958 F.3d 156
2d Cir.2020Background:
- Dusan Mladen was indicted on two counts: threatening a federal judge (Count One) and making false statements to federal officials (Count Two); he pleaded guilty to Count Two pursuant to a written plea agreement.
- In the plea agreement Mladen admitted lying to deputy marshals—denying calls/visits to the judge—and expressly waived the right to appeal his conviction; the government reserved the right to present relevant conduct, and Count One was later dismissed after sentencing.
- Post‑plea, Marshals recorded jailhouse statements in which Mladen discussed arming himself and expressed intent to kill the judge; the transcript was used at sentencing and increased the Guidelines range to the statutory maximum of 60 months.
- The district court sentenced Mladen to 60 months imprisonment, three years supervised release, a $20,000 fine, and the mandatory $100 special assessment; Mladen appealed only sentencing issues (due process, Sixth Amendment, Guidelines, supervised‑release conditions, and fine ability-to-pay).
- While the direct appeal was pending, Mladen died. His counsel moved to abate all proceedings: dismiss the appeal, vacate the conviction, dismiss the indictment, and return the $20,000 fine and $100 special assessment to his estate; the government opposed vacatur of the conviction and repayment of the $100 assessment.
- The Second Circuit dismissed the appeal, granted remand to vacate imprisonment and supervised release and ordered return of the $20,000 fine to the estate, but denied vacatur of the conviction, denial of dismissal of Count Two, and repayment of the $100 special assessment.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the defendant's death abates his conviction entered on an unconditional guilty plea with an appeal waiver | Government: conviction was final and unappealable because Mladen entered an unconditional plea and waived appeals of the conviction | Estate/Mladen: death during pendency of appeal requires abatement of conviction | Denied — conviction not vacated; plea and waiver made conviction final before death |
| Whether Count Two (the conviction count) and the indictment should be dismissed because of death | Estate: move to dismiss and abate all proceedings | Government: opposes dismissal of the conviction/count | Denied as to Count Two (conviction remains); dismissal of other count was moot because Count One already dismissed |
| Whether the mandatory $100 special assessment must be repaid to the estate | Estate: requested repayment of all monetary penalties | Government: opposes repayment of statutory special assessment | Denied — $100 special assessment remains because conviction stands |
| Whether imprisonment/supervised release and the $20,000 fine should be vacated/returned due to death during appeal | Estate: requested vacatur of sentence components and repayment of fine; sought dismissal of appeal | Government: did not oppose vacating punitive components given death | Granted — appeal dismissed; remanded to vacate imprisonment and supervised release and to order repayment of the $20,000 fine to the estate |
Key Cases Cited
- United States v. Brooks, 872 F.3d 78 (2d. Cir. 2017) (abatement is divisible; convictions that were final pre‑death by plea and waiver do not abate)
- United States v. Libous, 858 F.3d 64 (2d. Cir. 2017) (abatement doctrine and the interest in finality pending appeal)
- United States v. Wright, 160 F.3d 905 (2d. Cir. 1998) (abatement ab initio discussion where government did not oppose vacatur of conviction)
- United States v. Coffin, 76 F.3d 494 (2d. Cir. 1996) (conditional guilty pleas may reserve nonjurisdictional appeal rights only with government and court approval)
- United States v. DeMichael, 461 F.3d 414 (3d. Cir. 2006) (vacatur inappropriate where appellant’s brief sought only sentencing review, not conviction merits)