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,

(2d Cir. 2017)

(quoting United States v. Wright,

(2d Cir.

1998)), such that the conviction must be vacated and the underlying

charge dismissed, see

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it in unpublished rulings, and every other federal court of appeals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,

(7th Cir. 1977); United States v. Bechtel,

(9th Cir. 1977); United States v. Littlefield,

(8th Cir. 1979); United States v. Pauline,

(5th Cir. 1980); United States v. Dudley,

(4th Cir. 1984); United States v. Wilcox,

(6th Cir. 1986) (order); United States v. Mollica,

(2d Cir. 1988); United States v. Schumann,

, 1236 (11th Cir. 1988); United States v. Davis,

(10th Cir. 1992); United States v. Pogue,

(D.C. Cir. 1994); United States v. Christopher,

(3d Cir. 2001); see also United States v. Ribaudo,

(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,

(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,

(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,

, 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

.

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,

(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.

.

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."

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."

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.

Five years later in Dove v. United States,

(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.

. 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,

(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,

(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,

(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,

(1st Cir. 2022) (cleaned up); see also United States v. Sampson,

(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,

(1994) (quoting United States v. Hamburg–Amerikanische Packetfahrt–Actien Gesellschaft,

, 477–78 (1916)); Azar v. Garza,

(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,

)); see also United States v. Volpendesto,

(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,

(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.),

(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,

. 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,

, 1133-34; see also, Marc M. Arkin, Rethinking the Constitutional Right to a Criminal Appeal,

, 521-25 (1992). - 11 - Crooker v. United States,

(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,

(3d Cir. 2006), or,

as it is sometimes put, concerns about the conviction's "finality,"

Libous,

. 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,

(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,

(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,

; United

States v. Estate of Parsons,

(5th Cir. 2004) (en

banc); Libous,

. 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,

(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,

(D.C. 1983), and if a conviction is

overturned on direct appeal, then the presumption of innocence is

restored, see Nelson,

; Johnson v. Mississippi,

(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

(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

§ 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."

(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,

; see also United

States v. Pomeroy,

(C.C.S.D.N.Y. 1907); O'Sullivan

v. People,

(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"),

201-11,

,

1227-41 (codified as amended in scattered sections of 18 U.S.C.),

- 17 - and the Crime Victims' Rights Act of 2004 ("CVRA"),

101-04,

, 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."

(b),

, 1948 (codified as amended at

(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,

(1952); Samantar v.

Yousuf,

, 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,

(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,

, 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,

(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,

.

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,

.

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,

-

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,

. 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

("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,

(2d Cir. 2017); United States v.

Coddington,

, 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,

,

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,

. 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.

- 23 -