UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4996
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH DIBRUNO, SR.,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00430-FDW-2)
Submitted: June 10, 2011 Decided: July 13, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Dismissed and remanded with instructions by unpublished per
curiam opinion.
David Q. Burgess, LAW OFFICE OF DAVID Q. BURGESS, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case addresses the survivability of an order of
restitution following the death pending appeal of a convicted
criminal defendant. For the reasons that follow, we dismiss the
appeal and remand with instructions.
I.
From 1999 through July 2005, Joseph DiBruno, Sr.
(“DiBruno”), and his sons Joseph, Jr., and Nicholas organized
and incorporated various corporations and entities, soliciting
investors with promises of high rates of return. Some of these
entities were operational businesses, but others were merely
“shell” entities designed to allow DiBruno and his sons to
solicit monies from unsuspecting investors. DiBruno and his
sons did not invest investors’ funds into the operational
businesses; rather, they used the funds they solicited for
personal expenditures, defrauding investors of over three
million dollars. In August 2007, a federal grand jury returned
a second superseding indictment charging DiBruno and his sons
with, among other offenses, conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371 (2006). DiBruno pled
guilty, pursuant to a written plea agreement, to the conspiracy
charge.
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Prior to sentencing, DiBruno moved to withdraw his
guilty plea, but the district court denied the motion after a
hearing at which DiBruno testified. Based on his testimony at
the hearing, the district court found DiBruno guilty of criminal
contempt, see 18 U.S.C. § 401 (2006); Fed. R. Crim. P. 42(b).
The court sentenced DiBruno to sixty months’ imprisonment on the
conspiracy count, ordered that he pay a $100 special assessment,
and ordered that he pay restitution, jointly and severally with
his co-defendant sons, in the amount of $3,808,487. The court
also sentenced DiBruno to six months’ imprisonment on the
contempt count, to be served consecutively to the sixty-month
prison term on the conspiracy count. DiBruno timely appealed
the judgment of conviction and the district court’s order of
contempt.
In February 2009, while DiBruno’s appeal was pending
in this court, but before filing an opening appellate brief,
DiBruno’s counsel filed a suggestion of death, informing us that
DiBruno had died. The Government then moved to dismiss the
appeal as moot. In response, DiBruno’s counsel concurred with
the Government’s conclusion that the appeal should be dismissed
as moot as a result of DiBruno’s death. Counsel further
asserted that the case should be remanded to the district court
with instructions to vacate DiBruno’s convictions and dismiss
the indictment against him.
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The parties disagreed, however, over the appropriate
resolution of the order of restitution, and we directed them to
file briefs addressing this issue. Having reviewed those briefs
and the submissions relative to the Government’s motion to
dismiss, we conclude that, although DiBruno’s convictions and
sixty-six month prison sentence abate as a result of his death
pending appeal, the restitution order survives.
II.
In United States v. Dudley, 739 F.2d 175, 176
(4th Cir. 1984), this court held that the death of an appellant
pending an appeal of his criminal conviction results in the
abatement of “not only the appeal but all proceedings in the
prosecution from its inception.” In such a case, the appeal is
to be dismissed and the case remanded to the district court with
instructions to vacate the judgment of conviction and dismiss
the indictment. Id. An exception to this general directive
exists, however, as to any order of restitution included within
the criminal judgment. Id. at 178.
In this case, DiBruno timely appealed both the
judgment of conviction and the district court’s order of
criminal contempt, and the appeal was pending in this court at
the time of DiBruno’s death. Although DiBruno died before his
counsel filed an opening appellate brief raising any issues for
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review, there existed at the time of DiBruno’s death at least
the possibility that his convictions might be overturned.
See United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006)
(“When a defendant appeals the judgment of conviction
itself . . . or files a general notice of appeal but dies before
submitting an opening brief, the possibility remains that the
conviction itself might be overturned.”); United States v.
Pogue, 19 F.3d 663, 665 (D.C. Cir. 1994) (per curiam)
(“[A]ppellant had filed a timely appeal before his death; the
appeal was not withdrawn; and, had he lived, appellant could
have challenged the plea agreement and underlying conviction.”).
In view of this possibility, we conclude that DiBruno died
pending the appeal of his conspiracy and contempt convictions.
Accordingly, the general rule of abatement applies, and we
therefore grant the Government’s motion to dismiss the appeal as
moot. We also remand to the district court with instructions to
vacate DiBruno’s convictions and sixty-six month prison sentence
and to dismiss the second superseding indictment as to DiBruno.
See Dudley, 739 F.2d at 176. However, fee assessments already
paid need not be refunded because they are the equivalent of
prison time already served; therefore, the rule of abatement
does not apply to any payments already made on the $100 special
assessment, and we further instruct that the Government not be
ordered to refund any such payments to DiBruno’s estate.
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See United States v. Zizzo, 120 F.3d 1338, 1346-47 (7th Cir.
1997).
III.
With respect to the order of restitution, DiBruno’s
counsel suggests that it, too, should abate because failure to
abate the order would contravene the principle that death
pending appeal abates all proceedings in the prosecution from
its inception. Counsel also suggests that allowing the
restitution order to survive DiBruno’s death would create
statutory inconsistency because the acts governing restitution,
the Victim and Witness Protection Act of 1982, as amended
(“VWPA”), see 18 U.S.C. § 3663 (2006), and the Mandatory Victims
Restitution Act of 1996 (“MVRA”), Pub. L. No. 104-132, §§ 201-
11, 110 Stat. 1214, 1227-41 (codified in relevant part at
18 U.S.C. §§ 3663A, 3664 (2006)), authorize restitution only for
those who are “convicted” of criminal offenses. We disagree.
A.
We have previously concluded that orders of
restitution do not abate by reason of the death of a convicted
criminal defendant who dies while his appeal his pending.
Dudley, 739 F.2d at 177-78. As Judge Murnaghan explained for
the court in Dudley, “[t]he argument that impositions of
penalties in criminal cases have heretofore always been abated
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on death of the accused . . . grows out of the consideration
that punishment, incarceration, or rehabilitation have
heretofore largely been the exclusive purposes of sentences and
so ordinarily should be abated upon death” because “shuffling
off the mortal coil completely forecloses punishment,
incarceration, or rehabilitation, this side of the grave at any
rate.” Id. at 177. Recognizing that “[i]t is an old and
respected doctrine of the common law that a rule ceases to apply
when the reason for it[] dissipates,” the court held that the
rule of abatement should not apply to orders of restitution
because such orders, although contained in judgments of
convictions and thus “in some respects penal,” have the
“predominantly compensatory purpose of reducing the adverse
impact [of the defendant’s crimes] on the victim.” Id.
Although the Courts of Appeals are divided on whether
an order of restitution abates when a convicted criminal
defendant dies pending direct appeal, compare United States v.
Christopher, 273 F.3d 294, 298-99 (3d Cir. 2001) (holding
restitution order does not abate); United States v. Johnson,
Nos. 91-3287, 91-3382, 1991 WL 131892, at *1 (6th Cir. July 18,
1991) (same); Dudley, 739 F.2d at 178 (same), with United
States v. Rich, 603 F.3d 722, 728-31 (9th Cir. 2010) (holding
restitution order does abate); United States v. Estate of
Parsons, 367 F.3d 409, 415 (5th Cir. 2004) (en banc) (same);
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United States v. Logal, 106 F.3d 1547, 1552 (11th Cir. 1997)
(same), Dudley is controlling Circuit precedent and thus
dictates the result here. See United States v. Rivers, 595 F.3d
558, 564 n.3 (4th Cir. 2010) (“[A] panel of this court cannot
overrule, explicitly or implicitly, the precedent set by a prior
panel of this court. Only the Supreme Court or this court
sitting en banc can do that.” (internal quotation marks
omitted)). The Dudley decision explicitly excepted orders of
restitution from the general rule that “[d]eath pending appeal
of a criminal conviction abates not only the appeal but all
proceedings in the prosecution from its inception.” Dudley, 739
F.2d at 176-78. Counsel’s first claim is thus foreclosed by
Dudley and therefore fails.
B.
Counsel also suggests that, the Dudley decision
notwithstanding, allowing the order of restitution to survive
DiBruno’s death would create statutory inconsistency because the
VWPA and the MVRA authorize restitution only for those
defendants who have been “convicted” of criminal offenses.
Counsel thus posits that where a defendant’s conviction never
becomes final as a result of his death pending appeal, the
statutes provide no authority for the defendant to be required
to pay restitution. In the absence of such authority, counsel
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urges, the restitution component of a defendant’s sentence also
must abate.
Restitution is a statutory remedy based in the VWPA
and the MVRA. Enacted in 1982, the VWPA authorized, but did not
require, district courts to order restitution to victims when
sentencing defendants convicted of criminal offenses. 18 U.S.C.
§ 3663(a)(1)(A) (“The court, when sentencing a defendant
convicted of an offense under this title . . . may order, in
addition to . . . any other penalty authorized by law, that the
defendant make restitution to any victim of such offense.”
(emphasis added)). In 1996, the MVRA, which supersedes the VWPA
in part, was enacted. The MVRA requires a district court to
order restitution to victims when sentencing defendants
convicted of certain criminal offenses. 18 U.S.C.
§ 3663A(a)(1), (c)(1)(A)(ii), (B) (“[W]hen sentencing a
defendant convicted of an offense [committed by fraud or
deceit[] or . . . in which an identifiable victim or victims has
suffered a . . . pecuniary loss], the court shall order, in
addition to . . . any other penalty authorized by law, that the
defendant make restitution to the victim of the offense.”
(emphasis added)).
Counsel’s argument that these statutes provide no
authority for a decedent defendant’s estate to be required to
pay restitution proceeds from the premise that the term
9
“convicted” has a specific temporal thrust. Dudley, however,
countenanced the view that the import of the term “convicted” is
provided by the context in which term is used, and that the
pertinent context was “when [the district court was] sentencing”
Dudley. At sentencing in October 1983, Dudley stood “convicted”
of one drug distribution and several food stamp offenses and was
ordered, pursuant to the VWPA, to pay restitution. Dudley, 739
F.2d at 175-76. And although this court abated Dudley’s
convictions as the result of his death pending appeal, the court
did not abate the order of restitution, even though Dudley’s
convictions were voided as a result of the abatement. Id. at
177-78.
While Dudley issued before the enactment of the MVRA,
the court’s adoption of this view of the temporal thrust of the
term “convicted” applies to orders of restitution issued, as
here, under the MVRA. It is a bedrock principle of statutory
interpretation that statutes that are in pari materia or
relating to the same subject matter are to be interpreted in
light of, and consistently with, one another. United States v.
Stewart, 311 U.S. 60, 64 (1940). This interpretive principle is
especially applicable when two statutes adopt the same
vocabulary in reference to the same subject matter. See, e.g.,
Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979).
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Here, the MVRA adopts the same vocabulary—“when
sentencing a defendant convicted of an offense”—as used in the
VWPA to refer to the same subject matter, namely, the temporal
condition precedent for a court to order the defendant to pay
restitution. As Dudley interprets the term “convicted” as used
in the VWPA with reference to this temporal context, the in pari
materia canon directs adoption of the same construction of the
term as used in the MVRA. Applying this approach here, because
DiBruno stood “convicted” of the conspiracy offense during
sentencing and was ordered during sentencing to pay restitution
to the victims of that offense, the restitution order is valid
and thus survives the abatement of DiBruno’s convictions
following his death.
C.
Adopting the position of DiBruno’s counsel would, we
believe, contravene Congress’ intent to require Federal criminal
defendants to compensate the identifiable victims of their
crimes. In Dudley, this court held a restitution order under
the VWPA has the “predominantly compensatory purpose of reducing
the adverse impact [of the defendant’s crimes] on the victim.”
Dudley, 739 F.2d at 177. A review of the MVRA and VWPA, as
amended, confirms that restitution orders continue to be
compensatory in nature.
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The MVRA amended the VWPA to provide that restitution
orders under the VWPA are to be issued and enforced in
accordance with 18 U.S.C. § 3664, the enforcement provision of
the MVRA. 18 U.S.C. § 3663(d). In each restitution order under
the MVRA and the VWPA, as amended, the district court must 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.” 18 U.S.C.
§ 3664(f)(1)(A). Additionally, under the MVRA and VWPA, as
amended, the district court’s order of restitution creates a
property right for the victim that has the effect of a civil
judgment against the convicted criminal defendant or his estate.
An order of restitution is a heritable, 18 U.S.C.
§ 3663(a)(1)(A), assignable, 18 U.S.C. § 3664(g)(2), civil
judgment “in favor of such victim,” id. § 3664(m)(1)(B), and,
when properly registered or recorded, shall operate as “a lien
on the property of the defendant . . . in the same manner and to
the same extent and under the same conditions as a judgment of a
court of general jurisdiction,” id.
Further, an order of restitution carries the civil
effects of joint and several liability, collateral estoppel, and
subrogation. Where, as here, multiple defendants contribute to
a victim’s loss, the district court may make each defendant
liable for payment of the full restitution amount. Id.
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§ 3664(h). A defendant ordered to make restitution is estopped
from denying the essential allegations of the offense in any
subsequent civil proceeding. Id. § 3664(l). Additionally, an
insurer or other person who compensates the victim for any loss
covered by a restitution order may, to the extent of the
payment, be subrogated to the victim’s right against the
restitution debtor. Id. § 3664(j)(1).
Other provisions of the MVRA and VWPA, as amended,
protect the defendant from possible punitive effects of a
restitution order. For instance, in the case of property loss
to the victim, the restitution order may require only a return
of the property or payment equal to the value of the property
loss. 18 U.S.C. §§ 3663(b)(1), 3663A(b)(1). In the case of
bodily injury to the victim, the restitution order may
compensate the victim only for certain, enumerated expenses
incurred as a result of the offense. Id. §§ 3663(b)(2)-(3),
3663A(b)(2)-(3). Further, any restitution amount paid to a
victim under a restitution order must be reduced by the victim’s
recovery for the same loss in civil proceedings. 18 U.S.C.
§ 3664(j)(2).
These provisions make clear that an order of
restitution under the MVRA or the VWPA, as amended, is expressly
non-punitive and the equivalent of a civil judgment against a
criminal defendant requiring that he compensate his victims for
13
the specific harms he has done to them by his offenses.
See United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999)
(stating that the MVRA requires that “definite persons are to be
compensated for definite losses just as if the persons were
successful tort plaintiffs”). Because orders of restitution
under the MVRA, like their VWPA predecessors, are meant to
compensate victims of crime, they do not abate with the death of
a convicted criminal defendant pending appeal. See Dudley, 739
F.2d at 177-78. We thus reject counsel’s second claim and
instruct the district court on remand to leave unaffected the
order of restitution.
IV.
Accordingly, the Government’s motion to dismiss the
appeal is granted and the appeal is dismissed as moot. The case
is remanded to the district court with instructions to vacate
DiBruno’s convictions and sixty-six month prison sentence,
dismiss the second superseding indictment as to him, and leave
unaffected the order of restitution and any paid portion of the
special assessment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED AND REMANDED WITH INSTRUCTIONS
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