Opposition Brief — Viola v. United States

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In the Supreme Court of the

OCTOBER TERM, 1988

TONY J. VIOLA, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

NORMAN G. COOPER

Col., JAGC, USA

GARY F. ROBERSON

Li. Col., JAGC, USA

GARY L. HAUSKEN

Major, JAGC, USA

Appellate Government Counsel

Government Appellate Division

United States Army Legal Services Agency

Falls Church, VA 22041-5013

QUESTION PRESENTED

Whether Articles 16(1)(A) and 52(a)(2) of the Uniform

Code of Military Justice, 10 U.S.C. 816(1)(A) and

852(a)(2) (1982 & Supp. V 1987), violate the Constitution

by permitting a defendant to be convicted by the two-

thirds vote of a court-martial panel containing as few as

five members.

(1)

TABLE OF CONTENTS

Page

ec UV id rce cia veessseeieeeeceiees l

as ease a Reta ee ule bios an an k4e on l

rn ee ee peearecnes veeeseuen l

ee race a ONe 6 ab was RON a0 8s 4060 da so none 7

ES De a> ce a 21

TABLE OF AUTHORITIES

Cases:

Ballew v. Georgia, 435 U.S. 223 (1978) ................ 7, 8,

9, 18, 19

Batson v. Kentucky, 476 U.S. 79 (1986) ................ 18

Bishop v. United States, 197 U.S. 334 (1905) ........... 12

Branford v. United States, 356 F.2d 876 (7th Cir.

RT ce ee a a 9

Buchanan v. Kentucky, 107 S. Ct. 2906 (1987) .......... 18

Burch v. Louisiana, 441 U.S. 130 (1979) ........... 7, 8, 18, 19

Oe RR Fs) 10

De War v. Hunter, 170 F.2d 993 (10th Cir. 1948), cert.

I I PROUD occ sewn ccc c cnc csncccens 9,17

_ Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) .......... y

SOO. Fee, Dae las. SO CEDST) 0. wc ce cee eees 16

Jackson v. Virginia, 443 U.S. 307 (1979) ............... 16

Raney, eee, aoe woe. PETS)... 2. eee 4

King v. Moseley, 430 F.2d 732 (10th Cir. 1970) ......... y

Lockhart v. McCree, 476 U.S. 162 (1986) .............. 18

Martin v. Mott. 25 U.S. (12 Wheat.) 19 (1827; .......... 12

Mendrano v. Smith, 797 F.2d 1538 (10th Cir. 1986) ...... 6, 9,

15, 18

Middendorf v. Henry, 425 U.S. 25 (1976) .............. 17

Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866) ........... 9, 10

Mullan v. United States, 140 U.S. 240 (1891) ........... 12

O'Callahan v. Parker, 395 U.S. 258 (1969) ............. 9, 20

Owens v. Markley, 289 F.2d 751 (7th Cir. 1961) ......... )

ED | . Fe 9, 10

| ee )

(IIT)

iia

Cases — Continued: Page

Rostker v. Goldberg, 453 U.S. 57 (1981) ............... 11

Solorio v. United States, 107 S. Ct. 2924 (1987) ......... 9, 10,

11, 19, 20

Stilson v. United States, 250 U.S. 583 (1919) ........... 18

Stout v. Hancock, 146 F.2d 741 (4th Cir. 1944), cert.

CR, Fe a EE ove dk ccs cewdedicenndencns 13

United States v. Boland, 1 M.J. 241 (C.M.A. 1975) ...... 17

United States v. Guilford, 8 M.J. 598 (A.C.M.R. 1979),

pet. for review denied, 8 M.J. 242 (C.M.A. 1980) ..... 18, 19

United States v. Hutchinson, 17 M.J. 156, 18 M.J. 281

(C.M.A.), cert. denied, 469 U.S. 981 (1984) .......... 8-9

United States v. Kemp, 22 C.M.A. 152, 46 C.M.R. 152

ET Sen cccuccbueea Maer anl eee edce ewe ausaenae.. 9

United States v. Mason, 24 M.J. 127 (C.M.A. 1987),

cert. denied, 108 S. Ct. 257 (1987) .................. 8

United States v. McClain, 22 M.J. 124 (C.M.A.

RFE OTe POT Te Te Pere eT Tee reT er 9,17

United States v. Morphis, 7 C.M.A.- 748, 23 C.M.R. 212

ER Pere rer er re ry rr eT eee 6

United States v. Palenius, 2 M.J. 86(C.M.A. 1977) ..... 16

United States v. Shroeder, 27 M.J. 87 (C.M.A. 1988),

cert. denied, No. 88-873 (Feb. 21, 1989) ............. 6

United States v. Walker, 7 C.M.A. 669, 23 C.M.R. 133

Sc icti eons ce ereeaeeneketsadaeudhaeseewiinss 6

United States ex rel. Toth v. Quarles, 350 U.S. 11

es ee ee) eas Oa ea a'a 15

Whelchel v. McDonald, 340 U.S. 122 (1950) ............ 9, 11

Williams v. Florida, 399'U.S. 78 (1970) ................ 19

Constitution, statutes, regulation, and rules:

U.S. Const.:

eo ee Ueactae seeks naka he ned 5, 10

EO 2a ees eth och aNiane ether ateecnneen 9, 10

Bee ess ce cuev isa kodes acu Cibekeenrns ene 9, 10

Be eieccueadesd coed eedea een en eee y

PUTED hs ota Oe Se ie a aye Mae 7, 9, 10, 20

ee ene Ce oo da ecccssushwneel ees 7, 10

I Te eh a Gd eee ens ae 6, 7, 8,

I TEE oto are tea oe re eee 7

Statutes, regulation, and rules — Continued: Page

Act of Apr. 23, 1800, ch. 33, § 1, Art. 41,2 Stat. 51...... 13

Act of July 17, 1862, ch. 204, Art. 19, 12 Stat. 605 ...... 13

Act of June 4, 1920, ch. 227, Art. 43, 41 Stat. 795-796 ... 13

American Articles of War of 1776, reprinted in 1 & 2

W. Winthrop, Military Law and Precedents, App.

961-971 (2d ed. 1920):

§ 14:

CD PP PP eee errr tL pee Varese 11

hao) sd ok ba wn traaie Rcd dines & eae ae 13

American Articles of War of 1806, ch. 20, 2 Stat. 359:

Fe, ee x ticccane A ey ae ne 12

ST oo sd 2 ohn oed a ard o as

American Articles of War of 1874, reprinted in 1 & 2

W. Winthrop, Military Law and Precedents, App.

986-996 (2d ed. 1920):

et Cees oa ee cet et eee > 12

pO PPS oe Fee rer ee en ee 13

American Articles of War of 1916, ch. 418, Art. 5, 39

Ne aes ae aah ec Nn ee ene 12

Military Justice Act of 1983, Pub. L. No. 98-209, 97

reg ee er ee 14

Uniform Code of Military Justice, 10 U.S.C. 801 ef seq.:

Art. 15, 10 U.S.C. 815 (1982 & Supp. V 1987) ...... 2

Art. 16, 10 U.S.C. 816 (1982 & Supp. V 1987) ...... 16

Art. 16(1)(A), 10 U.S.C. 816(1)(A) (Supp. V 1987)... 5, 14

Arts. 22-24, 10 U.S.C. 822-824 (1982 & Supp. V

SU ide a ee ee oy oe is 5

Art. 25, 10 U.S.C. 825 (1982 & Supp. V 1987) ...... 5, 19

Art. 25(c)(1), 10 U.S.C. 825(c)(1) (Supp. V 1987) .... 5

Art. 25(d)(2), 10 U.S.C. 825(d)(2) ................ 5

Art. 29, 10 U.S.C. 829 (1982 & Supp. V 1987) ...... 5

Mm a hc eo seve ce tc wces. 17

Art. 34, 10 U.S.C. 834 (Supp. V 1987) ............. 5

Art. 34(a), 10 U.S.C. 834(a) (Supp. V 1987) ........ 17

Sa ios inves vcs 14

Ast. Sa. MOTE. Bie)... 5... 2... -. 6, 14

Art. 60, 10 U.S.C. 860 (Supp. V 1987) ............. 5, 17

Art. 66(c), 10 U.S.C. 866(c) .............20..0ee. 16

Art. 106a, 10 U.S.C. 906a (Supp. V 1987).......... 14, 15

Statutes, regulation, and rules — Continued: Page

GIO o bes 64456 cess cvnacewsewee 2

ED sid aceu ctanevassasieeds ‘ 15

British Articles of War, reprinted in | & 2 W. Winthrop,

Military Law and Precedents, App. 931-960 (2d ed.

1920):

§ 15:

i las oes ee ie etd & phen b Nene 12

ME ess Fesuc eked e Mek Ra Ase ee awe ee 13

Exec. Order No. 12,550, 3 C.F.R. 192 (1986 comp.) ..... 14

Rules for Courts-Martial, Manual for Courts-Martial,

United States — 1984:

Sg Ie ae are Oe py ae 5

es cc ccb i nkn we cde seeeeeneeioectesees 5

ins Saeed bi neeedgeeess eves eeawedees 5

OED ccc cccancsnessaneesenseceeasewes 6

nn 5000s odPe dest hen sad uvees beedess 6, 14

Dd gig nd ne onde keced eae vane becserareeses 5

Miscellaneous:

H.R. Rep. No. 491, 81st Cong., Ist Sess. (1949) ......... 14

Henderson, Courts-Martial and the Constitution: The

Original Understanding, 71 Harv. L. Rev. 293

Cero Uole latina badetesa<echedeewalaks «> 9-10

Hirschhorn, The Separate Community: Military Unique-

ness and Servicemen’s Constitutional Rights, 62 N.C.

eg. rer ere 19

5 J. Continental Cong. (W. Ford ed. 1906):

hs ol eedesvh HES ReSER EGET ORE TAS bONP Sess 11

Ce Adw addin bested EDEN SRN ORES OERVE OR ESAES 13

22 J. Continental Cong. 325 (G. Hunt ed. 1914) ......... 11

30 J. Continental Cong. (J. Fitzpatrick ed. 1934):

ED ods 6d Rawhs Mew e~ 60608 9 00000844 OKEE SOAS 1]

DENS nn 544-4509 06 a4 a6 hea KREG OSERER EOS ORETS HS 11

A. Macomb, A Treatise on Martial Law and Courts-

Martial (1809) .. 0.00 cee ene 13

Vil

Miscellaneous — Continued: Page

Moyer, Procedural Rights of the Military Accused:

Advantages Over a Civilian Defendant, 22 Me. L.

el ME Cas catia nek cons Whscw keds bes 4400's 17

R. Scott, The Military Law of England (1810) .......... 13

Uniform Code of Military Justice (No. 37): Hearings on

H.R. 2498 Before a Subcomm. of the House Comm.

on Armed Services, 81st Cong., Ist Sess. (1949) ....... 14

Van Loan, The Jury, the Court-Martial, and the Consti-

tution, 57 Cornell L. Rev. 363 (1972) .............. 9, 11, 12

1 & 2 W. Winthrop, Military Law and Precedents (2d

Pe ta AA Belconnen eR ete 11, 12, 13

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-1239

TONY J. VIOLA, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The order of the Court of Military Appeals (Pet. App.

la-2a) affirming petitioner’s conviction is not yet officially

reported. The opinion of the Army Court of Military

Review (Pet. App. 3a-35a) is reported at 26 M.J. 822.

JUREISDICHION

The judgment of the Court of Military Appeals was

entered on December 1, 1988. The petition was filed on

January 26, 1989. The jurisdiction of this Court is invoked

under 28 U.S.C. 1259(3) (Supp. 1V 1986).

STATEMENT

Petitioner, a member of the United States Army, was

tried by a general court-martial at Camp Casey in the

Republic of Korea. He was convicted of premeditated

(1)

murder, in violation of Article 118 of the Uniform Code

of Military Justice (UCMJ), 10 U.S.C. 918. He was

sentenced to confinement for life, total forfeiture of pay, a

reduction in rank, and a dishonorable discharge. The

Army Court of Military Review affirmed the findi igs and

sentence. The Court of Military Appeals granted review

and summarily affirmed.

1. Petitioner and the victim were members of the same

tank platoon. Petitioner was a Private First Class. The vic-

tim, Jon R. Watson, was a corporal, and, as such, occa-

sionally supervised petitioner’s work. Tr. 1090-1092. Peti-

tioner disliked Corporal Watson. Tr. 761, 763, 1164-1165;

Pet. App. 28a. That dislike began after petitioner’s com-

manding officer imposed nonjudicial punishment on peti-

tioner for being insubordinate to Corporal Watson. Tr.

744, 821.' Petitioner blamed Corporal Watson for that

punishment and offered another soldier $50 if the soldier

would “beat the shit” out of Watson.? Tr. 791-792, 1166.

During the weekend of March 1-3, 1986, 17 members of

petitioner’s platoon went on a ski trip to the Dragon Valley

Ski Resort in Yong Pyong, Korea. The platoon leader

organized the trip to reward the platoon following a field

training exercise, and to allow the soldiers to relax. Tr.

505, 837-838, 1091. On the evening of March 2, a number

' Nonjudicial punishment is a form of minor punishment author-

ized by the UCMJ. 10 U.S.C. 815 (1982 & Supp. V 1987). Petitioner’s

punishment was to perform “extra duty,” which was to be completed

after normal working hours. Tr. 1094.

2 Petitioner made no secret of his intense dislike for Corporal Wat-

son. He admitted expressing his contempt for Corporal Watson to

other members of the platoon, Tr. 1165, and he admitted that he was

“dead serious” when he tried to pay another soldier to beat up Wat-

son. Tr. 1166. A fellow soldier testified that petitioner purchased a ski

mask in November 1985 to conceal his identity because he was going

to “kick Corporal Watson’s ass.” Tr. 1040.

of the platoon members gathered in the lobby of their

hostel to play the game “Trivial Pursuit.” Petitioner

played and drank alcoholic beverages.? Tr. 896. At ap-

proximately 11:30 p.m., petitioner and Corporal Watson

followed two other soldiers to a discotheque, which they

discovered was closed. Tr. 510-511, 857-859, 1111; Pet.

App. Sa. While the other two soldiers walked to a nearby

bar, petitioner led Corporal Watson toward a dark part of

the resort. Tr. 1120, 1172. Shortly thereafter, petitioner

killed: Corporal Watson.‘

3 Petitioner’s platoon leader, First Lieutenant Clays, testified that

petitioner’s alcohol consumption did not affect his behavior, that he

played the game for four hours (ending at 11:30 p.m.), and that peti-

tioner was in control of his actions at the end of the game. Tr. 841. On

the other hand, Lieutenant Clays and several other witnesses testified

that Corporal Watson was noticeably intoxicated, so much so that he

could not play the game and could not be expected to defend himself

or start a fight. Tr. 842-843, 866, 881-883. The Army Court of

Military Review specifically found that both petitioner and his victim

were “somewhat intoxicated, the victim more so than [petitioner]}.”

Pet. App. 29a.

* At trial petitioner claimed that he acted in self-defense and that he

lacked an intent to kill. Petitioner’s story was as follows: He and Cor-

poral Watson had crossed paths with two Koreans after leaving the

discotheque. Tr. 1123-1124. Corporal Watson wanted to fight the

Koreans, but petitioner restrained him. Corporal Watson then turned

on petitioner, kicking him in the groin. Tr. 1126. Corporal Watson

provoked petitioner to fight. Tr. 1128-1132. The fight ended when

petitioner first kicked Watson in the face, then hit him with a stick.

Tr. 1144. Petitioner admitted trying to hide the stick and hiding

Watson’s wallet. Tr. 1146-1148. Petitioner also admitted that he

cleaned the blood off his shoes. Tr. 1150. The Army Court of Military

Review found that petitioner’s attack on Corporal Watson was un-

provoked by any physical or verbal aggression by the victim, Pet.

App. 30a-3la, and that “the defense’s theory of the case is implausi-

ble.” Jd. at 23a. That court also concluded that petitioner’s blows were

calculated to kill, not merely to wound, as shown by the concentration

and severity of the blows.

Petitioner returned to the hostel at approximately 12:16

a.m. Tr. 907. Another soldier, Sergeant Greene, asked

him where he left Corporal Watson. Petitioner stated at

various times that he left Corporal Watson at the discothe-

que, by the swimming pool, and at the front desk of the

hostel. bid.’ A search party was organized, but did not

locate Corporal Watson. Tr. 908, 914.

Corporal Watson’s body was found the next morning.

Tr. 703;*Pet. App. 6a. Nearby was a length of wood with

blood on one end of it. Tr. 709-710; GX 21, 22; Pet. App.

7a.© Blood was also found on a wall near the body, in-

dicating that the victim had been struck while on the

ground. Tr. 1287, 1289; GX 8, 9. An autopsy revealed that

Corporal Watson’s death had been caused by a nurnber of

blunt force blows to his head. Tr. 623.

When Corporal Watson’s body was found, his pants

were unbuttoned and the zipper was open. GXs 8-10. Peti-

tioner told one of the witnesses that he had hit Corporal

Watson from behind with a pole while Watson was

urinating. Pet. App. 9a.

Shortly after Corporal Watson’s body was discovered,

all of the platoon members were gathered together, in-

formed of the death, and told that they would need to

make statements. Petitioner asked two fellow soldiers to

help him “get the bloody sweat pants out of my bag.” Tr.

707, 771. Petitioner told another soldier that he had hid-

den Corporal Watson’s wallet. Tr. 708; Pet. App. 9a. The

wallet was later recovered from a snowbank not far from

the body. The Army Court of Military Review determined

> At trial petitioner admitted giving several inconsistent responses

to Sergeant Greene. Tr. 1154.

6 The stake, GX 23, was found bracing a nearby tree with the

bloody end placed in the snow. The stake was placed so as to resemble

similar stakes used as supports for young trees. Tr. 709, 959.

from that evidence that petitioner had hoped that the in-

vestigators would conclude that the murder was com-

mitted during the course of a robbery. Pet. App. 32a.

2., Pursuant to its authority under Art. I, § 8, Cl. 14,

of the Constitution to “makes Rules for the Government

and Regulation of the land and naval Forces,” Congress

has enacted the Uniform Code of Military Justice, which

governs the size, selection process, composition, and

voting procedures of courts-martial. Article 16(1)(A) of

the UCMJ, 10 U.S.C. 816(1)(A) (Supp. V 1987), provides

that general courts-martial shall consist of at least five

members, although any greater number is permissible. Ar-

ticle 25(d)(2) of the Code, 10 U.S.C. 825(d)(2), directs the

court-martial convening authority’ to select as court-

martial panel members “such members of the armed forces

as, in his opinion, are best qualified for the duty by reason

of age, education, training, experience, length of service

and judicial temperament.”® Article 25(c)(1) of the Code,

10 U.S.C. 825(c)(1) (Supp. V 1987), allows an enlisted

defendant to insist that at least one-third of the court-

martial panel be made up of enlisted personnel equal to or

7 A “convening authority” is a commander who is authorized to

convene a court-martial pursuant to Articles 22-24 of the UCMJ, 10

U.S.C. 822-824 (1982 & Supp. V 1987), and Rule for Courts-Martial

504, Manual for Courts-Martial, United States — 1984 (Manual). The

duties of the convening authority include the selection and appoint-

ment of court-martial panel members (a practice commonly known as

“detailing” members of a court-martial), directing that the accused be

tried by the court-martial for the charged offenses (a practice com-

monly known as the “referral” of charges to a court-martial), and a

post-trial review of the proceedings. See Arts. 25, 34, 60, UCMJ, 10

U.S.C. 825, 834, 860 (1982 & Supp. V 1987); see also Rules 503, 601,

1107, Manual.

* Before the court-martial panel is assembled, the convening

authority is free to add, delete, or substitute panel members. Arts. 25,

29, UCMJ, 10 U.S.C. 825, 829 (1982 & Supp. V 1987).

: 6

senior in rank to the defendant and from a different

military unit, unless physical conditions or military exigen-

cies prevent such persons from being assigned to a court-

martial. Article 52(a)(2) of the UCMJ, 10 U.S.C.

852(a)(2), requires a two-thirds majority vote of the panel

members for a finding of guilty of all crimes not carrying a

mandatory death sentence.? On sentencing, a two-thirds

majority vote is necessary for a sentence of imprisc-nment

less than ten years, a three-fourths majority is required for

sentences of ten years’ incarceration or more, and a

unanimous vote is necessary to impose the death

penalty.!° The military justice system does not provide for

a retrial in the event that the panel is unable to agree by the

necessary majority. When that occurs, the defendant is

automatically acquitted. Rule 921(c)(3), Manual.

3. Petitioner’s trial convened on April 21, 1986. He

pleaded not guilty and requested that the court-martial

panel be composed of both officer and enlisted members.

Tr. 8. Originally, nine members were detailed to peti-

tioner’s court-martial. Tr. 226. The trial judge granted two

of petitioner’s three challenges for cause. Tr. 424-427.

Each party exercised one peremptory challenge, Tr. 428,

leaving a court-martial panel consisting of five members.

The defense then moved the trial court to hold that the

Sixth Amendment jury trial right applied to courts-martial

and that the panel, consisting of less than six members,

9 Rule 1004, Manual, requires a unanimous verdict as a prerequisite

to the imposition of the death penalty.

10 See Mendrano v. Smith, 797 F.2d 1538, 1540-1541 (10th Cir.

1986); United States v. Shroeder, 27 M.J. 87 (C.M.A. 1988), cert.

denied, No. 88-873 (Feb. 21, 1989); United States v. Morphis, 7

C.M.A. 748, 752-754, 23 C.M.R. 212, 216-218 (1957); United States

v. Walker, 7 C.M.A. 669, 673-675, 23 C.M.R. 133, 137-139 (1957).

violated the Sixth Amendment. The trial judge denied

petitioner’s motion. Tr. 440.

Following the presentation of the evidence, the trial

judge instructed the panel, without defense objection, that

the concurrence of four-out of the five members was re-

quired for any findings of guilty. Tr. 1475. He further in-

structed the panel members that if they reached a

unanimous finding of guilty to premeditated murder or

felony murder, that unanimity should be announced. Tr.

1476. The president of the panel announced that two-

thirds of the panel found petitioner guilty of premeditated

murder. Tr. 1481, 1489-1490.

4. The Army Court of Military Review affirmed, Pet.

App. 3a-35a, noting that challenges of the nature that peti-

tioner now makes have been repeatedly rejected. Jd. at

34a. The Court of Military Appeals granted review on the

issue presented by petitioner and summarily affirmed. /d.

at la-2a.

ARGUMENT

In Ballew v. Georgia, 435 U.S. 223 (1978), the Court

held that the Sixth and Fourteenth Amendments require

that at least six persons serve on the jury in serious state

criminal cases. In Burch v. Louisiana, 441 U.S. 130

(1979), the Court ruled that the verdict by such a six-

person jury must be unanimous. Relying on Burch and

Ballew, petitioner contends that his conviction by-four

members of a five-member court-martial panel violates the

Due Process Clause of the Fifth Amendment. That con-

tention does not warrant review by this Court.!!

'! This Court has previously denied certiorari in several other cases

presenting substantially the same question. Johnson v. United States,

cert. denied, 109 S. Ct. 69 (1988); Hargrove v. United States, cert.

denied, 109S. Ct. 76 (1988); Mason v. United States, cert. denied, 108

1. Petitioner has not properly preserved his unanimity

claim. At trial, petitioner relied solely upon the claim that

the Sixth Amendment applies to trials by courts-martial

and requires that the court-martial consist of at least six

members. Tr. 431, 438. Petitioner did not contend, as he

does now (Pet. i, 16 n.3), that due process requires a

unanimous verdict. Tr. 431-438. Before this Court, peti-

tioner has not pressed his Sixth Amendment claim (Pet.

16), but urges that a court-martial panel must consist of at

least six members and that the vote of a six-member panel

must be unanimous. His purpose in adding the unanimity

argument is clear: If the court-martial had consisted of six

members, the military rule requiring a two-thirds majority

vote to convict would have required the concurrence of

only four members, which was the same number required

to convict with a panel of five. Because petitioner did not

raise the unanimity claim at trial, however, the trial

judge’s instructions to the panel regarding the degree of

concurrence required to convict cannot be held erroneous

unless they amounted to plain error. For the reasons

discussed below, petitioner cannot meet that standard.

2. There is no conflict among the circuits on the ques-

tion presented by petitioner. The military courts have con-

sistently rejected the claim that the court-martial system

established by Congress is invalid under Burch v. Loui-

siana, supra, and Ballew v. Georgia, supra, because a serv-

icemember may be convicted by a two-thirds vote of the

court-martial panel. United States v. Mason, 24 M.J. 127,

128 & n.* (C.M.A. 1987), cert. denied, 108 S. Ct. 257

(1987); United States v. Hutchinson, 17 M.J. 156,

S. Ct. 257 (1987); Delacruz v. United States, cert. denied, 481 U.S.

1052 (1987); Dodson v. United States, cert. denied, 479 U.S. 1006

(1986); Garwood v. United States, cert. denied, 474 U.S. 1005 (1985);

Hutchinson v. United States, cert. denied, 469 U.S. 981 (1984).

156-157, 18 M.J. 281 (C.M.A.), cert. denied, 469 U.S. 981

(1984); see United States v. McClain, 22 M.J. 124, 128

(C.M.A. 1986); United States v. Kemp, 22 C.M.A. 152,

154, 46 C.M.R. 152, 154 (1973) (the Sixth Amendment

cross-section requirement is inapplicable to court-martial

panels). The decisions of that court are consistent with the

decision of the only federal court of appeals to consider

the issue in light of this Court’s decisions in Burch and

Ballew. Mendrano v. Smith, 797 F.2d 1538, 1544-1547

(10th Cir. 1986).

3. The decision below is correct. The statutes govern-

ing the number of members on court-martial panels and

the number that must concur to return a verdict do not

offend either the Fifth or Sixth Amendments to the Con-

stitution.

a. Petitioner seeks to impose on courts-martial the

Same requirements that Art. III, § 2, Cl. 3, and the Sixth

Amendment impose in civilian cases. It is well settled,

however, that the right to a jury trial that is guaranteed by

those provisions does not apply to court-martial pro-

ceedings. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123

(1866); Dynes v. Hoover, 61 U.S. (20 How.) 65, 79

(1858).'2 The Fifth Amendment specifically exempts

'2 See also O'Callahan v. Parker, 395 U.S. 258, 261 (1969), over-

ruled on other grounds, Solorio v. United States, 107 S. Ct. 2924

(1987); Reid v. Covert, 354 U.S. 1, 19 (1957) (plurality opinion);

Whelchel v. McDonald, 340 U.S. 122, 127 (1950); Ex parte Quirin,

317 U.S. 1, 40-41 (1942); Kahn v. Anderson, 255 U.S. 1 (1921); Men-

drano v. Smith, 797 F.2d at 1544; King v. Moseley, 430 F.2d 732, 734

(10th Cir. 1970); Branford v. United States, 356 F.2d 876, 877 (7th

Cir. 1966); Owens v. Markley, 289 F.2d 751, 752 (7th Cir. 1961). See

De War v. Hunter, 170 F.2d 993, 997 (10th Cir. 1948), cert. denied,

337 U.S. 908 (1949) (court-martial panel composed exclusively of of-

ficers to try an enlisted man does not violate the Sixth Amendment).

See generally Van Loan, The Jury, the Court-Martial, and the Con-

stitution, 57 Cornell L. Rev. 363 (1972); Henderson, Courts-Martial

eee

“cases arising in the land or naval forces” from the require-

ment of an indictment by a grand jury for serious crimes.

By drafting the Fifth Amendment in that manner, “the

framers of the constitution, doubtless, meant to limit the

right of trial by jury, in the sixth amendment, to those per-

sons who were subject to indictment or presentment in the

fifth.” Ex parte Milligan, 71 U.S. (4 Wall.) at 123. As the

Court explained in Ex parte Quirin, 317 U.S. 1, 39 (1942), ?

neither Section 2 of Article III of the Constitution nor the

Sixth Amendment requires a trial by jury in the military,

because those provisions were intended “to preserve unim-

paired trial by jury in all those cases in which it had been

recognized by the common law * * *, but not to bring

within the sweep of the guaranty those cases in which it

was then well understood that a jury trial could not be

demanded as of right.” Accordingly, because petitioner

had no Article III or Sixth Amendment right to a trial by a

petit jury, he also had no right under those provisions to a

unanimous vote by a jury composed of at least six persons.

b. Petitioner’s claim fares no better under the Due

Process Clause. The Constitution authorizes Congress to

“make Rules for the Government and Regulation of the

land and naval Forces,” Art. I, § 8, Cl. 14, and grants

Congress “primary responsibility for the delicate task of

balancing the rights of servicemen against the needs of the

military.” Solorio v. United States, 107 S. Ct. 2924, 2931

(1987). See also Burns v. Wilson, 346 U.S. 137, 140 (1953)

(plurality opinion). Congress’s judgment about the com-

position and voting procedures of a court-martial is en-

titled to special deference, not only because “(t]he con-

stitution of courts-martial, like other matters relating to

their organization and administration * * *, is a matter

and the Constitution: The Original Understanding, 71 Harv. L. Rev.

293 (1957).

Hiraintneneensenesitieniaanaotnaiateneaniceeetiianaiiiamenamaaind

appropriate for congressional action,” Whelchel v. 4

McDonald, 340 U.S. 122, 127 (1950) (citations omitted), '?

but also because the practices at issue have been carried

forward from the earliest days of our nation. Cf. Solorio

v. United States, 107 S. Ct. at 2928-2930.

The nation’s first military law was the American Articles

of War of 1776. 1 & 2 W. Winthrop, Military Law and

Precedents 47, App. 961-971 (2d ed. 1920). Section 14,

Art. 1, provided that at least 13 officers would serve on

general courts-martial (i.e., a president and 12 members).

5 J. Continental Cong. 800 (W. Ford ed. 1906); 1 & 2 W.

Winthrop, supra, App. 967. In 1782, Congress substan-

tially adopted the English practice for naval courts-martial

of detailing five officers to a court-martial in a capital case

and three in a noncapital case. 22 J. Continental Cong.

325 (G. Hunt ed. 1914). Four years later, when large

numbers of desertions and an understaffing of officers

had become a particularly acute problem for commanders

at frontier outposts, Congress amended the American Ar-

ticles of War to permit a quorum of five officers at a

general court-martial and three officers at regimental

courts-martial when 13 members could not be detailed

“without manifest injury to the service.” 30 J. Continental

Cong. 145, 316 (J. Fitzpatrick ed. 1934); 1 & 2 W. Win-

throp, supra, at 22-23, App. 972; Van Loan, The Jury, the

Court-Martial, and the Constitution, 57 Cornell L. Rev.

363, 384-385 n.118 (1972). That language was merely ad-

visory to the officer responsible for appointing the

members of a court-martial, however, and his decision to

select a small number of members was both lawful and

'3 See also, e.g., Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981)

(the decisions of Congress are entitled to particular deference when

they involve “Congress’ authority over national defense and military

affairs”).

een

conclusive. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 34-35

(1827).'4

Congress_endorsed that practice throughout the nine-

teenth century and the early part of the twentieth century

when revising the Articles of War. 1 & 2 W. Winthrop,

supra, at 77, 159; American Articles of War of 1806, ch.

20, Art. 64, 2 Stat. 367, reprinted in 1 & 2 W. Winthrop,

supra, App. 981-982; American Articles of War of 1874,

Ait. 75, reprinted in | & 2 W. Winthrop, supra, App. 992;

American Articles of War of 1916, ch. 418, Art. 5, 39 Stat.

651. In the aftermath of World War II, Congress replaced

the Articles of War with the Uniform Code of Military

Justice. In so doing, Congress retained the requirement of

a quorum of five members for general courts-martial, as

well as the convening authority’s discretion to detail a

greater number of panel members, the system that exists

today. Art. 16, UCMJ, 10 U.S.C. 816 (1982 & Supp. V

1987).

History also shows that unanimity has never been a

feature of court-martial proceedings.'* The American Ar-

ticles of War of 1776, like their predecessor, the British

Articles of War,'® required only a simple majority vote

14 See also Bishop v. United States, 197 U.S. 334, 339-340 (1905);

Mullan v. United States, 140 U.S. 240, 245 (1891) (convening officer’s

determination that trial by members junior in rank to the accused

could not be avoided was proper).

'S During the Revolution, the Continental Congress adopted the

British naval regulations for use by the Continental Navy. The British

regulations provided for courts-martial similar to the general courts-

martial under the British Articles of War, which required only a sim-

ple majority to convict and sentence a defendant. Van Loan, supra, 57

Cornell L. Rev. at 382 & n.102.

16 The British Articles of War required a vote of 9 of 13 court-

martial members to impose the death penalty. 1 & 2 W. Winthrop,

supra, App. 943, § 15, Art. VIII. The Articles of War did not specify

to convict a defendant and a two-thirds majority to

sentence him to death. Articles of War of 1776, § 14, Art.

5, reprinted in 5 J. Continental Cong. 801 (W. Ford ed.

1906); 1 & 2 W. Winthrop, supra, at 377, App. 968; A.

Macomb, A Treatise on Martial Law and Courts-Martial

144 (1809). Congress thereafter repeatedly endorsed

similar majority vote requirements in statutes passed in

1800, 1806, 1862, and 1874.'’? Throughout the nineteenth

century, a majority vote of the panel members was suffi-

cient to convict a defendant of a noncapital crime, with a

two-thirds vote sufficient to impose capital punishment. 1

& 2 W. Winthrop, supra, at 377; Stout v. Hancock, 146

F.2d 741, 742-743 (4th Cir. 1944), cert. denied, 325 U.S.

850 (1945).

Early in the twentieth century, Congress modified the

voting requirements for Army courts-martial, requiring a -

unanimous vote to impose the death penalty or to convict

a defendant of a crime carrying a mandatory death penal-

ty. Act of June 4, 1920, ch. 227, Art. 43, 41 Stat. 795-796;

Stout v. Hancock, 146 F.2d at 741-743. For all other

crimes, conviction required only a two-thirds majority. At

the same time, the voting requirements for courts-martial

the number of votes necessary to convict a defendant at a general

court-martial or to impose any sentence other than death. The Articles

of War, however, provided that inferior courts-martial “shall give

Judgment by the Majority of Voices.” 1 & 2 W. Winthrop, supra,

App. 943, § 15, Art. XII. See R. Scott, The Military Law of England

131 (1810).

'” Act of Apr. 23, 1800, ch. 33, § 1, Art. 41, 2 Stat. 51 (An Act for

the Better Government of the Navy of the United States); American

Articles of War of 1806, ch. 20, Art. 87, 2 Stat. 369, reprinted in 1 & 2

W. Winthrop, supra, App. 984; Act of July 17, 1862, ch. 204, Art. 19,

12 Stat. 605 (An Act for the Better Government of the Navy of the

United States); American Articles of War of 1874, Art. 96, reprinted

in 1 & 2 W. Winthrop, supra, App. 994.

in the Navy were left untouched. Thus, only a simple ma-

jority was necessary to convict a sailor, and a two-thirds

majority to impose the death penalty. See H. R. Rep. No.

491, 8ist Cong., Ist Sess. 26, 74 (1949). When considering

the UCMJ following World War II, Congress adopted Ar-

ticle 52 of the UCMJ, 10 U.S.C. 852, in substantially its

present form.'®

In 1984, Congress amended the UCMJ to coincide with

proposed changes to the Manual for Courts-Martial.

Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat.

1393. Concurrently, the President, acting pursuant to his

rule-making authority, promulgated the current Manual.

In 1986, Congress enacted additional changes to the

UCM], including the addition of Article 106a, 10 U.S.C.

906a (Supp. V 1987), an espionage statute that provides

for capital punishment. That year, the President modified

the Manual to limit the imposition of the death penalty to

those cases in which the court-martial panel members

unanimously find the defendant guilty of an offense for

which Congress has authorized the death penalty, and

then only if the court finds at least one enumerated ag-

gravating factor. Rule 1004, Manual; Exec. Order No.

12,550, 3 C.F.R. 192 (1986 comp.). Neither Congress nor

the President sought to extend the unanimity requirement

to other situations. In sum, it is clear that the five-

member, two-thirds majority vote procedures in Articles

16(1)(A) and 52(a)(2) of the UCMJ, 10 U.S.C. 816(1)(A)

and 852(a)(2) (1982 & Supp. V 1987), represent the

longstanding and considered judgment of Congress and

the President on the proper balance to be struck between

'8 In so doing, Congress decided not to extend the unanimous vote

requirement to noncapital crimes. See Uniform Code of Military

Justice (No. 37): Hearings on H.R. 2498 Before a Subcomm. of the

House Comm. on Armed Services, 81st Cong., Ist Sess. 1081-1082

(1949).

AER NE IR

the rights of an individual serviceman and the special

needs of the armed forces.

That judgment is a reasonable one. The essential func-

tion of the military is “to fight or be ready to fight wars

should the occasion arise.” United States ex rel. Toth v.

Quarles, 350 U.S. 11, 17 (1955). When servicemembers are

diverted from that function by the need to serve as court-

martial panel members, “the basic fighting purpose of ar-

mies is not served.” Jbid. Congress therefore has deter-

mined that the diversion of resources necessary to conduct

the retrials that would result from a unanimous verdict re-

quirement is too high a price to pay in terms of lost

military preparedness.'®? Accordingly, Congress provided

for only one trial, at which a two-thirds majority vote

would suffice to convict.?°

The military justice system does not exclusively favor

the prosecution. The rule that no retrials are permitted in

the military if there is a “hung jury” provides a defendant

with “a significant recompense” for the disadvantages of

not requiring a unanimous verdict. Mendrano v. Smith,

797 F.2d at 1546. Moreover, as a safeguard against an in-

'? Petitioner contends (Pet. 36) that requiring six members and

unanimity would not require retrials, because it would apply only to

those cases “where mens rea and not actus rea is in dispute.” While

petitioner’s scenario holds true for this case, it is not true for all

premeditated or felony murder cases. In particular, petitioner’s argu-

ment would not necessarily be true where the defense of alibi is raised.

Further, petitioner provides no reason why premeditated murder and

felony murder should require unanimity while convictions of other of-

fenses for which death or life imprisonment are authorized (e.g., es-

pionage and rape, Art. 106a, UCMJ, 10 U.S.C. 906a (Supp. V 1987)

and Art. 120, UCMJ, 10 U.S.C.-920) could be accomplished by two-

thirds majority vote.

20 That judgment is certainly reasonable in a case like this one,

which was prosecuted in an overseas region (Korea) that is still re-

garded as a combat zone.

accurate verdict by a court-martial panel, the military

courts have required the prosecution independently to

prove the defendant’s guilt before a court of military

review. The standard of review applied by a court of

military review to determine whether the evidence is suffi-

cient to support the defendant’s conviction substantially

differs from, and is more generous to military defendants

than, the standard employed by civilian appellate courts.

A civilian appellate court does not inquire whether it

believes that the evidence is sufficient to prove the defend-

ant’s guilt beyond a reasonable doubt, but instead only

determines “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original). By con-

trast, a court of military review must independently review

the record and be convinced of the correctness of the

court-martial panel’s findings, including its ultimate find-

ing that the accused is guilty, before the findings may be

upheld. Art. 66(c), UCMJ, 10 U.S.C. 866(c).?!

In addition to the more exacting standards of appellate

review, the military defendant enjoys greater rights than

his civilian counterpart at the pretrial and post-trial stages

of the proceedings. No charge may be referred to a general

2! A court of military review may affirm “only such findings of guil-

ty * * * as it finds correct in law and fact and determines, on the basis

of the entire record, should be approved.” Art. 66(c), UCMJ, 10

U.S.C. 886(c). Although nothing in the text of the statute or its

legislative history suggests that the courts of military review must in-

dependently apply the “beyond a reasonable doubt” standard to the

record when reviewing the sufficiency of the evidence, see Jackson v.

Taylor, 353 U.S. 569, 577 & n.8 (1957), the military courts have read

that standard into the Act. E.g., United States v. Palenius, 2M.J. 86,

91 n.7 (C.M.A. 1977).

court-martial for trial without an impartial investigation

into the evidence supporting the charge. Art. 32, UCMJ,

10 U.S.C. 832. That procedure includes the right of the ac-

cused to be represented by counsel. A convening authority

may not refer a charge to a general court-martial for trial

without independently assessing the sufficiency of the

evidence. Art. 34(a), UCMJ, 10 U.S.C. 834(a) (Supp. V

1987). After trial, the convening authority receives a

report of the trial, and he may disapprove findings of guilt

or reduce the sentence as a matter of clemency or as a

prerogative of command. Art. 60, UCMJ, 10 U.S.C. 860

(Supp. V 1987). To assist the convening authority, the ac-

cused has the right to submit legal arguments and other

matters with respect to the findings and sentence. /bid. See

generally, United States v. Boland, 1 M.J. 241 (C.M.A.

1975); Moyer, Procedural Rights of the Military Accused:

Advantages Over a Civilian Defendant, 22 Me. L. Rev.

105 (1970). In light of these special protections against the

risk of inaccurate verdicts in the military justice system,

petitioner has not made the “extraordinarily weighty” case

necessary to overcome the longstanding congressional

judgment that the court-martial system satisfies due proc-

ess requirements. Middendorf v. Henry, 425 U.S. 25, 44

(1976).

There is also no merit to the specific objections that

petitioner asserts (Pet. 15, 24) to his trial. Petitioner’s con-

viction is not invalid because his court-martial panel was

not randomly selected from a pool containing all service-

men, including enlisted personnel of the same rank as peti-

tioner. De War v. Hunter, 170 F.2d 993, 997 (10th Cir.

1948), cert. denied, 337 U.S. 908 (1949) (court-martial

panel composed exclusively of officers to try an enlisted

man does not violate Sixth Amendment); United States v.

McClain, 22 M.J. at 128 (Sixth Amendment cross-section

requirement inapplicable to court-martial proceedings);

see Mendrano v. Smith, 797 F.2d 1544-1547. Moreover,

the fact that a military defendant receives only one-

peremptory challenge is of no significance, since a civilian

defendant has no constitutional right to peremptory

challenges at all, much less to any specific number of

them. Batson v. Kentucky, 476 U.S. 79, 91 (1986); id. at

108 (Marshall, J., concurring) (collecting cases); Stilson v.

United States, 250 U.S. 583, 586 (1919). Finally, there is

no merit to petitioner’s claim that the exclusion from the

court-martial panel of servicemembers who would not

consider imposing the death penalty violated due process.

This Court has twice recently rejected that precise claim.

Buchanan v. Kentucky, 107 S. Ct. 2906, 2913-2916 (1987);

Lockhart v. McCree, 476 U.S. 162 (1986).

4. Petitioner argues that the nonunanimous verdict of

a five-member court-martial is inherently unreliable. To

support that claim, petitioner relies on the studies cited in

the lead opinion in Ballew v. Georgia, 435 U.S. at 231-243

(opinion of Blackmun, J.), which relied heavily on em-

pirical studies of the group dynamics of civilian juries.

Much of the same reasoning formed the basis for the deci-

sion in Burch v. Louisiana, 441 U.S. at 138. There are no

comparable studies, however, that have addressed the

dynamics of courts-martial panels.?? In light of the func-

22 Petitioner argues (Pet. 26-32) that the conclusions drawn from

studies of civilian juries should be applied to court-martial panels and

that they rebut the conclusions in United States v. Guilford, 8 M.J.

598 (A.C.M.R. 1979), pet. for review denied, 8 M.J. 242 (C.M.A.

1980), on which the court of military review relied. Pet. App. 34a. In

support of his argument, petitioner relies on an undated letter from

Professor Saks that was not submitted at trial. /d. at 36a-45a. Pro-

fessor Saks admits that he knows of no studies involving court-martial

panels similar to those conducted with juries. /d. at 37a-38a. He ad-

mits that he is unfamiliar with the procedures used in courts-martial.

Ny TTA woe +:

tional and compositional differences between civilian

juries and courts-martial panels, the studies on which

Burch and Ballew relied are not immediately applicable to

the military setting. United States v. Guilford, 8 M.J. 598,

601-602 (A.C.M.R. 1979), pet. for review denied, 8 M.J.

242 (C.M.A. 1980).23 Given the special deference due to

Congress’s judgments in this area, the question whether

studies of the type relied upon in Ballew justify a change in

the UCM should be left to Congress.?4

5. Petitioner suggests (Pet. 9-10) that this Court’s re-

cent decision in Solorio v. United States, supra, requires a

different result. He argues that the procedures at issue

may have been permissible before Solorio, but are no

longer justified now that the Court has eliminated the

service-connection restriction on courts-martial. That

argument is-misdirected.

The Solorio decision did not abolish the service-

connection requirement; it merely reaffirmed the tradi-

tional principle that a crime is sufficiently service-

connected for purposes of court-martial jurisdiction if the

Id. at 38a. He is therefore unable to address any effects that may

result from the dissimilarities between courts-martial and jury trials.

23 In Burch, the Court concluded that juries must have at least six

members, in part “to provide a fair possibility that a cross section of

the community would be represented.” 441 U.S. at 135, citing

Williams v. Florida, 399 U.S. 78, 100 (1970). That goal is inapplicable

to courts-martial. The members of a civilian jury are selected at ran-

dom to represent a cross-section of the community. By contrast, the

members of the court-martial panel are deliberately chosen on the

basis of their qualifications to sit as pane! inembers. Art. 25, UCMJ,

10 U.S.C. 825 (1982 & Supp. V 1987).

*+ An excellent analysis of the separate nature of military society,

past and present, and the reasons why Congress is the branch of

government best suited to deal with military justice, is contained in

Hirschhorn, The Separate Community: Military Uniqueness and Serv-

icemen’s Constitutional Rights, 62 N.C. L. Rev. 177 (1984).

defendant is a servicemember at the time of the commis-

sion of the crime and at the time of trial. The effect of

Solorio is not to convert the military justice system into

one closely analogous to a civilian system, in which Fifth

and Sixth Amendment principles apply just as they do in

the civilian courts. Solorio simply restored court-martial

jurisdiction to a class of cases, not covered during the

18-year period following O’Callahan v. Parker, 395 U.S.

258 (1969), consisting of certain cases in which the crimes

were committed by servicemembers off the premises of

military bases. The rules regarding the number and voting

requirements of court-martial panels were adopted prior

to the Court’s decision in O’Callahan, not during the

period between O’Callahan and Solorio. Moreover, there

is no historical or logical connection between the_service-

connection restriction, as applied in O’Callahan, and the

court-martial rules at issue here. The decision in Solorio

therefore has no bearing on the validity of those rules in

the military justice system.

Re ee

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.