United States Court of Appeals

Fifth Circuit



## FILED

April 16, 2004

Charles R. Fulbruge III

Clerk 

## In the



# United States Court of Appeals

for the Fifth Circuit

_______________



### m 01-50464

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### A NDREW 

### C LYDE 

### P ARSONS



### , E STATE OF



### ,

AS R EPRESENTED BY I TS I NDEPENDENT E XECUTOR

, P ATRICK D. M ILLAR

,



### Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas



### m W-99-CR-63-1

_________________________2

Before K

ING , Chief Judge, J OLLY

, H IGGINBOTHAM , D AVIS , J ONES , S MITH

, W IENER , B ARKSDALE , E MILIO M. G ARZA

, D E M OSS , B ENAVIDES , S TEWART

, D ENNIS , C LEMENT , and P RADO

, Circuit Judges. *

J ERRY E. S MITH , Circuit Judge:

This case requires us to apply the doctrine

of abatement ab initio to restitution and forfeiture o rders where a criminal defendant dies

while his appeal is pending. Concluding that,

under the specific facts of this case, all consequences of

t he untested criminal conviction

should abat e, we DISMISS the appeal and

REMAND with direction to VACATE the

judgment of conviction and sentence, inc luding

the order of restitution, and to dism iss the

indic tment. We do not, however, di rect the

government to return

monies paid as part of

this particular Preliminary Judgment of Forfeiture.

I.

Af t er a second trial following a vacated

conviction, a jury found Andrew Parsons guilty of two counts of arson, four counts of mail

fraud, and four coun t s of money laundering.

Parsons alle gedly set fire to his property and

wrongfully received insurance proceeds to

compensate for the loss. In addition to a verdict of guilty, the jury returned a special forfeiture verdi ct. 1 The district court sentenced Parsons to sevent y-eight months’ imprisonm ent , a fine of $75,000, a special assessment

of $1,000, restitution of $1,317,834.57 to the

defrauded insurance companies, and three

years’ supervised release. 2

Parsons then informed the government that

he wished to sell the three tracts. The government approved the sale of t hose tracts f or

$1,900,000 under a contract that wo u ld provide cash at closing of $1,000,000. That sale

was completed, and a check for $970, 826.90

was given to the United States in return for a

release of liens.

The sale in question was completed pursuant to an agreement between Parsons and the

United States. The government filed a motion

describing the agreement. The motion states,

in relevant part:

[B]ecause Defendant Parsons had no other

apparent financial means with which to fully

pay the Money Judgment in the amount of

$970,826.90, the United States of America

did not obje ct to the . . . sal e of [the three

tracts], provided that a [government agent]

be present at the real estate closing to

receive a cashiers check . . . .

. . .

* Judge Pickering was appointed to the court

after this case was submitted, and he elected not to

participate in the decision.

1 Specifica l ly, the jury found that Parsons had

used $346,260 of the unlawfully-derived insurance

proceeds, as set forth in c o unts 1-5 of the in-

(continued...) 1 (...continued)

dictment, to construct a certain building and that he

had unlawfully derived $970,826.90 from the

offenses in counts 1-10.

2 Although both parties state that the court issued forfeitur e orders originating from the jury’s

sp ecial forfeiture verdict, the order of judgment

only lists the imprisonment, fine, and restitution orders. Presumably, the restitution order incorporated the amounts listed in note 1, supra

.3

Further, inasmuch as this case remains on

appeal at this time, the Uni ted States of

America agrees that in the event Defendant

Parsons prevails in the final determination

of this appeal, and no final judgment of forfeiture is entered in this case, that the [government] should retur n to Defendant Parsons the entire amount of $970,826.90,

plus interest . . . .

After t he sale, the district court entered a

Preliminary Judgment o f Forfeiture of $970,-

826.90, pursuant to F ED

. R. C RIM

. P. 32.2(b). 3

The order states, in relevant part:

ORDERED that inasmuch as this case remains on appe al at this time, in the event

Defendant Parsons prevails in the final determination of this appeal, and no Final

Judgment of Forfeiture i s ent ered in this

case, the [government] shall return to Defendant Parsons

. . . the entire amount of

$970,826.90, plus interest . . . .

While this appeal was pending, Parsons

died. This court allowed his estate to substitute itself for him a s appellant, and the estate

submitted a new appellate brief, arguing that

Parsons’s death abated the conviction, restitution order, and forfeiture orders. The estate

also protected its i nt erests by arguing, in the

alternative, that if the restitution and forfeiture orders were not automatic ally abated by Parsons’s death, the conviction should be reversed

on ground s of violation of the Speedy Trial

Act and inadequate nexus to i nterstate com

merce.

A panel of this court upheld the restitution

order and Preliminary Judgment of Forfeiture

and rejected Parsons’s other merits issues

raised on appeal. U

nit e d States v. Estate of

Parsons

, 314 F.3d 745, 750 (5th Ci r. 2002),

vacated for reh’g en banc

, 333 F.3d 549 (5th

Cir. 2003). Recognizing that it was bound by

United States v. Asset

, 990 F.2d 208 (5th Cir.

1993), and United States v. Mmahat

, 106 F.3d

89 (5th Cir. 1997), the panel concluded that

“because the restitution order here is unquestionably compens a tory in nature, it survives

Parsons’s death.” P arsons

, 314 F.3d at 750. 4

II.

Asset

, Mmahat

, and Parsons describe the

current state of our abat ement jurisprudence.

“It is well established in thi s circui t that the

death of a criminal defendant pen ding an appeal of his or her case abates, ab initio

, the entire crimin al proceeding.” A sset

, 990 F.2d at

210. 5 That is, the appeal do es not just disap

3 At the sentencing hearing, the court indicated

that the $1.317 million restitution order represented

the full amount Parsons owed to his victims and

that any sums recovered via forfeiture would apply

against that total amount. Because Parsons did not

tender any other mon ies to the government, and

because the distric t court did not enter any other

temporary orders, no other portion of the restitution

order is encompassed by the Temporary Judgment

of Forfeiture. 4 The panel nonetheless quest ioned the correctness of those decisions. Parsons

, 314 F.3d at

750. The panel further questioned the logic of our

caselaw in referring to “the strange situation of our

reviewing a criminal conviction in what has

become a hypothetical case.” Id. at 748.

5 See also Mmahat

, 106 F.3d at 93 (“Normally,

the death of a criminal defendant during the pendency of his appeal abates the entire proceeding ab

initio .”); United States v. Schuster

, 778 F.2d 1132,

1133 (5th Cir. 1985) (“Under the firmly established rule in this circuit, the death of a defendant

pen ding conclusion of the direct criminal appeal

(continued...)4

pear, and the case is not merely dismissed. Instead, everything associated with the case is

ext inguished, leaving the defendant “as if he

had never been indicted or convi cted.” P arsons

, 314 F.3d at 749 (quoting United States

v. Schumann

, 861 F.2d 1234, 1237 (11th Cir.

1988)).

With respect to restitution, we have looked

to the purpose of

the order to determ i ne

whether it abates with the conviction. “When

restitution is ordered simply to punish the defendant, it is penal and abates with the rest of

his co nviction. When it is designed to make

his vict ims whole, however, it is compensatory

and survives his death.” M mahat

, 106 F.3d at

93. Additionally, abatement does not entitle a

defendant to monies paid before death as part

of a fine or restitution order. 6

III.

Despite the common acknowledgment that

abatement ab initio is a well-established and

oft-followed principle in

t he federal courts, 7 few courts have plainly articulated the rationale behind the doctrine. Two primary approaches support abatement ab initio

. The finality principle reasons that the state shoul d

n o t label one as guilty until he has exhausted

his opportuni ty to appeal. The punishment

principle asserts that the state should not punish a dead person or his estate. Although the

finalit y pr inciple best explains why criminal

proceedings abate at de at h, finality does not

justify the distinction between compensator y

and penal restitution orders.

Unde r the finality rationale, we have described the entitlement to one appeal as follows:

[W ] hen an appeal has been taken from a

criminal conviction to the court of appeals

and deat h has deprived the accused of his

right to our decision, the interests of justice

ord inarily require that he not stand convicted without resolution of th e merits of

his appeal

, which is an “integral part of

[our] system for finally adjudicating [his]

guilt or innocence.”

United States v. Pauli ne , 625 F.2d 684, 685 5 (...continued)

abates, ab initio

, not only the appeal, but the entire

criminal proceeding.”).

6 See

, e.g.

, United States v. Zizz o , 120 F.3d

1338, 1347 (7th Cir. 1997) (re garding fines and

forfeitures); Asset

, 990 F.2d at 214 ( r egarding

restitution); Schumann , 861 F.2d at 1236.

7 In applying D urham v. United States

, 401

U.S. 481, 483 (197 1 ) (per curiam) (stating that

“death pending direct revi ew of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its i nception”), overruled on other grounds

, Dove v. United States , 423 U.S. 325 (1976), other circuits follow the doctrine of

abatement a b initio

. S ee, e.g.

, U nited States v. Wright , 160 F.3d 905, 908 (2d

(continued...) 7 (...continued)

Cir. 1998 ) (quoting D urham

, 401 U.S. at 481);

United States v. Logal

, 106 F.3d 1547, 1551 (11th

Cir . 1997) (“This circuit has adopted the general

rule that the death of a defendant during the pendency of his di r ect appeal renders his conviction

and sentence v oid a b initio; i.e., it is as if the defendant had never been indi cted and convicted.”);

United States v. Davis

, 953 F.2d 1482, 1486 (10th

Cir. 1992) (quoting D urham

, 401 U.S. at 483) ;

United State s v. Wilcox , 783 F.2d 44 (6th Cir.

1986); United States v. Oberlin

, 718 F.2d 894 (9th

Cir. 1983); United States v. Pauline

, 625 F.2d 684

(5th Cir. 1980); United States v. Moehl enkamp

, 557 F.2d 126 (7th Cir. 1977).5

(5th Cir. 1980) (emphasis added, brackets in

original) (quoting Griffin v. Illinois

, 351 U.S.

12, 18 (1956)). 8 The defendant’s attack on his

conviction tests previously unforeseen weaknesses in the state’s case or outright errors at

trial. 9 Under this rationale, neit her the state

nor affected p arties should enjoy the fruits of

an untested conviction.

The second rationale focuses on the precept

that the criminal justice system exists primarily

to pun i sh and cannot effectively punish one

who has die d. “[T]he purposes of criminal

proceedings are primarily penal 

### SS the indictment, conviction and sentence are charges

against and punishme n t of the defendant 

### SS such that the death of the defe n dant

eliminates that purpose.” 10 The government

and other circuit s have mentioned this justification. 11

Given that the doctri ne of abatement a b

initio is largely court-created and a creature of

the common law, the applications of abatement

are more amenable to pol icy and equitable

arguments. Neither of the previously-articulat e d rationales fully explains our current

approach to abatement, restitution orders, and

fines paid before death

. As we will explain,

we adopt the finalit

y rationale a nd adjust our

restitution jurisprudence accordingly.

The punishment rationale supports our current distinction between penal and compensatory restitution orders 12 and just ifies the line,

with respect to fines, drawn at the time of

death. 13 Punishment does not, however, adequately explain the other aspect of our abatement jurisprudence 

### SS

the elimination of the

criminal proceedings against that person

. Presumably, under t he punishment rationale,

cou rt s could retain the record of conviction

a n d block proceedings that would punish the

estate. 14 8 Accord United States v. Moehlenkamp , 557

F.2d 126, 128 (7th Cir. 19 77); see also Rosanna

Cavallaro, Better Off Dead: Abatement, Innocence, and the Evolving Right of Appeal

, 7 3 U.

C OLO

. L. R EV

. 943, 954 (2002) (“The abatement

remedy relies significantly on a larger premise: a

conviction that cannot be tested by appellate review

is both unreliable and illegitimate; th e constitutionally guaranteed trial right must include

some form of appellate review.”).

9 In Douglas v. California

, 372 U.S. 35 3

(1963), and Evitts v. Luce y , 369 U.S. 387, 392

(1985), the C ourt “require[d] the appointment of

effective counsel for a criminal appellant pursuing

a first appeal of right.” Clark v. Johnson , 227

F.3d 273, 283 (5th Cir. 2000).

10 Asset

, 990 F.2d at 211; s ee also Mmahat

, 106 F.3d at 93 (stating that “the ab atement principle is premised on the fact that criminal proceedings are penal”). 11 See, e.g.

, United States v. Dudley , 739 F.2d

175, 176 n.2 (4th Cir. 1984) (“A decede nt can

hardly serve a prison sentence.”). In its brief, the

g overnment makes a similar point: “Put another

way, the doctrine of abatement is applied because

i t serves no purpose to punish a person who is

dead.”

12 Mmahat

, 106 F.3d at 93 (“When restitution

is ordered s imply to punish the defendant, it is

penal and abates with the rest of his conviction.”).

13 Following death, the state retains alreadypaid fines but does not require payment of outstanding unpaid fines.

14 The courts could use the punishment rationale

(continued...)6

The finalit

y principle provides a better explanation why all prior proceedings disappear.

A defenda nt ’s death during appeal forces a

court to decide between disregarding a finding

of guilt and entering an unreviewed judgment.

Presumptions of innocence and a desire to ensure guilt nat urally point to extinguishing all

criminal proceedings.

The primary justification for the abatement

doctrine arguably is that it prevents a wronglyaccused defendant from standing conv icted.

The Supreme Court and other circuits have

recognized this justification for abatement.

We now adopt it as the primary reason behind

abatement and, by so doing, we reject Asset ’s

and Mmahat ’s descriptions of the punishment

justification.

Accordingly, regardless of its purpose, the

order of restitution cannot stand in the wake of

Parsons’s death. Because he now is deemed

never to have been convicted or even charged,

the order of restitution abates ab initio

. 15 IV.

Although t he government may argue that

this approach harms t he int erests of those allegedly injured, such an argument cannot outweigh the finalit

y rationale. “[T]he goal of the

[compensatory

restitution] payment is . . . to

restore the vict im’s losses.” A sset

, 990 F.2d at

214. If the restitution order abates wit h the

death of the defendant, those “vict ims” will not

be made whole, or at least not by way of direct

restitution from the defendant or his estate. 16

14 (...continued)

to prevent use of the conviction in civil court and to

retain the decedent’s good name. The former

application co uld be accomplished without eliminating the conviction altogether, and the latter use

does not seem significa nt enough to warrant

extinguishing all prior proceedings.

15 The dissent argues that restitution orders are

“expressly compensatory, non-punitive, and equivalent to a civil judgment against a criminal

defendant” and criticizes our approach as “treating

the restitution order as abatable and therefore impliedly punitive.” This response overlooks the approach we have taken in deciding thi s case. Our

aim is to craft a coherent and consistent means of

applying abatement ab initio to restitution orders.

As we have shown, the best explanation for abate-

(continued...) 15 (...continued)

ment SS the finality rationale SS

does not support a

distinction between comp ensatory and punitive

awards. Instead, it mandates that all vestiges of the

criminal proceeding should disappear.

In contrast, the dissent skips the primary question of how abatement and restitution interact and

assumes the continued existence of the compensatory-penal dichotomy. The dissent’s citations to

United States v. Bach , 172 F.3d 520 (7th Cir.

1999), and Newman v. United States, 144 F.3d

531 (7th Cir. 1998), suffer from the same problem.

Both cases assume that restitution orders should be

described as either compensatory or penal. Neither

considers the overall purpose behind abatement ab

i nitio and how such a purpose would affect all

restitutio n orders. The traditional dichotomy

cannot remain, however, if we are to craft a

consistent regime that incorporates statutory elements SS such as the Victim and Witness Protection

Act SS and two forms of equitable doctrine.

16 The government argues, at length, that the instant restitution order was intended to make whole

the victims of Parsons’s fraud: “Unlike a fine,

restitution does not deprive the estate of money the

defendant may have rightfully acquired; instead it

removes tainted mon e y that defendant unlawfully

obtained .

. . .” Examples of such uncompensated

victims undoubtedly exist. In U nited State s v.

Logal

, 106 F.3d 1547 (11th Cir. 1997), the court

(continued...)7

The government’s positi o n may have validity under the punishment rationale, but it has

little force if t he concern is finality and the

right of the defendant to contest his appeal at

least once. Any references to the wrongful nature of the defendant and his actions are conditioned on an appellate court’s upholding the

conviction, assuming the defendant pursues an

appeal. The defendant’s death during the pendency of appeal pushes a court to nullify all

prior p ro ceedings. Despite what may have

been proven at trial, the trial is deemed not to

have taken place. Thus, at least in the eyes of

the criminal court, the defendant is no longer

a wrongdoer and has not defrauded or damaged anyone.

These unfortunate situations also create the

danger of misusing the term “vict im” in different contexts 

### S

S civil and criminal 

### SS

with the

same force. One is not necessarily a victim of

a crime because he suffers a loss at the hands

of another. The loss may arise from poor decisions on the part of the alleged victim, poor

drafting on the part of the attorneys, or even

questionable conduct on the part of the defendant. None of these situations, however, necessarily warrants a criminal convic tion. The

abatement doctrine provides that one should

not be permanently labeled as finally “convicted” while his first appeal is pending. That

is to say, in abatement the criminal c ourt essentially abdic at es its power over the former defendant. 17

V.

The aforementioned justifications for altering our abatement doctrine rely on equitable

rationales. Perhaps more importantly, as the

estate argues, our current willingness to let

com pensatory restitution orders survive the

death of the defend ant runs contrary to the

text of the Victim and Witness Protecti on Act

(“VWPA”), 18 U.S.C. § 3663(a)(1)(A).

The VWPA allows a court to enter a restituti o n o rder when “sentencing a defendant

convicted of an

offense.” 18 U.S.C. § 3663-

(a)(1)(A) (emphasis added). If death terminates the criminal case ab initio

, the defendant

no longer st ands convicted. One might respond to this natural reading by arguing that

“convicted of an offense” has force only on the

day on which the restitut ion order is entered.

16 (...continued)

abated a seemingly compensatory restitution order

entered against a defendant convicted of numerous

illegal financial dealings. Despite the time invested

in the trial a nd the guilty verdict, those whom the

decedent allegedly defrauded could not collect

through the federal criminal courts. 17 M er ely because the c riminal proceeding

abates, however, does not necessarily mean that an

individual who suffer ed a loss cannot obtain reimbursement in civil court. If he can meet the civil

court’s l ower burden of proof, he may receive a

judgment from that court. The criminal court that

entered the prior reimbur sement order, however,

should not retain any po wer over that prior

defendant.

One may argue that allowing the estate to substitute for the dead defendant ensures the fair representation of

the decent’s interests, but such a

substitution does not align logically with the abatement of all prior criminal proceedings. Essentially,

the substitution doctrine forces the estate to argue

about a conviction that no longer exists and

requires a court to adjudicate the merits of a proceeding that no lon ger took place. Although it is

not without a cost, requiring victims to argue their

case in civil court protects the interests of

defendants whose direct appeals are not yet final.8

Because the defendant stands convicted on the

day the court enters the order, ret aining the

order after the defendant’s death would not

conflict with the VWPA.

Additional text o f the VWPA, however,

suggests that “co nvicted” should not have

force merely at the time o f the resti tuti on order. Section 3663(d) references 18 U.S.C.

§ 3664 as the enforcement mechanism for reimbursement orders. Section 3664( l ) describes the effect of a conviction on future civil

actio ns: “A conviction of a defendant for an

offe nse involving the act giving rise to an order of restitution sh all estop the defendant

from denying t he essential allegations of that

offense in any subsequent Federal civil proceeding or State civil proceeding.”

A standard canon of construction “provides

that a word used in different parts of the statute should be construed to have the ident i cal

meaning th

r oughout the entire statute.” 18 If

the narrower construction o f “convicted” is

a pplied to § 3664( l ), an estate would b e estopped from denying important factual matters

in a subsequent civil suit, even if the underlying conviction had been abated

. 19 Just as a trial conviction, after abatemen t, shoul d not

estop an estate from mounting a de fense in

civil court, one whose conviction is abated no

longer stands “convicted” for purposes of the

VWPA. 20

VI.

The estate argues that the finalit y principle

also requires the governmen t to return the

money paid pursuant to the Preliminary Judgment of Forfeiture. The government stridently

disagrees.

The panel noted that “the doctrine of abatement does not apply to fines, forfeitur es, and

restitution paid prior to a defendant’s death.”

Parsons

, 314 F.3d at 748 (emphasis added, citations omitted). Fines that have not yet been

paid, however, abate in the same manner as do

the prior criminal proceedings. I d

. Asset and

similar cases have distinguished between fines

paid before and after a defendant’s death,

based on the punishment rationale. 21

18 Miss. Poultry Ass’n v. Madigan

, 992 F.2d

1359, 1363 (5th Cir.), modified

, 9 F.3d 1113 (5th

Cir.), vacated on other grounds for reh’g en banc

, 9 F.3d 1116 (5th Cir. 1993), opinion on reh’g

, 31

F.3d 293 (5th Cir. 1994) (en banc)

19 Admittedly, one could argue that “convicted”

and “conviction ” have different meanings. A defendant may be convicted on a given day and will

always be convicted on that day. The conviction,

in contrast, m ay abate or dissolve. This distinction, however, ignores the eff ect of abatement on

either situation. After abatement, the defendant no

longe r stands convicted on that date, and no

(continued...) 19 (...continued)

conviction exists.

20 The dissent discusses, at length, the Mandatory Victim Restitution Act (“MVRA”). The parties, however, did not argue the MVRA in the context of this case. Instead, they generally focused on

th e equitable doctrines, how they interacted with

one another, and how the VWPA affected that

analysis. Even if we consider the MVRA,

how e ver, it references the same enforcement

provision SS 18 U.S.C. § 3664 SS as does the

VWPA. Consequently, using the MVRA as a

means of keeping the compensatory-penal dichotomy fails, for the reasons we have discussed.

21 Asset

, 990 F.2d at 214 (“The rule of abatement has never been applied to require the return of

mon ey paid by a defendant prior to his death and

(continued...)9

The question is whether the tend er to the

government of the check for $970,826.90, at

the real estate closing, was a voluntary, irrevocable payment, as the government contends, or

was, instead, only a means of preserving assets

pending the outcom e of the appeal. The

government a rgues that by giving the check,

“Parsons p aid and the government collected

the Money Ju dgment of criminal forfeiture

. . . . The United States collected Parsons’

payment in full satisfaction of the Money Judgment.”

The agreem

e nt and the order provide for

full return of the money, with interest, if Parsons “prevails in the final determination of this

appeal .” 2 2 Although, as explained, we conclude that restitution orders against Parsons

should abate with his death, neither the agreement nor the Preliminary Judgment of Forfeiture requires the gov ernment to return the

already-paid funds.

“[T]he law

. . . existin g at the time a cont ract is made becomes a part of the cont ract and governs the transaction.” T ex. Nat’l Bank

v. Sandia Mortgage Corp.

, 872 F.2d 692, 698

(5th Cir. 1989) (internal citation and quotati on

marks omitted) (applying Texas law). 23 When

the government and Parsons entered into this

agreement, a bat ement did not require the return of penalties paid before a defendant’s

death. 24 Nothing in the agreement or the specific facts of this case suggests that the parties

intended to avoid that pre-existing rule.

Although the estate might receive the funds

if Parsons “prevails” on appeal, he has not

achieved a victory, taken any action, or made

any substantive points worthy of overturning

hi s co nviction. Rather, at the time of his

death, this court had made no decision on the

m erits of the appeal. Although, based on the

abateme nt rationale, the restitution orders

must abate, Parsons has not “prevailed” in any

meaningful sense.

Presumably in an effort to protect his interests, Parsons voluntarily entered into the

agreement memorialized in the Prelimin a ry

Judgment of Forfeiture. That agreement,

howeve r, did not adequately provide for his

death and did not indi cate that the parti es

wishe d t o act outside the legal framework at

the time they entered into the contract. 25 Con 21 (...continued)

has, in fact, been held inapplicable to

fines SS obvious ly penal S S

paid by a defendant before his death.”); see also United States v. Zizzo

, 120 F.3d 1338, 1343 (7th Cir. 1997) (stating that

fines paid prior to death “are an alogous to time

served and are not refundable.”).

22 The agreement has two requirements: “[I]n

the event Defendant Parsons prevails in the final

determination o f this appeal, and no Final Judgment of Forfeiture is entered in this case, the [government] shall return to Defendant Parsons

. . . the

entire amount of $970,826.90, plus interest.” The

estate has satisfie d the second requirement, as no

final judgment has been entered. Thus, we address

o nly whether Parsons “prevail[ed] in the final

determination of this appeal.” 23 We have no occa sion here to comment on,

and we express no opinion on, a situation in which

there is no agreement or order, such as those present in this case, conditioning return of the forfeited

sums on the outcome of the appeal.

24 See, e.g., Asset , 990 F.2d at 214 (“The rule

of abatement has never been applied to require the

return of money paid by a defendant prior to his

death . . . .”).

25 This analysis pertains only to Parso n s and

(continued...)10

sequently, although Parsons died, we have not

validated any of his grounds for appeal, and he

has not “prev ailed.” He is not entitled to the

return of the monies paid under t he Preliminary Judgment of Forfeiture.

VII.

Thus, as part of ensuring that every defendant has an opportuni ty to challenge hi s conviction by one direct appeal, we e x punge the

criminal proceedings and the pending punishments attached to those proceedings if the defendant takes an appea l and dies during its

pendency. In the instant case, this includes an

unpaid restitution order. Based on the particular language of the Prelimi nary Judgment of

Forfeiture, Parsons did not meet the judgment’s requirements, so we DENY his request

t o require the return of sums paid under that

order.

This appeal is DISMISSED, and this matter

i s REMANDED with direction to VACATE

the judgment of convicti o n and sentence, including the order of restitution, and to dismiss

the indictment. To the extent that they are inconsiste nt herewith, A sset and Mmahat are

overruled.

25 (...continued)

this particular agreement. Other agreements may

contemplate the possibility of the defendant’s death

during the pendency of an appeal.26 The majority’s unique “finality rationale,” even if valid, does not

justify overruling Mmahat and Asset

. The majority’s r aison D’etre for

creating the “finality rationale” is that “all conseq uences of the

untested criminal conviction should abate,” maj. slip op. p.2 (emphasis

added), so that “neither the state nor affected parties should enjoy the

fruits of an untested conviction.” Id

. p.5 (emphasis added). In M mahat

itself, however, this court has already created a procedure for testing

the conviction of a defendant who dies during pendency of the appeal so

that compensatory restitution consequences or fruits would not flow from

an untested convict ion. The M mahat court held that the compensatory

restitution order against the deceased defendant did not abate; instead,

his heirs’ motion to substitute for him and continue the appeal in his

place was granted, and his arguments which potentially could result in

a reversal of the restitution order were fully considered. M mahat

, 106

F.3d at 93. Thus the majority has not shown a sufficient legal reason

for overruling Mmahat and Asset because the per ceived evil of an

unre viewed and untested compensatory restitution order has been

adequately remedied by Mmahat itself.

Mmahat and Asset also have already attained the “finality rationale’s”

goal of eliminating the punitive effects of an un reviewed criminal

conviction by assuring “that the state should not label one as guilty

until h e has exhausted his opportunity to appeal” maj. slip op. p.4;

p reventing the “entering [of] an unreviewed judgment” I d

. p.5; and

“prev enting a wrongly-accused defendant from standing convicted.” I d

. p.6. Under M

mahat and Asset

, the penal aspects of the judgment of

conviction, which labe l or give the accused status as a “convicted

criminal,” abate immediately upon the death of the defendant, and, as

already noted, the heirs or estate of the deceased can pursue the appeal

and take full advantage of the chance to have any judgment of

compensatory restitution reviewed and rever sed. Thus, the concrete

obj ects and effects sought by the “finality rationale” are already

accessible under Asset and Mmahat

. There is no reason to create a new

legalistic doctrine, and even if created it does not require overruling

those Circuit precedents.

(continued...)

11 DENNIS, Circuit Judge, joined by HIGGINBOTHAM, DAVIS, WIENER,

B ENAVIDES, and STEWART, Circuit Judges, dissenting in part and

specially concurring in part:

I respectfully disagree with the majority’s decision to (1)

overrule our long-standing circuit precedents of United States v.

Mmahat

, 106 F.3d 89 (5 th Cir. 1997) and United States v. Asset

, 990

F.2d 208 (5 t h Cir. 1993), 2 6 which held26 (...continued)

Contrary to the inference that might be drawn from a casual reading

of the majority’s citations, the “finality rationale” is a completely

novel judicial creation which has not been embraced or eve n suggested

by the other courts. The majority cites United States v. Pauline

, 625

F.2d 684, 685 (5 th Cir. 1980) and United States v. Moehlenkamp

, 557 F.2d

126, 128 (7 th Cir. 1977), See maj. slip op. p.4, but they do not support

or even menti on that rationale. P auline and Moehlenkamp merely hold

that the Supreme Court’s decision in Dove v. United States

, 423 U.S. 325

(1976) to dismiss pending petitions for certiorari upon the petitioner’s

death, overruling its previous practice of abatement followed in Durham

v. United States

, 401 U.S. 481 (1971), was not meant to alter the

longstanding rule of lower federal courts of abatement of the entire

criminal proceedings upon death of an appellant during the pendency of

his appeal. Pauline and Moehlenkamp dealt only with the abatement of the

punitive aspects of criminal co nvictions; the question of whether

compensatory r estitution survives the appellant’s death was not

presented.

The majority was apparently inspired to create the “finality

rationale” by a single law review article. maj. slip op. p.4 (citing and

quoting Rosanna Caval laro, B etter Off Dead: Abatement, Innocence, and

the Evolving Right of Appeal

, 73 U. Colo. L. Rev. 943, 954 (2002)). In

her article, Ms. Cavallaro argues that the right to app eal from a

criminal conviction should be and is evolving into a constitutional

right. She sees the adoption of the remedy of abatement ab initio by a

large majority of courts as an important “strand” which, together with

others, “are forceful arguments for formal, legal recognition of an

evolution in criminal procedure [toward constitutionalization of the

right to appeal].” Id

. 986. In furthering her argument for the

constitutional right to appeal, she says that “[t]he abatement remedy

relies significantly on a larger prem ise: a conviction that cannot be

tested by appellate review is both unreliable and illegitimate[.]” Id

. 954 It does not follow from this statemen t or the article as a whole

that courts should create a “finality rationale” as espoused by the

majority; nor does it follow that the dual mechanism provided by Asset

and Mmahat

, i.e ., abatement ab initio of all punitive consequences of

the criminal proceedings together with the right to continue the appeal

with respect to the compensatory restitution decree, does not adequately

satisfy t he needs for reliability and legitimacy in criminal

proceedings.

12 that a restitution order, because it is compensatory rather than

punitive, does not abate with the defendant’s criminal conviction

and punishment when he dies while his appeal is pending; and (2)

judicially create a rule, contrary to federal statutes and common

law, that a judgment requiring a criminal defendant to make13

restitution to his victims also abates upon his death.

The well reasoned decisions in Mmahat and Asset established the

sound and just majority rule that, when a person adjudged guilty of

a c rime dies while his appeal is pending, (1) the trial court’s

restitution order requiring him to compensate his victims for the

harm done them by his crimes does not abate or disappear, because

it is compensatory rather than penal; (2) the restitution order

continues to have effect as a civil judgment enforceable against

his estate; but (3) h is estate may move to be substituted in his

place and pursue the app eal, which, if successful, will require

that the restitution judgment be cancelled. See Mmahat , 106 F.3d

at 93.

The majority now holds that, when a criminal defendant dies

during his appeal, the restitution judgment immediately abates and

is voided, leaving his esta te the windfall of any fruit of his

crime, and requires that his victims go uncompensated for their

harm, a nd leaves in doubt whether they must turn over to the

criminal defendant’s estate any restitution previously received.

See Slip Op. at 2, 10.

1.

The majority’s decision conflicts with the policy and provisions

of the Mandatory Victims Restitution Act of 1996 (MVRA) and the27 The MVRA supersedes the VWPA, in part, and mandates restitution with

respect to, inter alia, mail fraud crimes (such as those committed by

Parsons), of which the defe ndant is convicted on or after the date of

the MVRA’s enactment. S ee S. Rep. 104-179, 104th Cong., 2nd Sess. 13,

reprinted in 1996 U.S. Code Cong. & Admin. News 926 (indicating that the

MVRA is designed to further the purposes of the VWPA); Pub. L. No. 104-

132 § 211, 110 Stat. 1241 (1996) (stating that the MVRA shall apply to

convictions on or after the date of the MVRA’s enactment); 18 U.S.C. §

3663A(c)(1)(A) (listing the types of crimes to which the MVRA applies);

United States v. Caldwell

, 302 F.3 d 399, 419 (5th Cir. 2002) (holding

that mail fraud is a crime to which the MVRA applies). For the reasons

discussed below, I believe the MVRA is not an ex post facto law, but a

compen satory, non-punitive remedy which applies retroactively to all

such convictions regardless of the date of the commission of the crime.

In any event, the policy and provisions of the MVRA should be carefully

and fully considered in this major policymaking decision having broad

future ramifications under the MVRA and VWPA.

28 The majority argues that t he restitution order under this statute

should abate because, after the criminal case is abated ab initio

, the

defendant no longer stands “convicted.” S ee maj. slip op. p.7. But the

language in question on its fa ce uses the term “convicted” in the

c ontext of “when [the district court is] sentencing” the defendant

.

Because Parsons stood convicted during sentencing, the restitution order

was issued during sentencing, and the restitution order has the effect

of a civil judg ment rendered at that time, s ee infra notes 5-11 and

accompanying text, the restitution order is valid.

The majority then tries to analogize to section 3664(l), which refers

to the ef fect of a conviction in subsequent proceedings, arguing that

the term “convict ed” must have the same meaning in both of these

se ctions. But the word “convicted” has no temporal element; the

temporal thrust of each section is provided by the context in which the

(continued...)

14 Victim and Witness Protection Act of 1982 (VWPA) 27 and undermines

the Congressional objective of requiring Federal criminal defendants to pay compensatory restitution to the identifiable victims

of their crimes.

Congress ena cted the VWPA in 1982, 18 U.S.C. § 3663 (1982)

, to

authorize, but not require, district courts, within their discretion, to order restitution to victims of criminal conduct. Id. §

3663(a)(1)(A). 28 In determining whether to order restitution, and28 (...continued)

word “convicted” or “conviction” is used. Thus, the majority’s analogy

is inherently flawed.

15 how much, the court was required to consider, along with the loss

sustained by each victim, the financial resources and family needs

of the defendant. Id. § 3663(a)(1)(B). Prior to today’s decision

herein, a majority of circuits, including this Fifth Circuit, had

held that restitution orders under the VWPA were compensatory and

therefore non-abatable. See United States v. Asset, supra; United

States v. Mmahat, supra; see also United States v. Christopher

, 273

F.3d 294, 299 (3rd Cir. 2001); United States v. Johnson

, 1991 U.S.

App. LEXIS 17204 (6th Cir. 1991) (unpublis hed); U nited States v.

Dudley

, 739 F.2d 175 (4th Cir. 1984). B ut see United States v.

Logal

, 106 F.3d 1547, 1552 (11th Cir. 1997) (holding that restitution orders are p unitive and should abate with the death of a

criminal defendant during his appeal).

In 1996, Congress enacted the MVRA, 18 U.S.C. § 3663A (1996),

which mandates restitution for certain crimes and clearly indicates

that such restitution is compensatory and non-abatable. The MVRA

superseded in part the VWPA, with respect to the designated crimes,

Id. § 3663A(c), and, as its name indicates, mandatoril y requires

that, in sentencing a defendant c onvicted of, inter alia, “an

offense against property, including any offense committed by fraud

o r deceit,” the court “shall order...that the defendant make

restitution to the victim of the offense or, i f the victim is29 T he defendant’s financial circumstances are relevant only to fixing

a payment schedule for the m andatory restitution. 18 U.S.C. §

3664(f)(2)-(4).

30 The MVRA expressly provides that if the victim is deceased

the court shall order restitut ion to the victim’s estate. I d. §

3663(a)(1)(A); this provision implies that th e right created by the

restitution order is heritable property.

31 Id. §3664(g)(2).

32 Id. § 3664(m)(ii)(B), which provides:

At the request of a victim named in a restitution order, the

(continued...)

16 deceased, to the victim’s estate.” Id. §§ 3663A(c), 3663A(a).

Further , the MVRA amended the VWPA to provide that restitution

orders under the VWPA shall be issued and enforced in accordance

with § 3664, which sets forth the enforcement provisions of the

MVRA. See § 3663(d). (“An order of restitution made pursuant to

this section shall be issued and enforced in accordance with

Section 3664.”). In each restitution order under the MVRA and the

VWPA, as amended, the court “shall order restitution to each victim

in the full amount of each victim’s losses as dete rmined by the

court and without consideration of the economic circumstances of

the defendant.” Id. § 3664(f)(1)(A). 29

Under the MVRA and the VWPA, as amended, the court’s restitution

order expressly creates a property right for the victim or his

estate which has the effect of a civil judgment against the criminal

d efendant or his estate. A restitution order is a heritable, 30

assignable, 31 civil judgment “in favor of such victim”, 32 and, when32 (...continued)

clerk of the court shall issue an abstract of judgment

certifying that a judgment has been entered in favor of such

victim in the amount specified in the restitution order. Upon

registering, recording, docketing, or indexing such abstract in

accordance with the rules and requirements relating to

judgments of the court of the State where the district court is

located, the abstract of judgment shall be a lien on the

property of the defendant located in such State in the same

manner and to the same extent and under the same conditions as

a judgment of a court of general jurisdiction in that State.

33 Id.

34 Id. § 3664(h).

35 Id. § 3664(l).

36 Id. § 3664(j)(1).

17 properly recorded, “shall be a lien on the property of the defendant...in the same manner

. . . as a judgment of a court of general

jurisdiction.

. . .” 33 The judgment of restitution carries potential civil effects of joint and several liability, res judicata or

collateral estoppel, and subrogation: When plural defendants

contribute to the loss of the victim the court may make each

defendant liable for payment of the full amount of restitution. 3 4

A defendant orde red to make restitution is estopped from denying

the essential allegations of the offense in subsequent civil

proceedings. 35 An insurer or other person who compensates the

victim for loss covered by a restitution order may to the extent of

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

restitution debtor. 36

While the foregoing provisions demonstrate that Congress carefully37 Id. § 3664(b)(1).

38 Id. § 3664(b)(2).

39 Id. § 3664(j)(2).

18 designed the restitution ordered under the MVRA and the VWPA, as

amended, to b e a compensatory remedy for crime victims, other

provisions of § 3664 protect the defendant from possible punitive

effects. In case of property loss, the order may require only a

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

property. 37 In case of bodily injury, the order may compensate the

victimonly for specified losses, e.g., medical and therapeutic

expenses, lost income, funeral expenses , child care expenses,

transportation expenses, and expenses related to the prosecution. 38

Thus, the court cannot order restitution for compensatory damages

related to pain, suffering, mental or emotional distress or for

punitive damages. Additionally, any amount paid to a victim under

a restitution order shall be reduced by the victim’s re covery of

compensatory damages for the same loss in civil proceedings. 39

In sum, an order of restitution under the MVRA or the VWPA, as

amended, is expressly compensatory, non-punitive, and equivalent to

a ci vil judgment against a criminal defendant requiring that he

compensate his victims for the specified elements of the harm done

to them by his offenses. Consequently, the majority’s decision

conflicts with the statutory scheme by treating the restitution

order as abatable and therefore impliedly punitive. The decision40 The majority asserts that its “finality rationale. . . . mandates

that all vestiges of the criminal proceeding sho uld disappear.”

maj.op.n.13. Because the compensatory/penal analysis would not result

in total abatement, the majority rejects it summarily. Id.

Until the majority’s decision r ejecting the compensatory/penal

ana lysis, it had been adopted and used unanimously. S ee Mmahat, 106

F.3d 89, 93 (using the penal-compensatory dichotomy); Asset 990 F.2d at

213-14 (same); see also United States v. Christopher

, 273 F.3d 294, 298-

99 (3rd Cir. 2001)(same); United States v. Logal

, 106 F. 3d 1547, 1552

(11th Cir. 1997) (same); United States v. Dudley

, 739 F.2d 175, 177-78

(4th Cir. 1984) (same); United States v. Johnson

, 1991 U.S. App. LEXIS

17204 (6th Cir. 1991) (unpublished) (citing Dudley ). By rejecting the

analysis and the unanimo u s weight of authority, the majority opinion

places this Circuit in a sui generis position of isolation

. The compensatory/punitive test is part of the well settled doctrine

that death a bates a criminal penalty because, once the defendant is

dead, there is no longer a justification for t he punishment of him or

his estate; but the defendant’s death does not affect the justification

for restitution intended only to compensate the v ictim; accordingly,

such restituti on survives and its payment will not undermine the

purposes of abatement since the goal of the payment is not to punish the

defendant, or his estate, but to restore the victim’s losses. See, e.g.,

(continued...)

19 thereby d ivests the victims of vested rights established by the

restitution order as a civil judgment. On the other hand, Mmahat

and Asset

, which the majority overrules, are fully consistent with

the MVRA, the VWPA, as amended, and their objectives. The majority’s decision plainly clashes with and undermines the Congressional

policy implemented by the VWPA and the MVRA.

2.

The majority opinion disregards or refuses to follo w the well

reasoned opinions of other Circuits that carefully analyze the VWPA

and t he MVRA and conclude that restitution orders under them are

compensatory and do not constitute criminal punishment for ex post

facto or abatement purposes. 4040 (...continued)

Asset

, 990 F.2d at 214 (citing U nited States v. Morton

, 635 F.2d 723,

725, 727 (8th Cir, 1980); United States v. Bowler

, 537 F.Supp.933, 935

(N.D. Ill. 1982) ). Restitution also serves the non-penal purpose of

removing benefits derived by wrongdoing from the defendant’s estate,

which would otherwise be unjustly enriched, and using them to repair the

victim’s losses. Christopher

, 273 F.3d at 299

, cert. denied

, 536 U.S.

964 (2002)(“To absolve the estate [of the defendant] from refunding the

fruits of the wrongdoing would grant an undeserved windfall.”)

M ost important, as the text of this dissenting opinion e xplains,

Congress in the MVRA and the VPWA has con firmed the merit of the

compensatory/punitive test by providing that judgments of compensatory

restitution for crime victims shall have the force and effect of civil

ju dgments, which under the federal and common law do not abate but

survive the death of the defendant judgment-debtor.

The majority erroneously claims that it has crafted a “consistent

regime that incor porates statutory elements–such as the Victim and

Witness Protection Act

. . . .” Maj. slip op. at 6 n.13. Instead, the

majority has simply expanded the judicially created rule of a b initio

abate ment far beyond its original purpose to, in effect, judicially

overrule the national policy and legislated law of restitution of crime

victims enacted by Congress in the MVRA and VWPA.

41 Some cou rts, without functional analysis or reasoning, treat

restitution under the VWPA and MVRA as a criminal penalty. See United

States v. Edwards

, 162 F.2d 87, 89-90 (3rd Cir. 1998) (collecting

cases). They rely on formalistic classification of the restitution

order as criminal because it issues during the sentencing proceeding;

they fail to recognize the m odern practice of using civil proceedings

as ancillary to criminal actions. S ee Susan R. Kle in, R edrawing the

Criminal-Civil Boundary, 2 Buff. Crim. L.R. 679, 686-89 (1999) (noting

the MVRA as an example). Though courts are authorized to issue

restitution orders in criminal proceedings, restitution under the MVRA

and VWPA is functionally a tort remedy–a streamlining of procedures that

allows a victim to recover a compensatory remedy though “a summary

proceeding ancillary to a criminal prosecution.” S ee Bach

, 172 F.3d at

523 (citing, inter alia

, Carol S. Steiker, Punishment and Proce d ure:

(continued...)

20 Chief Judge Posner, in U nited States v. Bach

, 172 F.3d 520 (7 th

Cir. 1999), succinctly and persuasively stated the reasons that MVRA

restitution orders are compensatory, rather than criminal punishment, and therefore cannot run afoul of the ex post facto prohibition. 41 He explained that the MVRA is not penal but is functionally41 (...continued)

Punishment Theory and the Criminal-Civil Procedural Divide

, 85 Geo. L.J.

775, 782-83 (1997)).

Indeed, the acts within which the MVRA and VWPA are contained were not

passed as solely criminal acts. The MVRA was simply one part of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which

contains both criminal and civil legislation. S ee Pub. L. 104-132, 110

Stat. 1214 (1996). For example, AEDPA contains, among other provisions,

sections involving habeas corpus reform and provisions relating to civil

lawsuits brought against terrorist states. Id. I n addition, the VWPA

is primarily a civil act providing for compensatory restitution. In

other words, both the MVRA an d the VWPA were passed as part of

legislative enactments that created both civil and criminal reforms.

21 a compensatory torts statute:

The Act requires the court to identif y the

defendant's victims and to order restitution to

them in the amoun t of their loss. In other

words, definite persons are to be compensated

for definite losses just as if the persons were

successful tort plaintiffs. Crimes and torts

frequently overlap. In particular, most crimes

t hat cause definite losses to ascertaina ble

victims are also torts: the c rime of theft is

the tort of conversion; the crime of assault is

the tort of battery--and the crime of fraud is

the tort of fraud. Functionally, the Mandatory

Victims Restitution Act is a tort statute,

though one that casts back to a much earlier

era of Anglo-American law, when criminal and

tort proceedings were not clearly

distinguished. The Act enables the tort victim

to recover his damages in a summary proceeding

ancillary to a criminal prosecution. We do not

see why this procedural innovation, a welcome

streamlining of the cumbersome processes of our

la w, should trigger rights under the ex post

facto clause. It is a detail from a defrauder's

standpoint whe ther he is ordered to make good

his victims' losses in a tort suit or in the

sentencing phase of a criminal prosecution. It

would be different if the order of restitution

required the defendant to pay the victims'

losses not to the victims but to the government

for its own use and benefit; then it would be

a fine, which is, of course, traditionally a

criminal remedy.22

Bach

, 172 F.3 d at 522-23 (internal citations omitted)(emphasis

added).

The Seventh Circuit’s decision in Newman v. United States, 1 44

F.3d 531 (7 th Cir. 1998), provides further analysis demo nstrating

that restitution under the MVRA does not qualify as criminal

punishment. (1) “Restitution has traditionally been viewed as an

equitable device for res toring victims to the position they had

occupied prior to a wrong doer’s actions.” 144 F.3d at 538 (citing

Restatem ent of Restitution (introductory note) (1937)). “It is

separate and distinct from any punishment visited upon the wrongdoer

and operates to ensure that a wrongdoer does not procure any benefit

through his conduct at ot hers’ expense.” I d

. (Citing 1 George E.

Palmer, The Law of Restitution § 1.1, at 5 (1978)); (2) The nonpunitive character of restitution had been recognized by the Seventh

Circuit and other courts in previous cases. Id. 538-39 (Citing

United States v. Black

, 125 F.3d 454, 467 (7 th Cir. 1997) (restitution under the Child S upport Recovery Act of 1992 was not punishment); United States v. Hampshire , 95 F.3d 999, 1006 (10 t h Cir.

1996) (same); United States v. Arutunoff

, 1 F.3d 1112, 1121 (10 t h

Cir.) (The VWPA’s purpose i s not to punish defendants but to make

victims whole to the extent possible); United States v. Rochester

,

898 F.2d 971, 983 (5 th Cir. 1990) (same)); (3) The nature of the

restitution order authorize d by the VWPA or the MVRA is not a

punitive sanction when analyzed under the factors set forth by23

Kennedy v. Mendoza-Martinez

, 371 U.S. 144, 168-69 (1963) for

deciding whether a statutory scheme was so punitive in purpose or

effect as to transform what was intended as a civil remedy into a

criminal penalty. See Newman , 144 F.3d at 540 (citing Kansas v.

Hendricks

, 521 U.S. 346 (1997); Hudson v. United States , 522 U.S.

93 (1997)).

Accord: United States v. Nichols

, 169 F.3d 1255 (10 th Cir. 1999);

United States v. Arutu noff , 1F.3d 1112, 1121 (10 t h Cir. 1993)(“The

VWPA’s purpose is not to punish defendants or to provide a windfall

for crime victims but rather to ensure that victims, to the greatest

extent possible, are made whole for their losses.”)(citing U nited

States v. Rochester , 898 F.2d 971, 983 (5 th Cir. 1990)).

For similar reasons, the majority of circuits that have addressed

whether MVRA or VWPA restitution orders are abatable, decided that,

because such orders are compensatory rather than punitive, the death

of the defendant during appeal does not cause them to abate. S e e

United States v. Christopher

, 273 F.3d 294, 298 (3rd Cir. 2001) (“To

absolve the estate from refunding the fruits of the wrongdoing would

grant an undeserved windfall...abatement should not apply to the

order of restitution in this case....”); United States v. Mmahat,

supra; United States v. Asset, supra; United States v. Johnson

, 1991

U.S. App. LEXIS 17204 (6th Cir.) (unpublished) (same); United States42 One Circuit court concluded, with little analysis or reasoning, that

restitution orders are punitive and therefore should abate when a

defendant dies during his appeal. S ee United States v. Logal

, 106 F.3d

1547 (11th Cir. 1997).

24 v. Dudley , 739 F.2d 175, 178 (4th Cir. 1984) (same). 42

3.

The majority’s decision is contrary to the general principles of

federal and common law pertaining to abatement, survival, and

revival of actions and judgments. With respect to a cause of action

created by act of Congress, it is well settled that the question of

whether it survives the death of a party by or against whom it has

been brought is not one of procedure but one which depends on

federal substantive law. Schreiber v. Sharpless , 110 U.S. 76, 80

(1884); See 7C Wright, Miller & Kane §§ 1952 & 1 954 (2d ed 1986).

If no specific provision f or survival is made by federal law, as

in the present case, the cause survives or not according to the

principles of common law. P atton v. Brady

, 184 US 608 (1902); E x

parte Schreiber

, supra. Generally, an action is not abated by the

death of a party after the cause has reached a verdict or final

judgment and while the judgment stands, 1 Am Jur 2d, A batement,

Survival and Revival § 61, n.26 (citing Connors v. Gallick

, 339 F.2d

381 (1964); Smith v. Henger

, 148 Tex 456, 226 S.W. 2d 425, 20 ALR2d

853 (1950), et al. ), even if the judgment is based on a cause of

action that would not have survived had the party died before

judgment. Id. §61, n.27.(citing Mayor, etc., of Anniston v. Hurt

,43 § 3664(m)(ii)(B). See note 7, supra.

25 14 0 Ala 394, 37 So 220 (1903), e t al. ). “So long as the judgment

remains in force, the rule on survival has no further application,[]

even where the proceedings are stayed by appeal and supersedeas.”

Id., nn. 28 and 29 (citing authorities).

A restitution order issued under the M V RA has the effect of a

judgment “e ntered in favor of such victim in the amount specified

in the restitution order.” 43 It is undisputed that the defendant

Parsons’s death occurred after the special verdict and restitution

order were entered. Consequently, under the substantive principles

of federal and common law pert aining to abatement, survival and

revival, the judgment of restitution survived and was not abated by

the defendant’s death. Id.

4.

I respectfully concur in the result reached by the majority

opinion in not ordering the government to return sums already paid.

Because I would not overrule this Circuit’s precedents in Mmahat and

Asset but would adhere to them, I cannot joi n the majority in

reasons related to this point. As I read those Circuit precedents,

the rule of abatement does not apply to require the return of money

paid by a defendant prior to his death as forfeiture, fine or

restitution. I do not join in the exp ungement order because I am

uncertain as to whether this relief was requested or whether the

estate would be entitled to it if it had been prayed for.26

For the foregoing reasons, I respectfully dissent in part and

specially concur in part in the majority opinion.