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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0651%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2005

## Text

\
~~ 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.

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TABLE OF CONTENTS
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REASONS FOR GRANTING THE PETITION ................. 3
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TABLE OF AUTHORITIES

United States Constitution

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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

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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
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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0651%3A0. Public record. Not legal advice.