MURNAGHAN, Circuit Judge:
Occasionally we face a case raising novel questions with potentially far-reaching consequences. For us to accord the attention that the instant case, fitting in that category, deserves, we must at the outset mention and dispose of several routine, uncontested matters. The decks should be cleared in preparation for an approaching engagement of some significance.
Indicted on six counts (One, "conspiracy to use ... food stamp coupons," Two through Five, "unlawful use ... of food stamp coupons" and Six, "distribution of Demerol"), William Dudley was found guilty as to all in a trial by jury lasting
Furthermore, in application of 18 U.S.C. § 3579, the district judge imposed an order of restitution requiring payment to the United States Department of Agriculture of the sum of $4,807.50. A special parole term of four years also was meted out on Count 6. During the pendency of the present timely appeal, Dudley died on December 17, 1983. Counsel who had represented Dudley filed a motion pursuant to F.R.A.P. 42(b) to dismiss the appeal as moot and sought an order from us remanding the case to the district court with directions to vacate the judgment of conviction and dismiss the indictment. The motion was not joined by the government so dismissal is only, under F.R.A.P. 42(b), to be "upon such terms as may be ... fixed by the court."
It is not disputed by the government that death abated (a) the imposition of prison terms, (b) the levy of a fine, and (c) the addition of a special parole term. Such sanctions are purely penal. They, consequently, were extinguished by Dudley's death, requiring ultimately that the case be remanded as to them, with direction to vacate ab initio, as abated, the criminal proceedings. See United States v. Oberlin, 718 F.2d 894, 895 (9th Cir.1983):
That recital of what is not in dispute, by process of elimination, brings us to what is warmly contested between counsel for the government and counsel appointed to represent Dudley while he was still alive. Counsel for Dudley insists that all criminal penalties, whether imprisonments or fines, have always been abated by death of the defendant before exhaustion of his or her right to a complete disposition of an appeal of the conviction. See United States v. Morton, 635 F.2d 723, 725 (8th Cir.1980). From that, counsel argues, it follows that reimbursement ordered in a criminal context, and side by side with orders mandating fine and imprisonment, should likewise abate. Indeed, the Morton case in one respect went even further and held that abatement took place even though the conviction had been finally affirmed, but the fine had not yet been collected when death occurred.
Yet there are substantial and, to us, controlling distinctions between 21 U.S.C. § 848, and the statute which engages our attention: 18 U.S.C. § 3579. While § 3579 parallels the Drug Abuse section which appears under a title "Offenses and Penalties," inasmuch as the comparable explanatory language for § 3579 is "Criminal Procedure, Sentence, Judgment and Execution," there is the important distinction that the statute of concern to the Oberlin court required that a person convicted "shall forfeit," while 18 U.S.C. § 3579, titled "Order of restitution" calls for the defendant "to make restitution to any victim of the offense."
It does not require great perspicacity to appreciate the substantial difference between restitution to the person victimized by the crime (who could, as here, be another arm of the government bringing the prosecution, but who, more likely than not, will prove to be a private third party) and forfeiture, collectible only by the avenging United States government bent on punishing an offender.
Hence we are not impressed by purely verbal logic. "A crime is a crime is a crime" simply does not serve to resolve the dispositive issue. Forfeiture has an exclusively punitive, i.e., penal, character. See, e.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965) ("... a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law."). Accord, United States v. Oberlin, supra, at 896. In Dudley's case, however, we are talking about restitution of property owned by or owing to another which normally would be recoverable in civil litigation. The argument that impositions of penalties in criminal cases have heretofore always been abated on death of the accused, even a fully convicted accused who has not yet paid a fine or forfeiture, grows out of the consideration that punishment, incarceration, or rehabilitation have heretofore largely been the exclusive purposes of sentences and so ordinarily should be abated upon death for shuffling off the mortal coil completely forecloses punishment, incarceration, or rehabilitation, this side of the grave at any rate.
It is an old and respected doctrine of the common law that a rule ceases to apply when the reason for its dissipates.
We are satisfied, therefore, and hold that the restitution order did not abate by reason of the death of Dudley while the appeal was pending.
However, the quiver of the public defender who has represented Dudley's interests thoroughly and imaginatively contains another arrow or two. With the support of United States v. Welden, 568 F.Supp. 516 (N.D.Ala.1983), he contends that the absence of a provision for a jury trial to determine the validity of any defense asserted against a claim of restitution and the amount of restitution that should be made offends the Seventh Amendment preservation of the right of trial by jury where the value in controversy shall exceed $20.00. The question is not one easily resolved. On the one hand, the Seventh Amendment to the United States Constitution by its term extends to "suits at common law." Here we deal with an extension of criminal relief which may so substantially differ from the normal suit to recover damages or to cause a defendant to disgorge undue or unjust enrichment that the Seventh Amendment may not apply.
In 18 U.S.C. § 3580, governing procedural aspects of the § 3579 restitution relief, the district court is required to consider, inter alia, the financial resources of the defendant and the financial needs and earning ability not only of the defendant but of his or her dependents as well. Such considerations not only would be irrelevant in a suit at common law, but reference to them at trial could amount to reversible error. See, e.g., Washington Annapolis Hotel Co. v. Riddle, 171 F.2d 732, 740 (D.C.Cir.1948); Metropolitan Life Ins. Co. v. Banion, 106 F.2d 561, 568 (10th Cir.1939). It is not enough simply to point out that money may pass hands automatically to make a new remedy the equivalent, for Seventh Amendment purposes, of a suit at common law. Slack v. Havens, 522 F.2d 1091, 1096 (9th Cir.1975). Hence strong arguments are available to support the proposition that § 3579 restitution does not violate the Constitution simply because it does not call for a jury to resolve any factual issues.
On the other hand, the Seventh Amendment clearly requires trial by jury even in actions unheard of at common law where they involve rights and remedies of the nature of those traditionally involved in an action at law (rather than in an action at equity or in admiralty). Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974). However, a not negligible consideration is whether Congress has provided for enforcement of a statutory right in an ordinary civil action. See Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005,
In short, the question comes down to whether, where the legislature has created an action unheard of at common law, the rights and remedies involved are of a sort traditionally enforced in an action at law. See Federal Deposit Insurance Corp. v. New London Enterprises, Ltd., 619 F.2d 1099 (5th Cir.1980). There are arguments either way where Congress has permitted restitution by proceeding akin in some respects to a relief at common law.
It is indeed the rare case that may generate a single totally new doctrine with potentially widespread effects. A case forcing us to deal with two such questions would constitute an embarras de richesses. Here we are spared the risks of multiplication of novelty since, as far as matters appear to us, there has generally been no effort at the trial in the district court to contest the accuracy of the amount of the restitution ordered ($4,807.50) nor does the question appear to have been preserved as to other factual defenses to an order of restitution.
It, therefore, is unnecessary for us to reach a further issue raised by United States v. Welden, supra. Not only did the district judge in that case rely on the Seventh Amendment in declaring unconstitutional §§ 3579 and 3580, but he independently struck the provisions in light of due process and equal protection requirements of the Fifth Amendment.
For the foregoing reasons, the Motion to Dismiss Appeal as Moot, filed by Dudley's counsel, pursuant to F.R.A.P. 42(b), is granted with respect to all aspects of the proceeding unrelated to the restitution order.
MOTION GRANTED IN PART, DENIED IN PART.