United States v. Malfe

UNITED STATES NMCCA NO. 201900187 Appellee Panel 3 v. ORDER Tristen H. MALFE Hospitalman (E-3) U.S. Navy Abating All Proceedings Ab Initio Appellant

It has come to the Court’s attention 1 that on 20 July 2021, while this appeal was still pending before the Court, Appellant died in Boulder County, Colo- rado, as a result of the toxic effects of fentanyl. The coroner ruled the manner of death as accident.

Accordingly, it is, by the Court, this 30th day of March, 2022, ORDERED: (1) That all court-martial proceedings are ABATED AB INITIO. 2 (2) That all rights, privileges, and property of which the Appellant was deprived by virtue of the execution of any portion of the sentence will be RESTORED.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

1 Notwithstanding N-M. Ct. Crim. App. R. 23.6, Appellant’s counsel has not filed a motion to attach a death certificate or to abate proceedings.

2 See United States v. Ribaudo, 62 M.J. 286, 289 (C.A.A.F. 2006), “[D]eath during the pendency of an appeal of right abates the proceedings ab initio.”

Copy to: (CAPT Belsky)