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 But we have routinely applied it in unpublished rulings, and every other federal court of appeals that hears direct criminal appeals has adopted the doctrine in a published (and therefore precedential)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