Sanford v. United States

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2009 Decided November 13, 2009

No. 08-5402

KEVIN R. SANFORD,

APPELLANT

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-01792-RCL)

Eugene R. Fidell argued the cause for appellant. With him

on the briefs was Matthew S. Freedus.

Doris Coles-Huff, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Jeffrey A. Taylor, U.S.

Attorney at the time the brief was filed, and R. Craig Lawrence,

Assistant U.S. Attorney. Alan Burch, Assistant U.S. Attorney,

entered an appearance.

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Before: ROGERS, TATEL and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: In challenging his conviction by a

military court-martial consisting of less than six persons, Kevin

Sanford invites this court to hold that his rights under the Due

Process Clause of the Fifth Amendment were violated. He relies

on the Supreme Court’s announcement of a constitutional

minimum six-person jury for the trial of civilian, non-petty

offenses in Ballew v. Georgia, 435 U.S. 223 (1978), and

suggests it is the government’s burden to show that his due

process rights were not violated. Because Ballew was grounded

in the Sixth Amendment right to a jury trial, however, Sanford

is actually seeking a new due process right to a court-martial

panel of a minimum size. Sanford’s focus on rebutting the

government’s assertions thus fails to engage the appropriate

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

which is “whether the factors militating in favor of [the

proposed rule] are so extraordinarily weighty as to overcome the

balance struck by Congress,” id. at 177–78 (quoting Middendorf

v. Henry, 425 U.S. 25, 44 (1976)). Because Sanford failed to

engage this standard before the military courts, their resolution

of his claim suffered from no fundamental defect and was

properly upheld by the district court.

The Supreme Court’s conclusion regarding minimum jury

size in the civilian system was based on empirical studies.

Ballew, 435 U.S. at 231–39. Sanford presented no similar

empirical evidence regarding the military justice system, which

has features to ensure accurate fact finding not found in the

civilian justice system. Rather, Sanford contends that Ballew

reflects a conclusion about a fundamental right that is required

by due process under both the Fifth and Fourteenth

Amendments. Still he fails to show that the empirical data

3

underlying Ballew’s holding applies with equal force to the

military justice system, which is based on Congress’ balancing

of interests, some of which are unique to the military. Doubtless

it is fundamental that there be accurate fact finding under the

justice system Congress established in the Uniform Code of

Military Justice, 10 U.S.C. §§ 801, et seq. (“UCMJ”), but

Sanford fails to show that the design of the military system is so

incompatible with that principle as to violate due process.

Accordingly, we affirm the dismissal of his complaint.

I.

A.

Pursuant to Article I of the Constitution, U.S. CONST. art. I,

§ 8, cl. 14, Congress established a military justice system that

includes three types of courts-martial: summary, special, and

general. See 10 U.S.C. § 816. The summary court-martial

consists of only one commissioned officer, id. § 816(3), has

jurisdiction over enlisted men and women only, can be

conducted only with their consent, and can impose only a

limited array of minor punishments for minor offenses, see id.

§ 820. At the other end of the spectrum is the general court-

martial, which comprises a military judge and at least 5

members, or the judge alone if the accused so requests, id.

§ 816(1), has jurisdiction over all persons in the military for

offenses under the UCMJ, and can impose all lawful sentences,

even death, see id. § 818.

The special court-martial, at issue in this appeal, falls

somewhere in between. Consisting of not less than three

members, a military judge and not less than three members, or

the military judge alone if the accused requests, id. § 816(2), the

special court-martial has jurisdiction over most offenses under

the UCMJ and may, “under such limitations as the President

may prescribe, adjudge any punishment not forbidden by this

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chapter except death, dishonorable discharge, dismissal,

confinement for more than one year, hard labor without

confinement for more than three months, forfeiture of pay

exceeding two-thirds pay per month, or forfeiture of pay for

more than one year,” id. § 819. Subject to an exception for

exigency, adjudgment of “[a] bad-conduct discharge,

confinement for more than six months, or forfeiture of pay for

more than six months” requires that a military judge have

presided over the court-martial, that a complete record have

been made, and that counsel have been detailed to the accused.

See id.

The military judge who presides over a special or general

court-martial rules on all legal questions and instructs the

members regarding the law and procedures to be followed. Id.

§ 851. The members (if the accused has not opted to be tried by

the military judge alone) decide guilt or innocence, as well as

the sentence, if any, to be imposed. Id. Except in death cases,

their verdict need not be unanimous. 10 U.S.C. § 852.

Members of the court-martial are selected on the basis of being

“best qualified for the duty by reason of age, education, training,

experience, length of service, and judicial temperament.” 10

U.S.C. § 825(d)(2).

Upon conviction, the defendant may appeal, id. § 866, and

the service court of appeals is required to review the entire

record de novo, id. § 866(c), and may “‘substitute its judgment’

for that of the military judge [and] that of the court members,”

United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). A

further appeal may be had upon petition to the United States

Court of Appeals for the Armed Forces at that court’s discretion.

10 U.S.C. § 867(a)(3). The Court of Appeals for the Armed

Forces may only set aside convictions that are “incorrect in

law.” Id. § 867(c); see also Cole, 31 M.J. at 272. The court’s

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refusal to grant a petition is not subject to review by the United

States Supreme Court. 10 U.S.C. § 867a(a); 28 U.S.C. § 1259.

B.

Sanford is a former sergeant who served in the United

States Marine Corps. On October 3, 2004, a special court-

martial comprised of a military judge and four members

convicted him of violating a lawful order, dereliction of duty,

larceny, and impersonating an officer, all in violation of the

UCMJ, 10 U.S.C. §§ 892, 921, 934. The conviction was based

on his false preparation of recall orders for a marine reservist

that, along with other false representations, induced the

reservist’s employer to purchase airfare on his behalf from

Texas to Camp Pendleton, California. Sanford was sentenced to

confinement for six months, forfeiture of $767.00 pay per month

for six months, reduction from pay grade E-5 to E-1, and a bad-

conduct discharge.

On appeal, the United States Navy-Marine Corps Court of

Criminal Appeals (“the Marine Corps Court”) affirmed the

court-martial’s finding of guilt with some modifications and

reduced the period of his confinement to 150 days. United

States v. Sanford, 2006 WL 4571896, at *11 (N-M. Ct. Crim.

App. Nov. 6, 2006). Rejecting Sanford’s argument that

empaneling fewer than six members for his court-martial

violated his Fifth Amendment right to due process in

contravention of the standard articulated in Ballew, the Marine

Corps Court stated:

We have considered the appellant’s eighth assignment

of error challenging his convictions for ‘non-petty

offenses’ by a panel of only four members, and find it

to be without merit. See United States v. Wolff, 5 M.J.

923, 925 (N.C.M.R. 1978); see also Art. 29, UCMJ.

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Id. at *10 n.2. The Court of Appeals for the Armed Forces

denied Sanford’s petition for review. United States v. Sanford,

64 M.J. 428 (C.A.A.F. 2007).

On October 4, 2007, Sanford filed suit in the federal district

court challenging the validity of his conviction. As he did on

direct appeal, Sanford argued that his four-member court-martial

violated his due process rights under Ballew. The district court

ruled that the Marine Corps Court had given thorough

consideration to Sanford’s argument and that the court’s

judgment did not contravene Supreme Court standards. Sanford

v. United States, 567 F. Supp. 2d 114 (D.D.C. 2008). Sanford

appeals, and this court reviews de novo the dismissal of his

complaint for failure to state a claim. Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

II.

This court has recognized that the standard of review in

non-custodial collateral attacks on court-martial proceedings is

“tangled.” United States ex rel. New v. Rumsfeld, 448 F.3d 403,

406 (D.C. Cir. 2006) (“New II”). Two lines of precedent are

relevant: the first deals with the “full and fair consideration”

standard that applies for habeas review of courts-martial, and the

second deals with the “void” standard that applies to collateral

attacks on court-martial proceedings by persons who are not in

custody. The court in New II, which was faced, as here, with a

non-custodial plaintiff, attempted a synthesis of the two

standards, looking primarily to the military courts’ analyses of

the merits of the plaintiff’s claim. Because the first standard

(“full and fair consideration”) is, if anything, less deferential

than the second (“void”), the court observed that a claim that

fails the former a fortiori fails the latter. Id. at 408. In that

situation, the court did not need to address how much more

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deference, if any, was due to the military court’s judgment on

non-custodial review.

In Burns v. Wilson, 346 U.S. 137 (1953) (plurality), the

Supreme Court first articulated the “full and fair consideration”

standard, stating in the context of military habeas proceedings

that “when a military decision has dealt fully and fairly with an

allegation raised in that application, it is not open to a federal

civilian court to grant the writ simply to re-evaluate the

evidence,” id. at 142. In Kauffman v. Secretary of the Air Force,

415 F.2d 991 (D.C. Cir. 1969), this court interpreted that

standard, observing that “[t]he Supreme Court has never

clarified the standard of full and fair consideration, and it has

meant many things to many courts,” id. at 997. The court

reasoned that the standard should not differ “from that currently

imposed in habeas corpus review of state convictions,” and held

that “the test of fairness requires that military rulings on

constitutional issues conform to Supreme Court standards,

unless it is shown that conditions peculiar to military life require

a different rule.” Id.

The second line of precedent follows Schlesinger v.

Councilman, 420 U.S. 738 (1975), which held that federal courts

have jurisdiction to review the validity of court-martial

proceedings brought by non-custodial plaintiffs who cannot

bring habeas suits, id. at 752–53. However, for a court to grant

any relief to such plaintiffs, the military court judgment must be

“void,” id. at 748; see id. at 753, meaning the error must be

fundamental. The Supreme Court stated that “whether a court-

martial judgment properly may be deemed void . . . may turn on

the nature of the alleged defect, and the gravity of the harm from

which relief is sought. Moreover, both factors must be assessed

in light of the deference that should be accorded the judgments

of the carefully designed military justice system established by

Congress.” Id. at 753. This court adopted the Councilman

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standard as law for the circuit for non-custodial collateral attacks

on court-martial judgments in Priest v. Secretary of the Navy,

570 F.2d 1013, 1016 (D.C. Cir. 1977), and there considered the

fundamental nature of the purported constitutional errors, id., in

light of Supreme Court precedent examining the requirements

of the First Amendment, id. at 1016–18.

In New II, the court traced both these standards, their

interplay with the evolution of the relevant standards for habeas

review of civilian criminal judgments, and the level of deference

to be accorded by the court in each type of proceeding. In the

end, however, the court stated it had “serious doubt whether the

judicial mind is really capable of applying the sort of fine

gradations in deference that the varying formulae may indicate.”

New II, 448 F.3d at 408. Acknowledging “Councilman’s

statement that errors must be fundamental to void a court-

martial judgment on collateral review,” id., the court held that

“in light of Councilman’s point that non-habeas review is if

anything more deferential than habeas review of military

judgments, a military court’s judgment clearly will not suffer

such a defect if it satisfies Burns’ ‘fair consideration’ test,” id.

at 408 (internal citation omitted). Ultimately, the court found no

fundamental defect in the military Court of Appeals’ resolution

of the claim. Id. at 408, 410.

However, in applying the “full and fair consideration” test,

the court in New II did not strictly follow Kauffman, which

would have required the court to consider New’s claims de novo

and solely on the merits before shifting the burden to the

military to show that the needs of military life require a different

rule. In New II the court’s review was searching, but deferential,

much as in Priest, 570 F.2d at 1018, stating, for example, “the

Court of Appeals reasonably found,” 448 F.3d at 409, and “we

can find no fundamental defect in the Court of Appeals’

consideration of the issue,” id. at 410, and “the military courts’

9

use of the political question doctrine deserves deference,” id.

By contrast, the Kauffman view of “full and fair consideration,”

which asks whether the military court’s decision conforms to

Supreme Court standards, does not appear to contemplate such

deference. Although in New II the court did not describe the

exact degree of deference accorded to the military courts, its

analysis suggests there are two steps in applying the “full and

fair consideration” standard: (1) a review of the military court’s

thoroughness in examining the relevant claims, at least where

thoroughness is contested; and (2) a close look at the merits of

the claim, albeit with some degree of deference and certainly

more than under Kauffman’s de novo standard.

The contrast between Kauffman and New II is sharp because

New II does not refer to Kauffman, which represented this

court’s most extensive previous interpretation of the Burns “full

and fair consideration” standard that New II purports to apply

(albeit as a stand-in for the Councilman “void” standard).

However, Sanford’s appeal does not present the occasion in

which the inconsistencies are outcome-determinative, and we

reserve for another day the question whether, on collateral

review in non-custodial cases, the court need ever reach Burns’

“full and fair consideration” inquiry: that is, resolving the extent

to which the Burns and Councilman standards may differ and

the content of those standards. Sanford presents two challenges

to his conviction: he contends, first, that the military courts did

not give his due process claim thorough-enough consideration

to satisfy the “full and fair consideration” standard, and second,

that his four-member court-martial violated the Due Process

Clause of the Fifth Amendment under Ballew. Although in a

non-custodial case Councilman frames the inquiry, we apply

New II’s approach, considering Sanford’s claims on the merits

— the least deferential test possible under either Burns or

Councilman — for it remains true that if they are unpersuasive

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on the merits, Sanford’s claims would fail a fortiori under the

more deferential “void” inquiry.

III.

For a Fifth Amendment due process claim in the court-

martial context, the Supreme Court has instructed that in light of

the fact that “[j]udicial deference . . . is at its apogee when

reviewing congressional decisionmaking in this area,” Weiss,

510 U.S. at 177 (internal quotations omitted), “the appropriate

standard to apply . . . is found in Middendorf,” id., where the

Court inquired “whether the factors militating in favor of [the

proposed rule] are so extraordinarily weighty as to overcome the

balance struck by Congress,” id. at 177–78 (quoting

Middendorf, 425 U.S. at 44). The question here, therefore, is

whether Sanford has shown that the factors militating in favor

of a six-member court-martial are so extraordinarily weighty as

to overcome the balance struck by Congress when it provided

that special courts-martial could proceed with as few as three

members.

A.

The Marine Corps Court addressed Sanford’s due process

argument in a footnote to its multi-page opinion, citing United

States v. Wolff, 5 M.J. 923 (N.C.M.R. 1978). In Wolff, the Navy

Court of Military Review,1 after noting the Sixth Amendment’s

inapplicability to courts-martial, id. at 924, concluded the

Ballew factors were inapplicable through the Fifth Amendment

as well, id. at 925. The court observed that Wolff’s contentions

1

Until 1994, the Navy-Marine Corps Court of Criminal

Appeals was called the Navy Court of Military Review and the Court

of Appeals for the Armed Forces was called the Court of Military

Appeals. See National Defense Authorization Act for Fiscal Year

1995, Pub. L. No. 103–337, § 924, 108 Stat. 2663, 2831–32 (1994).

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“rel[ied] upon the Ballew rationale that the quality of justice

varies proportionately with the number of members in the

deliberating body.” Id. However, it concluded that no evidence

in the record supported this premise when applied to courts-

martial. Furthermore, because of differences between civilian

jurors and court-martial members, the court was unwilling to

adopt empirical data compiled in the civilian community. Id.

The court noted that court-martial members are not selected to

represent a cross-section of the community and are deliberately

selected, not at random, but on the basis of who is best qualified

for the position. Id.; see also United States v. Corl, 6 M.J. 914,

915–16 (N.C.M.R. 1979); United States v. Guilford, 8 M.J. 598,

601–02 (A.C.M.R. 1979).

Sanford’s strongest point in contending that the military

courts failed to give his due process claim “full and fair

consideration” is that because Congress doubled the

confinement and forfeiture powers of special courts-martial

from six to twelve months,2 after Wolff was decided but before

his case, simply citing Wolff was insufficient. However, neither

Wolff, Corl, nor Guilford relied on the panel’s punishment

power to justify their holdings. Corl like Wolff instead focused

on the empirical data before the Supreme Court in Ballew, and

on the judicially recognized fact that the civilian community is

different from the military community. See Corl, 6 M.J. at 915

(citing Parker v. Levy, 417 U.S. 733 (1974); Councilman, 420

U.S. 738); see also Guilford, 8 M.J. at 601–02. Furthermore, the

factual premises underlying the rationale in all three of those

cases has not changed. It remains true that there are differences

between civilian jurors and court-martial members and that

court-martial members are not selected at random to represent

2

National Defense Authorization Act for Fiscal Year 2000,

Pub. L. No. 106–65, § 577(a), 113 Stat. 512, 625 (1999) (amending 10

U.S.C. § 819).

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a cross-section of the community but rather selected from the

military population on the basis of who is best qualified for the

position. 10 U.S.C. § 825(d)(2). Because Sanford’s due process

claim was therefore controlled by those prior decisions, it is

unclear what benefit could have come from a longer discussion.

Taking New II at its word, 448 F.3d at 410, that summary

disposition is appropriate for a weak claim, the Marine Corps

Court’s citation to precedent addressing the relevant

considerations and UCMJ Article 29 sufficed. The Marine

Corps Court gave “full and fair consideration” to Sanford’s due

process claim in light of the fact that its resolution was

predetermined by binding precedent.

B.

In Ballew the Supreme Court held that five-person juries for

non-petty offenses violated the Sixth Amendment right to a

criminal jury trial, 435 U.S. at 239, a right that previously had

been incorporated through the Fourteenth Amendment to apply

to the States, see Duncan v. Louisiana, 391 U.S. 145 (1968).

Relying on empirical studies of juries and group dynamics more

generally, the Court concluded that there was a constitutional

deficiency with juries that were too small. The studies showed

that, in general, as group size decreased beyond a certain

threshold, so did the quality of deliberation, Ballew, 435 U.S. at

232–33. When juries in particular were smaller, the studies

raised doubts about the accuracy and consistency of the results

achieved. Id. at 234. The studies further indicated that smaller

juries resulted in fewer minority viewpoints being represented,

and that jurors holding those viewpoints were less likely to

speak up during deliberations. Id. at 236. Finally, the studies

indicated that representation of minority groups decreased with

decreasing panel size. Id. at 236–37. Given the Sixth

Amendment’s requirement of “an impartial jury of the State and

district wherein the crime shall have been committed,” the Court

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was concerned that juries with fewer than six members would

limit “the opportunity for meaningful and appropriate

representation” of a “cross-section of the community,” id. at

237.

Members of the military are entitled to the basic guarantees

of due process. Burns, 346 U.S. at 142–43. However, the Sixth

Amendment right to a criminal jury trial does not, itself, apply

to the military. Ex parte Quirin, 317 U.S. 1, 38–41 (1942).

Therefore, Sanford’s challenge to a special court-martial of less

than six members must proceed without the benefit of that right.

Thus, Sanford was obligated to demonstrate to the military

courts that, under the Fifth Amendment, “the factors militating

in favor of [at least six-member courts-martial] are so

extraordinarily weighty as to overcome the balance struck by

Congress,” Weiss, 510 U.S. at 177–78 (quoting Middendorf, 425

U.S. at 44). Instead, Sanford attempts to avoid the balancing

that Weiss requires for new due process rights by recasting

Ballew as a due process case that would apply directly to courts-

martial as a preexisting constitutional requirement. He

maintains that because courts-martial are subject to the Due

Process Clause of the Fifth Amendment, and because the Sixth

Amendment jury trial right applies to the States through the Due

Process Clause of the Fourteenth Amendment, Ballew is in fact

a “due process” case that provides the requisite Supreme Court

standard, from which the military must justify deviation under

Kauffman. See Appellant’s Br. at 18–21. For at least two

reasons, this position is flawed.

First, adoption of Sanford’s reasoning would undermine

Quirin, essentially importing a Sixth Amendment jury trial right

that the Supreme Court has held is inapplicable to the military

through the Fifth Amendment. Second, Sanford misapprehends

the doctrine of incorporation. As Ballew makes clear, the

“[Sixth] Amendment’s provision as to trial by jury is made

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applicable to the States by the Fourteenth Amendment.” 435

U.S. at 224 n.1 (emphasis added). The right to jury trial is not,

however, converted into a procedural due process right by

incorporation. Sanford’s assertion of a Fifth Amendment due

process right to a trial by at least six court-martial members

therefore seeks recognition of an as yet undiscovered

constitutional right.

Sanford’s flawed conclusion that Ballew recognized a due

process right infects the rest of his argument, which presumes

that “[t]he burden is on the government to show ‘that military

conditions require a different rule than that prevailing in the

civilian community.’” Appellant’s Br. 24 (citing Courtney v.

Williams, 1 M.J. 267, 270 (C.M.A. 1976) (in turn citing

Kauffman, 415 F.2d at 997)). If the Sixth Amendment jury trial

right applied directly to the military, then it would have been

relevant (if true) that “[t]he government never demonstrated . .

. that the empirical basis on which Ballew rests would be any

different in light of the compositional differences between court-

martial panels and civilian juries,” id. at 21. Under Kauffman

judgments can diverge from Supreme Court standards only

when military life requires a different rule. Because Ballew was

not a due process case, however, there is no prevailing Fifth

Amendment standard on this issue with which to require

military conformity, and Sanford had to do more than simply

rebut the government’s arguments about why Ballew was

inapposite; he had to offer affirmative arguments to meet the

higher standard articulated in Weiss.

Sanford does contend that court-martial members are not

functionally different from civilian jurors. Both need to evaluate

evidence and find facts, and both justice systems are premised

on the implicit assumption that there will be a fair and impartial

tribunal that will find facts accurately. One circuit has

suggested this similarity lends “some credence” to Sanford’s

15

view that the numerosity requirements should be similar.

Mendrano v. Smith, 797 F.2d 1538, 1541 (10th Cir. 1986).

Sanford points to Williams v. Florida, 399 U.S. 78, 100 (1970),

for the proposition that the “purpose of the jury trial . . . is to

prevent oppression by the Government.” Even so, Sanford’s

contention suffers from the same flaw as his contention the

burden is on the government: because Ballew was not a Fifth

Amendment case, arguing that civilian jurors and court-martial

members are functionally equivalent does not advance Sanford’s

Fifth Amendment due process claim. The Due Process Clause

does not currently contain a requirement of a trial by jury or

court-martial panel, and Sanford therefore needed to offer a

persuasive connection between the considerations underlying

Ballew and Fifth Amendment due process.

Sanford assumes that the differences between courts-martial

and civilian trials, considered holistically, are irrelevant to the

due process inquiry. See Appellant’s Br. at 20. However, Wolff

recognized that courts-martial are not empaneled to represent a

fair cross-section of the community, Wolff, 5 M.J. at 925, and

Ballew’s holding rested in part on this requirement, see Ballew,

435 U.S. at 236–37. Indeed, civilian justice and military justice

differ in ways even as fundamental as the purposes that the two

systems of justice serve. Sanford himself recognizes that one of

the purposes of military law, unlike civilian law, is “to assist in

maintaining good order and discipline in the armed forces, to

promote efficiency and effectiveness in the military

establishment, and thereby to strengthen the national security of

the United States.” Appellant’s Br. 20 n.12; Reply Br. 5–6

(quoting Manual for Courts-Martial, United States, Preamble ¶

3 (2008 ed.)). Yet Sanford never confronts those parts of the

military justice system that focus on the accuracy of fact finding,

nor on its various procedural safeguards regarding qualifications

for members of courts-martial, see, e.g., 10 U.S.C. § 825(d)(2),

the requirement of fair and impartial panel members, United

16

States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004), much less on

the provision of de novo appellate review, 10 U.S.C. § 866(c).

Under Weiss, it is insufficient for Sanford simply to posit

that members of a court-martial have the same legal duty as

civilian jurors to follow the judge’s instructions and thus to

conclude that the military justice system is not so “distinct” as

to preclude the application to the military of the numerosity

requirement identified in Ballew. Neither is it enough to point

out that the government failed to demonstrate through studies or

otherwise that the empirical basis on which Ballew rests would

be any different in light of the compositional differences

between court-martial panels and civilian juries. In light of

those differences and the functional differences between the

civilian and military justice systems more generally, the military

courts’ rejection of Sanford’s claim was not fundamentally

defective. In urging a new due process right Sanford had to

demonstrate that the empirical studies relied on in Ballew or

comparable studies of the military justice system would show a

due process violation in the context of the military justice

system.

It is true that Sanford points to history showing that courts-

martial of three members or fewer have never been able to

impose imprisonment of greater than six months, although

courts-martial of five members were granted such authority by

the Continental Congress (as are general courts-martial under

the UCMJ). History is “a factor that must be weighed” in the

due process analysis. Weiss, 510 U.S. at 179. But Sanford

acknowledges that the absence of historical precedent is not

enough for him to succeed. See Appellant’s Br. 30.

To the extent Sanford sought to rely on Ballew, it was

incumbent on him to demonstrate, at a minimum, that Ballew,

or the considerations underlying its holding, applied outside of

17

the Sixth Amendment to the Due Process Clause of the Fifth

Amendment. That is, he needed to show that the same concerns

underlying the Ballew decision also undermine “a fair trial in a

fair tribunal,” which is “a basic requirement of due process,”

Weiss, 510 U.S. at 178 (internal quotation omitted), so as to

meet his burden under Weiss. This Sanford did not do. Because

he presumed that the government had the burden to justify a

departure from the Ballew rule, the majority of his briefing

simply rebuts the arguments that the government presented in

the district court. But these arguments do not offer affirmative

reasons why courts-martial that fail to conform to Ballew

violate the Fifth Amendment. As the advocate of a rule that

does not already apply, Sanford needed to show that Fifth

Amendment due process requires a court-martial panel to have

six or more members. Instead, by presuming the burden was on

the government to justify a “departure” from Ballew, which in

turn incorrectly presumed that Ballew applied to courts-martial,

he failed to present arguments under the appropriate standard

articulated in Weiss. Accordingly, because the military courts’

analysis suffered from no fundamental defect, we affirm the

dismissal of Sanford’s complaint pursuant to Rule 12(b)(6).