UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 16-4231
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SARTAJ SINGH AJRAWAT, as Administrator of the Estate of Paramjit Ajrawat,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:14-cr-00316-DKC-1)
Argued: September 12, 2017 Decided: June 20, 2018
Before TRAXLER and KING, Circuit Judges, and Raymond A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.
Motion for abatement granted and remanded with instructions, and appeal dismissed by unpublished per curiam order. ORDER
PER CURIAM:
Defendant-Appellant Paramjit Ajrawat died while appealing his criminal
conviction and sentence. Sartaj Singh Ajrawat (the “Administrator”), Administrator of
Paramjit Ajrawat’s Estate, moves for abatement of Ajrawat’s conviction and sentence,
including the orders of restitution and forfeiture and the special assessment, all of which
were imposed upon, and as a consequence of, the conviction. For the reasons stated
below, we grant the motion for abatement and remand with instructions to vacate
Ajrawat’s conviction and sentence; to dismiss the indictments; to vacate the orders of
restitution and forfeiture and the special assessment; and to order repayment of any
monies paid as a consequence of the conviction. We dismiss the appeal as moot.
I.
Ajrawat was convicted by a jury of health care fraud, in violation of 18 U.S.C. §
1347; wire fraud, in violation of 18 U.S.C. § 1343; and aggravated identity theft, in
violation of 18 U.S.C. § 1028A. 1 The district court imposed a total prison term of 111
months. The district court entered an order of restitution in the amount of $3,103,874.58
1 Ajrawat was also convicted of making false statements relating to health care matters, see 18 U.S.C. § 1035(a), and obstruction of justice, see 18 U.S.C. § 1512(c)(2). He does not appeal these convictions. The Government does not argue that any of Ajrawat’s unappealed convictions affect the question of abatement.
2 and an order of forfeiture in the same amount - $3,103,874.58. The district court also
imposed a special assessment of $900.
Ajrawat filed an appeal challenging these convictions and various aspects of his
sentence. In November 2017, while his appeal was pending, Ajrawat passed away.
Subsequently, the Administrator was appointed in Maryland to handle Ajrawat’s estate.
Pursuant to Rule 43(a) of the Federal Rules of Appellate Procedure, we granted the
Administrator’s motion to be substituted as the Defendant-Appellant in this matter.
The Fourth Circuit has long followed the well-established rule that “[d]eath
pending appeal of a criminal conviction abates not only the appeal but all proceedings in
the prosecution from its inception.” United States v. Dudley, 739 F.2d 175, 176 (4th Cir.
1984). In such circumstances, the underlying conviction, as well as any accompanying
sanctions that are “purely penal,” are “extinguished” by the death of the appellant. Id.
As we have explained, the proper course is dismissal of the appeal and “remand[] to the
district court with instructions to vacate the judgment and to dismiss the indictment.” Id.
Thus, the “rule of abatement ab initio” applies to prevent the recovery of fines or other
“purely penal” sanctions against the estate. Id.
II.
The Government agrees that Ajrawat’s convictions, sentence, and any unpaid
portion of the special assessment should be vacated. The Government further agrees that
the indictments issued in this case should be dismissed as well. The Government
contends, however, that the orders of restitution and forfeiture, as well as any paid
portion of the special assessment, were unaffected by Ajrawat’s death.
3 The Government contends that the outcome here is controlled by Dudley. As in
this case, the appellant in Dudley died during the pendency of the appeal of his criminal
conviction, and the parties agreed that his death abated the underlying conviction and the
levy of any fine against his estate. See id. The parties disagreed, however, as to whether
the abatement ab initio rule applied to the order of judgment to the extent that it required
the defendant to pay restitution to a federal agency. The Government argued in Dudley
that the order of restitution was not abated by the death of the appellant because “unlike a
fine or sentence to imprisonment, . . . its purposes are predominantly restitutionary.” Id.
at 177. This court agreed with the government that the key with respect to whether
abatement applies is penal intent, stating that even though an order of restitution may be
“in some respects penal,” it “has the predominately compensatory purpose of reducing
the adverse impact on the victim.” Id.
In response, the Administrator contends that to the extent Dudley holds that an
order of restitution is not abated by the death of a party during the pendency of the direct
appeal of a criminal conviction, it is no longer good law following Nelson v. Colorado,
137 S. Ct. 1249, 1252 (2017). In Nelson, the Supreme Court held that “[w]hen a criminal
conviction is invalidated by a reviewing court and no retrial will occur, . . . the State [is]
obliged to refund fees, court costs, and restitution exacted from the defendant upon, and
as a consequence of, the conviction.” Id. (emphasis added). Nelson involved a due
process challenge to a state law that permitted a defendant whose conviction had been
reversed or vacated to receive a refund of funds paid as a result of the conviction—
including restitution—only by proving his actual innocence by clear and convincing
4 evidence in a separate civil proceeding. See id. at 1254-55. The Court concluded that the
statute violated due process by permitting the continued deprivation of funds in the
absence of a valid conviction—“once those convictions were erased, the presumption of
[defendants’] innocence was restored.” Id. at 1255. Nelson requires the return of funds
taken “solely because of . . . now-invalidated convictions.” Id. at 1256.
That Nelson’s analysis was grounded in due process rather than the abatement ab
initio rule does not preclude its application here. In a post-Nelson decision, the Second
Circuit considered the question now before us – whether “when a criminal conviction
abates upon the death of a defendant, any restitution ordered as a result of that conviction
must also abate.” United States v. Brooks, 872 F.3d 78, 89 (2d Cir. 2017). The Second
Circuit answered affirmatively, explaining as follows:
Nelson was resolved on the basis of due process violations rather than the application of the abatement ab initio doctrine.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 16-4231
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SARTAJ SINGH AJRAWAT, as Administrator of the Estate of Paramjit Ajrawat,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:14-cr-00316-DKC-1)
Argued: September 12, 2017 Decided: June 20, 2018
Before TRAXLER and KING, Circuit Judges, and Raymond A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.
Motion for abatement granted and remanded with instructions, and appeal dismissed by unpublished per curiam order. ORDER
PER CURIAM:
Defendant-Appellant Paramjit Ajrawat died while appealing his criminal
conviction and sentence. Sartaj Singh Ajrawat (the “Administrator”), Administrator of
Paramjit Ajrawat’s Estate, moves for abatement of Ajrawat’s conviction and sentence,
including the orders of restitution and forfeiture and the special assessment, all of which
were imposed upon, and as a consequence of, the conviction. For the reasons stated
below, we grant the motion for abatement and remand with instructions to vacate
Ajrawat’s conviction and sentence; to dismiss the indictments; to vacate the orders of
restitution and forfeiture and the special assessment; and to order repayment of any
monies paid as a consequence of the conviction. We dismiss the appeal as moot.
I.
Ajrawat was convicted by a jury of health care fraud, in violation of 18 U.S.C. §
1347; wire fraud, in violation of 18 U.S.C. § 1343; and aggravated identity theft, in
violation of 18 U.S.C. § 1028A. 1 The district court imposed a total prison term of 111
months. The district court entered an order of restitution in the amount of $3,103,874.58
1 Ajrawat was also convicted of making false statements relating to health care matters, see 18 U.S.C. § 1035(a), and obstruction of justice, see 18 U.S.C. § 1512(c)(2). He does not appeal these convictions. The Government does not argue that any of Ajrawat’s unappealed convictions affect the question of abatement.
2 and an order of forfeiture in the same amount - $3,103,874.58. The district court also
imposed a special assessment of $900.
Ajrawat filed an appeal challenging these convictions and various aspects of his
sentence. In November 2017, while his appeal was pending, Ajrawat passed away.
Subsequently, the Administrator was appointed in Maryland to handle Ajrawat’s estate.
Pursuant to Rule 43(a) of the Federal Rules of Appellate Procedure, we granted the
Administrator’s motion to be substituted as the Defendant-Appellant in this matter.
The Fourth Circuit has long followed the well-established rule that “[d]eath
pending appeal of a criminal conviction abates not only the appeal but all proceedings in
the prosecution from its inception.” United States v. Dudley, 739 F.2d 175, 176 (4th Cir.
1984). In such circumstances, the underlying conviction, as well as any accompanying
sanctions that are “purely penal,” are “extinguished” by the death of the appellant. Id.
As we have explained, the proper course is dismissal of the appeal and “remand[] to the
district court with instructions to vacate the judgment and to dismiss the indictment.” Id.
Thus, the “rule of abatement ab initio” applies to prevent the recovery of fines or other
“purely penal” sanctions against the estate. Id.
II.
The Government agrees that Ajrawat’s convictions, sentence, and any unpaid
portion of the special assessment should be vacated. The Government further agrees that
the indictments issued in this case should be dismissed as well. The Government
contends, however, that the orders of restitution and forfeiture, as well as any paid
portion of the special assessment, were unaffected by Ajrawat’s death.
3 The Government contends that the outcome here is controlled by Dudley. As in
this case, the appellant in Dudley died during the pendency of the appeal of his criminal
conviction, and the parties agreed that his death abated the underlying conviction and the
levy of any fine against his estate. See id. The parties disagreed, however, as to whether
the abatement ab initio rule applied to the order of judgment to the extent that it required
the defendant to pay restitution to a federal agency. The Government argued in Dudley
that the order of restitution was not abated by the death of the appellant because “unlike a
fine or sentence to imprisonment, . . . its purposes are predominantly restitutionary.” Id.
at 177. This court agreed with the government that the key with respect to whether
abatement applies is penal intent, stating that even though an order of restitution may be
“in some respects penal,” it “has the predominately compensatory purpose of reducing
the adverse impact on the victim.” Id.
In response, the Administrator contends that to the extent Dudley holds that an
order of restitution is not abated by the death of a party during the pendency of the direct
appeal of a criminal conviction, it is no longer good law following Nelson v. Colorado,
137 S. Ct. 1249, 1252 (2017). In Nelson, the Supreme Court held that “[w]hen a criminal
conviction is invalidated by a reviewing court and no retrial will occur, . . . the State [is]
obliged to refund fees, court costs, and restitution exacted from the defendant upon, and
as a consequence of, the conviction.” Id. (emphasis added). Nelson involved a due
process challenge to a state law that permitted a defendant whose conviction had been
reversed or vacated to receive a refund of funds paid as a result of the conviction—
including restitution—only by proving his actual innocence by clear and convincing
4 evidence in a separate civil proceeding. See id. at 1254-55. The Court concluded that the
statute violated due process by permitting the continued deprivation of funds in the
absence of a valid conviction—“once those convictions were erased, the presumption of
[defendants’] innocence was restored.” Id. at 1255. Nelson requires the return of funds
taken “solely because of . . . now-invalidated convictions.” Id. at 1256.
That Nelson’s analysis was grounded in due process rather than the abatement ab
initio rule does not preclude its application here. In a post-Nelson decision, the Second
Circuit considered the question now before us – whether “when a criminal conviction
abates upon the death of a defendant, any restitution ordered as a result of that conviction
must also abate.” United States v. Brooks, 872 F.3d 78, 89 (2d Cir. 2017). The Second
Circuit answered affirmatively, explaining as follows:
Nelson was resolved on the basis of due process violations rather than the application of the abatement ab initio doctrine. Nevertheless, the reasoning of Nelson also compels abating monetary penalties where a defendant dies during his direct appeal, as there is no longer a valid conviction to support the government’s retention of the penalty. The statutory predicate for restitution . . . is a conviction, and once that conviction has been vacated—even by abatement upon the death of the defendant—there is no longer a basis to require payment of restitution.
Id. (internal quotation marks, citation, and alteration omitted).
We agree. When a defendant dies pending the resolution of the direct appeal of
his conviction, “everything associated with the case is extinguished, leaving the
defendant as if he had never been indicted or convicted.” United States v. Libous, 858
F.3d 64, 66 (2d Cir. 2017) (internal quotation marks omitted). Thus, “[w]hether
restitution is compensatory rather than in the nature of punishment is irrelevant to this
5 inquiry when the conviction underlying the order of restitution has abated.” Brooks, 872
F.3d at 91. In light of Nelson, we can no longer say that an order of restitution is an
exception to this rule; to the extent Dudley conflicts with Nelson in this regard, it is no
longer good law.
The Government suggests that Nelson’s reasoning does not apply here because the
convictions in Nelson were overturned on appeal based on trial error and then, upon
retrial, one defendant was acquitted and the other was never re-tried. Nelson itself
answers this argument. In making clear the question is whether the conviction was
vacated, rather than why the conviction was vacated, Nelson explains that “reversal is
reversal, regardless of the reason, and an invalid conviction is no conviction at all.” 137
S. Ct. at 1256 n.10 (internal quotation marks and alteration omitted). When the
underlying conviction is invalidated—regardless of the reason—there is no longer any
basis justifying the government’s retaining funds exacted only as a result of that
conviction.
Finally, we also reject the Government’s argument that the order of forfeiture and
the already-paid portion of the special assessment should stand despite Ajrawat’s death
while his appeal was pending. The same principles derived from Nelson that compel
abatement of the restitution order apply to the order of forfeiture and the special
assessment as well. Both were imposed only as a consequence of a valid conviction.
6 Because Ajrawat’s conviction has been extinguished, the order of forfeiture and the
special assessment must be abated. 2
III.
For the foregoing reasons, we grant the Administrator’s motion for abatement and
remand to the district court with instructions to vacate Ajrawat’s conviction and sentence,
including the orders of restitution and forfeiture and the special assessment; to dismiss all
indictments relating to the underlying conviction; to refund any portion of the special
assessment that has already been paid; and to order repayment of any other monies paid
as a consequence of these convictions. This appeal is dismissed as moot.
IT IS SO ORDERED.
2 We note that the Government’s argument would have been unavailing even prior to Nelson under United States v. Dudley, 739 F.2d 175 (4th Cir. 1984). In Dudley, upon which the Government relies for its argument that the restitution order should not be abated in this case, we noted a “substantial difference between restitution to the person victimized by the crime . . . and forfeiture, collectible only by the avenging United States government bent on punishing an offender.” Id. at 177. Because “[f]orfeiture has an exclusively punitive, i.e., penal, character,” id., it has long been the case that a forfeiture order abates upon the death of the defendant-appellant. The same would be true of the special assessment.