Opinion
No. 74-1762.
January 16, 1976.
Ramon (Ray) Ramos, Jr., El Paso, Tex., for defendant-appellant.
William S. Sessions, U.S. Atty., San Antonio, Tex., Ron Ederer, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before TUTTLE, RONEY and GEE, Circuit Judges.
This case is pending before this Court on remand from the United States Supreme Court. It has been made known to the Court as a fact, supported by the official death certificate of the State of Florida, that appellant, Marc Alan Janney, in the above styled and numbered appeal died in Tallahassee, Florida, on October 4, 1975. Since a criminal prosecution abates ab initio upon the death of an appellant, the case is remanded with directions to the district court to vacate the judgment and dismiss the indictment as to appellant, Janney. Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971); United States v. Askew, 441 F.2d 258 (5th Cir. 1971).
Reversed and remanded.