U.S. v. Branch ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-8030
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK BRANCH and
KEVIN JOE HILL, a/k/a Dominique Hill,
GLORIA SHERMAN and ANDRE THOMPSON,
Defendants-Appellants.
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Appeal from the United States District Court for the
Western District of Texas
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(December 18, 1992)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In this case, in which four co-defendants were convicted by a
jury for various narcotic offenses, there appears to be an
appellate jurisdiction problem with one of the defendants, Andre
Thompson. Rule 4(b) of the Federal Rules of Appellate Procedure
requires the notice of appeal by a defendant in a criminal case be
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
filed within ten days of the entry of judgment. In this case, the
district court entered judgment as to Andre Thompson on January 15,
1992; therefore, the final day for filing a timely notice of appeal
was Monday, January 27, 1992, because the tenth day was a Saturday.
See Fed. R. App. P. 26(a). Thompson, through counsel, filed a
notice of appeal on January 28, 1992. A timely notice of appeal is
a mandatory precondition to the exercise of appellate jurisdiction.
United States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985).
Rule 4(b) allows the district court to grant an additional 30
days in which to file a notice of appeal upon a showing of
excusable neglect. The filing of an untimely notice of appeal
within the 30-day period is customarily treated by this Court in
criminal cases as a motion for a determination whether excusable
neglect entitles the defendant to an extension of time to appeal.
United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).
Thompson has filed his notice of appeal within the 30-day period,
expiring in this case on February 26, 1992. Therefore, we will
remand for a determination of whether Thompson's untimely filing of
the notice of appeal was because of excusable neglect.
With respect to all defendant-appellants--including
Thompson--we are presented with a Batson issue (Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)), which would
appear to merit oral argument. In order to avoid duplicative
expenditure of judicial resources, we will abate further processing
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of this case until a resolution has been made with respect to
appellate jurisdiction of Thompson's case.
Therefore, this case is REMANDED as to Andre Thompson for a
determination by the district court whether his untimely filing of
the notice of appeal was because of excusable neglect. Those
findings, once entered by the district judge, will be promptly
transmitted to this court. There will be no need for another
notice of appeal by Thompson. Upon receipt of the district court's
findings, the matter will be referred to this panel for a
determination of appellate jurisdiction with respect to Thompson's
appeal. In the meantime, and until further order from this panel,
this case will not be further processed.
CASE REMANDED IN PART; APPEAL HELD IN ABEYANCE.
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