Petition for Writ of Certiorari — Jonatan O. RosarioMartinez, Petitioner v. United States

Supreme Court briefJul 24, 2026

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No. ______

IN THE

Supreme Court of the United States

__________

JONATAN O. ROSARIOMARTINEZ, LEO J. NAVARRO

AGUIRRE, JESUS MARTINEZ, and ALEXANDER L.

DRISKILL,

Petitioners,

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

FREDERICK J. JOHNSON

DWIGHT H. SULLIVAN

United States Air Force

Appellate Defense Div.

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

240-612-4770

KYLE W. RODEWALD

Counsel of Record

KATHERINE E. MALCOLM

Navy-Marine Corps

Appellate Defense Div.

1254 Charles Morris St., S.E.

Building 58, Suite 100

Washington, DC 20374

(202) 685-7296

Kyle.w.rodewald.mil@us.navy.mil

Counsel for Petitioners

QUESTION PRESENTED

Every American prosecuted in state or federal

civilian court has the constitutional protection of a

unanimous verdict before being convicted of a serious

crime. One class of defendants, however, does not

receive that protection: those prosecuted before a

court-martial. Under Article 52 of the Uniform Code

of Military Justice, the federal government may

convict a service member of murder, rape, or another

serious offense—even one punishable by life

imprisonment—based on the votes of only threefourths of a panel of lay members. This petition asks

whether that practice survives this Court’s decision

in Ramos v. Louisiana.

Service members charged with ordinary criminal

offenses that have long been tried before civilian juries

may be convicted by a non-unanimous military panel,

as courts-martial no longer require a military nexus.

For many defendants charged with ordinary criminal

offenses, including the four Petitioners, the only

distinction between receiving the protections of a

unanimous verdict and conviction by a nonunanimous vote is the government’s decision to

prosecute before a court-martial rather than an

Article III court. That choice alone determines

whether an accused enjoys the constitutional

protection of a unanimous verdict.

The Question Presented is:

Does the Fifth Amendment’s Due Process Clause

permit conviction in a court-martial by the nonunanimous vote of a panel of lay members?

PARTIES TO THE PROCEEDING

This Rule 12.4 petition consolidates appeals from

four service members convicted by courts-martial.

Petitioners are Jonatan O. RosarioMartinez, Leo J.

Navarro Aguirre, Jesus Martinez, and Alexander L.

Driskill. Respondent is the United States.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

The following is a list of all proceedings related to

this case within the meaning of Rule 14.1(b)(iii):

•

United States v. RosarioMartinez, No. 25-0102,

U.S. Court of Appeals for the Armed Forces

(judgment entered June 2, 2026).

•

United States v. RosarioMartinez, No.

202300154, Navy-Marine Corps Court of

Criminal Appeals (judgment entered December

18, 2024).

•

United States v. Navarro Aguirre, No. 260100/AF, U.S. Court of Appeals for the Armed

Forces (petition denied February 25, 2026).

•

United States v. Navarro Aguirre, No. ACM

40354 (rem), Air Force Court of Criminal

Appeals (judgment entered November 25,

2025).

iii

•

United States v. Navarro Aguirre, No. 24-0146,

U.S. Court of Appeals for the Armed Forces

(judgment entered July 24, 2025).

•

United States v. Navarro Aguirre, No. ACM

40354, Air Force Court of Criminal Appeals

(judgment entered March 11, 2024).

•

United States v. Martinez, No. 26-0073/AF, U.S.

Court of Appeals for the Armed Forces (petition

denied March 25, 2026).

•

United States v. Martinez, No. ACM 39903

(reh)(f rev), Air Force Court of Criminal

Appeals (judgment entered October 31, 2025).

•

United States v. Martinez, No. ACM 39903

(reh), Air Force Court of Criminal Appeals

(judgment entered December 16, 2024).

•

United States v. Martinez, No. ACM 39903

(f rev), Air Force Court of Criminal Appeals

(judgment entered May 31, 2022).

•

United States v. Martinez, No. ACM 39903, Air

Force Court of Criminal Appeals (judgment

entered May 21, 2021).

•

United States v. Driskill, No. 26-0087/AF, U.S.

Court of Appeals for the Armed Forces (petition

denied April 16, 2026).

•

United States v. Driskill, No. ACM 39889 (rem),

Air Force Court of Criminal Appeals (judgment

entered November 14, 2025).

•

United States v. Driskill, No. 23-0066, U.S.

Court of Appeals for the Armed Forces

(judgment entered March 4, 2024).

•

United States v. Driskill, No. ACM 39889

(f rev), Air Force Court of Criminal Appeals

(judgment entered August 23, 2022).

•

United States v. Driskill, No. ACM 39889, Air

Force Court of Criminal Appeals (judgment

entered December 14, 2021).

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

PARTIES TO THE PROCEEDING ...................................... ii

CORPORATE DISCLOSURE STATEMENT.......................... ii

RELATED PROCEEDINGS ............................................... ii

TABLE OF AUTHORITIES ............................................... ix

INTRODUCTION ............................................................. 1

DECISIONS BELOW ........................................................ 1

JURISDICTION ............................................................... 2

CONSTITUTIONAL. STATUTORY, AND REGULATORY

PROVISIONS INVOLVED ................................................. 3

STATEMENT OF THE CASE ............................................. 4

REASONS FOR GRANTING THE PETITION ....................... 8

COURT-MARTIAL DEFENDANTS’ RIGHT TO

UNANIMOUS CONVICTIONS FOLLOWS FROM

THEIR RIGHT TO A “FAIR AND IMPARTIAL”

PANEL .............................................................. 11

A. As Ramos makes clear, unanimous

convictions are central to impartiality..... 12

B. Confusion over proper military verdict

voting procedures is not isolated to this

case ............................................................ 16

C. Ramos’s protection of impartiality is

equally important in courts-martial as

in civilian courts ....................................... 17

1. History does not justify the current

military justice system, which

substantially departs from

founding-era courts-martial ................ 18

2. Other procedural safeguards in the

military justice system do not make

up for the possibility of conviction

by a non-unanimous verdict................ 24

II. WHETHER CONVICTIONS BY COURT-MARTIAL

PANELS MUST BE UNANIMOUS IS A QUESTION

OF EXCEPTIONAL IMPORTANCE ........................ 27

III. THERE IS NO REASONABLE PROSPECT THAT

THIS ISSUE WILL BE FURTHER DEVELOPED

WITHIN THE FEDERAL JUDICIARY ................... 29

CONCLUSION .............................................................. 31

APPENDIX

Court of Appeals for the Armed Forces

Opinion,

United

States

RosarioMartinez, No. 25-0102 (June

2, 2026)................................................................. 1a

Navy-Marine Corps Court of Criminal

Appeals Opinion, United States v.

RosarioMartinez, No. 202300154

(Dec. 18, 2024) ................................................... 31a

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Driskill, No.

26-0087/AF (Apr. 16, 2026) ............................... 56a

Air Force Court of Criminal Appeals

Opinion, United States v. Driskill, No.

ACM 39889 (rem) (Nov. 14, 2025) .................... 57a

Court of Appeals for the Armed Forces,

United States v. Driskill, No. 23-0066

(Mar. 4, 2024)..................................................... 89a

vii

Air Force Court of Criminal Appeals

Opinion, United States v. Driskill, No.

ACM 39889 (f rev) (Aug. 23, 2022) ................. 111a

Air Force Court of Criminal Appeals

Opinion, United States v. Driskill, No.

ACM 39889 (Dec. 14, 2021) ............................. 162a

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Martinez,

No. 26-0073/AF (Mar. 25, 2026) ...................... 174a

Air Force Court of Criminal Appeals

Opinion, United States v. Martinez,

No. ACM 39903 (reh) (f rev) (Oct. 31,

2025)................................................................. 175a

Air Force Court of Criminal Appeals

Remand Order, United States v.

Martinez, No. ACM 39903 (reh) (Dec.

16, 2024) ........................................................... 212a

Air Force Court of Criminal Appeals

Opinion, United States v. Martinez,

No. ACM 39903 (f rev) (May 31, 2022)

.......................................................................... 217a

Air Force Court of Criminal Appeals

Opinion, United States v. Martinez,

No. ACM 39903 (May 21, 2021) ...................... 330a

viii

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Navarro

Aguirre, No. 26-0100/AF (Feb. 25,

2026)................................................................. 341a

Air Force Court of Criminal Appeals

Opinion, United States v. Navarro

Aguirre, No. ACM 40354 (rem) (Nov.

25, 2025) ........................................................... 342a

Court of Appeals for the Armed Forces,

United States v. Navarro Aguirre, No.

24-0146 (July 24, 2025) ................................... 351a

Air Force Court of Criminal Appeals

Opinion, United States v. Navarro

Aguirre, No. ACM 40354 (Mar. 11,

2024)................................................................. 380a

Constitutional,

Statutory,

and

Regulatory Provisions Involved ...................... 412a

TABLE OF AUTHORITIES

Cases

Ballew v. Georgia,

435 U.S. 223 (1978) ............................................... 14

Burch v. Louisiana,

441 U.S. 130 (1979) ............................................... 14

Burns v. Wilson,

346 U.S. 137 (1953) ............................................... 29

Edwards v. Villalpando,

No. 24-CV-1502, 2025 LX161187,

2025 WL 874785 (S.D. Cal. Mar. 19,

2025) ...................................................................... 29

Emas v. Roman,

No. 23-cv-2194, 2024 U.S. Dist.

LEXIS 193806, 2024 WL 4573755

(S.D. Cal. Oct. 24, 2024) ........................................ 29

Evitts v. Lucey,

469 U.S. 387 (1985) ............................................... 13

Grafton v. United States,

206 U.S. 222 (1907) ............................................... 22

Livingston v. Curtis,

No. 24-3128, 2025 LX 434304, 2025

WL 2814422 (10th Cir. Oct. 3, 2025) .................... 29

Middendorf v. Henry,

425 U.S. 25 (1976) ................................................... 8

Ramos v. Louisiana,

590 U.S. 83 (2020) ....... i, 8, 10-15, 17, 20, 22, 26, 27

Solorio v. United States,

483 U.S. 435 (1987) ......................................... 18, 20

United States v. Acevedo,

50 M.J. 169 (C.A.A.F. 1999) .................................. 26

United States v. Ali,

71 M.J. 256 (C.A.A.F. 2012) .................................. 27

United States v. Anderson,

83 M.J. 291 (C.A.A.F. 2023), cert.

denied, 144 S. Ct. 1003

(2024) ........................................10, 12, 17, 24, 25, 29

United States v. Berry,

34 M.J. 83 (C.M.A. 1992) ...................................... 11

United States v. Crawford,

15 C.M.A. 31 (1964) ............................................... 11

United States v. Deain,

5 C.M.A. 44 (1954) ................................................. 11

United States v. Kelley, No. 1495, 2025

CCA LEXIS 181 (C.G. Ct. Crim. App.

Apr. 25, 2025) ................................................... 15-17

United States v. Kelley, No. 25-0227/CG,

2025 CAAF LEXIS 9447 (C.A.A.F.

Nov. 17, 2026) ........................................................ 16

Kian v. Florida, No. 25-6623, 2026 U.S.

LEXIS 2507 (June 15, 2026) ................. 1, 14, 15, 31

United States v. Jones,

37 M.J. 321 (C.M.A. 1993) .................................... 11

United States v. Lawson,

16 M.J. 38 (C.M.A. 1983) ...................................... 12

United States v. Ohrt,

28 M.J. 301 (C.M.A. 1989) .................................... 26

United States v. Richardson,

61 M.J. 113 (C.A.A.F. 2005) .................................... 9

United States v. Wiesen,

56 M.J. 172 (C.A.A.F. 2001) .................................... 9

Weiss v. United States,

510 U.S. 163 (1994) ..................................... 8, 13, 21

Wilkinson v. Austin,

545 U.S. 209 (2005) ............................................... 13

Statutes and Constitutional Provisions

U.S. CONST.

amend. V ............................... i, 3, 5, 8, 11, 12, 14, 26

amend. VI ................................................... i, 3, 8, 14

amend. XIV ............................................................ 14

An Act for establishing Rules and

Articles for the Government of the

Armies of the United States, Art. 69,

ch. 20, 2 Stat. 359, 368 (1806)................................. 9

An Act for the Better Government of the

Navy of the United States, Art. 43 ch.

33, 2 Stat. 45, 50 (1800) .......................................... 9

An Act for the Government of the Navy

of the United States, Art. 48, ch. 24, 1

Stat. 709, 713 (1799) ............................................... 9

Articles of War (1776),

§ XIV, Art. 3, 5 J. CONT’L CONG. 788,

801 (1776) (1906 ed.) ............................................... 9

§ XVII, Art. 3, 5 J. CONT’L CONG. 788,

807 (1776) (1906 ed.) ............................................. 18

James M. Inhofe National Defense

Authorization Act for Fiscal Year

2023, Pub. L. No. 117-263, 136 Stat.

2395 (2022) .............................................................22

LA. CODE CRIM. PROC. ANN. art. 782(A)

(2013) ..................................................................... 23

xii

Military Sex Offender Reporting Act of

2015, Pub. L. No. 114-22, 129 Stat.

227 ......................................................................... 20

National Defense Authorization Act for

Fiscal Year 1995, Pub. L. No. 103337, 108 Stat. 2663 (1994) .................................... 11

National Defense Authorization Act for

Fiscal Year 2014, Pub. L. No. 113-66,

127 Stat. 672 (2013) .............................................. 22

OR. REV. STAT. § 136.450 (2013) ............................... 23

OR. REV. STAT. § 136.450 (2025) ............................... 23

Rules and Regulations of the

Continental Army, art. XXXV, (1775),

2 J. CONT’L CONG. 111, 117 (1775)

(1906 ed.) ................................................................. 9

10 U.S.C. §§

802 ......................................................... 7, 19, 27, 28

816 ............................................................... 3, 27, 28

825 ......................................................................... 22

851 ..................................................................... 3, 24

852 ........................................................................... 3

866 ......................................................................... 25

878-934................................................................... 19

880 ........................................................................... 6

885 ......................................................................... 19

890 ......................................................................... 19

892 ........................................................................... 5

894 ......................................................................... 19

912a.......................................................................... 5

918 ......................................................................... 19

919 ......................................................................... 19

920 ............................................................. 4, 6, 7, 19

920b.......................................................................... 7

xiii

925 ......................................................................... 19

928 ........................................................................... 5

18 U.S.C. §

922 ......................................................................... 21

28 U.S.C. §

1259.......................................................................... 3

34 U.S.C. §

20911...................................................................... 20

20915...................................................................... 20

William M. (Mac) Thornberry National

Defense Authorization Act for Fiscal

Year 2021, Pub. L. No. 116-283, 134

Stat. 3388 (2021) ................................................... 25

Executive Orders, Regulations, and Rules

Exec. Order No. 14130 of Dec. 20, 2024,

89 Fed. Reg. 105343 (Dec. 27, 2024) ....................... 22

MANUAL FOR COURTS-MARTIAL, UNITED

STATES ¶ 74d(3) (1951 ed.) .................................... 19

MANUAL FOR COURTS-MARTIAL, UNITED

STATES (2024 ed.)

MIL. R. EVID. 509 .................................................. 7-8

Mil. R. Evid. 606 ....................................................... 5

Pt. IV, ¶¶ 92-108 .................................................... 19

Rule for Courts-Martial 307 ..................................... 4

Rule for Courts-Martial 501 .............................3, 14, 20

Rule for Courts-Martial 503 ................................... 22

Rule for Courts-Martial 921 ..................................... 4

Rule for Courts-Martial 922 ..................................... 7

xiv

Other Authorities

Andrew S. Effron, Military Justice: The

Continuing Importance of Historical

Perspective, ARMY LAW, June 2000, 1 ................... 18

Committee on the Uniform Code of

Military Justice, Good Order and

Discipline in the Army, Report to

Honorable Wilber M. Brucker,

Secretary of the Army (Jan. 18, 1960),

available at

https://tile.loc.gov/storageservices/service/ll/llmlp/Powell_repo

rt/Powell_report.pdf. ....................................... 10-11

Defense Manpower Data Center,

Active Duty Military Strength by

Service for January 31, 2026,

available at

https://dwp.dmdc.osd.mil/dwp/api/dow

nloadZ?fileId=142238&groupName=

milTop .................................................................... 28

Defense Manpower Data Center,

Selected Reserves by Rank/Grade,

(Jan. 31, 2026), available at

https://dwp.dmdc.osd.mil/dwp/api/dow

nloadZ?fileId=142235&groupName=r

esRankGrade ......................................................... 28

Dep’t of Defense,

Combined Service FY 24 146a

Reports, available at

https://jsc.defense.gov/Portals/99/Com

bined%20Service%20FY24%20146a%

20Reports_1.pdf ..................................................... 27

Dep’t of Defense Office of the Actuary,

Statistical Report on the Military

Retirement System, Fiscal Year Ended

September 30, 2022 (October 2023),

available at https://media.defense

.gov/2023/Oct/06/2003315292/-1/1/0/MRS%20STATRPT%202022%20V

999.PDF ................................................................. 28

Frederick Bernays Wiener, American

Military Law in the Light of the First

Mutiny Act’s Tricentennial, 126 MIL.

L. REV. 1 (1989) ..................................................... 21

Frederick Bernays Wiener, CourtsMartial and the Bill of Rights: The

Original Practice I, 72 HARV. L. REV.

1 (1958) .................................................................. 18

Jill S. Levenson, Alissa R. Ackerman,

Kelly M. Socia & Andrew J. Harris,

Where for Art Thou? Transient Sex

Offenders and Residence Restrictions,

26 CRIM. JUST. POL’Y REV. 319 (2013)................... 20

Judicial Proceedings Panel Subcomm.,

Report on Barriers to the Fair

Administration of Military Justice in

Sexual Assault Cases 21 (May 12,

2017), available at

https://perma.cc/3HXZ-72K7 .................................23

Major David Thompson, Supporting

Victims of Sexual Misconduct: Three

Judge Advocate General’s CorpsDriven Solutions to Three Problems

Revealed by the Fort Hood

Independent Review Committee

Report, 101 TEX. L. REV. 653 (2023) ..................... 23

xvi

Major Emma K. Fowler, A “Civil Death”

of the Military Accused: The Vast

Impacts of Collateral Consequences of

Court-Martial Convictions and the

Need to Reform Military Sentencing

Practice, 232 Mil. L. Rev. 1 (2025) ........................ 20

National Institute of Justice, Sex

Offender Residency Restrictions: How

Mapping Can Inform Policy (July

2008), available at https://www.

ojp.gov/pdffiles1/nij/222759.pdf ............................ 21

Robert D. Duke & Howard S. Vogel, The

Constitution and the Standing Army:

Another Problem of Court-Martial

Jurisdiction, 13 VAND. L. REV. 435

(1960) ..................................................................... 18

Introduction

Under current law, service members tried by

court-martial are deprived of a significant

constitutionally guaranteed protection available in all

federal and state civilian trials for serious criminal

offenses: the right to be convicted only upon a

unanimous vote of lay factfinders. The Court should

grant certiorari to determine whether service

members enjoy the constitutional right this Court

recognized in Ramos v. Louisiana, 590 U.S. 83 (2020),

or whether, by volunteering to protect and defend the

United States Constitution, they forfeited its

protection. Alternatively, the Court should hold this

petition pending its resolution of Kian v. Florida, 256623, and then grant, vacate, and remand petitioners’

cases for further consideration in light of that case’s

outcome. Kian asks whether a conviction by a sixmember jury is constitutionally permissible. Here,

each of petitioners’ convictions could have been

rendered by a vote of just six of the eight court-martial

members. Hence, Kian will likely provide guidance

concerning the due process implications of the

military justice system’s panel size and voting

requirements.

DECISIONS BELOW

The Navy-Marine Corps Court’s decision in

Petitioner RosarioMartinez’s case is available at 85

M.J. 535 (N-M. Ct. Crim. App. 2024) and is reprinted

in the Appendix at Pet. App. 31a. The CAAF’s opinion

is not yet reported. It is available at 2026 CAAF

LEXIS 485 and is reprinted in the Appendix at Pet.

App. 1a.

The Air Force Court’s decisions in Petitioner

Navarro Aguirre’s case are not reported. They are

available at 2024 CCA LEXIS 103 and 2025 CCA

LEXIS 540, and are reprinted in the Appendix at Pet.

App. 342a and 380a. The CAAF’s opinion is published

at 86 M.J. 43 and is reprinted in the Appendix at 351a.

The CAAF’s order denying review following an

additional petition is not yet reported. It is available

at 2026 CAAF LEXIS 206 and is reprinted in the

Appendix at Pet. App. 341a.

The Air Force Court’s decisions in Petitioner

Martinez’s case are not reported. They are available

at 2025 CCA LEXIS 494, 2024 CCA LEXIS 551, 2022

CCA LEXIS 324, and 2021 CCA LEXIS 250, and are

reprinted in the Appendix at Pet. App. 175a, 212a,

217a, and 330a. The CAAF’s order denying review is

not yet reported. It is available at 2026 CAAF LEXIS

285 and is reprinted in the Appendix at Pet. App.

174a.

The Air Force Court’s decisions in Petitioner

Driskill’s case are not reported. They are available at

2025 CCA LEXIS 509, 2022 CCA LEXIS 496, and

2021 CCA LEXIS 672 and are reprinted in the

Appendix at Pet. App. 57a, 111a, and 162a. The

CAAF’s opinion is published at 84 M.J. 248 and is

reprinted in the Appendix at 89a. The CAAF’s order

denying review is not yet reported. It is available at

2026 CAAF LEXIS 364 and is reprinted in the

Appendix at Pet. App. 56a.

JURISDICTION

The CAAF issued its opinion affirming Petitioner

RosarioMartinez’s case on June 2, 2026. Pet. App. 1a.

The CAAF issued its order denying review of

Petitioner Navarro Aguirre’s case on February 25,

2026. Pet. App. 341a. On May 21, 2026, the Chief

Justice granted an extension of his time to file a

certiorari petition until July 25, 2026. The CAAF

issued its order denying review of Petitioner

Martinez’s case on March 25, 2026. Pet. App. 174a. On

June 17, 2026, the Chief Justice granted an extension

of his time to file a certiorari petition until August 22,

2026. The CAAF issued its order denying review of

Petitioner Driskill’s case on April 16, 2026. Pet. App.

56a. On July 9, 2026, the Chief Justice granted an

extension of his time to file a certiorari petition until

September 14, 2026. This Court’s jurisdiction rests on

28 U.S.C. § 1259(3).

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED

The text of the following constitutional, statutory,

and regulatory provisions is set forth in the Appendix,

starting at 412a.

1. Due Process Clause of the Fifth Amendment, U.S.

CONST. amend. V.

2. Jury Trial Clause of the Sixth Amendment, U.S.

CONST. amend. VI.

3. Article 16, Uniform Code of Military Justice, 10

U.S.C. § 816.

4. Article 51(a), Uniform Code of Military Justice, 10

U.S.C. § 851(a).

5. Article 52(a), Uniform Code of Military Justice, 10

U.S.C. § 852(a).

6. Rule for Courts-Martial 501(a), MANUAL FOR COURTSMARTIAL, UNITED STATES (2024 ed.).

7. Rule for Courts-Martial 921(c), MANUAL

COURTS-MARTIAL, UNITED STATES (2024 ed.).

FOR

Statement of the Case

Petitioner Jonatan RosarioMartinez was a

corporal (E-4) in the United States Marine Corps at

the time of his conviction. At a general court-martial,

a panel of lay members convicted him, contrary to his

pleas, of one specification1 and acquitted him of

another specification of sexual assault in violation of

Article 120, UCMJ, 10 U.S.C. § 920. Pet. App. 2a-3a.

The members sentenced Petitioner RosarioMartinez

to a dishonorable discharge and eighteen months of

confinement. Pet. App. 6a.

After the trial, the panel president swore in an

affidavit that the members misunderstood the

number of votes required for an acquittal in a courtmartial—a vote with only 5 votes for conviction would

be an acquittal. Pet. App. 22a-24a; see Rule for CourtsMartial (R.C.M.) 921(c)(3), MANUAL FOR COURTSMARTIAL, UNITED STATES (2024 ed.) [hereinafter MCM]

(“If fewer than three-fourths of the members present

vote for a finding of guilty, a finding of not guilty has

resulted as to the charge or specification on which the

vote was taken.”). It was the members’ understanding

that “in order to reach a verdict [they] needed either 6

votes in favor of guilty or 6 votes in favor of not guilty

for

both

specifications.”

Because

this

misunderstanding, the court-martial members called

1 In military practice, each charge is supported by one or more

specifications. “A specification is a plain, concise, and definite

statement of the essential facts constituting the offense charged.”

R.C.M. 307(c)(3). It is the equivalent of a count in civilian

criminal practice.

for a vote “at least 5-6 times” using secret written

ballots. Pet. App. 23a.2

The panel president made clear that the first vote

concluded with “3 or more members” voting “not guilty

for both specifications.” Id. The panel president swore

that the members “incorrectly did not complete the

findings worksheet after each finding that would have

resulted in a not guilty verdict because [they] did not

believe [they] had reached the required number of

votes for a finding of not guilty.” Id. Further, the panel

president wrote that “[h]ad [they] known the proper

procedure [they] would have filled out the findings

worksheet correctly to return a finding of not guilty.”

Id. Because of this mistake, the panel president

sought to correct the findings worksheet “to accurately

reflect the correct findings of the panel.” Pet. App. 24a.

On appeal, the Navy-Marine Corps Court affirmed

the findings and the sentence. Pet. App. 31a.

Petitioner RosarioMartinez sought the CAAF’s review

of his case, and the CAAF affirmed as well. Pet. App.

1a.

Petitioner Leo J. Navarro Aguirre was an Air Force

airman first class (E-3) at the time of his conviction.

At a general court-martial, a panel of officer and

enlisted members convicted him, contrary to his pleas,

of one specification of wrongful use of Ambien, one

specification of assault consummated by a battery,

and one specification of aggravated assault, in

violation of 10 U.S.C. §§ 912a and 928. Pet. App. 344a.

2 The Court of Appeals for the Armed Forces ruled that pursuant

to Military Rule of Evidence 606(b)(1), the court-martial

president’s revelations concerning the multiple votes could not

be considered. Pet. App. 14a-21a.

He also pled guilty to, and the military judge found

him guilty of, one specification of failure to obey a

lawful order, one specification of wrongful use of

oxycodone, and one specification of reckless driving, in

violation of 10 U.S.C. §§ 892, 912a, and 913. Pet App.

343a.

The military judge sentenced Petitioner

Navarro Aguirre to a bad-conduct discharge,

confinement for two years and two months, forfeiture

of all pay and allowances, reduction to the grade of

E-1, and a reprimand. Pet. App. 344a. The Air Force

Court affirmed the findings and sentence. Pet. App.

411a. The Air Force Court expressly rejected

Petitioner Navarro Aguire’s argument that he could

not be convicted by a non-unanimous vote of the

members. Pet. App. 383a The CAAF reviewed

Petitioner Navarro Aguirre’s case and set aside the

finding of guilty for wrongful use of Ambien as legally

insufficient. Pet. App. 353a. On remand, the Air Force

Court set aside the reprimand and affirmed the

remaining sentence. Pet. App. 349a-50a. Petitioner

Navarro Aguirre sought further from the CAAF, and

the CAAF denied review. Pet. App. 341a.

Petitioner Jesus Martinez was an Air Force

airman first class (E-3) at the time of his trial. At a

general court-martial, a panel of officer and enlisted

members convicted him, contrary to his pleas, of one

specification of attempted sexual assault and one

specification of sexual assault in violation of Articles

80 and 120, UCMJ, 10 U.S.C. §§ 880, 920. Pet. App.

176a. The military judge sentenced Petitioner

Martinez to a dishonorable discharge, confinement for

six years, forfeiture of all pay and allowances, and

reduction to the grade of E-1. Id. The Air Force Court

set aside the findings of guilty for attempted sexual

assault due to prejudicial error in the findings

instructions while rejecting Petitioner Martinez’s

argument that he could not be convicted by a nonunanimous vote of the members. Pet. App. 329a, 221a.

At a rehearing, a military judge sentenced Petitioner

Martinez to a dishonorable discharge, confinement for

forty-six months, forfeiture of all pay and allowances,

and reduction to the grade of E-1, awarding him credit

for time served plus additional credit for illegal

pretrial confinement. Pet. App. 177a-78a. The Air

Force Court affirmed the findings and partially

disapproved the adjudged reduction in grade due to

post-trial processing delays. Pet. App. 211a. Petitioner

Martinez sought the CAAF’s review of his case, and

the CAAF denied review. Pet. App. 174a.

Petitioner Alexander L. Driskill was an Air Force

airman (E-2) at the time of his conviction. He entered

mixed pleas at a general court-martial, pleading

guilty to one specification of possession of obscene

cartoons in violation of Article 134, UCMJ, 10 U.S.C.

§ 934. Pet. App. 163a. A panel of officer members then

convicted him, contrary to his pleas, of one

specification of rape of a child and one specification of

sexual abuse of a child in violation of Article 120b,

UCMJ, 10 U.S.C. § 920b. Id. Petitioner Driskill was

sentenced to a dishonorable discharge, confinement

for forty years and nine months, forfeiture of all pay

and allowances, and reduction to the grade of E-1. Pet.

App. 163a-64a The Air Force Court affirmed the

findings and reduced the confinement portion of the

sentence to thirty years while rejecting Petitioner

Driskill’s argument that he could not be convicted by

a non-unanimous vote of the members. Pet. App. 115a,

159a. The CAAF then granted review and set aside

the conviction for possession of obscene cartoons

because it violated the prohibition against double

jeopardy. Pet. App. 90a. On remand, the Air Force

Court again affirmed the contested findings and

reduced the confinement portion of the sentence to

thirty years. Pet. App. 78a-79a. Petitioner Driskill

sought the CAAF’s further review of his case, and the

CAAF denied review. Pet. App. 56a.

In all four cases, the court of first instance

exercised federal jurisdiction pursuant to Article

2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1). Because of the

military justice system’s prohibition against polling

the court-martial members, R.C.M. 922(e), and the

“deliberations of courts and juries” privilege, MIL. R.

EVID. 509, MCM, it is unknown and unknowable

whether Petitioners were convicted of any offenses by

unanimous or non-unanimous votes.

REASONS FOR GRANTING THE PETITION

In Ramos, this Court held that unanimity is an

essential feature of the Sixth Amendment right to

trial by jury. This Court should grant review to

determine whether the Fifth Amendment’s Due

Process Clause similarly requires that a finding of

guilty by a lay panel of court-martial members be by

a unanimous vote.

This Court has long recognized that the Fifth

Amendment’s Due Process Clause applies to courtsmartial, although its application may differ from that

in civilian criminal proceedings. Weiss v. United

States, 510 U.S. 163, 177-78 (1994); Middendorf v.

Henry, 425 U.S. 25, 43-44 (1976). Petitioners do not

contend that the Sixth Amendment’s Jury Trial

Clause applies directly to courts-martial. Rather, they

contend that the Fifth Amendment guarantees those

procedural protections that are fundamental to the

fairness

and

reliability

criminal

adjudication. Ramos held that unanimity is an

essential attribute of criminal adjudication by lay

factfinders. Congress has repeatedly modernized

military justice by adopting civilian procedural

protections that remain subject to the Fifth

Amendment’s constraints.

Ramos makes clear that the right to a unanimous

conviction is an essential assurance of a jury panel’s

impartiality—a concern that is equally important in

courts-martial as in civilian courts.

From the Nation’s founding, Congress recognized

that court-martial panels must serve as fair and

impartial bodies charged with determining an

accused’s guilt. The earliest military codes required

court-martial members to deliberate and decide cases

“with calmness, decency, and impartiality.” Art.

XXXV, Rules and Regulations of the Continental

Army, 2 J. CONT’L CONG. 111, 117 (1775) (1906 ed.).

Members likewise swore to “administer justice . . .

without partiality, favor, or affection.” Articles of War,

§ XIV, Art. 3, 5 J. CONT’L CONG. 788, 801 (1776) (1906

ed.) (italics omitted); see also An Act for the

Government of the Navy of the United States, Art. 48,

ch. 24, 1 Stat. 709, 713 (1799); An Act for the Better

Government of the Navy of the United States, Art. 36,

ch. 33, 2 Stat. 45, 50 (1800); An Act for Establishing

Rules and Articles for the Government of the Armies

of the United States, Art. 69, ch. 20, 2 Stat. 359, 368

(1806). Congress retained those guarantees when it

enacted the UCMJ, reflecting its intent to modernize

military justice while preserving the fairness and

integrity of court-martial proceedings.

Consistent with that history, this Court has

recognized that the Fifth Amendment’s Due Process

Clause applies to courts-martial, even if its

application differs from the civilian context. And the

CAAF has repeatedly held that “[a]s a matter of due

process, an accused has a constitutional right, as well

as a regulatory right, to a fair and impartial

panel.” United States v. Wiesen, 56 M.J. 172, 174

(C.A.A.F. 2001); accord United States v. Richardson,

61 M.J. 113, 118 (C.A.A.F. 2005). When Congress

elects to entrust the determination of guilt to a panel

of lay members, the Fifth Amendment requires that

panel to possess those fundamental attributes of

reliability and fairness that the Constitution demands

of lay criminal factfinding. Ramos confirms that

unanimity is one of those indispensable attributes.

The decisions below squarely present an important

and recurring constitutional question left unresolved

by Ramos: whether the Fifth Amendment permits the

federal government to obtain criminal convictions

before panels of lay members through non-unanimous

verdicts. In United States v. Anderson, the CAAF

answered that question in the affirmative without

meaningfully addressing Ramos’s conclusion that

unanimity is an essential feature of criminal

adjudication by lay factfinders. United States v.

Anderson, 83 M.J. 291 (C.A.A.F. 2023), cert. denied,

144 S. Ct. 1003 (2024).

That question is exceptionally important to the

administration of military justice and warrants this

Court’s review.

COURT-MARTIAL DEFENDANTS’ RIGHT TO

UNANIMOUS CONVICTIONS FOLLOWS FROM

THEIR RIGHT TO A “FAIR AND IMPARTIAL”

PANEL

A venerable 1960 report by a committee chaired by

Lieutenant General Herbert B. Powell, United States

Army, emphasized the imperative that the American

military justice system both be fair and appear fair:

“In the development of discipline, correction of

individuals is indispensable; in correction, fairness or

justice is indispensable. Thus, it is a mistake to talk

of balancing discipline and justice—the two are

inseparable. An unfair or unjust correction never

promotes that development of discipline.” Committee

on the Uniform Code of Military Justice, Good Order

and Discipline in the Army, Report to Honorable

Wilber M. Brucker, Secretary of the Army 11 (Jan. 18,

1960) (commonly known as the Powell Report),

available

https://tile.loc.gov/storage-services/

service/ll/llmlp/Powell_report/Powell_report.pdf. The

imperative that a military justice system be perceived

as both fair and effective is even more crucial in the

current all-volunteer armed forces context, in which a

perception of either railroading court-martial

defendants or failing to deliver justice to victims of

offenses such as intra-military sexual assault risks

harming recruiting. Yet the military justice system’s

current court-martial member voting requirements

degrade both actual fairness and the perception of

fairness.

As Ramos makes clear, unanimous

convictions

are

central

impartiality.

“Courts-martial must not only be fair but must

appear fair to effectively further the cause of good

order and discipline in the armed forces.” United

States v. Jones, 37 M.J. 321, 324 (C.M.A. 1993)

(quoting United States v. Berry, 34 M.J. 83, 88 (C.M.A.

1992)).3 An impartial tribunal is a prerequisite for

such fairness and, consequently, for due process.

United States v. Crawford, 15 C.M.A. 31, 34 (1964);

United States v. Deain, 5 C.M.A. 44, 49 (1954)

(“Fairness and impartiality on the part of the triers of

fact constitute a cornerstone of American justice.”).

Unanimous convictions are essential to ensure

impartiality, see Ramos, 590 U.S. at 90; accordingly, a

court-martial defendant who elects to be tried by a

members panel has a Fifth Amendment due process

right to be convicted only upon a unanimous vote.

The CAAF rejected this argument in Anderson not

by repudiating its longstanding case law regarding

the

imperative

for

court-martial

members’

impartiality, but by reading Ramos to not implicate it.

According to the CAAF, Ramos did not really link

unanimous convictions to impartiality. See, e.g.,

Anderson, 83 M.J. at 298 (disagreeing that Ramos

held that unanimity is “an essential element of an

impartial factfinder”).

These cases are CAAF precedents. The National Defense

Authorization Act (NDAA) for Fiscal Year (FY) 1995 renamed the

United States Court of Military Appeals (C.M.A.) the United

States Court of Appeals for the Armed Forces (C.A.A.F.). Pub. L.

No. 103-337, § 924, 108 Stat. 2663, 2831 (1994).

The CAAF’s reading of Ramos strips it of analytical

force. “The text and structure of the Constitution

clearly suggest that the term ‘trial by an impartial

jury’ carried with it some meaning about the content

and requirements of a jury trial. One of these

requirements was unanimity.” Ramos, 590 U.S. at 8990 (paragraph break omitted). Because unanimity is,

as Ramos held, central to that meaning, the CAAF’s

effort to untether the two concepts fails.

Further the CAAF’s concern that unanimous

verdicts invite improper influence due to rank

disparity is overblown. Anderson, 83 M.J. at 298-99,

302. As discussed below, non-unanimous verdicts do

not protect service members from such influence. Nor

does this concern warrant depriving service members

of their constitutional right to due process.

Current military appellate case law already risks

rank influencing cases’ outcomes by permitting panels

to hold straw votes before taking the one vote by secret

written ballot that decides the verdict. See, e.g.,

United States v. Lawson, 16 M.J. 38 (C.M.A. 1983). Or,

as in Petitioner RosarioMartinez’s case, the courtmartial’s president can call for multiple votes even if

the first vote should have resulted in an acquittal and

the military justice system’s appellate courts consider

themselves powerless to redress the error. Thus, rank

can already influence court-martial members’

deliberations, but without the unanimity requirement

to help constrain it.

Nor is deference to Congress sufficient to depart

from the civilian norm. For courts-martial in which

members are the factfinder, the procedures that

govern their decisions must comport with

fundamental notions of procedural fairness—because

criminal trials necessarily implicate the defendant’s

liberty. See, e.g., Wilkinson v. Austin, 545 U.S. 209,

221-24 (2005). Congress could not, for example, rely

on a court-martial defendant’s lack of a constitutional

right to a trial by jury to provide that a panel will

reach its verdict by flipping a coin. Cf. Evitts v. Lucey,

469 U.S. 387, 393 (1985).

As this Court reiterated in Weiss, when it comes to

an accused’s procedural rights in a court-martial, the

relevant question under the Due Process Clause is

“‘whether the factors militating in favor of [the right]

are so extraordinarily weighty as to overcome the

balance struck by Congress.’” 510 U.S. at 177-78

(quoting Henry, 425 U.S. at 44). In Weiss, the

petitioners challenged whether they had a right to

have their courts-martial presided over by military

judges with fixed terms in office. In holding that the

Due Process Clause does not require fixed terms, this

Court expressly tied its analysis to the lack of a

connection between fixed terms and impartiality,

rejecting petitioners’ claim that “a military judge who

does not have a fixed term of office lacks the

independence necessary to ensure impartiality.” Id. at

178.

Ramos, in contrast, establishes the precise

connection that the Weiss petitioners could not.

Because unanimous verdicts are an essential aspect of

an impartial jury, Ramos, 590 U.S. at 90-91,

unanimity is equally necessary to achieve an

impartial court-martial panel. And ensuring

impartiality in the imposition of either civilian or

military convictions is an extraordinarily weighty

concern.

If anything, unanimous convictions are even more

important in criminal justice systems that utilize lay

panels with fewer than twelve members in non-capital

cases. See Ballew v. Georgia, 435 U.S. 223, 234 (1978)

(plurality opinion) (“Statistical studies suggest that

the risk of convicting an innocent person . . . rises as

the size of the jury diminishes.”); see also Burch v.

Louisiana, 441 U.S. 130 (1979) (six-member juries

must be unanimous). Such is the case here, where

Petitioners’ panels had eight members. R.C.M.

501(a)(1)(A)(i).

This Court’s recent grant of certiorari in Kian v.

Florida further

demonstrates

that Ramos’s

significance extends beyond the narrow question of

state non-unanimous verdicts. In Kian, the Court

agreed to decide whether the Sixth Amendment (as

incorporated by the Fourteenth Amendment) permits

conviction of a defendant by a six-person jury, thereby

reconsidering another procedural feature long

thought settled under pre-Ramos precedent—jury

size. If Ramos calls into question whether six jurors

satisfy the constitutional guarantee of trial “by an

impartial jury,” it also raises the analogous question

presented here: whether the Constitution permits the

federal government to obtain criminal convictions

before an eight-member panel where only six votes are

necessary to convict. The decisions below effectively

foreclosed that inquiry by treating Ramos as

irrelevant to military justice. This Court’s grant

in Kian confirms that the constitutional implications

of Ramos remain unresolved.

There is no reason unanimity cannot be required

for court-martial verdicts. Like their American

counterparts, Canadian courts-martial descended

from the British articles of war. Since 2008, Canadian

general court-martial panels’ verdicts must be

unanimous. See National Defence Act, R.S.C., 1985, c.

N-5, § 192(2). That unanimity requirement is

consistent with the voting percentage required for a

conviction in Canadian civilian criminal jury trials.

See R. v. Pan, [2001] 2 S.C.R. 344 (Can.). The

unanimity requirement has not prevented Canadian

courts-martial from operating effectively over the past

eighteen years. The same should be true for the

United States’ military justice system.

B. Confusion over proper military verdict

voting procedures is not isolated to this

case.

Petitioner RosarioMartinez’s case demonstrates

that the guardrails supposedly in place to offset the

lack of a unanimous verdict are not fail-safe. His case

is not alone.

Like Petitioner RosarioMartinez’s case, the recent

Coast Guard case of United States v. Kelley presented

an issue of confusion by the court members where they

mistakenly believed they were required to reach a

consensus in voting on a verdict. United States v.

Kelley, No. 1495, 2025 CCA LEXIS 181, at *5-6 (C.G.

Ct. Crim. App. Apr. 25, 2025). In Kelley, the court

members faced a decision about which individual

digital image files of child pornography they would

find the accused guilty of possessing. Id. After some

deliberations, the panel president informed the trial

judge via written note, “We’ve voted on both

spec[ification]s. But we don’t have 3/4 majority on any

individual files. We weren’t clear on how to come to

consensus on each file [] or if that’s required.” Id. at *5

(alteration in original).

But despite the fact the members already “voted”

and failed to achieve the threshold for conviction, the

Kelley trial judge did not clarify whether those votes

were formal secret ballot votes or “an informal nonbinding vote.” Id. at *8. Instead, he denied the defense

motion for a finding of not-guilty, re-instructed the

members that they needed “at least three-fourths of

the members to vote guilty on any [specific image] to

result in a finding of guilty to it,” and sent them back

to the deliberation room. Id. at *5-6. Like Petitioner

RosarioMartinez, the accused there was ultimately

convicted even though he was initially effectively

acquitted. See id. at *6.

The Coast Guard Court of Criminal Appeals

(CGCCA) affirmed the conviction in Kelley relying

primarily on a “logical inference” about what

transpired in the deliberation room to hold that the

members had not yet acquitted the accused. Id. at *78. The CGCCA relied on Petitioner RosarioMartinez’s

case to justify the trial judge’s refusal to inquire

whether the vote was formal or not. Id. at *10. The

CAAF then denied review. United States v. Kelley, No.

25-0227/CG, 2025 CAAF LEXIS 947, at *1 (C.A.A.F.

Nov. 17, 2025).

Petitioner RosarioMartinez’s case and Kelley

present consistent, alarming examples of courtmartial panels disregarding the military judge’s

voting instructions and convicting service members

without realizing they had already acquitted them. In

light of Petitioner RosarioMartinez’s case and Kelley,

it is evident that the current military justice system is

failing to achieve both fairness and the appearance of

fairness. Thus, Petitioners’ cases present “an

important question of federal law that has not been,

but should be, settled by this Court.” See SUP. CT. R.

10(c).

Ramos’s protection of impartiality is

equally important in courts-martial

as in civilian courts.

In Anderson, the CAAF offered two responses to

these arguments. First, the CAAF relied on the long

history of non-unanimous convictions in courtsmartial. See Anderson, 83 M.J. at 298 (“[H]istorical

evidence establishes that for more than two centuries,

courts-martial verdicts have not been subject to a

unanimity requirement”). Second, the CAAF evoked

other “safeguards” that, in its view, adequately

protect the interests that unanimous convictions

would otherwise serve. Id. at 299. Neither

justification survives scrutiny.

1. History does not justify the current

military justice system, which

substantially

departs

from

founding-era courts-martial.

The historical analysis fails to justify the status

quo for four reasons. First, court-martial jurisdiction

to try service members for most common law offenses

outside wartime is largely a modern phenomenon.

Colonel Frederick Bernays Wiener, the great midtwentieth century military justice scholar and

frequent Supreme Court advocate,4 observed that “the

scope of offenses triable by courts-martial has been

steadily broadened.” Frederick Bernays Wiener,

Courts-Martial and the Bill of Rights: The Original

See generally Andrew S. Effron, Military Justice: The

Continuing Importance of Historical Perspective, ARMY LAW.,

June 2000, 1, 4.

Practice I, 72 HARV. L. REV. 1, 11 (1958). Some

eighteenth and nineteenth century courts-martial

tried common law offenses under the Articles of War’s

“general article.”5 See Solorio v. United States, 483

U.S. 435, 444-45 (1987). But, significantly, the general

article “excluded from its scope all capital crimes,

which were, of course, considerably more numerous in

the eighteenth century than at the present time.”

Robert D. Duke & Howard S. Vogel, The Constitution

and the Standing Army: Another Problem of CourtMartial Jurisdiction, 13 VAND. L. REV. 435, 447

(1960). Further constricting offenses subject to trial by

court-martial, “when a crime was committed against

a person wholly unconnected with a military service,

and no military order or rule of discipline was violated

in and by the act itself, such act would not constitute

a military offense.” Wiener, 72 HARV. L. REV. at 11-12.

It was not until 1863 that Congress amended the

Articles of War to make “common-law felonies,

including capital ones, . . . punishable in time of war.”

Id. at 12 (emphasis added). “Next, beginning in 1916,

common-law felonies were made military offenses at

all times, except that murder and rape committed

within the continental United States in time of peace

could not be tried by court-martial.” Id. (internal

footnotes omitted). But “[i]n time of peace, soldiers

accused of civilian offenses were still required to be

turned over to the civil authorities on request.” Id.

(citing Article of War 74 of 1916, Pub. L. No. 64-242,

39 Stat. 619, 662). “Finally, in 1951, the Uniform Code

5 E.g., Articles of War, § XVII, Art. 5, 5 J. CONT’L CONG. 788, 807

(1776) (1906 ed.) (criminalizing “crimes not capital, and all

disorders and neglects . . . to the prejudice of good order and

military discipline” not otherwise mentioned in the articles of

war).

of Military Justice removed all existing limitations so

that even murder and rape committed by military

personnel in the United States were made triable by

court-martial at all times . . . .” Id.

The UCMJ now includes ninety-two punitive

articles that establish one or more criminal offenses,6

supplemented by eighteen presidentially prescribed

offenses under Article 134, UCMJ, the “General

Article.”7 Many of those offenses are of a type long

tried by courts-martial, such as desertion, willfully

disobeying a superior commissioned officer, and

mutiny. Arts. 85, 90, 94(a)(1), UCMJ, 10 U.S.C. §§

885, 890, 894(a)(1) (2024). But many others are of a

sort that would typically have been tried in civilian

court if allegedly committed by a Legion of the United

States soldier, such as murder, manslaughter, rape,

and kidnapping. Arts. 118, 119, 120, 125, UCMJ, 10

U.S.C. §§ 918, 919, 920, 925 (2024). Yet all those

offenses may now be prosecuted by court-martial

whether they occur on or off a military installation,

regardless of whether the defendant was on duty, on

leave, or even retired from active service. See

generally Art. 2, UCMJ, 10 U.S.C. § 802 (2024). And

all those offenses may now be prosecuted by courtmartial even if neither the alleged offense nor the

alleged victim had any connection to the military. See

Solorio, 483 U.S. 435 (holding that the defendant’s

military status alone determines a court-martial’s

subject-matter jurisdiction). Thus, for many

allegations tried by general or special courts-martial

today, the defendant would have had a right to a

6 Arts. 78-134, UCMJ, 10 U.S.C. §§ 878-934 (2024).

Pt. IV, ¶¶ 92-108, MANUAL FOR COURTS-MARTIAL, UNITED

STATES (2024 ed.).

civilian jury trial, with its attendant unanimity

requirement, for most of this nation’s history.8

Second, court-martial convictions now often have

consequences that persist long after the criminal

defendant returns to civilian life. See generally Major

Emma K. Fowler, A “Civil Death” of the Military

Accused: The Vast Impacts of Collateral Consequences

of Court-Martial Convictions and the Need to Reform

Military Sentencing Practice, 232 MIL. L. REV. 1

(2025). For example, Petitioners RosarioMartinez,

Martinez, and Driskill are subject to sex offender

registration requirements9 and the accompanying

deprivations of liberty. A majority of states restrict

where registered sex offenders may live, such as

prohibiting them from residing within a certain

distance of schools, parks, playgrounds, or day-care

centers. See generally Jill S. Levenson, Alissa R.

Ackerman, Kelly M. Socia & Andrew J. Harris, Where

for Art Thou? Transient Sex Offenders and Residence

Restrictions, 26 CRIM. JUST. POL’Y REV. 319, 320

(2013). A Department of Justice study found that such

restrictions “can create exclusion zones that make it

difficult, if not impossible, for sex offenders to find

housing.” National Institute of Justice, Sex Offender

Residency Restrictions: How Mapping Can Inform

Policy (July 2008), available at https://www.ojp.gov/

pdffiles1/nij/222759.pdf.

8 Other than in Louisiana from 1898 to 2020 and Oregon from

1934 to 2020, the unanimity requirement applied in U.S. federal

civilian and state criminal jury trials. See Ramos, 590 U.S. at 87;

id. at 127 n.86 (Kavanaugh, J., concurring).

9 See Military Sex Offender Reporting Act of 2015, Pub. L. No.

114-22, §§ 501-02, 129 Stat. 227, 258; 34 U.S.C. § 20911

(establishing tier levels of sexual offenders); 34 U.S.C. § 20915

(prescribing duration of sex offender registration requirements).

Additionally, under 18 U.S.C. § 922(g)(1), some

court-martial convictions—including those adjudged

against all four petitioners—result in a lifetime

forfeiture of the Second Amendment right to possess

or acquire firearms. Such lifelong deprivation of

constitutional rights following return to civilian

status was not a feature of founding-era courtsmartial. Yet today, a service member’s constitutional

right to bear arms may be deprived by a three-fourth’s

vote.

Third, while the court-martial panel was originally

a command tool, it has evolved into a far more jurylike entity. This Court has observed that courtmartial “members’ responsibilities are analogous to,

but somewhat greater than, those of civilian juries.”

Weiss, 510 U.S. at 167 n.1. But for much of American

history, court-martial members’ actual authority was

far less than that of jurors. Court-martial panels’

findings were originally little more than advisory.

Convening authorities could disapprove a courtmartial’s result and return the case for a do-over—

even when the court-martial members voted to acquit.

Frederick Bernays Wiener, American Military Law in

the Light of the First Mutiny Act’s Tricentennial, 126

MIL. L. REV. 1, 20 (1989). Military justice reforms

gradually reduced that authority until a 2013 statute

eliminated the convening authority’s power to set

aside court-martial findings in most cases. NDAA for

FY 2014, Pub. L. No. 113-66, § 1702(b), 127 Stat. 672,

954 (2013).

It was not until 1948 that an enlisted service

member could serve on a court-martial panel. Wiener,

126 MIL. L. REV. at 30. A 2022 statute took yet another

step toward making a court-martial panel more

closely resemble a jury. The James M. Inhofe NDAA

for FY 2023 required convening authorities to detail

court-martial members “under such regulations as the

President may prescribe for the randomized selection

of qualified personnel, to the maximum extent

practicable.” Pub. L. No. 117-263, § 543(a), 136 Stat.

2395, 2582 (2022) (codified as amended at 10 U.S.C.

§ 825(e)). To carry out that provision, the President

modified R.C.M. 503(a)(1), which governs the courtmartial selection process, to enhance randomization.

Exec. Order No. 14130 of Dec. 20, 2024, at § 2 and

Annex, § 1(r), 89 Fed. Reg. 105343, 105343, 105355-56

(Dec. 27, 2024). As a result of those collective reforms,

the court-martial panel now serves a far more jurylike function and more closely resembles a civilian

jury than at the time of the founding (or at any time

since).

Fourth, the current military justice system

produces anomalous results. It permits conviction by

less than a unanimous vote while simultaneously

providing for acquittal in many instances where a

majority of the panel voted to convict. For example, a

general court-martial’s vote of 5-2 to convict—a 71.4%

vote for guilty—results in an acquittal and bar to

retrial in any federal forum. See Grafton v. United

States, 206 U.S. 333 (1907). That is a far different

regime than the pre-2019 Louisiana or pre-Ramos

Oregon systems, in which a vote of at least 10-2

(83.3%) was necessary to produce either a conviction

or an acquittal. LA. CODE CRIM. PROC. ANN. art. 782(A)

(2013); OR. REV. STAT. § 136.450 (2013).10

10 Oregon continues to allow acquittals by a 10-2 vote. Or. Rev.

Stat. § 136.450(2) (2025).

Many commentators have criticized the military

justice system’s high acquittal rate in sexual assault

cases. E.g., Judicial Proceedings Panel Subcomm.,

Report on Barriers to the Fair Administration of

Military Justice in Sexual Assault Cases 21 (May 12,

2017), available at https://perma.cc/3HXZ-72K7 (“The

low conviction rate tends to discredit the entire

military justice system in the eyes of Service members

and the general public.”); Major David Thompson,

Supporting Victims of Sexual Misconduct: Three

Judge Advocate General’s Corps-Driven Solutions to

Three Problems Revealed by the Fort Hood

Independent Review Committee Report, 101 TEX. L.

REV. 653, 655 (2023). Acquittals in cases where a

majority of panel members voted to convict—which

did not exist under the military justice system’s

simple-majority verdict rule at the time of the

founding and for most of the United States’ history—

are probably a significant factor in that high acquittal

rate. Thus, the current system fails to protect courtmartial defendants by exposing them to conviction

based on a non-unanimous vote. It also fails to protect

victims, good order and discipline, and society at large

by producing acquittals that bar retrial in any federal

forum in some cases where most of the factfinders

determined that the defendant was guilty beyond a

reasonable doubt. This Court should grant review to

evaluate whether a court-martial defendant’s

constitutional rights prevail over that irrational

voting scheme of recent vintage.

Those four factors quiet history as a determinative

consideration in deciding whether a court-martial

defendant has a constitutional right to be convicted of

a serious crime only upon a unanimous verdict.

2. Other procedural safeguards in the

military justice system do not make

up for the possibility of conviction

by a non-unanimous verdict.

The CAAF also sought to justify its result in

Anderson by noting other “safeguards” that, in its

view, adequately protect the same interests that

unanimous convictions are designed to achieve. 83

M.J. at 299. Specifically, the CAAF highlighted the

secret-ballot requirement in Article 51, UCMJ, “which

protects junior panel members from the influence of

more senior members.” Id. (citing UCMJ art. 51(a), 10

U.S.C. § 851(a)). It also flagged the availability of

“factual sufficiency review on appeal, ensuring panel

verdicts are subject to oversight.” Id.

But these “safeguards” hardly do anything to

vindicate military defendants’ interests that would be

served by a unanimous verdict requirement. While

secret ballots facilitate court-martial members voting

as their consciences dictate, it still leaves the accused

subject to conviction where one or two members’

consciences dictate an acquittal. It is not apparent

how the secret ballot compensates for allowing a

defendant to be convicted despite some factfinders

determining that the prosecution failed to prove its

case beyond a reasonable doubt. Rather, the secret

ballot merely provides some limited protection against

a uniquely military problem—the threat of the

influence of rank in the deliberation room. (And, as

noted above, because of military appellate courts’

authorization of straw votes, it does not even do a

particularly good job of that.) It does not compensate

for the loss of the protections that a civilian criminal

defendant enjoys through the unanimous verdict

requirement.

Further, as seen in Petitioner RosarioMartinez’s

case, this “unique safeguard” was no safeguard at all

where the members voted to first acquit him instead

of convict. In Petitioner RosarioMartinez’s case, the

panel president wrote in his affidavit, “I would like to

correct the findings worksheet to accurately reflect

the correct findings of the panel.” Pet. App. 24a. This

was a mistake that the military justice system’s

appellate courts refused to correct.

Nor is factual sufficiency review by the Courts of

Criminal Appeals (the military justice system’s

intermediate appellate courts) a meaningful

substitute for a unanimous conviction requirement.

First, as the CAAF’s Anderson decision acknowledges,

83 M.J. at 299 n.9., a 2021 statute curtailed the

availability of factual sufficiency review in the

military justice system. William M. (Mac) Thornberry

NDAA for FY 2021, Pub. L. No. 116-283, § 542(b), 134

Stat. 3388, 3611 (2021). Particularly significant was

an amendment of the statute governing factual

sufficiency review that departs from the previous de

novo review and now requires a Court of Criminal

Appeals to accord “appropriate deference to the fact

that the trial court saw and heard the witnesses and

other evidence.” Id. (codified at Art. 66(d)(1)(B)(ii)(I),

UCMJ, 10 U.S.C. § 866(d)(1)(B)(ii)(I)). Thus, the

Courts of Criminal Appeals must now give deference

to a possibly non-unanimous verdict below.

Second,

Court

Criminal

Appeals’

determination that a finding of guilty is factually

sufficient need not be unanimous. Rather, it makes a

simple majority determination that the evidence

supporting a finding of guilty is factually sufficient to

prove guilt beyond a reasonable doubt.11 Moreover,

the CAAF’s jurisdiction is limited to questions of law;

the CAAF does not possess independent factfinding

authority and may not reassess the evidence to

determine whether guilt was proven. See 10 U.S.C. §

867(c). Thus, once a possibly non-unanimous panel

conviction is affirmed by a possibly non-unanimous

Court of Criminal Appeals, no appellate court exists

with authority to revisit the factual determination of

guilt

that Ramos recognized

must

made

unanimously by lay factfinders. A procedure under

which a non-unanimous verdict may be affirmed by a

non-unanimous

appellate

court

according

“appropriate deference” to the non-unanimous triallevel factfinders does not place court-martial

defendants on equal footing with their counterparts in

federal and state civilian tribunals. Ramos would not

authorize a state to provide such “factual sufficiency”

review in lieu of a unanimity requirement for

convictions by juries. There is no reason why it should

suffice in the court-martial context.

II.

WHETHER CONVICTIONS BY COURT-MARTIAL

PANELS MUST BE UNANIMOUS IS A QUESTION

OF EXCEPTIONAL IMPORTANCE

The permissibility of court-martial convictions by

a non-unanimous vote of a panel of lay members is one

of the most significant issues to service members and

11 The CAAF has left open the question of whether an evenly

divided Court of Criminal Appeals vote on factual sufficiency

results in an affirmance. United States v. Ohrt, 28 M.J. 301, 303

(C.M.A. 1989); see also United States v. Acevedo, 50 M.J. 169, 170

(C.A.A.F. 1999).

civilians12 who have been—or may in the future be—

tried by general or special courts-martial.13

The question this petition presents implicates the

same fundamental constitutional issue that this

Court deemed necessary to resolve in Ramos but,

unlike in that case, arises in a manner unconstrained

by stare decisis. Petitioners do not ask this Court to

revisit whether court-martial defendants have a

constitutional right to be tried by a jury. The question

presented is more modest, but no less important:

Whether Ramos’s requirement for unanimous

convictions applies as a matter of due process when

defendants have a statutory right to be tried by a jurylike panel.14 After all, if unanimous convictions are

vital to the fairness, impartiality, and reliability of

civilian criminal convictions, they are equally

essential in military courts, which often (as in

Petitioners’ cases) adjudicate allegations of the same

kinds of offenses tried in civilian criminal courts.

12 Civilians may sometimes be tried by court-martial, such as

when they accompany the U.S. military in the field during a

contingency operation. See Art. 2(a)(10), UCMJ, 10 U.S.C. §

802(a)(10) (2024); United States v. Ali, 71 M.J. 256 (C.A.A.F.

2012).

During FY 2025, the military services combined tried 561

general courts-martial, 433 standard special courts-martial, and

55 Article 16(c)(2)(A) special courts-martial. Dep’t of Defense,

Combined Service FY 25 146a Reports, available at

https://jsc.defense.gov/Portals/99/JSC%20-%20FY25%20Art%20

146a%20Reports%20-%20Combined%20%20with%20USCG.pdf.

14 There is only one special or general court-martial forum that

does not allow defendants to demand trial by panel members: a

special court-martial convened under UCMJ art. 16(c)(2)(A), 10

U.S.C. § 816(c)(2)(A). That is the least-used court-martial forum.

See supra note 13.

The applicability of a unanimity requirement to

convictions rendered by court-martial panels has

enormous implications for the entire military justice

system. It is axiomatic that non-unanimous

convictions are easier to obtain than unanimous

convictions. The possibility of a 6-2 or 7-1 conviction

by a non-capital general court-martial will often affect

a defendant’s statutory choice between trial by a panel

and trial by a “military judge alone,” as authorized by

Article 16(b)(3)), UCMJ, 10 U.S.C. § 816(b)(3) (2024).

The question presented therefore has implications not

just for the roughly one-third of general courtsmartial tried before a panel, but for all non-capital

general court-martial proceedings.

The question presented affects not only roughly

1.35 million active-duty service members15 (who are

subject to the UCMJ at all times) and about 770,000

military reservists16 (who are subject to the UCMJ

intermittently), but also approximately 1.5 million

active component retirees.17 See Art. 2(a)(4), UCMJ,

10 U.S.C. § 802(a)(4) (2024). Retirees tried by courtsmartial are deprived of the constitutional right to a

unanimous verdict that would apply if tried in a

15 Defense Manpower Data Center, Active Duty Military Strength

by Service for March 31, 2026, available at https://dwp.dmdc.osd

.mil/dwp/api/downloadZ?fileId=142836&groupName=milTop.

Defense Manpower Data Center, Selected Reserves by

Rank/Grade (Mar. 31, 2026), available at https://dwp.dmdc.osd

.mil/dwp/api/downloadZ?fileId=142833&groupName=resRankG

rade. See also UCMJ art. 2(a)(1), (3), 10 U.S.C. § 802(a)(1), (3).

17 Dep’t of Defense Office of the Actuary, Statistical Report on the

Military Retirement System, Fiscal Year Ended September 30,

2022 at 55 (Oct. 2023), available at https://media.defense.gov

/2023/Oct/06/2003315292/-1/-1/0/MRS%20STATRPT%202022%

20V999.PDF.

civilian court by virtue of having served their country

in uniform for at least twenty years.

III. THERE IS NO REASONABLE PROSPECT THAT

THIS ISSUE WILL BE FURTHER DEVELOPED

WITHIN THE FEDERAL JUDICIARY.

While there is no split among the circuits, which is

often a precursor to this Court’s decision to review an

issue, there is no reasonable prospect that this issue

will be developed further within the federal judiciary.

With all signs pointing to Article III courts merely

deferring to the CAAF’s Anderson ruling upon

collateral review of court-martial convictions, this

Court’s assessment of whether Anderson was correctly

decided becomes even more imperative.

Since Anderson was decided, some convicted

service members have sought habeas relief from U.S.

district courts on the ground that their constitutional

rights were infringed by the possibility that their

court-martial convictions were adjudged by nonunanimous votes. Consistent with Burns v. Wilson,

346 U.S. 137 (1953) (plurality opinion), however, those

courts have held that because the issue was fully and

fairly considered within the military justice system, it

was not subject to relitigation upon habeas review.

E.g., Livingston v. Curtis, No. 24-3128, 2025 LX

434304, 2025 WL 2814422 (10th Cir. Oct. 3, 2025);

Edwards v. Villalpando, No. 24-CV-1502, 2025 LX

161187, 2025 WL 874785 (S.D. Cal. Mar. 19, 2025);

Emas v. Roman, No. 23-cv-2194, 2024 U.S. Dist.

LEXIS 193806, 2024 WL 4573755 (S.D. Cal. Oct. 24,

2024).

Thus, there are no reasonable prospects of further

development of the constitutionality of allowing courtmartial convictions by a non-unanimous vote of the

panel members. This Court should use this case as its

vehicle for resolving that significant issue.

The military justice system paradoxically makes it

too easy to obtain both a conviction and an acquittal.

This Court should grant certiorari to review the

constitutionality of the former. This Court’s

consideration of that issue would also likely have the

salutary effect of leading Congress and the President

to reconsider the wisdom of the latter.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted. In the alternative, this

Court should hold this case pending resolution of Kian

v. Florida, 25-6623, and then grant, vacate, and

remand petitioners’ cases for further consideration in

light of that case’s outcome.

Respectfully submitted,

KYLE W. RODEWALD

Counsel of Record

KATHERINE E. MALCOLM

Navy-Marine Corps

Appellate Defense Division

1254 Charles Morris St., SE

Building 58, Suite 100

Washington, DC 20374

(240) 685-7296

Kyle.w.rodewald.mil@us.navy.mil

FREDERICK J. JOHNSON

DWIGHT H. SULLIVAN

Air Force Appellate Defense Div.

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

Counsel for Petitioners

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