U.S. v. Asset

• Decision Date: 27 April 1993
• Docket Number: No. 92-3700,92-3700
• Citation: 990 F.2d 208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melba ASSET, Deceased, Garland Jarvis, Executor of the Estate of Deceased Defendant Melba Asset, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 208

990 F.2d 208

UNITED STATES of America, Plaintiff-Appellee, v. Melba ASSET, Deceased, Garland Jarvis, Executor of the Estate of Deceased Defendant Melba Asset Defendant-Appellant.

No. 92-3700.

United States Court of Appeals Fifth Circuit.

April 27, 1993.

Charlotte A. Lagarde, William F. Wessel, Wessel, Bartels & Ciaccio, New Orleans, LA, for defendant-appellant.

Herbert W. Mondros, Patrice Harris, Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, LA, David Kris, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY and DAVIS, Circuit Judges, and LEE, ^* District Judge.

TOM S. LEE, District Judge:

I.

FACTS AND PROCEEDINGS

On January 28, 1992, pursuant to a plea agreement of the same date, Melba Asset pled guilty to one count of a nine-count indictment charging her with uttering altered government checks in violation of 18 U.S.C. § 495. ¹ The plea agreement provided Pursuant to a joint motion by the government and the executor of Asset's estate, the district court abated the criminal proceeding against Asset and dismissed the indictment pending against her. The court, however, refused a request by the executor for a return of the $50,000 paid by Asset as restitution under the terms of the plea agreement. Relying on United States v. Dudley, 739 F.2d 175 (4th Cir.1984), and United States v. Cloud, 921 F.2d 225 (9th Cir.1990), the district court reasoned that restitution paid to the victim of a crime is predominately compensatory in nature rather than penal and, thus, should not abate upon the death of the defendant. According to the court, "[s]ince [Asset] had not been sentenced, the defendant was not being punished, as only the Court can impose punishment by way of sentencing, but was agreeing to compensate her victim." The district court concluded, therefore, that the rule of abatement did not require a return of the $50,000 payment. Asset's executor appeals.

                that the government would recommend dismissal of the remaining eight counts at the time of sentencing and that Asset would tender to the government, at the time of her guilty plea, the sum of $50,000, representing restitution to the United States Railroad Retirement Board, the victim of Asset's crime. 2  In accordance with the terms of the plea agreement, Asset paid the government the sum of $50,000 at the time of her plea.   Thereafter, on April 26, 1992, following the entry of her guilty plea but just prior to the date scheduled for sentencing, Asset died
                

The issue presented on this appeal is whether the trial judge, whom the parties agree properly abated the criminal proceeding against Asset following her death, erred in denying appellant's request for return of the $50,000 paid by Asset under the plea agreement. Finding no error, we affirm.

II.

ANALYSIS

It is well established in this circuit that the death of a criminal defendant pending an appeal of his or her case abates, ab initio, the entire criminal proceeding. See United States v. Schuster, 778 F.2d 1132, 1133 (5th Cir.1985); United States v. Pauline, 625 F.2d 684, 684-85 (5th Cir.1980); see also United States v. Moehlenkamp, 557 F.2d 126, 127-28 (7th Cir.1977) (death of defendant during pendency of appeal of right from final judgment of conviction deprives accused of right to appellate decision and requires vacating of conviction and dismissal of indictment); Crooker v. United States, 325 F.2d 318, 320 (8th Cir.1963) ("[T]he death of a defendant produces an abatement of the 'cause,' the 'action,' the 'judgment,' and the 'penalty', and not simply of the status or stage which has been reached at the time of death."). This principle of abatement derives, in part, from the premise that

when an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to [an appellate] decision, the interests of justice ordinarily require that he not stand convicted without resolution Moehlenkamp, 557 F.2d at 128. See also United States v. Oberlin, 718 F.2d 894, 896 (9th Cir.1983) (death of criminal defendant pending appeal of right will abate prosecution); Dudley, 739 F.2d at 176 n. 1 ("The total, permanent and unalterable absence of the defendant prevents prosecution of the appeal which in the interests of justice an accused must be allowed to follow through to conclusion.").

of the merits of his appeal, which is an "integral part of [our] system for finally adjudicating [his] guilt or innocence." Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).

A further premise of the abatement principle is that the purposes of criminal proceedings are primarily penal--the indictment, conviction and sentence are charges against and punishment of the defendant--such that the death of the defendant eliminates that purpose. United States v. Morton, 635 F.2d 723, 725 (8th Cir.1980). This court has explained the rule of abatement as follows:

When a defendant dies pending direct appeal of his criminal conviction it for many years has been the unanimous view of the lower federal courts and the vast majority of state courts that not only the appeal but also all proceedings had in the prosecution from its inception are abated. In years past, we followed that rule of abatement ab initio: we dismissed the appeal and remanded to the District Court with directions to vacate the judgment and dismiss the indictment. Abatement of the entire course of the proceedings has several significant effects: if the sentence included a fine, abatement ab initio prevents recovery against the estate and, ultimately, the heirs; the abated conviction cannot be used in any related civil litigation against the estate; and arguably the family is comforted by restoration of the decedent's "good name."

Pauline, 625 F.2d at 684-85.

Though Pauline, as well as most abatement cases, addresses abatement of criminal proceedings in the event of a criminal defendant's death during the pendency of an appeal, the rule of abatement applies equally to cases in which a defendant, such as Asset, dies prior to the entry of judgment. Cf. Oberlin, 718 F.2d at 896 (abatement applied where death occurred after conviction, but before appeal was perfected). The question here, though, is whether this rule of abatement extends to voluntary restitutionary payments by a criminal defendant prior to the entry of judgment and, if not, whether some other principle of law, contract or otherwise, operates to require the return of such payment.

While the oft-repeated statement in these cases that the death of a criminal defendant abates ab initio the entire criminal proceeding might be read to dictate an unconditional and complete return to the status quo ante-indictment, the principle of abatement has not been so applied. Rather, the courts have consistently interpreted the abatement principle to apply only to penal aspects of the criminal proceeding. Obviously, the death of the defendant abates any unserved portion of a prison term, as well as any parole terms or terms of supervised release. See, e.g., Dudley, 739 F.2d at 176 n. 2 ("That abatement of a sentence to the penitentiary would occur is too obvious to require more than the barest mention."). Moreover, uncollected fines imposed against the criminal defendant likewise abate upon death. See, e.g., Schuster, 778 F.2d at 1133 (death of defendant pending appeal abated criminal proceedings; "[w]ith abatement of the criminal proceedings, that fine is no longer collectible and the security for its payment must be released"); Pauline, 625 F.2d at 684 ("[I]f the sentence included a fine, abatement ab initio prevents recovery against the estate and, ultimately, the heirs."); cf. Oberlin, 718 F.2d at 896 (forfeiture aspect of defendant's conviction, being essentially penal, abated along with remainder of defendant's criminal conviction). Indeed, the Eighth Circuit, in Morton, supra, extended the principle of abatement to a case in which death occurred following conviction and appeal, but prior to the government's collection of the fine imposed against the defendant as part of Though the Morton court "refused to speculate on the outcome of cases involving partially enforced fines," id. at 725 n. 2, the district court in United States v. Bowler, 537 F.Supp. 933 (N.D.Ill.1982), resolved that while the uncollected portion of a fine imposed against the defendant was abated upon his death following his conviction and appeal, that portion of the fine which defendant had paid prior to his death did not abate. The court explained:

                his sentence.  Morton, 635 F.2d at 725.   The court there, noting first that "death of a defendant abates the penalty," id., reasoned that because "the death of the defendant forestalls further punishment, [and because] an uncollected fine in a criminal case is comparable to the balance of the defendant's prison sentence[,] the uncollected fine, like the remaining sentence, abates with death," id
                

[T]he rationale for the principle of abatement is that an indictment, conviction and sentence are charges against and punishment of the defendant and if the defendant is dead, there no longer is a justification for them. Thus, where a criminal defendant dies pending appeal of his conviction or dies before a fine is collected, the principle of abatement applies.

Id. at 936 (emphasis supplied). The principle of abatement, however, "does not apply to fines already paid, since the purposes of the fines were served insofar as they denied defendant some of his resources before his death." Id. at 936 n. 5. While a number of courts have addressed the applicability of abatement principles to fines, only one court has directly addressed the effect of a defendant's death on an order of restitution. In Dudley, supra, a defendant, convicted of unlawful use of food stamp coupons, was sentenced to a term of...