Unpublished Dispositionunited States of America, Plaintiff-appellee Cross-appellant, v. George Johnson, Defendant-appellant Cross-appellee, 937 F.2d 609 (6th Cir. 1991)

Before KEITH, Circuit Judge, WELLFORD, Senior Circuit Judge, and GADOLA, District Judge^* .

ORDER

The defendant is appealing his conviction and sentence for conspiracy to distribute and distribution of cocaine. The government has cross-appealed. Counsel for the defendant now moves for dismissal due to the death of the defendant. The government has not responded.

Death pending direct appellate review of a criminal conviction abates the appeal, the conviction, and any fine accompanying such conviction. United States v. Toney, 527 F.2d 716, 720 (6th Cir. 1975). See also United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980); United States v. Moehlenkamp, 557 F.2d 126 (7th Cir. 1977). This disposition is limited to the facts presented on this appeal. See United States v. Mollica, 849 F.2d 723 (2d Cir. 1988). To the extent that the deceased appellant has been ordered to make restitution as a consequence of his conviction, such restitution is not affected hereby. See United States v. Dudley, 739 F.2d 175 (4th Cir. 1984).

Therefore, it is ORDERED that the judgment of conviction against the defendant is vacated; and the case is remanded to the district court, which is instructed to dismiss the indictment against him.