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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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).