15

‐ 3979

United States v. Libous

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_____________ ____________

August Term, 2016

(Submitted: November 22, 2016 Decided: May 30, 2017)

Docket No. 15

‐ 3979

_____________ ____________

U NITED S TATES OF A MERICA

,

Appellee

,

‐‐ v. ‐‐

F RANCES M. L IBOUS

, Executrix of the Estate of Thomas W. Libous,

Defendant

‐ Appellant

,

T HOMAS W. L IBOUS

,

Defendant

. *

_____________ ____________

* The official caption has been amended to conform to the caption above.2 Before:

K ATZMANN

, Chief Judge

, W INTER

, Circuit Judge

, and S TEIN ,** District Judge

.

_____________ ____________

In 2015, a federal jury convicted former New York State Senator Thomas

W. Libous of making false statements to the FBI in violation of 18 U.S.C. § 1001.

Libous died while his appeal before this Court was pending. Pursuant to the

doctrine of abatement ab initio

, Frances M. Libous, executrix of the estate of

Thomas W. Libous, moves to withdraw the appeal, to vacate the underlying

judgment of conviction, and for remand to the district court for dismissal of the

indictment and return of the fine and special assessment paid by Libous in

satisfaction of his criminal sentence. The government consents to the abatement

of Libous’s conviction but opposes the return of the fine and special assessment.

Because the government has no right to retain fines imposed pursuant to a

conviction that is subsequently vacated, we GRANT the motion in its entirety.

____________ _____________

Benjamin Allee, Assistant United States Attorney, for Joon H. Kim, Acting

United States Attorney for the Southern District of New York, New York,

NY

.

Paul DerOhannesian II, DerOhannesian & DerOhannesian, Albany, NY, for

Defendant

‐ Appellant.

_____________ ____________

K ATZMANN

, Chief Judge :

Under the well

‐ established doctrine of abatement ab initio

, when a

convicted defendant dies pending an appeal as of right, his conviction abates, the

underlying indictment is dismissed, and his estate is relieved of any obligation to

** Judge Sidney H. Stein, of the United States District Court for the Southern District of

New York, sitting by designation.3 pay a criminal fine imposed at sentence. In this case, we are asked to decide

whether, under the doctrine of abatement, a defendant’s estate is also entitled to

the return of a criminal fine that the defendant paid before his death. We hold

that it is.

B ACKGROUND

On July 22, 2015, a federal jury convicted former New York State Senator

Thomas W. Libous of making false statements to the FBI in violation of 18 U.S.C.

§ 1001. At sentencing, the district court (Briccetti, J. ) imposed a two

‐ year term of

probation on Libous—who doctors determined had less than a year to live—

along with a $50,000 fine and the mandatory $100 special assessment. The district

court denied Libous’s request to stay the sentence pending appeal, and Libous

paid the fine and special assessment. In May 2016, after filing a notice of appeal

but before filing an appellate brief, Libous succumbed to prostate cancer. Frances

M. Libous, acting in her capacity as the executrix of Libous’s estate, now moves

to withdraw the appeal. 1 Invoking the common law doctrine of abatement ab

initio

, she further asks that we vacate the judgment of conviction, remand to the

1 Pursuant to Federal Rule of Appellate Procedure 43(a)(1), we grant the request to

substitute Frances M. Libous for Thomas W. Libous as the party to this appeal.4 district court for the dismissal of the indictment, and order the return of the

$50,000 fine and $100 special assessment.

D ISCUSSION

In the federal courts, “when a convicted defendant dies while his direct

appeal as of right is pending, his death abates not only the appeal but also all

proceedings had in the prosecution from its inception.” United States v. Wright

,

160 F.3d 905, 908 (2d Cir. 1998) (internal quotation marks omitted); United States

v. Christopher

, 273 F.3d 294, 297 (3d Cir. 2001) (“[T]he rule followed almost

unanimously by the [federal] Courts of Appeals is that a conviction abates on the

death of the accused before his appeal has been decided.”). To effectuate this

common law rule, “we normally vacate the judgment and remand to the district

court with instructions to dismiss the indictment.” Krantz v. United States

, 224

F.3d 125, 126 (2d Cir. 2000) (per curiam) (internal quotation mark omitted). In

other words, the criminal proceedings abate ab initio : “[T]he appeal does not just

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

with the case is extinguished, leaving the defendant as if he had never been

indicted or convicted.” United States v. Estate of Parsons

, 367 F.3d 409, 413 (5th Cir.

2004) (en banc) (internal quotation marks omitted); see also United States v. Logal

,5 106 F.3d 1547, 1552 (11th Cir. 1997) (“Under the doctrine of abatement ab initio

. . .

the defendant stands as if he never had been indicted or convicted.” (internal

quotation marks omitted)).

The somewhat obscure doctrine of abatement is principally animated by

two considerations. “First, the interests of justice ordinarily require that a

defendant not stand convicted without resolution of the merits of an appeal.”

Wright

, 160 F.3d at 908 (internal quotation marks and alterations omitted).

“Second, to the extent that the judgment of conviction orders incarceration or

other sanctions that are designed to punish the defendant, that purpose can no

longer be served.” Id. The first rationale—what we will call the “finality

rationale”—is “grounded in procedural due process concerns” and more readily

supports the far

‐ reaching consequences of abatement ab initio

. United States v.

DeMichael

, 461 F.3d 414, 416 (3d Cir. 2006); see also Estate of Parsons

, 367 F.3d at

415 (recognizing the finality rationale as “the primary reason behind abatement”

because it “provides a better explanation why all prior proceedings disappear”).

In particular, the finality rationale reflects the notion “that the state should not

label one as guilty until he has exhausted his opportunity to appeal.” United

States v. Volpendesto

, 755 F.3d 448, 453 (7th Cir. 2014) (internal quotation marks6 omitted); see also Logal

, 106 F.3d at 1552 (“[A] fundamental principle of our

jurisprudence from which the abatement principle is derived is that a criminal

conviction is not final until resolution of the defendant’s appeal as a matter of

right.”); United States v. Pauline

, 625 F.2d 684, 685 (5th Cir. 1980) (“[W]hen

. . .

death has deprived the accused of his right to our decision, the interests of justice

ordinarily require that he not stand convicted without resolution of the merits of

his appeal, which is an integral part of our system for finally adjudicating his

guilt or innocence.” (internal quotation marks and alterations omitted)).

The government consents to the vacatur of Libous’s conviction, which it

recognizes our precedents demand. And the government does not oppose the

dismissal of the indictment or dispute that an unpaid fine would abate along with

the conviction. See, e.g.

, Christopher

, 273 F.3d at 297 (“Criminal forfeitures and

fines are subject to abatement.”). Nevertheless, the government opposes the

estate’s request for the return of the $50,000 fine imposed on Libous at

sentencing, arguing that the policies underlying abatement do not support the

abatement of a paid fine.

We disagree. Since Libous “stands as if he never had been indicted or

convicted,” Logal

, 106 F.3d at 1552, “at least in the eyes of the criminal court

. . .7 [he] is no longer a wrongdoer,” Estate of Parsons

, 367 F.3d at 416. There is no legal

basis on which the state can retain a fine exacted from Libous as punishment for

an offense he is now presumed not to have committed. Cf. Volpendesto

, 755 F.3d

at 454 (abating criminal restitution order where defendant died pending appeal

because “[w]ithout a final criminal conviction, there can be no order of

restitution under 18 U.S.C. § 3556”). Once Libous’s conviction is vacated, the

state is as much entitled to retain the fine as if Libous had been acquitted. 2 And

in our system of criminal justice, the state is not permitted to charge the accused

for the privilege of having been prosecuted.

Our conclusion is reinforced by the Supreme Court’s recent decision in

Nelson v. Colorado

, 137 S. Ct. 1249 (2017). In Nelson

, the Supreme Court held that

“[w]hen a criminal conviction is invalidated by a reviewing court and no retrial

will occur,” the state is required under the Fourteenth Amendment’s due process

guarantee “to refund fees, court costs, and restitution exacted from the defendant

upon, and as a consequence of, the conviction.” Id. at 1252. Once a defendant’s

conviction is “erased, the presumption of [his] innocence [is] restored,” id. at

1255, and the state “has no interest in withholding from [a defendant] money to

2 We express no view on how abatement operates, if at all, in the event the defendant

commits suicide pending an appeal as of right.8 which the [s]tate currently has zero claim of right,” id. at 1257. At bottom, the

state “may not presume a person, adjudged guilty of no crime, nonetheless guilty

enough for monetary exactions.” Id. at 1256.

To be sure, Nelson was contemplating convictions that were reversed or

vacated due to some identified infirmity in the underlying proceedings, rather

than convictions that were abated as a result of the appellant’s death. One could

argue that Libous’s conviction was not “invalidated” within the meaning of

Nelson

. 3 Nevertheless, at a minimum, the logic of Nelson strongly supports

abating the fine.

The government argues that the fine should not abate because the punitive

purpose of the fine was served when Libous paid it before he died. As a result,

the government submits, the second rationale for abatement—that there is no

point in punishing the deceased—is not applicable. That’s true enough. But this

observation does nothing to explain why the first rationale for abatement—the

finality rationale—does not apply with equal force in the case of paid fines as it

does in the case of unpaid fines. Taking the government’s position to its logical

3 On the other hand, the Nelson Court made a point of not parsing the reasons that a

conviction was reversed or vacated. See Nelson

, 137 S. Ct. at 1256 n.10 (noting that

“reversal is reversal, regardless of the reason, and an invalid conviction is no conviction

at all” (internal quotation marks omitted)).9 conclusion, why abate the conviction of the deceased defendant at all? The

conviction, after all, served its purpose, acting to condemn the defendant during

his lifetime. That is not the law, however, because abatement ab initio is premised

at least as much, if not more, on the fairness of allowing a conviction and

penalties to stand when a defendant dies pending an appeal as of right as it is on

the futility of punishing the deceased. See Estate of Parsons

, 367 F.3d at 413–15

(adopting finality rationale as “primary justification” for abatement). Moreover,

if we were to adopt the government’s approach, we would be privileging

defendants who had not paid their criminal fines at the time of death over those

who had.

The government suggests that abating the fine would be tantamount to

determining that Libous’s punishment was illegitimate. Not so. Abating the fine

does not reflect a determination that Libous was wrongfully punished, just as

abating his conviction does not reflect a determination that the conviction was

wrongfully obtained. See id. at 416 (“Despite what may have been proven at trial,

the trial is deemed not to have taken place.”). Instead, it reflects a recognition

that there is no longer a valid conviction to support the government’s retention

of the fine. Cf. Nelson

, 137 S. Ct. at 1252, 1257.10 Finally, the government argues that a paid fine is analogous to time served

and is therefore not refundable, relying on a Seventh Circuit decision that

adopted that reasoning. See United States v. Zizzo

, 120 F.3d 1338, 1346–47 (7th Cir.

1997) (“The fine and assessments served to deprive [the defendant]

. . . of some of

his resources during his lifetime. They are analogous to time served and are not

refundable.”). We find the analogy inapt. That time served cannot be abated is a

principle of nature, not of law. A paid fine, by contrast, can easily be returned to

the defendant’s estate. See United States v. Sheehan

, 874 F. Supp. 31, 34 (D. Mass.

1994) (ordering the government to return fine to the estate of a defendant who

died pending appeal because while “[t]ime served pursuant to a judgment later

voided cannot be recovered[,]

. . . this unhappy circumstance does not mean that

the defendant (or his estate) should also be deprived of fine monies taken by a

judgment determined to be without any legal force”); c f. Nelson

, 137 S. Ct. at 1257

(rejecting state’s argument that because defendants are not automatically entitled

to compensation for time spent wrongfully incarcerated, the state need not

return sums exacted pursuant to a subsequently invalidated conviction).

The government also points to United States v. Schumann

, 861 F.2d 1234

(11th Cir. 1988), which held that a fine paid by the defendant before his death did11 not abate because “the penalty operated as a punishment to [the defendant]

rather than to his estate.” Id. at 1236. Critically, neither Zizzo nor Schumann

acknowledged the finality rationale for abatement—and, for the reasons

explained above, we find that their holdings cannot be reconciled with that

rationale. See Sheehan

, 874 F. Supp. at 33–34 (“By emphasizing the various penal

dimensions to sentences partially executed before they are abated, the cases

[indicating that paid fines do not abate] lose sight of the fundamental character

of the issue: the ultimate judicial determination to render null and void the

underlying judgment.”). They were also decided before the Supreme Court’s

decision in Nelson v. Colorado

, as were cases in which courts noted in passing that

paid fines are not subject to abatement. See, e.g.

, United States v. Rich

, 603 F.3d

722, 724 n.3 (9th Cir. 2010) (“[F]ines already paid need not be refunded because

they are the equivalent of time

‐ served.”); Estate of Parsons

, 367 F.3d at 413 & n.6

(citing Zizzo and Schumann ).

We recognize that the consequences of abatement can be unsettling. In

certain cases, they can surely be devastating to those affected by the defendant’s

conduct. The inclination to allow some component of the deceased defendant’s

punishment to stand is therefore an understandable one. But “the sources of such12 satisfactions are not found in a reasoned evaluation of the relevant juridical

concepts.” Sheehan

, 874 F. Supp. at 35; cf. Volpendesto

, 755 F.3d at 454–55 (Sykes, J.,

concurring) (expressing skepticism of abatement ab initio as a policy matter while

agreeing that, as long as the doctrine remains the law, restitution orders imposed

pursuant to abated convictions must also abate). If Libous’s conviction is to be

vacated and his indictment dismissed, as our precedents require, then his estate

is entitled to the return of the fine.

Abatement ab initio is a common law doctrine: If Congress deems it an

undesirable one, it can act accordingly.

C ONCLUSION

For the foregoing reasons, the appellant’s motion is GRANTED, Libous’s

judgment of conviction is VACATED, and the case is REMANDED for the

dismissal of the indictment and the return of the fine and special assessment

imposed on Libous pursuant to his now

‐ vacated conviction.