Prologue — Ribaudo v. United States (No. 05-1293)

\

~~ 05129 3APR 10 2006

No. OFFICE OF THE CLERK

, ams

qd) Suprey Court U.S.

IN THE SUPREME COURT OF THE UNITED STATES

BRANDON T. RIBAUDO,

PRIVATE, UNITED:STATES MARINE CorPs,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ of Certiorari To The

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

ANTHONY S. YIM

Lieutenant, Judge Advocate

General's Corps, United States

Navy

Counsel of Record

Navy-Marine Corps Appellate

Review Activity :

716 Sicard St. S.E., Suite 1000

Washington, D.C. 20374- 5047

(202) 685-7389

QUESTIONS PRESENTED

In Section 871 of Title 10, United States Code, Congress

requires the United States Court of Appeals for the Armed

Forces to review or reject all petitions arising from the

decision by a service Court of Criminal Appeals before a

military service can carry out a punitive discharge or death

sentence. Appellant died after the Navy-Marine Corps Court

of Criminal Appeals decided his case, but before he had an

opportunity to present his petition to the Court of Appeals for

the Armed Forces. The Court of Appeals for the Armed

Forces allowed the Department of the Navy to execute

Appellant’s punitive discharge adjudged at trial without

civilian review of his petition. The questions presented are:

1. Whether the Court of Appeals for the Armed Forces

has jurisdiction to establish a uniform policy of abatement ab

initio for all military service courts?

2. Whether in light of Halbert v. Michigan, 125 S. Ct.

2582 (2005), the current policy of abatement ab initio

established by the Court of Appeals for the Armed Forces is

correct in light of its statutory responsibilities.

il

TABLE OF CONTENTS

CFRIEEE SESS URMEUNE TR TED casks snssiecesnssescoemascorsnnsshenseumunbenanes i

SARs SI CPU RSI E DD senccsisscinsecasaisecibsceheiasstumbakenneeibabins ii

Tas CR UT Re on neh sh canis escsnndeeneisioenannnbiniaanion lil

Ce LAR MEI OY sctccecistiansacsinsitinancctauseamibevennanmmnnanaonms ]

JURISDICTION ................. chacidasiunnapianieditied seeineasananeaatiaeaed

CONSTITUTIONAL PROVISIONS ........:..ccssscscssssssscssceses |

SEER © Fe ED iichininnistinbinnstjadmianintiaina 1

SP AB INE sinsthi sei dievenccinjasinniabienoecedavianbaaiaaoimeinens 2

REASONS FOR GRANTING THE PETITION ................. 3

Ae Fa eee ndocaihitnainitedanatnasaaelaiiirairaineanna ielaeiaia ines 14

PARP EEE EIR ER caxisscaxinansnsinsagadustibabiaxtiannkehaneattaaia tania een la

RET PEE Ti iassvknscaiansitinaaea ieancaiaan th nadbatsuiaiaaen lla

FE TETRIS: Neoisvissssicindaxcoancpsanadicieskosencieadegumahimadbaseecaoisy 18a

PPE TRY BF sstvinkasnenknivanpboheihadabicaasnisagsanieledaaaniaen 20a

PAR Tan RIBAK, Bo ssninssacctunscssbanavsbitapiiond nen bememlaaeleiaepbamtiiets 23a

iil

TABLE OF AUTHORITIES

United States Constitution

Re ie Oe RE My BO alsctitschenersasaicincriscanceddannavencnesneune 7

United States Supreme Court Cases

Clinton v. Goldsmith, 526 U.S. 529 (1999)... 3

Halbert v. Michigan, 125 S. Ct. 2582 (2005)...............0. i, 6

Rostker v. Goldberg, 453 U.S. 57 (1981) ..........ececeeeeceeeeeees 7

Weiss v. United States, 510 U.S. 163 (1994)... 7

Federal Statutes

St ca sahenaoiagunoenebeni 2

Ne ge ae ss sacs acksni kin evinced eietaco 3,5-7

8 Sl, «SRR CU RI i aaa teeter er ew are 3

Sa IN iii ar in cas ican eibas 2

ae a i a cleen pngunnoainah 2

BE se BID siicdacacteadcs atchadieentuipaieastuceiernsabsstnncanense |

United States Court of Appeals for the Armed Forces

United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003) ....... a3

United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005) .......... 4

United States Court of Appeals for the 2nd Circuit

United States v. Wright, 160 F.3d 905 (2d Cir. 1998)......... 6

United States Court of Appeals for the 7th Circuit

United States v.Moehlenkamp, 557 F.2d 126

EP MRIINS UPO We chika Soccndas sii kvcsbesacia ch mas ianiiinlaabtbamebakeuntseoeanuaies 5

iV

Congressional Hearings

Uniform Code of Military Justice: Hearing on H.R. 2498

Before the House Comm. on Armed Services,

Subcomm. No. 1, 81st Cong. 759 (March 14, 1949)

10

STEREOS HEE SH HE ESE ESE ESESE SES OS ESTES ESE SEEDED SESE EOE EEEEESESEEEESESH EEE EEESE SEE EES

American Law Reports

John H. Derrick, Annotation, Abatement Effects of Accused's

Death Before Appellate Review Of Federal Criminal

Convictions,80 A.L.R. Fed. 446 (2004) .............. 6,7

PETITION FOR A WRIT OF CERTIORARI

Appellant petitions for a wnt of certiorari to review the

judgment of the United States Court of Appeals for the Armed

Forces entered in his case on January 24, 2006.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Armed Forces (App., infra, la-10a) is reported at 62 M.J. 286.

The en banc opinion of the Navy-Marine Corps Court of

Criminal Appeals (App., infra, 1la-17a) is reported at 60

M.J. 691. A prior opinion of the Navy-Marine Corps Court of

Criminal Appeals affirming Petitioner’s court-martial

conviction (App., infra, 18a-19a) is unreported.

JURISDICTION

The opinion and judgment of the United States Court of

Appeals for the Armed Forces was entered on January 24,

2006. A motion to reconsider was denied on February 15,

2006. This jurisdiction of this Court is invoked under 28

U.S.C. § 1259(3).

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

The relevant statutory and constitutional provisions are

reproduced at App., infra, 20a-22a.

2

STATEMENT

A special court-martial composed of a military judge

alone tried Appellant on February 20, 2003. In accordance

with his pleas, Appellant was convicted of unauthorized

absence, wrongful drug use, and breaking restriction in

violation of Articles 86, 112(a), and 134 of the Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 886, 912(a), 934.

He was sentenced to confinement for one hundred days,

forfeiture of $766.00 pay per month for a period of three

months, and a bad-conduct discharge. The United States

Navy-Marine Corps Court of Criminal Appeals (NMCCA)

affirmed the findings and sentence. App., infra, 18-19a.

Appellant subsequently died within the sixty-day time

period of filing a petition to the United States Court of

Appeals of the Armed Forces. Appellate defense counsel

subsequently filed a motion to reconsider before NNCCA

asking the court to abate the proceedings ab initio. Sitting en

banc, NMCCA affirmed the prior findings and sentence. The

court held that its mandatory review function pursuant to

Article 66, UCMJ, 10 U.S.C. § 866 was concluded after

Appellant’s decision had been rendered. Jd. at 1 1a-17a.

Without review of Appellant’s petition on the merits, the

United States Court of Appeals for the Armed Forces

affirmed the service court’s decision and established a new

uniform policy of abatement ab initio for all military courts.

Id. at 1a-10a. The decision allowed the Department of the

Navy to carry out Appellant’s adjudged punitive discharge.

Id. at 10a. i

The court of appeals concluded that its review was an

appeal of discretion and that only review before a service

court was an appeal of right. The court of appeals noted that

an earlier decision recognized that the court’s jurisdiction

under Article 67, UCMJ, 10 U.S.C. 867(a)(3) (/d. at 20a.)

3

was unique when compared with that of other federal

appellate courts. The court of appeals also reasoned that its

jurisdiction was “more akin” to that exercised by the United

States Supreme Court under its certiorari jurisdiction. Jd. at

la-10a. Despite being raised by Appellant, the court of

appeals failed to address 10 U.S.C. § 871.

REASONS FOR GRANTING THE PETITION

The court of appeals invalidated an Act of Congress

based upon an unspecified plenary power. By doing so, the

court of appeals deprived Appellant his statutory nght to aver

his honorable service before the highest military court in the

nation. The court of appeal’s decision also conflicts with the

unanimity of the civilian federal circuit courts of appeals that

currently follow abatement ab initio. The court’s expansion

of its jurisdiction to establish a uniform legal policy absent

authority by Congress was error. Accordingly, this Court’s

review is warranted.

1. Appellant was deprived of his right to civilian review

before the highest military court in the nation. All parties

agree that pursuant to Article 71, UCMJ, 10 U.S.C. § 8714, the

Department of the Navy cannot carry out Appellant’s

adjudged bad-conduct discharge without the Court of

Appeals for the Armed Forces reviewing his petition for

appeal. App., infra, 21-22a.

But the court of appeals ignored the statute in cases where

appellants die during the appellate process. The court of

appeals found that Article 71, UCMJ, 10 U.S.C. § 871, “no

more compels that we adopt a policy of abatement ab initio

than it compels the United States Supreme Court to have such

a policy with respect to its review of military convictions.”

United States v. Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003).

This was error. There is no indication that Congress

4

desired any exceptions to Article 71, UCMJ, 10 U.S.C. 871.

To the contrary, the legislative history reveals that Congress

intended for the Court of Appeals for the Armed Forces to

review all petitions that are submitted to the court. Uniform

Code of Military Justice: Hearing on H.R. 2498 Before the

House Comm. on Armed Services, Subcomm. No. 1, 8\st

Cong. 759 (March 14, 1949).' Before any adjudged punitive

discharge was carried out, Congress desired both a military

and civilian appellate court to independently review the

court-martial.

Civilian oversight is a fundamental tenant of the

American military system and a necessary check on the

powers of the military. To arbitrarily stop the appellate

review process without civilian review prejudices a large

amount of appellants who could have otherwise had their

cases reversed. See, e.z., United States v. Jones, 61 M.J. 80

(C.A.A.F. 2005) (Civilian appellate court disagreeing with

service court over prejudice from unreasonable posttnal

delay).

' Colonel OLIVER. And in your bill last year, Mr.

Elston, you provided for some additional formal

review, without going into the details, to be

certain that there was a complete review.

Mr. ELSTON. I appreciate that, and that was

because we wanted to be certain that there was a

complete review.

Colonel OLIVER. That is right.

iwit. ELSTON. Of every case.

Colonel OLIVER. That is right.

5

By ignoring a statute of Congress and establishing its own

military-wide policy on abatement ab initio, the court of

appeals has invoked a previous unrecognized plenary power

over the service courts. The decision by the court of appeals

extended its policy to all uniform service courts. App., infra,

10a. The court of appeals relied on the fact that abatement ab

initio was a matter of policy instead of a matter of law. Jd. at

10a. See also Rorie, 58 M.J. at 405.

This Court has noted that the Court of Appeals for the

Armed Forces was not given authority by Congress to

oversee all matters arguably related to military justice or to

act as a plenary administrator even of criminal judgments it

has affirmed. Clinton v. Goldsmith, 526 U.S. 529, 536

(1999). The Court of Appeals for the Armed Forces can take

actions only with respect to matters of law. App., infra, 21a.

Appellant’s decision asserted a broad, erroneous view of an

unspecified plenary power that falls outside the limits of both

Article 67, UCMJ, 10 U.S.C. § 867 and this Court’s decision

in Goldsmith.

In sum, only Congress has the power to establish policy

over the military courts. The Court of Appeals for the Armed

Forces ignored clear statutory language by establishing a

military-wide policy of abatement ab initio.

2. The Court of Appeals for the Armed Forces is the only

federal court of appeals that does not follow abatement ab

initio.

While this Court has never outlined a rational for

abatement ab initio, the federal circuits have uniformly found

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). See also

John H. Derrick, Annotation, Abatement Effects of Accused's

6

Death Before. Appellate Review Of Federal Criminal

Convictions, 80 A.L.R. Fed. 446 (2004). All federal circuits

agree that only when an appeal of right is completed that the

interests of justice have been served. United States v. Wright,

160 F.3d 905, 908 (2d Cir. 1998).

The court of appeal’s self-classification of Petitioner’s

appeal as an appeal of discretion is erroneous in light of its

statutory responsibilities. The court of appeals based its

decision on the fact that it considered itself a court of

discretionary review. The court of appeals relied upon the

discretionary nature of its docket to conclude that its

jurisdiction was more akin to this Court. App., infra, 5a.

The court of appeals’ classification conflicts with this

Court’s decision in Halbert w. Michigan, 125 S. Ct. 2582

(2006). In Halbert, the Michigan Court of Appeals changed

its procedural rules to a petition-based system. Relying on the

discretionary nature of its docket, the state of Michigan

argued that appellants did not need to be afforded counsel as

the appeal was now discretionary. Jd. at 2588, 2591.

This Court rejected Michigan’s reliance on the procedural

rules of the appellate court and instead focused on the

function of the court. The court noted that the function of the

Mic xigan Court of Appeals is to look to the merits of the

claims made in the application. It is a court focused on

correcting legal errors. In contrast, a discretionary review is to

an appellate court that is focused on matters other than errors

by a lower court, e.g., the involvement of a matter of

significant public interest. /d. at 2591.

As this Court recently made clear, the question whether a

appeal is one of nght or discretion turns on the function of

the court. Congress did not intend to create a right of

discretio. ay review when it passed 10 U.S.C. § 867.

Instead, Congress intended for a review from both a military

and civilian appellate court. Uniform Code of Military

7

Justice: Hearing on H.R. 2498 Before the House Comm. on

Armed Services, Subcomm. No. 1, 8\st Cong. 759 (March 14,

1949)).

In the federal appellate system, there is only one Court

that is a court of discretionary review. Article 67a, 10 U.S.C.

867a, permits this Court to review decisions by the Court of

Appeals for the Armed Forces. Thus it was error for the court

of appeals to conclude that it possessed the power to establish

national legal policy for the military when Congress

permitted this Court to review its decisions.

The court of appeals’ decision raises matters fundamental

to the rights bestowed by Congress to servicemembers. Great

deference is owed to the judgments of the political branches

in this area. See, e.g., Weiss v. United States, 510 U.S. 163,

177 (1994) (“Judicial deference ... ‘is at its apogee’ when

reviewing congressional decisionmaking” in the military

context) (quoting Rostker v. Goldberg, 453 U.S. 57, 70

(1981)); Loving v. United States, 517 U.S. 748, 768-73

(1996). Despite that principle, the Court of Appeals for the

Armed Forces, an Article I court, ignored an Act of Congress

exercising the Legislative Branch’s power under the

Constitution to “make Rules for the Government and

Regulation of the land and naval Forces,” U.S. CONST. art. I, §

8, cl. 14 — and did so by extending its jurisdiction to a

function reserved only for this Court alone. This holding

warrants this Court’s review.