United States of America v. Thomas Demichael.*patricia Demichael, Appellant.*(pursuant to Court Order Dated 7/17/06), 461 F.3d 414 (3d Cir. 2006)

Thomas DeMichael died after he filed a timely appeal from the sentence imposed as a result of his conviction on federal gambling charges. Although DeMichael appealed only his fine and not his conviction, his personal representative, Patricia DeMichael, moves to abate his conviction along with the fine, and to remand his case to the District Court for dismissal of his indictment. Although presented in a motion, we write precedentially to resolve this issue, as it presents a unique fact pattern not previously considered by our court. We will deny the motion insofar as it asks us to abate his conviction, but will remand to the District Court to abate the fine. We will dismiss DeMichael's appeal as moot.

DeMichael pleaded guilty, in November 2003, to aiding and abetting an illegal gambling business, in violation of 18 U.S.C. § 1955¹  and § 2.²  On March 22, 2004, the United States District Court for the District of New Jersey sentenced DeMichael to twelve months and one day in prison, three years of supervised release, a $5,000 fine and a $100 special assessment. DeMichael filed a notice of appeal on April 2, 2004, and submitted his opening brief to this Court on October 5, 2005.³  After completing his prison sentence, DeMichael died on January 30, 2006. His appeal, which challenged only the $5,000 fine, was still pending. DeMichael's attorney filed a motion for substitution of personal representative Patricia DeMichael, which we granted. Patricia DeMichael now claims that an appeal of any portion of the judgment qualifies DeMichael for wholesale abatement of his conviction and any remaining punishment. For the reasons set forth below, we disagree.

The abatement rule is grounded in procedural due process concerns. When a defendant dies pending an appeal, "`the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an integral part of our system for finally adjudicating his guilt or innocence.'" United States v. Christopher, 273 F.3d 294, 296-97 (3d Cir. 2001) (quoting United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977)). The courts of appeals largely agree that abatement ab initio is the appropriate rule when a defendant dies while his appeal of right is pending. See United States v. Pogue, 19 F.3d 663 (D.C. Cir. 1994); United States v. Schuster, 778 F.2d 1132 (5th Cir. 1985); United States v. Oberlin, 718 F.2d 894 (9th Cir. 1983); United States v. Morton, 635 F.2d 723 (8th Cir. 1980); United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980); Moehlenkamp, 557 F.2d 126. Our court has followed this well established rule: " [W]here a convicted criminal defendant dies after filing an appropriate appeal, the conviction will be abated and the case remanded to the district court with instructions to dismiss the indictment." Christopher, 273 F.3d at 297. See also United States v. Dwyer, 855 F.2d 144, 145 (3d Cir. 1988) (reciting the traditional rule that a criminal conviction abates when the defendant dies prior to the resolution of his or her direct appeal). Additionally, we have held that all criminal forfeitures and fines, except for restitution payments, are subject to abatement. Christopher, 273 F.3d at 297.

We agree that DeMichael's fine is no longer payable after his death, and that, whatever the procedural posture of the case, a defendant's death necessarily forestalls any further punishment. See Morton, 635 F.2d at 725 (" [A]n uncollected fine in a criminal case is comparable to the balance of the defendant's prison sentence; the . . . fine, like the remaining sentence, abate [s] with death."); United States v. Bowler, 537 F. Supp. 933, 935 (N.D. Ill. 1982) (noting that a criminal fine is not awarded as compensation to the United States; rather, it is a punishment for which there is no justification after defendant's death). There is no justice in punishing a defendant's family for his offense. Dwyer, 855 F.2d at 145 (Sloviter, J., concurring). Thus, it is clear that DeMichael's fine, which constituted part of his punishment, should be abated.

However, it does not follow that DeMichael's conviction should also be abated. Our decision in Christopher held only that a defendant who files an "appropriate appeal" is entitled to have his conviction abated. 273 F.3d at 297. In Christopher, the defendant appealed his conviction on the merits after pleading "not guilty" to each count of the indictment. Brief of Appellant at 1, 4, United States v. Christopher, No. 98-6504 (3d Cir. Sept. 26, 2000). Because he died before we were able to rule on his appeal, we considered the appeal to be appropriate for purposes of abating his conviction and remanded the case to the district court with instructions to dismiss the indictment. Christopher, 273 F.3d at 297.

When a defendant appeals the judgment of conviction itself, as was the case in Christopher, or files a general notice of appeal but dies before submitting an opening brief, the possibility remains that the conviction itself might be overturned. See, e.g., Pogue, 19 F.3d at 664 (" [A]ppellant had filed a timely appeal before his death; the appeal was not withdrawn; and, had he lived, appellant could have challenged the plea agreement and the underlying conviction, his sentence and/or the terms of the restitution." (emphasis added)). However, DeMichael's appeal presents no such possibility. In his brief, DeMichael clearly stated that the only issue he was appealing was the propriety of the fine.⁴  Thus, he waived his right to appeal his conviction. See Laborers' Int'l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) ("An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue will not suffice to bring that issue before this court.").

This is not a case in which "death has deprived the accused of his right to our decision." Moehlenkamp, 557 F.2d at 128. Rather, the narrow scope of DeMichael's appeal produced that result. Abating his conviction would grant relief that he did not seek, and that he could not possibly have obtained as a result of his appeal. We therefore conclude that DeMichael's appeal was not an "appropriate appeal" for the purposes of abating his conviction. See Christopher, 273 F.3d at 297. Accordingly, we will deny the motion to abate DeMichael's conviction, remand this case to the District Court with instructions to abate the fine, and we will dismiss his appeal as moot.