United States v. Marcel Raymond Oberlin

Marcel Raymond Oberlin, following a jury trial, was convicted of various counts of drug trafficking and of operating a continuing criminal enterprise. He was sentenced on October 18, 1982. Several hours later he committed suicide. On October 20 judgment was entered and, on the following day, a purported notice of appeal was filed on behalf of Oberlin. Upon a motion to abate Oberlin’s prosecution, filed on the deceased’s behalf by an attorney, we conclude that the cause of action against Oberlin has abated.

Death pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception. Durham v. United States, 401 U.S. 481, 483 , 91 S.Ct. 858, 860 , 28 L.Ed.2d 200 (1971) (per curiam); United States v. Bechtel, 547 F.2d 1379 (9th Cir.1977). In such a case, the appeal is dismissed and the cause remanded to the district court with instructions to vacate the judgment and to dismiss the indictment. Id. See also United States v. Pauline, 625 F.2d 684, 685 (5th Cir.1980); United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.1977); United States v. Crooker, 325 F.2d 318, 320 (8th Cir.1963). If the sentence included a fine, this rule…