                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4996


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSEPH DIBRUNO, SR.,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00430-FDW-2)


Submitted:   June 10, 2011                    Decided:    July 13, 2011


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Dismissed and remanded       with   instructions   by   unpublished   per
curiam opinion.


David Q. Burgess, LAW OFFICE OF DAVID Q. BURGESS, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             This case addresses the survivability of an order of

restitution following the death pending appeal of a convicted

criminal defendant.        For the reasons that follow, we dismiss the

appeal and remand with instructions.



                                       I.

             From   1999   through     July        2005,    Joseph       DiBruno,     Sr.

(“DiBruno”), and his sons Joseph, Jr., and Nicholas organized

and incorporated various corporations and entities, soliciting

investors with promises of high rates of return.                         Some of these

entities     were   operational   businesses,         but    others       were   merely

“shell”    entities    designed   to     allow      DiBruno       and    his   sons    to

solicit monies from unsuspecting investors.                        DiBruno and his

sons   did    not   invest   investors’        funds       into    the     operational

businesses;     rather,    they   used       the    funds    they       solicited     for

personal     expenditures,     defrauding           investors       of    over   three

million dollars.       In August 2007, a federal grand jury returned

a second superseding indictment charging DiBruno and his sons

with, among other offenses, conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371 (2006).                          DiBruno pled

guilty, pursuant to a written plea agreement, to the conspiracy

charge.



                                         2
            Prior    to   sentencing,       DiBruno   moved   to   withdraw   his

guilty plea, but the district court denied the motion after a

hearing at which DiBruno testified.              Based on his testimony at

the hearing, the district court found DiBruno guilty of criminal

contempt, see 18 U.S.C. § 401 (2006); Fed. R. Crim. P. 42(b).

The court sentenced DiBruno to sixty months’ imprisonment on the

conspiracy count, ordered that he pay a $100 special assessment,

and ordered that he pay restitution, jointly and severally with

his co-defendant sons, in the amount of $3,808,487.                   The court

also   sentenced     DiBruno    to    six    months’    imprisonment    on    the

contempt count, to be served consecutively to the sixty-month

prison term on the conspiracy count.                  DiBruno timely appealed

the judgment of conviction and the district court’s order of

contempt.

            In February 2009, while DiBruno’s appeal was pending

in this court, but before filing an opening appellate brief,

DiBruno’s counsel filed a suggestion of death, informing us that

DiBruno had died.         The Government then moved to dismiss the

appeal as moot.       In response, DiBruno’s counsel concurred with

the Government’s conclusion that the appeal should be dismissed

as   moot   as   a   result    of    DiBruno’s    death.      Counsel   further

asserted that the case should be remanded to the district court

with instructions to vacate DiBruno’s convictions and dismiss

the indictment against him.

                                        3
             The parties disagreed, however, over the appropriate

resolution of the order of restitution, and we directed them to

file briefs addressing this issue.                 Having reviewed those briefs

and   the    submissions         relative    to    the   Government’s     motion    to

dismiss, we conclude that, although DiBruno’s convictions and

sixty-six month prison sentence abate as a result of his death

pending appeal, the restitution order survives.



                                            II.

             In    United        States     v.    Dudley,    739   F.2d   175,     176

(4th Cir. 1984), this court held that the death of an appellant

pending     an    appeal    of    his   criminal     conviction    results   in    the

abatement of “not only the appeal but all proceedings in the

prosecution from its inception.”                  In such a case, the appeal is

to be dismissed and the case remanded to the district court with

instructions to vacate the judgment of conviction and dismiss

the indictment.            Id.     An exception to this general directive

exists, however, as to any order of restitution included within

the criminal judgment.            Id. at 178.

             In    this      case,      DiBruno     timely    appealed    both     the

judgment     of    conviction        and    the    district    court’s    order     of

criminal contempt, and the appeal was pending in this court at

the time of DiBruno’s death.                 Although DiBruno died before his

counsel filed an opening appellate brief raising any issues for

                                             4
review, there existed at the time of DiBruno’s death at least

the     possibility         that     his    convictions            might    be    overturned.

See United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006)

(“When       a     defendant       appeals            the     judgment       of    conviction

itself . . . or files a general notice of appeal but dies before

submitting an opening brief, the possibility remains that the

conviction         itself    might     be     overturned.”);            United     States   v.

Pogue,       19    F.3d     663,     665      (D.C.         Cir.    1994)      (per   curiam)

(“[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 underlying conviction.”).

In    view    of    this    possibility,          we       conclude     that     DiBruno   died

pending the appeal of his conspiracy and contempt convictions.

Accordingly,        the     general        rule       of    abatement      applies,   and   we

therefore grant the Government’s motion to dismiss the appeal as

moot.     We also remand to the district court with instructions to

vacate DiBruno’s convictions and sixty-six month prison sentence

and to dismiss the second superseding indictment as to DiBruno.

See Dudley, 739 F.2d at 176.                      However, fee assessments already

paid need not be refunded because they are the equivalent of

prison time already served; therefore, the rule of abatement

does not apply to any payments already made on the $100 special

assessment, and we further instruct that the Government not be

ordered      to     refund     any     such       payments         to   DiBruno’s     estate.

                                                  5
See United States v. Zizzo, 120 F.3d 1338, 1346-47 (7th Cir.

1997).



                                               III.

               With respect to the order of restitution, DiBruno’s

counsel suggests that it, too, should abate because failure to

abate    the    order       would       contravene        the     principle       that    death

pending appeal abates all proceedings in the prosecution from

its     inception.              Counsel    also        suggests        that    allowing       the

restitution         order       to     survive        DiBruno’s    death       would      create

statutory inconsistency because the acts governing restitution,

the   Victim        and    Witness       Protection       Act     of    1982,     as     amended

(“VWPA”), see 18 U.S.C. § 3663 (2006), and the Mandatory Victims

Restitution Act of 1996 (“MVRA”), Pub. L. No. 104-132, §§ 201-

11,   110   Stat.         1214,      1227-41     (codified        in    relevant       part    at

18 U.S.C. §§ 3663A, 3664 (2006)), authorize restitution only for

those who are “convicted” of criminal offenses.                           We disagree.

                                                 A.

               We        have     previously           concluded        that      orders       of

restitution do not abate by reason of the death of a convicted

criminal       defendant         who    dies     while     his     appeal       his    pending.

Dudley, 739 F.2d at 177-78.                    As Judge Murnaghan explained for

the     court       in    Dudley,       “[t]he        argument    that        impositions     of

penalties in criminal cases have heretofore always been abated

                                                 6
on death of the accused . . . grows out of the consideration

that      punishment,          incarceration,            or         rehabilitation            have

heretofore largely been the exclusive purposes of sentences and

so ordinarily should be abated upon death” because “shuffling

off     the      mortal        coil        completely          forecloses         punishment,

incarceration, or rehabilitation, this side of the grave at any

rate.”         Id.    at    177.      Recognizing        that    “[i]t      is   an     old    and

respected doctrine of the common law that a rule ceases to apply

when the reason for it[] dissipates,” the court held that the

rule    of     abatement      should    not    apply      to    orders      of    restitution

because        such    orders,        although      contained          in     judgments        of

convictions          and     thus    “in     some    respects         penal,”         have    the

“predominantly          compensatory         purpose      of    reducing         the    adverse

impact [of the defendant’s crimes] on the victim.”                            Id.

               Although the Courts of Appeals are divided on whether

an     order    of     restitution         abates    when       a     convicted        criminal

defendant dies pending direct appeal, compare United States v.

Christopher,          273    F.3d     294,    298-99      (3d       Cir.    2001)      (holding

restitution order does not abate); United States v. Johnson,

Nos. 91-3287, 91-3382, 1991 WL 131892, at *1 (6th Cir. July 18,

1991)    (same);       Dudley,       739     F.2d   at    178       (same),      with    United

States v. Rich, 603 F.3d 722, 728-31 (9th Cir. 2010) (holding

restitution          order    does     abate);      United      States      v.      Estate     of

Parsons, 367 F.3d 409, 415 (5th Cir. 2004) (en banc) (same);

                                               7
United States v. Logal, 106 F.3d 1547, 1552 (11th Cir. 1997)

(same),   Dudley          is     controlling            Circuit       precedent     and     thus

dictates the result here.                   See United States v. Rivers, 595 F.3d

558, 564 n.3 (4th Cir. 2010) (“[A] panel of this court cannot

overrule, explicitly or implicitly, the precedent set by a prior

panel of this court.                   Only the Supreme Court or this court

sitting   en    banc           can    do     that.”          (internal     quotation      marks

omitted)).      The Dudley decision explicitly excepted orders of

restitution from the general rule that “[d]eath pending appeal

of a criminal conviction abates not only the appeal but all

proceedings in the prosecution from its inception.”                               Dudley, 739

F.2d at 176-78.            Counsel’s first claim is thus foreclosed by

Dudley and therefore fails.

                                                   B.

             Counsel       also        suggests          that,       the   Dudley    decision

notwithstanding, allowing the order of restitution to survive

DiBruno’s death would create statutory inconsistency because the

VWPA   and     the     MVRA          authorize          restitution        only    for    those

defendants     who     have          been    “convicted”         of    criminal     offenses.

Counsel thus posits that where a defendant’s conviction never

becomes   final      as    a     result       of       his   death    pending     appeal,    the

statutes provide no authority for the defendant to be required

to pay restitution.              In the absence of such authority, counsel



                                                   8
urges, the restitution component of a defendant’s sentence also

must abate.

            Restitution is a statutory remedy based in the VWPA

and the MVRA.        Enacted in 1982, the VWPA authorized, but did not

require, district courts to order restitution to victims when

sentencing defendants convicted of criminal offenses.                             18 U.S.C.

§ 3663(a)(1)(A)        (“The    court,          when        sentencing      a         defendant

convicted of an offense under this title . . . may order, in

addition to . . . any other penalty authorized by law, that the

defendant    make     restitution     to        any    victim     of      such        offense.”

(emphasis added)).        In 1996, the MVRA, which supersedes the VWPA

in part, was enacted.           The MVRA requires a district court to

order     restitution      to   victims           when        sentencing          defendants

convicted      of     certain      criminal             offenses.                18      U.S.C.

§ 3663A(a)(1),        (c)(1)(A)(ii),            (B)         (“[W]hen       sentencing         a

defendant     convicted    of    an    offense              [committed      by    fraud     or

deceit[] or . . . in which an identifiable victim or victims has

suffered    a . . . pecuniary         loss],          the    court     shall      order,     in

addition to . . . any other penalty authorized by law, that the

defendant     make    restitution      to       the     victim       of    the        offense.”

(emphasis added)).

            Counsel’s     argument      that          these     statutes         provide    no

authority for a decedent defendant’s estate to be required to

pay     restitution     proceeds      from       the        premise       that    the      term

                                            9
“convicted” has a specific temporal thrust.                 Dudley, however,

countenanced the view that the import of the term “convicted” is

provided by the context in which term is used, and that the

pertinent context was “when [the district court was] sentencing”

Dudley.     At sentencing in October 1983, Dudley stood “convicted”

of one drug distribution and several food stamp offenses and was

ordered, pursuant to the VWPA, to pay restitution.                  Dudley, 739

F.2d   at    175-76.      And    although    this   court    abated    Dudley’s

convictions as the result of his death pending appeal, the court

did not abate the order of restitution, even though Dudley’s

convictions were voided as a result of the abatement.                       Id. at

177-78.

            While Dudley issued before the enactment of the MVRA,

the court’s adoption of this view of the temporal thrust of the

term “convicted” applies to orders of restitution issued, as

here, under the MVRA.           It is a bedrock principle of statutory

interpretation     that     statutes    that    are   in pari       materia     or

relating to the same subject matter are to be interpreted in

light of, and consistently with, one another.               United States v.

Stewart, 311 U.S. 60, 64 (1940).            This interpretive principle is

especially     applicable       when   two     statutes     adopt     the     same

vocabulary in reference to the same subject matter.                  See, e.g.,

Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979).



                                       10
             Here,    the     MVRA     adopts      the   same     vocabulary—“when

sentencing a defendant convicted of an offense”—as used in the

VWPA to refer to the same subject matter, namely, the temporal

condition precedent for a court to order the defendant to pay

restitution.        As Dudley interprets the term “convicted” as used

in the VWPA with reference to this temporal context, the in pari

materia canon directs adoption of the same construction of the

term as used in the MVRA.             Applying this approach here, because

DiBruno    stood     “convicted”       of    the   conspiracy      offense     during

sentencing and was ordered during sentencing to pay restitution

to the victims of that offense, the restitution order is valid

and   thus    survives       the     abatement      of   DiBruno’s    convictions

following his death.

                                            C.

             Adopting the position of DiBruno’s counsel would, we

believe, contravene Congress’ intent to require Federal criminal

defendants     to    compensate       the    identifiable       victims   of    their

crimes.      In Dudley, this court held a restitution order under

the VWPA has the “predominantly compensatory purpose of reducing

the adverse impact [of the defendant’s crimes] on the victim.”

Dudley, 739 F.2d at 177.              A review of the MVRA and VWPA, as

amended,     confirms       that     restitution     orders      continue      to   be

compensatory in nature.



                                            11
               The MVRA amended the VWPA to provide that restitution

orders    under        the    VWPA      are    to     be     issued     and    enforced       in

accordance with 18 U.S.C. § 3664, the enforcement provision of

the MVRA.       18 U.S.C. § 3663(d).                In each restitution order under

the MVRA and the VWPA, as amended, the district court must order

restitution to “each victim in the full amount of each victim's

losses as determined by the court and without consideration of

the    economic        circumstances          of    the     defendant.”             18    U.S.C.

§ 3664(f)(1)(A).              Additionally,         under     the     MVRA    and    VWPA,    as

amended, the district court’s order of restitution creates a

property right for the victim that has the effect of a civil

judgment against the convicted criminal defendant or his estate.

An     order      of      restitution          is      a      heritable,        18        U.S.C.

§ 3663(a)(1)(A),             assignable,       18     U.S.C.        § 3664(g)(2),          civil

judgment “in favor of such victim,” id. § 3664(m)(1)(B), and,

when properly registered or recorded, shall operate as “a lien

on the property of the defendant . . . in the same manner and to

the same extent and under the same conditions as a judgment of a

court of general jurisdiction,” id.

               Further,       an    order     of    restitution       carries       the    civil

effects of joint and several liability, collateral estoppel, and

subrogation.       Where, as here, multiple defendants contribute to

a    victim’s    loss,       the    district       court     may    make     each    defendant

liable    for     payment          of   the    full        restitution       amount.         Id.

                                               12
§ 3664(h).        A defendant ordered to make restitution is estopped

from denying the essential allegations of the offense in any

subsequent civil proceeding.                 Id. § 3664(l).            Additionally, an

insurer or other person who compensates the victim for any loss

covered    by     a    restitution         order    may,   to    the    extent     of        the

payment,     be       subrogated     to     the     victim’s     right        against    the

restitution debtor.           Id. § 3664(j)(1).

            Other provisions of the MVRA and VWPA, as amended,

protect    the        defendant     from     possible      punitive      effects        of    a

restitution order.            For instance, in the case of property loss

to the victim, the restitution order may require only a return

of the property or payment equal to the value of the property

loss.      18 U.S.C. §§ 3663(b)(1), 3663A(b)(1).                       In the case of

bodily     injury       to    the    victim,        the    restitution         order     may

compensate      the     victim      only    for     certain,     enumerated       expenses

incurred as a result of the offense.                         Id. §§ 3663(b)(2)-(3),

3663A(b)(2)-(3).             Further,      any     restitution    amount       paid     to     a

victim under a restitution order must be reduced by the victim’s

recovery for the same loss in civil proceedings.                                18 U.S.C.

§ 3664(j)(2).

            These        provisions         make     clear      that     an     order         of

restitution under the MVRA or the VWPA, as amended, is expressly

non-punitive and the equivalent of a civil judgment against a

criminal defendant requiring that he compensate his victims for

                                             13
the    specific     harms      he    has     done     to     them     by    his       offenses.

See United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999)

(stating that the MVRA requires that “definite persons are to be

compensated      for    definite      losses       just    as    if   the       persons       were

successful      tort    plaintiffs”).              Because      orders     of     restitution

under    the    MVRA,    like       their    VWPA     predecessors,         are       meant     to

compensate victims of crime, they do not abate with the death of

a convicted criminal defendant pending appeal.                             See Dudley, 739

F.2d    at   177-78.      We    thus        reject    counsel’s       second          claim    and

instruct the district court on remand to leave unaffected the

order of restitution.



                                             IV.

               Accordingly,     the       Government’s        motion       to    dismiss      the

appeal is granted and the appeal is dismissed as moot.                                 The case

is remanded to the district court with instructions to vacate

DiBruno’s       convictions         and     sixty-six      month      prison          sentence,

dismiss the second superseding indictment as to him, and leave

unaffected the order of restitution and any paid portion of the

special assessment.         We dispense with oral argument because the

facts    and    legal   contentions          are     adequately       presented         in     the

materials      before    the    court        and     argument       would       not    aid     the

decisional process.

                                    DISMISSED AND REMANDED WITH INSTRUCTIONS

                                              14
