755 F.3d 448
7th Cir.2014Background
- Volpendesto, 87, in poor health and wheelchair-bound, was convicted on four counts including restitution and forfeiture-related judgments.
- District court imposed $547,597 in criminal restitution and a $1,878,172 forfeiture judgment, with ongoing monthly payment obligations.
- Volpendesto died before his direct appeal could be resolved, and the appeals were severed from codefendants'.
- The central question: whether a criminal restitution order survives death or abates with the criminal judgment.
- The court treated restitution under the Mandatory Victim Restitution Act as inseparable from the underlying conviction and sentence.
- Court held that death moots the case and abates the restitution order, vacating the judgment and dismissing as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does death during direct review abate the criminal case and related restitution? | Volpendesto’s estate would challenge restitution as part of the judgment. | Abatement applies; no final conviction, no restitution order enforceable. | Abatement applies; case moot and restitution vacated. |
| Should the restitution order survive death or be abated as part of the judgment? | Restitution is punitive/compensatory and should survive to protect victims. | Restitution cannot be imposed without a final conviction and should abate. | Restitution abates with the criminal judgment upon death. |
| What is the proper court’s remedy if the case is moot due to death? | Estate could move to continue appeal or vacate accordingly. | Mootness permits vacatur and dismissal; no final conviction to support restitution. | Vacate judgment and dismiss as moot. |
Key Cases Cited
- Moehlenkamp v. United States, 557 F.2d 126 (7th Cir. 1977) (death during appeal abates entire proceedings)
- United States v. Zizzo, 120 F.3d 1338 (7th Cir. 1997) (abates upon death during appeal)
- United States v. Parsons, 367 F.3d 409 (5th Cir. 2004) (en banc; restitution abates)
- United States v. Christopher, 273 F.3d 294 (3d Cir. 2001) (restitution order and survivability considerations)
- United States v. Logal, 106 F.3d 1547 (11th Cir. 1997) (vacating conviction and restitution due to death)
- United States v. Dudley, 739 F.2d 175 (4th Cir. 1984) (restitution considerations in abatement context)