U.S. v. Moehlenkamp, 76-1243

• Decision Date: 27 June 1977
• Docket Number: No. 76-1243,76-1243
• Citation: 557 F.2d 126
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles E. MOEHLENKAMP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 126

557 F.2d 126

UNITED STATES of America, Plaintiff-Appellee, v. Charles E. MOEHLENKAMP, Defendant-Appellant.

No. 76-1243.

United States Court of Appeals, Seventh Circuit.

June 27, 1977.

Howard P. Trockman, Evansville, Ind., for defendant-appellant.

James B. Young, U. S. Atty., Bradley L. Williams, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before CLARK, Associate Justice, ^* CASTLE, Senior Circuit Judge, and BAUER, Circuit Judge.

BAUER, Circuit Judge.

Following a jury trial, defendant-appellant Moehlenkamp was convicted of one count of conspiracy to distribute controlled substances and of several counts of distributing controlled substances in violation of 21 U.S.C. § 841(a)(1).

After taking an appeal from his convictions pursuant to 28 U.S.C. § 1291, Moehlenkamp died before we were able to decide the merits of his appeal. Relying on Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed. 2d 200 (1971) (per curiam), Moehlenkamp's attorney has moved to dismiss the appeal, vacate the judgment of conviction, and remand the case to the district court for dismissal of the underlying indictment. Citing Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) (per curiam), the Government responds that no action beyond dismissal of the appeal need be taken, for Moehlenkamp's death abates the judgment of conviction entered against him as a matter of law.

We note at the outset that, when a case or controversy has become moot on appeal from a final judgment, we have followed the practice of dismissing the appeal, vacating all prior orders, and remanding the case for dismissal. Todd v. Joint Apprenticeship Comm., 332 F.2d 243, 247 (7th Cir. 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 880, 13 L.Ed.2d 800 (1965). Indeed, this disposition of moot appeals appears to be mandatory, at least for civil cases:

"Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss." Duke Power Co. v. Greenwood Co., 299 U.S. 259, 267, 57 S.Ct. 202, 205, 81 L.Ed. 178 (1936).

We see no reason why the rule should be any different in a criminal case where, as here, an appeal of right taken from a final judgment of conviction becomes moot because of the death of the appellant.

Until recently, it was well settled that, when a criminal defendant died while his appeal was pending, whether the appeal was of right or discretionary, the entire cause was abated. Durham v. United States, 401 U.S. 481, 483, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971) (per curiam); Crooker v. United States, 325 F.2d 318 (8th Cir. 1963); Pino v. United States, 278 F. 479, 480 (7th Cir. 1921). In Durham, when the petitioner's death abated the cause, the Supreme Court disposed of the case by granting the petition for certiorari, vacating the judgment below, and remanding the case to the district court with instructions to dismiss the indictment.

The Court's recent decision in Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) (per curiam), however, has raised some doubts as to the propriety of our following the Durham disposition:

"The Court is advised that the petitioner died at New Bern, N.C., on November 14, 1975. The petition for certiorari is therefore dismissed. To the extent that Durham v. United States, 401 U.S. 481, (91 S.Ct. 858, 28 L.Ed.2d 200) (1971), may be inconsistent with this ruling, Durham is overruled."

Though it is difficult to divine the intentions of the Supreme Court when it says so little, we are of the view that Dove overrules Durham only with respect to the appropriate disposition of moot petitions for certiorari.

We do not believe that the Court's cryptic statement in Dove was meant to alter the longstanding and unanimous view of the lower federal courts that the death of an appellant during the pendency of his appeal of right from a criminal conviction abates the entire course of the proceedings brought against him. Durham v. United States, supra at 482-83, 91 S.Ct. 858; Crooker v. United States, supra at 320. Nor do we read Dove as preventing us from giving effect to the abatement of the cause before us by vacating the judgment of conviction and...