Submitted: November 22, 2016
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.
DerOhannesian II, DerOhannesian & DerOhannesian, Albany,
NY, for Defendant-Appellant.
Before: Katzmann, Chief Judge, Winter, Circuit Judge, and
KATZMANN, CHIEF JUDGE
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.
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. 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.
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)).
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)).
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.
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. §
3556"). Once Libous's conviction is vacated, the
state is as much entitled to retain the fine as if ...