United States Court of Appeals For the First Circuit
No. 20-1268
UNITED STATES,
Appellee,
v.
FRANCIS M. REYNOLDS, a/k/a Frank Reynolds,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Barron, Chief Judge, Thompson and Kayatta, Circuit Judges.
Francis M. Reynolds on brief pro se. Mark T. Quinlivan, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, Sara Miron Bloom, Assistant United States Attorney, and Leslie Wright, Assistant United States Attorney, were on the brief, for appellee. Judith H. Mizner, Assistant Federal Defender for The Office of the Federal Defender, Districts of Massachusetts, New Hampshire and Rhode Island, amicus curiae.
April 9, 2024 BARRON, Chief Judge. The appellant in this direct
criminal appeal died while it was pending before our court. We
thus confront the question of whether, to dispose of this appeal,
we should apply the doctrine of abatement ab initio or follow some
other course.
Under the abatement doctrine, when a criminal defendant
dies during the pendency of a direct appeal from his conviction,
"his death abates not only the appeal but also all proceedings had
in the prosecution [of the underlying indictment] from its
inception," United States v. Libous, 858 F.3d 64, 66 (2d Cir. 2017)
(quoting United States v. Wright, 160 F.3d 905, 908 (2d Cir.
1998)), such that the conviction must be vacated and the underlying
charge dismissed, see id. We have not previously recognized the
doctrine in a precedential ruling. But we have routinely applied
it in unpublished rulings, and every other federal court of appeals
that hears direct criminal appeals has adopted the doctrine in a
published (and therefore precedential) decision.1 The government
1See United States v. Moehlenkamp, 557 F.2d 126, 127-28 (7th Cir. 1977); United States v. Bechtel, 547 F.2d 1379, 1380 (9th Cir. 1977); United States v. Littlefield, 594 F.2d 682, 683 (8th Cir. 1979); United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980); United States v. Dudley, 739 F.2d 175, 176 (4th Cir. 1984); United States v. Wilcox, 783 F.2d 44, 44 (6th Cir. 1986) (order); United States v. Mollica, 849 F.2d 723, 726 (2d Cir. 1988); United States v. Schumann, 861 F.2d 1234, 1236 (11th Cir. 1988); United States v. Davis, 953 F.2d 1482, 1486 (10th Cir. 1992); United States v. Pogue, 19 F.3d 663, 665 (D.C. Cir. 1994); United States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001); see also United States v. Ribaudo, 62 M.J. 286, 287 (C.A.A.F. 2006). - 2 - urges that we nonetheless reject the doctrine as unsound. It then
contends that we should either simply dismiss this appeal as moot
or, at most, follow the practice of the Supreme Judicial Court of
Massachusetts and dismiss the appeal as moot while instructing the
District Court to add a notation in the record "that the
defendant's conviction removed the presumption of innocence, that
the conviction was appealed, and that the conviction was neither
affirmed nor reversed because the defendant died while the appeal
was pending." See Commonwealth v. Hernandez, 118 N.E.3d 107, 121
(Mass. 2019) (adopting this procedure).
Having carefully considered the government's position,
we reject it and thereby align ourselves with the other federal
courts of appeals and our own past decisions in recognizing the
abatement doctrine. Accordingly, we dismiss the appeal and remand
for the District Court to vacate the convictions at issue and
dismiss the indictment. In addition, in accord with the
government's own understanding of what must follow from the
abatement doctrine's application, we instruct the District Court
on remand to vacate the orders of restitution and criminal
forfeiture that were imposed in this case, as well as the special
assessment. See Nelson v. Colorado, 581 U.S. 128, 135-36 (2017).
I.
In the fall of 2019, after a fourteen-day trial, a jury
in the United States District Court for the District of
- 3 - Massachusetts found Francis M. Reynolds guilty of three counts of
obstruction of a United States Securities and Exchange Commission
proceeding, 18 U.S.C. § 1505, and one count of securities fraud,
15 U.S.C. §§ 78j(b), 78ff(a). The District Court entered the
judgment of conviction against Reynolds and sentenced him to a
term of imprisonment of seven years plus three years of supervised
release. The District Court also ordered Reynolds to pay
restitution to the victims of his fraud in the amount of $7,551,757
and a special assessment of $400. In addition, the District Court
ordered Reynolds to forfeit $280,000 to the United States pursuant
to the criminal judgment.
The government thereafter filed a motion for the
forfeiture of 47,905,567 shares of a company called PixarBio that
Reynolds held, in partial satisfaction of the forfeiture order.
The District Court granted the motion on July 12, 2021.
Reynolds timely filed this appeal on March 20, 2020.
Although Reynolds was represented by counsel through sentencing,
he elected to proceed pro se on appeal. In his opening brief, he
challenged his convictions as well as the restitution and criminal
forfeiture orders.
Briefing was complete and the appeal was pending in this
Court when the government filed a suggestion of death, informing
the Court that Reynolds had died on January 9, 2022, while in the
custody of the U.S. Bureau of Prisons. The government moved in
- 4 - this same filing for appointment of counsel "for the other side"
and asked us to order briefing on "what procedural consequences
should follow from Reynolds's death."
We denied the government's motion for appointment of
counsel without prejudice and instructed the government to serve
its motion and our order on Reynolds's "personal
representative(s)." Our order also provided that Reynolds's
"personal representative(s)" should file any motion for
substitution of parties with respect to the pending appeal in our
Court within thirty days of being served by the government.
The government filed a response that stated that the
only person it found "who might be considered his representative"
was Reynolds's surviving spouse, who upon being provided with the
government's suggestion of death and our order in response to it
responded that she had no intention of participating in this case.
The government further represented that Reynolds's surviving
spouse stated that she was not aware of any pending probate matter
nor of any will belonging to her late husband. The government
also represented that while it had attempted to explain the
potential effect of the application of the doctrine of abatement
ab initio on any of Reynolds's assets, it was "unclear whether Ms.
Reynolds fully understands the ramifications of the abatement
issues pending before the Court."
After the deadline for Reynolds's personal
- 5 - representative to respond to our order had passed, the government
moved to appoint an amicus curiae to submit a brief in defense of
the doctrine of abatement ab initio. We appointed the Federal
Public Defender for the Districts of Massachusetts, New Hampshire,
and Rhode Island ("the Defender") to appear as amicus curiae to
address this question. The Defender urges us to resolve the
question by applying the doctrine of abatement ab initio. The
Defender also agrees with the government that, if we do apply the
abatement doctrine here, then under Nelson the restitution and
criminal forfeiture orders, as well as the special assessment,
cannot stand. See 581 U.S. at 135-36.
We thank both the Defender and the government for ably
briefing these issues.
II.
We start with the question of whether there is any
controlling precedent that dictates that the doctrine of abatement
ab initio applies. We conclude, as both the government and the
Defender agree, that there is not.
That was not always the case. In Durham v. United
States, 401 U.S. 481, 481 (1971) (per curiam), the Supreme Court
of the United States addressed the application of the doctrine in
a case that involved a criminal defendant who had unsuccessfully
challenged his federal conviction on direct appeal and who had
died while his petition for certiorari was pending before the
- 6 - Court. The Court disposed of the petition by vacating the judgment
of the court of appeals that had affirmed the petitioner's
conviction and remanding with directions that the indictment be
dismissed. Id. at 483.
The Court noted that "the lower federal courts were
unanimous" in holding that "death pending direct review of a
criminal conviction abates not only the appeal but also all
proceedings had in the prosecution from its inception." Id. The
Court acknowledged the potential distinction arising from the fact
that direct appeals of federal criminal convictions "are a matter
of right while decisions on certiorari petitions are wholly
discretionary." Id. at 483 n.*. The Court concluded, however,
that when a petitioner dies before the Court adjudicates a petition
filed pursuant to his statutory "right to petition for certiorari
. . . the distinction between [an appeal and certiorari review]
would not seem to be important" to whether the doctrine applies.
Id.
Five years later in Dove v. United States, 423 U.S. 325
(1976) (per curiam) the Court backtracked. There, again, the Court
was considering a petition for certiorari from a criminal defendant
who was challenging a federal conviction on direct appeal when the
Court was notified that the petitioner had died while the petition
was pending. Id. at 325. Rather than disposing of the petition
as Durham had, the Court simply dismissed the petition, stating
- 7 - that, "[t]o the extent that Durham v. United States, 401 U.S. 481
(1971) may be inconsistent with this ruling, Durham is overruled."
Ever since, the Supreme Court has followed the course
charted in Dove. See, e.g., Walker v. United States, 140 S. Ct.
953 (2020) (mem.) ("It appearing that petitioner died on January
22, 2020, the petition for a writ of certiorari is dismissed.").
Accordingly, there is no controlling Supreme Court precedent that
either requires us to apply, or prohibits us from applying, the
doctrine of abatement ab initio to dispose of a pending direct
appeal from a federal conviction when the appellant dies during
the pendency of that appeal.
There also is no controlling precedent from our Court
that addresses whether we must apply -- or are barred from
applying -- the doctrine in disposing of such an appeal. True,
even after Dove, we have applied the doctrine with seeming
regularity to dispose of an appeal of that kind. See, e.g., United
States v. Sheehan, No. 93-1781 (1st Cir. Feb. 2, 1994), ECF No. 35
(dismissing the appeal and remanding to the district court with
instructions to vacate the judgment of conviction and to dismiss
the superseding indictment); United States v. Merlino, No. 03-1041
(1st. Cir. Apr. 14, 2006), ECF No. 102 (same); United States v.
Ferrer-Ramos, No. 04-2294 (1st Cir. July 21, 2005), ECF No. 54
(same); United States v. Parra-Palomeque, No. 05-1677 (1st Cir.
- 8 - July 9, 2007), ECF No. 77 (same on joint motion from government
and defense counsel); United States v. Powell, No. 14-1231 (1st
Cir. Oct. 20, 2014), ECF No. 20 (same on defendant's unopposed
motion); United States v. Carter, No. 17-1738 (1st Cir. Oct. 11,
2017), ECF No. 19 (same); United States v. Tejeda-Serrano, No.
18-1029 (1st Cir. May 1, 2018), ECF No. 20 (same); United States
v. Sanchez-Alvarado, No. 18-1972 (1st Cir. June 2, 2020), ECF No.
34 (same on government's motion); United States v. Cotto-
Hernandez, No. 18-2018 (1st Cir. Feb. 20, 2020), ECF No. 44 (same
sua sponte upon learning of defendant's death); United States v.
Crosby, No. 19-1782 (1st Cir. Mar. 1, 2021), ECF No. 69 (same on
parties' joint motion); United States v. Valle, No. 21-1604 (1st
Cir. Sep. 20, 2021), ECF No. 23 (same on joint motion). In fact,
we are not aware of any instance in which we have ruled that the
doctrine does not apply in such a circumstance.
But we have applied the doctrine only in
non-precedential, unpublished rulings. Thus, as both the Defender
and the government agree, the question at hand is an open one in
the Circuit.
The government contends that it is important that we
resolve in a precedential ruling whether the doctrine of abatement
ab initio applies, as all the other circuits that hear direct
criminal appeals have done so. We agree. We thus turn our
attention to the doctrine's merits and the arguments concerning
- 9 - them that have been advanced quite thoroughly by the Defender and
the government. In assessing those arguments, however, we are
mindful that, although the question of whether the doctrine
warrants our recognition is technically one of first impression in
this Circuit, the doctrine comes to us firmly rooted in both the
precedents of the other circuits and our own practices.2 See
United States v. Zannino, 761 F.2d 52, 56 (1st Cir. 1985) ("[W]e
2 The government does not suggest that there is a jurisdictional bar to our applying the doctrine of abatement ab initio to dispose of this appeal, and we are satisfied that there is none. To be sure, generally speaking, "if an event occurs while a case is pending that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the action must be dismissed" as moot. Harris v. Univ. of Mass. Lowell, 43 F.4th 187, 192 (1st Cir. 2022) (cleaned up); see also United States v. Sampson, 26 F.4th 514, 516 (1st Cir. 2022) (per curiam) (dismissing as moot appeal from capital sentence upon being informed of the death of the defendant). However, even assuming that a defendant's death would moot a case notwithstanding the continuing effect of the conviction on the defendant's estate, we would still have jurisdiction to apply the doctrine of abatement ab initio. As a general matter, when a pending appeal becomes moot, appellate courts may vacate the judgment below if doing so is "'most consonant to justice' . . . in view of the nature and character of the conditions which have caused the case to become moot." U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 24-25 (1994) (quoting United States v. Hamburg–Amerikanische Packetfahrt–Actien Gesellschaft, 239 U.S. 466, 477–78 (1916)); Azar v. Garza, 584 U.S. 726, 729 (2018) ("Because this practice is rooted in equity, the decision whether to vacate turns on 'the conditions and circumstances of the particular case.'" (quoting Hamburg-Amerikanische, 239 U.S. at 478)); see also United States v. Volpendesto, 755 F.3d 448, 452 (7th Cir. 2014) (holding that the defendant's "death has deprived us of the power to decide the merits, but it does not defeat our authority to resolve the appeal in response to the mootness of the underlying case"). We understand the abatement doctrine, insofar as it is otherwise sound, to be consonant with this exercise of authority. - 10 - do not lightly create a split among the circuits."); Shea v. United
States, 976 F.3d 63, 85 (1st Cir. 2020) (Selya, J., dissenting)
(observing that "the reasoned decisions of a large number of our
sister circuits are, at the very least, entitled to respectful
consideration"). But see Pinpoint IT Servs., LLC v. Rivera,
Chapter 7 Trustee of Atlas IT Exp. Corp. (In re Atlas IT Exp.
Corp.), 761 F.3d 177, 182-83 (1st Cir. 2014) (noting that "[t]he
numbers [of other circuits] favoring a rule do not necessarily
mean that the rule is the best one" and that "it is always incumbent
on us to decide afresh any issue of first impression in our
circuit").
A.
1.
The origins of the doctrine of abatement ab initio are
not perfectly clear, but its application in the federal courts of
appeals coincides with the advent in the late-nineteenth century
of appeals from federal criminal convictions to the circuit
courts.3 Indeed, by the mid-twentieth century, the doctrine
appears to have been uniformly applied in the federal courts. See
3Circuit courts were only authorized to hear "writs of error" in criminal convictions in 1879, and then only on a discretionary basis. See Act of Mar. 3, 1879, ch. 176, 20 Stat. 354. It was not until 1911 that jurisdiction over all direct appeals from criminal convictions was vested in the circuit courts. See Act of Mar. 3, 1911, ch. 231, § 128, 36 Stat. 1087, 1133-34; see also, Marc M. Arkin, Rethinking the Constitutional Right to a Criminal Appeal, 39 UCLA L. Rev. 503, 521-25 (1992). - 11 - Crooker v. United States, 325 F.2d 318, 319 (8th Cir. 1963)
(surveying pre-Durham abatement practices in federal court).
Consistent with the doctrine's connection to the
statutory right to appeal, the primary rationale that underlies
the doctrine is "grounded in procedural due process concerns,"
United States v. DeMichael, 461 F.3d 414, 416 (3d Cir. 2006), or,
as it is sometimes put, concerns about the conviction's "finality,"
Libous, 858 F.3d at 66. The notion is that the criminal
defendant's death precludes the conviction from being tested on
appeal despite the criminal defendant's attempt to invoke the
statutory right to do so. See Moehlenkamp, 557 F.2d at 128
(explaining that it is against the interests of justice for a
person to "stand convicted without resolution of the merits of his
appeal").
The government does not dispute this account of the
doctrine's origins, but it argues that the finality rationale is
unsound and so supplies no basis for our applying the doctrine to
dispose of this appeal. In fact, the government appears to argue
that the doctrine is so unsound that it must be rejected despite
its admittedly deep roots in federal appellate practice. The
government rests this argument in part on the Supreme Court's
statement that "[o]nce a defendant has been afforded a fair trial
and convicted of the offense for which he was charged, the
presumption of innocence disappears," Herrera v. Collins, 506 U.S.
- 12 - 390, 399 (1993), and in part on various aspects of the federal
criminal process, reflected both in federal statute and the United
States Sentencing Guidelines.
The government reasons that Herrera shows that the
conviction in and of itself strips the defendant of a presumption
of innocence. According to the government, therefore, the pendency
of any direct appeal should have no bearing on whether to permit
the conviction to stand in the wake of the appellant's death
because "[a]n unreviewed criminal conviction is neither suspect
nor lacking in finality in any relevant sense." Volpendesto, 755
F.3d at 454–55 (Sykes, J., concurring). The government emphasizes
that several state high courts have rejected the finality rationale
based, at least in part, on precisely this reasoning. See, e.g.,
State v. Devin, 142 P.3d 599, 604-05 (Wash. 2006) (citing Herrera
and overruling prior precedent adopting abatement ab initio).
Notably, however, a number of circuits have relied on
the finality rationale in applying the abatement doctrine even
after Herrera. See, e.g., Volpendesto, 755 F.3d at 452; United
States v. Estate of Parsons, 367 F.3d 409, 415 (5th Cir. 2004) (en
banc); Libous, 858 F.3d at 66. And we see nothing in Herrera
itself that would provide us with a basis for concluding that it
is evident that those courts were mistaken to do so.
Herrera addressed whether a federal habeas petitioner
could, years after his state criminal trial and unsuccessful direct
- 13 - appeal, bring a federal habeas claim based not on an independent
constitutional violation but on new evidence that assertedly
proved his innocence. See 506 U.S. at 399-400. Herrera held only
that claims of actual innocence are not "a ground for federal
habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding." See id.
at 400. But see id. at 404 (noting that a proper showing of actual
innocence can serve as "a gateway through which a habeas
petitioner" may pass "to have his otherwise [procedurally] barred
constitutional claim considered on the merits"). The Supreme Court
thus had no occasion in Herrera to address the longstanding
abatement doctrine itself, which, of course, by its terms applies
only in the context of direct criminal appeals.
Nor does Herrera's reasoning undermine the strength of
the finality rationale for the doctrine. We do not understand
Herrera's emphasis on the impact of a conviction on the presumption
of innocence in limiting claims of factual innocence in federal
habeas actions to speak to the importance of the direct appeal in
the criminal process more generally. The value of the right to
such an appeal does not inhere in the opportunity that it provides
for criminal defendants to demonstrate their factual innocence.
Indeed, a common ground of challenge in such an appeal is one that
is predicated on a claimed constitutional violation, which, of
course, is the very ground that Herrera recognized could be brought
- 14 - post-conviction.
There also is no want of Supreme Court authority to
support the notion that undergirds the finality rationale for the
abatement doctrine -- that the loss of the opportunity to pursue
a direct appeal is significant. Indeed, the Supreme Court has
described the direct appeal of a criminal conviction as "an
integral part" of the process through which the judicial system
"finally adjudicat[es] the guilt or innocence of a defendant."
Griffin v. Illinois, 351 U.S. 12, 18 (1956) (emphasis added).
Herrera, then, hardly suffices to show that the calculus
that has led to the consistent application of the abatement
doctrine in the federal courts of appeals rests on a failure to
recognize that a defendant who has been convicted is no longer
presumed innocent. For, "[w]hile the trial court's judgment
carries a presumption of validity, the very essence of a
presumption is its vulnerability to refutation," Howell v. United
States, 455 A.2d 1371, 1372 (D.C. 1983), and if a conviction is
overturned on direct appeal, then the presumption of innocence is
restored, see Nelson, 581 U.S. at 135; Johnson v. Mississippi, 486
U.S. 578, 585 (1988) (noting that after a "conviction has been
reversed, unless and until [the defendant] should be retried, he
must be presumed innocent of that charge").
The government is right that "several other features of
federal law" besides Herrera reflect the import of a judgment of
- 15 - conviction when entered -- and thus even prior to any appeal having
been taken. The government highlights the higher statutory
standard for bail pending appeal versus bail pending trial.
Compare 18 U.S.C. § 3143(b)(A) (court "shall order" detention
pending appeal unless it finds "by clear and convincing evidence
that the person is not likely to flee or pose a danger to the
safety of any other person or the community" and that the appeal
raises a "substantial question . . . likely to result in" reversal
or resentencing to a shorter period of imprisonment than the
pendency of the appeal is likely to take), with id. § 3142(e)(1)
(court shall order defendant detained pre-trial only on finding
that "no condition or combination of conditions will reasonably
assure the appearance of the person as required and the safety of
any other person and the community"). The government also points
to the fact that a United States Sentencing Guideline includes a
conviction pending appeal in the calculation of a convicted
defendant's criminal history score. See U.S.S.G. § 4A1.2(a)(1).
But we do not understand our companion circuits in
consistently applying the doctrine of abatement to have been
laboring under the misapprehension that a conviction has legal
significance only after it has been affirmed on direct appeal or
the time for taking such an appeal has run with no appeal having
been taken. We understand our companion circuits merely to have
recognized what the Supreme Court itself recognized in
- 16 - Griffin -- that the direct appeal is "an integral part" of the
process for "finally adjudicating the guilt or innocence of a
defendant." 351 U.S. at 18 (emphasis added). Thus, we see no
fundamental contradiction between how federal law treats a federal
conviction and the finality rationale for the abatement doctrine,
as the rationale rests on the indisputably central role that direct
appeals do play in the process by which a conviction is "finally
adjudicate[d]." Id.
2.
The government separately challenges a second rationale
that has been put forth for the abatement doctrine: because the
punitive purpose of a criminal conviction cannot be fulfilled after
a defendant dies, "the state should not punish a dead person or
his estate." Estate of Parsons, 367 F.3d at 413; see also United
States v. Pomeroy, 152 F. 279, 282 (C.C.S.D.N.Y. 1907); O'Sullivan
v. People, 32 N.E. 192, 193-94 (Ill. 1892). Here, the government
contends there is an irreconcilable tension between this rationale
and "victims' rights," as the government argues the conviction
continues to serve compensatory and expressive purposes after a
defendant's death.
In support of this contention, the government points to
two federal statutes, the Mandatory Victims Restitution Act of
1996 ("MVRA"), Pub. L. No. 104-132, §§ 201-11, 110 Stat. 1214,
1227-41 (codified as amended in scattered sections of 18 U.S.C.),
- 17 - and the Crime Victims' Rights Act of 2004 ("CVRA"), Pub. L. No.
108-405, §§ 101-04, 118 Stat. 2260, 2261-65 (codified as amended
in scattered sections of the U.S. Code), both of which secure
certain rights for victims in federal criminal proceedings. At
oral argument, the government placed special emphasis on a
provision of the Justice for All Reauthorization Act of 2016, in
which Congress amended the MVRA to provide that "[i]n the event of
the death of the person ordered to pay restitution, the
individual's estate will be held responsible for any unpaid balance
of the restitution amount." Pub. L. No. 114-324, § 2(b), 130 Stat.
1948, 1948 (codified as amended at 18 U.S.C. § 3613(b)). But
insofar as the government means to suggest this provision is in
conflict with the abatement doctrine, we are not persuaded.
The text of this provision does not make clear that it
applies even to a restitution order that is pending on direct
appeal when the defendant dies. Thus, we do not understand this
provision to make "evident" a "statutory purpose" to overturn the
application of the abatement doctrine, a "long-established and
familiar principle[]" of federal criminal adjudication.
Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952); Samantar v.
Yousuf, 560 U.S. 305, 320 n.13 (2010) ("[W]hen a statute covers an
issue previously governed by the common law, we interpret the
statute with the presumption that Congress intended to retain the
substance of the common law."); see also Whitman v. Am. Trucking
- 18 - Ass'ns, 531 U.S. 457, 468 (2001) ("Congress, . . . does not alter
the fundamental details of a regulatory scheme in vague terms or
ancillary provisions -- it does not, one might say, hide elephants
in mouseholes."). And, insofar as the provision is not intended
to preclude application of the abatement doctrine, and instead is
intended merely to address circumstances in which a defendant dies
after the direct appeal process has run its course, we see no basis
for construing the provision in a way that would bring it into
conflict with the principles of due process set forth in Nelson
when the government itself does not make any argument that we must
so construe it. See Clark v. Martinez, 543 U.S. 371, 380–81 (2005)
("[W]hen deciding which of two plausible statutory constructions
to adopt, . . . [i]f one of them would raise a multitude of
constitutional problems, the other should prevail . . . .").
The government also argues that application of the
doctrine will "revive the trauma and pain that crime victims and
their loved ones have already suffered." But, as we have been
emphasizing, the doctrine of abatement is not a novel doctrine.
Its roots date back more than a century. We thus see little reason
to conclude that the doctrine has been applied in the federal
courts of appeals without any thought having been given to the
well-established notion that "in the administration of criminal
justice, courts may not ignore the concerns of victims." Morris
v. Slappy, 461 U.S. 1, 14 (1983). Instead, we understand the
- 19 - doctrine to reflect a now well-established equitable judgment
about the status to accord a federal conviction in the procedural
posture at issue here, given that vacating such a conviction
pursuant to the abatement doctrine "in no way undermines [victims']
right to use civil proceedings to vindicate their legal rights
after the defendant's death." Volpendesto, 755 F.3d at 454.
3.
Notably, the government itself recognizes that there is
a difference worth acknowledging between a conviction that was not
appealed at all and a conviction that was challenged on appeal but
could not be finally adjudicated on appeal due to the defendant's
death. The government states that it would not object if we were
to follow the lead of the highest state court in Massachusetts in
dismissing this appeal as moot while also taking the additional
step of instructing the District Court to add a notation on the
public docket to the effect "that the defendant's conviction
removed the defendant's presumption of innocence, but that the
conviction was appealed from and it was neither affirmed nor
reversed on appeal because the defendant died while the appeal was
pending." Hernandez, 118 N.E.3d at 121.
The government's argument for rejecting the abatement
doctrine, therefore, amounts to an argument that, although there
is a noteworthy difference between an appealed and un-appealed
conviction, that difference is not so great as to warrant the
- 20 - equitable decision to vacate the former when the defendant dies
before the appeal has been decided. But, in the face of the
established and uniform application of a doctrine that reflects
the opposite equitable judgment by our fellow circuits, we are not
persuaded.
True, the highest courts in a number of states have
chosen to reject the doctrine. See Hernandez, 118 N.E.3d at 119-
21 (collecting cases). But the highest court in the federal system
has not purported to cast doubt on what it described many decades
ago as the "impressive" "unanimity of the lower federal courts
which have worked with this problem over the years" regarding the
doctrine's legitimacy. Durham, 401 U.S. at 483. And no federal
court of appeals in the decades since has seen fit to break with
that unanimous consensus.
Given that direct appeals are no less integral to the
federal criminal process than they were at the time that the
Supreme Court described this still-reigning consensus as
"correct," we see no reason to break with it. We thus conclude
that the doctrine of abatement ab initio applies here, and so
dismiss this appeal with instructions for the district court to
vacate Reynolds' convictions and dismiss the superseding
indictment against him.
B.
There remains one additional question on which we
- 21 - requested briefing: whether abating a conviction requires also
vacating the special assessment, restitution, and forfeiture order
imposed pursuant to the conviction.4 The government and the
Defender both submit, based on the Supreme Court's decision in
Nelson, that vacatur of the convictions does so require. See 581
U.S. at 136 ("Colorado may not retain funds taken from [the
defendants] solely because of their now-invalidated convictions
. . . for Colorado may not presume a person, adjudged guilty of no
crime, nonetheless guilty enough for monetary exactions.").
Every circuit court to consider this question
post-Nelson has reached this conclusion as well, see, e.g., United
States v. Brooks, 872 F.3d 78, 89 (2d Cir. 2017); United States v.
Coddington, 802 F. App'x 373, 373 (10th Cir. 2020), including at
least one that previously did not abate restitution upon the death
of a defendant, see United States v. Ajrawat, 738 F. App'x 136,
139 (4th Cir. 2018) ("[T]o the extent [a prior circuit case not
abating restitution] conflicts with Nelson in this regard, it is
4 In the government's brief, submitted before Reynolds's passing, the government argued that Reynolds's challenges to the forfeiture order were not properly before us in this appeal because no final order of forfeiture as to Reynolds's PixarBio shares had issued when his notice of appeal was filed. However, this potential jurisdictional issue does not prevent us from applying the doctrine of abatement ab initio to Reynolds's convictions, which are before us, and remanding to the District Court, which has continued to exercise jurisdiction over the criminal forfeiture proceedings related to the convictions, with instructions to take the actions that follow from the vacatur of the convictions. - 22 - no longer good law."). And we see no reason here to conclude
otherwise, at least as no argument has been made to us that
challenges the government's position that "the reasoning of Nelson
. . . compels abating monetary penalties where a defendant dies
during his direct appeal." Brooks, 872 F.3d at 89. However, in
so holding, we do not take any position on whether the different
considerations that might arise where forfeited property had been
distributed to victims before a defendant's death would call for
a different result, as no suggestion has been made here that any
forfeited funds were distributed to victims before Reynolds died.
III.
For the foregoing reasons we dismiss the appeal and
remand to the District Court for it to vacate the judgment of
conviction and the orders of restitution and forfeiture and for it
to dismiss the superseding indictment.
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