United States v. Christie Buzard, Juan Antonio Tercero, Albert Dupuy

ORDER DISMISSING APPEAL

By an order filed July 26, 1988 and docketed on July 28, 1988, the district court denied Dupuy’s timely motion for a new trial. Notice of appeal was required to be filed within ten days after the order was docketed. An exception is provided, however: “[ujpon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed_” Fed.R.App.P. 4(b).

In this case the clerk apparently failed to mail notice of the order denying the motion for a new trial to the parties as required by Fed.R.Crim.P. 49(c). On September 23, 1988, Dupuy’s attorney advised the district judge that he believed the motion for a new trial was still under advisement. The district judge thereupon entered an order that his previous order filed July 26, 1988 “be deemed to have been filed” as of September 23, 1988. Because more than thirty days had elapsed from the expiration of the time otherwise prescribed for filing the notice of appeal, the court was not authorized under Rule 4(b) of the…