Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Jeffrey Nelson Daskal, Defendant-appellant, 904 F.2d 37 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 904 F.2d 37 (6th Cir. 1990) June 7, 1990

Before KRUPANSKY and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.


This court entered an order on March 8, 1990, directing the appellant to show cause within twenty-one days why the appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant has failed to respond.

It appears from the record that the final order denying a Fed. R. Crim. P. 41(e) motion for return of property was entered January 5, 1990. The notice of appeal filed on January 19, 1990 was three days late. Fed. R. App. P. 4(b) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(b) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987); United States v. Merrifield, 764 F.2d 436, 436-37 (5th Cir. 1985) (per curiam). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. However, dismissal is without prejudice to any right of appellant to seek an extension of time as provided by Fed. R. App. P. 4(b).