Dying to Get His Money Back – Update for June 2, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


death170602Every few years, a notorious criminal defendant – think Aaron Hernandez or Enron’s Kenneth Lay – has the temerity to die before his appeals process is complete. When that happens, the common law doctrine of abatement ab initio is applied, and the indictment is dismissed.

What follows is a predictable hue and cry from the public that the deceased, having been found to be a scumbag, should not get a pass just because his appeals were not exhausted.

In federal court, when a convicted defendant dies while his directappeal as of right is pending, his death abates not only the appeal but also all prior proceedings as well. To effectuate this common law rule of abatement ab initio, appeals courts vacate the judgment and remand the case to the district court with instructions to dismiss the indictment. That’s the “ab initio” part: it’s not just the appeal that disappears, and the case is not simply dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never even been indicted. It’s ab initio, that is, “from the beginning.”

The doctrine of abatement arises from notions of due process: that the interests of justice ordinarily require that a defendant not stand convicted without resolution of the merits of an appeal. As one court put it, when “death has deprived the accused of his right to our decision, 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.”

In 2015, Tom Libous, a long-time denizen of the ethical swamp that constitutes the New York State Senate, was convicted of making false statements to the FBI. He was already dying of prostate cancer when the Feds decided to pile on, and died in a hospice before his appeal was decided by the 2nd Circuit.

gvtsteal170602Consistent with abatement ab initio, the government agreed that his conviction should be vacated and the indictment dismissed. However, before Tom passed, he had paid a $50,000 fine and $100 special assessment. Proving once again that guys like Bernie Madoff are rank amateurs next to Uncle Sam, the government contended that while Tom’s corpse may be innocent, his next-of-kin were not entitled to get the money back. The government’s argument, reduced to its essence, was that the policies underlying abatement ab initio do not require the abatement of a paid fine.

This week, the 2nd Circuit told the government to get out its checkbook. The Court said it was pretty simple: because Tom Libous (or at least his memory) “stands as if he never had been indicted or convicted, at least in the eyes of the criminal court… he is no longer a wrongdoer. There is no legal basis on which the state can retain a fine exacted from Libous as punishment for an offense he is now presumed not to have committed. Once Libous’s conviction is vacated, the state is as much entitled to retain the fine as if Libous had been acquitted. And in our system of criminal justice, the state is not permitted to charge the accused for the privilege of having been prosecuted.”

Citing a recent Supreme Court decision, the Circuit said that “once a defendant’s conviction is erased, the presumption of his innocence is restored,” and the state “has no interest in withholding from [a defendant] money to which the state currently has zero claim of right… At bottom, the state may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”

moneyback170602The government pulled out all the stops, even arguing that a fine already paid was just like time already served: time served cannot be refunded, so why should money already paid? The 2nd made short work of that argument: “We find the analogy inapt,” the Court said. “That time served cannot be abated is a principle of nature, not of law. A paid fine, by contrast, can easily be returned to the defendant’s estate.”

That is exactly what will happen to the $50,100. Tom’s widow gets it.

United States v. Libous, Case No, 15-3979 (2nd Cir., May 30, 2017)

– Thomas L. Root


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