Petition for Writ of Certiorari — Ribaudo v. United States (No. 05-1293)

8

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

“

ANTHONYS. YIM

Lieutenant, Judge A ate 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

APRIL 2006

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

No. 05-0117

Crim.App. No. 200301672

UNITED STATES, Appellee

v.

Brandon T. RIBAUDO, Private

U.S. Marine Corps, Appellant

October 20, 2005, Argued

January 24, 2006, Decided

OPINION: i

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), /0 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

2a . =

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 i

findings and sentence in a memorandum decision on

December 4, 2003. United States v. Ribaudo, No. NNYCCA

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 Cnminal Appeals rendered its decision under

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000), but before

the period to request reconsideration of that decision expired.

Ribaudo's appellate defense counsel argues that he is entitled

to abatement ab initio because his appeal of night was not

complete. We hold that once a Court of Criminal Appeals

issues its decision under Article 66(c), UCM, 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

3a

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 ordei 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 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.J.

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. nl

nl 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,

IN VIOLATION OF THE

CONSTITUTION AND UNITED STATES

v. RORIE, 58 M.J. 399 (C.A.A.F. 2003).

DISCUSSION

4a

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 nght

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,

UCM5, is not discretionary and because this court is the only

"federal 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), UCM. In adopting that policy we considered the

same argument about the nature of this court's petition

Sa

\

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:

There can be little doubt that this Court exercises

discretionary review with respect to our petition

docket. "The 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

certioran 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 nght. 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),

UCM,J, is discretionary with this court. Ribaudo's appellate

defense counsel presents nothing to persuade us that we

should abandon 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

6a

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, 305 U.S. App. D.C. 224, 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

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 tur 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 Cnminal

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. Jd. at

923. Robinson's counsel later filed a motion for

reconsideration, motion to vacate final judgment, and a

Ta

motion to abate proceedings because Robinson had died prior

to the court's initial decision being rendered. /d. 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

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 appropniate. 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. . . .

8a

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.

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." Jd. 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. Jd. at 390-91.

Appellant then filed a petition for reconsideration which

sought "abatement ab initio due only to death." Jd. at 391.

Although noting that the issue of abatement ab initio was not

9a

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 initia] 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 1s issued. n2

n2 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.

We therefore see no basis in law to alter the policy

determination of the Navy-Marine Corps Court of Criminal

Appeals 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

10a

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 Article 66(c),

UCMg, the appellant is not entitled to abatement ab initio. n3

n3 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).

DECISION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

lia

APPENDIX B

IN THE U.S. NAVY-

MARINE CORPS COURT OF CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON, D.C.

BEFORE THE COURT EN BANC

UNITED STATES

¥.

Brandon T. RIBAUDO

Private (E-1), U.S. Marine Corps

NMCCA 200301672

Decided 16 September 2004

Sentence adjudged 20 February 2003. Military Judge: J.P.

Colwell. Review pursuant to Article 66(c), UCMJ, of

convened by Commanding Officer, Marine Corps Combat

Service Support Schools, Training Command, Camp

Lejeune, NC.

LCDR BRENT FILBERT, JAGC, USNR, Appellate Defense

Counsel

Maj J.ED CHRISTIANSEN, USMC, Appellate Defense

Counsel

LT FRANK GATTO, JAGC,-USNR, Appellate Government

Counsel

12a

CARVER, Senior Judge:

A military judge, sitting as a special court-martial,

convicted the appellant, pursuant to his pleas, of

unauthorized absence, wrongfully using marijuana, and two

specifications of breaking restriction, in violation of Articles

86, 112a, and 134, Uniform Code of Military Justice, 10

U.S.C. §§ 886, 912a, and 934. The appellant was sentenced

to a bad-conduct discharge, confinement for 100 days, and

forfeiture of $766.00 pay per month for 3 months. Pursuant

to a pretrial agreement, the convening authority approved the

sentence as adjudged, but suspended all confinement over 75

days.

We affirmed the findings and sentence in an

unpublished opinion. United States v. Ribaudo, No.

200301672, unpublished op. (N.M.Ct.Crim.App. 4 Dec

2003). The appellant's appellate defense counsel (ADC) was

served with the decision on the same day it was issued. The

appellant died 12 days after the date of our decision while he

was on appellate leave. A copy of our decision was sent to

the appellant by certified mail on 10 January 2004. Neither

the appellant nor his ADC requested reconsideration before

our court or filed a petition for a-grant-of review to the Court

of Appeals for the Armed Forces (CAAF). Our opinion

became final on 30 April 2004 with the issuance of the

supplemental court-martial order that ordered the punitive

discharge into execution.

On behalf of the deceased appellant, the ADC filed a

motion to vacate’ the final judgment and set aside the

findings and sentence on 4 June 2004. We have carefully

' We will refer to and treat this request as a Motion to Abate the

Proceedings Ab Initio.

13a

considered the record of trial, the ADC’s motion, the

Government’s opposition to the motion, and the ADC’s reply

brief. We deny the ADC’s motion to abate.

Jurisdiction

The Government asserts that we do not have

jurisdiction to decide this motion because the appellant did

not file a request for reconsideration within the 60-day time

limit (as extended) established by Rule 19, Courts of

Criminal Appeals Rules of Practice and Procedure, 44 M.J.

LXXI (1996). This time limit runs concurrently with the 60-

day time limit in which to file a petition for a grant of review

with the United States Court of Appeals for the Armed

Forces (C.A.A.F. RULE 19(a)).

We previously held that the death of an appellant,

within the time limit in which to file a request for

reconsideration and in the absence of the filing of a petition

for a grant of review or a certificate of review before the

CAAF, tolled the time limit such that we retained jurisdiction

to decide the motion to abate. United States v. Foster, 27

M.J. 659, 660 (N.M.C.M.R. 1988)(en banc). The

Government argues that our decision in Foster was incorrect

since CCA Rule 19(d) expressly forbids the extension of the

reconsideration time limit by CCA Rule 24 (time limits may

be extended as required for a full, fair, and expeditious

consideration) or CCA Rule 25 (the requirements or

provisions of the rules may be suspended for good cause).

In Foster, we acknowledged that the time limit of 60

days for reconsideration could not be extended under CCA

Rules 24 or 25. Instead, we held that the “appellant's death . .

. tolled the running of the time period in which this Court

could still exercise its jurisdiction." Jd. (emphasis added).

l4a

After careful review, we continue to adhere to our earlier

ruling that the death of the appellant tolls the time limit under

CCA Rule 19. Thus, we hold that we have jurisdiction to

rule on this motion.

We also note that, under the facts of this case, the

ADC could have instead filed the motion to abate with the

CAAF. In United States v. Rorie, 58 M.J. 399, 400

(C.A.A.F. 2003), the Government conceded that the CAAF

had jurisdiction to decide the motion for abatement where the

appellant died 57 days after constructive service of the

decision by the United States Army Court of Criminal

Appeals that affirmed the findings and sentence.

We conclude that when an appellant dies within the

period of time during which a petition for review could be

timely filed by the appellant’s ADC with the CAAF without

filing a request for reconsideration to us and without the

filing of a petition for a grant of review or a certificate or

review to the CAAF, this court and the CAAF have

concurrent jurisdiction to decide a motion for abatement.

The ADC could properly file a motion to abate before either

court.

Abatement

The appellant requests that we abate the proceedings

as we did under similar facts in Foster. We decline to do so.

In Foster, as in this case, the appellant died after the

date of our decision, but before the time limit for

reconsideration had exspired, without filing a motion for

reconsideration with our court or a petition for a grant of

review before the CAAF. In Foster, we granted the motion

to abate, citing United States v. Anderson, 19 M.J. 295

15a

(C.M.A. 1985)(summary disposition) and United States v.

Kuskie, 11 M.J. 253 (C.M.A. 1981).

But, in Rorie, under very similar facts, our superior

court overruled Kuskie and declined to abate the proceedings.

The CAAF adopted the policy of the Supreme Court to reject

abatement when ar appellant dies while petitioning for a writ

of certiorari. “When an appellant dies pending an Article

67(a)(3) appellate review by this Court, we will dismiss or

deny the petition but will not abate the action ab initio."

Rorie, 58 M.J. at 407. :

The CAAF noted that, despite the Supreme Court's

decision, the Federal Circuit Courts of Appeal have

unanimously followed a policy of abatement when a criminal

defendant dies before the completion of appellate review,

“largely on the basis that an appeal to the circuit court is a

matter of right, whereas certiorari is discretionary review

before the Supreme Court." Jd. at 402. "We believe that the

initial review by a Court of Criminal Appeals provides a

military defendant with a substantive legal and factual

review." Id. at 404.

The CAAF allowed the service Courts of Criminal

Appeals to decide upon their own abatement policy. “In view

of our conclusion that an appeal to the Courts of Criminal

Appeals is an appeal of right, we leave 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." /d. at 407.

As noted above, we hold that an appellant who dies within

the period of time during which a petition for review could be

timely filed with the CAAF, without action that would divest

our court of jurisdiction, is still pending review before our

court.

16a

We hold that, since appeal to our court is a matter of

right for those cases that meet the criteria under Article 66,

UCMSJ. we will follow the unanimous policy of the Federal

Circuit Courts of Appeal to abate ab initio the conviction of

an appellant who dies on or before the date of our decision.”

On the other hand, we hold that once our decision has been

rendered, the appellant has received the appeal of right

mandated by Article 66, UCMJ. Reconsideration is clearly a

discretionary matter for which the appellant has no absolute

right.

We therefore hold that where an appellant dies after

the date of our decision but within the period of time during

which a petition for review would be timely filed with the

CAAF, without action to divest our court of jurisdiction, a

request for abatement will be denied. To the extent that

Foster holds otherwise, it is overruled.

Conclusion

Accordingly, the motion to abate the final judgment is

denied.

Chief Judge DORMAN, Senior Judge RITTER, Senior

Judge PRICE, Judge SCOVEL, Judge HEALEY, Judge

SUSZAN, Judge HARRIS, Judge WAGNER, and Judge

REDCLIFF concur.

If the decision was published, it may still be cited as authority, but with

the notation that the decision was vacated on other grounds.

i7a

For the Court

R.H. TROIDL

Clerk of Court

18a

APPENDIX C

IN THE U.S. NAVY-MARINE CORPS COURT

OF CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON, D.C.

BEFORE C.L. CARVER, W.L. RITTER, R.W.

REDCLIFF

UNITED STATES

v.

Brandon T. RIBAUDO

Private (E-1), U.S. Marine Corps

NMCCA 200301672

Decided 4 December 2003

Sentence adjudged 20 February 2003. Military Judge: J.P.

Colwell. Review pursuant to Article 66(c), UCMSJ, of

convened by Commanding Officer, Marine Corps Combat

Service Support Schools, Training Command, Camp

Lejeune, NC.

LCDR BRENT FILBERT, JAGC, USNR, Appellate Defense

Counsel

LCDR ERIC J. MCDONALD, JAGC, USN, Appellate

Defense Counsel

CDR ROBERT P. TAISHOFF, JAGC, USNR, Appellate

Government Counsel

19a

After careful consideration of the record, submitted

without assignment of error, we affirm the findings and

sentence as approved by the convening authority. Art. 66(c),

Uniform-_Code of Military Justice, 10 U.S.C. § 866(c).

For the Court

R.H. TROIDL

Clerk of Court

20a

APPENDIX D

1. Section 867 of Title 10, United States Code, provides in

relevant part:

(a) The Court of Appeals for the Armed Forces shall review

the record in--

(1) all cases in which the sentence, as affirmed by a Court

of Criminal Appeals, extends to death;

(2) all cases reviewed by a Court of Criminal Appeals

which the Judge Advocate General orders sent to the Court of

Appeals for the Armed Forces for review; and

(3) all cases reviewed by a Court of Criminal Appeals in

which, upon petition of the accused and on good cause

shown, the Court of Appeals for the Armed Forces has

granted a review.

(b) The accused may petition the Court of Appeals for the

Armed Forces for review of a decision of a Court of Criminal

Appeals within 60 days from the earlier of--

(1) the date on which the accused is notified of the decision

of the Court of Criminal Appeals; or

(2) the date on which a copy of the decision of the Court of

Cnisinal Appeals, after being served on appellate counsel of

record for the accused (if any), is deposited in the United

States mails for delivery by first-class certified mail to the

accused at an address provided by the accused or, if no such

address has been provided by the accused, at the latest

address listed for the accused in his official service record.

The Court of Appeals for the Armed Forces shall act upon

such a petition promptly in accordance with the rules of the

court.

(c) In any case reviewed by it, the Court of Appeals for the

2la

Armed Forces may act only with respect to the findings and

sentence as approved by the convening authority and as

affirmed or set aside as incorrect in law by the Court of

Criminal Appeals. In a case which the Judge Advocate

General orders sent to the Court of Appeals for the Armed

Forces, that action need be taken only with respect to the

issues raised by him. In a case reviewed upon petition of the

accused, that action need be taken only with respect to issues

specified in the grant of review. The Court of Appeals for the

Armed Forces shall take action only with respect to matters

of law.

2. Section 871 of Title 10, United States Code, provides in

relevant part:

(c) (1) If a sentence extends to death, dismissal, or a

dishonorable or bad-conduct discharge and if the right of the

accused to appellate review is not waived, and an appeal is

not withdrawn, under section 861 of this title (article 61), that

part of the sentence extending to death, dismissal, or a

dishonorable or bad-conduct discharge may not be executed

until there is a final judgment as to the legality of the

proceedings (and with respect to death or dismissal, approval

under subsection (a) or (b), as appropriate). A judgment as to

legality of the proceedings is final in such cases when review

is completed by a Court of Criminal Appeals and--

(A) the time for the accused to file a petition for review

by the Court of Appeals for the Armed Forces has expired

and the accused has not filed a timely petition for such

review and the case is not otherwise under review by that

Court;

(B) such a petition is rejected by the Court of Appeals for

the Armed Forces; or

(C) review is completed in accordance with the judgment

of the Court of Appeals for the Armed Forces and--

22a

(i) a petition for a wnt of certioran is not filed within

the time limits prescribed by the Supreme Court;

(ii) such a petition is rejected by the Supreme Court; or

(iii) review is otherwise completed in accordance with

the judgment of the Supreme Court.

(2) If a sentence extends to dismissal or a dishonorable or

bad conduct discharge and if the right of the accused to

appellate review is waived, or an appeal is withdrawn, under

section 861 of this title (article 61), that part of the sentence

extending to dismissal or a bad-conduct or dishonorable

discharge may not be executed until review of the case by a

judge advocate (and any action on that review) under section

864 of this title (article 64) is completed. Any other part of a

court-martial sentence may be ordered executed by the

convening authority or other person acting on the case under

section 860 of this title (article 60) when approved by him

under that section.

3. Article I, Section 8, Clause 14, of the United States

Constitution provides that Congress shall have power “To

make Rules for the Government and Regulation of the land

and naval Forces.”

23a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

USCA Dkt. No. 05-0117/MC

Crim.App. Misc. No. 03-1672

UNITED STATES, Appellee

v.

Brandon T. RIBAUDO, Private

U.S. Marine Corps, Appellant

On consideration of Appellant’s petition for

reconsideration of this Court’s decision, 62 M.J. 286

(C.A.A.F. 2006), it is, this 15th day of February, 2006,

ORDERED:

That said petition for reconsideration be, and the same is

hereby denied.

For the Court,

William A. DeCicco

Clerk of the Court