18‐0616

USA v. Mladen

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 ‐ ‐ ‐ ‐ ‐ ‐

4 August Term, 2019

5 (Appeal Argued:  October 21, 2019

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

7 Docket No. 18‐0616

8 _________________________________________________________

9 UNITED STATES OF AMERICA,

10 Appellee,

11 ‐ v. ‐

12 DUSAN MLADEN, aka David Mladen,

13 Defendant‐Appellant.

14 _________________________________________________________

15 Before:  KEARSE, WALKER, and LIVINGSTON, Circuit Judges.

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

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

18 before Jeffrey A. Meyer, Judge, convicting him on one count of making false

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

2 mandatory $100 special assessment,seeid. § 3013(a)(2)(A).  Mladen appealed, arguing

3 only thatthere were substantive and procedural errors in connection with sentencing

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

5 has remained pending.  On February 10, 2020, Mladenʹs counsel notified this Court

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

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

8 without a decision on the merits, that Mladenʹs judgment of conviction be vacated,

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

10 indictment and order repayment to Mladenʹs estate of the $20,000 fine and $100

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

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

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

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

15 of the motion as seeks (1) vacatur of Mladenʹs conviction, (2) dismissal of the count

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

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

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

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

2 $20,000 be repaid to Mladenʹs estate.

3 Themotion is granted in part and deniedinpart;the appeal isdismissed.

4 MARC H. SILVERMAN, Assistant United States Attorney,

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

6 Attorney forthe District of Connecticut,William J. Nardini,

7 AssistantUnitedStatesAttorney, New Haven, Connecticut,

8 on the brief), for Appellee.

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

10 Appellant.

11 KEARSE, Circuit Judge:

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

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

14 guilty before Jeffrey A. Meyer, Judge, convicting him on one count of making false

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

16 60 monthsʹ imprisonment, a three‐year term of supervised release, a fine of $20,000,

17 and the mandatory $100 special assessment,seeid. § 3013(a)(2)(A).  Mladen appealed,

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

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

20 October 2019 and has remained pending.  On February 10, 2020, Mladenʹs counsel

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

2 moved for abatement of all proceedings against Mladen (ʺAbatement Motionʺ or

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

4 that Mladenʹs judgment of conviction be vacated, and that the matter be remanded

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

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

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

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

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

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

11 of the Abatement Motion as seeks (1) vacatur of Mladenʹs conviction, (2) dismissal of

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

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

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

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

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

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

4
1 I.  BACKGROUND

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

3 threatening to assault a federal judge (ʺthe Judgeʺ) before whom he was a litigant, in

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

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

6 violation of 18 U.S.C. § 1001, by falsely claiming, inter alia, that he had not telephoned

7 the Judge, had not gone to the Judgeʹs house, and had not threatened the Judge

8 (ʺCount Twoʺ).  On October 13, 2017, Mladen and the government entered into a

9 written plea agreement (ʺPlea Agreementʺ or ʺAgreementʺ), and Mladen pleaded

10 guilty to Count Two of the indictment.

11 A.  Mladenʹs Count‐Two Admissions in the Plea Agreement

12 Aspart ofthePleaAgreement,Mladen acknowledged that until late July

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

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

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

16 ʺBACK OF[F],ʺ and stating ʺJUST WARNING FOR NOWʺ (Plea Agreement at 10, ¶ 3

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

2 call to the Judgeʹs home telephone number, which was automatically forwarded to

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

4 Mladen refused to identify himself but said, inter alia, that he ʺhad visited the Judgeʹs

5 house the previous weekʺ  (id. ¶ 4), and  ʺI left a message for youʺ  (id. (internal

6 quotation marks omitted)).

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

8 Deputy Marshals and that in that interview he, inter alia, (a) denied having

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

10 (c)deniedhaving gone to the Judgeʹs house.  In thePleaAgreement,Mladen admitted

11 that each ofthesedenials was false,that ʺ[e]ach ofthese statements was material,ʺ and

12 that he willfully made these statements, knowing that they were false.  (Id. ¶¶ 5, 8.)

13 B.  Additional Information and Sentencing

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

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

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

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

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

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

3 determining the appropriate sentence.ʺ  (Id. at 8.)

4 The Agreement also stated that ʺdefendant and the Governmentreserve

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

6 in connection with sentencingʺ (id. at 11).  Mladen acknowledged his understanding

7 both that the Count Two offense‐conduct stipulation in the Agreement did ʺnot set

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

9 Courtfor purposes of sentencingʺ (id. at 3‐4), and that the government was ʺobligated

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

11 attentionʺ (id. at 4).

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

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

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

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

16 threatening that judge physically.

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

18 other than, and administratively screened from, those assigned to Mladenʹs existing

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

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

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

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

5 stated, inter alia, that he planned, post‐release, to try to find evidence of wrongdoing

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

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

8 and had been ready to drive to the Judgeʹs house, planning to wait nearby for an

9 opportunity to ʺ[s]hootʺ and ʺ[k]illʺ the Judge.

10 The government provided the full audio recording and a complete

11 transcript of Mladenʹs November 8 conversation with the informant to the defense,

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

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

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

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

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

17 transcript.

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

2 the court considered, inter alia, the statements made by Mladen in the note he left in

3 the Judgeʹs mailbox, the statements he made in his telephone conversation with the

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

5 The court concluded, in connection with Mladenʹs false statements as charged in

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

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

8 statements as threats.  The court calculated that the Guidelines‐recommended range

9 of imprisonment was 51‐to‐63 months, but was capped at 60 months, the statutory

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

11 imprisonment, to be followed by a three‐year term of supervised release, and

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

13 of the government, Count One was dismissed.

14 C.  Mladenʹs Contentions on Appeal

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

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

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

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

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

3 that the district court erred in calculating his Guidelines‐recommended range of

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

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

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

7 D.  The Present Motion

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

9 Abatement Motion‐‐without needing to substitute Mladenʹs estate for this purpose,

10 see United States v. Brooks, 872 F.3d 78, 82 & n.2 (2d Cir. 2017) (ʺBrooksʺ)‐‐to erase all

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

12 appeal, dismissal ofthe indictment, and repaymentto Mladenʹs estate ofthe paid fine

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

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

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

10
1 II.  DISCUSSION

2 A.  Abatement Principles

3 In the federal judicial system, a defendant convicted of a crime‐‐unless

4 he has entered an unconditional plea of guilty (see Part II.B. below)‐‐has the right to

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

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

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

8 requires not only the dismissal of the appeal but also the eradication of  ʺall

9 proceedings had in the prosecution from its inception.ʺ  United States v. Wright, 160

10 F.3d 905, 908 (2d Cir. 1998) (ʺWrightʺ) (internal quotation marks omitted); see, e.g.,

11 Brooks, 872 F.3d at 87; United States v. Libous, 858 F.3d 64, 66 (2d Cir. 2017) (ʺLibousʺ).

12 This doctrine

13 is principally animated by two considerations.  ʺFirst, the interests

14 of justice ordinarily requirethat a defendant notstand convicted without

15 resolution ofthe merits of an appeal.ʺ  Wright, 160 F.3d at 908 (internal

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

17 that the judgment of conviction orders incarceration or other sanctions

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

19 served.ʺ  Id.

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

21 ʺconclude[d] that finality is the paramount consideration,ʺ Brooks, 872 F.3d at 88; see,

11
1 e.g., Libous, 858 F.3d at 66‐67, reflecting ʺprocedural due process concernsʺ that the

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

3 appeal,ʺ id. at 66 (internal quotation marks omitted).

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

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

6 Brooks, 872 F.3d at 87 (quoting Libous, 858 F.3d at 66).  Nonetheless, ʺthe application

7 of the doctrine of abatement is not indivisible . . . .ʺ  Brooks, 872 F.3d at 87.  For

8 example,

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

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

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

12 defendantmay choosenotto appeal every conviction.  The doctrine

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

14 indicted or convicted . . . only as to those counts as to which the

15 conviction has not yet become final.

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

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

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

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

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

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

12
1 See id. at 81, 85, 91.  On the non‐tax counts, Brooks was convicted after a jury trial; he

2 was sentenced principally to 204 monthsʹ imprisonment, and was ordered to pay

3 restitution and a fine and to forfeit assets.  See id. at 85.  He appealed his convictions

4 on the non‐tax counts, but not those on the tax counts.  See id. at 82.

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

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

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

8 conviction.  Seeid.  We granted the motion in part, abating Brooksʹs convictions on the

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

10 abatement with respect to the tax counts:

11 Brooksʹs convictions on the counts that were decided by the

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

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

14 tax evasion counts, waived hisright to appeal asto those counts, and did

15 not appeal them, his convictions on those counts do not abate.  The case

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

17 indictment on the non‐tax counts and those related sanctions.

18 Id. at 88 (emphasis added); see also id. at 96 (ʺThe death of David Brooks abates all of

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

20 restitution.  His death does not abate the other convictions . . . .ʺ (emphasis added));

21 id. at 91 (ʺBecause the[ non‐tax] counts of conviction were resolved by a guilty plea and he

13
1 did not appeal them, those convictions became final prior to Brooksʹs death.ʺ (emphasis

2 added)).

3 The government argues that the reasoning of Brooksrequires rejection of

4 the request for vacatur of Mladenʹs conviction and repayment of the special

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

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

7 arguments on appeal.    The Mladen Motion, however, contends that Brooksʹs

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

9 that had become final and were not appealed, whereasMladen was convictedon only

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

11 present case is governed by our decision in Wright, in which we vacated the

12 defendantʹs conviction in its entirety; it states that ʺthe [Wright deceased] defendant

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

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

15 unduly expansive, and its reliance misplaced.

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

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

18 unlike the present case‐‐the government did not object to vacatur of the deceased

14
1 appellantʹs conviction.  Although it sought preservation of so much of the sentence

2 as ordered payment of restitution,  ʺthe government argue[d] that [Mr. Wrightʹs]

3 conviction and indictment should abate in their entirety . . . .ʺ  Wright, 160 F.3d at 908

4 (emphases added).

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

6 doctrine was indivisible.  We rejected the governmentʹs request for preservation of

7 Mr.Wrightʹs restitution obligation not because of any view that abatement was an all‐

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

9 restitution payments were to begin after his release from prison,  ʺwhen . . . Mr.

10 Wright will again be in a position to earn a living.ʺ  Id. at 907.  As his death meant that

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

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

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

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

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

16 itself as well as the order of restitution.ʺ  Id. at 909 (emphases added).

17 Given that the primary rationale underlying the doctrine of abatement

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

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

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

3 reasoning of Brooks as applicable to the present case, in which the merits of Mladenʹs

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

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

6 A defendantis allowed to enter a plea of guilty thatis conditional, in that

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

8 government has agreed and thedistrict court has expressly approved.  See,e.g.,United

9 States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (ʺCoffinʺ); United States v. Sykes, 697 F.2d

10 87, 89 (2d Cir. 1983) (ʺSykesʺ); United States v. Mann, 451 F.2d 346, 347 (2d Cir. 1971)

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

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

13 waived his rightto raise any nonjurisdictional issues.  See,e.g.,Coffin, 76 F.3d at 496‐97

14 (ʺunless the defendant specifically reserves the right to appealʺ with ʺthe consent of

15 the governmentʺ and ʺthe approval of the court,ʺ his ʺknowing and voluntary guilty

16 plea waives all nonjurisdictional defects in the prior proceedingsʺ); Mann, 451 F.2d

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

16
1 pleadedguilty andsoughtto argue only issues that were notjurisdictional); Sykes, 697

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

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

4 issues); United States v. Selby, 476 F.2d 965, 966‐67 (2d Cir. 1973) (stating that the court

5 of appeals lacks  ʺpowerʺ  to entertain a defendantʹs appeal on nonjurisdictional

6 grounds after his unconditional plea of guilty).

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

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

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

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

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

12 conviction.

13 To the contrary,MladenʹsPleaAgreement containedaparagraphheaded

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

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

16 ʺthe sentence imposedʺ if it exceeded certain levels and the right to ʺrais[e] a claim of

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

18 appeal or collaterally attack his conviction in any proceeding.ʺ  (Id. (emphases added).)

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

2 expressly agreed not to make such a challenge.

3 And in fact, Mladenʹs brief on appeal did not challenge the merits of his

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

5 merits of Mladenʹs conviction were not in issue before this Court; thus, our non‐

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

7 e.g., United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006) (denying defendantʹs

8 estateʹs motion for vacatur of his conviction where his brief on appeal stated that he

9 sought review only of an element of his sentence).  ʺAbating [Mladenʹs] conviction

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

11 as a result of his appeal,ʺ id.

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

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

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

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

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

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

18 convicted.

18
1 CONCLUSION

2

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

4 Motion as seeks vacatur of Mladenʹs conviction, seeks dismissal of Count Two of the

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

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

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

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

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

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

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

12 appeal is dismissed.

19