U.S. v. Oberlin

Decision Date04 October 1983
Docket NumberNo. 82-1620,82-1620
Citation718 F.2d 894
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marcel Raymond OBERLIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Andrew E. Rubin, Los Angeles, Cal., Frank Ragen, San Diego, Cal., for defendant-appellant.

Raymond Edwards, Jr., Asst. U.S. Atty., Peter K. Nunez, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Southern District of California.

Before POOLE, NELSON, and REINHARDT, Circuit Judges.

POOLE, Circuit Judge:

Marcel Raymond Oberlin, following a jury trial, was convicted of various counts of drug trafficking and of operating a continuing criminal enterprise. He was sentenced on October 18, 1982. Several hours later he committed suicide. On October 20 judgment was entered and, on the following day, a purported notice of appeal was filed on behalf of Oberlin. Upon a motion to abate Oberlin's prosecution, filed on the deceased's behalf by an attorney, we conclude that the cause of action against Oberlin has abated.

Death pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception. Durham v. United States, 401 U.S. 481, 483, 91 S.Ct. 858, 860, 28 L.Ed.2d 200 (1971) (per curiam); United States v. Bechtel, 547 F.2d 1379 (9th Cir.1977). In such a case, the appeal is dismissed and the cause remanded to the district court with instructions to vacate the judgment and to dismiss the indictment. Id. See also United States v. Pauline, 625 F.2d 684, 685 (5th Cir.1980); United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.1977); United States v. Crooker, 325 F.2d 318, 320 (8th Cir.1963). If the sentence included a fine, this rule of abatement ab initio prevents recovery against the estate. See Pauline, 625 F.2d at 684; United States v. Morton, 635 F.2d 723, 726 (8th Cir.1980). Similarly, an abated conviction cannot be used in any related civil litigation against the estate. See Pauline, 625 F.2d at 684.

In early cases, the reasoning behind this rule is stated simply as "all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender." United States v. Dunne, 173 F. 254, 258 (9th Cir.1909),quoting United States v. Daniels, 47 U.S. (6 How.) 11, 13, 14 L.Ed. 323 (1848). More recently, the rationale has been expressed as follows:

[W]hen an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an "integral part of [our] system for finally adjudicating [his] guilt or innocence."

Moehlenkamp, 557 F.2d at 128, quoting Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). Thus, the death of a criminal defendant pending an appeal of right will abate the prosecution ab initio, although death pending the Supreme Court's discretionary determination on a petition for a writ of certiorari will not. See Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) (per curiam) (only the petition is dismissed); Pauline, 625 F.2d at 685; Bechtel, 547 F.2d at 1380; Moehlenkamp, 557 F.2d at 128.

Here, Oberlin died before judgment was entered and before the purported notice of appeal was filed. Therefore, he did not die pending appeal. Nonetheless, at the time of his death, Oberlin possessed an appeal of right from his conviction. We conclude that, although Oberlin did not die pending appeal, the effect of his death is the same--the prosecution abates ab initio. We see no reason to treat a criminal defendant who dies before judgment is entered any differently from one who dies after a notice of appeal has been filed. In either case, he is denied the resolution of the merits of the case on appeal.

In its petition for rehearing, the government argues that abatement does not apply to a criminal forfeiture proceeding under 21 U.S.C. Sec. 848. We reject this contention. It is a well-settled rule that actions upon penal statutes do not survive the death of the wrongdoer. Schreiber v....

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    ...or finding of guilt on the part of the owner of the property. Third, the Fourth Circuit relied, in part, on United States v. Oberlin, 718 F.2d 894 (9th Cir.1983), a case which held that a criminal conviction under section 848, which included a forfeiture, abated upon the defendant's death.1......
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    ...United States v. Davis, 953 F.2d 1482, 1486 (10th Cir.1992); United States v. Wilcox, 783 F.2d 44 (6th Cir.1986); United States v. Oberlin, 718 F.2d 894 (9th Cir.1983); United States v. Pauline, 625 F.2d 684 (5th Cir.1980); United States v. Moehlenkamp, 557 F.2d 126 (7th Cir.1977); Crooker ......
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    ...(10th Cir.1992) (quoting Durham, 401 U.S. at 483, 91 S.Ct. 858); United States v. Wilcox, 783 F.2d 44 (6th Cir.1986); United States v. Oberlin, 718 F.2d 894 (9th Cir.1983); United States v. Pauline, 625 F.2d 684 (5th Cir.1980); United States v. Moehlenkamp, 557 F.2d 126 (7th 8. Accord Unite......
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1 books & journal articles
  • Innocence after death.
    • United States
    • Case Western Reserve Law Review Vol. 60 No. 3, March 2010
    • March 22, 2010
    ...at the defendant's death, but also where a defendant was convicted and died before he could raise an appeal. See United States v. Oberlin, 718 F.2d 894, 896 (9th Cir. 1983) ("We see no reason to treat a criminal defendant who dies before judgment is entered any differently from one who dies......

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