by Douglas Ankney

In a published precedential ruling, the U.S. Court of Appeals for the First Circuit adopted the doctrine of abatement ab initio for when a criminal defendant dies during the pendency of a direct appeal from his conviction.

In 2019, Francis M. Reynolds was convicted by jury of three counts of obstruction of a U.S. Securities and Exchange Commission proceeding, 18 U.S.C. § 1505, and one count of securities fraud, 15 U.S.C. §§ 78j(b) and 78ff(a). The U.S. District Court for the District of Massachusetts sentenced Reynolds to seven years’ imprisonment followed by three years of supervised release. The District Court also ordered Reynolds to pay $7,551,757 in restitution; pay a special assessment of $400; and ordered Reynolds to forfeit $280,000 to the U.S. pursuant to the criminal judgment. In a subsequent proceeding, the District Court granted the Government’s motion for Reynolds to forfeit 47,905,567 shares of a company called PixarBio as partial satisfaction of the forfeiture order.

Reynolds, proceeding pro se on appeal, challenged his convictions and the restitution and forfeiture orders. Briefing was complete, and the appeal was pending in the First Circuit when the Government informed the Court that Reynolds had died on January 9, 2022, while imprisoned.

Because the First Circuit had never published a precedential decision regarding the application of the doctrine of abatement ab initio, the Court appointed the Federal Public Defender for the Districts of Massachusetts, New Hampshire, and Rhode Island (collectively, “the Defender”) to appear as amici curiae to file a brief in defense of the doctrine of abatement ab initio, with Government arguing against.

The Court observed “[u]nder 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 (2d Cir. 2017). “[T]he conviction must be vacated and the underlying charge dismissed.” Id.

Although the present case technically came before the Court as one of first impression owing to the absence of a published, precedential holding, the Court had regularly applied the doctrine of abatement ab initio in no fewer than 11 unpublished decisions since 1994. (See opinion for supporting citations.) And every other U.S. Court of Appeals has adopted the doctrine in a published, precedential opinion. (See opinion for supporting citations from those circuits.)

While there was not any controlling precedent in the First Circuit, that was not always the case. In Durham v. United States, 401 U.S. 481 (1971), the U.S. Supreme Court was called upon to decide what course to follow after a criminal defendant seeking certiorari died while his petition was pending in that court. The Durham 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 Supreme Court disposed of the petition for certiorari by vacating the judgment of the Court of Appeals that had affirmed the defendant’s conviction and remanding with directions that the indictment be dismissed. Id.

Notably, the Durham Court acknowledged the potential distinction between direct appeals that “are a matter of right” and “decisions on certiorari petitions [that] are wholly discretionary.” Ultimately, the Durham Court concluded that “the distinction between [an appeal and certiorari review] would not seem to be important” to whether the doctrine applies.

But in Dove v. United States, 423 U.S. 325 (1976), the Supreme Court backtracked. In Dove, as in Durham, a convicted defendant whose judgment had been affirmed on appeal sought certiorari in the Supreme Court. The Dove Court simply dismissed the petition for certiorari and stated that “[t]o the extent that Durham v. United States, 401 U.S. 481 (1971), may be inconsistent with this ruling, Durham is overruled.” Thus, Dove controls in those cases involving certiorari petitions, but there is no controlling Supreme Court authority on cases, like the present one, involving direct appeals, the Court explained.

The Court commented that while the origins of the doctrine of abatement ab initio were not perfectly clear, “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.”

In a footnote, the Court stated “[c]ircuit courts were only authorized to hear ‘writs of error’ in criminal convictions in 1879, and then only on a discretionary basis.” 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.” Act of Mar. 3, 1911, ch. 231, section 128; 36 Stat. 1087; Rethinking the Constitutional Right to a Criminal Appeal, 39 UCLA L. Rev. 503 (1992).

But “by the mid-­twentieth century, the doctrine appear[ed] to have been uniformly applied.” Crooker v. United States, 325 F.2d 318 (8th Cir. 1963). “[T]he primary rationale that underlies the doctrine is ‘grounded in procedural due process concerns.’” United States v. DeMichael, 461 F.3d 414 (3d Cir. 2006). That is, it’s based on “concerns about the conviction’s ‘finality.’” Libous. “It is against the interests of justice for a person to ‘stand convicted without resolution of the merits of his appeal.’” United States v. Moehlenkamp, 557 F.2d 126 (7th Cir. 1977).

Turning to the present case, the Court rejected the Government’s argument that the judgement was final upon conviction. The Government based its argument on a statement from Herrera v. Collins, 506 U.S. 390 (1993), 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.”

The Court explained that “a number of circuits have relied on the finality rationale in applying the abatement doctrine even after Herrera.” (See opinion for supporting citations.) “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 (1956).

The Court also rejected the Government’s argument that application of the doctrine of abatement was in tension with “victim’s rights.” The Mandatory Victims Restitution Act of 1996 (“MVRA”), as amended by the Justice for All Reauthorization Act of 2016, provides 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.” 18 U.S.C. § 3613(b). But the Court was not persuaded that this provision of the MVRA made “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 (1952). That is, the MVRA provision did not make clear that it even applies to a restitution order on direct appeal but instead was “intended merely to address circumstances in which a defendant dies after the direct appeal process has run its course.”

The Court recognized that “the highest courts in a number of states have chosen to reject the doctrine.” Commonwealth v. Hernandez, 118 N.E.3d 107 (Mass. 2019). But no federal court has broken with the “unanimous consensus” since Durham. The Court reasoned, “[g]iven 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.” Having so concluded, the vacatur of the special assessment, restitution, and forfeiture order imposed pursuant to the conviction was required. Nelson v. Colorado, 581 U.S. 128 (2017).

Accordingly, the Court dismissed the appeal and remanded 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. See: United States v. Reynolds, 98 F.4th 62 (1st Cir. 2024).

Writer’s note: The Court cautioned that it took no position “on whether the different considerations that might arise where the forfeited property had been distributed to the victims before the defendant’s death would call for a different result.” Anyone with an interest in the doctrine of abatement ab initio is strongly encouraged to read the Court’s full opinion.  

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