United States v. Ward , 54 M.J. 390 ( 2001 )

UNITED STATES, Appellee
v.
DeAngelo G. WARD, Private
U.S. Marine Corps
No. 00-0458
Crim. App. No. 99-0511
United States Court of Appeals for the Armed Forces
Submitted September 26, 2000
Decided March 16, 2001
CRAWFORD, C.J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, J., filed a
dissenting opinion.
Counsel
For Appellant: Lieutenant M. Eric Eversole, JAGC, USNR.
Military Judge: P. J. McLain
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Ward, No. 00-0458/MC
ON PETITION FOR RECONSIDERATION OF SUMMARY DISPOSITION
Chief Judge CRAWFORD delivered the opinion of the Court.
Appellant was convicted by a general court-martial on May
27, 1998, of conspiracy to commit robbery, resisting
apprehension, wrongful possession of marihuana, and robbery of a
fellow Marine, in violation of Articles 81, 95, 112a, and 122,
Uniform Code of Military Justice (UCMJ), 10 USC §§ 881, 895,
912a, and 922, respectively. The military judge sentenced him
to a dishonorable discharge, 5 years’ confinement, and total
forfeitures. Following affirmance of appellant’s convictions
and sentence by the Navy-Marine Corps Court of Criminal Appeals,
we granted appellant’s petition for review on July 10, 2000.∗
On September 15, 2000, we affirmed the decision of the
lower court in light of this Court’s decision in United States
v. Pritt, 54 M.J. 47 (2000). See 54 M.J. 326. At 1:55 a.m. on
September 22, 2000, appellant died in St. Louis, apparently the
victim of a homicide. On September 26, 2000, appellate defense
* The granted issue was:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE
EFFECTIVE DATE OF THE AMENDMENT TO ARTICLE 95, UCMJ, WAS FEBRUARY 10,
1996, WHEN THE PRESIDENT'S EXPRESS DIRECTION IN EXECUTIVE ORDER NO.
13096, WHICH MADE THE OFFENSE OF FLEEING APPREHENSION PUNISHABLE,
SPECIFICALLY STATES THAT “NOTHING CONTAINED IN THESE AMENDMENTS SHALL
BE CONSTRUED TO MAKE PUNISHABLE ANY ACT DONE OR OMITTED PRIOR TO JUNE
26, 1998, WHICH WAS NOT PUNISHABLE WHEN DONE OR OMITTED.”
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counsel filed a petition for reconsideration and abatement of
the proceedings in light of appellant’s death.
The issue of how to handle the appeal of a criminal
appellant who dies during the pendency of that appeal is not
without controversy. See Dove v. United States, 423 U.S. 325
(1976); Durham v. United States, 401 U.S. 481 (1971); Berry v.
Judges of the United States Army Court of Military Review, 37 M.J.
158 (CMA 1993); United States v. Kuskie, 11 M.J. 253 (CMA 1981).
This is a case of first impression for this Court. In
Kuskie, the appellant died while his petition for review of his
conviction was pending before this Court. In Berry, the
appellant died before time had expired for him to file a
petition for review before our Court. Here, appellant sought
and was accorded review of his case. On September 15, 2000, we
decided his case.
In Durham, the petitioner died while his petition for
certiorari was pending before the Supreme Court. A majority of
the Court adopted the rule that a petitioner’s death, while
pending direct review of a criminal conviction, abates all
proceedings ab initio. Accordingly, the Court granted the
petition for certiorari, vacated the judgement of the Court of
Appeals, and directed the District Court to dismiss the
indictment. 401 U.S. at 483. Justice Marshall, with whom the
Chief Justice and Justice Stewart joined, opined that the
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United States v. Ward, No. 00-0458/MC
petition should have been dismissed as moot. Id. Justice
Blackmun dissented, stating that he would dismiss the petition
for certiorari, rather than direct the dismissal of the
indictment, because “the dismissal of the indictment wipes the
slate entirely clean of a federal conviction which was
unsuccessfully appealed throughout the entire appeal process to
which the petitioner was entitled as of right.” Id. at 484-85.
In Dove, the Supreme Court was faced with the same situation as
in Durham. However, this time the Court dismissed the petition
for certiorari, left the underlying conviction undisturbed, and
expressly overruled that part of Durham which was inconsistent
with such a ruling. 423 U.S. at 325.
One primary consideration underlies the rule of abatement:
“[T]he interests of justice ordinarily require that [a
defendant] not stand convicted without resolution of the merits
of an appeal.” United States v. Pogue, 19 F.3d 663, 665 (D.C.
Cir. 1994); see United States v. Wright, 160 F.3d 905 (2d Cir.
1998).
In his petition to reconsider and abate the proceedings,
appellant’s defense counsel has not demonstrated to the
satisfaction of this Court how our decision affirming
appellant’s conviction in light of Pritt overlooks or otherwise
fails properly to apply the facts or law critical to the
original decision. See United States v. Quillan, 28 M.J. 166 (CMA
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United States v. Ward, No. 00-0458/MC
1989). The petition for reconsideration seeks abatement ab
initio due only to death.
In both Kuskie and Berry, the majority abated the
proceedings ab initio on the possibility that the appellant
would have been afforded review. In this case, we know for a
fact that review was granted and, after full review, relief was
denied. Accordingly, the interests of justice have been met
through the resolution of appellant’s appeal by the highest
court, and first civilian court, in the military justice system.
The petition for reconsideration and abatement of the
proceedings filed on appellant’s behalf is denied.
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United States v. Ward, 00-0458/MC
SULLIVAN, Judge (dissenting):
I disagree with this Court’s decision not to grant an
abatement of appellant’s case, and accordingly, I respectfully
dissent.
To justify denying the petition for reconsideration and
abatement, the majority attempts to distinguish the facts of the
case at bar from the facts of United States v. Kuskie, 11 M.J. 253
(CMA 1981), and Berry v. Judges of the United States Army Court
of Military Review, 37 M.J. 158 (CMA 1993)two cases in which our
Court granted abatements to appellants who died pending appellate
review.1 The majority writes:
In Kuskie, the appellant died while his
petition for review of his conviction was
pending before this Court. In Berry, the
appellant died before time had expired for
him to file a petition for review before
our Court. . . . In both Kuskie and
Berry, the majority abated the proceedings
ab initio on the possibility that the
1
The Federal Courts of Appeals have developed the general rule
that when a defendant dies prior to a determination of his appeal
as of right of a conviction in the District Court, the
prosecution is abated from its inception. See John H. Derrick,
Annotation, Abatement Effects of Accused’s Death Before Appellate
Review of Federal Criminal Conviction, 80 A.L.R. Fed. 446 (1986);
see also United States v. Wright, 160 F.3d 905, 908 (2d Cir.
1998); United States v. Dudley, 739 F.2d 175, 177 (4th Cir.
1984); United States v. Pauline, 625 F.2d 684 (5th Cir. 1980);
United States v. Toney, 527 F.2d 716, 720 (6th Cir. 1975); United
States v. Moehlenkamp, 557 F.2d 126, 127 (7th Cir. 1977); United
States v. Littlefield, 594 F.2d 682, 683 (8th Cir. 1979); United
States v. Oberlin, 718 F.2d 894, 895 (9th Cir. 1983); United
States v. Pogue, 19 F.3d 663, 665 (D.C. Cir. 1994).
United States v. Ward, 00-0458/MC
appellant would have been afforded review.
In this case, we know for a fact that
review was granted and, after full review,
relief was denied.
___ MJ at (3, 5). Its reasoning overlooks the law that
appellant’s appeal of right did not terminate until the time had
expired to petition for reconsideration.
The majority’s holding today ignores the military appellant’s
right to petition for reconsideration and, thus, conflicts with
the finality principles adhered to by other Federal Courts of
Appeals. See United States v. One Parcel of Real Estate, 214
F.3d 1291, 1294 (11th Cir. 2000) (“The purpose of the abatement
rule is to protect the deceased defendant from being branded a
felon without his conviction having become final.”). This Court
has recognized that military appellate practice before this Court
is “generally consistent with the practice in Federal courts of
appeals.” Berry, 37 M.J. at 160 (Sullivan, C.J., writing for the
Court). Then—Judge Crawford extended this analogy further. Id.
at 164 (Crawford, J., dissenting)(emphasis added). Specifically,
she wrote:
The United States Courts of Appeals are
courts of first appeal, and appeals to
them are of right. 28 USC §§ 1291-1293.
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United States v. Ward, 00-0458/MC
* * *
I believe that the more logical approach
would be to abate proceedings where this
Court has granted review on a
discretionary petition thereby rendering
the procedural posture of that case
analogous to an initial appeal of right.
“Present federal law has made an appeal from a District
Court’s judgment of conviction in a criminal case what is, in
effect, a matter of right.” Coppedge v. United States, 369 U.S.
438, 441 (1962). When an appellant has exercised this appeal of
right but does not petition the U.S. Supreme Court for a grant of
certiorari, a decision by a U.S. Court of Appeals is not final
until time has expired to file a motion for a rehearing or the
motion for rehearing is denied. See, e.g., Gendron v. United
States, 154 F.3d 672, 674 (7th Cir. 1998); United States v.
Torres, 211 F.3d 836 (4th Cir. 2000). “A case is not necessarily
finished once a decision is rendered and an opinion issued. One
last chance for relief in the courts of appeals is by way of a
petition for rehearing . . . .” Lissa Griffin, Federal Criminal
Appeals § 7.5 at 7-10 (2000). Fed. R. App. P. 40(a) provides
that, generally, an appellant has 14 days after entry of judgment
in the U.S. Courts of Appeals to petition for a rehearing. Rule
41(b) requires a court’s mandate to issue within 7 days after an
appellant’s time to file a petition for rehearing has expired;
otherwise, a timely filed motion will stay the issuance of the
mandate under Rule 41(d)(1). Issuance of the mandate constitutes
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United States v. Ward, 00-0458/MC
finality in the Federal Courts of Appeals, as the mandate will
remove jurisdiction from the appellate court. Griffin, supra, §
7.5(3) at 7-18. Otherwise, “[w]hen a petition for rehearing is
granted, the mandate is normally stayed until the case is finally
decided.” Id., § 7.5(6) at 7-20 (emphasis added).
Our decision should not be considered final until the time
for filing a petition for reconsideration has expired or the
petition for reconsideration has been denied. Rule 31(a) of our
Court’s Rules of Practice and Procedure states, “A petition for
reconsideration may be filed no later than 10 days after the date
of any order, decision, or opinion by the Court.” Our Rule 31 is
directly analogous to Fed. R. App. P. 40(a). The rationale for
both rules is the same - to allow the Federal Courts of Appeals
to determine an appellant’s guilt or innocence with as much
precision as possible before the judgment is carried out. See,
e.g., Oberlin, 718 F.2d at 895. In the instant case, appellant’s
death prevented such a final determination of his guilt or
innocence by this Court. To treat appellant’s conviction as
final (as the majority now suggests) circumvents our own rules
and constitutes a departure from the rule followed by our fellow
Federal Courts of Appeals in analogous situations. Accordingly,
I dissent from this making of new law.
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