Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Kurt Max Wilfried Miller, Jr., Defendant-appellant, 836 F.2d 551 (6th Cir. 1987)

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U.S. Court of Appeals for the Sixth Circuit - 836 F.2d 551 (6th Cir. 1987) Dec. 24, 1987

Before NATHANIEL R. JONES, WELLFORD and BOGGS, Circuit Judges.


This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction. Appellant has responded.

Appellant was named in a federal indictment in Ohio in 1983. In 1984, the indictment was dismissed on the ground that appellant had been returned to Alabama where criminal charges were pending involving circumstances related to the charges in the Ohio federal indictment, had pled guilty and had been sentenced to 15 years imprisonment. Several months after the dismissal of the indictment, appellant filed a motion to produce documents for use in preparing post-trial motions in Alabama. That motion and a motion for reconsideration were denied and appellant appealed.

A review of the file indicates that the notice of appeal was filed outside the ten-day appeals period provided by Fed. R. App. P. 4(b) which applies to orders denying motions for production of criminal records. United States v. Lanier, 604 F.2d 1157 (8th Cir. 1979) (per curiam). Appellant's June 12, 1987, motion for reconsideration was filed 14 days after the entry of the order denying the motion to produce. It was required to be filed within the ten-day appeals period. United States v. Russo, 760 F.2d 1229 (11th Cir. 1985) (per curiam); United States v. Cook, 670 F.2d 46 (5th Cir.), cert. denied 456 U.S. 982 (1982). Even if the motion for reconsideration had been timely filed, appellant's July 7, 1987, notice of appeal was filed 13 days after the June 24, 1987, order denying reconsideration was entered. The notice of appeal was filed late and this court is without jurisdiction. Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that the motion to dismiss be granted and the appeal be and it hereby is dismissed. Rule 8, Rules of the Sixth Circuit. The dismissal of the appeal is without prejudice to any right the appellant may have to seek an extension of time from the district court as provided by Fed. R. App. P. 4(b).