Defendant-appellant Stanley Mollica appeals from a judgment entered in the United States District Court for the Eastern District of New York, Maletz, J., convicting him of conspiring to commit certain tax offenses and to defraud the government by impeding, impairing, obstructing and defeating the lawful governmental functions of the Internal Revenue Service. Mollica contends that the indictment was unlawfully amended. We conclude that there was a constructive amendment of the indictment because, in light of the evidence presented in the case and the court's instructions to the jury, we cannot be certain that the jury convicted Mollica of the same conspiracy charge on which the grand jury indicted him. We therefore reverse the judgment of conviction and remand for a new trial. In addition, because defendant-appellant Marie Cirillo died while her appeal was pending, we vacate her judgment of conviction, and order that the indictment be dismissed as to her.
Meskill, Kearse and Mahoney, Circuit Judges.
Defendant-appellant Stanley Mollica appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Maletz, J.,*fn1 dated July 29, 1987. Mollica and Marie Cirillo were charged with conspiring to commit certain tax offenses and to defraud the United States by impeding, impairing, obstructing and defeating the lawful governmental functions of the Internal Revenue Service (IRS), in violation of 18 U.S.C. § 371 (1982); knowingly and willfully making and subscribing and causing to be made and subscribed corporate income tax returns that they did not believe to be true and correct as to every material matter, in violation of 26 U.S.C. § 7206(1) (1982) and 18 U.S.C. § 2 (1982); and knowingly and willfully attempting to evade and defeat income ties due from Mollica, in violation of 26 U.S.C. § 7201 (1982) and 18 U.S.C. § 2. Both Mollica and Cirillo were convicted of the conspiracy count. Cirillo was also found guilty of making and subscribing false corporate income tax returns, although the district court granted her a judgment of acquittal on this charge. Mollica and Cirillo were both acquitted by the jury of the remaining charges.
This appeal followed. The government also filed a cross-appeal arguing that the district court erred in granting Cirillo a judgment of acquittal on the filing false corporate tax returns charge.
On May 2, 1988, while the appeal was pending, Marie Cirillo died. Because of her death, we vacate her judgment of conviction and remand with instructions to dismiss the indictment as to her. In addition, we do not reach the issues raised in the government's cross-appeal because of the abatement of the prosecution of Cirillo.
As to Mollica, he contends on appeal that his judgment of conviction should be reversed because: (1) the district court amended the conspiracy count of the indictment from that of a conspiracy to impair the IRS in the assessment and collection of income taxes to that of a conspiracy to commit "any" fraudulent act against the United States; and (2) the court impermissibly allowed the government to argue and the jury to consider whether Robert Matthews was a co-conspirator and whether a "money laundering" scheme involving Matthews was part of the alleged conspiracy to defraud the United States although no nexus was established between the money laundering scheme and the charges in the indictment.*fn2 We conclude that there was a significant chance that Mollica was convicted of the conspiracy count because of the evidence presented of the money laundering scheme, although it was not established that this scheme was included in the original indictment, and therefore we vacate the judgment of conviction and remand for a new trial on this count.
Because of Marie Cirillo's death while the appeal was pending, we must decide the proper way to dispose of her appeal. We were faced with a similar situation in United States v. Floyd, 496 F.2d 982 (2d Cir.), cert. denied, 419 U.S. 1069, 95 S. Ct. 654, 42 L. Ed. 2d 664 (1974), in which an appellant died after his appeal had been argued, but before the opinion in the appeal had been filed. Relying on Durham v. United States, 401 U.S. 481, 483, 28 L. Ed. 2d 200, 91 S. Ct. 858 (1971) (per curiam), in which the Supreme Court held that death pending direct review of a federal criminal conviction, whether by certiorari or by appeal, abates the prosecution, we vacated the appellant's judgment of conviction and remanded his case to the district court with instructions to dismiss the indictment as to him. 496 F.2d at 984 n.2. Subsequent to our decision in Floyd, however, the Supreme Court issued its ruling in Dove v. United States, 423 U.S. 325, 46 L. Ed. 2d 531, 96 S. Ct. 579 (1976) (per curiam), tersely asserting that: "The Court is advised that the petitioner died at New Bern, N.C., on November 14, 1975. The petition for certiorari is therefore dismissed. To the extent that Durham v. United States, 401 U.S. 481, 28 L. Ed. 2d 200, 91 S. Ct. 858 (1971), may be inconsistent with this ruling, Durham is overruled."
Other circuits have concluded that Dove applies only to petitions for certiorari, however, not to appeals of right. See, e.g., United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980); United States v. Bechtel, 547 F.2d 1379, 1380 (9th Cir. 1977) (per curiam). Courts therefore have continued to hold that when an appellant dies while his or her criminal appeal is pending, the appellant's conviction should be vacated and the indictment dismissed. See, e.g., United States v. Wilcox, 783 F.2d 44 (6th Cir. 1986) (order); Pauline, 625 F.2d at 685; Bechtel, 547 F.2d at 1380.
Considering the facts of the instant case, we conclude that it is appropriate to vacate Cirillo's judgment of conviction and remand with instructions to dismiss the indictment as to her. We note, however, that in reaching this conclusion, we are limiting our holding to the facts of this case, and are leaving for another day what disposition should be made of cases involving different factual circumstances, such as cases implicating forfeiture provisions.
A. Alleged Illegal Practices
Mollica was the owner and sole shareholder of P.M. Excavating, Inc. (P.M.), a construction and excavation company located on Staten Island, New York. Cirillo was the bookkeeper of P.M., as well as Mollica's close personal friend. The government alleged that Mollica, with the help of Cirillo, engaged in several fraudulent practices to evade income taxes for the tax years of 1981, 1982 and 1983. For example, it was alleged that P.M. checks were made payable to individuals and companies that regularly did business with P.M., and then endorsements on the checks were forged and the checks were cashed. The money was then used for a variety of purposes, and the amounts were improperly deducted as business expenses. In addition, the government charged that other items of personal expense were deducted as business expenses, such as Mollica's daughter's college tuition and Cirillo's mortgage payments on her home. Other alleged illegal practices included diverting earned income into "secret" bank accounts without reporting the income on either Mollica's ...