                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                            FOR THE TENTH CIRCUIT                             February 6, 2020
                        _________________________________
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 18-1470
                                                     (D.C. No. 1:15-CR-00383-RBJ-1)
 DANIEL DIRK CODDINGTON,                                        (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       A jury convicted Daniel Dirk Coddington of wire fraud and securities fraud.

The district court sentenced him to 10 years in prison and ordered him to pay

$18,021,669.74 in restitution. He died in prison shortly after he appealed. His counsel

argues this court must, under the abatement ab initio doctrine, dismiss the appeal and

remand to the district court with instructions to vacate the judgment, including the




       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
convictions and restitution order. Based on United States v. Davis, 953 F.2d 1482, 1486

(10th Cir. 1992), we agree. 1

                                LEGAL BACKGROUND

       This circuit adopted the abatement ab initio doctrine in United States v. Davis,

953 F.2d 1482, 1486 (10th Cir. 1992). In Davis, the government prosecuted Mr.

Davis and Mr. Burke for theft of federally insured deposits. Id. The jury convicted

each of them on multiple counts, and both appealed. Id. Mr. Burke died pending

appeal, and the government filed “a suggestion of death.” Id. “[Mr.] Burke’s

counsel, on behalf of the family, opposed dismissal, seeking an appellate decision on

the merits.” Id.

       In Davis, this court relied on the following statement from the Supreme Court

to resolve this issue: “[D]eath pending direct review of a criminal conviction abates

not only the appeal but also all proceedings had in the prosecution from its

inception.” Durham v. United States, 401 U.S. 481, 483 (1971) (per curiam). The

Davis panel then said, “Accordingly, as to Burke, we shall dismiss his appeal and




       1
        Given this disposition, we do not address Mr. Coddington’s alternative
challenges to the calculation of restitution, a jury instruction, and an evidentiary
ruling during trial. Nor do we address the government’s contention that Mr.
Coddington’s estate should be substituted as the Defendant - Appellant in this matter
under Federal Rule of Appellate Procedure 43(a)(1).

                                               2
remand the criminal judgment against him to the district court with instructions to

vacate the judgment and dismiss the underlying indictment.” 953 F.2d at 1486. 2

      In Nelson v. Colorado, 137 S. Ct. 1249 (2017), the petitioners had paid

restitution and then their convictions were reversed. The Supreme Court held the

state must return the restitution funds to them. Id. at 1258. Based on Nelson, the

Government concedes the restitution order against Mr. Coddington must be vacated if

his convictions are vacated. See Aplee. Br. at 14.

                                       DISCUSSION

      Davis requires us to “dismiss [Mr. Coddington’s] appeal and remand the criminal

judgment against him to the district court with instructions to vacate the judgment and

dismiss the underlying indictment.” 953 F.2d at 1486.




      2
         We have followed Davis in unpublished cases. See, e.g., United States v.
Brame, 568 F. App’x 567, 567 (10th Cir. 2014) (unpublished) (dismissing the appeal
as moot and remanding the case to district court with directions to vacate the
judgment of conviction and dismiss the underlying indictment when defendant died
pending direct review of a criminal appeal); United States v. Fernandez, 303 F.
App’x 640, 640-41 (10th Cir. 2008) (unpublished) (same).
       Our sister circuits have adopted the same doctrine. See United States v.
Volpendesto, 755 F.3d 448, 452 (7th Cir. 2014) (“We and our sister circuits have
recognized that death of a criminal defendant before appeal causes the case to
become moot.”); United States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001)
(noting “the rule [is] followed almost unanimously by the Courts of Appeals” except
for “one case . . . , but that view is based on an erroneous reading of that opinion”);
United States v. Estate of Parsons, 367 F.3d 409, 413 n.7 (5th Cir. 2004) (en banc)
(citing cases from Second, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits
dismissing appeals under doctrine).


                                                3
       Although the Government points to “concerns underlying abatement ab initio,”

Aplee. Br. at 24, it does not ask us to discard the doctrine, id. at 34. Rather, it “merely

ask[s] the Court to recognize a narrow exception to a general rule”: “When there is a

restitution order against the defendant, and the United States opposes abatement, the

Court should allow the appeal to proceed.” Id. But the Government’s arguments to limit

or distinguish Davis are not persuasive.

       First, the Government argues the Supreme Court has “left ‘the scope of . . .

abatement to be determined by the lower federal courts,’” Aplee. Br. at 28 (quoting

Durham, 401 U.S. at 882), but we did so in Davis as to abatement of the conviction.

Second, it points out that no restitution order had been entered in Davis, id., but it

offers no authority holding a conviction accompanied by a restitution order should

not be abated. Third, it notes the prosecution did not oppose abatement in Davis, see

id. at 29, but we recognized in Davis that the deceased defendant’s family opposed

abatement.

       Apart from its efforts to limit or distinguish Davis, the Government relies on

18 U.S.C. § 3613(b), which was enacted as part of the Justice for All Reauthorization

Act of 2016. It provides:

              The liability to pay restitution shall terminate on the date
              that is the later of 20 years from the entry of judgment or
              20 years after the release from imprisonment of the person
              ordered to pay restitution. In 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 . . . .

                                                  4
18 U.S.C. § 3613(b) (emphasis added).

      This reliance is misplaced. First, the estate’s responsibility under the statute

presupposes a conviction, but under Davis, Mr. Coddington’s convictions must be

vacated. Second, 18 U.S.C. § 3663A from the Mandatory Victims Restitution Act of

1996 provides that “when sentencing a defendant convicted of an offense . . . the

court shall order . . . restitution,” but again, Mr. Coddington’s convictions must be

vacated under Davis, obviating the statute’s restitution requirement.

      Although this circuit has not addressed what should happen to a restitution

order when a conviction is vacated under the doctrine, 3 the Government, as noted

above, has conceded based on Nelson that if Mr. Coddington’s convictions must be

vacated, the restitution order must be vacated as well. Aplee. Br. at 14; see also id.




      3
         Before Nelson, four federal circuit courts abated criminal restitution orders
under the abatement ab initio doctrine. See United States v. Estate of Parsons, 367
F.3d 409, 415 (5th Cir. 2004) (en banc); United States v. Volpendesto, 755 F.3d 448,
452 (7th Cir. 2014); United States v. Rich, 603 F.3d 722, 728-29 (9th Cir. 2010);
United States v. Koblan, 478 F.3d 1324, 1325-26 (11th Cir. 2007). Three federal
circuit courts did not abate a criminal restitution order under the abatement ab initio
doctrine. See United States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001); United
States v. Johnson, 937 F.2d 609, at *1 (6th Cir. 1991) (unpublished per curiam);
United States v. Dudley, 739 F.2d 175, 178 (4th Cir. 1984).
       In the only post-Nelson published circuit court decision, United States v.
Brooks, 872 F.3d 78, 89 (2d Cir. 2017), the Second Circuit interpreted Nelson as
requiring abatement of restitution following the death of a defendant pending a direct
criminal appeal. See also United States v. Ajrawat, 738 F. App’x 136, 139 (4th Cir.
2018) (unpublished) (“In light of Nelson, we can no longer say that an order of
restitution is an exception to this rule; to the extent Dudley conflicts with Nelson in
this regard, it is no longer good law.”).

                                               5
at 25 n.5. We agree with this reading and application of Nelson. 4 This concession

finds further support in the case law. See e.g., United States v. Estate of Parsons,

367 F.3d 409, 413 (5th Cir. 2004) (en banc) (quotations omitted) (“[T]he appeal does

not just disappear, and the case is not merely dismissed. Instead, everything

associated with the case is extinguished, leaving the defendant as if he had never

been indicted or convicted.”).




       4
          In his reply brief, Mr. Coddington presents a new argument that the restitution
issue is “moot” because he does not have any money and is now deceased so he “will
not be buying any lottery tickets in the future.” Aplt. Reply Br. at 3-4 (citing United
States v. Wright, 160 F. 3d 905, 909 (2d Cir. 1998) and United States v. Pogue, 19 F.3d
663, 665 (D.C. Cir. 1994) (per curiam)). At the sentencing hearing, the district court
was skeptical that a restitution order would compensate Mr. Coddington’s victims
because it seemed all that was left was “funny money.” ROA, Vol. IV at 132. The
prosecutor responded, “I suspect that’s a reality.” Id. And defense counsel said
restitution would “[p]robably not” happen. Id. at 106. We note that Mr. Coddington
was granted leave to proceed on appeal in forma pauperis. The record, however, does
not establish a complete absence of assets for restitution. Mr. Coddington self-reported
assets to the Probation Office that were listed in the PSR.

                                                6
                                      CONCLUSION

       Based on stare decisis and the Government’s concession that the restitution

order falls if the convictions fall, we dismiss this appeal and remand to the district

court with instructions to vacate the judgment, which includes the convictions and

the restitution order. 5


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




       5
         Legal commentators have criticized the abatement ab initio doctrine. See,
e.g., Criminal Law—Due Process—Second Circuit Decision Highlights Harms of
Abatement Doctrine—United States v. Brooks, 872 F.3d 78 (2d Cir. 2017), 131 Harv.
L. Rev. 1147 (2018); Patrick H. Gallagher, The Aaron Hernandez Case: The
Inconsistencies Plaguing the Application of the Abatement Doctrine, 53 Gonz. L.
Rev. 263 (2018). Some state courts have overruled and abandoned the doctrine. See,
e.g., State v. Al Mutory, 581 S.W.3d 741, 750 (Tenn. 2019); Commonwealth v.
Hernandez, 118 N.E.3d 107, 110 (Mass. 2019); State v. Benn, 274 P.3d 47, 50 (Mont.
2012); State v. Carlin, 249 P.3d 752, 762-63 (Alaska 2011).
        In this appeal, the Government presents policy arguments in favor of
protecting the victims’ interests in receiving restitution. Despite the foregoing, this
panel cannot reconsider Davis. “Under the doctrine of stare decisis, this panel cannot
overturn the decision of another panel of this court barring en banc reconsideration, a
superseding contrary Supreme Court decision, or authorization of all currently active
judges on the court.” United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir.
2000) (quotations omitted).
                                                7
