But fines already paid need not be refunded because they are the equivalent of time-served. United States v. Zizzo, 120 F.3d 1338, 1347 (7th Cir. 1997) (holding that a defendant who died during a pending appeal, but after paying a $50,000 fine and various other assessments, was not due the moneys because the payments "are analogous to time served and are not refundable") (citing Eleventh and Fifth Circuit cases); United States v. Parsons, Estate of, 367 F.3d 409, 417-18 (5th Cir. 2004) (en banc); United States v. Logal, 106 F.3d 1547 (11th Cir. 1997). Thus, the government need not refund any payments on the $2,400 special fee assessment.
I. Motion to Vacate and Dismiss Citing United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004) (en banc), the estate argues that Lay's conviction should be vacated and that the indictment as it relates to Lay should be dismissed because Lay's death deprived him of his right to pursue a planned appeal. The estate asserts that Lay engaged counsel to file and prosecute an appeal, that on the morning of July 5, 2006, Lay was pronounced dead in Aspen, Colorado, and that by Order of the Probate Court No. 1 of Harris County, Texas, in Cause No. 365,466 entered on August 8, 2006, Letters Testamentary were issued to Linda P. Lay as Executrix of the Last Will and Testament of Kenneth L. Lay. In an unopposed motion filed on August 9, 2006, (Docket Entry No. 1079), the executrix sought leave to substitute the estate for Lay in this action so that the estate could file and prosecute the pending motion to vacate and dismiss.
The question remains under what authority we may consider whether the restitution order abates on death. Courts that find restitution orders survive the defendant's death also find that the defendant's estate has standing to contest them. E.g. United States v. Mmahat, 106 F.3d 89, 93 (5th Cir.1997) (“Because the restitution order survives ... we grant the motion for [the defendant's] heirs to continue the appeal in his stead.”), rev'd by United States v. Estate of Parsons, 367 F.3d 409 (5th Cir.2004) (en banc); United States v. Christopher, 273 F.3d 294, 299 (3d Cir.2001) (restitution order “survives against the estate of the deceased convict”). Courts finding that restitution orders abate allow the defendant's attorney to present the issue on appeal without involving the defendant's estate. E.g., United States v. Rich, 603 F.3d 722, 724 n. 4 (9th Cir.2010) (“The government implies that Rich's attorneys cannot raise this argument without substitution of the estate, but substitution is not required.”).
Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted" (quotation and citation omitted). United States v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir. 2004). The doctrine "is not grounded in the constitution or in statute, but is instead a court-created common law doctrine" (citation omitted).
Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." United States v. Estate of Parsons , 367 F.3d 409, 413 (5th Cir. 2004) (en banc) (internal quotation marks omitted); see also United States v. Logal , 106 F.3d 1547, 1552 (11th Cir. 1997) ("Under the doctrine of abatement ab initio ... the defendant stands as if he never had been indicted or convicted." (internal quotation marks omitted)).
This rule is commonly referred to as the doctrine of abatement ab initio. United States v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir.2004). When “death has deprived the accused of his right to” appellate review of his conviction, “the interests of justice ordinarily require that [the defendant] 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.”
Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." Id. (quoting United States v. Estate of Parsons , 367 F.3d 409, 413 (5th Cir. 2004) ). ¶ 5 The doctrine of abatement ab initio rests on two principles.
¶ 4 The doctrine of abatement ab initio is not grounded in the constitution or in statute, but is instead a court-created common law doctrine. United States v. Estate of Parsons, 367 F.3d 409, 415 (5th Cir.2004). Under the doctrine, a defendant's death that occurs while his criminal conviction is pending on direct appeal “abates not only the appeal but also all proceedings had in the prosecution from its inception.” Crooker v. United States, 325 F.2d 318, 320 (8th Cir.1963) (citing J.C. Vance, Annotation, Effect, on Proceedings Below, of Death of Defendant Pending Appeal from Criminal Conviction, 83 A.L.R.2d 864 (1962) (collecting cases)).
Our sister circuits have adopted the same doctrine. See United States v. Volpendesto, 755 F.3d 448, 452 (7th Cir. 2014) ("We and our sister circuits have recognized that death of a criminal defendant before appeal causes the case to become moot."); United States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001) (noting "the rule [is] followed almost unanimously by the Courts of Appeals" except for "one case . . . , but that view is based on an erroneous reading of that opinion"); United States v. Estate of Parsons, 367 F.3d 409, 413 n.7 (5th Cir. 2004) (en banc) (citing cases from Second, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits dismissing appeals under doctrine). In Nelson v. Colorado, 137 S. Ct. 1249 (2017), the petitioners had paid restitution and then their convictions were reversed.
The more modern finality/appellate rights rationale is based on the principle that abatement protects the appellate right, and reflects the fact that if a conviction has not been tested, and due to the defendant's death cannot be tested by an appeal, it is not truly final, and it would be unjust to allow the conviction to stand. United States v. Parsons, 367 F.3d 409, 413 (5th Cir. 2004)(en banc). The older punishment rationale is based upon the notion that the purpose of criminal proceedings is penal, and death ends any possibility of punishing the accused, making further action by the court superfluous and moot.