Opinion
NO. CR. 2:10-00262 WBS Ninth Cir. No. 13-10249
05-31-2013
UNITED STATES OF AMERICA, Plaintiff, v. TEVIN TAN, Defendant.
ORDER
This case has been remanded to this court for the limited purpose of determining whether the deadline for filing defendant's criminal appeal should be extended under Federal Rule of Appellate Procedure 4(b)(4). (Docket No. 95.) Rule 4(b)(4) provides that "[u]pon a finding of excusable neglect or good cause, the district court may--before or after the [fourteen-day] time has expired, with or without motion or notice--extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time." See also United States v. Ono, 72 F.3d 101, 103 (9th Cir. 1995); United States v. Stolarz, 547 F.2d 108, 112 (9th Cir. 1976).
In considering whether to grant an extension of time due to excusable neglect, the court applies the four equitable factors established by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993). See Mendez v. Knowles, 556 F.3d 757, 765 (9th Cir. 2009) (applying Pioneer factors to determine excusable neglect for an untimely notice of appeal under Federal Rule of Appellate Procedure 4(a)); see generally Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004) (en banc) (discussing Pioneer). Here, the government is unlikely to be prejudiced due to the delay, defendant's notice of appeal was late by approximately twenty one days but judicial proceedings will not likely be negatively impacted, and defendant has not been shown to be acting in bad faith. As for the reason for delay, the court notes that defendant is represented by appointed counsel, yet defendant filed the appeal pro se. On balance, the factors favor a finding of excusable neglect. See De-Luis-Conti v. Evans, No. C 05-2234 SBA, 2011 WL 175394, at *2 (N.D. Cal. Jan. 19, 2011).
IT IS THEREFORE ORDERED that defendant is GRANTED an extension of thirty days to file his notice of appeal. Since plaintiff filed his notice of appeal on May 9th, 2013, (Docket No. 91), twenty-one days into this extension, defendant's notice of appeal is timely.
The Clerk of this Court is ordered to transmit a copy of this Order to the Clerk of the United States Court of Appeals for the Ninth Circuit and to serve this Order on appellant's appointed counsel, Danny Duance Brace, Jr., Esq.
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WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE