United States v. Ribaudo , 62 M.J. 286 ( 2006 )

UNITED STATES, Appellee
v.
Brandon T. RIBAUDO, Private
U.S. Marine Corps, Appellant
No. 05-0117
Crim. App. No. 200301672
United States Court of Appeals for the Armed Forces
Argued October 20, 2005
Decided January 24, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Lieutenant Anthony S. Yim, JAGC, USNR (argued).
For Appellee: Lieutenant Kathleen A. Helmann, JAGC, USNR
(argued); Colonel Ralph F. Miller, USMC (on brief), Lieutenant
Colonel W. K. Lietzau, USMC, Major Kevin C. Harris, USMC, and
Captain Glen R. Hines, USMC.
Military Judge: J. P. Colwell
This opinion is subject to revision before final publication.
United States v. Ribaudo, No. 05-0117/MC
Judge ERDMANN delivered the opinion of the court.
Private (E-1) Brandon T. Ribaudo was tried by special
court-martial and entered guilty pleas to unauthorized absence,
using marijuana and twice breaking restriction in violation of
Articles 86, 112a and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 886, 912a, 934 (2000). A military judge
sentenced Ribaudo to a bad-conduct discharge, confinement for
one hundred days and forfeiture of $776.00 pay per month for
three months. Pursuant to a pretrial agreement, the convening
authority approved the sentence, but suspended confinement in
excess of seventy-five days for a period of twelve months. The
United States Navy-Marine Corps Court of Criminal Appeals
affirmed the findings and sentence in a memorandum decision on
December 4, 2003. United States v. Ribaudo, No. NMCCA 200301672
(N-M. Ct. Crim. App. Dec. 4, 2003). Sitting en banc, the Navy-
Marine Corps court subsequently denied Ribaudo’s motion to
abate. United States v. Ribaudo, 60 M.J. 691, 694 (N-M. Ct.
Crim. App. 2004).
An appellant is entitled to an appeal of right and his
death prior to completion of that appeal generally entitles him
to abatement of the proceedings ab initio. United States v.
Rorie, 58 M.J. 399, 400 (C.A.A.F. 2003). Ribaudo died after the
Court of Criminal Appeals rendered its decision under Article
66(c), UCMJ, 10 U.S.C. § 866(c) (2000), but before the period to
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request reconsideration of that decision expired. Ribaudo’s
appellate defense counsel argues that he is entitled to
abatement ab initio because his appeal of right was not
complete. We hold that once a Court of Criminal Appeals issues
its decision under Article 66(c), UCMJ, an appellant has
received his appeal of right and is no longer entitled to
application of the policy of abatement ab initio.
BACKGROUND
Ribaudo’s appellate defense counsel was served with a copy
of the Court of Criminal Appeals’ decision on the day it was
issued, December 4, 2003. Twelve days later, Ribaudo died.
Apparently without knowledge of Ribaudo’s death,
constructive service of the Court of Criminal Appeals’ decision
was initiated on January 13, 2004, when a copy of that decision
was sent to Ribaudo by certified mail. See Article 67(b)(2),
UCMJ, 10 U.S.C. § 867(b)(2) (2000). No petition for grant of
review was filed with this court by March 15, 2004, the date
upon which Ribaudo’s sixty days to petition this court would
have expired based upon the constructive service.
A supplementary court-martial order was subsequently issued
on April 30, 2004, executing Ribaudo’s bad-conduct discharge.
At that point, no petition for reconsideration had been filed at
the court below, nor had Ribaudo petitioned this court for a
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grant of review. On June 4, 2004, appellate defense counsel
filed a motion before the Court of Criminal Appeals to vacate
the final judgment of the lower court and set aside the findings
and sentence. Sitting en banc, the Navy-Marine Corps Court of
Criminal Appeals treated the motion to vacate and set aside as a
motion to abate the proceedings ab initio, and denied the
motion. Ribaudo, 60 M.J. at 693 n.1. We granted review to
consider the action of the en banc Court of Criminal Appeals in
light of our decision in United States v. Rorie.1
DISCUSSION
Ribaudo’s appellate defense counsel makes two arguments.
He initially argues that when Ribaudo died, the time for
requesting the Court of Criminal Appeals to reconsider its
decision had not passed and his appeal of right was not
complete. Thus, consistent with Rorie, the appellate defense
counsel claims Ribaudo’s conviction must be abated ab initio.
He next argues in the alternative that Rorie was wrongly decided
because this court’s review under Article 67, UCMJ, is not
discretionary and because this court is the only “federal
1
We granted review of the following issue:
WHETHER APPELLANT WAS DEPRIVED OF A SUBSTANTIAL LEGAL
AND FACTUAL REVIEW OF HIS CASE WHEN HE DIED AFTER THE
COURT OF CRIMINAL APPEALS AFFIRMED HIS CONVICTION, BUT
BEFORE THE TIME PERIOD FOR RECONSIDERATION HAD PASSED,
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United States v. Ribaudo, No. 05-0117/MC
appellate circuit” that does not adhere to a policy of abatement
ab initio. Thus Ribaudo’s appellate defense counsel suggests
that Rorie should be reconsidered, that the policy on abatement
at this court should be changed, and that this court should
abate Ribaudo’s proceedings ab initio.
The Government disputes these assertions. The Government
argues that Ribaudo received his appeal of right before the
Court of Criminal Appeals and that the subsequent discretionary
decision to reconsider in light of Ribaudo’s death did not
mandate abatement ab initio. The Government disagrees that
abatement ab initio is required at this court and argues that
Rorie was correctly decided in light of the discretionary nature
of this court’s review under Article 67(a)(3), UCMJ. We turn
first to our decision in Rorie.
In Rorie, we addressed the effect of an appellant’s death
while his case was pending review before this court. Appellant
Rorie died shortly before his sixty days within which to
petition this court for a grant of review had expired. After
that time expired, Rorie’s appellate defense counsel filed a
petition for grant of review and a motion to abate the
proceedings. This court adopted a policy of not abating
proceedings ab initio for cases before the court under Article
67(a)(3), UCMJ. In adopting that policy we considered the same
IN VIOLATION OF THE CONSTITUTION AND UNITED STATES v.
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United States v. Ribaudo, No. 05-0117/MC
argument about the nature of this court’s petition jurisdiction
that Ribaudo’s appellate defense counsel makes now. We
concluded that this court’s statutory jurisdiction under Article
67(a)(3), UCMJ, was unique when compared with that of other
federal appellate courts and that our jurisdiction was “more
akin” to that exercised by the United States Supreme Court under
its certiorari jurisdiction. Rorie, 58 M.J. at 405.
Specifically, we stated:
[T]here can be little doubt that this Court
exercises discretionary review with respect
to our petition docket. “[T]he question of
what cases are heard by the [Court of
Appeals for the Armed Forces] is a matter of
internal management, properly left to that
Court’s decision in accordance with
guidelines expressed in that Court’s rules.”
S. Rep. No. 98-53, at 34 (1983). The
discretionary nature of this Court’s
petition jurisdiction is more analogous to
the Supreme Court’s discretionary certiorari
practice.
Id. (second set of brackets in original).
We adhere to the conclusion of Rorie. Appeals to the
Circuit Courts of Appeal are a matter of right. United States
v. Christopher, 273 F.3d 294, 296 (3d Cir. 2001). See 28 U.S.C.
§§ 1291-1292 (2000). This court exercises discretion over its
petition docket and review under Article 67(a)(3), UCMJ, is
discretionary with this court. Ribaudo’s appellate defense
counsel presents nothing to persuade us that we should abandon
RORIE, 58 M.J. 399 (C.A.A.F. 2003).
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United States v. Ribaudo, No. 05-0117/MC
the policy established in Rorie and we decline to do so.
However, as we recognized in Rorie, review before the Courts of
Criminal Appeals is different.
Review by a Court of Criminal Appeals pursuant to Article
66, UCMJ, is an appeal of right. Rorie, 58 M.J. at 406; see
also Article 66(b), UCMJ. Thus, Rorie recognized that different
rules may apply with respect to abatement at the Courts of
Criminal Appeals. The general rule favors abatement ab initio
pending an appeal of right. See United States v. Pogue, 19 F.3d
663, 665 (D.C. Cir. 1994). It is the “longstanding and
unanimous view of the lower federal courts that the death of an
appellant during the pendency of his appeal of right from a
criminal conviction abates the entire course of the proceedings
brought against him.” United States v. Moehlenkamp, 557 F.2d
126, 128 (7th Cir. 1977). It is not until that appeal of right
is complete that we can rest assured the interests of justice
have been served. See United States v. Wright, 160 F.3d 905,
908 (2d Cir. 1998).
Rorie did not dictate a rule of abatement ab initio for the
Courts of Criminal Appeals because that issue was not before us.
Rather, we left “to those courts or the Judge Advocates General
to establish the parameters of a policy of abatement in the
event that an appellant dies pending review at a Court of
Criminal Appeals.” Rorie, 58 M.J. at 407. There is nothing
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United States v. Ribaudo, No. 05-0117/MC
before us to demonstrate that the Judge Advocates General have
prescribed a uniform rule of abatement for the Courts of
Criminal Appeals. See Article 66(f), UCMJ. Thus we turn to the
decisions of the Courts of Criminal Appeals dealing with
abatement.
In United States v. Hubbert, 61 M.J. 705, 705 (C.G. Ct.
Crim. App. 2004), the Coast Guard Court of Criminal Appeals
abated the proceedings. There the appellant had died after the
case had been forwarded to that court but before any briefs had
been filed. Id. In United States v. Robinson, 60 M.J. 923, 925
(A. Ct. Crim. App. 2005), the Army Court of Criminal Appeals
abated proceedings. The Army court initially affirmed the
findings and sentence in that case. Id. at 923. Robinson’s
counsel later filed a motion for reconsideration, motion to
vacate final judgment, and a motion to abate proceedings because
Robinson had died prior to the court’s initial decision being
rendered. Id. at 924. In both of these cases the appellant’s
death preceded the court’s initial decision under Article 66,
UCMJ. In both instances the courts were correct -- death during
the pendency of an appeal of right abates the proceedings ab
initio.
This case presents us with different facts. As noted,
Ribaudo died after the Court of Criminal Appeals had issued its
initial decision affirming the findings and sentence. A
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United States v. Ribaudo, No. 05-0117/MC
properly constituted Court of Criminal Appeals had reviewed
Ribaudo’s case and determined that the findings were factually
and legally correct and that the sentence was lawful and
appropriate. Hence, Article 66(c), UCMJ, had been fulfilled and
no further proceedings were required. Ribaudo received the
appeal of right to which he was entitled and abatement ab initio
was not required.
Ribaudo’s appellate counsel argues that a Court of Criminal
Appeals’ review includes the right to seek reconsideration
either by the panel deciding the case or by the court sitting en
banc. Ribaudo’s appellate counsel is mistaken in his assertion
that Ribaudo has a right to reconsideration. Navy-Marine Corps
Court of Criminal Appeals Rule 4-8.4 reflects that the decision
to reconsider either in panel or en banc is discretionary with
the court:
a. Upon motion or suggestion by a
party within 30 calendar days after
counsel’s receipt of the decision, or upon
motion or suggestion by appellant within 30
calendar days after appellant’s receipt of
the decision, the Court may reconsider a
decision previously rendered by it, provided
that jurisdiction of the case has not been
obtained by the United States Court of
Appeals for the Armed Forces. . . .
b. The motion to reconsider may
request en banc reconsideration. Cf. Rule
6-1. An appropriate order will be published
when a majority of the Court votes to grant
en banc consideration or reconsideration.
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Emphasis added. This discretionary authority to reconsider a
decision does not alter the conclusion that an appellant’s
appeal of right is complete when the lower court issues its
decision.
We are aware that precedent on this matter is not entirely
consistent. In United States v. Roettger, 17 M.J. 453 (C.M.A.
1984), this court addressed the power of the lower military
courts to abate proceedings during the period when “the
appellate court could reconsider its decision on its own motion
or at the request of appellate defense counsel.” Id. at 457.
The court held that “during the period that a petition for
reconsideration could be filed” there was “no legal impediment
to the lower court’s exercising its abatement powers” and that
the lower court had “incorrectly denied” a motion for abatement
based on Roettger’s death seven days after the lower court’s
decision and before Roettger had petitioned this court. Id. In
United States v. Lange, 18 M.J. 162 (C.M.A. 1984), this court
affirmed the lower court’s authority to abate where “the period
for reconsideration of this decision by the lower court on its
own motion had not yet expired.” Id. at 163.
In contrast, in United States v. Ward, 54 M.J. 390(C.A.A.F. 2001), the appellant died one week after this court
affirmed the decision of the lower court. Id. at 390-91.
Appellant then filed a petition for reconsideration which sought
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United States v. Ribaudo, No. 05-0117/MC
“abatement ab initio due only to death.” Id. at 391. Although
noting that the issue of abatement ab initio was not without
dispute, this court denied the petition for reconsideration
finding that Ward had been accorded “full review” and that “the
interests of justice [had] been met.” Id. While Rorie changed
the policy on abatement ab initio before this court, we find
that the rationale of Ward remains applicable to the instant
case.
This opinion should not be viewed as infringing on the
Court of Criminal Appeals’ discretion to entertain a timely and
meritorious motion for reconsideration or for a hearing en banc.
In the event that the Court of Criminal Appeals grants
reconsideration and withdraws its initial decision or opinion,
an appellant’s appeal of right cannot be said to be complete
until a new decision or opinion is issued. Similarly, where the
Court of Criminal Appeals decides to consider a case en banc,
Article 66, UCMJ, review cannot be considered complete until the
decision of the court en banc is issued.2
We therefore see no basis in law to alter the policy
determination of the Navy-Marine Corps Court of Criminal Appeals
2
Should an appellant die prior to an opinion on reconsideration
or en banc, that appellant would have died prior to completion
of his appeal of right and therefore be entitled to abatement ab
initio. However, should the Court of Criminal Appeals deny a
motion for reconsideration or a hearing en banc, the initial
decision or opinion of the court remains valid for purposes of
abatement ab initio.
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that an appellant who dies after a decision under Article 66(c),
UCMJ, has been issued is not entitled to abatement of the
proceedings against him ab initio. To the extent that our
decisions in Roettger and Lange are inconsistent with this
decision, those cases are overruled.
CONCLUSION
We hold that the Navy-Marine Corps Court of Criminal
Appeals did not deprive Ribaudo of any substantive legal or
factual review of his findings or sentence by declining to abate
the proceedings ab initio based upon Ribaudo’s death after that
court had issued its decision in the case. The lower court
properly exercised the authority we left to that court in Rorie,
establishing a policy on abatement for cases before that court.
In light of the fact that the Judge Advocates General have not
acted to establish a uniform rule for the Courts of Criminal
Appeals, and to ensure consistency among the service Courts of
Criminal Appeals, we extend the decision of the Navy-Marine
Corps Court of Criminal Appeals as the rule for each service
court. Where an appellant dies after a Court of Criminal
Appeals’ decision affirming the findings and sentence under
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Article 66(c), UCMJ, the appellant is not entitled to abatement
ab initio.3
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
3
This rule will not apply to any case reviewed by a service
court where the decision of that court may require further
review under Article 66, UCMJ. In such instances, the appeal of
right is not complete and the policy favoring abatement ab
initio remains intact. Nor does this rule reflect a policy
decision for cases coming to this court for review pursuant to
Article 67(a)(1) or (2), UCMJ. See United States v. Rorie, 58
M.J. 399, 407 n.7 (C.A.A.F. 2003).
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