783 F.2d 44
UNITED STATES of America, Plaintiff-Appellee,
Sonny WILCOX, Defendant-Appellant.
United States Court of Appeals,
Jan. 10, 1986.
Before WELLFORD and MILBURN, Circuit Judges, and KINNEARY, District Judge*.
It has come to this Court's attention that appellant Sonny Wilcox died on June 9, 1985, subsequent to oral argument in this case and prior to the filing of the decision of this Court. Appellant's Petition for Rehearing En Banc, p. 1.
Where a defendant in a criminal case dies while the case is pending on direct appeal, the case abates and the action must be remanded to the district court to dismiss the indictment. Durham v. United States, 401 U.S. 481, 483, 91 S.Ct. 858, 860, 28 L.Ed.2d 200 (1971); United States v. Toney, 527 F.2d 716, 720 (6th Cir.1975).
Accordingly, it is ORDERED that the previous decision and judgment of this Court is VACATED, and the case is REMANDED to the district court with instructions to dismiss the indictment.
HONORABLE JOSEPH P. KINNEARY, United States District Court for the Southern District of Ohio, sitting by designation