United States v. Harry Bechtel

Ninth Circuit

United States v. Harry Bechtel

547 F.2d 1379, 1977 U.S. App. LEXIS 14716

Court of Appeals for the Ninth Circuit·Decided February 16, 1977·No. 76-2701·Published·Cited by 28 cases

Opinion

OPINION

PER CURIAM:

This court has been advised that the appellant died in Mesa, Arizona on December 20, 1976, while direct review of his criminal conviction was pending. Had Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), been overruled in its entirety by Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), the question whether the cause should be remanded to the district court as law and justice require might now be an open one. We do not understand Dove v. United States, however, as overturning the rule that “death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.” Durham v. United States, 401 U.S. at 483, 91 S.Ct. at 860. We read Dove as controlling only the disposition of petitions for certiorari in the Supreme Court.

Accordingly, the appeal is dismissed, and the cause is remanded to the district court with directions to dismiss the indictment.

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OPINION

PER CURIAM:

This court has been advised that the appellant died in Mesa, Arizona on December 20, 1976, while direct review of his criminal conviction was pending. Had Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), been overruled in its entirety by Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), the question whether the cause should be remanded to the district court as law and justice require might now be an open one. We do not understand Dove v. United States, however, as overturning the rule that “death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.” Durham v. United States, 401 U.S. at 483, 91 S.Ct. at 860. We read Dove as controlling only the disposition of petitions for certiorari in the Supreme Court.

Accordingly, the appeal is dismissed, and the cause is remanded to the district court with directions to dismiss the indictment.

United States v. Harry Bechtel, 547 F.2d 1379, 1977 U.S. App. LEXIS 14716 (9th Cir. 1977).

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