Let it be said that Samuel Volpendesto led an interesting, albeit controversial, life. He was a war hero earning a box full of medals, including a coveted Bronze Star. In 1945, during World War II, he volunteered to swim into a sinking ship where survivors had found pockets of air.


He swam through severed body parts to reach the USS Robley D. Evans, which had been attack by Japanese kamikaze fighters, and fortified the sinking battleship to keep it from collapsing so it could be towed to shallow waters. Scores of young sailors owed their lives to Volpendesto’s selfless, courageous actions.


After the war, Volpendesto attended a Chicago art school, tried and failed to become a sculptor, tried unsuccessfully to be a driver, and finally settled into being a manager at a knife manufacturing plant.


Volpendesto lost virtually every job he held, that is, until somewhere along the line HE became associated with the Chicago Outfit, and in particular Cicero’s reputed crime boss Michael “The Large Guy” Sarno. He became what U.S. prosecutor Amarjeet Bhachu called a “grizzled soldier” of the Outfit who was heard on government wiretaps laughing about watching fellow mobster Sam “Mad Sam” DeStefano stuff body parts through a meat grinder.


But it was no laughing matter in 2011 when a federal judge sentenced Volpendesto to 35 years in prison for a number of organized crime-related activities. He was 87 years of age at the time and was wheel chair bound. He was escorted away to a federal prison along with his son, Anthony, The Large Guy, and Mark Polchan, another mobster. In addition to the 35-year sentence, the judge ordered Volpendesto to pay $547,597 to the victims of his crimes while the Government secured a forfeiture order of $1,878,172 which included his home, all the money in his name, and any other funds that might become available in the future.


Volpendesto appealed his conviction, sentence, and the forfeiture order. But before the Seventh Circuit Court of Appeals could hear and decide his case, Volpendesto died in prison in 2013 at age 89. His family and attorney had wanted him to die at home and be buried in the Arlington National Cemetery where so many other decorated war heroes lay. The burial request will now most likely be denied because of his criminal convictions.


But not only did the old mobster leave a “war hero” burial request hanging, Volpendesto left the Seventh Circuit with what the court called a “difficult” legal issue to resolve: whether a restitution order can be enforced in a case where the defendant dies before his conviction becomes final.


In 1971, the U.S. Supreme Court in Durham v. United States held that the rule of law known as the “doctrine of abatement” nullifies not only the pending appeal but the conviction of a defendant who dies before the appeal is finalized. The Seventh Circuit, along with other federal appeals courts, has adopted the rule that the death of a criminal defendant before the appeal is final renders the case moot. The Seventh Circuit said the rationale for this abatement doctrine is that “the interests of justice ordinarily require that [a criminal defendant] not stand convicted without resolution of the merits of his appeal, which is an ‘integral part of our system for finally adjudicating his guilt or innocence.’”


However, there is a serious split among the federal courts about whether the abatement doctrine applies to restitution orders. The Seventh Circuit in a June 6, 2014 in Samuel Volpendesto’s case chose to come down on the side that the rule of abatement indeed applies to restitution orders. The appeals court explained its position this way:


“The rule of abatement terminates criminal proceedings ab initio, ‘vacating the conviction entered against [the defendant].’ The fact that criminal restitution serves a compensatory purpose does not enable it to be imposed in the absence of a final conviction.


“The government objects that abatement of the restitution order unfairly rewards the estate at the expense of victims. That is one way of looking at things, but it does not change the result. If we are considering practical effects, it is worth noting that most, if not all, of the assets in Volpendesto’s estate were seized pursuant to the forfeiture order, which vested clear and irrevocable title in the government. The government’s seizure of Volpendesto’s assets left almost nothing for either victims or the estate to recover.


“Moreover, the victims are free to sue the estate. ‘Although it is not without a cost, requiring victims to argue their case in civil court protects the interests of defendants whose direct appeals are not yet final.’ Indeed, there is nothing to prevent victims from bringing civil actions even before the trial is over, and they might wish to do so in order to avoid any possible trouble with the statute of limitations. The fact that victims lack standing to challenge restitution orders in criminal proceedings in no way undermines their right to use civil proceedings to vindicate their legal rights after the defendant’s death.


“We conclude that Volpendesto’s death before his appeal was resolved caused his criminal conviction to abate. Without a final criminal conviction, there can be no order of restitution …”


Samuel Volpendesto loved listening to opera music. Perhaps Italian opera songs about love and death now escort him through eternity.