U.S. v. Schumann

• Decision Date: 19 December 1988
• Docket Number: EIGHTY-TWO,87-3785,Nos. 87-3099,s. 87-3099
• Citation: 861 F.2d 1234
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nancy P. SCHUMANN, as the Personal Representative of the Estate of Richard P. Schumann, deceased, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. ONE ASSORTMENT OF(82) FIREARMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1234

861 F.2d 1234

UNITED STATES of America, Plaintiff-Appellee, v. Nancy P. SCHUMANN, as the Personal Representative of the

Estate of Richard P. Schumann, deceased,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. ONE ASSORTMENT OF EIGHTY-TWO (82) FIREARMS, Defendant-Appellant.

Nos. 87-3099, 87-3785.

United States Court of Appeals Eleventh Circuit.

Dec. 19, 1988.

David H. Townsend, Tampa, Fla., for defendant-appellant.

R.W. Merkle, U.S. Atty., Susan M. Daltuva, Warren A. Zimmerman, Asst. U.S. Attys., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before VANCE and KRAVITCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HENDERSON, Senior Circuit Judge:

This is a consolidated appeal from a criminal conviction in No. 87-3099 and the grant of a motion for summary judgment in No. 87-3785, a civil forfeiture action. For the reasons stated below, we remand No. 87-3099 with directions to vacate the judgment of conviction and affirm the district court's judgment of forfeiture in No. 87-3785.

From October to December, 1985, the Bureau of Alcohol, Tobacco and Firearms (BATF) conducted an investigation of the defendant Richard P. Schumann, whom it believed to be engaged in the unlicensed sale of firearms in violation of 18 U.S.C. Sec. 922(a)(1). On several occasions during this three-month period, undercover agents purchased several firearms from Schumann at the Ardor Gun Shop in Tampa, Florida. On December 17, 1985, BATF seized an assortment of eighty-two firearms from the premises during the execution of a search warrant. In February, 1986 the government filed a civil complaint for forfeiture of the firearms confiscated during the search. In May, 1986 the defendant was indicted on one count of violating Sec. 922(a)(1) of the Gun Control Act of 1968. Four days later on May 19, 1986, the President signed Public Law 99-308, the Firearms Owners' Protection Act, to become effective on November 15, 1986.

By stipulation of both parties, the civil action was stayed pending the disposition of the criminal case. The stay was lifted following Schumann's conviction in December, 1986 for dealing in firearms without a license in violation of 18 U.S.C. Sec. 922(a)(1). The defendant was given a three-year suspended sentence with three years probation and fined $1,000.00, which he paid into the registry of the court. The district court reopened the civil action and the government moved for summary judgment in April, 1987. In June, following the defendant's failure to respond to the government's motion, the district court granted summary judgment in favor of the government. Due to a technical error, the government moved for a corrected judgment of forfeiture, which the district court granted on October 21, 1987. Schumann died in the interim on October 20, 1987. As stated, the civil and criminal actions were consolidated for appeal.

The sole issue raised in both appeals is whether the Firearms Owners' Protection Act applies retroactively to Schumann, who was convicted after the Act's effective date of engaging in the business of dealing in firearms without a license. Schumann contended that the district court erred when it refused to give a jury instruction incorporating the new definitions and standards of proof required for a conviction under the Act. Similarly, in the civil appeal, the personal representative of his estate claims the 1986 Act applies so as to defeat the government's entitlement to forfeiture.

We note at the outset that Schumann's death rendered moot his criminal appeal. It is a well-settled principle of law that all criminal proceedings abate ab initio when the defendant dies pending direct appeal of his criminal conviction. United States v. Pauline, 625 F.2d 684, 684 (5th Cir.1980); United States v. Siano, 463 F.2d 778, 778 (5th Cir.1972); see also United States v. Romano, 755 F.2d 1401, 1402 (11th Cir.1985) (same result where defendant died pending the government's petition for rehearing.) ¹ Accordingly, we dismiss the criminal appeal as moot and remand to the district court with directions to vacate the judgment and dismiss the indictment. United States v. Romano, supra, 755 F.2d at 1402; United States v. Lewis, 676 F.2d 508, 510 n. 1 (11th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982); United States v. Holt, 650 F.2d 651, 652 (5th Cir.1981); United States v. Pauline, 625 F.2d at 684; United States v. Siano, supra, 463 F.2d at 778.

Schumann's estate is not entitled to a return of the $1,000.00 fine, paid prior to his death, which was assessed against him as a part of his sentence. We noted in Pauline that "if the sentence included a fine, abatement ab initio prevents recovery against the estate." United States v. Pauline, 625 F.2d at 684. This rule, however, appears to apply only where the fine is uncollected at death. In Dyar v. United States, 186 F. 614 (5th Cir.1911), a $1,000.00 penalty was held to have abated with the death of the defendant, entitling his estate to a fund deposited as security for its payment. The court noted in dictum, "If while he had lived it had been collected, he would have been punished by the deprivation of that amount of his estate; but upon his death there is no justice in punishing his family for his offense." Dyar, supra, 186 F. at 623 (quoting United States v. Pomeroy, 152 F. 279, 282 (S.D.N.Y.1907), reversed on other grounds sub nom., 164 F. 324 (2d Cir.1908)). Because Schumann paid the fine before his demise, the penalty operated as a punishment to him rather than to his estate. See Annotation, Abatement Effects of Accused's Death Before Appellate Review of Federal Criminal Conviction, 80 ALR Fed. 446, 453-55 (1986) (collecting cases).

We turn next to consideration of the propriety of the district court's grant of the government's motion for summary judgment in the forfeiture action. The court of appeals must independently review the district court's order granting or denying summary judgment and apply the same legal standards that controlled the decision of that court. Mercantile Bank & Trust Co. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir.1985). The applicable standard in a motion for summary judgment is whether the movant has sufficiently demonstrated that no genuine dispute exists as to any material fact in the case. F.R.Civ.P. Rule 56(c), 28 U.S.C.A.; Mercantile Bank & Trust Co., supra, at 841; Clemons v. Dougherty County, Georgia, 684 F.2d 1365, 1368 (11th Cir.1982). Although summary judgment may well have been proper at the time it was granted, Schumann's death pending the criminal appeal directly affects the civil aspect of this litigation.

Pauline mandates that the abated conviction may not be used as the basis of liability in any related civil litigation against the estate. 625 F.2d at 684. In the usual case, an issue of ultimate fact that has been determined by a valid and final judgment on the merits cannot be relitigated between those parties in a future lawsuit under the doctrine of collateral estoppel. Precision Air Parts, Inc. v. AVCO Corp., 736 F.2d 1499, 1501 (11th Cir.1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 966, 83 L.Ed.2d 970 (1985). Collateral estoppel also relates to issues of ultimate fact established in a criminal trial which are controverted in a subsequent civil proceeding. Thus, an issue resolved in the government's favor in a criminal proceeding may not be challenged by the defendant in an attendant civil suit brought by the government. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157, 83 S.Ct. 554, 561, 9 L.Ed.2d 644, 654 (1963); Tomlinson v. Lefkowitz, 334 F.2d 262, 264 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965).

In the case sub judice, however, the defendant's death pending his appeal serves to abate the conviction ab initio as pointed out earlier. In essence, Schumann stands as if he never had been indicted or convicted. In its memorandum of law in support of the motion for summary judgment, the government relied exclusively on witness testimony culled from Schumann's criminal trial to show probable cause in instituting the forfeiture action. In addition, the government offered affidavits and exhibits admitted into evidence at the criminal trial, a videotaped deposition of a government agent who had investigated Schumann's activities, and transcripts of tape recorded conversations between Schumann and undercover agents--all of which derived from the earlier criminal proceeding. The district court, in granting the government's summary judgment motion, incorporated by reference the accompanying memorandum of law which depended solely on issues of fact established in the criminal trial. Through no fault of the district court, summary judgment in this action is no longer appropriate by virtue of Schumann's death during the pendency of his appeal. Therefore, abatement of the defendant's conviction obliterates the basis of the motion for summary judgment, which ordinarily would require a reversal and remand to the district court for a determination on the merits. However, because both parties have stipulated to the operative facts giving rise to the institution of the government's forfeiture action, we may proceed to address the merits of the legal issues posed by Schumann's civil appeal.

Title 18 U.S.C. Sec. 924(d) (1982) provides for the seizure and forfeiture of any firearm or ammunition seized in connection with a violation of the Gun Control Act of 1968, 18 U.S.C. Sec. 921 et seq. Schumann was charged in December, 1985 with violating 18 U.S.C. Sec. 922(a)(1), which at that time prohibited "any person ... except a ... licensed dealer, to engage in the business of ... dealing in firearms." The applicable definition of "dealer" at the time of Schumann's alleged offense was "any person engaged in the business of selling firearms or ammunition at...