                          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 MJ 47 (2000).       See 54 MJ 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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United States v. Ward, No. 00-0458/MC


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 MJ

158 (CMA 1993); United States v. Kuskie, 11 MJ 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 MJ 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 MJ 253

(CMA 1981), and Berry v. Judges of the United States Army Court

of Military Review, 37 MJ 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 MJ 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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