932 F. 2d 970 - United States v. Markarian

Before DAVID A. NELSON and ALAN E. NORRIS, Circuit Judges, and ALDRICH, District Judge.*

The defendant has filed a notice of appeal from the district court's order denying bail which was entered after jury conviction but before sentencing. He now moves for bail pending appeal. The district court's docket sheet indicates that the defendant moved for bail pending appeal in the district court following jury conviction. That motion was denied by order entered February 5, 1991. On March 28, 1991, the defendant filed his notice of appeal.

The issue of the defendant's release is not properly before this court. The defendant in a criminal case must file his notice of appeal within ten days of the order being appealed. Fed.R.App.P. 4(b). In the instant case the defendant's notice was filed over thirty days following the district court's entry of its order. If this case is considered an appeal from the denial of bail pending sentencing, see 18 U.S.C. Sec. 3143(a), then the appeal is untimely. A timely notice of appeal is a mandatory and jurisdictional requirement. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978). Accordingly, the court lacks jurisdiction in such an appeal.

Further, the defendant has not yet been sentenced. The final judgment in a criminal case is a sentence. Flanagan v. United States, 465 U.S. 259, 263 (1984). If, after sentencing, the defendant appeals his conviction and/or sentence, he may move the district court and subsequently this court for bail pending appeal. See 18 U.S.C. Sec. 3143(b). Any consideration of such a motion at this time by this court would be premature.

It is therefore ORDERED that this appeal is dismissed sua sponte as untimely, without prejudice to the defendant's right to seek release pending appeal in the event of a future appeal to this court.