of appeal was filed in this case by mr coddington shortly thereafter he passed away in response to that event i filed an appeal with a one and a half page motion seeking to have this appeal dismissed  the motions panel the government objected the motions panel directed that the merits panel addressed that question and and here we are the dispositive issue in this case in my view is really rather straightforward and and both settled and conceded for more than twenty five years the rule in this circuit has been that death pending direct review of a criminal conviction requires that an appeal be dismissed and be remanded to the district court with instructions to vacate the judgment and dismiss the indictment that rule is known as abatement initio it is the rule applied in every federal circuit court so the st point to be made in this case i believe is that this panel is bound to apply that law and that is observer you fish it and there are only conditions to application of the rule direct appeal is pending and the appellant dies while that happens there is the separate question not whether the rule should apply under these circumstances what are the practical consequences of applying the rule when you have an order of restitution and i suspect judge backtracked that's what you were asking and ok and is that an open question that is an open question under ten circuit precedent there used to be a split of authority there still are a couple circuits that say we abate convictions in these circumstances but not restitution orders and the law has changed i think considerably on that question since the united sprays united states supreme court's decision in nelson versus colorado and in this case the government has conceded look if you apply the abatement doctrine the restitution order can't stand under nelson i think that's correct and i address the argument that the government is making with regard to substitution of nobody none of these cases have addressed as i understand it the argument that the corps should use it discretion and allow substitution of the stay for the seating in allele the appeal to go forward well why why isn't that at least within our discretion to do yeah i think that is i think your observation is both wrong and irrelevant it is irrelevant because the law in this circuit is not we apply the doctrine when the defendant dies pending direct appeal you know unless you can figure out some way around it well i think my way around it is judge all that said that it nec case the singular single published opinion that the decisions family wanted the know that maybe i'm wrong but i don't know that that opinion well we had we cited i think three or four cases not from the circuit from other circularly with forty three a you know dealing with the fact that you don't need to drag the a state into one of these cases in order to apply the abatement doctrine and dismiss an appeal and there are cases in fact a state of parsons is the obvious one where a states do come a lawyer for the estate comes forward and files one of these motions and i think you're right saying the courts don't really drill down as to whether that's appropriate whether that's the correct party but it is true that in the half dozen at least cases decided in this circuit none of them indicate that the a state is the forward if it's not it doesn't get into the merits of this and we know there are you know all sorts of civil claims that can be sold assigned to other litigants that pursue that i don't think that holds true with criminal convictions i don't think a rd party in a state a stranger technically to a criminal case can assert the individual rights to a fair trial to due process to be free from unreasonable search and seizure and that's really i think what substituting the estate would do in these cases and it is as many of the circuits say it's it's it's just entertaining imaginary appeal the defendant is no longer here is we no longer you which means who is your client now circumstances i can tell the court i've never met mr copley i did not consult with him about the strategy being adopted in this case so what am i what am i to do to say nothing or to say this is the uk observed it's a favorable outcome for my client if there can be such a thing in these circumstances and so it's the position i'm taking i was appointed by the court to represent mr no i'm not questioning friday of that it just raises an interesting you know i usually start these arguments identifying who i represent by name and it's not an accident that i didn't do it this time and i just  i was interested in reading the sentencing transcript here once the conversation turned to restitution and it started out with the court making reference to the parties talking about finding money then it went from there and it was it seemed like maybe there wasn't there wasn't anything there for restitution but because of course at that point mr coddington was alive who knows maybe something might happen where there could be some assets but now is not and my question is whether any remaining assets and whether record tells us anything about that because  there it raises a question in my mind about moving this absolutely and that's the argument we make under the right case from the seven nd circuit and the polk case from the d c circuit were both court said we're not going to stick our neck out and make some unprecedented exception to the abatement doctrine to preserve a restitution order that is meaningless because there are no assets or no access to even need to talk about the dr and i is there anything what are we arguing about here i i agree i mean the argument is abatement applies and the case is over and the fact that there's a restitution order period does not make any difference the government's response  the st response is sort of an equitable one well gee that's awfully unfair because it even riches the estate at the expense of the victims and all responses that could be an argument in maybe some other case it's not an argument in this case there are no assets why is it clear in the record below that there are no and i think it's absolutely clear from the sentencing hearing when the judge says are we talking about funny money here because no one's going to get paid nobody's getting money from coddington nobody's getting money from irwin nobody's getting money from colombia and the prosecution does not say we disagree we think there's assets to be had what the prosecution says is i agree but you know hope maybe mr coddington buys a lotto ticket and wins  big and then there's money to be had and the response to that is well it didn't happen and unfortunately he's not buying any lottery tickets there is no money to be had for the a state or for the victims so i agree entirely with your observation judgments of you apply the doctrine as it's always been applied and even if there was some equitable argument to be made to draw some sort of distinction in the context of restitution orders this is not the case let me see if you can help me and one other it's a different question so we have the davis precedent that's been in place for some time but one thing that's state would pay restitution that was order it doesn't really talk about pending appeal you know death pending appeal why doesn't that statu change things and open the door to considering the government's position so the government raised that question in the motions practice so i knew that was coming and i addressed it in our opening brief and i made five points about while why three thousand six hundred and thirteen doesn't change the result here the st is that it's clear on the face of it that that statute assumes of valid restitution order and it says what happens with a valid restitution order upon the death of the person directed to pay restitution now the fact is when you abate a conviction you don't have a valid restitution order as the authority we discuss  acknowledges under the mandatory victim restitution act in the absence of a valid conviction you have no valid order of restitution that's the st point the nd point is the statute the justice for all act doesn't say anything about the abatement doctrine at all it doesn't talk about what happens to restitution orders in these circumstances and if congress wanted to try to carve out an exception it could have done not but it did and we offer a couple you know five were ways in which they could included language like that the the other point is that at the time the justice for all act was enacted there was a split in circuit authority there still is as to whether restitution order survived abatement and if congress was siding with the minority of circuits who hold that restitution orders do survive the law is pretty clear it has to do so explicitly we assume congress legislates with awareness of what you dish will constructions of the law is and they said nothing about the subject here and the th point is because of nelson if the jury if they really did try to carve out an exception here you don't have a valid conviction but restitution survives  anyway you have a pretty serious constitutional problem and that's reason enough to avoid what i think is is a rather weak reading of the statute to begin with because you try to give a reading that doesn't raise constitutional concerns those are the five responses they've been made twice now and there has been no response to any of them by the government in this court so i can expound on those if you'd like but as it stands i'll just rest on the papers on all those arguments none of them have been rebutted so that's that's my answer to why the statute doesn't work any difference in the law and i would add no court has ever adopted the reading of the jeff a that the government is proposing here no court has ever applied it as a way of tweaking the abatement doctrine and furthermore there's not a single case or court that the government can point to that adopts this sort of two tiered approach to abate what they're proposing is sure abatement under davis applies in all criminal cases where the defendant dies pending direct review except if there's a rest which case it doesn't apply at all there's no no court has ever done that and there's no reason this court should be the st for any number of reasons not least of which davis tells you the resolution cases and i think this panel is bound by that authority and if there's no additional questions i'll reserve my minute sure thank you this policy was created decades before mandatory restitution and society's recognition of the victim's rights and it has only been used by this court when the government doesn't object and there are few if any real world consequences to vacating a defendant's conviction as a result today's case presents a question of st impression in the circuit which is is abatement also the correct policy when the judgment against a defendant includes a restitution order or put another way should the court expand the doctrine of abatement so that it stands to the circumstances of this case the answer is no for the reason that the plain text of a federal statute must trump federal common law when senate seen a defendant convicted of an offense and my understanding is that under davis we'd have to bait the conviction so if there's so if the defendant is not convicted of honor so to respond to that i think that that argument only makes sense if the court has already concluded that under davis it must vacate the conviction but our argument here is that the court not only doesn't have to  and thirteen b that would represent an expansion of federal common law in a way that would directly conflict with a federal statute so our argument is that the conviction itself must stand as a result that language in the negatory victims restitution clear that after a convicted defendant has been ordered to make restitution his death won't excuse him from the obligation to make his victims whole statute doesn't contain any exceptions so by arguing for his conviction to be abated what the defendants a actually asking the court to do is expand a common law doctrine into an area where congress has already spoken and in a way that would directly conflict with eighteen u s c three thousand six hundred and thirteen b well would you agree position which is that abatement is this broad rule that always applies when the defendant dies while his direct appeal is pending and as a result we're going to work around the language and three thousand six hundred and thirteen b s that we can keep following this federal common what role our position is that it's a federal common law rule that was created to deal with a very specific problem ultimately abatement is a policy judgment that was made by courts in a pre we rested tousen era to deal with cases where when you vacate the conviction the real world consequences are minimal so our argument is that abatement as a doctrine doesn't necessarily extend to this area where there's restitution orders and so yes you could reconcile that language but another way of seeing it is it's an expansion into an area where congress has already told us restitution is mandatory and mandatory restitution has to survive the defendant's decade let me ask you about sort of maybe a broader philosophical issue that our court struggles with intermittently and that is when we have a precedent we address this last year in a case called united states versus garcia talking about magistrate judges ability to take guilty pleas running for the majority to judge him good said that that well we have present a precedent and we have a new argument in that case it was the adoption of rule fifty nine of the federals of criminal procedure but unless that new provision in that case rule fifty nine was so clear implicit that it somehow makes it absolutely clear much like us are super being supreme court opinion that we should  apologies for the way i would interpret that is an extension or at least relying on the you know the canon and the idea that we don't assume that congress is advocating a common law doctrine unless it does so explicitly and i think it's the same response which is we're not saying that the statute over rules are abrogates this doctor and we're saying that this is a it's a balance of interests it's a policy judgment the court made a long time ago under very different circumstances and so applying it to this context is not just the natural logical extension of that precedent it's a very different question and i don't think the court has to reconcile that statute with a rule that arguably doesn't apply and certainly has never been applied by this court of the supreme court in this specific content will that congress would have to overrule the common law doctrine it could take account why didn't congress make it clear that abatement wouldn't apply in the situation and i think probably the response to that is that this is a obscure doctrine that doesn't come up a lot and i really not sure congress had that in mind but the other responses if congress was so concerned about preserving abatement then they put language in there that says well it's the restitution order goes away when the defendant dies during  no requirement for a final conviction anywhere in the statute there is you know three thousand six hundred and thirteen b only talks about the entry of a judgment but the judgment is not final when it is taken on direct appeal it is not a final judgment so there is no final judgment restitution but the statute doesn't say final judgment it only says entry of judgment and even this provision doesn't even refer to the enter a judgment which i recognize is you know that's a stretch i mean if the district  judgment the whole point the reason i got job security used that somebody can feel and when they appeal that judgment can go away doesn't exist in til you know final form until we will learn it if somebody appeals  i think again that's just my argument to that would be that you can interpret it two ways which is that congress could have provided for the abatement doctrine or congress could have provided in a way to overrule the abatement doctrine and it didn't do either of those things so all we have to go on is the plain text of a federal statute that will directly conflict with an expansion of this cause not talk doesn't the existence longtime existence of davis doesn't doesn't the argument you're making now fit more in an on bank context this panel was him been by davis i would argue that there are three key differences between this case and davis that the davis doesn't control the outcome here the st one is that the government never objected to vacate the conviction that case which means the court wasn't even thinking about this issue wasn't presented with the arguments on this the nd is that there's no indication there was a restitution order in davis and that's because of the very important fact that davis was decided in one thousand nine hundred and two and that's before the mandatory victim's restitution act and before these changes to three thousand six hundred and thirteen be so the davis court was very much not thinking about compensating the victims of the defendant and helping them get back the money that they lost davis was just thinking this is an easy way to resolve an appeal that would be pointless and of course in davis hearing the appeal would be pointless if you affirm the conviction he's still not going to jail it did it did recognize the doctrine it did recognize the abatement doctrine yes and of course it cites durham and davis but again the scene but the same arguments could be made with respect to the supreme court cases i mean in addition to being quite short an opaque and also dealing with very different question presented there dealing with what happens to the circus it should and so the supreme court never even directly address what's happening at the federal court of appeals level but durham and dub again decided in a context where the government's not objecting the court's not hearing any arguments about the merits of this doctrine and this was durham and over in the seventy's and the victims rights movement mandatory restitution all of that doesn't happen until the ninety's and later let me just why should the rec really doesn't tell us very much except what both parties are going off of and what that sentencing discussion was about was mr conduct its own self reported assets in its present investigative report and i can give the court the citation that the white why shouldn't we just remand for a determination of jurisdictional fact if there's a if there's an issue with mootness here why should we wade into all of these arguments you're making when there's really not much point in doing so if there are no assets so i think the difficult problem with that approach is that if this court tries to decide this case on the basis of whether or not there are any assets in the i don't know that we is money we also are going off of a half page of self reporting so we really don't know what assets are out there until we investigate but the point i want to make is that even with remanding by coming to that decision what this court is saying is the question of whether or not there are assets in the estate actually matters when you're deciding whether or not the doctrine of the basement of an issue applies well no ok you know he really doesn't if i understand it correctly it's a threshold issue it becomes an all the doctrine is a separate track of decision making if there are no assets the case is just moot i mean it's like any other case it's moot irrespective of whether the defendant is dead or not i mean if the homely if you the thing that is  issue here if what we're fighting about is restitution although there is merits briefing him one would have to think about what the significance of that is but if what we're fighting about is restitution and that's it then if they're no if there are no assets there's nothing to about well so i mean i think minutes really hasn't been briefed but i guess the point i would make is you know with mina's there could be the special assessment fee there could be personal interest in the defendant to clear his name but i would also say and again having really not brief mina's the fact that courts have been confronting this question for decades and still no one has concluded that these cases actually are constitutionally mooted i i think is indicative of the fact that we're not really sure that if there's no money order for the rest to should order to remain valid right i mean we also would like the conviction to remain on the books because again there was a three week trial and a jury found this man guilty beyond a reasonable doubt we think that the victims deserve some recognition from society and that they were victims of a federal crime they didn't just make it out and the reason i ask you that is this is everybody knows it's due to the ages constitutionally and prevention if prudentially the only significance last question even if it's not even if it's not constitutionally isn't the absence of any information in the little information we have is my colleagues doubt it is the reference to funny money and the fact that he may win the lottery isn't the absence of any information in the record other than he might be able to satisfy a special says but he isn't the reason that we  liabilities and he comes out in the black not in the red so that is the concrete information thank you we briefed it so i think that needs to be clarified the interest of the governments seem that this conviction stands because there was a guilty verdict in the victim should have that i don't know have that  thing that's true in every abatement case i mean that's no reason to abandon the doctrine wholesale it by definition would apply in in every case i do want to dismiss abuse the court of this notion that you would be expanding the abatement doctrine beyond some sort of ancient scope that it used to have before this movement towards victims rights as we explain at length all sorts of federal circuit courts have wrestled with the question of the mandatory victim restitution act and its relationship to the basement doctrine and almost all of them have said in the absence of a valid conviction there is no statutory authority to order restitution and therefore restitution is have to fall by the wayside now the government seems to be saying this is obscure doctrine congress is out there at legislating this area and has no idea what's going on it's been the subject of supreme court cases it's been the subject of litigation in every single federal circuit court it's been the subject of half a dozen cases by this court if congress wanted to change the law it should have done so explicitly what was your answer in your briefing on lewdness to the point that she wants to maintain a conviction so  the she being a government counsel so what i mean the fact that there would be no last it would really change the fact that there would be a viable new shoes released a conviction right sure and i didn't address that because i'd that was not argue that mootness point i cannot be reviewed on appeal but for the sake of the victims you know let's keep it because because we like that idea that's just antithetical to davis it's antithetical to the entire doctrine and the notion of finality of criminal judgments all right thank cases submitted thank you counsel