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May 3, 2010

Intriguing Ninth Circuit ruling on post-mortem restitution obligations

The Ninth Circuit handed down an intriguing opinion today in US v. Rich, No. 08-30153 (9th Cir. May 3, 2010) (available here), concerning an order of restitution after a Ponzi scheme conviction.  Here is how the panel opinion describes its inquiry:

We consider whether the estate of a criminal defendant who dies pending appeal of his fraud conviction must continue to pay restitution to victims.

And here is the heart of the basic answer that the panel provides:

There is no doubt that “death pending 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) (citing Durham v. United States, 401 U.S. 481 (1971) (per curiam)). This principle, called the rule of abatement ab initio, prevents, among other things, recovery against the estate of a fine imposed as part of the conviction and sentence and use of an abated conviction against the estate in related civil litigation.  The rationale for abatement ab initio is that “the interests of justice ordinarily require that [the deceased] not stand convicted without resolution of the merits of his appeal.” Oberlin, 718 F.2d at 896...

Just as it is inappropriate to impose restitution on a living individual who was never indicted or convicted, so it is inappropriate to impose restitution on the estate of a deceased individual who, in the eyes of the law, was never indicted or convicted.  Abatement ab initio means what it says.

May 3, 2010 at 08:49 PM | Permalink


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