MEMORANDUM AND ORDER
The defendant, Emmett Thrower, was found guilty by the Court, sitting without a jury, of four counts of violating the federal criminal statutes which prohibit the possession and distribution of controlled substances, 21 U.S.C. §§ 841(a)(1), 846. Following the findings of guilt, which were made on March 11, 1977, defendant filed a timely Motion for New Trial and/or Arrest of Judgment. We denied that motion by our Order of April 21, 1977, which was accompanied by a lengthy Memorandum setting forth the procedural background of the entire case as well as our reasons for denying the then-pending motion.
We held a sentencing hearing on April 26, 1977, and sentenced defendant to ten years imprisonment on each of four counts, with the terms of imprisonment to run concurrently; we also imposed concurrent special four year parole terms on each of the four counts. The Judgment and Probation/Commitment Order was signed April 27, 1977, and was entered on the docket the same date.
No notice of appeal was filed within the ten day period prescribed by Rule 4(b) of the Federal Rules of Appellate Procedure. However, on May 18, 1977, subsequent to the expiration of that ten day period, defendant filed a Motion to File An Appeal Out of Time; in this motion, which is presently before us for disposition, defendant requests that we extend the time for filing notice of appeal, due to "excusable neglect" of counsel. We will grant defendant's motion, for the reasons which follow.
Rule 4(b), of the Federal Rules of Appellate Procedure, which governs the timeliness of appeals in criminal cases, requires that a defendant file a notice of appeal in the district court "within 10 days after the entry of the judgment or order appealed from." This 10 day limitation is a jurisdictional one which would preclude an appeal in this case, unless defendant can show "excusable neglect" such as to justify the granting of an extension. United States v. Dabney, 393 F. Supp. 529, 552 (E.D.Pa. 1975), aff'd, No. 75-1431 (3d Cir., January 14, 1976).
The "excusable neglect" provision is set forth in the final sentence of Rule 4(b), which provides as follows:
Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.