United States, et al v. Parsons

United States Court of Appeals
Fifth Circuit
F I L E D
April 16, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-50464
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANDREW CLYDE PARSONS, ESTATE OF,
AS REPRESENTED BY ITS INDEPENDENT EXECUTOR, PATRICK D. MILLAR,
Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m W-99-CR-63-1
_________________________

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2
Before KING, Chief Judge, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH,
WIENER, BARKSDALE, EMILIO M. GARZA,
DEMOSS, BENAVIDES, STEWART,
DENNIS, CLEMENT, and PRADO,
Circuit Judges.*
JERRY E. SMITH, Circuit Judge:
This case requires us to apply the doctrine
of abatement ab initio to restitution and forfei-
ture orders where a criminal defendant dies
while his appeal is pending. Concluding that,
under the specific facts of this case, all conse-
quences of the untested criminal conviction
should abate, we DISMISS the appeal and
REMAND with direction to VACATE the
judgment of conviction and sentence, including
the order of restitution, and to dismiss the
indictment. We do not, however, direct the
government to return monies paid as part of
this particular Preliminary Judgment of Forfei-
ture.
I.
After a second trial following a vacated
conviction, a jury found Andrew Parsons guil-
ty of two counts of arson, four counts of mail
fraud, and four counts of money laundering.
Parsons allegedly set fire to his property and
wrongfully received insurance proceeds to
compensate for the loss. In addition to a ver-
dict of guilty, the jury returned a special forfei-
ture verdict.1 The district court sentenced
Parsons to seventy-eight months’ imprison-
ment, a fine of $75,000, a special assessment
of $1,000, restitution of $1,317,834.57 to the
defrauded insurance companies, and three
years’ supervised release.2
Parsons then informed the government that
he wished to sell the three tracts. The govern-
ment approved the sale of those tracts for
$1,900,000 under a contract that would pro-
vide cash at closing of $1,000,000. That sale
was completed, and a check for $970,826.90
was given to the United States in return for a
release of liens.
The sale in question was completed pursu-
ant to an agreement between Parsons and the
United States. The government filed a motion
describing the agreement. The motion states,
in relevant part:
[B]ecause Defendant Parsons had no other
apparent financial means with which to fully
pay the Money Judgment in the amount of
$970,826.90, the United States of America
did not object to the . . . sale of [the three
tracts], provided that a [government agent]
be present at the real estate closing to
receive a cashiers check . . . .
. . .
* Judge Pickering was appointed to the court
after this case was submitted, and he elected not to
participate in the decision.
1 Specifically, the jury found that Parsons had
used $346,260 of the unlawfully-derived insurance
proceeds, as set forth in counts 1-5 of the in-
(continued...)
1(...continued)
dictment, to construct a certain building and that he
had unlawfully derived $970,826.90 from the
offenses in counts 1-10.
2 Although both parties state that the court is-
sued forfeiture orders originating from the jury’s
special forfeiture verdict, the order of judgment
only lists the imprisonment, fine, and restitution or-
ders. Presumably, the restitution order incorpor-
ated the amounts listed in note 1, supra.

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3
Further, inasmuch as this case remains on
appeal at this time, the United States of
America agrees that in the event Defendant
Parsons prevails in the final determination
of this appeal, and no final judgment of for-
feiture is entered in this case, that the [gov-
ernment] should return to Defendant Par-
sons the entire amount of $970,826.90,
plus interest . . . .
After the sale, the district court entered a
Preliminary Judgment of Forfeiture of $970,-
826.90, pursuant to FED. R. CRIM. P. 32.2(b).3
The order states, in relevant part:
ORDERED that inasmuch as this case re-
mains on appeal at this time, in the event
Defendant Parsons prevails in the final de-
termination of this appeal, and no Final
Judgment of Forfeiture is entered in this
case, the [government] shall return to De-
fendant Parsons . . . the entire amount of
$970,826.90, plus interest . . . .
While this appeal was pending, Parsons
died. This court allowed his estate to substi-
tute itself for him as appellant, and the estate
submitted a new appellate brief, arguing that
Parsons’s death abated the conviction, restitu-
tion order, and forfeiture orders. The estate
also protected its interests by arguing, in the
alternative, that if the restitution and forfeiture
orders were not automatically abated by Par-
sons’s death, the conviction should be reversed
on grounds of violation of the Speedy Trial
Act and inadequate nexus to interstate com-
merce.
A panel of this court upheld the restitution
order and Preliminary Judgment of Forfeiture
and rejected Parsons’s other merits issues
raised on appeal. United States v. Estate of
Parsons, 314 F.3d 745, 750 (5th Cir. 2002),
vacated for reh’g en banc, 333 F.3d 549 (5th
Cir. 2003). Recognizing that it was bound by
United States v. Asset, 990 F.2d 208 (5th Cir.
1993), and United States v. Mmahat, 106 F.3d
89 (5th Cir. 1997), the panel concluded that
“because the restitution order here is unques-
tionably compensatory in nature, it survives
Parsons’s death.” Parsons, 314 F.3d at 750.4
II.
Asset, Mmahat, and Parsons describe the
current state of our abatement jurisprudence.
“It is well established in this circuit that the
death of a criminal defendant pending an ap-
peal of his or her case abates, ab initio, the en-
tire criminal proceeding.” Asset, 990 F.2d at
210.5 That is, the appeal does not just disap
3 At the sentencing hearing, the court indicated
that the $1.317 million restitution order represented
the full amount Parsons owed to his victims and
that any sums recovered via forfeiture would apply
against that total amount. Because Parsons did not
tender any other monies to the government, and
because the district court did not enter any other
temporary orders, no other portion of the restitution
order is encompassed by the Temporary Judgment
of Forfeiture.
4 The panel nonetheless questioned the cor-
rectness of those decisions. Parsons, 314 F.3d at
750. The panel further questioned the logic of our
caselaw in referring to “the strange situation of our
reviewing a criminal conviction in what has
become a hypothetical case.” Id. at 748.
5 See also Mmahat, 106 F.3d at 93 (“Normally,
the death of a criminal defendant during the pen-
dency of his appeal abates the entire proceeding ab
initio.”); United States v. Schuster, 778 F.2d 1132,
1133 (5th Cir. 1985) (“Under the firmly estab-
lished rule in this circuit, the death of a defendant
pending conclusion of the direct criminal appeal
(continued...)

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4
pear, and the case is not merely dismissed. In-
stead, everything associated with the case is
extinguished, leaving the defendant “as if he
had never been indicted or convicted.” Par-
sons, 314 F.3d at 749 (quoting United States
v. Schumann, 861 F.2d 1234, 1237 (11th Cir.
1988)).
With respect to restitution, we have looked
to the purpose of the order to determine
whether it abates with the conviction. “When
restitution is ordered simply to punish the de-
fendant, it is penal and abates with the rest of
his conviction. When it is designed to make
his victims whole, however, it is compensatory
and survives his death.” Mmahat, 106 F.3d at
93. Additionally, abatement does not entitle a
defendant to monies paid before death as part
of a fine or restitution order.6
III.
Despite the common acknowledgment that
abatement ab initio is a well-established and
oft-followed principle in the federal courts,7
few courts have plainly articulated the ration-
ale behind the doctrine. Two primary ap-
proaches support abatement ab initio. The fi-
nality principle reasons that the state should
not label one as guilty until he has exhausted
his opportunity to appeal. The punishment
principle asserts that the state should not pun-
ish a dead person or his estate. Although the
finality principle best explains why criminal
proceedings abate at death, finality does not
justify the distinction between compensatory
and penal restitution orders.
Under the finality rationale, we have de-
scribed the entitlement to one appeal as fol-
lows:
[W]hen an appeal has been taken from a
criminal conviction to the court of appeals
and death has deprived the accused of his
right to our decision, the interests of justice
ordinarily require that he not stand con-
victed without resolution of the merits of
his appeal, which is an “integral part of
[our] system for finally adjudicating [his]
guilt or innocence.”
United States v. Pauline, 625 F.2d 684, 685
5(...continued)
abates, ab initio, not only the appeal, but the entire
criminal proceeding.”).
6 See, e.g., United States v. Zizzo, 120 F.3d
1338, 1347 (7th Cir. 1997) (regarding fines and
forfeitures); Asset, 990 F.2d at 214 (regarding
restitution); Schumann, 861 F.2d at 1236.
7 In applying Durham v. United States, 401
U.S. 481, 483 (1971) (per curiam) (stating that
“death pending direct review of a criminal con-
viction abates not only the appeal but also all pro-
ceedings had in the prosecution from its incep-
tion”), overruled on other grounds, Dove v. Unit-
ed States, 423 U.S. 325 (1976), other circuits fol-
low the doctrine of abatement ab initio. See, e.g.,
United States v. Wright, 160 F.3d 905, 908 (2d
(continued...)
7(...continued)
Cir. 1998) (quoting Durham, 401 U.S. at 481);
United States v. Logal, 106 F.3d 1547, 1551 (11th
Cir. 1997) (“This circuit has adopted the general
rule that the death of a defendant during the pen-
dency of his direct appeal renders his conviction
and sentence void ab initio; i.e., it is as if the de-
fendant had never been indicted and convicted.”);
United States v. Davis, 953 F.2d 1482, 1486 (10th
Cir. 1992) (quoting Durham, 401 U.S. at 483);
United States v. Wilcox, 783 F.2d 44 (6th Cir.
1986); United States v. Oberlin, 718 F.2d 894 (9th
Cir. 1983); United States v. Pauline, 625 F.2d 684
(5th Cir. 1980); United States v. Moehlenkamp,
557 F.2d 126 (7th Cir. 1977).

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5
(5th Cir. 1980) (emphasis added, brackets in
original) (quoting Griffin v. Illinois, 351 U.S.
12, 18 (1956)).8 The defendant’s attack on his
conviction tests previously unforeseen weak-
nesses in the state’s case or outright errors at
trial.9 Under this rationale, neither the state
nor affected parties should enjoy the fruits of
an untested conviction.
The second rationale focuses on the precept
that the criminal justice system exists primarily
to punish and cannot effectively punish one
who has died. “[T]he purposes of criminal
proceedings are primarily penalSSthe indict-
ment, conviction and sentence are charges
against and punishment of the defen-
dantSSsuch that the death of the defendant
eliminates that purpose.”10 The government
and other circuits have mentioned this justifi-
cation.11
Given that the doctrine of abatement ab
initio is largely court-created and a creature of
the common law, the applications of abatement
are more amenable to policy and equitable
arguments. Neither of the previously-articu-
lated rationales fully explains our current
approach to abatement, restitution orders, and
fines paid before death. As we will explain,
we adopt the finality rationale and adjust our
restitution jurisprudence accordingly.
The punishment rationale supports our cur-
rent distinction between penal and compensa-
tory restitution orders12 and justifies the line,
with respect to fines, drawn at the time of
death.13 Punishment does not, however, ade-
quately explain the other aspect of our abate-
ment jurisprudenceSSthe elimination of the
criminal proceedings against that person. Pre-
sumably, under the punishment rationale,
courts could retain the record of conviction
and block proceedings that would punish the
estate.14
8 Accord United States v. Moehlenkamp, 557
F.2d 126, 128 (7th Cir. 1977); see also Rosanna
Cavallaro, Better Off Dead: Abatement, Inno-
cence, and the Evolving Right of Appeal, 73 U.
COLO. L. REV. 943, 954 (2002) (“The abatement
remedy relies significantly on a larger premise: a
conviction that cannot be tested by appellate review
is both unreliable and illegitimate; the con-
stitutionally guaranteed trial right must include
some form of appellate review.”).
9 In Douglas v. California, 372 U.S. 353
(1963), and Evitts v. Lucey, 369 U.S. 387, 392
(1985), the Court “require[d] the appointment of
effective counsel for a criminal appellant pursuing
a first appeal of right.” Clark v. Johnson, 227
F.3d 273, 283 (5th Cir. 2000).
10 Asset, 990 F.2d at 211; see also Mmahat,
106 F.3d at 93 (stating that “the abatement prin-
ciple is premised on the fact that criminal pro-
ceedings are penal”).
11 See, e.g., United States v. Dudley, 739 F.2d
175, 176 n.2 (4th Cir. 1984) (“A decedent can
hardly serve a prison sentence.”). In its brief, the
government makes a similar point: “Put another
way, the doctrine of abatement is applied because
it serves no purpose to punish a person who is
dead.”
12 Mmahat, 106 F.3d at 93 (“When restitution
is ordered simply to punish the defendant, it is
penal and abates with the rest of his conviction.”).
13 Following death, the state retains already-
paid fines but does not require payment of out-
standing unpaid fines.
14 The courts could use the punishment rationale
(continued...)

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6
The finality principle provides a better ex-
planation why all prior proceedings disappear.
A defendant’s death during appeal forces a
court to decide between disregarding a finding
of guilt and entering an unreviewed judgment.
Presumptions of innocence and a desire to en-
sure guilt naturally point to extinguishing all
criminal proceedings.
The primary justification for the abatement
doctrine arguably is that it prevents a wrongly-
accused defendant from standing convicted.
The Supreme Court and other circuits have
recognized this justification for abatement.
We now adopt it as the primary reason behind
abatement and, by so doing, we reject Asset’s
and Mmahat’s descriptions of the punishment
justification.
Accordingly, regardless of its purpose, the
order of restitution cannot stand in the wake of
Parsons’s death. Because he now is deemed
never to have been convicted or even charged,
the order of restitution abates ab initio.15
IV.
Although the government may argue that
this approach harms the interests of those al-
legedly injured, such an argument cannot out-
weigh the finality rationale. “[T]he goal of the
[compensatory restitution] payment is . . . to
restore the victim’s losses.” Asset, 990 F.2d at
214. If the restitution order abates with the
death of the defendant, those “victims” will not
be made whole, or at least not by way of direct
restitution from the defendant or his estate.16
14(...continued)
to prevent use of the conviction in civil court and to
retain the decedent’s good name. The former
application could be accomplished without elim-
inating the conviction altogether, and the latter use
does not seem significant enough to warrant
extinguishing all prior proceedings.
15 The dissent argues that restitution orders are
“expressly compensatory, non-punitive, and equiv-
alent to a civil judgment against a criminal
defendant” and criticizes our approach as “treating
the restitution order as abatable and therefore im-
pliedly punitive.” This response overlooks the ap-
proach we have taken in deciding this case. Our
aim is to craft a coherent and consistent means of
applying abatement ab initio to restitution orders.
As we have shown, the best explanation for abate-
(continued...)
15(...continued)
mentSSthe finality rationaleSSdoes not support a
distinction between compensatory and punitive
awards. Instead, it mandates that all vestiges of the
criminal proceeding should disappear.
In contrast, the dissent skips the primary ques-
tion of how abatement and restitution interact and
assumes the continued existence of the compen-
satory-penal dichotomy. The dissent’s citations to
United States v. Bach, 172 F.3d 520 (7th Cir.
1999), and Newman v. United States, 144 F.3d
531 (7th Cir. 1998), suffer from the same problem.
Both cases assume that restitution orders should be
described as either compensatory or penal. Neither
considers the overall purpose behind abatement ab
initio and how such a purpose would affect all
restitution orders. The traditional dichotomy
cannot remain, however, if we are to craft a
consistent regime that incorporates statutory ele-
mentsSSsuch as the Victim and Witness Protection
ActSS and two forms of equitable doctrine.
16 The government argues, at length, that the in-
stant restitution order was intended to make whole
the victims of Parsons’s fraud: “Unlike a fine,
restitution does not deprive the estate of money the
defendant may have rightfully acquired; instead it
removes tainted money that defendant unlawfully
obtained . . . .” Examples of such uncompensated
victims undoubtedly exist. In United States v.
Logal, 106 F.3d 1547 (11th Cir. 1997), the court
(continued...)

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7
The government’s position may have val-
idity under the punishment rationale, but it has
little force if the concern is finality and the
right of the defendant to contest his appeal at
least once. Any references to the wrongful na-
ture of the defendant and his actions are con-
ditioned on an appellate court’s upholding the
conviction, assuming the defendant pursues an
appeal. The defendant’s death during the pen-
dency of appeal pushes a court to nullify all
prior proceedings. Despite what may have
been proven at trial, the trial is deemed not to
have taken place. Thus, at least in the eyes of
the criminal court, the defendant is no longer
a wrongdoer and has not defrauded or dam-
aged anyone.
These unfortunate situations also create the
danger of misusing the term “victim” in differ-
ent contextsSScivil and criminalSSwith the
same force. One is not necessarily a victim of
a crime because he suffers a loss at the hands
of another. The loss may arise from poor de-
cisions on the part of the alleged victim, poor
drafting on the part of the attorneys, or even
questionable conduct on the part of the defen-
dant. None of these situations, however, nec-
essarily warrants a criminal conviction. The
abatement doctrine provides that one should
not be permanently labeled as finally “con-
victed” while his first appeal is pending. That
is to say, in abatement the criminal court es-
sentially abdicates its power over the former
defendant.17
V.
The aforementioned justifications for alter-
ing our abatement doctrine rely on equitable
rationales. Perhaps more importantly, as the
estate argues, our current willingness to let
compensatory restitution orders survive the
death of the defendant runs contrary to the
text of the Victim and Witness Protection Act
(“VWPA”), 18 U.S.C. § 3663(a)(1)(A).
The VWPA allows a court to enter a resti-
tution order when “sentencing a defendant
convicted of an offense.” 18 U.S.C. § 3663-
(a)(1)(A) (emphasis added). If death termi-
nates the criminal case ab initio, the defendant
no longer stands convicted. One might re-
spond to this natural reading by arguing that
“convicted of an offense” has force only on the
day on which the restitution order is entered.
16(...continued)
abated a seemingly compensatory restitution order
entered against a defendant convicted of numerous
illegal financial dealings. Despite the time invested
in the trial and the guilty verdict, those whom the
decedent allegedly defrauded could not collect
through the federal criminal courts.
17 Merely because the criminal proceeding
abates, however, does not necessarily mean that an
individual who suffered a loss cannot obtain re-
imbursement in civil court. If he can meet the civil
court’s lower burden of proof, he may receive a
judgment from that court. The criminal court that
entered the prior reimbursement order, however,
should not retain any power over that prior
defendant.
One may argue that allowing the estate to sub-
stitute for the dead defendant ensures the fair rep-
resentation of the decent’s interests, but such a
substitution does not align logically with the abate-
ment of all prior criminal proceedings. Essentially,
the substitution doctrine forces the estate to argue
about a conviction that no longer exists and
requires a court to adjudicate the merits of a pro-
ceeding that no longer took place. Although it is
not without a cost, requiring victims to argue their
case in civil court protects the interests of
defendants whose direct appeals are not yet final.

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8
Because the defendant stands convicted on the
day the court enters the order, ret aining the
order after the defendant’s death would not
conflict with the VWPA.
Additional text of the VWPA, however,
suggests that “convicted” should not have
force merely at the time of the restitution or-
der. Section 3663(d) references 18 U.S.C.
§ 3664 as the enforcement mechanism for re-
imbursement orders. Section 3664(l) de-
scribes the effect of a conviction on future civil
actions: “A conviction of a defendant for an
offense involving the act giving rise to an or-
der of restitution shall estop the defendant
from denying the essential allegations of that
offense in any subsequent Federal civil pro-
ceeding or State civil proceeding.”
A standard canon of construction “provides
that a word used in different parts of the stat-
ute should be construed to have the identical
meaning throughout the entire statute.”18 If
the narrower construction of “convicted” is
applied to § 3664(l), an estate would be es-
topped from denying important factual matters
in a subsequent civil suit, even if the underly-
ing conviction had been abated.19 Just as a
trial conviction, after abatement, should not
estop an estate from mounting a defense in
civil court, one whose conviction is abated no
longer stands “convicted” for purposes of the
VWPA.20
VI.
The estate argues that the finality principle
also requires the government to return the
money paid pursuant to the Preliminary Judg-
ment of Forfeiture. The government stridently
disagrees.
The panel noted that “the doctrine of abate-
ment does not apply to fines, forfeitures, and
restitution paid prior to a defendant’s death.”
Parsons, 314 F.3d at 748 (emphasis added, ci-
tations omitted). Fines that have not yet been
paid, however, abate in the same manner as do
the prior criminal proceedings. Id. Asset and
similar cases have distinguished between fines
paid before and after a defendant’s death,
based on the punishment rationale.21
18 Miss. Poultry Ass’n v. Madigan, 992 F.2d
1359, 1363 (5th Cir.), modified, 9 F.3d 1113 (5th
Cir.), vacated on other grounds for reh’g en banc,
9 F.3d 1116 (5th Cir. 1993), opinion on reh’g, 31
F.3d 293 (5th Cir. 1994) (en banc)
19 Admittedly, one could argue that “convicted”
and “conviction” have different meanings. A de-
fendant may be convicted on a given day and will
always be convicted on that day. The conviction,
in contrast, may abate or dissolve. This distinc-
tion, however, ignores the effect of abatement on
either situation. After abatement, the defendant no
longer stands convicted on that date, and no
(continued...)
19(...continued)
conviction exists.
20 The dissent discusses, at length, the Manda-
tory Victim Restitution Act (“MVRA”). The par-
ties, however, did not argue the MVRA in the con-
text of this case. Instead, they generally focused on
the equitable doctrines, how they interacted with
one another, and how the VWPA affected that
analysis. Even if we consider the MVRA,
however, it references the same enforcement
provisionSS18 U.S.C. § 3664SSas does the
VWPA. Consequently, using the MVRA as a
means of keeping the compensatory-penal dichot-
omy fails, for the reasons we have discussed.
21 Asset, 990 F.2d at 214 (“The rule of abate-
ment has never been applied to require the return of
money paid by a defendant prior to his death and
(continued...)

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9
The question is whether the tender to the
government of the check for $970,826.90, at
the real estate closing, was a voluntary, irrevo-
cable payment, as the government contends, or
was, instead, only a means of preserving assets
pending the outcome of the appeal. The
government argues that by giving the check,
“Parsons paid and the government collected
the Money Judgment of criminal forfeiture
. . . . The United States collected Parsons’
payment in full satisfaction of the Money Judg-
ment.”
The agreement and the order provide for
full return of the money, with interest, if Par-
sons “prevails in the final determination of this
appeal.”22 Although, as explained, we con-
clude that restitution orders against Parsons
should abate with his death, neither the agree-
ment nor the Preliminary Judgment of Forfei-
ture requires the government to return the
already-paid funds.
“[T]he law . . . existing at the time a con-
tract is made becomes a part of the contract
and governs the transaction.” Tex. Nat’l Bank
v. Sandia Mortgage Corp., 872 F.2d 692, 698
(5th Cir. 1989) (internal citation and quotation
marks omitted) (applying Texas law).23 When
the government and Parsons entered into this
agreement, abatement did not require the re-
turn of penalties paid before a defendant’s
death.24 Nothing in the agreement or the spe-
cific facts of this case suggests that the parties
intended to avoid that pre-existing rule.
Although the estate might receive the funds
if Parsons “prevails” on appeal, he has not
achieved a victory, taken any action, or made
any substantive points worthy of overturning
his conviction. Rather, at the time of his
death, this court had made no decision on the
merits of the appeal. Although, based on the
abatement rationale, the restitution orders
must abate, Parsons has not “prevailed” in any
meaningful sense.
Presumably in an effort to protect his inter-
ests, Parsons voluntarily entered into the
agreement memorialized in the Preliminary
Judgment of Forfeiture. That agreement,
however, did not adequately provide for his
death and did not indicate that the parties
wished to act outside the legal framework at
the time they entered into the contract.25 Con
21(...continued)
has, in fact, been held inapplicable to
finesSSobviously penalSSpaid by a defendant be-
fore his death.”); see also United States v. Zizzo,
120 F.3d 1338, 1343 (7th Cir. 1997) (stating that
fines paid prior to death “are analogous to time
served and are not refundable.”).
22 The agreement has two requirements: “[I]n
the event Defendant Parsons prevails in the final
determination of this appeal, and no Final Judg-
ment of Forfeiture is entered in this case, the [gov-
ernment] shall return to Defendant Parsons . . . the
entire amount of $970,826.90, plus interest.” The
estate has satisfied the second requirement, as no
final judgment has been entered. Thus, we address
only whether Parsons “prevail[ed] in the final
determination of this appeal.”
23 We have no occasion here to comment on,
and we express no opinion on, a situation in which
there is no agreement or order, such as those pres-
ent in this case, conditioning return of the forfeited
sums on the outcome of the appeal.
24 See, e.g., Asset, 990 F.2d at 214 (“The rule
of abatement has never been applied to require the
return of money paid by a defendant prior to his
death . . . .”).
25 This analysis pertains only to Parsons and
(continued...)

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10
sequently, although Parsons died, we have not
validated any of his grounds for appeal, and he
has not “prevailed.” He is not entitled to the
return of the monies paid under the Prelimi-
nary Judgment of Forfeiture.
VII.
Thus, as part of ensuring that every defen-
dant has an opportunity to challenge his con-
viction by one direct appeal, we expunge the
criminal proceedings and the pending punish-
ments attached to those proceedings if the de-
fendant takes an appeal and dies during its
pendency. In the instant case, this includes an
unpaid restitution order. Based on the particu-
lar language of the Preliminary Judgment of
Forfeiture, Parsons did not meet the judg-
ment’s requirements, so we DENY his request
to require the return of sums paid under that
order.
This appeal is DISMISSED, and this matter
is REMANDED with direction to VACATE
the judgment of conviction and sentence, in-
cluding the order of restitution, and to dismiss
the indictment. To the extent that they are in-
consistent herewith, Asset and Mmahat are
overruled.
25(...continued)
this particular agreement. Other agreements may
contemplate the possibility of the defendant’s death
during the pendency of an appeal.

-- 10 of 26 --

26 The majority’s unique “finality rationale,” even if valid, does not
justify overruling Mmahat and Asset. The majority’s raison D’etre for
creating the “finality rationale” is that “all consequences of the
untested criminal conviction should abate,” maj. slip op. p.2 (emphasis
added), so that “neither the state nor affected parties should enjoy the
fruits of an untested conviction.” Id. p.5 (emphasis added). In Mmahat
itself, however, this court has already created a procedure for testing
the conviction of a defendant who dies during pendency of the appeal so
that compensatory restitution consequences or fruits would not flow from
an untested conviction. The Mmahat court held that the compensatory
restitution order against the deceased defendant did not abate; instead,
his heirs’ motion to substitute for him and continue the appeal in his
place was granted, and his arguments which potentially could result in
a reversal of the restitution order were fully considered. Mmahat, 106
F.3d at 93. Thus the majority has not shown a sufficient legal reason
for overruling Mmahat and Asset because the perceived evil of an
unreviewed and untested compensatory restitution order has been
adequately remedied by Mmahat itself.
Mmahat and Asset also have already attained the “finality rationale’s”
goal of eliminating the punitive effects of an unreviewed criminal
conviction by assuring “that the state should not label one as guilty
until he has exhausted his opportunity to appeal” maj. slip op. p.4;
preventing the “entering [of] an unreviewed judgment” Id. p.5; and
“preventing a wrongly-accused defendant from standing convicted.” Id.
p.6. Under Mmahat and Asset, the penal aspects of the judgment of
conviction, which label or give the accused status as a “convicted
criminal,” abate immediately upon the death of the defendant, and, as
already noted, the heirs or estate of the deceased can pursue the appeal
and take full advantage of the chance to have any judgment of
compensatory restitution reviewed and reversed. Thus, the concrete
objects and effects sought by the “finality rationale” are already
accessible under Asset and Mmahat. There is no reason to create a new
legalistic doctrine, and even if created it does not require overruling
those Circuit precedents.
(continued...)
11
DENNIS, Circuit Judge, joined by HIGGINBOTHAM, DAVIS, WIENER,
BENAVIDES, and STEWART, Circuit Judges, dissenting in part and
specially concurring in part:
I respectfully disagree with the majority’s decision to (1)
overrule our long-standing circuit precedents of United States v.
Mmahat, 106 F.3d 89 (5th Cir. 1997) and United States v. Asset, 990
F . 2 d 2 0 8 ( 5 t h C i r . 1 9 9 3 ) , 2 6 w h i c h h e l d

-- 11 of 26 --

26(...continued)
Contrary to the inference that might be drawn from a casual reading
of the majority’s citations, the “finality rationale” is a completely
novel judicial creation which has not been embraced or even suggested
by the other courts. The majority cites United States v. Pauline, 625
F.2d 684, 685 (5th Cir. 1980) and United States v. Moehlenkamp, 557 F.2d
126, 128 (7th Cir. 1977), See maj. slip op. p.4, but they do not support
or even mention that rationale. Pauline and Moehlenkamp merely hold
that the Supreme Court’s decision in Dove v. United States, 423 U.S. 325
(1976) to dismiss pending petitions for certiorari upon the petitioner’s
death, overruling its previous practice of abatement followed in Durham
v. United States, 401 U.S. 481 (1971), was not meant to alter the
longstanding rule of lower federal courts of abatement of the entire
criminal proceedings upon death of an appellant during the pendency of
his appeal. Pauline and Moehlenkamp dealt only with the abatement of the
punitive aspects of criminal convictions; the question of whether
compensatory restitution survives the appellant’s death was not
presented.
The majority was apparently inspired to create the “finality
rationale” by a single law review article. maj. slip op. p.4 (citing and
quoting Rosanna Cavallaro, Better Off Dead: Abatement, Innocence, and
the Evolving Right of Appeal, 73 U. Colo. L. Rev. 943, 954 (2002)). In
her article, Ms. Cavallaro argues that the right to appeal from a
criminal conviction should be and is evolving into a constitutional
right. She sees the adoption of the remedy of abatement ab initio by a
large majority of courts as an important “strand” which, together with
others, “are forceful arguments for formal, legal recognition of an
evolution in criminal procedure [toward constitutionalization of the
right to appeal].” Id. 986. In furthering her argument for the
constitutional right to appeal, she says that “[t]he abatement remedy
relies significantly on a larger premise: a conviction that cannot be
tested by appellate review is both unreliable and illegitimate[.]” Id.
954 It does not follow from this statement or the article as a whole
that courts should create a “finality rationale” as espoused by the
majority; nor does it follow that the dual mechanism provided by Asset
and Mmahat, i.e., abatement ab initio of all punitive consequences of
the criminal proceedings together with the right to continue the appeal
with respect to the compensatory restitution decree, does not adequately
satisfy the needs for reliability and legitimacy in criminal
proceedings.
12
that a restitution order, because it is compensatory rather than
punitive, does not abate with the defendant’s criminal conviction
and punishment when he dies while his appeal is pending; and (2)
judicially create a rule, contrary to federal statutes and common
law, that a judgment requiring a criminal defendant to make

-- 12 of 26 --

13
restitution to his victims also abates upon his death.
The well reasoned decisions in Mmahat and Asset established the
sound and just majority rule that, when a person adjudged guilty of
a crime dies while his appeal is pending, (1) the trial court’s
restitution order requiring him to compensate his victims for the
harm done them by his crimes does not abate or disappear, because
it is compensatory rather than penal; (2) the restitution order
continues to have effect as a civil judgment enforceable against
his estate; but (3) his estate may move to be substituted in his
place and pursue the appeal, which, if successful, will require
that the restitution judgment be cancelled. See Mmahat, 106 F.3d
at 93.
The majority now holds that, when a criminal defendant dies
during his appeal, the restitution judgment immediately abates and
is voided, leaving his estate the windfall of any fruit of his
crime, and requires that his victims go uncompensated for their
harm, and leaves in doubt whether they must turn over to the
criminal defendant’s estate any restitution previously received.
See Slip Op. at 2, 10.
1.
The majority’s decision conflicts with the policy and provisions
of the Mandatory Victims Restitution Act of 1996 (MVRA) and the

-- 13 of 26 --

27 The MVRA supersedes the VWPA, in part, and mandates restitution with
respect to, inter alia, mail fraud crimes (such as those committed by
Parsons), of which the defendant is convicted on or after the date of
the MVRA’s enactment. See S. Rep. 104-179, 104th Cong., 2nd Sess. 13,
reprinted in 1996 U.S. Code Cong. & Admin. News 926 (indicating that the
MVRA is designed to further the purposes of the VWPA); Pub. L. No. 104-
132 § 211, 110 Stat. 1241 (1996) (stating that the MVRA shall apply to
convictions on or after the date of the MVRA’s enactment); 18 U.S.C. §
3663A(c)(1)(A) (listing the types of crimes to which the MVRA applies);
United States v. Caldwell, 302 F.3d 399, 419 (5th Cir. 2002) (holding
that mail fraud is a crime to which the MVRA applies). For the reasons
discussed below, I believe the MVRA is not an ex post facto law, but a
compensatory, non-punitive remedy which applies retroactively to all
such convictions regardless of the date of the commission of the crime.
In any event, the policy and provisions of the MVRA should be carefully
and fully considered in this major policymaking decision having broad
future ramifications under the MVRA and VWPA.
28 The majority argues that the restitution order under this statute
should abate because, after the criminal case is abated ab initio, the
defendant no longer stands “convicted.” See maj. slip op. p.7. But the
language in question on its face uses the term “convicted” in the
context of “when [the district court is] sentencing” the defendant.
Because Parsons stood convicted during sentencing, the restitution order
was issued during sentencing, and the restitution order has the effect
of a civil judgment rendered at that time, see infra notes 5-11 and
accompanying text, the restitution order is valid.
The majority then tries to analogize to section 3664(l), which refers
to the effect of a conviction in subsequent proceedings, arguing that
the term “convicted” must have the same meaning in both of these
sections. But the word “convicted” has no temporal element; the
temporal thrust of each section is provided by the context in which the
(continued...)
14
Victim and Witness Protection Act of 1982 (VWPA)27 and undermines
the Congressional objective of requiring Federal criminal defen-
dants to pay compensatory restitution to the identifiable victims
of their crimes.
Congress enacted the VWPA in 1982, 18 U.S.C. § 3663 (1982), to
authorize, but not require, district courts, within their discre-
tion, to order restitution to victims of criminal conduct. Id. §
3663(a)(1)(A).28 In determining whether to order restitution, and

-- 14 of 26 --

28(...continued)
word “convicted” or “conviction” is used. Thus, the majority’s analogy
is inherently flawed.
15
how much, the court was required to consider, along with the loss
sustained by each victim, the financial resources and family needs
of the defendant. Id. § 3663(a)(1)(B). Prior to today’s decision
herein, a majority of circuits, including this Fifth Circuit, had
held that restitution orders under the VWPA were compensatory and
therefore non-abatable. See United States v. Asset, supra; United
States v. Mmahat, supra; see also United States v. Christopher, 273
F.3d 294, 299 (3rd Cir. 2001); United States v. Johnson, 1991 U.S.
App. LEXIS 17204 (6th Cir. 1991) (unpublished); United States v.
Dudley, 739 F.2d 175 (4th Cir. 1984). But see United States v.
Logal, 106 F.3d 1547, 1552 (11th Cir. 1997) (holding that restitu-
tion orders are punitive and should abate with the death of a
criminal defendant during his appeal).
In 1996, Congress enacted the MVRA, 18 U.S.C. § 3663A (1996),
which mandates restitution for certain crimes and clearly indicates
that such restitution is compensatory and non-abatable. The MVRA
superseded in part the VWPA, with respect to the designated crimes,
Id. § 3663A(c), and, as its name indicates, mandatorily requires
that, in sentencing a defendant convicted of, inter alia, “an
offense against property, including any offense committed by fraud
or deceit,” the court “shall order...that the defendant make
restitution to the victim of the offense or, if the victim is

-- 15 of 26 --

29 The defendant’s financial circumstances are relevant only to fixing
a payment schedule for the mandatory restitution. 18 U.S.C. §
3664(f)(2)-(4).
30 The MVRA expressly provides that if the victim is deceased
the court shall order restitution to the victim’s estate. Id. §
3663(a)(1)(A); this provision implies that the right created by the
restitution order is heritable property.
31 Id. §3664(g)(2).
32 Id. § 3664(m)(ii)(B), which provides:
At the request of a victim named in a restitution order, the
(continued...)
16
deceased, to the victim’s estate.” Id. §§ 3663A(c), 3663A(a).
Further, the MVRA amended the VWPA to provide that restitution
orders under the VWPA shall be issued and enforced in accordance
with § 3664, which sets forth the enforcement provisions of the
MVRA. See § 3663(d). (“An order of restitution made pursuant to
this section shall be issued and enforced in accordance with
Section 3664.”). In each restitution order under the MVRA and the
VWPA, as amended, the court “shall order restitution to each victim
in the full amount of each victim’s losses as determined by the
court and without consideration of the economic circumstances of
the defendant.” Id. § 3664(f)(1)(A).29
Under the MVRA and the VWPA, as amended, the court’s restitution
order expressly creates a property right for the victim or his
estate which has the effect of a civil judgment against the criminal
defendant or his estate. A restitution order is a heritable,30
assignable,31 civil judgment “in favor of such victim”,32 and, when

-- 16 of 26 --

32(...continued)
clerk of the court shall issue an abstract of judgment
certifying that a judgment has been entered in favor of such
victim in the amount specified in the restitution order. Upon
registering, recording, docketing, or indexing such abstract in
accordance with the rules and requirements relating to
judgments of the court of the State where the district court is
located, the abstract of judgment shall be a lien on the
property of the defendant located in such State in the same
manner and to the same extent and under the same conditions as
a judgment of a court of general jurisdiction in that State.
33 Id.
34 Id. § 3664(h).
35 Id. § 3664(l).
36 Id. § 3664(j)(1).
17
properly recorded, “shall be a lien on the property of the defen-
dant...in the same manner . . . as a judgment of a court of general
jurisdiction. . . .”33 The judgment of restitution carries poten-
tial civil effects of joint and several liability, res judicata or
collateral estoppel, and subrogation: When plural defendants
contribute to the loss of the victim the court may make each
defendant liable for payment of the full amount of restitution.34
A defendant ordered to make restitution is estopped from denying
the essential allegations of the offense in subsequent civil
proceedings.35 An insurer or other person who compensates the
victim for loss covered by a restitution order may to the extent of
the payment be subrogated to the victim’s right against the
restitution debtor.36
While the foregoing provisions demonstrate that Congress carefully

-- 17 of 26 --

37 Id. § 3664(b)(1).
38 Id. § 3664(b)(2).
39 Id. § 3664(j)(2).
18
designed the restitution ordered under the MVRA and the VWPA, as
amended, to be a compensatory remedy for crime victims, other
provisions of § 3664 protect the defendant from possible punitive
effects. In case of property loss, the order may require only a
return of the property or payment equal to the value of the
property.37 In case of bodily injury, the order may compensate the
victim only for specified losses, e.g., medical and therapeutic
expenses, lost income, funeral expenses, child care expenses,
transportation expenses, and expenses related to the prosecution.38
Thus, the court cannot order restitution for compensatory damages
related to pain, suffering, mental or emotional distress or for
punitive damages. Additionally, any amount paid to a victim under
a restitution order shall be reduced by the victim’s recovery of
compensatory damages for the same loss in civil proceedings.39
In sum, an order of restitution under the MVRA or the VWPA, as
amended, is expressly compensatory, non-punitive, and equivalent to
a civil judgment against a criminal defendant requiring that he
compensate his victims for the specified elements of the harm done
to them by his offenses. Consequently, the majority’s decision
conflicts with the statutory scheme by treating the restitution
order as abatable and therefore impliedly punitive. The decision

-- 18 of 26 --

40 The majority asserts that its “finality rationale. . . . mandates
that all vestiges of the criminal proceeding should disappear.”
maj.op.n.13. Because the compensatory/penal analysis would not result
in total abatement, the majority rejects it summarily. Id.
Until the majority’s decision rejecting the compensatory/penal
analysis, it had been adopted and used unanimously. See Mmahat, 106
F.3d 89, 93 (using the penal-compensatory dichotomy); Asset 990 F.2d at
213-14 (same); see also United States v. Christopher, 273 F.3d 294, 298-
99 (3rd Cir. 2001)(same); United States v. Logal, 106 F.3d 1547, 1552
(11th Cir. 1997) (same); United States v. Dudley, 739 F.2d 175, 177-78
(4th Cir. 1984) (same); United States v. Johnson, 1991 U.S. App. LEXIS
17204 (6th Cir. 1991) (unpublished) (citing Dudley). By rejecting the
analysis and the unanimous weight of authority, the majority opinion
places this Circuit in a sui generis position of isolation.
The compensatory/punitive test is part of the well settled doctrine
that death abates a criminal penalty because, once the defendant is
dead, there is no longer a justification for the punishment of him or
his estate; but the defendant’s death does not affect the justification
for restitution intended only to compensate the victim; accordingly,
such restitution survives and its payment will not undermine the
purposes of abatement since the goal of the payment is not to punish the
defendant, or his estate, but to restore the victim’s losses. See, e.g.,
(continued...)
19
thereby divests the victims of vested rights established by the
restitution order as a civil judgment. On the other hand, Mmahat
and Asset, which the majority overrules, are fully consistent with
the MVRA, the VWPA, as amended, and their objectives. The major-
ity’s decision plainly clashes with and undermines the Congressional
policy implemented by the VWPA and the MVRA.
2.
The majority opinion disregards or refuses to follow the well
reasoned opinions of other Circuits that carefully analyze the VWPA
and the MVRA and conclude that restitution orders under them are
compensatory and do not constitute criminal punishment for ex post
facto or abatement purposes.40

-- 19 of 26 --

40(...continued)
Asset, 990 F.2d at 214 (citing United States v. Morton, 635 F.2d 723,
725, 727 (8th Cir, 1980); United States v. Bowler, 537 F.Supp.933, 935
(N.D. Ill. 1982)). Restitution also serves the non-penal purpose of
removing benefits derived by wrongdoing from the defendant’s estate,
which would otherwise be unjustly enriched, and using them to repair the
victim’s losses. Christopher, 273 F.3d at 299 , cert. denied, 536 U.S.
964 (2002)(“To absolve the estate [of the defendant] from refunding the
fruits of the wrongdoing would grant an undeserved windfall.”)
Most important, as the text of this dissenting opinion explains,
Congress in the MVRA and the VPWA has confirmed the merit of the
compensatory/punitive test by providing that judgments of compensatory
restitution for crime victims shall have the force and effect of civil
judgments, which under the federal and common law do not abate but
survive the death of the defendant judgment-debtor.
The majority erroneously claims that it has crafted a “consistent
regime that incorporates statutory elements–such as the Victim and
Witness Protection Act . . . .” Maj. slip op. at 6 n.13. Instead, the
majority has simply expanded the judicially created rule of ab initio
abatement far beyond its original purpose to, in effect, judicially
overrule the national policy and legislated law of restitution of crime
victims enacted by Congress in the MVRA and VWPA.
41 Some courts, without functional analysis or reasoning, treat
restitution under the VWPA and MVRA as a criminal penalty. See United
States v. Edwards, 162 F.2d 87, 89-90 (3rd Cir. 1998) (collecting
cases). They rely on formalistic classification of the restitution
order as criminal because it issues during the sentencing proceeding;
they fail to recognize the modern practice of using civil proceedings
as ancillary to criminal actions. See Susan R. Klein, Redrawing the
Criminal-Civil Boundary, 2 Buff. Crim. L.R. 679, 686-89 (1999) (noting
the MVRA as an example). Though courts are authorized to issue
restitution orders in criminal proceedings, restitution under the MVRA
and VWPA is functionally a tort remedy–a streamlining of procedures that
allows a victim to recover a compensatory remedy though “a summary
proceeding ancillary to a criminal prosecution.” See Bach, 172 F.3d at
523 (citing, inter alia, Carol S. Steiker, Punishment and Procedure:
(continued...)
20
Chief Judge Posner, in United States v. Bach, 172 F.3d 520 (7th
Cir. 1999), succinctly and persuasively stated the reasons that MVRA
restitution orders are compensatory, rather than criminal punish-
ment, and therefore cannot run afoul of the ex post facto prohibi-
tion.41 He explained that the MVRA is not penal but is functionally

-- 20 of 26 --

41(...continued)
Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J.
775, 782-83 (1997)).
Indeed, the acts within which the MVRA and VWPA are contained were not
passed as solely criminal acts. The MVRA was simply one part of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which
contains both criminal and civil legislation. See Pub. L. 104-132, 110
Stat. 1214 (1996). For example, AEDPA contains, among other provisions,
sections involving habeas corpus reform and provisions relating to civil
lawsuits brought against terrorist states. Id. In addition, the VWPA
is primarily a civil act providing for compensatory restitution. In
other words, both the MVRA and the VWPA were passed as part of
legislative enactments that created both civil and criminal reforms.
21
a compensatory torts statute:
The Act requires the court to identify the
defendant's victims and to order restitution to
them in the amount of their loss. In other
words, definite persons are to be compensated
for definite losses just as if the persons were
successful tort plaintiffs. Crimes and torts
frequently overlap. In particular, most crimes
that cause definite losses to ascertainable
victims are also torts: the crime of theft is
the tort of conversion; the crime of assault is
the tort of battery--and the crime of fraud is
the tort of fraud. Functionally, the Mandatory
Victims Restitution Act is a tort statute,
though one that casts back to a much earlier
era of Anglo-American law, when criminal and
tort proceedings were not clearly
distinguished. The Act enables the tort victim
to recover his damages in a summary proceeding
ancillary to a criminal prosecution. We do not
see why this procedural innovation, a welcome
streamlining of the cumbersome processes of our
law, should trigger rights under the ex post
facto clause. It is a detail from a defrauder's
standpoint whether he is ordered to make good
his victims' losses in a tort suit or in the
sentencing phase of a criminal prosecution. It
would be different if the order of restitution
required the defendant to pay the victims'
losses not to the victims but to the government
for its own use and benefit; then it would be
a fine, which is, of course, traditionally a
criminal remedy.

-- 21 of 26 --

22
Bach, 172 F.3d at 522-23 (internal citations omitted)(emphasis
added).
The Seventh Circuit’s decision in Newman v. United States, 144
F.3d 531 (7th Cir. 1998), provides further analysis demonstrating
that restitution under the MVRA does not qualify as criminal
punishment. (1) “Restitution has traditionally been viewed as an
equitable device for restoring victims to the position they had
occupied prior to a wrongdoer’s actions.” 144 F.3d at 538 (citing
Restatement of Restitution (introductory note) (1937)). “It is
separate and distinct from any punishment visited upon the wrongdoer
and operates to ensure that a wrongdoer does not procure any benefit
through his conduct at others’ expense.” Id. (Citing 1 George E.
Palmer, The Law of Restitution § 1.1, at 5 (1978)); (2) The non-
punitive character of restitution had been recognized by the Seventh
Circuit and other courts in previous cases. Id. 538-39 (Citing
United States v. Black, 125 F.3d 454, 467 (7th Cir. 1997) (restitu-
tion under the Child Support Recovery Act of 1992 was not punish-
ment); United States v. Hampshire, 95 F.3d 999, 1006 (10th Cir.
1996) (same); United States v. Arutunoff, 1 F.3d 1112, 1121 (10th
Cir.) (The VWPA’s purpose is not to punish defendants but to make
victims whole to the extent possible); United States v. Rochester,
898 F.2d 971, 983 (5th Cir. 1990) (same)); (3) The nature of the
restitution order authorized by the VWPA or the MVRA is not a
punitive sanction when analyzed under the factors set forth by

-- 22 of 26 --

23
Kennedy v. Mendoza-Martinez, 371 U.S. 144, 168-69 (1963) for
deciding whether a statutory scheme was so punitive in purpose or
effect as to transform what was intended as a civil remedy into a
criminal penalty. See Newman, 144 F.3d at 540 (citing Kansas v.
Hendricks, 521 U.S. 346 (1997); Hudson v. United States, 522 U.S.
93 (1997)).
Accord: United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999);
United States v. Arutunoff, 1F.3d 1112, 1121 (10th Cir. 1993)(“The
VWPA’s purpose is not to punish defendants or to provide a windfall
for crime victims but rather to ensure that victims, to the greatest
extent possible, are made whole for their losses.”)(citing United
States v. Rochester, 898 F.2d 971, 983 (5th Cir. 1990)).
For similar reasons, the majority of circuits that have addressed
whether MVRA or VWPA restitution orders are abatable, decided that,
because such orders are compensatory rather than punitive, the death
of the defendant during appeal does not cause them to abate. See
United States v. Christopher, 273 F.3d 294, 298 (3rd Cir. 2001) (“To
absolve the estate from refunding the fruits of the wrongdoing would
grant an undeserved windfall...abatement should not apply to the
order of restitution in this case....”);United States v. Mmahat,
supra; United States v. Asset, supra; United States v. Johnson, 1991
U.S. App. LEXIS 17204 (6th Cir.) (unpublished) (same); United States

-- 23 of 26 --

42 One Circuit court concluded, with little analysis or reasoning, that
restitution orders are punitive and therefore should abate when a
defendant dies during his appeal. See United States v. Logal, 106 F.3d
1547 (11th Cir. 1997).
24
v. Dudley, 739 F.2d 175, 178 (4th Cir. 1984) (same).42
3.
The majority’s decision is contrary to the general principles of
federal and common law pertaining to abatement, survival, and
revival of actions and judgments. With respect to a cause of action
created by act of Congress, it is well settled that the question of
whether it survives the death of a party by or against whom it has
been brought is not one of procedure but one which depends on
federal substantive law. Schreiber v. Sharpless, 110 U.S. 76, 80
(1884); See 7C Wright, Miller & Kane §§ 1952 & 1954 (2d ed 1986).
If no specific provision for survival is made by federal law, as
in the present case, the cause survives or not according to the
principles of common law. Patton v. Brady, 184 US 608 (1902); Ex
parte Schreiber, supra. Generally, an action is not abated by the
death of a party after the cause has reached a verdict or final
judgment and while the judgment stands, 1 Am Jur 2d, Abatement,
Survival and Revival § 61, n.26 (citing Connors v. Gallick, 339 F.2d
381 (1964); Smith v. Henger, 148 Tex 456, 226 S.W. 2d 425, 20 ALR2d
853 (1950), et al.), even if the judgment is based on a cause of
action that would not have survived had the party died before
judgment. Id. §61, n.27.(citing Mayor, etc., of Anniston v. Hurt,

-- 24 of 26 --

43 § 3664(m)(ii)(B). See note 7, supra.
25
140 Ala 394, 37 So 220 (1903), et al.). “So long as the judgment
remains in force, the rule on survival has no further application,[]
even where the proceedings are stayed by appeal and supersedeas.”
Id., nn. 28 and 29 (citing authorities).
A restitution order issued under the MVRA has the effect of a
judgment “entered in favor of such victim in the amount specified
in the restitution order.”43 It is undisputed that the defendant
Parsons’s death occurred after the special verdict and restitution
order were entered. Consequently, under the substantive principles
of federal and common law pertaining to abatement, survival and
revival, the judgment of restitution survived and was not abated by
the defendant’s death. Id.
4.
I respectfully concur in the result reached by the majority
opinion in not ordering the government to return sums already paid.
Because I would not overrule this Circuit’s precedents in Mmahat and
Asset but would adhere to them, I cannot join the majority in
reasons related to this point. As I read those Circuit precedents,
the rule of abatement does not apply to require the return of money
paid by a defendant prior to his death as forfeiture, fine or
restitution. I do not join in the expungement order because I am
uncertain as to whether this relief was requested or whether the
estate would be entitled to it if it had been prayed for.

-- 25 of 26 --

26
For the foregoing reasons, I respectfully dissent in part and
specially concur in part in the majority opinion.

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