Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Theodore Wright, Respondent-appellant, 805 F.2d 1037 (6th Cir. 1986)

ORDER

This matter is before the Court upon consideration of appellant's motion for bail pending appeal pursuant to Rule 9(b), Federal Rules of Appellate Procedure. A jury of the district court found appellant guilty of two counts of distributing controlled substances in violation of 21 U.S.C. § 841(a) (1) and one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 on March 28, 1986. On May 15, 1986, appellant moved the district court for bail pending appeal. The district court properly construed this as a motion for release pending sentence pursuant to 18 U.S.C. § 3143(a), since appellant had not yet been sentenced, and denied the motion for release.

Appellant filed notice of appeal from the jury verdict on June 9, 1986. This appeal is pending before this Court as Case No. 86-3540. Appellant was thereafter sentenced by the district court on June 23, 1986, and the judgment and commitment order was entered. Appellant filed another notice of appeal on June 25, 1986. This appeal is pending before this Court as Case No. 86-3599.

Rule 9(b), Federal Rules of Appellate Procedure requires that:

Application for release after a judgment of conviction shall be made in the first instance in the district court ...

See also 18 U.S.C. §§ 3143(b), 3145(c). Because appellant has not sought bail in the district court after being sentenced, the motion for bail pending appeal before this Court must be denied. See United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985).

The notice of appeal filed by appellant on June 9, 1986 is premature and must be dismissed. The final judgment in a criminal case from which an appeal may be taken is the judgment and commitment order. Berman v. United States, 302 U.S. 211 (1937). Case No. 86-3540 pending before this Court must be dismissed because the notice of appeal was filed prior to the judgment and commitment order.

Accordingly, it is ORDERED that appellant's motion for bail pending appeal be and it is hereby denied, and the appeal in Case No. 86-3540 be and it is hereby dismissed as premature. This order shall not affect the appeal pending before this Court as Case No. 86-3599 taken by appellant subsequent to the entry of the judgment of conviction and commitment order.