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Circuit Affirms Conviction Based On Appeal Waiver After Defendant’s Death

“The evil that men do lives after them; The good is oft interred with their bones.”  William Shakespeare, Julius Caesar, Act III, scene ii.  In United States v. Mladen, the Second Circuit (Kearse, Walker, Livingston) grappled with whether Dusan Mladen’s convictions would live on after he passed away during the pendency of his appeal.

Mladen pleaded guilty, pursuant to a written plea agreement, to making false statements, the second count in a two-count indictment related to threats Mladen made against a federal judge (and false statements he made to federal marshals denying that he had made those threats).  Mladen’s Guidelines range was calculated at 51 to 63 months and he was sentenced to the statutory maximum of 60 months, followed by a three-year term of supervised release, a fine of $20,000, and a mandatory special assessment of $100.  On appeal, Mladen raised only challenges to his sentence and the sentencing proceedings, consistent with the terms of his plea agreement. However, before the Court decided his appeal, Mladen died.  His counsel then filed an abatement motion—just as the defendant did in United States v. Brooks, 872 F.3d 78 (2d Cir. 2017)—seeking to erase the proceedings, vacate the Mladen’s conviction, dismiss the indictment and appeal, and requesting repayment of the fine and special assessment. The Government opposed the motion to the extent it sought vacatur of the conviction and return of the special assessment.

The Court granted the motion in part and denied in in part.  The Court agreed that a death during the pendency of a direct appeal normally requires that all proceedings in the prosecution be entirely erased.  However, because Mladen had pleaded guilty and appealed only his sentence, his convictions had become final.  As with some of the convictions in Brooks, where a defendant has waived the right to appeal his conviction, convictions will not abate.  The Circuit rejected Mladen’s argument that its past precedents only foreclosed abatement when an entire count had become final, concluding that the rationales underlying the doctrine of abatement did not apply where a guilty plea had been entered and the right to appeal had been unequivocally waived.  However, the Court granted the unopposed aspects of Mladen’s motion seeking dismissal of the appeal, vacatur of the supervised release, and repayment of the $20,000 to his estate. The rarely implicated doctrine of abatement has now arisen three times in recent years—this appeal, in Brooks, and also in the case of former New York politician Thomas Libous.  When a defendant dies prior to his conviction but before his appeal is resolved, litigants and district judges now have considerable guidance about how to resolve the case.

By Jacob Tuttle Newman and Harry Sandick