     18‐0616
     USA v. Mladen

 1                         UNITED STATES COURT OF APPEALS

 2                               FOR THE SECOND CIRCUIT

 3                                             ‐‐‐‐‐‐

 4                                     August Term, 2019

 5   (Appeal Argued: October 21, 2019
 6    Motion Submitted: February 25, 2020                        Decided: May 6, 2020)

 7                                     Docket No. 18‐0616

 8   _________________________________________________________

 9   UNITED STATES OF AMERICA,
10                                                  Appellee,

11                                    ‐ v. ‐

12   DUSAN MLADEN, aka David Mladen,

13                                          Defendant‐Appellant.
14   _________________________________________________________

15   Before: KEARSE, WALKER, and LIVINGSTON, Circuit Judges.

16                Defendant Dusan Mladen filed this appeal from a judgment entered in

17   the United States District Court for the District of Connecticut after his plea of guilty

18   before Jeffrey A. Meyer, Judge, convicting him on one count of making false

19   statements to a federal official, in violation of 18 U.S.C. § 1001, and sentencing him to
 1   five yearsʹ imprisonment, three years of supervised release, a $20,000 fine, and the

 2   mandatory $100 special assessment, see id. § 3013(a)(2)(A). Mladen appealed, arguing

 3   only that there were substantive and procedural errors in connection with sentencing

 4   and that his sentence was unreasonable. The appeal was argued in October 2019 and

 5   has remained pending. On February 10, 2020, Mladenʹs counsel notified this Court

 6   that on February 8, 2020, Mladen died. On this basis, counsel has moved for

 7   abatement of all incidents of the prosecution, requesting that the appeal be dismissed

 8   without a decision on the merits, that Mladenʹs judgment of conviction be vacated,

 9   and that the matter be remanded to the district court with instructions to dismiss the

10   indictment and order repayment to Mladenʹs estate of the $20,000 fine and $100

11   special assessment. The government opposes so much of the motion as seeks

12   abatement of Mladenʹs conviction and the $100 special assessment. Because Mladen

13   was convicted upon his plea of guilty, and he neither did nor was permitted to

14   challenge on appeal the merits of his conviction, we deny as without merit so much

15   of the motion as seeks (1) vacatur of Mladenʹs conviction, (2) dismissal of the count

16   of the indictment on which he was convicted, and (3) repayment of the mandatory

17   $100 special assessment; we grant so much of the motion as requests dismissal of this

18   appeal and a remand to the district court for vacatur of the imposed terms of


                                               2
 1   imprisonment and supervised release and for an order requiring that the paid fine of

 2   $20,000 be repaid to Mladenʹs estate.

 3                The motion is granted in part and denied in part; the appeal is dismissed.

 4                       MARC H. SILVERMAN, Assistant United States Attorney,
 5                       New Haven, Connecticut (John H. Durham, United States
 6                       Attorney for the District of Connecticut, William J. Nardini,
 7                       Assistant United States Attorney, New Haven, Connecticut,
 8                       on the brief), for Appellee.

 9                       ROBERT A. CULP, Garrison, New York, for Defendant‐
10                       Appellant.

11   KEARSE, Circuit Judge:

12                Defendant Dusan Mladen filed this appeal from a judgment of the

13   United States District Court for the District of Connecticut entered after his plea of

14   guilty before Jeffrey A. Meyer, Judge, convicting him on one count of making false

15   statements to a federal official, in violation of 18 U.S.C. § 1001, and sentencing him to

16   60 monthsʹ imprisonment, a three‐year term of supervised release, a fine of $20,000,

17   and the mandatory $100 special assessment, see id. § 3013(a)(2)(A). Mladen appealed,

18   arguing only that there were substantive and procedural errors in connection with

19   sentencing and that his sentence was unreasonable. The appeal was argued in

20   October 2019 and has remained pending. On February 10, 2020, Mladenʹs counsel



                                                3
 1   notified this Court that on February 8, 2020, Mladen died. On this basis, counsel has

 2   moved for abatement of all proceedings against Mladen (ʺAbatement Motionʺ or

 3   ʺMotionʺ), requesting that the appeal be dismissed without a decision on the merits,

 4   that Mladenʹs judgment of conviction be vacated, and that the matter be remanded

 5   to the district court with instructions to dismiss the indictment, order repayment of

 6   the fine and special assessment paid by Mladen, and abate all other incidents of the

 7   prosecution. The government opposes so much of the Motion as seeks abatement of

 8   Mladenʹs conviction and the mandatory $100 special assessment. Because Mladen

 9   was convicted upon his plea of guilty, and he neither did nor was permitted to

10   challenge on appeal the merits of his conviction, we deny as without merit so much

11   of the Abatement Motion as seeks (1) vacatur of Mladenʹs conviction, (2) dismissal of

12   the count of the indictment on which he was convicted, and (3) repayment of the $100

13   special assessment mandated for an individual upon his conviction of a felony. We

14   deny as moot so much of the Motion as requests dismissal of the remainder of the

15   indictment, which has already been dismissed. We grant so much of the Motion as

16   seeks vacatur of the imposed terms of imprisonment and supervised release, return

17   of the $20,000 paid fine, and dismissal of the appeal.




                                               4
 1                                     I. BACKGROUND




 2                In a two‐count indictment filed in July 2017, Mladen was charged with

 3   threatening to assault a federal judge (ʺthe Judgeʺ) before whom he was a litigant, in

 4   violation of 18 U.S.C. § 115(a)(1)(B) (ʺCount Oneʺ), and making false statements in a

 5   matter within the jurisdiction of a department or agency of the United States, in

 6   violation of 18 U.S.C. § 1001, by falsely claiming, inter alia, that he had not telephoned

 7   the Judge, had not gone to the Judgeʹs house, and had not threatened the Judge

 8   (ʺCount Twoʺ). On October 13, 2017, Mladen and the government entered into a

 9   written plea agreement (ʺPlea Agreementʺ or ʺAgreementʺ), and Mladen pleaded

10   guilty to Count Two of the indictment.




11   A. Mladenʹs Count‐Two Admissions in the Plea Agreement

12                As part of the Plea Agreement, Mladen acknowledged that until late July

13   2017 he was a litigant in a matter pending before the Judge, and he stipulated to the

14   following Count‐Two offense conduct, inter alia: (a) in early July, Mladen placed an

15   unsigned, handwritten note in the mailbox at the Judgeʹs home, telling the Judge to

16   ʺBACK OF[F],ʺ and stating ʺJUST WARNING FOR NOWʺ (Plea Agreement at 10, ¶ 3


                                                 5
 1   (internal quotation marks omitted)); (b) on July 10, from his home, Mladen placed a

 2   call to the Judgeʹs home telephone number, which was automatically forwarded to

 3   the Judgeʹs personal cell phone and was answered by the Judge; (c) in that call,

 4   Mladen refused to identify himself but said, inter alia, that he ʺhad visited the Judgeʹs

 5   house the previous weekʺ (id. ¶ 4), and ʺI left a message for youʺ (id. (internal

 6   quotation marks omitted)).

 7                Mladen stipulated that on July 11 he was interviewed by United States

 8   Deputy Marshals and that in that interview he, inter alia, (a) denied having

 9   telephoned the Judge, (b) denied even knowing the Judgeʹs telephone number, and

10   (c) denied having gone to the Judgeʹs house. In the Plea Agreement, Mladen admitted

11   that each of these denials was false, that ʺ[e]ach of these statements was material,ʺ and

12   that he willfully made these statements, knowing that they were false. (Id. ¶¶ 5, 8.)




13   B. Additional Information and Sentencing

14                The Plea Agreement stated that ʺ[t]he Government contends that the

15   defendant also committed the conduct outlined in Count One of the indictment, and

16   that the Court should consider such conduct as relevant conduct under the

17   [Sentencing] Guidelines.ʺ (Plea Agreement at 4.) It stated that ʺ[a]fter sentencing, the

                                                6
 1   Government will move to dismiss Count One of the indictment because the conduct

 2   underlying the dismissed counts [sic] will have been taken into account in

 3   determining the appropriate sentence.ʺ (Id. at 8.)

 4                 The Agreement also stated that ʺdefendant and the Government reserve

 5   their right[s] to present additional offense conduct and relevant conduct to the Court

 6   in connection with sentencingʺ (id. at 11). Mladen acknowledged his understanding

 7   both that the Count Two offense‐conduct stipulation in the Agreement did ʺnot set

 8   forth all of the relevant conduct and characteristics that may be considered by the

 9   Court for purposes of sentencingʺ (id. at 3‐4), and that the government was ʺobligated

10   to advise the Court of any additional relevant facts that subsequently come to [its]

11   attentionʺ (id. at 4).

12                 On the day before Mladen entered his plea, the United States Marshals

13   Service (ʺMarshalsʺ) received a letter from an inmate at the New Haven Correctional

14   Center (the ʺinformantʺ) stating that he was housed with Mladen. The letter stated

15   that Mladen had made statements about a federal judge and about the possibility of

16   threatening that judge physically.

17                 A new investigation was opened, staffed by Marshals and attorneys

18   other than, and administratively screened from, those assigned to Mladenʹs existing

                                               7
 1   prosecution. After interviewing the informant and hearing that Mladen had sought

 2   his help in finding someone to frighten the Judge, the Marshals obtained

 3   authorization to secretly record conversations between Mladen and the informant.

 4   Thereafter, in a November 8, 2017 recorded conversation between the two, Mladen

 5   stated, inter alia, that he planned, post‐release, to try to find evidence of wrongdoing

 6   by the Judge, and said that if he could not find such evidence he would fabricate

 7   something. He also stated that he had previously actually armed himself with a gun,

 8   and had been ready to drive to the Judgeʹs house, planning to wait nearby for an

 9   opportunity to ʺ[s]hootʺ and ʺ[k]illʺ the Judge.

10                 The government provided the full audio recording and a complete

11   transcript of Mladenʹs November 8 conversation with the informant to the defense,

12   and provided a redacted version of the transcript to the Probation Office preparing

13   the presentence report (ʺPSRʺ) on Mladen.          Passages of the transcript were

14   reproduced in an addendum to the PSR. Mladen sought a hearing at which the

15   informant would be called to testify. The district court denied the request because

16   Mladen did not dispute that he made the statements attributed to him in the

17   transcript.




                                                8
 1                In sentencing Mladen on Count Two of the indictment in February 2018,

 2   the court considered, inter alia, the statements made by Mladen in the note he left in

 3   the Judgeʹs mailbox, the statements he made in his telephone conversation with the

 4   Judge, and the statements he made in his jailhouse conversation with the informant.

 5   The court concluded, in connection with Mladenʹs false statements as charged in

 6   Count Two and admitted in the Plea Agreement, that his relevant conduct included

 7   statements to the Judge that constituted threats, and that Mladen intended his

 8   statements as threats. The court calculated that the Guidelines‐recommended range

 9   of imprisonment was 51‐to‐63 months, but was capped at 60 months, the statutory

10   maximum, see 18 U.S.C. § 1001. The court sentenced Mladen to serve 60 monthsʹ

11   imprisonment, to be followed by a three‐year term of supervised release, and

12   imposed a fine of $20,000, and the mandatory special assessment of $100. On motion

13   of the government, Count One was dismissed.




14   C. Mladenʹs Contentions on Appeal

15                Mladen appealed, raising only challenges to his sentence and the

16   sentencing proceedings. He contended that the denial of his request for a hearing at

17   which the informant would testify denied him due process; and he argued, for the


                                               9
 1   first time, that his conversations with the informant, and any consideration of those

 2   conversations, violated his Sixth Amendment right to counsel. He also contended

 3   that the district court erred in calculating his Guidelines‐recommended range of

 4   imprisonment, in imposing supervised release conditions that he argued were

 5   unreasonable, and in ordering him to pay a $20,000 fine without sufficient evidence

 6   that he had the financial ability to pay such an amount.




 7   D. The Present Motion

 8                Before the appeal could be decided, Mladen died. His attorney filed the

 9   Abatement Motion‐‐without needing to substitute Mladenʹs estate for this purpose,

10   see United States v. Brooks, 872 F.3d 78, 82 & n.2 (2d Cir. 2017) (ʺBrooksʺ)‐‐to erase all

11   proceedings against Mladen, requesting vacatur of his conviction, dismissal of the

12   appeal, dismissal of the indictment, and repayment to Mladenʹs estate of the paid fine

13   and special assessment. The government opposes so much of the Motion as seeks

14   vacatur of the conviction and return of the special assessment. For the reasons that

15   follow, we grant the Motion in part and deny it in part.




                                                10
 1                                       II. DISCUSSION

 2   A. Abatement Principles

 3                In the federal judicial system, a defendant convicted of a crime‐‐unless

 4   he has entered an unconditional plea of guilty (see Part II.B. below)‐‐has the right to

 5   challenge the judgment of conviction in a direct appeal, see 28 U.S.C. § 1291; Fed. R.

 6   Crim. P. 32(j); Fed. R. App. P. 4(b)(1)(A). Under the doctrine of ʺabatement,ʺ if the

 7   defendant dies while his direct appeal as of right is pending, his death ʺ[o]rdinarilyʺ

 8   requires not only the dismissal of the appeal but also the eradication of ʺall

 9   proceedings had in the prosecution from its inception.ʺ United States v. Wright, 160

10   F.3d 905, 908 (2d Cir. 1998) (ʺWrightʺ) (internal quotation marks omitted); see, e.g.,

11   Brooks, 872 F.3d at 87; United States v. Libous, 858 F.3d 64, 66 (2d Cir. 2017) (ʺLibousʺ).

12   This doctrine

13                is principally animated by two considerations. ʺFirst, the interests
14                of justice ordinarily require that a defendant not stand convicted without
15                resolution of the merits of an appeal.ʺ Wright, 160 F.3d at 908 (internal
16                quotation marks and alterations omitted). ʺSecond, to the extent
17                that the judgment of conviction orders incarceration or other sanctions
18                that are designed to punish the defendant, that purpose can no longer be
19                served.ʺ Id.

20   Libous, 858 F.3d at 66 (emphases ours). Of these two considerations, we have

21   ʺconclude[d] that finality is the paramount consideration,ʺ Brooks, 872 F.3d at 88; see,

                                                  11
 1   e.g., Libous, 858 F.3d at 66‐67, reflecting ʺprocedural due process concernsʺ that the

 2   government ʺshould not label one as guilty until he has exhausted his opportunity to

 3   appeal,ʺ id. at 66 (internal quotation marks omitted).

 4                In a complete abatement ab initio ʺʹeverything associated with the case is

 5   extinguished, leaving the defendant as if he had never been indicted or convicted.ʹʺ

 6   Brooks, 872 F.3d at 87 (quoting Libous, 858 F.3d at 66). Nonetheless, ʺthe application

 7   of the doctrine of abatement is not indivisible . . . .ʺ Brooks, 872 F.3d at 87. For

 8   example,

 9                many defendants . . . are charged with multiple counts and may be
10                convicted by a jury on some counts and by a plea of guilty on others.
11                Those convictions may become final at different times, and a
12                defendant may choose not to appeal every conviction. The doctrine
13                of abatement leaves the deceased defendant as if he had never been
14                indicted or convicted . . . only as to those counts as to which the
15                conviction has not yet become final.

16   Id. (internal quotation marks omitted) (emphases ours).

17                In Brooks, the defendant had been charged with three tax offenses and

18   numerous other counts of securities fraud, mail and wire fraud, and obstruction of

19   justice. As to the tax counts, Brooks pleaded guilty, agreed to pay restitution to the

20   Internal Revenue Service, waived the right to appeal those convictions, and waived

21   the right to appeal the prison term to be imposed unless it exceeded certain levels.

                                               12
 1   See id. at 81, 85, 91. On the non‐tax counts, Brooks was convicted after a jury trial; he

 2   was sentenced principally to 204 monthsʹ imprisonment, and was ordered to pay

 3   restitution and a fine and to forfeit assets. See id. at 85. He appealed his convictions

 4   on the non‐tax counts, but not those on the tax counts. See id. at 82.

 5                While his appeal was pending, Brooks died. His estate moved for

 6   abatement of all of his convictions, the imposed fines, and the orders of forfeiture and

 7   restitution, as well as the special assessments statutorily mandated for the counts of

 8   conviction. See id. We granted the motion in part, abating Brooksʹs convictions on the

 9   non‐tax counts, as well as all facets of his sentence on those counts; but we denied

10   abatement with respect to the tax counts:

11                       Brooksʹs convictions on the counts that were decided by the
12                jury and the associated forfeiture order, fine, and special
13                assessment are abated upon his death. As Brooks pled guilty to the
14                tax evasion counts, waived his right to appeal as to those counts, and did
15                not appeal them, his convictions on those counts do not abate. The case
16                shall be remanded to the district court for dismissal of the
17                indictment on the non‐tax counts and those related sanctions.

18   Id. at 88 (emphasis added); see also id. at 96 (ʺThe death of David Brooks abates all of

19   his convictions that were pending appeal at the time of his death and any corresponding

20   restitution. His death does not abate the other convictions . . . .ʺ (emphasis added));

21   id. at 91 (ʺBecause the[ non‐tax] counts of conviction were resolved by a guilty plea and he

                                                  13
 1   did not appeal them, those convictions became final prior to Brooksʹs death.ʺ (emphasis

 2   added)).

 3                The government argues that the reasoning of Brooks requires rejection of

 4   the request for vacatur of Mladenʹs conviction and repayment of the special

 5   assessment because Mladen pleaded guilty, expressly waived his right to appeal his

 6   conviction, and challenged only his sentence, not the conviction itself, in his

 7   arguments on appeal.       The Mladen Motion, however, contends that Brooksʹs

 8   abatement‐divisibility analysis is inapposite because Brooks dealt with entire counts

 9   that had become final and were not appealed, whereas Mladen was convicted on only

10   one count and appealed his sentence on that count. The Motion argues that the

11   present case is governed by our decision in Wright, in which we vacated the

12   defendantʹs conviction in its entirety; it states that ʺthe [Wright deceased] defendant

13   . . . was only challenging his sentence on appealʺ (Affirmation of Robert A. Culp in

14   support of Mladen Abatement Motion ¶ 8). We find the Motionʹs reading of Wright

15   unduly expansive, and its reliance misplaced.

16                While Mr. Wright did not challenge the merits of his conviction, the

17   matter of whether his conviction should be vacated was not in issue, for in Wright‐‐

18   unlike the present case‐‐the government did not object to vacatur of the deceased

                                               14
 1   appellantʹs conviction. Although it sought preservation of so much of the sentence

 2   as ordered payment of restitution, ʺthe government argue[d] that [Mr. Wrightʹs]

 3   conviction and indictment should abate in their entirety . . . .ʺ Wright, 160 F.3d at 908

 4   (emphases added).

 5                Moreover, our Wright opinion did not indicate that the abatement

 6   doctrine was indivisible. We rejected the governmentʹs request for preservation of

 7   Mr. Wrightʹs restitution obligation not because of any view that abatement was an all‐

 8   or‐nothing concept, but rather because the district court had ordered that his

 9   restitution payments were to begin after his release from prison, ʺwhen . . . Mr.

10   Wright will again be in a position to earn a living.ʺ Id. at 907. As his death meant that

11   payment time would never arrive, we concluded that the restitution obligation must

12   also be abated. And we expressly ʺle[ft] for another day such questions as whether

13   an order that makes restitution payable immediately should generally survive the

14   death of a defendant during the pendency of his direct appeal as of right, and whether

15   the answer to that question should depend on whether the appeal challenges the conviction

16   itself as well as the order of restitution.ʺ Id. at 909 (emphases added).

17                Given that the primary rationale underlying the doctrine of abatement

18   is that a defendant should not stand convicted if his guilt has not been resolved with

                                                15
 1   finality, and that that interest is served if the defendant, although challenging his

 2   sentence, has waived or forgone his right to appellate review of his guilt, we view the

 3   reasoning of Brooks as applicable to the present case, in which the merits of Mladenʹs

 4   conviction had, as discussed below, already become final and unappealable.




 5   B. Appealability of a Conviction After a Plea of Guilty

 6                 A defendant is allowed to enter a plea of guilty that is conditional, in that

 7   it reserves to him the right to argue a nonjurisdictional contention on appeal, if the

 8   government has agreed and the district court has expressly approved. See, e.g., United

 9   States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (ʺCoffinʺ); United States v. Sykes, 697 F.2d

10   87, 89 (2d Cir. 1983) (ʺSykesʺ); United States v. Mann, 451 F.2d 346, 347 (2d Cir. 1971)

11   (ʺMannʺ); Fed. R. Crim. P. 11(a)(2). However, it is well established that a defendant

12   who has entered an unconditional plea of guilty has admitted his guilt and has

13   waived his right to raise any nonjurisdictional issues. See, e.g., Coffin, 76 F.3d at 496‐97

14   (ʺunless the defendant specifically reserves the right to appealʺ with ʺthe consent of

15   the governmentʺ and ʺthe approval of the court,ʺ his ʺknowing and voluntary guilty

16   plea waives all nonjurisdictional defects in the prior proceedingsʺ); Mann, 451 F.2d

17   at 347 (dismissing for lack of appellate jurisdiction the appeal of a defendant who had

                                                  16
 1   pleaded guilty and sought to argue only issues that were not jurisdictional); Sykes, 697

 2   F.2d at 89 (refusing to reach the nonjurisdictional issues raised by a defendant who

 3   had pleaded guilty and sought to argue both jurisdictional and nonjurisdictional

 4   issues); United States v. Selby, 476 F.2d 965, 966‐67 (2d Cir. 1973) (stating that the court

 5   of appeals lacks ʺpowerʺ to entertain a defendantʹs appeal on nonjurisdictional

 6   grounds after his unconditional plea of guilty).

 7                 Mladen was convicted on Count Two of the indictment, pursuant to his

 8   plea of guilty.    He unequivocally and unconditionally admitted that he had

 9   knowingly and willfully made false statements of material facts to United States

10   Marshals in a matter within the jurisdiction of the United States Marshals Service.

11   His Plea Agreement did not reserve any right to challenge the merits of his

12   conviction.

13                 To the contrary, Mladenʹs Plea Agreement contained a paragraph headed

14   ʺWaiver of Right to Appeal or Collaterally Attack Conviction and Sentence.ʺ (Plea

15   Agreement at 5.) In that paragraph, while he reserved the right to appeal aspects of

16   ʺthe sentence imposedʺ if it exceeded certain levels and the right to ʺrais[e] a claim of

17   ineffective assistance of counsel in an appropriate forum,ʺ Mladen ʺagree[d] not to

18   appeal or collaterally attack his conviction in any proceeding.ʺ (Id. (emphases added).)

                                                 17
 1   Thus, so far from reserving a right to challenge the merits of his conviction, Mladen

 2   expressly agreed not to make such a challenge.

 3                 And in fact, Mladenʹs brief on appeal did not challenge the merits of his

 4   conviction. Accordingly, even if such a challenge had not already been waived, the

 5   merits of Mladenʹs conviction were not in issue before this Court; thus, our non‐

 6   review of the merits of his conviction is in no way a consequence of his death. See,

 7   e.g., United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006) (denying defendantʹs

 8   estateʹs motion for vacatur of his conviction where his brief on appeal stated that he

 9   sought review only of an element of his sentence). ʺAbating [Mladenʹs] conviction

10   would grant relief that he did not seek, and that he could not possibly have obtained

11   as a result of his appeal,ʺ id.

12                 In sum, both by his unconditional plea of guilty and by his express Plea

13   Agreement appeal waiver, Mladen was barred from making an appellate challenge

14   to the merits of his conviction; and he made no such challenge. His appeal could not

15   alter the fact of his conviction. His death during the pendency of the appeal thus does

16   not warrant abatement of his conviction, of the $100 special assessment statutorily

17   mandated for such a conviction, or the count of the indictment on which he was

18   convicted.


                                               18
 1                                      CONCLUSION

 2

 3                For the reasons discussed above, we deny so much of the Abatement

 4   Motion as seeks vacatur of Mladenʹs conviction, seeks dismissal of Count Two of the

 5   indictment, on which he was convicted, and seeks repayment of the $100 special

 6   assessment. As Count One of the indictment has already been dismissed, we deny

 7   as moot so much of the Motion as requests that relief. We grant so much of the

 8   Motion as requests dismissal of the appeal and a remand to the district court for

 9   vacatur of the imposed terms of imprisonment and supervised release, and for entry

10   of an order that the $20,000 fine be repaid to Mladenʹs estate.

11                The Abatement Motion is thus granted in part and denied in part; the

12   appeal is dismissed.




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