text:
    LIMOLINER, INC., Plaintiff, Appellant, v. DATTCO, INC., Defendant, Appellee.
    No. 14-2188
    United States Court of Appeals, First Circuit.
    Entered: October 5, 2016
    Robert E. Curtis, Jr., North Andover, MA, James Steven Singer, Rudolph Fried-mann LLP, Boston, MA, for Plaintiff, Appellant.
    Brian O’Donnell, Reid and 'Reige PC, Hartford, CT, Christopher Shaw Williaihs, Boston, MA, for Defendant, Appellee.
    Before KAYATTA, STAHL, and BARRON, Circuit Judges.
   JUDGMENT

This case concerns a dispute between a luxury motor coach company, LimoLiner, Inc., and. the company LimoLiner engaged to repair one of its coaches, Dattco, Inc. In our prior opinion in this case, we disposed of all the claims at issue in LimoLiner’s appeal from an order entered after a four-day bench trial, save for. certain ones that pertain to Chapter 93A of the Massachusetts General Laws. LimoLiner, Inc. v. Dattco, Inc., 809 F.3d 33, 42 (1st Cir. 2015). In particular, in our prior opinion, we declined to resolve LimoLiner’s challenge to the ruling below that Dattco was not liable for damages under Chapter 93A because Dattco was not subject to certain Massachusetts state regulations prohibiting unfair or deceptive practices by auto-repair shops. Id. at 36-38. Because those regulations were promulgated pursuant to the Attorney General’s authority under Chapter 93A, a violation of the regulations constitutes a per se violation of Chapter 93A. Mass. Gen. Laws ch. 93A, § 2; 940 C.M.R. § 3.16(3). '

The ruling in question rested on the determination that those regulations—940 C.M.R. §§ 5.06(2), (3), and (5)—apply only to transactions between individual customers and auto-repair shops, and not to auto-repair transactions initiated by businesses like LimoLiner. Recognizing the importance of the regulations and the absence of controlling Massachusetts precedent as to their application to businesses rather than to noncommercial customers, we certified to the Massachusetts Supreme Judicial Court the question of whether Section 5.05, including the subsections relevant to this appeal, applies to “transactions in which the customer is a business entity.” Id. at 38.

The SJC has now answered the certified question in the affirmative by holding that Section 5.05 “was intended to apply to inter-business transactions.” LimoLiner, Inc, v. Dattco, Inc., 475 Mass. 420, 423, 57 N.E.3d 969 (2016). In consequence, the order finding that Dattco was not liable under Chapter 93A due to alleged violations of Section 5.05 can no longer be sustained on the legal basis on which it rests. And, although LimoLiner contends in its briefing to us that we can reverse, at least in part, the order finding that Dattco is not liable on the ground that the Magistrate Judge found that certain repairs LimoLiner requested were “not recorded in [Dattco’s] written list of repairs,” we decline to do so, particularly given that Dattco appears to dispute the relevance of this finding of fact to the issue of Dattco’s liability under Chapter 93A for alleged violations of Section 5.05. That dispute, and any others that may be germane to what remains of the suit, is best resolved in the first instance on remand. See Town of Barnstable v. O’Connor, 786 F.3d 130, 143 (1st Cir. 2015) (declining “to decide questions of law upon which the district court has itself not yet focused or addressed other than in passing”).

For the reasons stated in our December 23, 2015 opinion, we affirm the Magistrate Judge’s disposition of the parties’ state-law contract claims. In light of the SJC’s answer to our certified question, we vacate the portion of the Magistrate Judge’s findings of fact and conclusions of law holding that Dattco was not subject to 940 C.M.R. § 5.05, and therefore was not liable for violations of Chapter 93A, and remand for further proceedings consistent with this opinion. LimoLiner’s motion for further orders is, accordingly, granted in part and denied in part. We award no costs under Federal Rule of Appellate Procedure 39(a)(4).

      . LimoLiner contends that this finding of fact shows conclusively that Dattco violated Section 5.05(2)(e), which provides that "[it] is an unfair or deceptive act or practice for a repair shop, prior to commencing repairs on a customer’s vehicle, to fail to record in writing ... [t]he specific repairs requested by the customer.”


source: Caselaw Access Project

author: McAULIFFE, District Judge.

license: Public Domain

text:
    IN RE: Patrick J. HANNON; Elizabeth Hannon, Debtors. Patrick J. Hannon, Plaintiff, Appellant, v. ABCD Holdings, LLC; ABC&D Recycling, INC.; Ware Real Estate, LLC, Defendants, Appellees.
    No. 15-2269
    United States Court of Appeals, First Circuit.
    October 7, 2016

      Matthew R. Johnson, with whom Joshua M. Wyatt and Devine, Millimet & Branch, P.A. were on brief, for appellant.
    Joel E. Faller, with whom McLaughlin Brothers, P.C, was on brief, for appellees.
    Before KAYATTA and BARRON, Circuit Judges, McAULIFFE, District Judge.

       Of the District of New Hampshire, sitting by designation.

   McAULIFFE, District Judge.

Patrick J. Hannon (“Hannon”) appeals from the entry of summary judgment denying his petition for a discharge in bankruptcy. See 11 U.S.C. § 727(a)(4)(A). The bankruptcy court denied the discharge after concluding that Hannon made false material statements with respect to- disbursements made on his behalf by third parties during the bankruptcy proceeding. The district court affirmed the bankruptcy court’s entry of summary judgment, and we affirm as well.

I. Background

A. Factual Background

In May of 2012, Hannon and his wife, Elizabeth, sought protection from their creditors by filing a voluntary bankruptcy petition under Chapter 11 of the Bankruptcy Code. The Hannons reported total assets of about $6 million, and liabilities of approximately $10.4 million, which included a disputed tax debt of more than $7 million.

Hannon owned and operated a recycling and scrap metal company, ABC&D Recycling, Inc. (“ABC&D Recycling”), as well as a real estate company, Ware Real Estate, LLC (“Ware Real Estate”), which held title to the land on which ABC&D Recycling was located. The Hannons estimated that monthly expenses necessary to support their family during the bankruptcy process would average about $13,180, and noted that the income required to pay those expenses would come from ABC&D Recycling’s ongoing operations while Han-non served as debtor-in-possession.

ABC&D Recycling and Ware Real Estate

Hannon bought ABC&D Recycling and Ware Real Estate with the help of an attorney named George McLaughlin, Esq., who had previously represented Hannon. McLaughlin owned a financing company, Bright Horizon Finance, LLC (“Bright Horizon”), which loaned Hannon the necessary funds. Bright Horizon’s loan terms included warrant rights, affording it the option to purchase a 50.1 percent interest in each company. On June 21, 2012, after the Hannons filed for bankruptcy protection, Bright Horizon assigned its warrant to ABCD Holdings, LLC (“ABCD Holdings”), another company controlled by McLaughlin, and, on July 17, 2012, ABCD Holdings exercised those warrant rights, thereby obtaining a 50.1 percent ownership interest in both Ware Real Estate and ABC&D Recycling.

A few weeks earlier, on June 27, 2012, McLaughlin, suspecting that business funds were being diverted by Hannon for unauthorized purposes, obtained an ex parte temporary restraining order from the Suffolk County Superior Court. That order temporarily barred Hannon from ABC&D Recycling’s premises. On July 2, 2012, however, that order was modified to allow Hannon to resume operational control over the business. A short time later, on July 18, 2012, ABCD Holdings i-emoved Hannon as an officer of Ware Real Estate and appointed McLaughlin to replace him. Hannon, however, continued to operate ABC&D Recycling until February 6, 2013, when ABCD Holdings removed him as an officer and director of that company as well. On March 13, 2013, the bankruptcy court approved the sale of Hannon’s remaining minority interest in both Ware Real Estate and ABC&D Recycling to ABCD Holdings.

Hannon’s Monthly Operating Reports

Hannon was required to file monthly operating reports (“MORs”) on a standardized form with the United States Trustee’s office. He did so from May through September of 2012. Hannon says that he provided his counsel with bank statements from the debtor-in-possession accounts and, based on those statements, counsel completed the necessary forms for him. Hannon then reviewed the forms and signed a certification on each MOR which declared “under penalty of perjury” that the report was true and correct “to the best of [his] knowledge and belief.”

The MOR forms require, among other things, that a debtor affirmatively disclose whether funds have been disbursed for the debtor’s benefit from any account other than a debtor-in-possession account, and, if so, to provide an explanation for such payments. Here, that would include disclosure of disbursements made by ABC&D Recycling and Ware Real Estate for Hannon’s benefit. The MOR form also instructs the debtor to report the amount of estate disbursements made by outside sources. On all of the relevant MORs, Hannon reported that funds had been disbursed for his and his wife’s benefit from an. account other than a debtor-in-possession account. In May and June of 2012, for example, Han-non’s MORs identified $1,407.24 and $2,830.30, respectively, as “payments from ABC&D for rent and utilities.” Hannon’s September MOR also disclosed that funds had been disbursed from “ABC&D for rent and utilities,” but reported that no amount (“0”) had been disbursed for the estate’s benefit from outside sources. Han-non’s July and August MORs contained no reference to disclosable payments from ABC&D Recycling, and reported “0” estate disbursements made ■ ■ by outside sources.

Companies Object to Discharge

On July 12, 2013, ABCD Holdings, ABC&D Recycling, and Ware Real Estate (the “Companies”) filed an adversary complaint against Hannon in the bankruptcy proceeding, objecting to his discharge in bankruptcy. Based upon a forensic accounting analysis of the books and records of ABC&D Recycling and Ware Real Estate,' the Companies alleged that while Hannon was in control of the businesses, he diverted a substantial amount of business revenue to his own benefit, without authority. According to the Companies, business funds were diverted by means of: (1) Hannon’s use of business accounts to pay Hannon’s entirely personal expenses; (2) Hannon’s withdrawal of funds from business bank accounts for entirely personal use; and (3) Hannon’s and his family members’ use of business debit cards to cover entirely personal expenses. 'The Companies asserted that Hannon did not disclose receipt of the majority of those diverted funds on his MORs, as required. They charged that Hannon diverted approximately $99,000 from ABC&D Recycling and Ware Real Estate between May and September of 2012, during which period he only identified approximately $4,200 in disbursements made on his behalf on the MOR forms.

On November 21, 2013, the Companies moved for partial summary judgment on their claim that, because Hannon made a false oath or filed a false account in connection with his bankruptcy proceeding, he should be denied a discharge. 11 U.S.C. § 727(a)(4)(A). Hannon, acting pro se, opposed the motion but did not deny that the disbursements identified by the Companies actually occurred. Instead, he contended that virtually all of the identified expenditures were made for business purposes, and not for his personal benefit. And, he argued, some expenditures that appeared to be for his personal benefit were actually made by, or on behalf of, other employees.

Hannon’s Proffered Defenses

A hearing was held in the bankruptcy court on the Companies’ motion. The bankruptcy court questioned Hannon about the transactions at issue. Hannon denied that the identified disbursements were made for his personal benefit, stating that nearly all of them (“99.9 percent of them”) had a business purpose. The bankruptcy court took the matter under advisement, but offered Hannon the opportunity to “spell out in detail” his defenses to the multiple diversion claims.

Hannon then retained new legal counsel, who filed a further brief in opposition to the Companies’ motion for partial summary judgment. Hannon retreated from his earlier claim that 99.9 percent of the disbursements had a business purpose, but included an affidavit in which he declared that many of the disbursements and withdrawals from business accounts actually had a business purpose. He also filed an affidavit by Jeffrey M. Dennis, CPA, in which Dennis opined that laypersons (like Hannon, who had a high school education) typically lack the necessary training to accurately complete MORs. Finally, Han-non provided the court with an unsworn attachment to his memorandum, in the form of a spreadsheet, detailing his explanations for each of the disbursements challenged by the Companies. Hannon’s explanations were divided into three categories: 1) those expenditures that Hannon “believe[d] were incurred for his benefit,” 2) those that he “believe[d were] incurred for legitimate business purposes,” and 3) those that he claimed were incurred for both.a personal and a business purpose,

Hannon conceded that $19,323.22 in business disbursements were “incurred for his benefit.” Those transactions included eleven cash withdrawals, which Hannon labeled as “Stipends to Joint Debtor” (his wife); two paychecks to Hannon from ABC&D Recycling; $7,500 in rent payments made to Hannon’s landlord; $1,500 in payments to a boat storage facility in Maine; retail purchases for groceries, clothing, and entertainment; and video game and music purchases made by Han-non’s daughters on a business debit card.

Hannon identified $77,155.91 of the challenged disbursements as having a business purpose, including substantial cash withdrawals used to make cash payments for scrap metal, expenses related to business travel, and expenses associated with transporting and feeding ABC&D Recycling employees. He included within that category costs associated with two of his homes, one in Wells, Maine, and another in Truro, Massachusetts. According to Han-non, those vacation homes were used for entertaining potential ABC&D clients, so costs associated with maintaining those homes, as well as monies spent entertaining clients while in residence, qualified as business expenses. Disbursements were made to cover costs for utilities, landscaping, local hardware and liquor store purchases, and meals at nearby restaurants.

Finally, Hannon identified $2,849.99 of the questioned disbursements as having both a personal and a business purpose. He included within that final category utility payments related to his Wells and Tru-ro homes.

Hannon had previously given testimony concerning his Wells and Truro homes at a June 6, 2012, meeting of creditors. In response to questioning by counsel to the United States Trustee, Hannon said that he and his family used the Wells home only occasionally and during the day, and that it needed significant work (as a result of major leaks and a dysfunctional heating system) to make it rentable. The Truro vacation home, he said, was used only “once in a while” and otherwise remained unoccupied. He did not mention any marketing or other business entertainment uses of either property.

B. Procedural History

On June 10, 2014, after fully considering the matter, the bankruptcy judge granted summary judgment in favor of the Companies and declined to grant Hannon a discharge in bankruptcy. 11 U.S.C. § 727(a)(4)(A). The court found, as Hannon admitted, that over $19,000 in payments by ABC&D Recycling or Ware Real Estate were made for Hannon’s personal benefit, and that the majority of those payments were not disclosed on the MORs, as required. The bankruptcy court found that Hannon’s affidavit explanations, for the claimed business expenditures related to his Wells and Truro homes were directly contradicted by his earlier testimony at the creditors’ meeting, and that Hannon provided no explanation for the substantive change. Accordingly, the bankruptcy court determined that Hannon failed to raise a genuine issue of material fact with respect to whether the business payments relating to his Wells and Truro houses were “in fact incurred solely for his personal benefit.”

The bankruptcy court took note of the extent and frequency of Hannon’s omissions, as well as the fact that Hannon had partially disclosed payments made, for his benefit by ABC&D Recycling in his May and June MORs. From the undisputed facts, the bankruptcy court determined that the “only plausible conclusion is that [Hannon] acted with reckless indifference to the truth when filing his MORs.” The court decided that it was unnecessary.to consider the additional disbursements at issue, because Hannon admitted sufficient unreported payments made on his behalf to resolve the motion for summary judgment.

Hannon appealed to the district court. The district court affirmed the bankruptcy court’s order on September 22, 2015. This appeal followed.

II. Standard of Review

As recently noted in Rok Builders, LLC v. 2010-1 SFG Venture, LLC, (In re Moultonborough Hotel Group, LLC), “[ajlthough we constitute the second tier of appellate review in this case arising out of a decision by the bankruptcy court in an adversary proceeding, ’we cede no special deference to the determinations made by the ... district court’ and instead ’assess the bankruptcy court’s decision directly.’” 726 F.3d 1, 4 (1st Cir. 2013) (quoting City Sanitation, LLC v. Allied Waste Servs. of Mass., LLC (In re Am. Cartage, Inc.), 656 F.3d 82, 87 (ist Cir. 2011)). Our review of the bankruptcy court’s order granting summary judgment is de novo. Desmond v. Varrasso (In re Varrasso) 37 F.3d 760, 763 (1st Cir. 1994) (citations omitted); see also Daniels v. Agin, 736 F.3d 70, 78 (1st Cir. 2013).

The bankruptcy court entered summary judgment under Federal Rule of Bankruptcy Procedure 7056, which expressly “incorporates into bankruptcy practice the standards of Rule 56 of the Federal Rules of Civil Procedure.” In re Varrasso, 37 F.3d at 762. Accordingly, the “legal standards traditionally applicable to motions for summary judgment ... apply without change in bankruptcy proceedings.” In re Moultonborough Hotel Grp., LLC, 726 F.3d at 4 (citations omitted). Summary judgment in bankruptcy proceedings, then, should be granted “only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law.” In re Varrasso, 37 F.3d at 763. “[A]ll reasonable inferences from the facts must be drawn in the manner most favorable to the nonmovant.” Id.

III. Discussion

We begin with a basic principle. “Under [11 U.S.C.] § 727(a)(4)(A), [a] debtor can be refused his discharge only if he (i) knowingly and fraudulently made a false oath, (ii) relating to a material fact.” Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st Cir. 1987). As the moving parties, the Companies must establish that there is no genuine dispute about any material fact, and that they are entitled to judgment as a matter of law, because: (1) Hannon made a false statement under oath in the course of his bankruptcy proceeding; (2) he did so knowingly and fraudulently; and (3) the false statement related to a material fact. Perry v. Warner (In re Warner), 247 B.R. 24, 26 (1st Cir. BAP 2000). As we have previously recognized:

[11 U.S.C. § 727], by its very nature, invokes competing considerations. On the one hand, bankruptcy is an essentially equitable remedy. As the [Supreme] Court has said, it is an “overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U.S. 99, 103 [87 S.Ct. 274, 17 L.Ed.2d 197] (1966). In that vein, the statutory right to a discharge should ordinarily be construed liberally in favor of the debtor. Matter of Vickers, 577 F.2d 683, 687 (10th Cir. 1978); In re Leichter, 197 F.2d 955, 959 (3d Cir. 1952), cert. denied, 344 U.S. 914 [73 S.Ct. 336, 97 L.Ed. 705] (1953); Roberts v. W.P. Ford & Son, Inc., 169 F.2d 151, 152 (4th Cir. 1948). “The reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural.” Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir. 1934).
On the other hand, the very purpose of certain sections of the law, like 11 U.S.C. § 727(a)(4)(A), is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with their assets or with the reality of their affairs. The statutes are designed to insure that complete, truthful, and reliable information is put forward at the outset of the proceedings, so that decisions can be made by the parties in interest based on fact rather than fiction. As we have stated, “[t]he successful functioning of the bankruptcy act hinges both upon the bankrupt’s veracity and his willingness to make a full disclosure.” [Matter of] Mascolo, 505 F.2d [274,] 278 [ (1st Cir. 1974) ].

In re Tully, 818 F.2d at 110 (parallel citations omitted). With these principles in mind, we turn to Hannon’s arguments on appeal.

A. False Oath

The bankruptcy court, invoking the principle that “an unsworn declaration made under penalty of perjury is the equivalent of a verification under oath,” determined that, because Hannon signed the MORs under penalty of perjury, his statements on those forms were made under oath. 28 U.S.C. § 1746; Smith v. Grondin (In re Grondin), 232 B.R. 274, 276 (1st Cir. BAP 1999). Hannon challenges that determination on appeal, arguing that the certification required by MORs is not the type of certification covered by § 1746, which contemplates a certification as “true and correct,” and not one based on a subjective understanding. Therefore, he argues, his MOR certifications were not made under “oath,” as necessary to support a false oath claim.

Hannon concedes that he presents the argument for the first time on appeal. “[Tjherefore, we can consider the argument waived.” Hoover v. Harrington (In re Hoover), 828 F.3d 5, 11 (1st Cir. 2016) (quoting Net-Velazquez v. Wiscovitch-Rentas (In re Net-Velazquez), 625 F.3d 34, 40 (1st Cir. 2010)) (“[Ajbsent the most extraordinaiy circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.”). However, even if Hannon had presented the argument to the bankruptcy court, it would have likely failed. The verification language used on the MOR is nearly identical to the verification language used on debtor bankruptcy schedules. Other circuit courts that have addressed the point have consistently found the language used on the debtor schedules sufficient to constitute a verification under oath for purposes of § 727(a)(4)(A). See, e.g., Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010) (“A false statement or an omission in the debtor’s bankruptcy schedules or statement of financial affairs can constitute a false oath.”) (quoting Khalil v. Developers Sur. & Indem. Co. (In re Khalil), 379 B.R. 163, 172 (9th Cir. BAP 2007)); Beaubouef v. Beaubouef (Matter of Beaubouef), 966 F.2d 174, 178 (5th Cir. 1992) (“False oaths sufficient to justify the denial of discharge include ... a false statement or omission in the debtor’s schedules”) (internal quotations omitted) (quoting 4 Collier on Bankruptcy ¶ 727.01[1], at 727-59 (15th ed. 1992)); Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 n.3 (11th Cir. 1984) (“A knowing and fraudulent omission from a sworn Statement of Affairs or schedule may constitute a false oath.”) (citing Farmers Coop. Ass’n v. Strunk, 671 F.2d 391, 395 (10th Cir. 1982)).

We do not discern any principled basis upon which to draw a meaningful distinction between the certification language used on the MOR form from that used on a debtor’s schedules, and think the nearly identical language used on the MOR form would likely constitute a verification under oath for § 727(a)(4)(A) purposes. “Sworn statements filed in any court must be regarded as serious business. In bankruptcy administration, the system will collapse if debtors are not forthcoming.” In re Tully, 818 F.2d at 112. So, while it is unlikely that Hannon would prevail, the issue is forfeited in this ease due to Hannon’s failure to raise it below.

B. “Knowingly and Fraudulently”

Hannon’s main argument on appeal relates to the bankruptcy court’s determination that there was no genuine issue of material fact with respect to his state of mind when he filed the MÓRs. Hannon asserts that the bankruptcy court incorrectly concluded that the undisputed facts established his knowing and fraudulent state of mind as a matter of law. Relying upon our decision in In re Varrasso, 37 F.3d at 764, he argues that the undisputed facts here—as in In re Varrasso—do not point to only one conclusion about his state of mind, but instead support “conflicting yet plausible inferences— inferences that are capable of leading a rational factfinder to different outcomes in a litigated matter depending on which of them the factfinder draws.” Id. Because the undisputed facts require a choice between two plausible, and conflicting, inferences (reckless conduct or merely careless conduct), he argues, summary judgment was improper.

Hannon says the undisputed facts support an inference that he acted carelessly, but not recklessly. He stresses that he had no reason to conceal the business disbursements made for his personal benefit because, even including those disbursements, his actual monthly expenses were still significantly lower than the monthly support amount he estimated would be needed at the outset of the bankruptcy proceeding. So, no harm, and no intent, given no evident reason for him to conceal those disbursements. He also notes that his formal education ended with high school, and he could well have misinterpreted the complicated bankruptcy forms. Moreover, he points out that he relied on legal counsel to prepare the forms. Those facts should render a culpable mental state doubtful, he contends.

Hannon also points to his “good faith” participation in the bankruptcy process, and his improved reporting practices over time, which also should tend to negate any inference of an intent to deceive. Finally, Hannon argues that accurate MOR reporting was necessarily hampered by his lack of access to underlying financial documentation about the businesses. Files and records were missing, he says, after the brief hiatus between the issuance of the temporary restraining order and his resumption of control over ABC&D’s operations when the restraining order was modified. All of which, Hannon argues, would readily support a legal conclusion that he acted carelessly, but did not act with reckless indifference to the truth.

A debtor . “knowingly and fraudulently” makes a false oath if he “knows the truth and nonetheless willfully and intentionally swears to what is false.” Lussier v. Sullivan (In re Sullivan), 455 B.R. 829, 837 (1st Cir. BAP 2011) (internal quotation marks and citations omitted). “[R]eekless indifference to the truth” has “consistently been treated as the functional equivalent of fraud for purposes of § 727(a)(4)(A).” In re Tully, 818 F.2d at 112 (citations omitted); accord In re Grondin, 232 B.R. at 277.

We of course recognize that it has been repeatedly emphasized, and remains true today, that “[c]ourts use special caution in granting summary judgment as to intent. Intent is often proved by inference, after all, and on a motion for summary judgment, all reasonable inferences must be drawn in favor of the nonmoving party.” Daniels, 736 F.3d at 83. But, “[s]ummary judgment may be warranted even as to such elusive elements as a defendant’s motive or intent where the non-moving party rests merely upon con-clusory allegations, improbable inferences, and unsupported speculation.” Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 5 (1st Cir. 1998) (quotations and citations omitted). Here, there are no genuine disputes regarding material facts, and construing the undisputed facts and all reasonable inferences arising from those facts in favor of Hannon, it is still clear that the entry of summary judgment was proper.

First, Hannon’s reliance on In re Varrasso, 37 F.3d 760, is misplaced, because the undisputed facts here do not support plausible opposing inferences. Hannon concedes that he did not report at least $8,500 in business payments made for his personal benefit on the MORs he filed in May through September of 2012. His explanation for those omissions amounted to little more than assertions that, either he did not understand his obligation to truthfully report those disbursements, or he failed to accurately report them because he was merely careless. Neither explanation is supported by the factual record.

To be sure, “a debtor’s honest confusion or lack of understanding may weigh against an inference of fraudulent intent.” Robin Singh Educ. Servs., Inc. v. McCarthy (In re McCarthy), 488 B.R. 814, 827 (1st Cir. BAP 2013). But, Hannon did properly report some business disbursements made for his personal benefit in May and, June of 2012. As the bankruptcy court recognized, those May and June disclosures “demonstrate[ ] that [Hannon] understood his duty to report such transactions, and was able to obtain the necessary information to do so.” As the bankruptcy court also recognized, the “magnitude of the omissions belies,the Debtor’s assertions that he merely overlooked” reporting a few small personal transactions. In this case Hannon reported a few modest personal transactions; it was the multiple and substantial disbursements made for his benefit that did not make it to the MORs. Moreover, unlike the debtors in Varrasso, Hannon did not rectify the omissions as soon as the creditors’ questioning brought them to light. In re Varrasso, 37 F.3d at 764.

At issue here is not a simple failure to report minor expenditures¡-for miscellaneous expenses. Rather, Hannon repeatedly failed to report thousands of dollars diverted from the businesses for his benefit, while he controlled those businesses. He cannot plausibly contend that he did not know that the businesses paid for his personal rent, clothing, and groceries, as well as his daughters’ clothing and entertainment, over a five-month period. Considered in context, “[t]he amounts here render reckless errors that' arguably may have been only negligent if they had concerned less significant items.” Daniels, 736 F.3d at 85.

Hannon’s claim that he relied in good faith on legal counsel to accurately prepare the forms also founders. As Han-non himself concedes, “reliance on the advice of counsel is no defense when the deficiency ‘should have been evident to the debtor.’” Appellant’s Br. at 20 (quoting Tully, 818 F.2d at 111). Hannon’s argument is undermined both by his demonstrated knowledge of what was required to be disclosed, and his undeniable knowledge that substantial sums spent on his behalf were not disclosed on the forms filled out by counsel—forms that he reviewed and signed under oath.

Hannon also asserts that a reasonable factfinder could well conclude that he lacked the financial acumen to understand and appreciate the MORs deficiencies. But, as discussed above, in May and June of 2012 Hannon did properly report disbursements made for his benefit. He plainly demonstrated personal awareness of what disclosures were required, and clearly was not unaware that business disbursements made for his benefit had to be reported. It, therefore, “should have been evident” to Hannon that the July, August, and September MORs did not disclose substantial business expenditures made for his benefit. Appellant’s Br. at 20 (quoting In re Tully, 818 F.2d at 111). As we have warned, “[a] debtor cannot, merely by playing ostrich and burying his head deeply enough in the sand, disclaim all responsibility for statements which he has made under oath.” In re Tully, 818 F.2d at 111.

While Hannon has no formal training in financial reporting, still, he is hardly unsophisticated. Until recently, he owned and successfully operated two businesses. He entered bankruptcy having accumulated assets of nearly $6 million. Moreover, this is not Hannon’s first experience with bankruptcy filings and reports. Hannon acknowledges that he was “previously the principal of Embassy Realty, LLC, which had operated as a debtor-in-possession.” Hannon’s business experience and his past experience with the bankruptcy process undermine his claimed inability to aceu-rately and truthfully complete the MORs due to a lack of financial sophistication.

Finally, Hannon’s passing contention that his ability to accurately and truthfully disclose all business expenditures made for his benefit was hampered by missing financial documentation is also implausible. Hannon did not provide any explanation as to how access to the allegedly missing business records was a necessary predicate to his truthfully reporting substantial disbursements made on his behalf. Han-non, of course, did have access to all the financial records of ABC&D Recycling and Ware Real Estate through at least the end of June, 2012, yet still did not accurately and truthfully report disbursements made for his benefit on the May and June MORs. “The record in this case shows, at the very least, cavalier indifference and a pattern of disdain for the truth. Meaningful disclosure was accorded much too low a priority.” In re Tully, 818 F.2d at 112.

Reviewing the matter de novo, we recognize this case as one of those uncommon situations in which summary judgment is appropriate notwithstanding that intent, or state of mind, is at issue. We concur in the bankruptcy court’s determination that Hannon’s proffered explanations for his significant omissions are so implausible that they do not give rise to a genuine dispute of material fact with respect to his intent.

C. Materiality

The final critical element, that the debtor’s statement be materially related to the bankruptcy case, is “satisfied if the statement bears a relationship to the debt- or’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of property.” In re Sullivan, 455 B.R. at 829 (quotations omitted).

Neither party disputes on appeal that Hannon’s omissions were material. We agree. As the bankruptcy court noted, because Hannon’s omissions “prevented parties in interest from accurately assessing the viability of a reorganization or understanding the Debtor’s true financial condition,” they were material.

IV. Conclusion

Summary judgment is not commonly available in cases featuring intent as a necessary element, but, as this case illustrates, there are exceptions. Material statements made in the course of judicial proceedings implicate serious interests, and must be as complete and reliable as studied caution will allow. Reckless indifference cannot be countenanced and will provide no protection from sanctions imposed for making false statements under oath.

For the reasons stated above, we affirm the bankruptcy court’s denial of Hannon’s discharge pursuant to § 728(a)(4)(A).

      . On January 2, 2013, the cáse was converted to a Chapter 7 proceeding, upon motion of the United States Trustee.

      . Hannon initially had the benefit of retained counsel to assist him in navigating the bankruptcy process, but was unable to maintain that representation. The bankruptcy court allowed counsel to withdraw by order dated July 13, 2013, after which Hannon acted pro se. He then retained new counsel after a hearing on the Companies’ motion for partial summary judgment.

      . Hannon stated that he "believe[d]” the stipends to the Joint Debtor and his paychecks were reported on the MORs.

      . The bankruptcy court pointed out that Han-non included within the "business expense” category three disbursements he had previously listed on his Addendum to the May and June MORs as paid by ABC&D Recycling: a $97.84 payment to Dish Network, a $355.76 payment to NSTAR Electric, and a $178.89 payment to a Hannaford grocery store. Han-non cryptically described those payments as business expenses relating to "client guest house,” "company utility,” and "ABC&D grocery,” respectively.

      . The MOR certification reads: "I declare under penalty of perjury (28 U.S.C. Section 1746) that this report and all attachments are true and correct to the best of my knowledge and belief.”
      The “Declaration Concerning Debtor’s Schedules” reads: “I declare under penalty of perjury that I have read the foregoing summary and schedules, consisting of_sheets, and that they are true and correct to the best of my knowledge, information and belief.”

      . While the point seems not to have been directly confronted by this court, it has been assumed, for purposes of § 727(a)(4)(A), that omissions and false statements on a debtor’s schedules constitute statements made under oath. See, e.g., In re Tully, 818 F.2d at 110.

      . Hannon takes issue with the bankruptcy court’s categorization of some of the questioned expenditures as personal and unreported on the MORs. He argues that the bankruptcy court calculated the undisputed and unreported personal expenditures as totaling $23,555.54, but $10,092.98 of that amount was factually disputed. Actually, the bankruptcy court recognized that Hannon reported $4,237.54 of ABC&D Recycling’s payments on his MORs, so the amount unreported on the MORs was "over $19,000.” Hannon says he believed that $4,037 in cash stipends to Elizabeth Hannon were reported on the MORs, because they were included in deposits to Elizabeth Hannon’s bank account, and so were recorded in bank statements attached to the MORs. The MORs, however, do not identify any such deposits as “stipends” or income from the business.
      Hannon further argues that the expenditures of $3,205.09 and $2,849.99 relating to his Wells and Truro homes were "business” or "business and personal” expenses. That argument is equally unavailing. Hannon’s affidavit is plainly inconsistent with his prior testimony at the creditors’ meeting, and he offers no adequate explanation for the dramatic change. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994) (“When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.”).
      But, even if we accepted Hannon’s contentions, he cannot escape the fact that he admitted to receiving at least $12,830,97 from ABC&D Recycling and Ware Real Estate between May and September of 2012, He reported only $4,237.54 on his MORs. Hannon cannot, and does not, dispute that he failed to report over $8,500 in reportable payments that ABC&D Recycling and Ware Real Estate made for his personal benefit on the MORs he submitted between May and September 2012.

      . As the bankruptcy court pointed out, Han-non testified that he "provid[ed] counsel with statements from [his] debtor-in-possession accounts, and then reviewed the report prepared by counsel.” But no evidence suggests that he provided counsel with full access to relevant financial information, including information regarding payments made by the businesses on his behalf.

      . On these same grounds, we reject Hannon’s argument that the bankruptcy court should not have granted summary judgment because the MORs were verified "to the best of his knowledge and belief,” and the record would support a finding that he subjectively believed that the information was accurate. As discussed above, the record does not support that inference.


author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Peter APICELLI, Defendant, Appellant.
    No. 15-2400
    United States Court of Appeals, First Circuit.
    October 7, 2016

      Sven D. Wiberg, with whom Wiberg Law Office, PLLC was on brief, for appellant.
    Seth R. Aframe, Assistant United States Attorney, with whom Emily Gray Rice, United States Attorney, was on brief, for appellee.
    Before TORRUELLA, SELYA, and THOMPSON, Circuit Judges.
   TORRUELLA, Circuit Judge.

Peter Apicelli was convicted of one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) following a jury trial in the United States District Court for the District of New Hampshire. On appeal, Apicelli argues that the Government presented insufficient evidence to prove that the marijuana found by the police belonged to him and raises several procedural challenges. Unpersuaded by his arguments, we affirm.

I. Background

In September 2013, New Hampshire law enforcement officials received information from a Campton town employee named Robert Bain about a potential marijuana grow near Chandler Hill Road and Mason Road. On September 5, state police officers met with Bain near Chandler Hill Road to locate the marijuana plants. The area by Chandler Hill Road and Mason Road was heavily wooded. The officers searched the woods for about an hour before finding two clusters of marijuana plants growing at the edge of the wooded area—about 200-300 meters from the residence at 201 Mason Road. The next day, the officers went back to the grow site and set up a motion-activated video camera. On September 16, the officers checked the camera and viewed footage showing an individual with a red backpack and tan shorts tending the marijuana plants. Through further investigation, the officers concluded that Apicelli was renting the 201 Mason Road residence and that two cars parked in front were registered in Apicelli’s name.

Based on this evidence, the officers obtained a warrant to search the house at 201 Mason Road and arrest Apicelli. On September 17, the officers executed the search warrant. Inside the residence, the officers found additional marijuana plants, marijuana drying, and packaged marijuana as well as a red backpack and tan shorts. Apicelli was not present during the search or arrested.

Apicelli was subsequently charged with and convicted of one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and sentenced to 12 months and one day of imprisonment.

II. Sufficiency of the Evidence

On appeal, Apicelli argues that the evidence the Government presented at his trial was insufficient to prove either that the marijuana found growing in the woods near the 201 Mason Road property or inside the house belonged to him. “We review challenges to the sufficiency of the evidence de novo, ‘considering all the evidence, direct and circumstantial, in the light most favorable to the prosecution, drawing all reasonable inferences consistent with the verdict, and avoiding credibility judgments, to determine whether a rational jury could have found the defendant ] guilty beyond a reasonable doubt.’ ” United States v. Negron-Sostre, 790 F.3d 295, 307 (1st Cir. 2015) (quoting United States v. Agosto-Vega, 617 F.3d 541, 548 (1st Cir. 2010)).

Given that no marijuana was ever found on Apicelli’s person, the Government relied upon the doctrine of constructive possession to link Apicelli to the marijuana found at 201 Mason Road. “Constructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object either directly or through others.” United States v. Garcia-Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007) (quoting United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005)). Nothing prohibits the government from “relyfing] entirely on circumstantial evidence to show constructive possession.” Id.

We conclude that the Government’s circumstantial evidence was strong enough for a rational jury to conclude beyond a reasonable doubt that the marijuana found in the wooded area and inside the 201 Mason Road residence belonged to Apicel-li. First, the Government’s evidence led to the reasonable inference that Apicelli lived at 201 Mason Road. In addition to the cars registered in Apicelli’s name observed during the officers’ surveillance, the search revealed mail addressed to Apicelli and a debit card bearing Apicelli’s name.

Second, the record also supports the reasonable inference that Apicelli was the only person who lived at 201 Mason Road. The officers did not see any cars parked in front of 201 Mason Road during their investigation besides the two registered to Apicelli. Apicelli’s landlord, Rene Dubois, testified that the lease required Apicelli to notify him if any other person lived at the residence for an extended period of time and he received no such notice. Finally, one of the investigating officers, Sergeant Patrick Payer testified that only one person appeared to live in the house. Although Payer acknowledged the residence had two bedrooms, he stated the second bedroom appeared to belong to a child and “did not look lived in.” Based on this evidence, a rational jury could infer that Api-celli was the only person who lived at 201 Mason Road at the time the officers found the marijuana plants and therefore the plants belonged to him.

Finally, the Government presented evidence linking whoever lived at 201 Mason Road to the marijuana grow at the edge of the woods. In addition to the plants’ proximity to the property, the officers found a red backpack and tan shorts like those seen on the surveillance footage inside 201 Mason Road. Notably, the tan shorts were found in the only bedroom in the residence that appeared to belong to an adult. Putting two and two together, a rational jury could conclude that because the clothing seen on the footage was found inside 201 Mason Road and Apicelli was the home’s only resident, Apicelli was the person seen on the surveillance footage.

Apicelli takes issue with the fact that none of the Government’s witnesses identified him as the individual in the surveillance video tending to the plants. Without a positive identification, Apicelli argues that the Government’s evidence that he lived at 201 Mason Road is insufficient because someone else could have lived there during the relevant time frame. As stated above, however, a rational fact finder could conclude that Apicelli was the only resident at 201 Mason Road during the relevant time frame. Moreover, we do not “demand that the government disprove every hypothesis consistent with the defendant’s innocence.” United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995). Apicelli’s argument that the Government failed to completely rule out the possibility that the marijuana belonged to an unnamed visitor to 201 Mason Road turns sufficiency review on its head. “[W]hen this Court reviews a jury verdict for sufficiency of evidence, ‘it matters not whether [the defendant] can raise a plausible theory of innocence: if the record as a whole justifies a judgment of conviction, it need not rule out other hypotheses more congenial to a finding of innocence.’” United States v. Valerio, 676 F.3d 237, 245 (1st Cir. 2012) (quoting United States v. Manor, 633 F.3d 11, 14 (1st Cir. 2011)). The record supports the conclusion that the marijuana belonged to Apicelli; thus our inquiry ends.

III. Suppression Rulings

We now turn to Apicelli’s various procedural claims, starting with his argument that the district court committed error by denying his suppression motion without an evidentiary hearing. Before the district court, Apicelli claimed that Sergeant Patrick Payer intentionally or recklessly included material misrepresentations and omitted material information from his search warrant affidavit. All of Apicelli’s arguments related to information concerning Bain, the road agent who had alerted the police to the marijuana grow, and his credibility.

In his affidavit, Payer recounted that he had received a tip about a marijuana grow, visited the area, found marijuana plants, and set up a motion-activated video camera to watch the grow. Payer also stated that he believed Apicelli was renting the house at 201 Mason Road, that he had identified two cars registered to Apicelli at the house, and that Apicelli fit the profile of the person seen tending the plants on the surveillance video—a man with dark hair between the ages of twenty-five and thirty. Additionally, Payer stated that he asked someone to review the surveillance footage and that the person subsequently-identified Apicelli as the man tending the plants.

Apicelli argued in his motion to suppress that Bain’s initial tip to the police as well as his subsequent identification of Apicelli on the surveillance video were not credible because Bain had motive to lie due to a personal dispute. According to Apicelli, he had caught Bain entering the wooded area near 201 Mason Road to hunt and told Bain that he was trespassing. Apicelli’s landlord, Rene Dubois, subsequently prepared a “Land Use Conditions” document prohibiting Bain from entering the wooded area without permission. Apicelli claimed that Payer misrepresented Bain as merely a “concerned citizen” who was friends with Dubois and that Bain’s motive to retaliate against Apicelli was a material omission. Apicelli also argued that the affidavit should have mentioned that Bain, as a road agent, was a town employee, and had previously worked with the. police on other cases. Finally, Apicelli contended that Bain’s identification was not credible because the video was too low-resolution for anyone to tell who was on camera.

In order to be entitled to an evi-dentiary hearing, a defendant must make a substantial preliminary showing that a false statement (or omission) was (1) “knowingly and intentionally, or with reckless disregard for the truth ... included by the affiant in the warrant affidavit,” and (2) “necessary to the finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); see also United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990). The district court rejected Apicelli’s arguments on this second prong, concluding that Bain’s tip and identification were not the sole basis for finding probable cause. “A district court’s finding that the requisite showing for a Franks hearing has not been made will be overturned only if it is clearly erroneous.” United States v. Cartagena, 593 F.3d 104, 112 (1st Cir. 2010).

Simply put, the information concerning Bain was not necessary to the finding of probable cause, thus rendering any issues with his credibility moot. As stated in Payer’s affidavit, he and the other officers found a marijuana grow near 201 Mason Road. Independent of Bain’s identification, the police linked Apicelli to the 201 Mason Road residence through their own investigation. Apicelli’s rental of 201 Mason Road, Apicelli’s two cars parked in front of the residence, and Payer’s statement that Apicelli fit the profile of the person seen on the surveillance video would allow a reasonable magistrate to conclude that there was a “fair probability that contraband or evidence of a crime [would] be found in” the residence at 201 Mason Road. United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012) (quoting United States v. Hicks, 576 F.3d 130, 136 (1st Cir. 2009)). We therefore affirm the district court’s denial of Apicelli’s motion to suppress.

IV. Speedy Trial

Apicelli next contends that the Government violated his right to a speedy trial under the Speedy Trial Act (“STA”), 18 U.S.C. §§ 3161-74, and the Sixth Amendment. Neither of these claims have merit.

A. Speedy Trial Act

“The STA requires that a defendant be tried within seventy days of the later of the indictment or initial appearance.” United States v. Ibrahim, 814 F.3d 30, 32 (1st Cir. 2016) (citing 18 U.S.C. § 3161(c)(1)). “If a criminal defendant is not brought to trial within the seventy-day time limit ... the penalty provisions of the STA mandate that ‘the information or indictment shall be dismissed on motion of the defendant.’ ” United States v. Santiago-Becerril, 130 F.3d 11, 15 (1st Cir. 1997) (quoting 18 U.S.C. § 3162(a)(2)). In calculating the seventy-day period, certain delays are excluded, including delays caused by continuances when the district court judge determines that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). We review STA claims “de novo as to legal rulings, and for clear error as to factual findings.” Ibrahim, 814 F.3d at 32 (quoting United States v. Carpenter, 781 F.3d 599, 616 (1st Cir. 2015)). “Overall, however, we review for abuse of discretion decisions to exclude intervals of time from the STA count,” United States v. Souza, 749 F.3d 74, 79 (1st Cir. 2014), including “ends of justice” determinations, United States v. González-Martínez, 825 F.3d 51, 57 (1st Cir. 2016).

Apicelli’s STA clock began running on March 1, 2014, the day after his arraignment. The parties do not dispute that forty-six countable days elapsed between this date and April 16, 2014, when Apicelli first moved to continue trial for sixty days. Apicelli does not contest that the period from April 16, 2014 to February 12, 2015 was all excludable time due to various continuance motions relating to plea negotiations and his counsel’s schedule.

Apicelli and the Government diverge as to whether the STA clock continued to stand still during the following two periods in which the district court granted ends-of-justice continuances: February 12, 2015 to March 25, 2015, and June 8, 2015 to July 21, 2015. Counting either period would push Apicelli’s STA clock to nearly ninety days, after accounting for the uncontested forty-six days that had previously elapsed. The district court issued the continuances in response to motions Apicelli filed on February 7, 2015 and June 7, 2015.

Normally, a court may issue an ends-of-justice continuance “at the request of the defendant or his counsel.” 18 U.S.C. § 3161(h)(7)(A). Apicelli, however, contends that his case fits into the exception we described in United States v. Hastings, 847 F.2d 920 (1st Cir. 1988). In Hastings, we acknowledged that “[a] defendant denied automatic discovery ... would be placed snugly between a rock and a hard place: he could either forgo discovery to which he was entitled or he could file a motion to obtain it, thus stopping the speedy trial clock and easing the pressure on the government to bring him to trial.” 847 F.2d at 923. Apicelli seizes upon this language and argues that the Government withheld discovery to which he was entitled and therefore the time needed to resolve his motions should not have been excluded from the STA clock.

Apicelli’s argument ignores Hasting’s nuance. In that case, we laid out a framework for analyzing when dismissal with prejudice pursuant to the STA could be appropriate based on differing degrees of culpability on the part of the Government. Id. at 925.

[D]elay which results either from intentional noncompliance with the Act or from actions designed to gain unfair prosecutorial advantage weighs heavily in favor of dismissal with prejudice.
Closely allied to such examples, but perhaps once removed, are recurrent shortcomings. If delay is occasioned by a pattern of governmental inattention or because the prosecutor ... fails to learn oft-repeated lessons, the situation becomes moré conducive to dismissal with prejudice than if delay stems from some solitary bevue. ... Random negligence ... weighs less heavily in favor of banning reprosecution.

Id. (citations omitted). We also cautioned against imputing bad faith to the Government because Congress did not intend for the STA to serve as “an all-encompassing code of ethical conduct for prosecutors.” Id. at 927.

On appeal, Apicelli never alleges that the Government acted intentionally or delayed its discovery production to gain an unfair advantage. Rather, he simply lists evidence he believes the Government should have disclosed at an earlier date and asks us to infer bad faith or government inattention from the delays themselves. For example, with respect to the February 12, 2015 continuance, Apicelli claims he had not received the “vast majority of the discovery” before the filing of his February 7 motion. Apicelli, however, neither explains why this evidence should have been part of the Government’s automatic discovery obligations nor does he appeal the district court’s finding that the Government was in compliance. We have long held that “issues adverted to in a perfunctory manner, unaccompanied by some, effort at developed argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Without any reason to doubt the district court’s findings that the Government had complied with its discovery obligations, we cannot find an STA violation from the delays themselves. Thus, our review of the district court’s continuances is only for whether “reasonable minds could disagree about the proper ruling.” González-Martinez, 825 F.3d at 57 (quoting United States v. Delgado-Marrero, 744 F.3d 167, 195 (1st Cir. 2014)).

The district court could reasonably conclude that the ends of justice outweighed Apicelli’s speedy trial right in granting a continuance to, resolve his February 7 motion. As the court explained, a continuance was necessary because the Government’s deadline for responding was after Apicelli’s trial date. The district court also stated it foresaw needing to. hold an evidentiary hearing and issue subpoenas in order to rule upon the motion. Given this context, we do not believe the district court abused its discretion in excluding this period from the STA clock.

Similarly, the district court could reasonably exclude the period from June 8 through July 21 from its STA calculations. Apicelli contends that the Government necessitated this motion because it waited until June to turn over four DVDs containing four to six hours of additional video footage caught by the surveillance camera set up near the marijuana grow. Again, however, Apicelli fails to explain the significance of this footage or why the Government was obligated to turn it over sooner. Without any guidance from Apicelli or a direct challenge to the district court’s discovery rulings, we must view the Government as in compliance with its discovery obligations. The district court’s explanation for the continuance is otherwise reasonable. Apicelli requested the continuances in order to review the new evidence and potentially prepare new exhibits. It is evident that the district court granted 'Apicelli’s motion in order to give his counsel time to prepare. See 18 U.S.C.. § 3161(h)(7)(B)(iv) (stating a district court should take into account whether failure to. grant continuances would “deny counsel for the defendant ... the reasonable time necessary for effective preparation”). We therefore find no abuse of discretion in its issuance of an ends-of-justice continuance.

Finding that both timeframes Apicelli contests are excludable, we affirm the district court’s determination that no STA violation occurred.

B. Sixth Amendment

The STA does not act as a bar to speedy trial claims under the Sixth Amendment. See 18 U.S.C. § 3178. Nonetheless, it would be an “unusual ease” in which a Sixth Amendment but not a STA violation exists. United States v. Muñoz-Amado, 182 F.3d 57, 61 (1st Cir. 1999) (quoting United States v. Mitchell, 723 F.2d 1040, 1049 (1st Cir. 1983)).

“To determine whether a [Sixth Amendment speedy trial] violation has occurred, we use the four-part balancing test established in Barker v. Wingo, [407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ], which requires a weighing of: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant resulting from the delay.” United States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). We ordinarily review Sixth Amendment speedy trial determinations for abuse of discretion. Souza, 749 F.3d at 81.

We start with the length of the delay. “The Sixth Amendment right to a speedy trial attaches upon formal accusation. In the typical case, this means either arrest or indictment, whichever comes first.” Dowdell, 595 F.3d at 61 (citations omitted). Apicelli’s trial did not commence until July 21, 2015—a time period of almost eighteen months. Where the time differential between a criminal defendant’s indictment and trial is greater than one year, this court will make additional inquiry. Muñoz-Amado, 182 F.3d'at 61.

Nonetheless, we agree with the district court that the reasons for the delay weigh against finding a speedy trial violation. Apicelli does not dispute that delays arising between April 2014 and November 2014—a seven-month period—are attributable to his counsel filing motions relating to plea negotiations and personal reasons. As stated above, we do not believe Apicelli’s claim that his discovery-related motions should be attributed to the Government. The resolution of Apicelli’s discovery claims spanned most of the time period from December 2014 to July 2015. Finally, we note that between Máy and the end of July of 2015, Apicelli filed at least three motions for reconsideration reiterating the same arguments. Based on this record, the reasons for the delay are mostly, if not entirely, attributable to Apicelli.

Turning, to the third factor, we acknowledge that Apicelli repeatedly asserted his speedy trial right through motions to dismiss. However, “[c]ourts look with some skepticism at assertions of speedy trial rights made by defendants who contribute to the delay, ... [a]nd like the other factors, assertion of the right is not in itself decisive.” United States v. Carpenter, 781 F.3d 599, 614 (1st Cir. 2015).

Finally, we address the prejudice prong. “The prejudice prong seeks to protect three interests: avoidance of oppressive pretrial incarceration, minimizing anxiety and concern, and limiting the possibility that the defense will be impaired.” Id, Apicelli does not allege any of these interests were implicated by the delay in his case. Apicelli was not subject to pretrial incarceration and he does not claim he suffered anxiety from the pending proceedings. He states the Government unduly withheld discovery, but he does not explain how His preparation for trial was impaired in light of the district court’s continuances. Given that Apicelli was largely responsible for the delay and he has failed to allege prejudice, we believe the district court did not abuse its discretion in denying Apicelli’s Sixth. Amendment speedy trial claim.

V. Motions for Mistrial

Finally, Apicelli argues that two of the police officers who testified for the Government made improper statements that entitled him to a mistrial. “Because ‘whether to declare a mistrial speaks to the informed discretion of the district court,’ we review this decision for abuse of that discretion only.” United States v. Diaz, 494 F.3d 221, 226 (1st Cir. 2007) (quoting United States v. Keene, 287 F.3d 229, 233 (1st Cir. 2002)).

“Declaring a mistrial is a last resort, only to be implemented if the taint is ineradicable, that is, only if the trial judge believes that the jury’s exposure to the evidence is likely to prove beyond realistic hope of repair.” United States v. Trinidad-Acosta, 773 F.3d 298, 306 (1st Cir. 2014) (quoting Diaz, 494 F.3d at 227). In making this determination, we look at the totality of the circumstánces, considering in particular the following three factors: “1) whether an appropriate curative instruction was issued, 2) whether the judicial response was timely, and 3) whether appellants successfully rebutted the presumption that the jury followed the judge’s instructions.” United States v. Pagán-Ferrer, 736 F.3d 573, 586 (1st Cir. 2013). When “a curative instruction is promptly given, a mistrial is warranted only in rare circumstances implying extreme prejudice.” United States v. Torres, 162 F.3d 6, 12 (1st Cir. 1998). As discussed in more detail below, the district court promptly issued curative instructions rendering a mistrial unnecessary.

A. Hearsay Evidence Argument

Apicelli first contends that a mistrial was warranted because Payer testified that Bain (who was not a witness at Apicel-li’s trial) had identified Apicelli as the person on the surveillance video. Apicelli argues that the jury could infer this from the following exchange between Payer and the prosecutor:

Q. After recovering this video, what, if any investigative steps did you take next?
A. To get the person in the video identified.
Q. And did you speak to anyone in order—as part of that process?
A. Yes.
Q. And who did you speak with?
A. Robert Bain.
Q. And after speaking with Mr. Bain, what did you do next?

Immediately following this exchange, Api-celli moved for a mistrial on the ground that the Government was attempting “an end run around the hearsay rule” and introduce Bain’s out-of-court identification of Apicelli as the person in the surveillance video. The district court denied the motion and instead instructed the jury “to disregard the last question and answer, and ... not to draw any inference that this witness identified the defendant from these videos.” At Apicelli’s request, the district court further instructed the jury “not to draw any inference from the last question and answer that an identification was made by anybody from these videos.”

We find no abuse of discretion in connection with the district court’s course of action. The district court’s prompt curative instructions addressed the very concern Apicelli raised—that the jury would infer that Bain identified Apicelli on the video and use this statement for its truth. We do not believe Payer’s remark created the type of extreme prejudice that would overcome our presumption that juries follow curative instructions. Generally speaking, inadmissible evidence that is “brief and ambiguous” is only minimally prejudicial. See United States v. Brown, 805 F.3d 13, 17 (1st Cir. 2015) (concluding jury would not place much weight on improper playing of tape in which officer questioned defendant about cocaine found in his hat when there was little context for the conversation’s meaning). Payer never explicitly stated that Bain identified Api-celli as the person on the surveillance video. Rather, Payer testified only that he had Bain identify the person on the surveillance tape and after that .he applied for a search warrant of 201 Mason Road. Although a jury could draw the inference that Payer applied for the warrant in part because Bain identified Apicelli as the person on the surveillance video, this conclusion was by no means obvious or the only interpretation of Payer’s remarks.

Apicelli contends that reversal is necessary because the district court based its decision on the premise that the Government agreed not to identify Apicelli as the person in the surveillance video and backtracked on this promise in its closing argument. We, however, see no inconsistency in the Government’s position. The Government stated that it would not argue that anyone specifically identified Apicelli in the surveillance video—instead, it would identify Apicelli as the person in the video based on the backpack and shorts found in his residence. This latter argument was exactly what the Government focused on in its closing. Because Bain’s out-of-court identification of Apicelli in the surveillance video only came up once in trial, we view the district court’s prompt curative instruction as sufficient.

B. Bad Act Evidence

Apicelli also contends that he was irreparably prejudiced by bad act testimony made by another officer, Nicholas Blodgett. Blodgett stated that he found “Marijuana growing, marijuana drying, packaged marijuana, from my training and experience what appeared to be marijuana edibles, [and] what we believe to be a mushroom grow at one point” inside the house. Apicelli moved for a mistrial immediately after the remark arguing that Blodgett had testified about bad act evidence prohibited by Federal Rule of Evidence 404(b). The district court judge denied the motion and stated he would instruct the jury to disregard Blodgett’s testimony. Apicelli then argued this instruction was inadequate and asked the district court to also tell the jury that Blodgett’s testimony was improper. The district court declined to do so and told the jury to “disregard the testimony concerning the mushroom grow” and that it was “irrelevant” to Apicelli’s case.

We fail to see how Apicelli suffered prejudice, let alone extreme prejudice, from Blodgett’s remark. Again, the district court acted near-instantaneously in issuing a curative instruction. Apicelli cites no case law supporting his proposed instruction that Blodgett did something improper. We also note that Apicelli’s main argument (both at trial and on appeal) is that the items found in 201 Mason Road and the marijuana found in the woods belonged to someone else. The fact that another contraband item was found inside 201 Mason Road would not have influenced the jury’s determination of whether Apicelli was the only person who lived there. We therefore affirm the district court’s denial of Apicel-li’s motion for a mistrial.

VI. Conclusion

For the foregoing reasons, we affirm.

Affirmed.

      . In the version of Sergeant Payer's affidavit ' made publicly available, the name of the person asked to review the tape was redacted, but discovery subsequently revealed that this person was Bain.

      . In his reply brief, Apicelli also alludes to the search of the wooded area as falling outside the open fields exception to the Fourth Amendment. See Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). "We have held, with a regularity bordering on the monotonous, that issues advanced for the first time in an appellant’s reply brief are deemed waived.” United States v. Parigian, 824 F.3d 5, 13 (1st Cir. 2016) (quoting Waste Mgmt. Holdings, Inc. v. Mow-bray, 208 F.3d 288, 299 (1st Cir. 2000)). We also express' doubt that an unenclosed wooded area 200-300 yards away from the house at 201 Mason Road would be considered cur-tilage. See United States v. Brown, 510 F.3d 57, 65 (1st Cir. 2007) (listing ‘‘[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and' [4] the steps taken by the .resident to protect the area from observation by .people passing by” as factors in determining whether a location falls within a home's curtilage (alterations in original) (quoting United States v. Diehl, 276 F.3d 32, 38 (1st Cir. 2002))).

      . Apicelli attempts to refute this conclusion by citing our case law requiring warrant affidavits to include information allowing magistrates to assess the credibility of confidential informants. See, e.g., United States v. Greenburg, 410 F.3d 63, 66-67 (1st Cir. 2005). Apicelli’s reliance on these cases, however, is misplaced given that Bain was not unnamed in the affidavit as presented to the magistrate.

      . Apicelli lists June 2, 2015 as the start date of nonexcludable time. This date corresponds with the parties’ jury selection. Apicelli does not explain in his brief how this date fits with his claim that the district court’s ends-of-justice continuance entered on June 8 was improper.

      .Forty-two days elapsed between February 12, 2015 and March 25, 2015. Forty-four days elapsed between June 8, 2015 and July 21, 2015. Apicelli also argues that ends-of-justice continuances are only excludable if they are thirty days or less. This is incorrect. Apicelli appears to be referring to the STA requirement that a district court decide a motion submitted on its papers within thirty days of the last submission. See 18 U.S.C. § 3161(h)(1)(H); Henderson v. United States, 476 U.S. 321, 329-30, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). We have not read a specific deadline into ends-of-justice continuances. Instead, the district court must "set[ ] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice [are] served.” 18 U.S.C. § 3161(h)(7)(A).

      . We decline to address whether any additional time for the period from March 26, 2015 to June 7, 2015 was excludable because Apicelli fails to specifically contest it in his opening brief. The district court concluded all but April 1 to April 8 (seven days) did not count towards the STA clock.

      . Apicelli claimed in his February 7 motion and at the subsequent hearing that the Government had failed to produce (1) the dispatch records and log notes relating to the investigation of his property; (2) the "bench file” from the laboratory that tested the marijuana found on the 201 Mason Road property; (3) additional information about the conflict of interest that resulted in the transfer of his case from state to federal court. Apicelli also alleged that the Government delayed turning over a laboratory report and the surveillance video of the person in the tan shorts and red backpack tending the marijuana plants. With respect to each, the district court concluded that the Government had a reasonable explanation for the delay or that Apicelli was wrong that the Government had not turned over all of the evidence it had.
      In his appellate brief, Apicelli lists other evidence he believes the Government withheld that were not subject to the February 7 motion, but fails to provide any citations to the motions or orders concerning them. As a result, we find ourselves at sea discerning the merits of these claims or even the STA periods they would exclude.

      . We also uphold the district court’s conclusion that this period was also properly excluded as time needed to resolve a pretrial motion pursuant to 18 U.S.C. § 3161(h)(1)(D).

      . The DVDs contained the “false trigger” footage—i,e„ footage in which the motion-activated camera was triggered by something other than the person tending the marijuana plants, be it animals, law enforcement officials setting up the camera, or wind. The Government had previously only given Apicel-li the footage showing the person tending the marijuana plants, and stated the false trigger footage was not disclosed earlier because it did not believe the footage was relevant.
      Apicelli does not explain tire significance of the false trigger footage in his briefing. Instead, he simply claims that the district court did not accept the Government’s initial representation that the tapes had no evidentiary value. This characterization is incorrect. The district court initially declined to take the Government at its word that the footage was not relevant—thus finding a continuance necessary—but ultimately concluded that it had complied with its discovery obligations.

      . On appeal, Apicelli contends that the district court should have used the date of his state arrest to calculate the length of his speedy trial delay. State authorities in New Hampshire arrested Apicelli on November 20, 2013, sixty-three days before his federal indictment on January 22, 2014. This argument is without merit. Normally, "an arrest or indictment by one sovereign would not cause the speedy'trial guarantees to become engaged as to possible subsequent indictments by another sovereign.” Dowdell, 595 F.3d at 61 (quoting United States v. MacDonald, 456 U.S. 1, 10 n.11, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982)).
      Apicelli claims that he can overcome the dual sovereign presumption because he showed that the state prosecution was “merely a tool of the federal authorities.” Bartkus v. Illinois, 359 U.S. 121, 123, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Apicelli, however, only cites the similarity between his state and federal charges—⅛,- that they were both prosecutions for drug offenses. Mere similarity is not sufficient—a defendant must make a pri-ma facie case that “one sovereign was a pawn of the other, with the result that [the] notion of two supposedly independent prosecutions is merely a. sham.” Dowdell, 595 F.3d at 63 (quoting United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996)). Because Apicelli has failed to make such an allegation, any preceding state proceedings do not Count towards his speedy trial claim.

      . "Fed. R. Evid. 801(c) defines hearsay generally as ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ ” Vázquez v. López-Rosario, 134 F.3d 28, 33-34 (1st Cir. 1998).

      . On appeal, Apicelli portrays Payer’s statements as impermissible overview testimony, perhaps as a vehicle to argue that the testimony resulted in the type of extreme prejudice warranting a mistrial. Overview testimony occurs when "a government witness testifies about the results of a criminal investigation, usually including aspects of the investigation the witness did not participate in, before the government has presented supporting evidence.’’ United States v. Rosado-Pérez, 605 F.3d 48, 55 (1st Cir. 2010). Payer, however, was testifying about an investigation he undertook. An officer’s testimony describing his or her own investigation does not create the same concerns as overview testimony. See United States v. Hall, 434 F.3d 42, 57 (1st Cir. 2006). Additionally, Apicelli’s objection characterizes Payer’s testimony as hearsay, but we doubt this is so because Payer never stated in court what Apicelli feared the juty would infer—that Bain identified Apicelli from the video.

      . Federal Rule of Evidence 404(b)(1) prohibits the use of “[e)vidence of a crime, wrong, or other act ... to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,”


author: SELYA, Circuit Judge.

text:
    Daniel Emerson MURILLO-ROBLES, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-2568
    United States Court of Appeals, First Circuit.
    October 7, 2016

      Carlos E. Estrada, with whom Estrada Law Office was on brief, for petitioner.
    Sabatino F. Leo, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
    Before HOWARD, Chief Judge, SELYA and KAYATTA, Circuit Judges.
   SELYA, Circuit Judge.

Although the Board of Immigration Appeals (BIA) has broad discretion in the disposition of motions to reopen, broad discretion is not the same as unfettered discretion. This case, which arises out of an in absentia removal order against a youthful alien who was ill-served by not one but two lawyers, illustrates that verity. After careful consideration, we conclude that the BIA abused its discretion when it found that the circumstances attendant to entry of the removal order were not exceptional. Accordingly, we grant the petition for review, reverse the BIA’s denial of the motion to reopen, and remand with instructions to set aside the in absentia removal order and reopen the petitioner’s removal proceedings.

I. BACKGROUND

The petitioner, Daniel Emerson Murillo-Robles, is a Peruvian national. He became a lawful conditional resident of the United States in 2001 at age 11. In October of 2003, his mother and his stepfather (a United States citizen) jointly filed an 1-751 petition with United States Citizenship and Immigration Services (USCIS), seeking to make the petitioner’s residency unconditional. USCIS denied this petition in November of 2006, citing the failure on the part of the attorney representing the family to respond in a timely fashion to its request for additional information.

The government proceeded to initiate removal proceedings against the petitioner in Februaiy of 2007. The petitioner conceded removability and sought review of the denial of the original 1-751 petition. He received a series of continuances, partly because his mother and stepfather filed a second 1-751 petition in 2009. That petition was denied by USCIS after the attorney who prepared it failed adequately to explain the delay in filing. The attorney was subsequently disbarred, and the petitioner’s family hired a new attorney in the spring of 2011.

Eventually, a merits hearing was scheduled for April 30, 2012 at 8:00 a.m. That day, the petitioner did not appear at 8:00 a.m. but, rather, arrived at approximately 8:30 a.m., thinking that his hearing was set for 9:00 a.m. This interval, though brief, proved consequential: at 8:19 a.m., the immigration judge (IJ) entered an order of removal in absentia. When the IJ entered the order, he told the petitioner’s lawyer that if she moved to reopen the case when the petitioner arrived, he would consider the motion. The petitioner appeared minutes later, and his family agreed to pay the lawyer to file a motion to reopen. Nevertheless, the lawyer did not file the motion (even though she took the money). Shortly thereafter, the lawyer’s license to practice law was suspended for neglecting a number of immigration cases.

The petitioner retained yet a third attorney and moved to reopen his immigration case in July of 2015. He explained that his failure to arrive punctually at his April 2012 hearing stemmed from his mistaken assumption that this hearing—like many earlier immigration court hearings that he had attended on time—would commence at 9:00 a.m. He also described the myriad ways in which his first two attorneys had provided ineffective assistance of counsel and argued that this deficient representation had prevented him from attaining legal permanent resident status.

The IJ agreed that the petitioner had received ineffective assistance of counsel and, thus, excused the untimely filing of his motion to reopen. Withal, the IJ found that the petitioner had not carried his burden of showing that exceptional circumstances surrounded his failure to appear. Noting that the hearing notice “clearly and unambiguously” showed an 8:00 a.m. start time, the' IJ concluded that the petitioner’s failure to be present at the appointed time could not be attributed to his lawyers’ inadequacies. Nor did the IJ perceive any sufficient reason for exercising his discretionary authority to reopen the case sua sponte. See 8 C.F.R. § 1003.23(b).

In due course, the BIA affirmed the IJ’s decision. This timely petition for judicial review followed. See 8 U.S.C. § 1252(a)(1), (b)(1).

II. ANALYSIS

In the immigration context, judicial review normally focuses on the decision of the BIA, which constitutes the agency’s final order. See Wan v. Holder, 776 F.3d 52, 55-56 (1st Cir. 2015). But where, ’ as here, the BIA merely adds its gloss to the IJ’s findings and conclusions, we treat the two decisions as one. See id.

We review denials of motions to reopen for abuse of discretion. See id. The BIA’s discretion is broad, but not limitless. See Carter v. INS, 90 F.3d 14, 17 (1st Cir. 1996). The BIA can abuse its discretion in a variety of ways, such as “by neglecting to consider a significant factor that appropriately bears on the discretionary decision, by attaching weight to a factor that does not appropriately bear on the decision,1 or by assaying all the proper factors and no improper ones, but nonetheless making a clear judgmental error in weighing them.” Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996); cf. White v. INS, 17 F.3d 475, 479 (1st Cir. 1994) (stating that “[ijmproper consideration of favorable or unfavorable factors by the BIA may sometimes constitute abuse of discretion”).

The Immigration and Nationality Act (INA) provides that when an alien fails to appear at a removal hearing, he “shall be ordered removed in absentia” if the government can establish that he had due notice of the hearing and was otherwise removable. 8 U.S.C. § 1229a(b)(5)(A). An alien may seek rescission of such an order by moving to reopen within 180 days and demonstrating “that the failure to appear was because of exceptional circumstances.” Id. § 1229a(b)(5)(C)(i); see 8 C.F.R. § 1003.23(b)(4)(iii)(A). The INA offers some illustrations,- explaining that exceptional circumstances might include “battery or extreme cruelty to the alien,” serious illness, the death or serious illness of a family member, or other similar circumstances beyond the alien’s control. 8 U.S.C. § 1229a(e)(l).

If both the IJ and the BIA deny a motion to reopen an in absentia removal order, the alien may seek judicial review in the court of appeals. See id. § 1252(b)(2), (d)(1). That review is limited to the validity of the notice provided to the alien, the reasons for the alien’s failure to appear, and the alien’s removability. See id. § 1229a(b)(5)(D); see also Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003). Here, the petitioner does not challenge the applicability of either the first or the third of these elements. Our inquiry, then, concentrates on the existence vel non of exceptional circumstances attendant to the petitioner’s failure to appear.

To -the extent that either the agency or the court is required to decide whether exceptional circumstances exist, the decisionmaker must take into account the totality of the circumstances. See Kaweesa v. Gonzales, 450 F.3d 62, 68-69 (1st Cir. 2006); Herbert, 325 F.3d at 72. Such an assessment may encompass a wide variety of pertinent considerations, including “the strength of the alien’s underlying claim, the harm the alien would suffer if the motion to reopen is denied, and the inconvenience the government would suffer if the motion is granted.” Kaweesa, 450 F.3d at 69. This emphasis on the totality of the circumstances is “grounded in due process considerations” and the need to “ensure that an alien is not deprived of a meaningful opportunity to be heard.” Id. at 69-70.

Against this backdrop, we turn to the merits of the petition for review that is now before us. We hold that the BIA abused its discretion when it failed to consider the totality of the circumstances and, in particular, failed to give due weight to two salient factors that counseled in favor of reopening. In the pages that follow, we explain our reasoning.

To begin, the BIA—and for purposes of the ensuing “exceptional circumstances” analysis, we use the term “the BIA” as a shorthand for both the BIA and the IJ, collectively—took too narrow a view of the adverse effect of the petitioner’s sub-par representation. While the BIA found that poor lawyering excused the late filing of the motion to reopen, it stopped there. In doing so, it failed to give due weight to the role that counsel’s ineptitude played in converting the petitioner’s minor tardiness into an intractable in absentia removal order.

It is common ground that “ineffective assistance of counsel during removal proceedings may comprise an exceptional circumstance” sufficient to warrant reopening. Vaz Dos Reis v. Holder, 606 F.3d 1, 4 (1st Cir. 2010); see Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001). In this instance, counsel’s ineffectiveness was apparent: she not only neglected to inform the IJ that her client was likely en route to the hearing but also failed to move to reopen or otherwise alert the IJ to the petitioner’s arrival (despite the IJ’s earlier invitation that she do so). Had the attorney done her job in anything close to a competent manner, the odds are good that the case would have been reopened then and there. Cf. Jerezano v. INS, 169 F.3d 613, 615 (9th Cir. 1999) (“It is accepted practice for courts to give tardy litigants a second chance by putting them at the end of the calendar, and it seems both harsh and unrealistic to treat as a nonappearance a litigant’s failure to be in the courtroom at the precise moment his case is called.”). This was unquestionably ineffective assistance of counsel. See Saakian, 252 F.3d at 24-25 (explaining that in a removal proceeding, ineffective assistance of counsel occurs when counsel’s deficiencies render the proceeding so fundamentally unfair that the alien is unable reasonably to present his case and is prejudiced as a result).

The second major flaw in the BIA’s analysis is its failure to give proper weight to the minor extent of the petitioner’s tardiness. Though some of our sister circuits have held that minor tardiness is not a failure to appear at all, see, e.g., Perez v. Mukasey, 516 F.3d 770, 774-75 (9th Cir. 2008); Abu Hasirah v. U.S. Dep’t of Homeland Sec., 478 F.3d 474, 478 (2d Cir. 2007) (per curiam); Cabrera-Perez v. Gonzales, 456 F.3d 109, 116-17 (3d Cir. 2006) (per curiam); Alarcon-Chavez v. Gonzales, 403 F.3d 343, 346 (5th Cir. 2005), we need not go that far. Suffice it to say that all absences are not to be treated equally. In the circumstances of this case, the BIA ought to have differentiated between a total failure to appear and a tardy appearance— and it did not do so. This is especially important here because (as a general rule) minor tardiness should be excused more readily than more flagrant absences. See Jerezano, 169 F.3d at 615; cf. Herbert, 325 F.3d at 72 (expressing skepticism about whether minor tardiness should be treated as a “true failure to appear” (internal citation omitted)). We hold, therefore, that the BIA acted unreasonably when it gave no weight at all to the minor extent of the petitioner’s tardiness. We add, moreover, that the BIA’s omission is all the more stark given the petitioner’s unbroken record of timely appearances at a lengthy series of earlier immigration hearings.

The combined effect of the BIA’s failure to give due weight to these two salient factors is magnified by the presence of other mitigating considerations. For instance, counsel’s lackluster performance at the removal hearing was only the latest act of lawyerly incompetence visited upon the petitioner. Had the petitioner received effective assistance of counsel from the very beginning, he quite probably would have attained legal permanent resident status long before April of 2012. His first attorney bungled not. one but two 1-751 petitions. Then—when the petitioner’s second attorney learned that the government might nonetheless be willing to exercise prosecutorial discretion in the petitioner’s case—she neglected to follow up in any meaningful way: she did not file a new I-751 petition, did not request administrative closure, and did not so much as file a motion formally entreating the government to exercise prosecutorial discretion.

The short of it is that the petitioner’s previous attorneys pulled the rug out from under him time and again, and this fact ought to have weighed heavily in the totality of the circumstances analysis. See Kaweesa, 450 F.3d at 69 & n.12 (emphasizing that the core of the analysis is the meaningful opportunity to be heard, which includes consideration of the effectiveness of counsel’s assistance); see, also. Vaz Dos Reis, 606 F.3d at 4.

What is more, the BIA should consider “the strength of the alien’s underlying claim” when it inquires into the existence of exceptional circumstances and applies the totality of the circumstances rubric. Kaweesa, 450 F.3d at 69. Here—even though the petitioner has had some trouble with the law, see supra note 1—this factor counsels in favor of reopening.. Had his previous attorneys provided adequate assistance, the petitioner would have been a promising candidate for legal permanent resident status: he entered the United States legally more than 15 years ago at tlie age of nine and has never left; he completed high school and vocational school here; he attended a community college; his mother has been married for some time to an American citizen; and his younger brother already has received Deferred Action for Childhood Arrivals (DACA) status.

Finally, the factors that ordinarily militate against allowing motions to reopen are at a low ebb in this case. For example, we have stated that the exceptional circumstances standard is intended to remove the temptation to skip a hearing simply to delay imminent deportation. See Herbert, 325 F.3d at 71. Granting the petitioner’s motion to reopen, though, would have done no violence to this principle: the record does not support an inference that the petitioner’s late arrival at the hearing was motivated in any way by a desire to postpone an adjudication of his case. And we have been more forgiving of minor delays where, as here, nothing in the petitioner’s record reflects any intent to avoid a hearing or delay removal. See Kaweesa, 450 F.3d at 71; Herbert, 325 F.3d at 72 n.1.

To sum up, the BIA neglected to give due weight to the role of the petitioner’s lawyer in failing promptly to ameliorate the situation caused by the petitioner’s late arrival at his removal hearing. This bevue was compounded by the BIA’s failure to distinguish the petitioner’s minor and uncharacteristic tardiness from a total boycott of—-or an attempt to delay—a scheduled hearing and its concomitant failure to give due weight to the extremely modest extent of the petitioner’s tardiness.

These failures, taken together, constituted exceptional circumstances sufficient to ground the petitioner’s motion. And in all events, the totality of the circumstances was favorable to reopening. We thus hold that the BIA abused its discretion by finding that the circumstances that prevented the petitioner from having his day in court were unexceptional and by denying the motion to reopen. The petitioner is entitled to present his case at a merits hearing.

III. CONCLUSION

We need go no further. For the reasons elucidated above, we grant the petition for judicial review, reverse the BIA’s denial of the motion to reopen, and remand with instructions to set aside the in absentia removal order and reopen the petitioner’s removal proceedings.

So ordered.

      . This period of delay resulted, in part, from the petitioner’s involvement in a drunk-driving case and his subsequent incarceration. Both sides agree that this conviction does not bear directly on his immigration status.

      . Aliens with DACA status have been granted temporary relief from deportation to work or study in the United States. The program is available to aliens who, among other things, entered the United States before a particular age, have continuously resided in the United States, and are either in school, have graduated from school, or are United States military veterans. Memorandum from Janet Napolita-no, Sec’y, Dep’t of Homeland Sec., to David Aguilar, Acting Comm’r, U.S. Customs & Border Prot., et al. 1 (June 15, 20j2), https:// www.ice.gov/doclib/about/offices/ero/pdf/sl-certain-young-people.pdf (last visited Sept. 29, 2016).

      . We do not have jurisdiction over—and therefore do not address—the petitioner’s alternative claim that the BIA abused its discretion by failing to reopen his case sua sponte. See Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013) (explaining that it is “settled beyond hope of contradiction that the decision whether to exercise this sua sponte authority is committed to the unbridled discretion of the BIA” (internal citation omitted)).