UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DANIEL DIRK CODDINGTON, 

 Defendant - Appellant.

No. 18-1470 

(D.C. No. 1:15-CR-00383-RBJ-1) 

(D. Colo.) 

_________________________________ 

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 * This order and judgment is not binding precedent, except under the doctrines 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.

FILED

United States Court of Appeals

Tenth Circuit

February 6, 2020

Christopher M. Wolpert

Clerk of Court
2 

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). 
3 

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).
4 

 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 . . . .
5 

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.”). 
6 

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. 
7 

 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).