________________     ______________          Central Sociedad  Anonima, 776  F.2d 1277,  1281 (5th  Cir. 1985)          _________________________          (discussing  excusable  neglect  in  terms of  the  "interest  of          justice").  This is such a case.                    Given the collocation of circumstances, we believe that          the district court,  on either standard, abused its discretion in          two  ways.  First,  the court apparently failed  to weigh all the          proper factors in reaching its decision.  Beyond this likelihood,          we are convinced  that, in  granting the  suppression motion  pro                                                                        ___          forma  and  adhering to  its  order  after  receiving a  credible          _____          explanation of what had  gone wrong, the court below  committed a          mistake of  judgment that cannot be  allowed to stand.   When the          appropriate elements  are placed on  the scale, the  balance tips          dramatically  in   favor  of   reconsidering  and  allowing   the          opposition to be filed.   Put another way, the  government showed          sufficient  cause   to  excuse   its  failure  to   respond  more          celeritously to the suppression motion.          V.  CONCLUSION          V.  CONCLUSION                                          19                    We  need go no further.11   This is  a serious criminal          case.  At the  very worst, the government inadvertently  missed a          filing deadline in a situation where a miasma of doubt surrounded          the proper  interpretation and  interplay of the  relevant rules.          Hence, the government  had a plausible reason for the  error.  It          informed the  court immediately upon recognition  of its possible          mistake and filed the omitted response the very next day (no more          than five  days after it was due).  The record reveals no history          of   recalcitrance,  sloppiness,   or  sharp   practice  on   the          government's  part.    There   is  no  suggestion  of  cognizable          prejudice to the defendant or burden to the court's schedule.  In          these  circumstances, stony  adherence  to the  district  court's          debatable interpretation of Local Rule 19(c) was unwarranted.          Vacated and remanded.          Vacated and remanded.          ____________________                                        ____________________               11Because  we conclude  that the  district court  abused its          discretion in  failing to reconsider and  accept the government's          opposition  out  of time,  we need  not address  the government's          contention that, notwithstanding the lack of a timely opposition,          the   district  court   was   nevertheless  required   to  review          defendant's motion on the merits before suppressing the evidence.                                          20
