United States v. Von Bressensdorf
Opinion
In these consolidated appeals, the Von Bressensdorfs challenge the district *126 court’s order granting the Trustee/Special Master’s amended motion for approval of restitution payments and of fees and costs. The order was entered on July 27, 2001. By notice of appeal dated August 19, 2001, Elena Von Bressensdorf appealed this order. Because No. 01-7446 is untimely, we dismiss. We further grant the Government’s motion to dismiss Nos. 01-7576/7577. We deny the Appellants’ motions to stay the court’s July 27, 2001, order.
Criminal defendants have ten days from the entry of the judgment or order at issue to file a notice of appeal. See Fed. RApp. P. 4(b). The appeal periods established by Rule 4 are mandatory and jurisdictional. Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978).
The district court’s order in No. 01-7446 was entered on the docket on July 27, 2001. Elena Von Bressensdorfs notice of appeal was filed on August 19, 2001. 1 Because Von Bressensdorf faded to file a timely notice of appeal or obtain an extension or reopening of the appeal period, we dismiss No. 01-7446. 2
Accordingly, we dismiss No. 01-7446 for lack of jurisdiction. We grant the Government’s motion to dismiss insofar as it relates to Nos. 01-7576 and 01-7577. We deny the Appellants’ motions for a stay. We also deny Elena Von Bressensdorfs motions for in forma pauperis status filed in Nos. 01-7446 and 01-7577 and Otto Von Bressensdorfs motion for judicial notice filed in No. 01-7576. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
. Under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the notice of appeal is considered filed as of the date Appellant delivered it to prison officials for forwarding to the court. We presume for the sake of this appeal, that the date on the notice of appeal is the date the notice was given to prison officials for mailing.
. If the appeal was timely, we would dismiss on the Government’s motion to dismiss the appeal because the appeal is clearly frivolous. Elena Von Bressensdorf challenges an order granting the Trustee/Special Master's amended motion for approval of restitution payments and of fees and costs. She argues that the order is premature because she will challenge her conviction in a 28 U.S.C.A. § 2255 (West Supp. 2001). She has yet to file such a motion. Because restitution was affirmed on direct appeal, we find the instant appeal is frivolous.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Elena VON BRESSENSDORF, A/K/A Elena Bisheff, A/K/A Baroness, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Otto Von Bressensdorf, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Elena Von Bressensdorf, A/K/A Elena Bisheff, A/K/A Baroness, Defendant-Appellant
- Status
- Unpublished