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United States v. Patrick H. Morrison , 980 F.2d 735 ( 1992 )


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  • 980 F.2d 735

    NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
    UNITED STATES of America, Appellee,
    v.
    Patrick H. MORRISON, Appellant.

    No. 92-2701.

    United States Court of Appeals,
    Eighth Circuit.

    Submitted: November 10, 1992.
    Filed: December 3, 1992.

    Before JOHN R. GIBSON, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

    PER CURIAM.

    1

    Patrick H. Morrison was convicted and fined for unlawfully possessing ducks in violation of the Migratory Bird Treaty Act, 16 U.S.C. § 703. Morrison's notice of appeal was filed on July 27, 1992-more than ten days after entry of judgment on July 14, 1992. See Fed. R. App. P. 4(b).

    2

    "[T]he timely filing of a notice of appeal is both mandatory and jurisdictional." United States v. Anna, 843 F.2d 1146, 1147 (8th Cir. 1988). The time for filing a notice of appeal begins to run at the entry of judgment by the district court. See United States v. Coleman, 688 F.2d 663, 664 (9th Cir. 1982); Merrill Lynch, Peirce, Fenner & Smith v. Kurtenbach, 525 F.2d 1179, 1181 (8th Cir. 1975). Federal Rule of Appellate Procedure 26(c), allowing additional time to act after service of a paper by mail, does not apply. See Reynolds v. Hunt Oil Co., 643 F.2d 1042 (5th Cir. 1981); Kurtenbach, 525 F.2d at 1181. A notice of appeal is filed under Federal Rule of Appellate Procedure 4(b) when it is received by the clerk of the district court. Cf. Vogelsang v. Patterson Dental Co., 904 F.2d 427, 430 (8th Cir. 1990) (notice of appeal filed under Rule 4(a)(1) when it is received by clerk). While the time for filing a notice of appeal can be extended by a district court judge upon the explicit finding of excusable neglect, the mere docketing of a late notice of appeal by a district court clerk does not suffice. Anna, 843 F.2d at 1147.

    3

    Accordingly, we conclude that this appeal is not properly before us. Therefore the appeal is dismissed.