                       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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United States v. Ribaudo, No. 05-0117/MC

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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United States v. Ribaudo, No. 05-0117/MC

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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United States v. Ribaudo, No. 05-0117/MC

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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United States v. Ribaudo, No. 05-0117/MC

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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United States v. Ribaudo, No. 05-0117/MC

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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