In United States v. Libous, 15-3979 (2nd Cir. May 30, 2017) (Katzmann, Winter, Stein), the Second Circuit vacated the jury conviction of former New York State Senator Thomas W. Libous’ and remanded the case to the district court for dismissal of the indictment and an order to return the $50,000 fine and $100 special assessment to the decedent’s estate. The short story is that if you die while your appeal is pending, any fine is revoked; if your fine was paid, then the amount is returned to the decedent’s estate. The Court invites Congress to enact legislation if it is dissatisfied with the result created by this common law rule.
Libous, who was convicted in 2015 of making false statements to the FBI in violation of 18 U.S.C. § 1001, was in the process of appealing his own conviction when he died of prostate cancer. After his death, Libous’ executrix moved the court to withdraw his pending appeal, vacate the underlying conviction, and remand for dismissal of the indictment and the return of the paid fine and special assessment. This request was consistent with the doctrine of abatement, which the panel described: “[W]hen a convicted defendant dies while pursuing an appeal of right, his conviction abates, the underlying indictment is dismissed, and his estate is relieved of any obligation to pay a criminal fine imposed at sentence.” This rule of law applied to vacate the conviction of the notorious Kenneth Lay, the Chairman and CEO of Enron Corporation, who died after conviction but prior to sentencing. Former Patriots Tight End Aaron Hernandez, who committed suicide while his conviction was on appeal, also had his conviction abated.
While the government consented to vacating the underlying conviction and dismissing the indictment, it opposed the estate’s request to return the $50,000 paid fine and $100 special assessment. The government argued, inter alia, that under the common law, policies underlying abatement do not support the abatement of a paid fine. The court disagreed, relying on Nelson v. Colorado, 137 S. Ct. 1249 (2017), which held that once a criminal conviction is invalidated, the state is required to refund fees and restitution associated with the conviction. Although Nelson involved a defendant whose conviction was reversed on appeal, the same result applied here because under the doctrine of abatement, Libous’ conviction was abated, leading to the dismissal of the charges.
Moreover, the court explained that “a criminal conviction is not final until resolution of the defendant’s appeal as a matter of right.” Id. at 6. (quoting United States v. Logal, 106 F.3d 1547, 1552 (11th Cir. 1997). Since the appeal was pending at the time of Libous’ death, under the common law doctrine of abatement as interpreted by this court, when a convicted defendant dies while his direct appeal as of right is pending, the deceased defendant’s estate is entitled to the return of a criminal fine, even if the fine was paid before the defendant’s death. Notwithstanding its holding, the court it invites Congress to address any undesirable outcome that may be created by the common law rule of abatement ab initio.