Harvey v. United States

NEBEKER, Associate Judge:

The appellant in this case died of congestive heart failure while a direct appeal from his conviction was pending in this court. Counsel for appellant has moved this court for reversal of appellant’s conviction and dismissal of the indictment. We direct the clerk to strike the motion as improvidently filed, because counsel for appellant has no standing to file a motion on behalf of the deceased appellant. The government has filed a suggestion of death. We dismiss the appeal.

On the basis of Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), we dismiss the appeal as moot. Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), on which counsel for appellant relies has been overruled by Dove. Although both of those cases involved petitions for certiorari¹ rather than as here, a direct appeal, we see no reason to distinguish the two.²

The dissent is willing to presume that there may be collateral consequences attending our disposition of this appeal. See, e. g, D.C. Code 1973, § 19-103(a) (forfeiture of dower rights upon conviction of adultery); id. § 19-320(a) (forfeiture of inheritance and distributive rights upon conviction of felonious homicide); id. § 19-320(b) (insurance policy procured by person convicted of felonious homicide on life of victim is void). No such collateral consequences have been asserted in this case. More importantly, unlike the situation in the typical civil case, the rights and obligations conferred by a final judgment of the trial court in a criminal case do not descend to the heirs of the deceased party. See, e. g. U.S. Const, art. Ill, § 3 (Congress may not declare corruption of blood or forfeiture of property for treason). To hold that, because of possible collateral consequences, there remain collateral interest affected by a criminal appeal would be to hold, in effect, that persons affected by those collateral interests are conclusively bound by the judgment of conviction in a case such as this — an issue we need not now reach.³

Our holding, finally, is consistent with the firmly established principle which the dissent would sacrifice to speculative collateral consequences — that a trial court judgment is presumed valid and is valid until the losing party carries the burden of convincing the appellate court that the trial court erred. Compare, e. g., D.C. Code 1973, § 23-1322(b) (“No person . shall be ordered detained [prior to trial] unless . . . ”) with id. § 23-1325(c) (“A person who has been convicted of an offense and sentenced to a term of confinement or imprisonment and has filed an appeal or a petition for a writ of certiorari shall be detained unless . . .”). See H.R.Rep. No. 907, 91st Cong., 2d Sess. 186-87 (1970) (“First and most important [among the reasons for the difference between the above cited statutes], the conviction, in which the defendant’s guilt of a crime has been established beyond a reasonable doubt, is presumably correct in law, a presumption supported by the low rate of reversal of criminal convictions in the Federal system.”). See also Super.Ct.Cr.R. 38(a) (stay of execution of sentence pending appeal automatic only where the death sentence is imposed).

Accordingly, the appeal is

Dismissed.

1 . The Supreme Court declined to distinguish direct appeals from certiorari petitions for the purpose of determining mootness in Durham v. United States, supra at 483 n. 1, 91 S.Ct. 858.

2 . But see United States v. Bechtel, 547 F.2d 1379 (9th Cir. 1977); cf. United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), holding that a civil case in federal courts which becomes moot while on direct appeal must be reversed and remanded with directions to dismiss.

3 . The solution proposed by the dissent — reversal of the conviction and dismissal of the indictment — would, assuming effect upon collateral interest, affect those interests to the same extent as dismissal of the appeal. For example, if a husband kills his wife, he is not entitled to inherit from her. D.C. Code 1973, § 19-320. Assuming that the husband is tried and convicted of the murder, files an appeal, then dies, then would reversal of the conviction effectively disinherit the wife’s heirs to the extent that the husband’s estate would benefit from the wife’s estate? And would our dismissal of the appeal effectively disinherit the husband’s heirs to the same extent? These problems, we again note, are not here presented.