United States v. Libous, Docket No. 15-3979
Decision Date | 30 May 2017 |
Docket Number | August Term, 2016,Docket No. 15-3979 |
Citation | 858 F.3d 64 |
Parties | UNITED STATES of America, Appellee, v. Frances M. LIBOUS, Executrix of the Estate of Thomas W. Libous, Defendant–Appellant, Thomas W. Libous, Defendant. |
Court | U.S. Court of Appeals — Second Circuit |
Benjamin Allee, Assistant United States Attorney, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.
Paul DerOhannesian II, DerOhannesian & DerOhannesian, Albany, NY, for Defendant–Appellant.
Before: Katzmann, Chief Judge, Winter, Circuit Judge, and Stein,** District Judge.
Under the well-established doctrine of abatement ab initio , when a convicted defendant dies pending an appeal as of right, his conviction abates, the underlying indictment is dismissed, and his estate is relieved of any obligation to pay a criminal fine imposed at sentence. In this case, we are asked to decide whether, under the doctrine of abatement, a defendant's estate is also entitled to the return of a criminal fine that the defendant paid before his death. We hold that it is.
On July 22, 2015, a federal jury convicted former New York State Senator Thomas W. Libous of making false statements to the FBI in violation of 18 U.S.C. § 1001. At sentencing, the district court (Briccetti, J. ) imposed a two-year term of probation on Libous—who doctors determined had less than a year to live—along with a $50,000 fine and the mandatory $100 special assessment. The district court denied Libous's request to stay the sentence pending appeal, and Libous paid the fine and special assessment. In May 2016, after filing a notice of appeal but before filing an appellate brief, Libous succumbed to prostate cancer
. Frances M. Libous, acting in her capacity as the executrix of Libous's estate, now moves to withdraw the appeal.1 Invoking the common law doctrine of abatement ab initio , she further asks that we vacate the judgment of conviction, remand to the district court for the dismissal of the indictment, and order the return of the $50,000 fine and $100 special assessment.
In the federal courts, "when a convicted defendant dies while his direct appeal as of right is pending, his death abates not only the appeal but also all proceedings had in the prosecution from its inception." United States v. Wright , 160 F.3d 905, 908 (2d Cir. 1998) (internal quotation marks omitted); United States v. Christopher , 273 F.3d 294, 297 (3d Cir. 2001) (). To effectuate this common law rule, "we normally vacate the judgment and remand to the district court with instructions to dismiss the indictment." Krantz v. United States , 224 F.3d 125, 126 (2d Cir. 2000) (per curiam) (internal quotation mark omitted). In other words, the criminal proceedings abate ab initio : United States v. Estate of Parsons , 367 F.3d 409, 413 (5th Cir. 2004) (en banc) (internal quotation marks omitted); see also United States v. Logal , 106 F.3d 1547, 1552 (11th Cir. 1997) .
The somewhat obscure doctrine of abatement is principally animated by two considerations. "First, the interests of justice ordinarily require that a defendant not stand convicted without resolution of the merits of an appeal." Wright , 160 F.3d at 908 (internal quotation marks and alterations omitted). "Second, to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served." Id. The first rationale—what we will call the "finality rationale"—is "grounded in procedural due process concerns" and more readily supports the far-reaching consequences of abatement ab initio . United States v. DeMichael , 461 F.3d 414, 416 (3d Cir. 2006) ; see also Estate of Parsons , 367 F.3d at 415 ( ). In particular, the finality rationale reflects the notion "that the state should not label one as guilty until he has exhausted his opportunity to appeal." United States v. Volpendesto , 755 F.3d 448, 453 (7th Cir. 2014) (internal quotation marks omitted); see also Logal , 106 F.3d at 1552 (); United States v. Pauline , 625 F.2d 684, 685 (5th Cir. 1980) .
The government consents to the vacatur of Libous's conviction, which it recognizes our precedents demand. And the government does not oppose the dismissal of the indictment or dispute that an unpaid fine would abate along with the conviction. See, e.g. , Christopher , 273 F.3d at 297 (). Nevertheless, the government opposes the estate's request for the return of the $50,000 fine imposed on Libous at sentencing, arguing that the policies underlying abatement do not support the abatement of a paid fine.
We disagree. Since Libous "stands as if he never had been indicted or convicted," Logal , 106 F.3d at 1552, "at least in the eyes of the criminal court ... [he] is no longer a wrongdoer," Estate of Parsons , 367 F.3d at 416. There is no legal basis on which the state can retain a fine exacted from Libous as punishment for an offense he is now presumed not to have committed. Cf. Volpendesto , 755 F.3d at 454 ( ). Once Libous's conviction is vacated, the state is as much entitled to retain the fine as if Libous had been acquitted.2 And in our system of criminal justice, the state is not permitted to charge the accused for the privilege of having been prosecuted.
Our conclusion is reinforced by the Supreme Court's recent decision in Nelson v. Colorado , ––– U.S. ––––, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017). In Nelson , the Supreme Court held that "[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur," the state is required under the Fourteenth Amendment's due process guarantee "to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction." Id. at 1252. Once a defendant's conviction is "erased, the presumption of [his] innocence [is] restored," id. at 1255, and the state "has no interest in withholding from [a defendant] money to which the [s]tate currently has zero claim of right," id. at 1257. At bottom, the state "may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions." Id. at 1256.
To be sure, Nelson was contemplating convictions that were reversed or vacated due to some identified infirmity in the underlying proceedings, rather than convictions that were abated as a result of the appellant's death. One could argue that Libous's conviction was not "invalidated" within the meaning of Nelson .3 Nevertheless, at a minimum, the logic of Nelson strongly supports abating the fine.
The government argues that the fine should not abate because the punitive purpose of the fine was served when Libous paid it before he died. As a result, the government submits, the second rationale for abatement—that there is no point in punishing the deceased—is not applicable. That's true enough. But this observation does nothing to explain why the first rationale for abatement—the finality rationale—does not apply with equal force in the case of paid fines as it does in the case of unpaid fines. Taking the government's position to its logical conclusion, why abate the conviction of the deceased defendant at all? The conviction, after all, served its purpose, acting to condemn the defendant during his lifetime. That is not the law, however, because abatement ab initio is premised at least as much, if not more, on the fairness of allowing a conviction and penalties to stand when a defendant dies pending an appeal as of right as it is on the futility of punishing the deceased. See Estate of Parsons , 367 F.3d at 413–15 ( ). Moreover, if we were to adopt the government's approach, we would be privileging defendants who had not paid their criminal fines at the time of death over those who had.
The government suggests that abating the fine would be tantamount to determining that Libous's punishment was illegitimate. Not so. Abating the fine does not reflect a determination that Libous was wrongfully punished, just as abating his conviction does not reflect a determination that the conviction was wrongfully obtained. See id. at 416 (). Instead, it reflects a recognition that there is no longer a valid conviction to support the government's retention of the fine. Cf. Nelson , 137 S.Ct. at 1252, 1257.
Finally, the government argues...
To continue reading
Request your trial-
Commonwealth v. Hernandez
...137 S.Ct. 1249, 1252, 197 L.Ed.2d 611 [2017], restitution order also must be abated upon death of defendant); United States v. Libous, 858 F.3d 64, 67 (2d Cir. 2017) ("at a minimum, the logic of Nelson strongly supports abating" and reimbursing fine paid prior to death of defendant); United......
-
State v. Al Mutory
...from the abatement ab initio doctrine is necessary to avoid the perpetuation of pernicious error."), with United States v. Libous, 858 F.3d 64, 68–69 (2d Cir. 2017) (requiring that courts abate appeals ab initio even though the consequences of abatement ab initio "can surely be devastating"......
-
United States v. Brooks
...pending, his death abates not only the appeal but also all proceedings had in the prosecution from its inception." United States v. Libous , 858 F.3d 64, 66 (2d Cir. 2017) (quoting United States v. Wright , 160 F.3d 905, 908 (2d Cir. 1998) ); see also Durham v. United States , 401 U.S. 481,......
-
United States v. Robertson
...associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." United States v. Libous , 858 F.3d 64, 66 (2d Cir. 2017) (internal quotation marks omitted); see also United States v. Brooks , 872 F.3d 78, 90 (2d Cir. 2017). But the application......
-
Federal sentencing
...In other words, the death of a defendant during an appeal restores the presumption of innocence. See also United States v. Libous , 858 F.3d 64 (2d Cir. 2017) (also relying on Nelson to refund a fine paid by a defendant who died during pendency of appeal). Accordingly, the estate was entitl......