U.S. v. Dudley

• Decision Date: 23 July 1984
• Docket Number: No. 83-5267,83-5267
• Parties: UNITED STATES of America, Appellee, v. William DUDLEY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 175

739 F.2d 175

UNITED STATES of America, Appellee, v. William DUDLEY, Appellant.

No. 83-5267.

United States Court of Appeals, Fourth Circuit.

Argued May 11, 1984.

Decided July 23, 1984.

Fred Warren Bennett, Federal Public Defender, Baltimore, Md., for appellant.

J. Frederick Motz, U.S. Atty., Baltimore, Md., for appellee.

Before HALL and MURNAGHAN, Circuit Judges, and KAUFMAN, ^* District Judge.

MURNAGHAN, Circuit Judge:

Occasionally we face a case raising novel questions with potentially far-reaching consequences. For us to accord the attention that the instant case, fitting in that category, deserves, we must at the outset mention and dispose of several routine, uncontested matters. The decks should be cleared in preparation for an approaching engagement of some significance.

Indicted on six counts (One, "conspiracy to use ... food stamp coupons," Two through Five, "unlawful use ... of food stamp coupons" and Six, "distribution of Demerol"), William Dudley was found guilty as to all in a trial by jury lasting from July 14 through July 29, 1983. On October 19, 1983, concurrent sentences of four years on each count were imposed and a fine of $10,000 was levied with respect to Count 1.

Furthermore, in application of 18 U.S.C. Sec. 3579, the district judge imposed an order of restitution requiring payment to the United States Department of Agriculture of the sum of $4,807.50. A special parole term of four years also was meted out on Count 6. During the pendency of the present timely appeal, Dudley died on December 17, 1983. Counsel who had represented Dudley filed a motion pursuant to F.R.A.P. 42(b) to dismiss the appeal as moot and sought an order from us remanding the case to the district court with directions to vacate the judgment of conviction and dismiss the indictment. The motion was not joined by the government so dismissal is only, under F.R.A.P. 42(b), to be "upon such terms as may be ... fixed by the court."

It is not disputed by the government that death abated (a) the imposition of prison terms, (b) the levy of a fine, and (c) the addition of a special parole term. Such sanctions are purely penal. They, consequently, were extinguished by Dudley's death, requiring ultimately that the case be remanded as to them, with direction to vacate ab initio, as abated, the criminal proceedings. See United States v. Oberlin, 718 F.2d 894, 895 (9th Cir.1983):

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); Crooker v. United States, 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. ¹

That recital of what is not in dispute, by process of elimination, brings us to what is warmly contested between counsel for the government and counsel appointed to represent Dudley while he was still alive. Counsel for Dudley insists that all criminal penalties, whether imprisonments or fines, have always been abated by death of the defendant before exhaustion of his or her right to a complete disposition of an appeal of the conviction. See United States v. Morton, 635 F.2d 723, 725 (8th Cir.1980). From that, counsel argues, it follows that reimbursement ordered in a criminal context, and side by side with orders mandating fine and imprisonment, should likewise abate. Indeed, the Morton case in one respect went even further and held that abatement took place even though the conviction had been finally affirmed, but the fine had not yet been collected when death occurred. ²

The Government's response is that the restitution order entered pursuant to 18 U.S.C. Sec. 3579 is unlike a fine or sentence to imprisonment, for its purposes are predominantly restitutionary (even though they may also be penal ³). The statute is of recent origin, having become effective on its date of enactment, October 12, 1982, and interpretation is not surprisingly rather sparse. One case, United States v. Oberlin, supra, has reached a conclusion supportive of the position contended for on behalf of Dudley. But it is supportive only in that the penal character of a forfeiture provision in a sentence called for under 21 U.S.C. Sec. 848(a)(2) (The Comprehensive Drug Abuse Prevention and Control Act of 1970, Continuing Criminal Enterprise section) was held to cause it to abate upon the decease of the defendant found guilty where death occurred even prior to, but within the time for, perfecting an appeal.

Yet there are substantial and, to us, controlling distinctions between 21 U.S.C. Sec. 848, and the statute which engages our attention: 18 U.S.C. Sec. 3579. While Sec. 3579 parallels the Drug Abuse section which appears under a title "Offenses and Penalties," inasmuch as the comparable explanatory language for Sec. 3579 is "Criminal Procedure, Sentence, Judgment and Execution," there is the important distinction that the statute of concern to the Oberlin court required that a person convicted "shall forfeit," while 18 U.S.C. Sec. 3579, titled "Order of restitution " calls for the defendant "to make restitution to any victim of the offense."

It does not require great perspicacity to appreciate the substantial difference between restitution to the person victimized by the crime (who could, as here, be another arm of the government bringing the prosecution, but who, more likely than not, will prove to be a private third party) and forfeiture, collectible only by the avenging United States government bent on punishing an offender.

Hence we are not impressed by purely verbal logic. "A crime is a crime is a crime" simply does not serve to resolve the dispositive issue. Forfeiture has an exclusively punitive, i.e., penal, character. See, e.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965) ("... a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law."). Accord, United States v. Oberlin, supra, at 896. In Dudley's case, however, we are talking about restitution of property owned by or owing to another which normally would be recoverable in civil litigation. The argument that impositions of penalties in criminal cases have heretofore always been abated on death of the accused, even a fully convicted accused who has not yet paid a fine or forfeiture, grows out of the consideration that punishment, incarceration, or rehabilitation have heretofore largely been the exclusive purposes of sentences and so ordinarily should be abated upon death for shuffling off the mortal coil completely forecloses punishment, incarceration, or rehabilitation, this side of the grave at any rate.

It is an old and respected doctrine of the common law that a rule ceases to apply when the reason for its dissipates. ⁴ Under 18 U.S.C. Sec. 3579, an order of restitution, even if in some respects penal, also, has the predominantly compensatory purpose of reducing the adverse impact on the victim. The consideration would be particularly evident had the victim been a private person but the statute makes no distinction between an out-of-pocket government and a victimized private person.

On the contrary, Sec. 3579(h) explicitly provides that "An order of restitution may be enforced by the United States or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action." While arguably that language would apply if restitution were available under Sec. 3579 only to private parties, the function of the United States being a fiduciary one to aid the victim recover restitution, we regard it as far more likely that the government is not foreclosed from establishing that it has been victimized by the crime and recovering restitution. At any rate, no argument has been advanced on behalf of Dudley that the government may not be a victim under Sec. 3579. See, e.g., United States v. Wurts, 303 U.S. 414, 416, 58 S.Ct. 637, 638, 82 L.Ed. 932 (1938) ("The Government's right to recover funds, from a person who received them by mistake and without right, is not barred unless Congress has 'clearly manifested its intention' [footnote omitted] to raise a statutory barrier.").

We are satisfied, therefore, and hold that the restitution order did not abate by reason of the death of Dudley while the appeal was pending. ⁵

However, the quiver of the public defender who has represented Dudley's interests thoroughly and imaginatively contains another arrow or two. With the support of United States v. Welden, 568 F.Supp. 516 (N.D.Ala.1983), he contends that the absence of a provision for a jury trial to determine the validity of any defense asserted against a claim of restitution and the amount of restitution that should be made offends the Seventh Amendment preservation of the right of trial by jury where the value in controversy shall exceed $20.00. The question is not one easily resolved. On the one hand, the Seventh Amendment to the United States Constitution by its term extends to "suits at common law." Here we deal with an extension of criminal relief which may so substantially differ from the normal suit to recover damages or to cause a defendant to disgorge undue or unjust...