                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2001

USA v. Christopher
Precedential or Non-Precedential:

Docket 98-6504




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Recommended Citation
"USA v. Christopher" (2001). 2001 Decisions. Paper 272.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/272


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Filed November 20, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-6504

UNITED STATES OF AMERICA

v.

ANDREW ANTHONY CHRISTOPHER,
a/k/a TONY CHRISTOPHER,
a/k/a ANDREAS CHRISTOPHEROUS

* Carol Christopher, personal representative of Andrew
Anthony Christopher, deceased,
       Carol Christopher, personal
       representative of Andrew
       Anthony Christopher,
       deceased, Appellant

*[Pursuant to Court's Order date 9/12/01]

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. 98-cr-00133)
District Judge: The Honorable Alfred J. Lechner, Jr.

Argued July 30, 2001

Before: BECKER, Chief Judge, McKEE and WEIS,
Circuit Judges

(Filed: November 20, 2001)
       MARK A. BERMAN, Esquire
        (ARGUED)
       Gibbons, Del Deo, Dolan,
        Griffinger & Vecchione
       A Professional Corporation
       One Riverfront Plaza
       Newark, New Jersey 07102

       Counsel for Appellant

       GEORGE S. LEONE, Esquire
        (ARGUED)
       Chief, Appeals Division
       Robert J. Cleary, Esquire
       United States Attorney
       970 Broad Street
       Newark, New Jersey 07102-2535

       Counsel for Appellee

OPINION OF THE COURT

WEIS, Circuit Judge.

In this appeal, we hold that when a convicted defendant
dies after filing an appropriate appeal but before it is
adjudicated, the conviction is abated and the indictment
will be dismissed. If restitution has been directed, however,
that order will not abate and the personal representative of
the deceased defendant may prosecute the appeal on that
phase of the case.

Defendant Christopher was convicted after a jury trial on
counts of mail fraud, false statements to the Social Security
Administration, theft of cable services, and trafficking in
counterfeit devices. The District Court imposed a sentence
of forty-one months incarceration and three years of
supervised release. The Court also ordered defendant to
pay $17,010 in restitution to the Social Security
Administration.

Defendant filed a timely appeal, but died in prison while
the appeal was pending. His widow was appointed as
decedent's personal representative and was substituted as

                               2
appellant pursuant to Federal Rule of Appellate Procedure
43(a)(1).1

Appellant contends that the conviction and the order of
restitution should be abated because of defendant's death.
The government responds that the appeal should be
dismissed or, in the alternative, that even if the conviction
is abated, the order of restitution should remain in effect
absent a showing of invalidity.

Although this Court has not previously addressed the
proper disposition of an appeal by a deceased criminal
defendant, the matter is not a new one. The issue arises
most frequently in the state courts, although it has also
been the subject of a number of opinions in the federal
system.

The Supreme Court of the United States encountered the
issue a number of times in its early history. See, e.g., List
v. Pennsylvania, 131 U.S. 396 (1888). Rather than catalog
those cases, however, we think it appropriate to begin in
more modern times with Durham v. United States , 401 U.S.
481 (1971).

In Durham, the Court of Appeals for the Ninth Circuit
had affirmed the defendant's conviction, and the petition for
certiorari had been filed before the defendant died. 401
U.S. at 481. The Supreme Court granted the petition for
certiorari, vacated the judgment of the Court of Appeals,
and remanded the case to the District Court with directions
to dismiss the indictment. Id. at 483. The Supreme Court
observed that "[i]n federal criminal cases[it had] developed
the practice of dismissing the writ of certiorari and
remanding the cause to the court below." Id . at 482.
Basically, the Court allowed the scope of abatement to be
determined by the lower federal courts.

A few years later, the Court dismissed a petition for
certiorari in a factually identical situation. See Dove v.
_________________________________________________________________

1. The Government argued that this matter was moot and that the
deceased defendant's attorney did not have the authority to pursue the
appeal. However, following the Court's suggestions, Mrs. Christopher
was properly appointed administratrix so that she could proceed with
the appeal.

                               3
United States, 423 U.S. 325 (1976). The Court explained
that "[t]o the extent that Durham . .. may be inconsistent
with this ruling, Durham is overruled." Id. at 325; see also
Kelly v. Matusiak, 479 U.S. 805 (1986) (petition for
certiorari dismissed); Mintzes v. Buchanon, 471 U.S. 154
(1985) (order granting certiorari vacated, petition for
certiorari dismissed); Warden, Green Haven State Prison v.
Palermo, 431 U.S. 911 (1977) (petition for certiorari
dismissed).

In most criminal cases, proceedings in the Supreme
Court differ from those in the Courts of Appeals in one
fundamental respect: appeals to the Courts of Appeals are
of right, but writs of certiorari are granted at the discretion
of the Supreme Court. The prevailing practice of the
Supreme Court to dismiss petitions for certiorari upon the
death of the convicted defendant, therefore, does not readily
transfer to the Courts of Appeals.

Faced with circumstances similar to those presented
here, the Court of Appeals for the Seventh Circuit, while
acknowledging Durham and Dove, concluded that when
"death has deprived the accused of his right" to review by
a Court of Appeals, "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. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.
1977) (internal quotations omitted). The Court concluded
that the appeal was moot, vacated the conviction, and
remanded the case to the District Court to dismiss the
indictment. Id.

Other courts have reached the same result. See United
States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998) (interests
of justice require that conviction not stand without
resolution of the merits of an appeal); United States v.
Zizzo, 120 F.3d 1338, 1346 (7th Cir. 1997) (abating
conviction of defendant who died before the Court was able
to decide his appeal on the merits and remanding with
instructions to vacate conviction and dismiss indictment);
United States v. Logal, 106 F.3d 1547, 1552 (11th Cir.
1997) (criminal conviction not final until resolution of
defendant's appeal as a matter of right); United States v.

                               4
Pogue, 19 F.3d 663, 665 (D.C. Cir. 1994) (citing cases
holding the same from the Courts of Appeals for the
Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth
and Eleventh Circuits).

Thus, the rule followed almost unanimously by the
Courts of Appeals is that a conviction abates on the death
of the accused before his appeal has been decided. The one
case that has been cited as an exception is United States v.
Dwyer, 855 F.2d 144 (3d Cir. 1988), but that view is based
on an erroneous reading of that opinion.

In Dwyer, the defendant committed suicide after the
entry of the jury's guilty verdict. 855 F.2d at 145. The
sentence had not yet been imposed, nor had an appeal
been filed when the defendant's attorneys moved to abate
the conviction. Id. The District Court denied the motion,
and that order was appealed to our Court. Id. We held that
the attorneys lacked authority to act for the defendant after
his death and, therefore, had no standing to move for
abatement. Id. (citing In re Chin, 848 F.2d 55 (4th Cir.
1988) (per curiam)). Moreover, because no judgment of
sentence -- and thus no final order -- had been entered,
this Court may have lacked appellate jurisdiction. The
concurring opinion, however, would have treated the case
as moot. Id. at 145-46 (Sloviter, J., concurring).

Dwyer is, therefore, clearly distinguishable from a
situation in which the defendant dies after appealing the
entry of a judgment of sentence. That case does not govern
disposition of the appeal presently before us.

We can discern no reason for this Court to deviate from
the practice adopted by each of the other Courts of Appeals.
The rule of abatement is well established, and we adopt it
as the law in this Court. Thus, where 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.

Forfeitures and fines are subject to abatement. Dwyer,
855 F.2d at 146 (Sloviter, J., concurring); United States v.
Dudley, 739 F.2d 175, 176 (4th Cir. 1984); United States v.
Oberlin, 718 F.2d 894, 896 (9th Cir. 1983). But see Zizzo,
120 F.3d at 1346-47 (explaining that the rule of abatement

                                5
has never been applied to require the return of money paid
for fines before the defendant's death).

The proper disposition of a restitution order, however,
has divided the Courts of Appeals.

The Court of Appeals for the Eleventh Circuit has
reasoned that once a conviction is abated, a restitution
order cannot survive. See Logal, 106 F.3d at 1552. "Under
the doctrine of abatement ab initio, . . . the defendant
stands as if he never had been indicted or convicted. The
absence of a conviction precludes imposition of the
restitution order . . . ." Id. (internal quotations & citations
omitted). Although this reasoning cannot lightly be
dismissed, the result it commands represents a minority
view.

In United States v. Mmahat, 106 F.3d 89 (5th Cir. 1997),
the Court concluded that when the restitution order is
designed to make the victim whole, it is compensatory and
survives the defendant's death. 106 F.3d at 93. In such
circumstances, "only the portion of the proceedings
unrelated to the restitution order is abated." Id.
Consequently, although the Court abated the portion of the
proceeding unrelated to the restitution order, the decedent's
heirs were allowed to pursue the appeal because the
restitution order survived. Id. The Court of Appeals for the
Fourth Circuit has held similarly, excepting a restitution
order from abatement, but reviewing the challenges to the
conviction. See Dudley, 739 F.2d at 176-178.

Two courts have concluded that the restitution order was
moot because the decedent left no assets and any attempt
at recovery would be futile. See Wright, 160 F.3d at 909;
Pogue, 19 F.3d at 665. Neither court offered an observation
on abating the restitution order.

The question whether an order of restitution should
abate depends essentially on its categorization as penal or
compensatory. A penal provision, such as a fine or
forfeiture, abates with the conviction. If viewed as
compensatory, a restitution order survives.

The issue may emerge in a variety of circumstances. The
Supreme Court has noted that the Bankruptcy Code was

                                6
not intended to grant a discharge from criminal fines and
penalties and held that, being criminal in nature, a
restitution order was not subject to discharge. Kelly v.
Robinson, 479 U.S. 36, 46-49 (1986). Although restitution
is designed for the benefit of the victim, he has no control
over the amount to be awarded, nor whether it will be
directed. Id. at 52. We followed Kelly in another bankruptcy
discharge case. In re Rashid, 210 F.3d 201 (3d Cir. 2000).

Kelly, however, was not an abatement case. See United
States v. Asset, 990 F.2d 208, 213 n.3 (5th Cir. 1993). In
another context, the Supreme Court cited the goal of the
Victim and Witness Protection Act as compensating victims
of crimes. Hughey v. United States, 495 U.S. 411, 420
(1990) (overruled on other grounds).

We have held that the purpose of restitution under the
Mandatory Victim Reparation Act is to compensate victims
for their losses and to make them whole. United States v.
Diaz, 245 F.3d 294, 312 (3d Cir. 2001); see also United
States v. Mustafa, 238 F.3d 485, 490 (3d Cir. 2001) (fine is
a form of punishment, whereas restitution is merely
intended to compensate victims); Gov't of the Virgin Islands
v. Davis, 43 F.3d 41, 47 (3d Cir. 1994) (restitution is
compensatory rather than punitive); United States v. Kress,
944 F.2d 155, 159 (3d Cir. 1991) (restitution differs from
fine or penalty and is intended to compensate victims).

On the other hand, in United States v. Edwards , 162
F.3d 87 (3d Cir. 1998), we concluded that for ex post facto
purposes, restitution under the Mandatory Victim
Restitution Act is a form of penalty. 162 F.3d at 91-92; see
also United States v. Sleight, 808 F.2d 1012, 1020-21 (3d
Cir. 1987) (prohibiting prejudgment interest because
purpose of restitution under Probation Act is to make
victim whole; order is imposed as part of sentencing
process and remains inherently a criminal penalty). The
application of the ex post facto clause to restitution orders
has divided the Courts of Appeals.2 See United States v.
_________________________________________________________________

2. Interestingly, the Fifth Circuit, which excepts restitution from
abatement, has also held that restitution orders are subject to ex post
facto consideration. See United States v. Richards, 204 F.3d 177 (5th Cir.
2000).

                                7
3. We are aware that 42 U.S.C. S 404(a)(2)B-C may possibly afford relief
to the Commissioner of Social Security. See Heins v. Shalala, 22 F.3d
157 (7th Cir. 1994). Because no facts have been presented to us,
however, we express no opinion on that possibility.
Schulte, 264 F.3d 656, 661-62 (6th Cir. 2001) (collecting
cases).

A survey of case law illustrates that restitution is best
classified as compensatory, punitive, or a combination of
both according to the context in which the issue arises. Our
Court has not yet addressed this question in the abatement
setting. Furthermore, our opinion in Edwards is not in
conflict with our consideration of the abatement effect on
restitution orders.

We conclude that the order of restitution in this case is
more compensatory in nature than penal. Historically,
restitution, an equitable remedy, was intended to reimburse
a person wronged by the actions of another. To absolve the
estate from refunding the fruits of the wrongdoing would
grant an undeserved windfall. We are persuaded that
abatement should not apply to the order of restitution in
this case, and thus, it survives against the estate of the
deceased convict.3

We will, therefore, grant the appellant's motion to abate
the conviction, and direct the appellant to file a brief within
thirty (30) days of the date of this Order addressing the
merits of the restitution order. The Government may also
file a responsive brief within (15) days of thereafter.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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