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Case 1:19-cr-00490-RMB Document 53 Filed 09/03/19 Page 8 of 86 8
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1 the court's responsibility, and manifestly within its purview,
2 to ensure that the victims in this case are treated fairly and
3 with dignity.
4 The fundamental substantive principle which applies in
5 considering the government's motion is termed the rule of
6 abatement. This principle originated in the English common
7 law. It was adopted by most U.S. federal courts, but more
8 recently, it has faced some appropriate criticism. The rule of
9 abatement is best explained in the Second Circuit case of
10 U.S. v. Wright.
11 In that Wright case, two defendants had pled guilty to
12 embezzlement and tax evasion. Both defendants appealed, but
13 one of the defendants died while his appeal was pending in the
14 Second Circuit. The Court of Appeals rule that under the rule
15 of abatement, the judgment of conviction against the deceased
16 defendant was required to be vacated and the indictment was to
17 be dismissed. The Wright court held that when a convicted
18 defendant dies while his direct appeal as of right is pending,
19 his death abates not only the appeal, but also proceedings had
20 during the course of the prosecution.
21 The Second Circuit incidentally has also held that
22 when a criminal conviction abates upon the death of a
23 defendant, any restitution ordered as a result of that
24 conviction must also abate, and it is also ruled the same with
25 respect to associated forfeiture orders.

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300

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