United States v. Parsons

United States Court of Appeals

Fifth Circuit

F I L E D

April 16, 2004

In the Charles R. Fulbruge III

Clerk

United States Court of Appeals

for the Fifth Circuit

_______________

m 01-50464

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ANDREW CLYDE PARSONS, ESTATE OF,

AS REPRESENTED BY ITS INDEPENDENT EXECUTOR, PATRICK D. MILLAR,

Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

m W-99-CR-63-1

_________________________

Before KING, Chief Judge, JOLLY, Parsons to seventy-eight months’ imprison-

HIGGINBOTHAM, DAVIS, JONES, SMITH, ment, a fine of $75,000, a special assessment

WIENER, BARKSDALE, EMILIO M. GARZA, of $1,000, restitution of $1,317,834.57 to the

DEMOSS, BENAVIDES, STEWART, defrauded insurance companies, and three

DENNIS, CLEMENT, and PRADO, years’ supervised release.2

Circuit Judges.*

Parsons then informed the government that

JERRY E. SMITH, Circuit Judge: he wished to sell the three tracts. The govern-

ment approved the sale of those tracts for

This case requires us to apply the doctrine $1,900,000 under a contract that would pro-

of abatement ab initio to restitution and forfei- vide cash at closing of $1,000,000. That sale

ture orders where a criminal defendant dies was completed, and a check for $970,826.90

while his appeal is pending. Concluding that, was given to the United States in return for a

under the specific facts of this case, all conse- release of liens.

quences of the untested criminal conviction

should abate, we DISMISS the appeal and The sale in question was completed pursu-

REMAND with direction to VACATE the ant to an agreement between Parsons and the

judgment of conviction and sentence, including United States. The government filed a motion

the order of restitution, and to dismiss the describing the agreement. The motion states,

indictment. We do not, however, direct the in relevant part:

government to return monies paid as part of

this particular Preliminary Judgment of Forfei- [B]ecause Defendant Parsons had no other

ture. apparent financial means with which to fully

pay the Money Judgment in the amount of

I. $970,826.90, the United States of America

After a second trial following a vacated did not object to the . . . sale of [the three

conviction, a jury found Andrew Parsons guil- tracts], provided that a [government agent]

ty of two counts of arson, four counts of mail be present at the real estate closing to

fraud, and four counts of money laundering. receive a cashiers check . . . .

Parsons allegedly set fire to his property and

wrongfully received insurance proceeds to ...

compensate for the loss. In addition to a ver-

dict of guilty, the jury returned a special forfei-

ture verdict.1 The district court sentenced

1

(...continued)

dictment, to construct a certain building and that he

had unlawfully derived $970,826.90 from the

*

Judge Pickering was appointed to the court offenses in counts 1-10.

after this case was submitted, and he elected not to

2

participate in the decision. Although both parties state that the court is-

sued forfeiture orders originating from the jury’s

1

Specifically, the jury found that Parsons had special forfeiture verdict, the order of judgment

used $346,260 of the unlawfully-derived insurance only lists the imprisonment, fine, and restitution or-

proceeds, as set forth in counts 1-5 of the in- ders. Presumably, the restitution order incorpor-

(continued...) ated the amounts listed in note 1, supra.

2

Further, inasmuch as this case remains on orders were not automatically abated by Par-

appeal at this time, the United States of sons’s death, the conviction should be reversed

America agrees that in the event Defendant on grounds of violation of the Speedy Trial

Parsons prevails in the final determination Act and inadequate nexus to interstate com-

of this appeal, and no final judgment of for- merce.

feiture is entered in this case, that the [gov-

ernment] should return to Defendant Par- A panel of this court upheld the restitution

sons the entire amount of $970,826.90, order and Preliminary Judgment of Forfeiture

plus interest . . . . and rejected Parsons’s other merits issues

raised on appeal. United States v. Estate of

After the sale, the district court entered a Parsons, 314 F.3d 745, 750 (5th Cir. 2002),

Preliminary Judgment of Forfeiture of $970,- vacated for reh’g en banc, 333 F.3d 549 (5th

826.90, pursuant to FED. R. CRIM. P. 32.2(b).3 Cir. 2003). Recognizing that it was bound by

The order states, in relevant part: United States v. Asset, 990 F.2d 208 (5th Cir.

1993), and United States v. Mmahat, 106 F.3d

ORDERED that inasmuch as this case re- 89 (5th Cir. 1997), the panel concluded that

mains on appeal at this time, in the event “because the restitution order here is unques-

Defendant Parsons prevails in the final de- tionably compensatory in nature, it survives

termination of this appeal, and no Final Parsons’s death.” Parsons, 314 F.3d at 750.4

Judgment of Forfeiture is entered in this

case, the [government] shall return to De- II.

fendant Parsons . . . the entire amount of Asset, Mmahat, and Parsons describe the

$970,826.90, plus interest . . . . current state of our abatement jurisprudence.

“It is well established in this circuit that the

While this appeal was pending, Parsons death of a criminal defendant pending an ap-

died. This court allowed his estate to substi- peal of his or her case abates, ab initio, the en-

tute itself for him as appellant, and the estate tire criminal proceeding.” Asset, 990 F.2d at

submitted a new appellate brief, arguing that 210.5 That is, the appeal does not just disap

Parsons’s death abated the conviction, restitu-

tion order, and forfeiture orders. The estate

4

also protected its interests by arguing, in the The panel nonetheless questioned the cor-

alternative, that if the restitution and forfeiture rectness 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

3

At the sentencing hearing, the court indicated become a hypothetical case.” Id. at 748.

that the $1.317 million restitution order represented

5

the full amount Parsons owed to his victims and See also Mmahat, 106 F.3d at 93 (“Normally,

that any sums recovered via forfeiture would apply the death of a criminal defendant during the pen-

against that total amount. Because Parsons did not dency of his appeal abates the entire proceeding ab

tender any other monies to the government, and initio.”); United States v. Schuster, 778 F.2d 1132,

because the district court did not enter any other 1133 (5th Cir. 1985) (“Under the firmly estab-

temporary orders, no other portion of the restitution lished rule in this circuit, the death of a defendant

order is encompassed by the Temporary Judgment pending conclusion of the direct criminal appeal

of Forfeiture. (continued...)

3

pear, and the case is not merely dismissed. In- few courts have plainly articulated the ration-

stead, everything associated with the case is ale behind the doctrine. Two primary ap-

extinguished, leaving the defendant “as if he proaches support abatement ab initio. The fi-

had never been indicted or convicted.” Par- nality principle reasons that the state should

sons, 314 F.3d at 749 (quoting United States not label one as guilty until he has exhausted

v. Schumann, 861 F.2d 1234, 1237 (11th Cir. his opportunity to appeal. The punishment

1988)). principle asserts that the state should not pun-

ish a dead person or his estate. Although the

With respect to restitution, we have looked finality principle best explains why criminal

to the purpose of the order to determine proceedings abate at death, finality does not

whether it abates with the conviction. “When justify the distinction between compensatory

restitution is ordered simply to punish the de- and penal restitution orders.

fendant, it is penal and abates with the rest of

his conviction. When it is designed to make Under the finality rationale, we have de-

his victims whole, however, it is compensatory scribed the entitlement to one appeal as fol-

and survives his death.” Mmahat, 106 F.3d at lows:

93. Additionally, abatement does not entitle a

defendant to monies paid before death as part [W]hen an appeal has been taken from a

of a fine or restitution order.6 criminal conviction to the court of appeals

and death has deprived the accused of his

III. right to our decision, the interests of justice

Despite the common acknowledgment that ordinarily require that he not stand con-

abatement ab initio is a well-established and victed without resolution of the merits of

oft-followed principle in the federal courts,7 his appeal, which is an “integral part of

[our] system for finally adjudicating [his]

guilt or innocence.”

5

(...continued)

abates, ab initio, not only the appeal, but the entire United States v. Pauline, 625 F.2d 684, 685

criminal proceeding.”).

6 7

See, e.g., United States v. Zizzo, 120 F.3d (...continued)

1338, 1347 (7th Cir. 1997) (regarding fines and Cir. 1998) (quoting Durham, 401 U.S. at 481);

forfeitures); Asset, 990 F.2d at 214 (regarding United States v. Logal, 106 F.3d 1547, 1551 (11th

restitution); Schumann, 861 F.2d at 1236. Cir. 1997) (“This circuit has adopted the general

rule that the death of a defendant during the pen-

7

In applying Durham v. United States, 401 dency of his direct appeal renders his conviction

U.S. 481, 483 (1971) (per curiam) (stating that and sentence void ab initio; i.e., it is as if the de-

“death pending direct review of a criminal con- fendant had never been indicted and convicted.”);

viction abates not only the appeal but also all pro- United States v. Davis, 953 F.2d 1482, 1486 (10th

ceedings had in the prosecution from its incep- Cir. 1992) (quoting Durham, 401 U.S. at 483);

tion”), overruled on other grounds, Dove v. Unit- United States v. Wilcox, 783 F.2d 44 (6th Cir.

ed States, 423 U.S. 325 (1976), other circuits fol- 1986); United States v. Oberlin, 718 F.2d 894 (9th

low the doctrine of abatement ab initio. See, e.g., Cir. 1983); United States v. Pauline, 625 F.2d 684

United States v. Wright, 160 F.3d 905, 908 (2d (5th Cir. 1980); United States v. Moehlenkamp,

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

4

(5th Cir. 1980) (emphasis added, brackets in cation.11

original) (quoting Griffin v. Illinois, 351 U.S.

12, 18 (1956)).8 The defendant’s attack on his Given that the doctrine of abatement ab

conviction tests previously unforeseen weak- initio is largely court-created and a creature of

nesses in the state’s case or outright errors at the common law, the applications of abatement

trial.9 Under this rationale, neither the state are more amenable to policy and equitable

nor affected parties should enjoy the fruits of arguments. Neither of the previously-articu-

an untested conviction. lated rationales fully explains our current

approach to abatement, restitution orders, and

The second rationale focuses on the precept fines paid before death. As we will explain,

that the criminal justice system exists primarily we adopt the finality rationale and adjust our

to punish and cannot effectively punish one restitution jurisprudence accordingly.

who has died. “[T]he purposes of criminal

proceedings are primarily penalSSthe indict- The punishment rationale supports our cur-

ment, conviction and sentence are charges rent distinction between penal and compensa-

against and punishment of the defen- tory restitution orders12 and justifies the line,

dantSSsuch that the death of the defendant with respect to fines, drawn at the time of

eliminates that purpose.”10 The government death.13 Punishment does not, however, ade-

and other circuits have mentioned this justifi- quately explain the other aspect of our abate-

ment jurisprudenceSSthe elimination of the

criminal proceedings against that person. Pre-

sumably, under the punishment rationale,

courts could retain the record of conviction

8

and block proceedings that would punish the

Accord United States v. Moehlenkamp, 557

estate.14

F.2d 126, 128 (7th Cir. 1977); see also Rosanna

Cavallaro, Better Off Dead: Abatement, Inno-

cence, and the Evolving Right of Appeal, 73 U.

COLO. L. REV. 943, 954 (2002) (“The abatement 11

See, e.g., United States v. Dudley, 739 F.2d

remedy relies significantly on a larger premise: a 175, 176 n.2 (4th Cir. 1984) (“A decedent can

conviction that cannot be tested by appellate review hardly serve a prison sentence.”). In its brief, the

is both unreliable and illegitimate; the con- government makes a similar point: “Put another

stitutionally guaranteed trial right must include way, the doctrine of abatement is applied because

some form of appellate review.”). it serves no purpose to punish a person who is

dead.”

9

In Douglas v. California, 372 U.S. 353

(1963), and Evitts v. Lucey, 369 U.S. 387, 392 12

Mmahat, 106 F.3d at 93 (“When restitution

(1985), the Court “require[d] the appointment of is ordered simply to punish the defendant, it is

effective counsel for a criminal appellant pursuing penal and abates with the rest of his conviction.”).

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

13

F.3d 273, 283 (5th Cir. 2000). Following death, the state retains already-

paid fines but does not require payment of out-

10

Asset, 990 F.2d at 211; see also Mmahat, standing unpaid fines.

106 F.3d at 93 (stating that “the abatement prin-

14

ciple is premised on the fact that criminal pro- The courts could use the punishment rationale

ceedings are penal”). (continued...)

5

The finality principle provides a better ex- IV.

planation why all prior proceedings disappear. Although the government may argue that

A defendant’s death during appeal forces a this approach harms the interests of those al-

court to decide between disregarding a finding legedly injured, such an argument cannot out-

of guilt and entering an unreviewed judgment. weigh the finality rationale. “[T]he goal of the

Presumptions of innocence and a desire to en- [compensatory restitution] payment is . . . to

sure guilt naturally point to extinguishing all restore the victim’s losses.” Asset, 990 F.2d at

criminal proceedings. 214. If the restitution order abates with the

death of the defendant, those “victims” will not

The primary justification for the abatement be made whole, or at least not by way of direct

doctrine arguably is that it prevents a wrongly- restitution from the defendant or his estate.16

accused defendant from standing convicted.

The Supreme Court and other circuits have

recognized this justification for abatement. 15

(...continued)

We now adopt it as the primary reason behind mentSSthe finality rationaleSSdoes not support a

abatement and, by so doing, we reject Asset’s distinction between compensatory and punitive

and Mmahat’s descriptions of the punishment awards. Instead, it mandates that all vestiges of the

justification. criminal proceeding should disappear.

Accordingly, regardless of its purpose, the In contrast, the dissent skips the primary ques-

order of restitution cannot stand in the wake of tion of how abatement and restitution interact and

Parsons’s death. Because he now is deemed assumes the continued existence of the compen-

never to have been convicted or even charged, satory-penal dichotomy. The dissent’s citations to

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

the order of restitution abates ab initio.15

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

14

(...continued) described as either compensatory or penal. Neither

to prevent use of the conviction in civil court and to considers the overall purpose behind abatement ab

retain the decedent’s good name. The former initio and how such a purpose would affect all

application could be accomplished without elim- restitution orders. The traditional dichotomy

inating the conviction altogether, and the latter use cannot remain, however, if we are to craft a

does not seem significant enough to warrant consistent regime that incorporates statutory ele-

extinguishing all prior proceedings. mentsSSsuch as the Victim and Witness Protection

ActSS and two forms of equitable doctrine.

15

The dissent argues that restitution orders are

16

“expressly compensatory, non-punitive, and equiv- The government argues, at length, that the in-

alent to a civil judgment against a criminal stant restitution order was intended to make whole

defendant” and criticizes our approach as “treating the victims of Parsons’s fraud: “Unlike a fine,

the restitution order as abatable and therefore im- restitution does not deprive the estate of money the

pliedly punitive.” This response overlooks the ap- defendant may have rightfully acquired; instead it

proach we have taken in deciding this case. Our removes tainted money that defendant unlawfully

aim is to craft a coherent and consistent means of obtained . . . .” Examples of such uncompensated

applying abatement ab initio to restitution orders. victims undoubtedly exist. In United States v.

As we have shown, the best explanation for abate- Logal, 106 F.3d 1547 (11th Cir. 1997), the court

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

6

The government’s position may have val- defendant.17

idity under the punishment rationale, but it has

little force if the concern is finality and the V.

right of the defendant to contest his appeal at The aforementioned justifications for alter-

least once. Any references to the wrongful na- ing our abatement doctrine rely on equitable

ture of the defendant and his actions are con- rationales. Perhaps more importantly, as the

ditioned on an appellate court’s upholding the estate argues, our current willingness to let

conviction, assuming the defendant pursues an compensatory restitution orders survive the

appeal. The defendant’s death during the pen- death of the defendant runs contrary to the

dency of appeal pushes a court to nullify all text of the Victim and Witness Protection Act

prior proceedings. Despite what may have (“VWPA”), 18 U.S.C. § 3663(a)(1)(A).

been proven at trial, the trial is deemed not to

have taken place. Thus, at least in the eyes of The VWPA allows a court to enter a resti-

the criminal court, the defendant is no longer tution order when “sentencing a defendant

a wrongdoer and has not defrauded or dam- convicted of an offense.” 18 U.S.C. § 3663-

aged anyone. (a)(1)(A) (emphasis added). If death termi-

nates the criminal case ab initio, the defendant

These unfortunate situations also create the no longer stands convicted. One might re-

danger of misusing the term “victim” in differ- spond to this natural reading by arguing that

ent contextsSScivil and criminalSSwith the “convicted of an offense” has force only on the

same force. One is not necessarily a victim of day on which the restitution order is entered.

a crime because he suffers a loss at the hands

of another. The loss may arise from poor de-

cisions on the part of the alleged victim, poor 17

Merely because the criminal proceeding

drafting on the part of the attorneys, or even abates, however, does not necessarily mean that an

questionable conduct on the part of the defen- individual who suffered a loss cannot obtain re-

dant. None of these situations, however, nec- imbursement in civil court. If he can meet the civil

essarily warrants a criminal conviction. The court’s lower burden of proof, he may receive a

abatement doctrine provides that one should judgment from that court. The criminal court that

not be permanently labeled as finally “con- entered the prior reimbursement order, however,

victed” while his first appeal is pending. That should not retain any power over that prior

is to say, in abatement the criminal court es- defendant.

sentially abdicates its power over the former

One may argue that allowing the estate to sub-

stitute for the dead defendant ensures the fair rep-

resentation of the decent’s interests, but such a

substitution does not align logically with the abate-

ment of all prior criminal proceedings. Essentially,

16

(...continued) the substitution doctrine forces the estate to argue

abated a seemingly compensatory restitution order about a conviction that no longer exists and

entered against a defendant convicted of numerous requires a court to adjudicate the merits of a pro-

illegal financial dealings. Despite the time invested ceeding that no longer took place. Although it is

in the trial and the guilty verdict, those whom the not without a cost, requiring victims to argue their

decedent allegedly defrauded could not collect case in civil court protects the interests of

through the federal criminal courts. defendants whose direct appeals are not yet final.

7

Because the defendant stands convicted on the trial conviction, after abatement, should not

day the court enters the order, ret aining the estop an estate from mounting a defense in

order after the defendant’s death would not civil court, one whose conviction is abated no

conflict with the VWPA. longer stands “convicted” for purposes of the

VWPA.20

Additional text of the VWPA, however,

suggests that “convicted” should not have VI.

force merely at the time of the restitution or- The estate argues that the finality principle

der. Section 3663(d) references 18 U.S.C. also requires the government to return the

§ 3664 as the enforcement mechanism for re- money paid pursuant to the Preliminary Judg-

imbursement orders. Section 3664(l) de- ment of Forfeiture. The government stridently

scribes the effect of a conviction on future civil disagrees.

actions: “A conviction of a defendant for an

offense involving the act giving rise to an or- The panel noted that “the doctrine of abate-

der of restitution shall estop the defendant ment does not apply to fines, forfeitures, and

from denying the essential allegations of that restitution paid prior to a defendant’s death.”

offense in any subsequent Federal civil pro- Parsons, 314 F.3d at 748 (emphasis added, ci-

ceeding or State civil proceeding.” tations omitted). Fines that have not yet been

paid, however, abate in the same manner as do

A standard canon of construction “provides the prior criminal proceedings. Id. Asset and

that a word used in different parts of the stat- similar cases have distinguished between fines

ute should be construed to have the identical paid before and after a defendant’s death,

meaning throughout the entire statute.”18 If based on the punishment rationale.21

the narrower construction of “convicted” is

applied to § 3664(l), an estate would be es-

topped from denying important factual matters 19

(...continued)

in a subsequent civil suit, even if the underly- conviction exists.

ing conviction had been abated.19 Just as a

20

The dissent discusses, at length, the Manda-

tory Victim Restitution Act (“MVRA”). The par-

18

Miss. Poultry Ass’n v. Madigan, 992 F.2d ties, however, did not argue the MVRA in the con-

1359, 1363 (5th Cir.), modified, 9 F.3d 1113 (5th text of this case. Instead, they generally focused on

Cir.), vacated on other grounds for reh’g en banc, the equitable doctrines, how they interacted with

9 F.3d 1116 (5th Cir. 1993), opinion on reh’g, 31 one another, and how the VWPA affected that

F.3d 293 (5th Cir. 1994) (en banc) analysis. Even if we consider the MVRA,

however, it references the same enforcement

19

Admittedly, one could argue that “convicted” provisionSS18 U.S.C. § 3664SSas does the

and “conviction” have different meanings. A de- VWPA. Consequently, using the MVRA as a

fendant may be convicted on a given day and will means of keeping the compensatory-penal dichot-

always be convicted on that day. The conviction, omy fails, for the reasons we have discussed.

in contrast, may abate or dissolve. This distinc-

21

tion, however, ignores the effect of abatement on Asset, 990 F.2d at 214 (“The rule of abate-

either situation. After abatement, the defendant no ment has never been applied to require the return of

longer stands convicted on that date, and no money paid by a defendant prior to his death and

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

8

The question is whether the tender to the and governs the transaction.” Tex. Nat’l Bank

government of the check for $970,826.90, at v. Sandia Mortgage Corp., 872 F.2d 692, 698

the real estate closing, was a voluntary, irrevo- (5th Cir. 1989) (internal citation and quotation

cable payment, as the government contends, or marks omitted) (applying Texas law).23 When

was, instead, only a means of preserving assets the government and Parsons entered into this

pending the outcome of the appeal. The agreement, abatement did not require the re-

government argues that by giving the check, turn of penalties paid before a defendant’s

“Parsons paid and the government collected death.24 Nothing in the agreement or the spe-

the Money Judgment of criminal forfeiture cific facts of this case suggests that the parties

. . . . The United States collected Parsons’ intended to avoid that pre-existing rule.

payment in full satisfaction of the Money Judg-

ment.” Although the estate might receive the funds

if Parsons “prevails” on appeal, he has not

The agreement and the order provide for achieved a victory, taken any action, or made

full return of the money, with interest, if Par- any substantive points worthy of overturning

sons “prevails in the final determination of this his conviction. Rather, at the time of his

appeal.”22 Although, as explained, we con- death, this court had made no decision on the

clude that restitution orders against Parsons merits of the appeal. Although, based on the

should abate with his death, neither the agree- abatement rationale, the restitution orders

ment nor the Preliminary Judgment of Forfei- must abate, Parsons has not “prevailed” in any

ture requires the government to return the meaningful sense.

already-paid funds.

Presumably in an effort to protect his inter-

“[T]he law . . . existing at the time a con- ests, Parsons voluntarily entered into the

tract is made becomes a part of the contract agreement memorialized in the Preliminary

Judgment of Forfeiture. That agreement,

however, did not adequately provide for his

21

(...continued) death and did not indicate that the parties

has, in fact, been held inapplicable to wished to act outside the legal framework at

finesSSobviously penalSSpaid by a defendant be- the time they entered into the contract.25 Con

fore his death.”); see also United States v. Zizzo,

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

fines paid prior to death “are analogous to time 23

We have no occasion here to comment on,

served and are not refundable.”). and we express no opinion on, a situation in which

there is no agreement or order, such as those pres-

22

The agreement has two requirements: “[I]n ent in this case, conditioning return of the forfeited

the event Defendant Parsons prevails in the final sums on the outcome of the appeal.

determination of this appeal, and no Final Judg-

ment of Forfeiture is entered in this case, the [gov- 24

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

ernment] shall return to Defendant Parsons . . . the of abatement has never been applied to require the

entire amount of $970,826.90, plus interest.” The return of money paid by a defendant prior to his

estate has satisfied the second requirement, as no death . . . .”).

final judgment has been entered. Thus, we address

25

only whether Parsons “prevail[ed] in the final This analysis pertains only to Parsons and

determination of this appeal.” (continued...)

9

sequently, although Parsons died, we have not

validated any of his grounds for appeal, and he

has not “prevailed.” He is not entitled to the

return of the monies paid under the Prelimi-

nary Judgment of Forfeiture.

VII.

Thus, as part of ensuring that every defen-

dant has an opportunity to challenge his con-

viction by one direct appeal, we expunge the

criminal proceedings and the pending punish-

ments attached to those proceedings if the de-

fendant takes an appeal and dies during its

pendency. In the instant case, this includes an

unpaid restitution order. Based on the particu-

lar language of the Preliminary Judgment of

Forfeiture, Parsons did not meet the judg-

ment’s requirements, so we DENY his request

to require the return of sums paid under that

order.

This appeal is DISMISSED, and this matter

is REMANDED with direction to VACATE

the judgment of conviction and sentence, in-

cluding the order of restitution, and to dismiss

the indictment. To the extent that they are in-

consistent herewith, Asset 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.

10

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

BENAVIDES, 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 (5th Cir. 1997) and United States v. Asset, 990

F.2d 208 (5th Cir. 1993),26 which held

26

The majority’s unique “finality rationale,” even if valid, does not

justify overruling Mmahat and Asset. The majority’s raison D’etre for

creating the “finality rationale” is that “all consequences 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 Mmahat

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 conviction. The Mmahat 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. Mmahat, 106

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

for overruling Mmahat and Asset because the perceived evil of an

unreviewed 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 unreviewed criminal

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

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

preventing the “entering [of] an unreviewed judgment” Id. p.5; and

“preventing a wrongly-accused defendant from standing convicted.” Id.

p.6. Under Mmahat and Asset, the penal aspects of the judgment of

conviction, which label 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 reversed. Thus, the concrete

objects 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

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 make

26

(...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 even suggested

by the other courts. The majority cites United States v. Pauline, 625

F.2d 684, 685 (5th Cir. 1980) and United States v. Moehlenkamp, 557 F.2d

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

or even mention that rationale. Pauline 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 convictions; the question of whether

compensatory restitution 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 Cavallaro, Better 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 appeal 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 premise: a conviction that cannot be

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

954 It does not follow from this statement 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 the needs for reliability and legitimacy in criminal

proceedings.

12

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 crime 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) his estate may move to be substituted in his

place and pursue the appeal, 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 estate the windfall of any fruit of his

crime, and requires that his victims go uncompensated for their

harm, and 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 the

13

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

the Congressional objective of requiring Federal criminal defen-

dants to pay compensatory restitution to the identifiable victims

of their crimes.

Congress enacted the VWPA in 1982, 18 U.S.C. § 3663 (1982), to

authorize, but not require, district courts, within their discre-

tion, to order restitution to victims of criminal conduct. Id. §

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

27

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 defendant is convicted on or after the date of

the MVRA’s enactment. See 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.3d 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

compensatory, 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 the restitution order under this statute

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

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

language in question on its face uses the term “convicted” in the

context 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 judgment rendered at that time, see 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 effect of a conviction in subsequent proceedings, arguing that

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

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

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

(continued...)

14

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) (unpublished); United States v.

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

Logal, 106 F.3d 1547, 1552 (11th Cir. 1997) (holding that restitu-

tion orders are punitive 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, mandatorily requires

that, in sentencing a defendant convicted of, inter alia, “an

offense against property, including any offense committed by fraud

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

restitution to the victim of the offense or, if the victim is

28

(...continued)

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

is inherently flawed.

15

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 determined 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

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

assignable,31 civil judgment “in favor of such victim”,32 and, when

29

The defendant’s financial circumstances are relevant only to fixing

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

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

30

The MVRA expressly provides that if the victim is deceased

the court shall order restitution to the victim’s estate. Id. §

3663(a)(1)(A); this provision implies that the 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

properly recorded, “shall be a lien on the property of the defen-

dant...in the same manner . . . as a judgment of a court of general

jurisdiction. . . .”33 The judgment of restitution carries poten-

tial 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.34

A defendant ordered 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 carefully

32

(...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

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

amended, to be 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

victim only 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 recovery 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 civil 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 decision

37

Id. § 3664(b)(1).

38

Id. § 3664(b)(2).

39

Id. § 3664(j)(2).

18

thereby divests 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 major-

ity’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 follow the well

reasoned opinions of other Circuits that carefully analyze the VWPA

and the MVRA and conclude that restitution orders under them are

compensatory and do not constitute criminal punishment for ex post

facto or abatement purposes.40

40

The majority asserts that its “finality rationale. . . . mandates

that all vestiges of the criminal proceeding should 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 rejecting the compensatory/penal

analysis, it had been adopted and used unanimously. See 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 unanimous 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 abates a criminal penalty because, once the defendant is

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

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

for restitution intended only to compensate the victim; accordingly,

such restitution 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

Chief Judge Posner, in United States v. Bach, 172 F.3d 520 (7th

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

restitution orders are compensatory, rather than criminal punish-

ment, and therefore cannot run afoul of the ex post facto prohibi-

tion.41 He explained that the MVRA is not penal but is functionally

40

(...continued)

Asset, 990 F.2d at 214 (citing United 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.”)

Most important, as the text of this dissenting opinion explains,

Congress in the MVRA and the VPWA has confirmed 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

judgments, 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 incorporates 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 ab initio

abatement 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 courts, 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 modern practice of using civil proceedings

as ancillary to criminal actions. See Susan R. Klein, Redrawing 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.” See Bach, 172 F.3d at

523 (citing, inter alia, Carol S. Steiker, Punishment and Procedure:

(continued...)

20

a compensatory torts statute:

The Act requires the court to identify the

defendant's victims and to order restitution to

them in the amount 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

that cause definite losses to ascertainable

victims are also torts: the crime 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

law, should trigger rights under the ex post

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

standpoint whether 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.

41

(...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. See 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. In addition, the VWPA

is primarily a civil act providing for compensatory restitution. In

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

legislative enactments that created both civil and criminal reforms.

21

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

added).

The Seventh Circuit’s decision in Newman v. United States, 144

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

that restitution under the MVRA does not qualify as criminal

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

equitable device for restoring victims to the position they had

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

Restatement 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 others’ expense.” Id. (Citing 1 George E.

Palmer, The Law of Restitution § 1.1, at 5 (1978)); (2) The non-

punitive 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 (7th Cir. 1997) (restitu-

tion under the Child Support Recovery Act of 1992 was not punish-

ment); United States v. Hampshire, 95 F.3d 999, 1006 (10th Cir.

1996) (same); United States v. Arutunoff, 1 F.3d 1112, 1121 (10th

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

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

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

restitution order authorized by the VWPA or the MVRA is not a

punitive sanction when analyzed under the factors set forth by

22

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 (10th Cir. 1999);

United States v. Arutunoff, 1F.3d 1112, 1121 (10th 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 United

States v. Rochester, 898 F.2d 971, 983 (5th 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. See

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 States

23

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 & 1954 (2d ed 1986).

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

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

principles of common law. Patton v. Brady, 184 US 608 (1902); Ex

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, Abatement,

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,

42

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. See United States v. Logal, 106 F.3d

1547 (11th Cir. 1997).

24

140 Ala 394, 37 So 220 (1903), et 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 MVRA has the effect of a

judgment “entered 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 pertaining 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 join 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 expungement 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.

43

§ 3664(m)(ii)(B). See note 7, supra.

25

For the foregoing reasons, I respectfully dissent in part and

specially concur in part in the majority opinion.

26