18

‐ 0616

USA v. Mladen

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

‐ ‐ ‐ ‐ ‐ ‐ 3

August Term, 2019 4

(Appeal Argued: October 21, 2019 5

Motion Submitted: February 25, 2020 Decided: May 6, 2020) 6

Docket No. 18

‐ 0616 7

_________________________________________________________ 8

UNITED STATES OF AMERICA, 9

Appellee

, 10

‐ v. ‐ 11

DUSAN MLADEN, aka David Mladen, 12

Defendant

‐ Appellant

. 13

_________________________________________________________ 14

Before: KEARSE, WALKER, and LIVINGSTON, Circuit Judges

. 15

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

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

before Jeffrey A. Meyer, Judge

, convicting him on one count of making false 18

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

mandatory $100 special assessment, see id

. § 3013(a)(2)(A). Mladen appealed, arguing 2

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

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

has remained pending. On February 10, 2020, Mladen ʹ s counsel notified this Court 5

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

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

without a decision on the merits, that Mladen ʹ s judgment of conviction be vacated, 8

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

indictment and order repayment to Mladen ʹ s estate of the $20,000 fine and $100 10

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

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

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

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

of the motion as seeks (1) vacatur of Mladen ʹ s conviction, (2) dismissal of the count 15

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

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

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

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

$20,000 be repaid to Mladen ʹ s estate. 2

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

MARC H. SILVERMAN, Assistant United States Attorney, 4

New Haven, Connecticut (John H. Durham, United States 5

Attorney for the District of Connecticut, William J. Nardini, 6

Assistant United States Attorney, New Haven, Connecticut, 7

on the brief), for Appellee

. 8

ROBERT A. CULP, Garrison, New York, for Defendant

‐ 9

Appellant

. 10

KEARSE, Circuit Judge : 11

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

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

guilty before Jeffrey A. Meyer, Judge

, convicting him on one count of making false 14

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

60 months ʹ imprisonment, a three

‐ year term of supervised release, a fine of $20,000, 16

and the mandatory $100 special assessment, see id

. § 3013(a)(2)(A). Mladen appealed, 17

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

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

October 2019 and has remained pending. On February 10, 2020, Mladen ʹ s counsel 20

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

moved for abatement of all proceedings against Mladen ( ʺ Abatement Motion ʺ or 2

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

that Mladen ʹ s judgment of conviction be vacated, and that the matter be remanded 4

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

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

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

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

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

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

of the Abatement Motion as seeks (1) vacatur of Mladen ʹ s conviction, (2) dismissal of 11

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

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

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

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

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

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

4I. BACKGROUND 1

In a two

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

threatening to assault a federal judge ( ʺ the Judge ʺ ) before whom he was a litigant, in 3

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

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

violation of 18 U.S.C. § 1001, by falsely claiming, inter alia

, that he had not telephoned 6

the Judge, had not gone to the Judge ʹ s house, and had not threatened the Judge 7

( ʺ Count Two ʺ ). On October 13, 2017, Mladen and the government entered into a 8

written plea agreement ( ʺ Plea Agreement ʺ or ʺ Agreement ʺ ), and Mladen pleaded 9

guilty to Count Two of the indictment. 10

A. Mladen ʹ s Count

‐ Two Admissions in the Plea Agreement 11

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

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

following Count

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

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

ʺ BACK OF[F], ʺ and stating ʺ JUST WARNING FOR NOW ʺ (Plea Agreement at 10, ¶ 3 16

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

call to the Judge ʹ s home telephone number, which was automatically forwarded to 2

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

Mladen refused to identify himself but said, inter alia

, that he ʺ had visited the Judge ʹ s 4

house the previous week ʺ ( id

. ¶ 4), and ʺ I left a message for you ʺ ( id

. (internal 5

quotation marks omitted)). 6

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

Deputy Marshals and that in that interview he, inter alia

, (a) denied having 8

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

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

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

that he willfully made these statements, knowing that they were false. ( Id

. ¶¶ 5, 8.) 12

B. Additional Information and Sentencing 13

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

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

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

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

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

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

determining the appropriate sentence. ʺ ( Id

. at 8.) 3

The Agreement also stated that ʺ defendant and the Government reserve 4

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

in connection with sentencing ʺ ( id

. at 11). Mladen acknowledged his understanding 6

both that the Count Two offense

‐ conduct stipulation in the Agreement did ʺ not set 7

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

Court for purposes of sentencing ʺ ( id

. at 3

‐ 4), and that the government was ʺ obligated 9

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

attention ʺ ( id

. at 4). 11

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

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

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

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

threatening that judge physically. 16

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

other than, and administratively screened from, those assigned to Mladen ʹ s existing 18

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

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

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

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

stated, inter alia

, that he planned, post

‐ release, to try to find evidence of wrongdoing 5

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

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

and had been ready to drive to the Judge ʹ s house, planning to wait nearby for an 8

opportunity to ʺ [s]hoot ʺ and ʺ [k]ill ʺ the Judge. 9

The government provided the full audio recording and a complete 10

transcript of Mladen ʹ s November 8 conversation with the informant to the defense, 11

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

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

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

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

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

transcript. 17

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

the court considered, inter alia

, the statements made by Mladen in the note he left in 2

the Judge ʹ s mailbox, the statements he made in his telephone conversation with the 3

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

The court concluded, in connection with Mladen ʹ s false statements as charged in 5

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

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

statements as threats. The court calculated that the Guidelines

‐ recommended range 8

of imprisonment was 51

‐ to

‐ 63 months, but was capped at 60 months, the statutory 9

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

imprisonment, to be followed by a three

‐ year term of supervised release, and 11

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

of the government, Count One was dismissed. 13

C. Mladen ʹ s Contentions on Appeal 14

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

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

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

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

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

that the district court erred in calculating his Guidelines

‐ recommended range of 3

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

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

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

D. The Present Motion 7

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

Abatement Motion

‐‐ without needing to substitute Mladen ʹ s estate for this purpose, 9

see United States v. Brooks

, 872 F.3d 78, 82 & n.2 (2d Cir. 2017) ( ʺ Brooks ʺ )

‐‐ to erase all 10

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

appeal, dismissal of the indictment, and repayment to Mladen ʹ s estate of the paid fine 12

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

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

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

10II. DISCUSSION 1

A. Abatement Principles 2

In the federal judicial system, a defendant convicted of a crime

‐‐ unless 3

he has entered an unconditional plea of guilty ( see Part II.B. below)

‐‐ has the right to 4

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

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

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

requires not only the dismissal of the appeal but also the eradication of ʺ all 8

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

, 160 9

F.3d 905, 908 (2d Cir. 1998) ( ʺ Wright ʺ ) (internal quotation marks omitted); see

, e.g.

, 10

Brooks

, 872 F.3d at 87; United States v. Libous

, 858 F.3d 64, 66 (2d Cir. 2017) ( ʺ Libous ʺ ). 11

This doctrine 12

is principally animated by two considerations. ʺ First, the interests 13

of justice ordinarily require that a defendant not stand convicted without 14

resolution of the merits of an appeal

. ʺ Wright

, 160 F.3d at 908 (internal 15

quotation marks and alterations omitted). ʺ Second, to the extent 16

that the judgment of conviction orders incarceration or other sanctions 17

that are designed to punish the defendant, that purpose can no longer be 18

served

. ʺ Id

. 19

Libous

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

ʺ conclude[d] that finality is the paramount consideration, ʺ Brooks

, 872 F.3d at 88; see

, 21

11e.g.

, Libous

, 858 F.3d at 66

‐ 67, reflecting ʺ procedural due process concerns ʺ that the 1

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

appeal, ʺ id

. at 66 (internal quotation marks omitted). 3

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

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

Brooks

, 872 F.3d at 87 (quoting Libous

, 858 F.3d at 66). Nonetheless, ʺ the application 6

of the doctrine of abatement is not indivisible

. . . . ʺ Brooks

, 872 F.3d at 87. For 7

example, 8

many defendants

. . . are charged with multiple counts and may be 9

convicted by a jury on some counts and by a plea of guilty on others

. 10

Those convictions may become final at different times, and a 11

defendant may choose not to appeal every conviction. The doctrine 12

of abatement leaves the deceased defendant as if he had never been 13

indicted or convicted

. . . only as to those counts as to which the 14

conviction has not yet become final

. 15

Id

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

In Brooks

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

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

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

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

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

12See id

. at 81, 85, 91. On the non

‐ tax counts, Brooks was convicted after a jury trial; he 1

was sentenced principally to 204 months ʹ imprisonment, and was ordered to pay 2

restitution and a fine and to forfeit assets. See id

. at 85. He appealed his convictions 3

on the non

‐ tax counts, but not those on the tax counts. See id

. at 82. 4

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

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

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

conviction. See id

. We granted the motion in part, abating Brooks ʹ s convictions on the 8

non

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

abatement with respect to the tax counts: 10

Brooks ʹ s convictions on the counts that were decided by the 11

jury and the associated forfeiture order, fine, and special 12

assessment are abated upon his death. As Brooks pled guilty to the 13

tax evasion counts, waived his right to appeal as to those counts, and did 14

not appeal them, his convictions on those counts do not abate

. The case 15

shall be remanded to the district court for dismissal of the 16

indictment on the non

‐ tax counts and those related sanctions. 17

Id

. at 88 (emphasis added); see also id

. at 96 ( ʺ The death of David Brooks abates all of 18

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

restitution

. His death does not abate the other convictions

. . . . ʺ (emphasis added)); 20

id

. at 91 ( ʺ Because the[ non

‐ tax] counts of conviction were resolved by a guilty plea and he 21

13did not appeal them, those convictions became final prior to Brooks ʹ s death

. ʺ (emphasis 1

added)). 2

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

the request for vacatur of Mladen ʹ s conviction and repayment of the special 4

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

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

arguments on appeal. The Mladen Motion, however, contends that Brooks ʹ s 7

abatement

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

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

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

present case is governed by our decision in Wright

, in which we vacated the 11

defendant ʹ s conviction in its entirety; it states that ʺ the [ Wright deceased] defendant 12

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

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

unduly expansive, and its reliance misplaced. 15

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

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

‐‐ 17

unlike the present case

‐‐ the government did not object to vacatur of the deceased 18

14appellant ʹ s conviction. Although it sought preservation of so much of the sentence 1

as ordered payment of restitution, ʺ the government argue[d] that [Mr. Wright ʹ s] 2

conviction and indictment should abate in their entirety

. . . . ʺ Wright

, 160 F.3d at 908 3

(emphases added). 4

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

doctrine was indivisible. We rejected the government ʹ s request for preservation of 6

Mr. Wright ʹ s restitution obligation not because of any view that abatement was an all

‐ 7

or

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

restitution payments were to begin after his release from prison, ʺ when

. . . Mr. 9

Wright will again be in a position to earn a living. ʺ Id

. at 907. As his death meant that 10

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

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

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

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

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

itself as well as the order of restitution. ʺ Id

. at 909 (emphases added). 16

Given that the primary rationale underlying the doctrine of abatement 17

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

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

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

reasoning of Brooks as applicable to the present case, in which the merits of Mladen ʹ s 3

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

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

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

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

government has agreed and the district court has expressly approved. See

, e.g.

, United 8

States v. Coffin

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

, 697 F.2d 9

87, 89 (2d Cir. 1983) ( ʺ Sykes ʺ ); United States v. Mann

, 451 F.2d 346, 347 (2d Cir. 1971) 10

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

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

waived his right to raise any nonjurisdictional issues. See

, e.g.

, Coffin

, 76 F.3d at 496

‐ 97 13

( ʺ unless the defendant specifically reserves the right to appeal ʺ with ʺ the consent of 14

the government ʺ and ʺ the approval of the court, ʺ his ʺ knowing and voluntary guilty 15

plea waives all nonjurisdictional defects in the prior proceedings ʺ ); Mann

, 451 F.2d 16

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

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

, 697 1

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

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

issues); United States v. Selby

, 476 F.2d 965, 966

‐ 67 (2d Cir. 1973) (stating that the court 4

of appeals lacks ʺ power ʺ to entertain a defendant ʹ s appeal on nonjurisdictional 5

grounds after his unconditional plea of guilty). 6

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

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

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

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

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

conviction. 12

To the contrary, Mladen ʹ s Plea Agreement contained a paragraph headed 13

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

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

ʺ the sentence imposed ʺ if it exceeded certain levels and the right to ʺ rais[e] a claim of 16

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

appeal or collaterally attack his conviction in any proceeding

. ʺ ( Id

. (emphases added).) 18

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

expressly agreed not to make such a challenge. 2

And in fact, Mladen ʹ s brief on appeal did not challenge the merits of his 3

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

merits of Mladen ʹ s conviction were not in issue before this Court; thus, our non

‐ 5

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

, 6

e.g.

, United States v. DeMichael

, 461 F.3d 414, 417 (3d Cir. 2006) (denying defendant ʹ s 7

estate ʹ s motion for vacatur of his conviction where his brief on appeal stated that he 8

sought review only of an element of his sentence). ʺ Abating [Mladen ʹ s] conviction 9

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

as a result of his appeal, ʺ id

. 11

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

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

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

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

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

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

convicted. 18

18CONCLUSION 1

2

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

Motion as seeks vacatur of Mladen ʹ s conviction, seeks dismissal of Count Two of the 4

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

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

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

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

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

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

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

appeal is dismissed. 12

19