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Home Source documents Court filing — D. Kan. No. 6:21-cr-10073 (Dkt. 273, D. Kan.)

Court filing — D. Kan. No. 6:21-cr-10073 (Dkt. 273, D. Kan.)

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         Case 6:21-cr-10073-EFM         Document 273         Filed 02/27/25      Page 1 of 3




                         IN THE UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF KANSAS


  UNITED STATES OF AMERICA,

                  Plaintiff,




   vs.                                                      Case No. 21-10073-EFM

  MICHAEL R. CAPPS,

                  Defendant.




                                MEMORANDUM AND ORDER

         This matter is before the Court on Movants’ “Combined Notice of Appeal and Conditional

Motion for Extension of Time to File Notice of Appeal of Duaglo, LLC and Charles Capps” (Doc.

256). In this motion, they seek “a protective extension of time to file a Notice of Appeal in a

criminal case pursuant to [Federal Rule of Appellate Procedure] 4(b)(4).” Movants assert that they

occupy an unusual position in this criminal case against Defendant Michael Capps because they

are not the criminal defendant or the Government. Instead, they are claimants to property that is

subject to the Government’s collection procedures to enforce its restitution order against

Defendant Michael Capps. Because of this unusual posture, Movants contend that they “more

nearly occupy the role of a civil party” and thus should be subject to the appeal deadlines in a civil

case. They request that the Court enter an order extending the time for them to file a Notice of

Appeal in this criminal case.
        Case 6:21-cr-10073-EFM                 Document 273            Filed 02/27/25          Page 2 of 3




         Pursuant to Fed. R. App. P. 4(b)(1), in a criminal case, “a notice of appeal must be filed in

the district court within 14 days” of “the entry of . . . the order being appealed.”1 Federal Rule of

Appellate Procedure 4(b)(4) provides that a district court may extend the time to file a notice of

appeal upon a finding of excusable neglect or good cause.2 It is within the court’s discretion

whether to extend the time for filing a notice of appeal.3

         Here, the Court issued its order denying Charles Capps’s Motion for Reconsideration

(Motion to Alter or Amend) on January 23, 2025. Movants did not file a Notice of Appeal within

14 days of the order. Instead, they filed their Notice several days after this time period had expired.

When they filed their Notice of Appeal, they also filed this motion seeking an extension of time to

file their Notice. Movants, however, did not follow Fed. R. App. P. 4(b)(4). Specifically, Movants

did not address whether excusable neglect or good cause existed to extend the time.4 Thus, because

Movants fail to demonstrate to the Court excusable neglect or good cause to warrant an extension

of time, the Court denies Movants’ motion for extension of time.

         IT IS THEREFORE ORDERED that Movants’ Motion for Extension of Time to File

Notice of Appeal (Doc. 256) is DENIED.




         1
           Fed. R. App. P. 4(b)(1)(A)(i). In a civil case, the notice of appeal must be filed within 30 days after entry
of the judgment or the order. Fed. R. App. P. 4(a)(1).
         2
             Fed. R. App. P. 4(b)(4).
         3
          United States v. Torres, 372 F.3d 1159, 1161 (10th Cir. 2004); see also Bishop v. Corsentino, 371 F.3d
1203, 1206 (10th Cir. 2004).
         4
           See Fed. R. App. 4(b)(4); see also Torres, 372 F.3d at 1162 (setting forth the excusable neglect standard);
Bishop, 371 F.3d at 1206–07 (setting forth both the excusable neglect and good cause standards).



                                                          -2-
Case 6:21-cr-10073-EFM        Document 273     Filed 02/27/25   Page 3 of 3




IT IS SO ORDERED.

Dated this 27th day of February, 2025.




                                    ERIC F. MELGREN
                                    CHIEF UNITED STATES DISTRICT JUDGE




                                         -3-


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