United States of America, Plaintiff-appellee, v. Tollie Roberts, Defendant-appellant, 892 F.2d 84 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 892 F.2d 84 (9th Cir. 1989)

Submitted Nov. 8, 1989. Decided Dec. 18, 1989


Before ALARCON, O'SCANNLAIN, and LEAVY, Circuit Judges.


ORDER

Tollie Roberts pled guilty to a violation of the Lacey Act, 16 U.S.C. §§ 3372(a) (2) (A), 3373(d) (1) (B) and 18 U.S.C. § 2. He filed a timely notice of appeal, asserting that the district court did not have a sufficient factual basis under Fed. R. Crim. P. 11(f) to take his plea. On August 25, 1989, during the pendency of this appeal, Roberts died. Roberts' attorney has now filed a motion to abate the prosecution on his behalf, to which he has attached a copy of Roberts' death certificate.

Death pending an appeal of a criminal conviction "abates not only the appeal but all proceedings in the prosecution from its inception." United States v. Oberlin, 718 F.2d 894, 895 (9th Cir. 1983) (citations omitted). In such a case, the appeal must be dismissed and the action remanded to the district court to vacate the judgment and to dismiss the indictment. Id.

For these reasons, Roberts' appeal is dismissed. The case is remanded to the district court with instructions to vacate the judgment and to dismiss the indictment.

APPEAL DISMISSED; CASE REMANDED WITH INSTRUCTIONS TO VACATE JUDGMENT AND DISMISS INDICTMENT.