
    UNITED STATES of America, Appellee, v. Paul KURUZOVICH, Defendant-Appellant.
    No. 12-1789-cr.
    United States Court of Appeals, Second Circuit.
    Nov. 14, 2013.
    
      Michael Bosworth (Andrew L. Fish, Michael A. Levy on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
    Daniel Nooter (Thomas H. Nooter, on the brief), Freeman, Nooter & Ginsberg, New York, NY, for Defendant-Appellant.
    PRESENT: PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges, JANE A. RESTANI, District Judge.
    
    
      
       The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.
    
   SUMMARY ORDER

Defendant-Appellant Paul Kuruzovich (“Kuruzovich”) was charged in an information with blackmail in violation of 18 U.S.C. § 873. During trial, Kuruzovich pled guilty to the information, which alleged that he wrote emails to his former employer, Guidepoint Global LLC (“Guide-point”), threatening that he would inform law enforcement authorities that Guide-point had engaged in insider trading unless he received commissions, benefits, and severance payments he believed he was owed. At Kuruzovich’s sentencing on January 9, 2012, the district court, Chin, J., imposed a sentence of incarceration of one year, a supervised release term of one year, and a mandatory special assessment of twenty-five dollars, but withheld entry of judgment pending a final determination of restitution. On April 13, 2012, the district court Chin, J., ordered Kuruzovich to pay $59,652.85 in restitution to Guidepoint under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, for legal expenses Guidepoint incurred assisting the government in investigating and prosecuting Kuruzovich. A written judgment was filed on April 18, 2012, including the restitution award. Kuruzovich appealed only the restitution portion of the judgment, challenging the district court’s conclusion that restitution was mandatory as well as the amount ordered.

During the pendency of this appeal, but after completing his term of imprisonment, Kuruzovich died. This Court directed the parties to brief whether Kuruzovich’s death abated the district court’s restitution order. In that briefing, neither party challenged the dismissal of the present appeal under the unique circumstances of this case; both parties supported vacating or abating the restitution order. Additionally, Kuruzovich’s prior employer, Guidepost, no longer seeks compensation from Kuruzovich or his estate for Guidepost’s losses through the restitution order.

We therefore decline to decide the broader question of whether a defendant’s death may abate a restitution order. We came to a similar conclusion in United States v. Wright, in which we held that, given that the deceased defendant’s restitution payments were not due until he completed his period of incarceration and he died during his incarceration, the time to commence making payments could never arrive so the restitution order was futile and thus was abated. 160 F.3d 905, 909 (2d Cir.1998). Here, although the restitution payments are now due, the appellant has died and his estate apparently has no assets with which to satisfy the restitution order. Additionally, Guidepost has indicated that it no longer seeks to benefit from the restitution order. Finally, both parties, through their supplemental briefs, consented to vacating or abating the restitution order. Thus, in light of the positions of the parties and victim, we hold that the restitution order is abated, but that the judgment of conviction is affirmed in all other respects.  