United States v. Mladen

18‐0616
USA v. Mladen
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
‐ ‐ ‐ ‐ ‐ ‐ 3
August Term, 2019 4
(Appeal Argued: October 21, 2019 5
Motion Submitted: February 25, 2020 Decided: May 6, 2020) 6
Docket No. 18‐0616 7
_________________________________________________________ 8
UNITED STATES OF AMERICA, 9
Appellee, 10
‐ v. ‐ 11
DUSAN MLADEN, aka David Mladen, 12
Defendant‐Appellant. 13
_________________________________________________________ 14
Before: KEARSE, WALKER, and LIVINGSTON, Circuit Judges. 15
Defendant Dusan Mladen filed this appeal from a judgment entered in 16
the United States District Court for the District of Connecticut after his plea of guilty 17
before Jeffrey A. Meyer, Judge, convicting him on one count of making false 18
statements to a federal official, in violation of 18 U.S.C. § 1001, and sentencing him to 19

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five yearsʹ imprisonment, three years of supervised release, a $20,000 fine, and the 1
mandatory $100 special assessment, see id. § 3013(a)(2)(A). Mladen appealed, arguing 2
only that there were substantive and procedural errors in connection with sentencing 3
and that his sentence was unreasonable. The appeal was argued in October 2019 and 4
has remained pending. On February 10, 2020, Mladenʹs counsel notified this Court 5
that on February 8, 2020, Mladen died. On this basis, counsel has moved for 6
abatement of all incidents of the prosecution, requesting that the appeal be dismissed 7
without a decision on the merits, that Mladenʹs judgment of conviction be vacated, 8
and that the matter be remanded to the district court with instructions to dismiss the 9
indictment and order repayment to Mladenʹs estate of the $20,000 fine and $100 10
special assessment. The government opposes so much of the motion as seeks 11
abatement of Mladenʹs conviction and the $100 special assessment. Because Mladen 12
was convicted upon his plea of guilty, and he neither did nor was permitted to 13
challenge on appeal the merits of his conviction, we deny as without merit so much 14
of the motion as seeks (1) vacatur of Mladenʹs conviction, (2) dismissal of the count 15
of the indictment on which he was convicted, and (3) repayment of the mandatory 16
$100 special assessment; we grant so much of the motion as requests dismissal of this 17
appeal and a remand to the district court for vacatur of the imposed terms of 18
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imprisonment and supervised release and for an order requiring that the paid fine of 1
$20,000 be repaid to Mladenʹs estate. 2
The motion is granted in part and denied in part; the appeal is dismissed. 3
MARC H. SILVERMAN, Assistant United States Attorney, 4
New Haven, Connecticut (John H. Durham, United States 5
Attorney for the District of Connecticut, William J. Nardini, 6
Assistant United States Attorney, New Haven, Connecticut, 7
on the brief), for Appellee. 8
ROBERT A. CULP, Garrison, New York, for Defendant‐ 9
Appellant. 10
KEARSE, Circuit Judge: 11
Defendant Dusan Mladen filed this appeal from a judgment of the 12
United States District Court for the District of Connecticut entered after his plea of 13
guilty before Jeffrey A. Meyer, Judge, convicting him on one count of making false 14
statements to a federal official, in violation of 18 U.S.C. § 1001, and sentencing him to 15
60 monthsʹ imprisonment, a three‐year term of supervised release, a fine of $20,000, 16
and the mandatory $100 special assessment, see id. § 3013(a)(2)(A). Mladen appealed, 17
arguing only that there were substantive and procedural errors in connection with 18
sentencing and that his sentence was unreasonable. The appeal was argued in 19
October 2019 and has remained pending. On February 10, 2020, Mladenʹs counsel 20
3

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notified this Court that on February 8, 2020, Mladen died. On this basis, counsel has 1
moved for abatement of all proceedings against Mladen (ʺAbatement Motionʺ or 2
ʺMotionʺ), requesting that the appeal be dismissed without a decision on the merits, 3
that Mladenʹs judgment of conviction be vacated, and that the matter be remanded 4
to the district court with instructions to dismiss the indictment, order repayment of 5
the fine and special assessment paid by Mladen, and abate all other incidents of the 6
prosecution. The government opposes so much of the Motion as seeks abatement of 7
Mladenʹs conviction and the mandatory $100 special assessment. Because Mladen 8
was convicted upon his plea of guilty, and he neither did nor was permitted to 9
challenge on appeal the merits of his conviction, we deny as without merit so much 10
of the Abatement Motion as seeks (1) vacatur of Mladenʹs conviction, (2) dismissal of 11
the count of the indictment on which he was convicted, and (3) repayment of the $100 12
special assessment mandated for an individual upon his conviction of a felony. We 13
deny as moot so much of the Motion as requests dismissal of the remainder of the 14
indictment, which has already been dismissed. We grant so much of the Motion as 15
seeks vacatur of the imposed terms of imprisonment and supervised release, return 16
of the $20,000 paid fine, and dismissal of the appeal. 17
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I. BACKGROUND 1
In a two‐count indictment filed in July 2017, Mladen was charged with 2
threatening to assault a federal judge (ʺthe Judgeʺ) before whom he was a litigant, in 3
violation of 18 U.S.C. § 115(a)(1)(B) (ʺCount Oneʺ), and making false statements in a 4
matter within the jurisdiction of a department or agency of the United States, in 5
violation of 18 U.S.C. § 1001, by falsely claiming, inter alia, that he had not telephoned 6
the Judge, had not gone to the Judgeʹs house, and had not threatened the Judge 7
(ʺCount Twoʺ). On October 13, 2017, Mladen and the government entered into a 8
written plea agreement (ʺPlea Agreementʺ or ʺAgreementʺ), and Mladen pleaded 9
guilty to Count Two of the indictment. 10
A. Mladenʹs Count‐Two Admissions in the Plea Agreement 11
As part of the Plea Agreement, Mladen acknowledged that until late July 12
2017 he was a litigant in a matter pending before the Judge, and he stipulated to the 13
following Count‐Two offense conduct, inter alia: (a) in early July, Mladen placed an 14
unsigned, handwritten note in the mailbox at the Judgeʹs home, telling the Judge to 15
ʺBACK OF[F],ʺ and stating ʺJUST WARNING FOR NOWʺ (Plea Agreement at 10, ¶ 3 16
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(internal quotation marks omitted)); (b) on July 10, from his home, Mladen placed a 1
call to the Judgeʹs home telephone number, which was automatically forwarded to 2
the Judgeʹs personal cell phone and was answered by the Judge; (c) in that call, 3
Mladen refused to identify himself but said, inter alia, that he ʺhad visited the Judgeʹs 4
house the previous weekʺ (id. ¶ 4), and ʺI left a message for youʺ (id. (internal 5
quotation marks omitted)). 6
Mladen stipulated that on July 11 he was interviewed by United States 7
Deputy Marshals and that in that interview he, inter alia, (a) denied having 8
telephoned the Judge, (b) denied even knowing the Judgeʹs telephone number, and 9
(c) denied having gone to the Judgeʹs house. In the Plea Agreement, Mladen admitted 10
that each of these denials was false, that ʺ[e]ach of these statements was material,ʺ and 11
that he willfully made these statements, knowing that they were false. (Id. ¶¶ 5, 8.) 12
B. Additional Information and Sentencing 13
The Plea Agreement stated that ʺ[t]he Government contends that the 14
defendant also committed the conduct outlined in Count One of the indictment, and 15
that the Court should consider such conduct as relevant conduct under the 16
[Sentencing] Guidelines.ʺ (Plea Agreement at 4.) It stated that ʺ[a]fter sentencing, the 17
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Government will move to dismiss Count One of the indictment because the conduct 1
underlying the dismissed counts [sic] will have been taken into account in 2
determining the appropriate sentence.ʺ (Id. at 8.) 3
The Agreement also stated that ʺdefendant and the Government reserve 4
their right[s] to present additional offense conduct and relevant conduct to the Court 5
in connection with sentencingʺ (id. at 11). Mladen acknowledged his understanding 6
both that the Count Two offense‐conduct stipulation in the Agreement did ʺnot set 7
forth all of the relevant conduct and characteristics that may be considered by the 8
Court for purposes of sentencingʺ (id. at 3‐4), and that the government was ʺobligated 9
to advise the Court of any additional relevant facts that subsequently come to [its] 10
attentionʺ (id. at 4). 11
On the day before Mladen entered his plea, the United States Marshals 12
Service (ʺMarshalsʺ) received a letter from an inmate at the New Haven Correctional 13
Center (the ʺinformantʺ) stating that he was housed with Mladen. The letter stated 14
that Mladen had made statements about a federal judge and about the possibility of 15
threatening that judge physically. 16
A new investigation was opened, staffed by Marshals and attorneys 17
other than, and administratively screened from, those assigned to Mladenʹs existing 18
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prosecution. After interviewing the informant and hearing that Mladen had sought 1
his help in finding someone to frighten the Judge, the Marshals obtained 2
authorization to secretly record conversations between Mladen and the informant. 3
Thereafter, in a November 8, 2017 recorded conversation between the two, Mladen 4
stated, inter alia, that he planned, post‐release, to try to find evidence of wrongdoing 5
by the Judge, and said that if he could not find such evidence he would fabricate 6
something. He also stated that he had previously actually armed himself with a gun, 7
and had been ready to drive to the Judgeʹs house, planning to wait nearby for an 8
opportunity to ʺ[s]hootʺ and ʺ[k]illʺ the Judge. 9
The government provided the full audio recording and a complete 10
transcript of Mladenʹs November 8 conversation with the informant to the defense, 11
and provided a redacted version of the transcript to the Probation Office preparing 12
the presentence report (ʺPSRʺ) on Mladen. Passages of the transcript were 13
reproduced in an addendum to the PSR. Mladen sought a hearing at which the 14
informant would be called to testify. The district court denied the request because 15
Mladen did not dispute that he made the statements attributed to him in the 16
transcript. 17
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In sentencing Mladen on Count Two of the indictment in February 2018, 1
the court considered, inter alia, the statements made by Mladen in the note he left in 2
the Judgeʹs mailbox, the statements he made in his telephone conversation with the 3
Judge, and the statements he made in his jailhouse conversation with the informant. 4
The court concluded, in connection with Mladenʹs false statements as charged in 5
Count Two and admitted in the Plea Agreement, that his relevant conduct included 6
statements to the Judge that constituted threats, and that Mladen intended his 7
statements as threats. The court calculated that the Guidelines‐recommended range 8
of imprisonment was 51‐to‐63 months, but was capped at 60 months, the statutory 9
maximum, see 18 U.S.C. § 1001. The court sentenced Mladen to serve 60 monthsʹ 10
imprisonment, to be followed by a three‐year term of supervised release, and 11
imposed a fine of $20,000, and the mandatory special assessment of $100. On motion 12
of the government, Count One was dismissed. 13
C. Mladenʹs Contentions on Appeal 14
Mladen appealed, raising only challenges to his sentence and the 15
sentencing proceedings. He contended that the denial of his request for a hearing at 16
which the informant would testify denied him due process; and he argued, for the 17
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first time, that his conversations with the informant, and any consideration of those 1
conversations, violated his Sixth Amendment right to counsel. He also contended 2
that the district court erred in calculating his Guidelines‐recommended range of 3
imprisonment, in imposing supervised release conditions that he argued were 4
unreasonable, and in ordering him to pay a $20,000 fine without sufficient evidence 5
that he had the financial ability to pay such an amount. 6
D. The Present Motion 7
Before the appeal could be decided, Mladen died. His attorney filed the 8
Abatement Motion‐‐without needing to substitute Mladenʹs estate for this purpose, 9
see United States v. Brooks, 872 F.3d 78, 82 & n.2 (2d Cir. 2017) (ʺBrooksʺ)‐‐to erase all 10
proceedings against Mladen, requesting vacatur of his conviction, dismissal of the 11
appeal, dismissal of the indictment, and repayment to Mladenʹs estate of the paid fine 12
and special assessment. The government opposes so much of the Motion as seeks 13
vacatur of the conviction and return of the special assessment. For the reasons that 14
follow, we grant the Motion in part and deny it in part. 15
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II. DISCUSSION 1
A. Abatement Principles 2
In the federal judicial system, a defendant convicted of a crime‐‐unless 3
he has entered an unconditional plea of guilty (see Part II.B. below)‐‐has the right to 4
challenge the judgment of conviction in a direct appeal, see 28 U.S.C. § 1291; Fed. R. 5
Crim. P. 32(j); Fed. R. App. P. 4(b)(1)(A). Under the doctrine of ʺabatement,ʺ if the 6
defendant dies while his direct appeal as of right is pending, his death ʺ[o]rdinarilyʺ 7
requires not only the dismissal of the appeal but also the eradication of ʺall 8
proceedings had in the prosecution from its inception.ʺ United States v. Wright, 160 9
F.3d 905, 908 (2d Cir. 1998) (ʺWrightʺ) (internal quotation marks omitted); see, e.g., 10
Brooks, 872 F.3d at 87; United States v. Libous, 858 F.3d 64, 66 (2d Cir. 2017) (ʺLibousʺ). 11
This doctrine 12
is principally animated by two considerations. ʺFirst, the interests 13
of justice ordinarily require that a defendant not stand convicted without 14
resolution of the merits of an appeal.ʺ Wright, 160 F.3d at 908 (internal 15
quotation marks and alterations omitted). ʺSecond, to the extent 16
that the judgment of conviction orders incarceration or other sanctions 17
that are designed to punish the defendant, that purpose can no longer be 18
served.ʺ Id. 19
Libous, 858 F.3d at 66 (emphases ours). Of these two considerations, we have 20
ʺconclude[d] that finality is the paramount consideration,ʺ Brooks, 872 F.3d at 88; see, 21
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e.g., Libous, 858 F.3d at 66‐67, reflecting ʺprocedural due process concernsʺ that the 1
government ʺshould not label one as guilty until he has exhausted his opportunity to 2
appeal,ʺ id. at 66 (internal quotation marks omitted). 3
In a complete abatement ab initio ʺʹeverything associated with the case is 4
extinguished, leaving the defendant as if he had never been indicted or convicted.ʹʺ 5
Brooks, 872 F.3d at 87 (quoting Libous, 858 F.3d at 66). Nonetheless, ʺthe application 6
of the doctrine of abatement is not indivisible . . . .ʺ Brooks, 872 F.3d at 87. For 7
example, 8
many defendants . . . are charged with multiple counts and may be 9
convicted by a jury on some counts and by a plea of guilty on others. 10
Those convictions may become final at different times, and a 11
defendant may choose not to appeal every conviction. The doctrine 12
of abatement leaves the deceased defendant as if he had never been 13
indicted or convicted . . . only as to those counts as to which the 14
conviction has not yet become final. 15
Id. (internal quotation marks omitted) (emphases ours). 16
In Brooks, the defendant had been charged with three tax offenses and 17
numerous other counts of securities fraud, mail and wire fraud, and obstruction of 18
justice. As to the tax counts, Brooks pleaded guilty, agreed to pay restitution to the 19
Internal Revenue Service, waived the right to appeal those convictions, and waived 20
the right to appeal the prison term to be imposed unless it exceeded certain levels. 21
12

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See id. at 81, 85, 91. On the non‐tax counts, Brooks was convicted after a jury trial; he 1
was sentenced principally to 204 monthsʹ imprisonment, and was ordered to pay 2
restitution and a fine and to forfeit assets. See id. at 85. He appealed his convictions 3
on the non‐tax counts, but not those on the tax counts. See id. at 82. 4
While his appeal was pending, Brooks died. His estate moved for 5
abatement of all of his convictions, the imposed fines, and the orders of forfeiture and 6
restitution, as well as the special assessments statutorily mandated for the counts of 7
conviction. See id. We granted the motion in part, abating Brooksʹs convictions on the 8
non‐tax counts, as well as all facets of his sentence on those counts; but we denied 9
abatement with respect to the tax counts: 10
Brooksʹs convictions on the counts that were decided by the 11
jury and the associated forfeiture order, fine, and special 12
assessment are abated upon his death. As Brooks pled guilty to the 13
tax evasion counts, waived his right to appeal as to those counts, and did 14
not appeal them, his convictions on those counts do not abate. The case 15
shall be remanded to the district court for dismissal of the 16
indictment on the non‐tax counts and those related sanctions. 17
Id. at 88 (emphasis added); see also id. at 96 (ʺThe death of David Brooks abates all of 18
his convictions that were pending appeal at the time of his death and any corresponding 19
restitution. His death does not abate the other convictions . . . .ʺ (emphasis added)); 20
id. at 91 (ʺBecause the[ non‐tax] counts of conviction were resolved by a guilty plea and he 21
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did not appeal them, those convictions became final prior to Brooksʹs death.ʺ (emphasis 1
added)). 2
The government argues that the reasoning of Brooks requires rejection of 3
the request for vacatur of Mladenʹs conviction and repayment of the special 4
assessment because Mladen pleaded guilty, expressly waived his right to appeal his 5
conviction, and challenged only his sentence, not the conviction itself, in his 6
arguments on appeal. The Mladen Motion, however, contends that Brooksʹs 7
abatement‐divisibility analysis is inapposite because Brooks dealt with entire counts 8
that had become final and were not appealed, whereas Mladen was convicted on only 9
one count and appealed his sentence on that count. The Motion argues that the 10
present case is governed by our decision in Wright, in which we vacated the 11
defendantʹs conviction in its entirety; it states that ʺthe [Wright deceased] defendant 12
. . . was only challenging his sentence on appealʺ (Affirmation of Robert A. Culp in 13
support of Mladen Abatement Motion ¶ 8). We find the Motionʹs reading of Wright 14
unduly expansive, and its reliance misplaced. 15
While Mr. Wright did not challenge the merits of his conviction, the 16
matter of whether his conviction should be vacated was not in issue, for in Wright‐‐ 17
unlike the present case‐‐the government did not object to vacatur of the deceased 18
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appellantʹs conviction. Although it sought preservation of so much of the sentence 1
as ordered payment of restitution, ʺthe government argue[d] that [Mr. Wrightʹs] 2
conviction and indictment should abate in their entirety . . . .ʺ Wright, 160 F.3d at 908 3
(emphases added). 4
Moreover, our Wright opinion did not indicate that the abatement 5
doctrine was indivisible. We rejected the governmentʹs request for preservation of 6
Mr. Wrightʹs restitution obligation not because of any view that abatement was an all‐ 7
or‐nothing concept, but rather because the district court had ordered that his 8
restitution payments were to begin after his release from prison, ʺwhen . . . Mr. 9
Wright will again be in a position to earn a living.ʺ Id. at 907. As his death meant that 10
payment time would never arrive, we concluded that the restitution obligation must 11
also be abated. And we expressly ʺle[ft] for another day such questions as whether 12
an order that makes restitution payable immediately should generally survive the 13
death of a defendant during the pendency of his direct appeal as of right, and whether 14
the answer to that question should depend on whether the appeal challenges the conviction 15
itself as well as the order of restitution.ʺ Id. at 909 (emphases added). 16
Given that the primary rationale underlying the doctrine of abatement 17
is that a defendant should not stand convicted if his guilt has not been resolved with 18
15

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finality, and that that interest is served if the defendant, although challenging his 1
sentence, has waived or forgone his right to appellate review of his guilt, we view the 2
reasoning of Brooks as applicable to the present case, in which the merits of Mladenʹs 3
conviction had, as discussed below, already become final and unappealable. 4
B. Appealability of a Conviction After a Plea of Guilty 5
A defendant is allowed to enter a plea of guilty that is conditional, in that 6
it reserves to him the right to argue a nonjurisdictional contention on appeal, if the 7
government has agreed and the district court has expressly approved. See, e.g., United 8
States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (ʺCoffinʺ); United States v. Sykes, 697 F.2d 9
87, 89 (2d Cir. 1983) (ʺSykesʺ); United States v. Mann, 451 F.2d 346, 347 (2d Cir. 1971) 10
(ʺMannʺ); Fed. R. Crim. P. 11(a)(2). However, it is well established that a defendant 11
who has entered an unconditional plea of guilty has admitted his guilt and has 12
waived his right to raise any nonjurisdictional issues. See, e.g., Coffin, 76 F.3d at 496‐97 13
(ʺunless the defendant specifically reserves the right to appealʺ with ʺthe consent of 14
the governmentʺ and ʺthe approval of the court,ʺ his ʺknowing and voluntary guilty 15
plea waives all nonjurisdictional defects in the prior proceedingsʺ); Mann, 451 F.2d 16
at 347 (dismissing for lack of appellate jurisdiction the appeal of a defendant who had 17
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pleaded guilty and sought to argue only issues that were not jurisdictional); Sykes, 697 1
F.2d at 89 (refusing to reach the nonjurisdictional issues raised by a defendant who 2
had pleaded guilty and sought to argue both jurisdictional and nonjurisdictional 3
issues); United States v. Selby, 476 F.2d 965, 966‐67 (2d Cir. 1973) (stating that the court 4
of appeals lacks ʺpowerʺ to entertain a defendantʹs appeal on nonjurisdictional 5
grounds after his unconditional plea of guilty). 6
Mladen was convicted on Count Two of the indictment, pursuant to his 7
plea of guilty. He unequivocally and unconditionally admitted that he had 8
knowingly and willfully made false statements of material facts to United States 9
Marshals in a matter within the jurisdiction of the United States Marshals Service. 10
His Plea Agreement did not reserve any right to challenge the merits of his 11
conviction. 12
To the contrary, Mladenʹs Plea Agreement contained a paragraph headed 13
ʺWaiver of Right to Appeal or Collaterally Attack Conviction and Sentence.ʺ (Plea 14
Agreement at 5.) In that paragraph, while he reserved the right to appeal aspects of 15
ʺthe sentence imposedʺ if it exceeded certain levels and the right to ʺrais[e] a claim of 16
ineffective assistance of counsel in an appropriate forum,ʺ Mladen ʺagree[d] not to 17
appeal or collaterally attack his conviction in any proceeding.ʺ (Id. (emphases added).) 18
17

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Thus, so far from reserving a right to challenge the merits of his conviction, Mladen 1
expressly agreed not to make such a challenge. 2
And in fact, Mladenʹs brief on appeal did not challenge the merits of his 3
conviction. Accordingly, even if such a challenge had not already been waived, the 4
merits of Mladenʹs conviction were not in issue before this Court; thus, our non‐ 5
review of the merits of his conviction is in no way a consequence of his death. See, 6
e.g., United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006) (denying defendantʹs 7
estateʹs motion for vacatur of his conviction where his brief on appeal stated that he 8
sought review only of an element of his sentence). ʺAbating [Mladenʹs] conviction 9
would grant relief that he did not seek, and that he could not possibly have obtained 10
as a result of his appeal,ʺ id. 11
In sum, both by his unconditional plea of guilty and by his express Plea 12
Agreement appeal waiver, Mladen was barred from making an appellate challenge 13
to the merits of his conviction; and he made no such challenge. His appeal could not 14
alter the fact of his conviction. His death during the pendency of the appeal thus does 15
not warrant abatement of his conviction, of the $100 special assessment statutorily 16
mandated for such a conviction, or the count of the indictment on which he was 17
convicted. 18
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CONCLUSION 1
2
For the reasons discussed above, we deny so much of the Abatement 3
Motion as seeks vacatur of Mladenʹs conviction, seeks dismissal of Count Two of the 4
indictment, on which he was convicted, and seeks repayment of the $100 special 5
assessment. As Count One of the indictment has already been dismissed, we deny 6
as moot so much of the Motion as requests that relief. We grant so much of the 7
Motion as requests dismissal of the appeal and a remand to the district court for 8
vacatur of the imposed terms of imprisonment and supervised release, and for entry 9
of an order that the $20,000 fine be repaid to Mladenʹs estate. 10
The Abatement Motion is thus granted in part and denied in part; the 11
appeal is dismissed. 12
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