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United States v. Libous

United States Court of Appeals, Second Circuit

May 30, 2017

United States of America, Appellee,
v.
Frances M. Libous, Executrix of the Estate of Thomas W. Libous, Defendant-Appellant, Thomas W. Libous, Defendant.

          Submitted: November 22, 2016

         In 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. Libous died while his appeal before this Court was pending. Pursuant to the doctrine of abatement ab initio, Frances M. Libous, executrix of the estate of Thomas W. Libous, moves to withdraw the appeal, to vacate the underlying judgment of conviction, and for remand to the district court for dismissal of the indictment and return of the fine and special assessment paid by Libous in satisfaction of his criminal sentence. The government consents to the abatement of Libous's conviction but opposes the return of the fine and special assessment. Because the government has no right to retain fines imposed pursuant to a conviction that is subsequently vacated, we GRANT the motion in its entirety.

          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.

          KATZMANN, CHIEF 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.

         Background

         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.

         Discussion

         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) ("[T]he rule followed almost unanimously by the [federal] Courts of Appeals is that a conviction abates on the death of the accused before his appeal has been decided."). 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: "[T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." 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) ("Under the doctrine of abatement ab initio . . . the defendant stands as if he never had been indicted or convicted." (internal quotation marks omitted)).

         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 (recognizing the finality rationale as "the primary reason behind abatement" because it "provides a better explanation why all prior proceedings disappear"). 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 ("[A] fundamental principle of our jurisprudence from which the abatement principle is derived is that a criminal conviction is not final until resolution of the defendant's appeal as a matter of right."); United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980) ("[W]hen . . . death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an integral part of our system for finally adjudicating his guilt or innocence." (internal quotation marks and alterations omitted)).

         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 ("Criminal forfeitures and fines are subject to abatement."). 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 (abating criminal restitution order where defendant died pending appeal because "[w]ithout a final criminal conviction, there can be no order of restitution under 18 U.S.C. ยง 3556"). Once Libous's conviction is vacated, the state is as much entitled to retain the fine as if ...


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