United States v. Dwyer, R. Budd

855 F.2d 144, 1988 U.S. App. LEXIS 11751, 1988 WL 89070

• Court: Court of Appeals for the Third Circuit
• Decided: August 30, 1988
• Docket: 87-5173
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

Although the nominal “appellant” before the Court in this matter is R. Budd Dwyer, in fact the appellants are Dwyer’s former criminal defense attorneys, Messrs. Killion and Metz. Dwyer was Treasurer of the Commonwealth of Pennsylvania, when he was convicted by a jury on eleven criminal counts on December 18, 1986. On January 22, 1987, the day before Dwyer was scheduled to be sentenced for these crimes, he committed suicide at a press conference he had called in Harrisburg, Pennsylvania.

On January 27, 1987, five days after Dwyer’s death, the attorneys filed a motion in the district court. This motion sought dismissal of all post-trial motions that were then pending, abatement of Dwyer’s criminal conviction and dismissal of the indictment against him. Subsequently, on February 24, 1987, Dwyer’s counsel also sought disqualification of the district court judge. The district court, in a brief opinion and orders filed March 5, 1987 that subsequently were published, denied these motions and ordered the clerk to “close this file as to R. Budd Dwyer.” United States v. Dwyer, 654 F.Supp. 1254, 1255 (M.D.Pa.1987). In particular, the district court, relying on United States v. Chin, 633 F.Supp. 624 (E.D.Va.1986), crafted a suicide exception to the traditional rule that a criminal conviction abates when a defendant dies prior to the completion of his or her direct appeals. See Dwyer, 654 F.Supp. at 1255. “Dwyer” then appealed to this Court.

In the time period since this appeal was briefed and argued to this Court, the Court of Appeals for the Fourth Circuit, reversing the Chin decision that formed the legal basis of the district court’s judgment, has succinctly identified the reason why the underlying action must be dismissed for lack of subject matter jurisdiction. See generally Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (noting the special obligation of a federal appellate court to notice defects in its own subject matter jurisdiction, as well as the jurisdiction of the lower court). As in the Chin case, the attorneys here, who represented Dwyer at his criminal trial, lacked legal authority to act as his agents after his death and thus had no standing to move to abate his conviction. See In re Chin, 848 F.2d 55 (4th Cir.1988) (per curiam) (amended opinion), rev’g 633 F.Supp. 624.

Accordingly, the judgment of the district court will be vacated and the matter remanded. On remand, the district court will be instructed to dismiss “Dwyer’s” posthumous motions because the Court lacks subject matter jurisdiction.¹

1 . Our disposition of Dwyer's appeal also disposes of the contentions advanced by Dwyer’s counsel on appeal, that Dwyer’s convictions for mail fraud and conspiracy should be reversed in light of McNally v. United States, —— U.S. -, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). See United States v. Asher, 854 F.2d 1483 (3d Cir.1988) (distinguishing McNally, and affirming the conviction of Dwyer’s co-defendant).