                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2006

USA v. DeMichael
Precedential or Non-Precedential: Precedential

Docket No. 04-1936




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Recommended Citation
"USA v. DeMichael" (2006). 2006 Decisions. Paper 493.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/493


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                                      PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                  No. 04-1936


       UNITED STATES OF AMERICA

                       v.

           THOMAS DEMICHAEL

             *Patricia DeMichael,
                        Appellant

    *(Pursuant to Court Order dated 7/17/06)


   Appeal from the United States District Court
           for the District of New Jersey
        (D.C. Criminal No. 01-cr-00197-9)
District Judge: Honorable Dickinson R. Debevoise


             Argued July 13, 2006

 Before: SLOVITER, McKEE and RENDELL,
              Circuit Judges.

            (Filed August 29, 2006)
Mary Gibbons [ARGUED]
600 Mule Road
Holiday Plaza III
Toms River, NJ 08757
  Counsel for Appellant

George S. Leone
Mark E. Coyne [ARGUED]
Office of the U.S. Attorney
970 Broad Street, Room 700
Newark, NJ 07102
  Counsel for Appellee



                  OPINION OF THE COURT


RENDELL, Circuit Judge.

       Thomas DeMichael died after he filed a timely appeal
from the sentence imposed as a result of his conviction on
federal gambling charges. Although DeMichael appealed only
his fine and not his conviction, his personal representative,
Patricia DeMichael, moves to abate his conviction along with
the fine, and to remand his case to the District Court for
dismissal of his indictment. Although presented in a motion, we
write precedentially to resolve this issue, as it presents a unique
fact pattern not previously considered by our court. We will

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deny the motion insofar as it asks us to abate his conviction, but
will remand to the District Court to abate the fine. We will
dismiss DeMichael’s appeal as moot.

                                I.

       DeMichael pleaded guilty, in November 2003, to aiding
and abetting an illegal gambling business, in violation of 18
U.S.C. § 19551 and § 2.2 On March 22, 2004, the United States
District Court for the District of New Jersey sentenced
DeMichael to twelve months and one day in prison, three years
of supervised release, a $5,000 fine and a $100 special
assessment. DeMichael filed a notice of appeal on April 2,
2004, and submitted his opening brief to this Court on October
5, 2005.3 After completing his prison sentence, DeMichael died
on January 30, 2006. His appeal, which challenged only the
$5,000 fine, was still pending. DeMichael’s attorney filed a
motion for substitution of personal representative Patricia
DeMichael, which we granted. Patricia DeMichael now claims

  1
    “Whoever conducts, finances, manages, supervises, directs,
or owns all or part of an illegal gambling business shall be fined
under this title or imprisoned not more than five years, or both.”
18 U.S.C. § 1955.
  2
    “Whoever commits an offense against the United States or
aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.” 18 U.S.C. § 2.
  3
  The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.

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that an appeal of any portion of the judgment qualifies
DeMichael for wholesale abatement of his conviction and any
remaining punishment. For the reasons set forth below, we
disagree.

                                II.

        The abatement rule is grounded in procedural due process
concerns. When a defendant dies pending an appeal, “‘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.’” United States v. Christopher, 273 F.3d 294, 296-97
(3d Cir. 2001) (quoting United States v. Moehlenkamp, 557 F.2d
126, 128 (7th Cir. 1977)). The courts of appeals largely agree
that abatement ab initio is the appropriate rule when a defendant
dies while his appeal of right is pending. See United States v.
Pogue, 19 F.3d 663 (D.C. Cir. 1994); United States v. Schuster,
778 F.2d 1132 (5th Cir. 1985); United States v. Oberlin, 718
F.2d 894 (9th Cir. 1983); United States v. Morton, 635 F.2d 723
(8th Cir. 1980); United States v. Pauline, 625 F.2d 684, 685 (5th
Cir. 1980); Moehlenkamp, 557 F.2d 126. Our court has
followed this well established rule: “[W]here a convicted
criminal defendant dies after filing an appropriate appeal, the
conviction will be abated and the case remanded to the district
court with instructions to dismiss the indictment.” Christopher,
273 F.3d at 297. See also United States v. Dwyer, 855 F.2d 144,
145 (3d Cir. 1988) (reciting the traditional rule that a criminal
conviction abates when the defendant dies prior to the resolution
of his or her direct appeal). Additionally, we have held that all
criminal forfeitures and fines, except for retribution payments,

                                4
are subject to abatement. Christopher, 273 F.3d at 297.

       We agree that DeMichael’s fine is no longer payable after
his death, and that, whatever the procedural posture of the case,
a defendant’s death necessarily forestalls any further
punishment. See Morton, 635 F.2d at 725 (“[A]n uncollected
fine in a criminal case is comparable to the balance of the
defendant’s prison sentence; the . . . fine, like the remaining
sentence, abate[s] with death.”); United States v. Bowler, 537 F.
Supp. 933, 935 (N.D. Ill. 1982) (noting that a criminal fine is not
awarded as compensation to the United States; rather, it is a
punishment for which there is no justification after defendant’s
death). There is no justice in punishing a defendant’s family for
his offense. Dwyer, 855 F.2d at 145 (Sloviter, J., concurring).
Thus, it is clear that DeMichael’s fine, which constituted part of
his punishment, should be abated.

        However, it does not follow that DeMichael’s conviction
should also be abated. Our decision in Christopher held only
that a defendant who files an “appropriate appeal” is entitled to
have his conviction abated. 273 F.3d at 297. In Christopher,
the defendant appealed his conviction on the merits after
pleading “not guilty” to each count of the indictment. Brief of
Appellant at 1, 4, United States v. Christopher, No. 98-6504 (3d
Cir. Sept. 26, 2000). Because he died before we were able to
rule on his appeal, we considered the appeal to be appropriate
for purposes of abating his conviction and remanded the case to
the district court with instructions to dismiss the indictment.
Christopher, 273 F.3d at 297.




                                5
         When a defendant appeals the judgment of conviction
itself, as was the case in Christopher, or files a general notice of
appeal but dies before submitting an opening brief, the
possibility remains that the conviction itself might be
overturned. See, e.g., Pogue, 19 F.3d at 664 (“[A]ppellant had
filed a timely appeal before his death; the appeal was not
withdrawn; and, had he lived, appellant could have challenged
the plea agreement and the underlying conviction, his sentence
and/or the terms of the restitution.” (emphasis added)).
However, DeMichael’s appeal presents no such possibility. In
his brief, DeMichael clearly stated that the only issue he was
appealing was the propriety of the fine.4 Thus, he waived his
right to appeal his conviction. See Laborers’ Int’l Union of N.
Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)
(“An issue is waived unless a party raises it in its opening brief,
and for those purposes a passing reference to an issue will not
suffice to bring that issue before this court.”).

      This is not a case in which “death has deprived the
accused of his right to our decision.” Moehlenkamp, 557 F.2d

  4
      DeMichael’s brief stated: “This case presents a single issue
for review by this court, namely: Whether the district court erred
. . . in imposing a $5,000 fine as an element of the sentence,”
Appellant’s Br. at 2, and “This appeal does not challenge the
determination or imposition of the offense level. Rather, it is
limited solely to the District Court’s process in selecting the
amount of the fine to be imposed within the guideline range
prescribed for the agreed offense level,” Appellant’s Br. at 5 n.2
(emphasis added).


                                 6
at 128. Rather, the narrow scope of DeMichael’s appeal
produced that result. Abating his conviction would grant relief
that he did not seek, and that he could not possibly have
obtained as a result of his appeal. We therefore conclude that
DeMichael’s appeal was not an “appropriate appeal” for the
purposes of abating his conviction. See Christopher, 273 F.3d
at 297. Accordingly, we will deny the motion to abate
DeMichael’s conviction, remand this case to the District Court
with instructions to abate the fine, and we will dismiss his
appeal as moot.




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