United States v. Reynolds

98 F.4th 62

UNITED STATES, Appellee, v. Francis M. REYNOLDS, a/k/a Frank Reynolds, Defendant, Appellant.

No. 20-1268

United States Court of Appeals, First Circuit

April 9, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]

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.

Before Barron, Chief Judge, Thompson and Kayatta, Circuit Judges.

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 But we have routinely applied it in unpublished rulings, and every other federal court of appeals that hears direct criminal appeals has adopted the doctrine in a published (and therefore precedential)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 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, 481 Mass. 582, 118 N.E.3d 107, 121 (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, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017).

I.

In the fall of 2019, after a fourteen-day trial, a jury in the United States District Court for the District of 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 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 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, 137 S.Ct. 1249.

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, 91 S.Ct. 858, 28 L.Ed.2d 200 (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 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, 91 S.Ct. 858.

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.*, 91 S.Ct. 858. 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, 96 S.Ct. 579, 46 L.Ed.2d 531 (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, 96 S.Ct. 579. Rather than disposing of the petition as Durham had, the Court simply dismissed the petition, stating that, "[t]o the extent that Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971) may be inconsistent with this ruling, Durham is overruled." Id.

Ever since, the Supreme Court has followed the course charted in Dove. See, e.g., Walker v. United States, — U.S. —, 140 S. Ct. 953, 206 L.Ed.2d 118 (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...