Petition for Writ of Certiorari — Delacruz v. United States

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MAR} 4 1987

JOSEPH F. SPANIOL, JR,

CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1986

RANDY J. DELACRUZ, Petitioner

Vv.

THE UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

WILLIAM C. HALSEY

355 West Vista Way

Suite A

Vista, CA 92083

(619) 941-5092

Counsel for Petitioner

QUESTIONS PRESENTED

1. Does a defendant charged with

common law murder have a constitutional

right to be tried before a jury comprised

of a representative cross-section of the

community?

2. Does a defendant charged with

common law murder have a constitutional

right to be acquitted if only five

members of a seven-member panel vote for

a guilty verdict?

TABLE OF CONTENTS

QUESTIONS PRESENTED ..... «

OPINIONS BELOW ....++-«. -

Po 6 by os a a ee See er aes er

STATUTES INVOLVED ....+. .« -

STATEMENT OF THE CASE .... .

REASONS FOR GRANTING THE WRIT .

In carrying out its con-

stitutional mandate to

regulate the armed

forces, Congress must

comply with the restric-

tive constitutional re-

quirements of the Bill

Of RMignte . + 6 « as «

The provisions of Arti-

cle 25, Uniform Code of

Military Justice, [10

U.S.C. Section 825],

insofar as it permits

the exclusion of a

IIl.

IV.

Class of persons from

the venire, are in con-

flict with petitioner's

right to jury trial

guaranteed by the Sixth

Amendment, and with the

decisions of this Court

The provisions of Arti-

cle 52, Uniform Code of

Military Justice, [10

U.S.C. Section 852],

insofar as it allows

for a finding of guilty

of serious offenses by

a mere two-thirds con-

currence, are in con-

flict with petitioner's

right to jury trial

guaranteed by the Sixth

Amendment, and with the

decisions of this Court

The failure of the

Court of Military

Appeals to address the

constitutionality of

the statutes concerned

leaves important and

unresolved issues ....- - 31

CONCLUSION ..+++++e+s2 2 « 32

APPENDIX ..<«e-sre ce ee © © @ 8 33

Appellant's trial motion for . . 33

selection of new jury comprised

of cross-section of community

Appellant's trial motion ...- .- 37

regarding jury size and

unanimous verdict

Decision of United States... .- 55

Court of Military Appeals

Decision of United States... .- 56

Army Court of Military Review

Cases:

TABLE OF AUTHORITIES

Apodoca v. Oregon,

406 U.S.

Burch v.

404 (1972)

Louisiana,

441 U.S.

Duren v.

130 (1979)

Missouri,

439 U.S.

357 (1979)

Johnson v. Louisiana

406 U.S. 152 (1972) . .

Toth v. Quarles,

350 U.S. ll, 21 (1955).

Williams v. Florida,

399 U.S. 78 (1970) ...

Statutes:

10 U.S.C. Section 523 ..

10 U.S.C. Section 801 et.

[Uniform Code of Military

I Se oe Aa

10 U.S.C. Section 816

[Article 19, Uniform Code

Military Justice] ....

10 U.S.C. Section 825

[Article 25, Uniform Code

Military Justice) ....

10 U.S.C. Section 852

[Article 52, Uniform Code

Military Justice] ....

26, 28

23, 24

10, 16, 24

- 3, 13, 18, 28

10 U.S.C. Sections 918, 928,

and 886 (1982) [Articles 118,

128 and 86, Uniform Code of

Military Justice,

respectively) ...+.+s+#+«s.

28 U.S.C. Section 1259...

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1986

RANDY J. DELACRUZ, Petitioner

Vv.

THE UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner Randy J. Delacruz

respectfully prays that a writ of

certiorari issue to review the judgment

and opinion of the United States Court of

Military Appeals, entered in the above-

entitled proceeding on January 13, 1987.

OPINIONS BELOW

The decision of the United States

Court of Military Appeals is set forth

in the appendix at page 55. The relevant

text follows:

On consideration of the peti-

tion for grant of review of the

decision of the United States

Army Court of Military Review, it

appears that appellant's court-

martial was properly constituted

and its verdict rendered under

the Uniform Code of Military

Justice, 10 U.S.C. Section 801

et. seq. Accordingly, it is by

the Court this 13th day of

January, 1987

ORDERED:

That said petition is granted;

and

That the decision of the

United States Army Court of

Military Review is affirmed.

The decision of the United States

Army Court of Military Review is set

forth in the appendix at page 56. The

relevant text follows:

On consideration of the entire

record, including consideration of

the issues personally specified by

the appellant, we hold the find-

ings of guilty and sentence as ap-

proved by the convening authority

correct in law and fact. Accord-

ingly, those findings of guilty

and the sentence are AFFIRMED.

JURISDICTION

Petitioner, an active duty member of

the United States Army and subject to the

provisions of 10 U.S.C. Sections 801 et.

seg. (Uniform Code of Military Justice),

was tried by General Court-Martial in

Bremerhaven, Federal Republic of Germany,

for violations of Articles 118 (murder),

128 (assault), and 86 (unauthorized ab-

sence), respectively, of the Uniform Code

of Military Justice, [10 U.S.C. Sections

918, 928, and 886 (1982), respectively).

Following petitioner's conviction and

sentence to life imprisonment, he peti-

tioned the United States Army Court of

Military Review and the United States

Court of Military Appeals for review of

the issues set forth herein. Both peti-

tions were granted, but the appeals were

denied.

The jurisdiction of this Court to

review the decision of the United States

Court of Military Appeals is invoked

under 28 U.S.C. Section 1259.

STATUTES INVOLVED

10 U.S.C. Section 825 [Article 25,

Uniform Code of Military Justice].

Who may serve on courts-martial

(a) Any commissioned officer on

active duty is eligible to serve on all

courts-martial for the trial of any per-

son who may lawfully be brought before

such courts for trial.

(b) Any warrant officer on active

duty is eligible to serve on general and

special courts-martial for the trial of

any person, other than a commissioned

officer, who may lawfully be brought

before such courts for trial.

armed force on active duty who is not a

member of the same unit as the accused is

eligible to serve on general and special

courts-martial for the trial of any en-

listed member of an armed force who may

lawfully be brought before such courts

for trial, but he shall serve as a member

of a court only if, before the conclusion

of a session called by the military judge

under section 839(a) of this title (arti-

cle 39(a)) prior to trial or, in the ab-

senté of such a session, before the court

is assembled for the trial of the ac-

cused, the accused personally has reques-

ted in writing that enlisted members

serve on it. After such a request, the

accused may not be tried by a general or

special court-martial the membership of

which does not include enlisted members

in a number comprising at least one-third

of the total membership of the court,

unless eligible enlisted members cannot

be obtained on account of physical condi-

tions or military exigencies. If such

members cannot be obtained, the court may

be assembled and the trial held without

them, but the convening authority shall

make a detailed written statement, to be

appended to the record, stating why they

could not be obtained.

(2) In this article, the word

"unit" means any regularly organized body

as defined by the Secretary concerned,

but in no case may it be a body larger

than a company, squadron, ship's crew, or

body corresponding to one of them.

(d) (1) When it can be avoided, no

member of an armed force may be tried by

a court-martial any member of which is

junior to him in rank or grade.

(2) When convening a court-

martial, the convening authority shall

detail as members thereof 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 tempera-

ment. No member of an armed force is

eligible to serve as a member of a

general or special court-martial when he

is the accuser or a witness for the

prosecution or has acted as investigating

officer or as counsel in the same case.

(e) Before a court-martial is

assembled for the trial of a case, the

convening authority may excuse a member

of the court from participating in the

case. Under such regulations as the

Secretary concerned may prescribe, the

convening authority may delegate his

authority under this subsection to his

staff judge advocate or legal officer or

to any other principal assistant.

10 U.S.C. Section 852 [Article 52,

Uniform Code of Military Justice]:

Number of votes required

(a) (1) No person may be convicted

of an offense for which the death penalty

is made mandatory by law, except by the

concurrence of all the members of the

court-martial present at the time the

vote is taken.

(2) No person may be convicted

of any other offense, except as provided

in section 845(b) of this title (article |

45(b)) or by the concurrence of two-

thirds of the members present at the time

the vote is taken.

(b) (1) No person may be sentenced

to suffer death, except by the concur-

rence of all the members of the court-

martial present at the time the vote is

taken and for an offense in this chapter

expressly made punishable by death.

(2) No person may be sentenced

to life imprisonment or to confinement

for more than ten years, except by the

concurrence of three-fourths of the

members present at the time the vote is

taken.

(3) All other sentences shall

be determined by the concurrence of two-

thirds of the members present at the time

the vote is taken.

decided by the members of a general or

special court-martial shall be determined

by a majority vote, but a determination

to reconsider a finding of guilty or to

reconsider a sentence, with a view toward

Gecreasing it, may be made by any lesser

vote which indicates that the reconsider-

ation is not opposed by the number of

votes required for that finding or sen-

tence. A tie vote on a challenge dis-

qualifies the member challenged. A tie

vote on a motion for a finding of not

guilty or on a motion relating to the

question of the accused's sanity is a

determination against the accused. A tie

vote on any other question is a determi-

nation in favor of the accused.

STATEMENT OF THE CASE

Following a preliminary investigation

into the charges against petitioner pur-

Suant to appropriate statutes and regula-

tions, the convening authority ordered

petitioner to stand trial by general

court-martial. The convening authority

assigned members (jurors) in accordance

with 10 U.S.C. Section 825 [Article 25,

Uniform Code of Military Justice]. The

primary group of members consisted of two

lieutenant colonels, two majors, and

three captains. A secondary group of

members was listed in the event petition-

er requested enlisted members to be

assigned to his court-martial pursuant to

10 U.S.C. Section 825 [Article 25,

Uniform Code of Military Justice]. The

secondary group consisted of the same two

lieutenant colonels, the same two majors, ~

and replaced the three captains with two

command sergeants major and one first

sergeant. The text of the convening

order is reprinted in the appendix

hereto, pp. 53-54, infra.

Prior to assembly of the court-

martial, petitioner moved the trial court

to order a selection of jury members who

would more fairly represent a cross-

section of his peers than either of the

panel of jury members who had been

appointed by the convening authority.?

1 according to the World Almanac, the

United States Army's total strength on

active duty in 1985 was 776,244 of which

94,103 were commissioned officers and

666,567 were enlisted personnel.

Title 10 U.S.C. Section 523 limits

the number of majors, lieutenant colo-

nels, and colonels who may be serving on

active duty. By extrapolation from the

table provided, the maximum number of

lieutenant colonels who would have been

on active duty in 1985 is 10,591. There-

fore, lieutenant colonels represented

approximately 1.4% of the active duty

strength. By extrapolation from the

table provided, the maximum number of

majors who would have been on active duty

in 1985 is 16,296. Therefore, majors

represented approximately 2.1% of the

active duty strength. Together, the

The text of the motion is reprinted in

the appendix hereto, pp. 33-36, infra.

In addition, petitioner moved to set

aside the provisions of Article 52(b)(2),

Uniform Code of Military Justice [10

U.S.C. 852(b)(2)], insofar as it requires

only a two-thirds concurrence of the jury

to reach a finding of guilty, and order

lieutenant colonels and majors repre-

sented a total of approximately 3.5% of

the active duty strength. The number of

captains is not regulated by law, except

for the total authorized officer

strength. At the extreme, if captains

represented the remaining officers on

active duty in 1985, they would have

represented approximately 8.6% of the

active duty strength. An ali-officer

jury would, at.the most, represent

approximately 12.1% of the active duty

strength of the United States Army.

Petitioner has not been able to

determine the number of persons serving

in the various enlisted ranks on active

duty in 1985; however, it is noted that

command sergeants major and first

sergeants are the two highest enlisted

ranks in the United States Army. It is

suggested that command sergeants major

and first sergeants comprise no greater

percentage of the total strength than do

lieutenant colonels and majors.

the jury, which should consist of twelve

members or in no case less than six mem-

bers, to vote unanimously before retur-

ning a finding of guilty to any offense.

The text of the motion is reprinted in

the appendix hereto, pp. 37-52, infra.

The United States did not submit

written briefs regarding the motions.

The trial judge denied both motions

as follows:

Well, I've evaluated the

written brief's submitted by the

defense and the authorities that

were submitted to the court by

both parties. And, I want to

state that--it's not my function

to decide what I, personally,

feel the law should become,

sometime in the future, or what

it might become, as the result of

any, possible, legislative or

appellate action. It's my duty,

as military judge, to apply the

law, as it exists, today. And,

since the great weight of current,

legal authority is in opposition

to the defense position, on each

of these three motions, I am,

accordingly, compelled to deny

--these motions I have no

Giscretion in this area. And, so,

the defense motion--all three of

those motions for appropriate

relief--are denied.

Following the trial judge's ruling,

petitioner elected trial by military

judge, alone. He was convicted and

sentenced to life imprisonment, among

other punishments.

Petitioner appealed his conviction to

the United States Army Court of Military

Review, assigning as errors the trial

judge's rulings on his challenge to

constitutionality of Articles 25 and 52

of the Uniform Code of Military Justice.

The United States Army Court of Military

Review affirmed the conviction and sen-

tence without addressing the substance of

petitioner's assignment of errors. The

text of the Court's decision is set forth

under the section entitled, "Opinions

Below,” p. 8, supra.

Petitioner petitioned the United

States Court of Military Appeals for

review of his conviction and sentence.

Once again, the bases of the petition

were the trial judge's rulings on his

challenge to constitutionality of

Articles 25 and 52 of the Uniform Code of

Military Justice. The United States

Court of Military Appeals affirmed the

decision of the United States Army Court

of Military Review without addressing the

substance of either issue. The text of

the Court's decision is set forth under

the section entitled, “Opinions Below,”

pp. 7-8, supra.

REASONS FOR GRANTING THE WRIT

In carrying out its constitutional

mandate to regulate the armed forces,

Congress must comply with the

restrictive requirements of the Bill

of Rights.

Article I, Section 8, of the United

States Constitution grants Congress te

power "To make Rules for the Government

and Regulation of the land and naval

Forces" and "To make all Laws which shall

be necessary and proper for carrying into

Execution of the foregoing Powers." The

Bill of Rights, including the Fifth and

Sixth Amendments, proposed only six

months following adoption of the Original

Seven Articles, were intended as “further

declaratory and restrictive clauses” "in

order to prevent abuse” of the Constitu-

tion's power. Although the Fifth Amend-

ment specifically excludes “cases arising

in the land or naval forces, or in the

militia, when in actual service in time

of war or public danger" from the requi-

rement of a presentment or indictment, no

other amendment, or even the remaining

Clauses of the Fifth Amendment, address

any limitation of the rights of the land

Eee

or naval forces, or of the militia.

Therefore, unless a strong case can be

made for the abridgment of constitution-

ally guaranteed rights by reason of the

Necessary and Proper Clause, Congress

does not have the power to enact any law

which would abridge those rights. This

is so whether or not the person subject

to such law is a civilian or a member of

the land or naval forces.

In determining the lack of jurisdic-

tion of the court-martial over an ex-ser-

vice=sn for an offense committed while on

active duty, in the case of Toth v.

Quarles, 350 U.S. 11 (1955), the Supreme

Court held that “the constitutional grant

of power to Congress to regulate the

armed forces" was not entitled to a broad

construction. "That provision itself

does not empower Congress to deprive

people of trials under Bill of Rights

safeguards, and we are not willing to

hold that power to circumvent those

safeguards should be inferred through the

Necessary and Proper Clause." Toth,

supra, at page 21. The Court refused to

extend court-martial jurisdiction to

those cases because "[i]t is impossible

to think that the discipline of the Army

is going to be disrupted, its morale

impaired, or its orderly processes

disturbed, by giving ex-servicemen the

benefit of a civilian court trial when

they are actually civilians.

II.

The provisions of Article 25, Uniform

Code of Military Justice, [10 U.S.C.

Section 825], insofar as it permits

the exclusion of a class of persons

from the venire, are in conflict with

petitioner's right to jury trial

guaranteed by the Sixth Amendment,

and with the decisions of this Court.

Article 25 specifically excluded en-

listed personnel serving in petitioner's

unit, but not officer personnel serving

in petitioner's unit, from serving as

members of his court-martial. Addition-

ally, Article 25 specifically excluded

all privates E-1 from serving as members

of petitioner's court-martial. It is

submitted that no rational basis exists

for disqualifying enlisted personnel from

an accused's unit for service on his

court-martial, while allowing officers

from his unit to serve. It is neither

necessary nor proper to exclude that

Class of identifiable persons from the

jury venire.

Absent a specific request by an

accused, Article 25 requires the con-

vening authority to exclude all enlisted

personnel, approximately 88% of the

eligible venire, from an accused's

court-martial. Thus, the etatutory

scheme makes compliance with the

fair-cross-section requirement estab-

lished by this Court in Duren v.

Missouri, 439 U.S. 357 (1979), impos-

sible. Once again, it is neither

necessary nor proper for Congress to

exclude enlisted personnel from service

on courts-martial without a specific

request from an accused. Furthermore,

even if the accused requests enlisted

personnel to be included, the statute

permits the convening authority to limit

the number of such class of persons to

one-third of the total membership, when

that class actually comprises approxi-

mately 88% of the venire. If enlisted

personnel are eligible to serve on

courts-martial, there is no rational

reason why their participation should be

limited in numbers radically less than

their proportion to the community as a

whole.

The convening order for petitioner's

court-martial was prepared in accordance

with Article 25. In fact, a dual purpose

convening order was prepared to antici-

pate the eventuality that petitioner

would request that enlisted members be

appointed to his court-martial. Since

the convening authority was required to

personally select the members, which

consisted of field grade officers (lieu-

tenant colonels and majors), company

grade officers (captains but no first or

second lieutenants), senior staff non-

commissioned officers (command sergeants

major and a first sergeant), he specific-

ally excluded general officers, senior

officers, junior staff non-commissioned

officers, non-commissioned officers, and

non-rated enlisted personnel.

It was neither necessary nor proper

for Congress to include within the

Uniform Code of Military Justice a scheme

- 27

for the systematic exclusion of a

sizable, identifiable class of persons

from service on military courts-martial.

It is suggested that Congress could have

met its constitutional mandate to regu-

late the armed forces without infringing

upon the individual rights of servicemen

as regards the Sixth Amendment right to

jury trial. Its failure to do so was an

unconstitutional infringement on

petitioner's right to trial by jury as

defined in Duren v. Missouri, supra.

IItl.

The provisions of Article 52, Uniform

Code of Military Justice, [10 U.S.C.

Section 852], insofar as it allows

for a finding of guilty of serious

offenses by a mere two-thirds concur-

rence, are in conflict with petition-

er's right to jury trial guaranteed

by the Sixth Amendment, and with the

decisions of this Court.

Article 52 permits a finding of

guilty for non-capital offenses by the

concurrence of only two-thirds of court-

martial panel. Petitioner's court-

martial convening order provided for

seven members; a two-thirds concurrence

would have required five votes for

guilty. Petitioner recognizes that a

unanimous verdict in non-capital cases

involving twelve-member juries is not

constitutionally required. Apodoca v.

Oregon, 406 U.S. 404 (1972) [9 of 12 suf-

ficient] and Johnson v. Louisiana 406

U.S. 152 (1972) [10 of 12 sufficient].

This Court has addressed the issue of

less-than-unanimous verdicts in non-

capital cases involving a six-member jury

in the case of Burch v. Louisiana,

441 U.S. 130 (1979). In that case, the

Court held at page 139:

_ "More importantly, we think that

when a State has reduced the size

of its juries to the minimum

number of jurors permitted by the

Constitution, the additional auth-

orization of nonunanimous verdicts

by such juries sufficiently

threatens the constitutional

principles that led to the estab-

lishment of the size thres hold

that any countervailing intgrest

of the State should yield."

It follows that if five of six is

constitutionally insufficient, five of

seven must also fail constitutional

muster.

Petitioner can conceive of no reason

to justify the denial of this basic con-

stitutional right to members of the armed

forces, and if the statutory denial of

such a right is not necessary and proper

2a1though not an issue in this case,

it is noted that Article 19, Uniform Code

of Military Justice [10 U.S.C. Section

816], prescribes the minimum number of

members for a general court-martial as

five, one short of the constitutional

minimum delineated by this Court in the

case of Williams v. Florida, 399 U.S. 78

(1970).

to the execution of the constitutional

mandate, it must be held beyond the power

of Congress to deny.

IV.

The failure of the Court of Military

Appeals to address the constitution-

ality of the statutes concerned

leaves important and unresolved

issues.

In affirming petitioner's conviction

and sentence, the Court of Military

Appeals simply stated that "the court-

martial was properly constituted and its

verdict rendered under the Uniform Code

of Military Justice, 10 U.S.C. Section

801 et. seq." Petitioner does not con-

tend that his conviction was not in

accordance with the Uniform Code of

Military Justice; he challenges the

constitutionality of certain of its

provisions. The Court of Military

Appeals was presented with the issues,

but did not address them. If the Court

of Military Appeals refuses to address

those issues, they will remain uncertain

and unresolved unless this Court rules

upon them.

CONCLUSION

For these various reasons, this

petition for certiorari should be

granted.

Respectfully submitted,

‘YP LhanC Hb—

WILLIAM C. HALSEY

355 West Vista Way

Suite A

Vista, CA 92083

(619) 941-5092

Counsel for Petitioner

APPENDIX

UNITED STATES

DELACRUZ, RANDY J.

553-08-1620

US ARMY, PV2

C Company, 4th

Battalion, 4lst

Infantry Regiment

2d Armored Division

(Forward) APO New

York 09355

MOTION FOR NEW

SELECTION OF

MEMBERS

i ee ee i

The defense moves for a new selec-

tion of court members that more fairly

represents a cross section of his peers.

Article 25 of the UCMJ prescribes

characteristics for selection for duty as

a court member, including ages, educa-

tion, training, experience, length of

service, and judicial temperament. It

also mandates that the panel members

shall be superior in rank to the accused.

These limitations violate the constitu-

tional guarantees to trial by jury, due

process of law, and equal protection of

the law. Where an accused is on trial

for a charge which, if convicted, man-

dates a life sentence, he should be able

to appear before a court which genuinely

represents the community in which the

alleged offense was committed.

O'Callahan v. Parker, 395 U.S. 258

(1969), Toth v. Quarles, 350 U.S. 11

(1955), and Glasser v. United States, 315

U.S. 60 (1942).

It is recognized that the issue is

not new; there is authority which indi-

cates that the right to jury trial is not

enjoyed by servicemembers. United States

v. Kemp, 46 CMR 152 (CMA 1973), United

States v. Delp, 11 M.J. 836 (ACMR 1980),

pet denied 12 M.J. 320 (CMA 1981), and

United States v. Seivers 9 M.J. 612.

Nevertheless, the defense respectfully

questions the continuing validity of this

authority; it rests only on historical

conditions which no longer obtain and on

alleged distinctions between the military

and civilian communities. These factors

are discussed on page four of the five

page brief submitted in connection with

Article 52 of the UCMJ, and are incorpor-

ated here by reference.

The continued exemption of the

military from the jury trial requirement

of the Sixth Amendment violates the

accused's right to the equal protection

of the law. In peacetime, in a garrison

environment, PV2 Delacruz is charged with

a common law felony, murder, yet he is

denied the protection of a jury trial

which a civilian, facing the same

charges, would enjoy. To treat person

similarly situated differently with

respect to fundamental constitutional

rights, the Government must demonstrate a

compelling interest in justification.

Again, general assertions that "the

military is different” are inadequate;

the Government must adduce some concrete,

————————

compelling reason to support its denial

of one of the accused's fundamental

rights in peacetime.

/s/

JOSEPH C. SWETNAM

CPT, JAGC

Trial Defense Counsel

UNITED STATES

Vv.

DELACRUZ, RANDY J.

553-08-1620

US ARMY, PV2

C Company, 4th

Battalion, 4lst

Infantry Regiment

2d Armored Division

(Forward) APO New

York 09355

MOTION FOR

APPROPRIATE RELIEF

The defense respectfully requests

that the court set aside the provisions

of Article 52(a)(2), UCMJ, insofar as it

requires only a two-thirds (2/3) concur-

rence of the panel members to reach a

finding of guilty, and order the panel,

which should consist of twelve members or

in no case less than six members, to vote

unanimously before a finding of guilty to

any offense.

Further, the defense respectfully

requests that the court set aside the

provisions of Article 52(b)(2) and (3)

insofar as these provisions require only

a three-fourths (3/4) concurrence to

sentence an accused to confinement at

hard labor for a period of ten years or

more, and only a two-thirds (2/3) concur-

rence to sentence an accused to any

lesser sentence, and order the panel to

concur unanimously before imposing any

sentence.

The basis for this motion is that

permitting a less than unanimous verdict

from a panel in peacetime and/or for non

military offenses violates the service-

member's Fifth Amendment due process and

equal protection rights, and further

deprives the servicemember of the Sixth

Amendment guarantee to a jury trial.

ARGUMENT

A. THE MILITARY JUDGE MAY PROPERLY RULE

UPON THE CONSTITUTIONALITY OF THE

PROVISIONS OF THE UCMJ.

Determining the constitutionality of

acts of Congress as applied to the

military justice system is a responsibil-

ity imposed on military tribunals at all

levels, trial or appellate. U.S. v.

Matthews, 16 M.J. 354 (CMA 1983). It is

submitted that Congress did not intend to

deprive military courts of these respon-

sibilities, and that public policy is

consistent with the exercise of these

responsibilities. Military trial judges

preside over the conduct of criminal

proceedings in which punishment poten-

tials include significant periods of

confinement, the lifetime ramifications

of a federal conviction, and the inerad-

icable stigma of a punitive discharge.

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

U.S. v. Matthews, supra. As Article

I judges, military trial judges and

asistery appellate judges at Courts of

Review level do lack the Article III

protections with respect to salary and

tenure. Although this was deemed

essential in Northern Pipeline

NR Ee Ee NN en Ee ee

Construction Co. v. Marathon Pipe Line

Co., U.S. , 202 $.Ct. 2858, 2867

n. 14, 73 L.Ed. 2d 598 (1982), a case

which concerned the power of other

legislative courts, i.e., bankruptcy

courts, to rule on the constitutionali ‘y

of relevant acts of Congress, military

tribunals nonetheless possess, by

necessary implication and decisional law,

the inherent power to weigh the constitu-

tionality of the various provisions of

the UCMJ. This inherent power flows from

military courts' role of guarding the

constitutional interests and rights of

servicemembers. Burns v. Wilson, 346

U.S. 137 (1953), U.S. v. Ezell, 6 M.J.

307 (CMA 1979), U.S. v. Frischholz, 36

CMR 306 (CMA 1966).

Differing analysis of constitutional

questions in courts-martial may not be

justified simply because the military

court is an Article I court. Article III

courts can and will review decisions of

Article I courts, utilizing Article III

standards. While the traditional concern

has been the issue of jurisdiction, the

review of the court-martial action can

also concern issues of fundamental

constitutional rights. Schlesinger v.

Councilman, 420 U.S. 738 (1975). When

Article III courts do intervene, they use

Article III standards, giving due regard

to the special circumstances of the

military environment. If the Article III

courts may use constitutional standards

to review court-martial actions, then

Article I courts must apply the same

constitutional standards. As a practical

matter, Article I courts should apply

Article III standards to forestall

unnecessary and judicially wasteful

collateral attacks on military convic-

tions in federal court. This reasoning

and policy concern was found significant

by the Court of Military Appeals in U.S.

v. Matthews, supra.

B. "THE PROVISIONS OF ARTICLE 52(a)(2)

VIOLATE THE DUE PROCESS AND EQUAL

PROTECTION CLAUSES OF THE FIFTH

AMENDMENT, AND THE RIGHT TO JURY TRIAL

UNDER THE SIXTH AMENDMENT AS SUCH HAS

BEEN PRESERVED IN THE MILITARY.

In 1978, the Supreme Court decided

that a fact-finder consisting of five

persons, even though a unanimous verdict

was returned, could not survive constitu-

tional scrutiny. Ballew. V. Georgia, 435

U.S. 223 (1978). In Burch v. Louisiana,

the Court held that a nonunanimous guilty

verdict, five of six members concurring,

impugned the accused's Sixth Amendment

right to jury trial. 441 U.S. 130

(1979). Both Ballew and Burch relied on

in-depth studies which addressed the

effect of nonunanimous verdicts and the

decreasing membership on the fact-finder

body. This research had not been

performed in 1949, when Congress enacted

Article 52 of the UCMJ. The concerns

expressed in these cases are especiaily

critical to military servicemembers,

given the fact that many panel trials

consist of seven members or less, which

need only a two-thirds concurrence for a

finding of guilty. Military trials

involve the two key concerns of Burch and

Ballew--(1) small membership on the jury

and (2) the less than unanimous verdict.

Each of these concerns standing aJj»one

endangers the servicemember's fundamental

rights; both factors are present in the

military setting. The requirement for a

two-thirds concurrence is deceptive,

especially given the low panel membership

on military tribunals. The two-thirds

concurrence can create a situation in

which the defense has to convince up to

66% of the panel members of the accused's

innocence. Provided is a table which

Gisplays this fact.

Number Number Min Number Min % of

of Needed of Members Members

Members for 2/3 for Finding for Find-

on the Concur- of NG ing of NG

Panel rence

a y 2 66%

4 3 2 50%

5 4 2 40%

6 4 3 50%

7 > 3 42%

8 6 3 38%

9 6 4 44%

10 7 4 40%

11 8 4 36%

as 8 > 41%

Such a burden on the defense consti-

tutes neither the reasonable doubt that

should be required of the government to

convict at federal criminal proceedings

for serious offenses, nor does it accord

with fundamental fairness and due

process.

The size of the fact-finder and the

unanimity of its verdict in a prosecution

for serious offenses involve issues of

fundamental constitutional rights and due

process of law. See, Duncan v. Louisiana,

391 U.S. 145 (1968). It is noted that

the concurrence of 10 out of 12 jurors

was found acceptable in Apodoca v.

Oregon, 406 U.S. 404 (1972), and that a

nine of twelve concurrence was approved

in Johnson v. Louisiana, 406 U.S.

356 (1972). However, both cases involved

12 member juries, and were decided prior

to the empirical studies which contribu-

ted to the later decisions in Ballew and

Burch. Additionally, a state criminal

proceeding requiring unanimous concur-

rence by a six member jury was upheld in

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

The jury trial must consist of a

membership sufficient to promote group

deliberation and to insulate members from

outside intimidation. This latter factor

is especially pertinent in the military

setting, given the possibility of unlaw-

ful command influence. Ballew, supra,

U.S. v. Corcoran, 17 M.J. 137 (CMA,

1984). U.S. v. Karlson, 16 M.J. 469

(CMA, 1983). See also U.S. v. Porter, 17

M.J. 377 (CMA, 1984), Chief Judge Everett

concurring. A major rationale for a

civilian jury to consist of at least six

persons, with a unanimous verdict if the

court is that small, is to insure that

the membership is drawn from and repre-

sents a cross-section of society. How-

ever, that premise does not necessarily

obtain in the military, since court

members are selected by superior

commanders as part of the referral

process for court-martial duty, and those

who are directed to serve as court

members are drawn from a narrow pool of

persons, who, on the whole, share similar

educational and professional backgrounds,

similar opinions and values, and common

and mutual career aspirations. Given

these factors, the dynamics of civilian

jury trials, absent any empirical data to

the contrary, should be presumed to apply

equally to military trials. Therefore,

six members on a military court is not

enough to reasonably insure that the

accused is tried by a representative

cross section of his society, and it is

requested that the panel consist of

twelve members. Because the members will

inevitably, as noted above, share many

common values, the concerns regarding

nonunanimous voting noted by the Supreme

Court cannot be adequately guarded

against unless the twelve members of the

panel vote unanimously upon any

conviction and sentence.

It is recognized that there is

authority stating that the Sixth

Amendment does not apply to the military,

that the accused is not entitled to a six

member court, and that the military jury

is not required to convict upon a unan-

imous finding. It is submitted that this

authority should be reconsidered, since

it rests on historical conditions which

no longer exist, as well as a perceived

distinction between civilian and military

societies which, it is submitted, does

not exist. The military, at the time of

the framing of the constitution, had

jurisdiction over only military offenses

during peacetime. Courts-martial were

therefore no considered "convictions."

O'Callahan v. Parker, 395 U.S., at 271.

The jurisdiction of military courts has

greatly expanded since that time, and

courts-martial now adjudge federal

convictions for common law crimes. That

the court-martial is a federal court has

been impliedly recognized by military

appellate courts. United States v.

Dorsey, 16 M.J. 1 (CMA 1983) (compulsory

process), United States v. Knight, 15

M.J. 202 (CMA 1983) (effective assistance

of counsel on appeal), United States v.

Rowsey 14 M.J. 151 (CMA 1982) (speedy

trial), United States v. Rivas, 3 M.J.

282 (CMA 1982) (effective assistance of

counsel at trial), United States Vv.

Grunden, 2 M.J. 116 (CMA 1977) (public

trial). Because military courts now try

the same crimes that civilian courts try,

the protections provided to the accused

should include those rights enjoyed by

civilians at the time of the framing of

the Sixth Amendment, and the rights

enjoyed in civilian courts today.

In contrast to the language found in

the Fifth Amendment, nothing in the Sixth

Amendment expressly exempts the military

from its guarantees. The exclusion of

the servicemember from the jury trial

requirement is thus based on needs and

circumstances of the military, i.e.,

military necessity. See, U.S. v. Tempia,

37 CMR 249 (CMA 1967), U.S. v. Guilford,

8 M.J. 598 (ACMR 1979), pet. denied at 8

M.J. 242 (CMA 1980), U.S. v. Yoakum, 8

M.J. 763 (ACMR 1980), U.S. v. Seivers, 9

M.J. 612 (ACMR 1980), U.S. v. Montgomery,

5 M.J. 832 (ACMR 1978). A general state-

ment that the military is "different" is

not sufficient to justify denial of basic

constitutional rights to an accused.

See, Matthews, supra. The provisions of

Article 52 permit variations in panel

size from jurisdiction to jurisdiction

constitute a denial of equal protection

in itself, especially given the possibil-

ity that the smaller panels may deliber-

ate less effectively.

There exists no rational basis to

subject servicemembers prosecuted in

courts-martial to a lesser standard of

Gue process that civilians with regard to

the size and/or the uniformity of proce-

dures. The present practice in federal

civilian crimi~al cases calls for a

unanimous verdict from the fact-finder

body consisting of twelve members. Rule

23 and 31(a), Fed.R.Cr.P. The reduction

of the jury membership can only be

accomplished with the consent of the

accused. Rule 23, Fed.R.Cr.P. The

Constitution grants Congress the power to

raise and regulate armies. Art. I, Sec

8, Cl. 14, U.S. Constitution. But the

express grant of a general power must be

exercised in harmony with the express -

guarantees of the Bill of Rights; thus

the exercise of the war power is also

subject to constitutional limitations.

Hamilton v. Kentucky Distilleries, 252

“U.S. 146 (1919).

CONCLUSION

The defense prays that the court-

martial consist of 12 members, who must

vote unanimously to convict or adjudge

any sentence.

/s/

JOSEPH C. SWETNAM

CPT, JAGC

Trial Defense Counsel

UNITED STATES ARMY

HEADQUARTERS, 2D ARMORED DIVISION

( FORWARD )

APO New York 09355

COURT-MARTIAL CONVENING 10 JAN 1984

ORDER NUMBER 4

Pursuant to authority contained in

General Order Number 3, Department of the

Army, dated 19 January 1981, a general

court-martial is hereby convened. It may

proceed at this headquarters to try

Private E2 Randy J. Delacruz, 553-08-

1620, US Army, C Company, 4th Battalion,

41st Infantry Regiment, 2d Armored

Division (Forward), APO New York 09355.

The court will be constituted as follows:

MEMBERS

LTC RICHARD D. BENJAMIN, 559-56-2127

LTC BILLY K. SOLOMON, 465-74-4119

MAJ RAYMOND J. LEISNER JR., 274-46-3267

MAJ HOWARD S. PERRY III, 460-68-6946

CPT SAMUEL L. BOULWARE, 250-90-6766

CPT FORREST B. LONG, 244-72-7931

CPT RONALD A. PARKER, 342-42-0808

In the event the accused submits a

request pursuant to Article 25(c), UCMJ,

that enlisted members serve on the

court-martial, the three detailed junior

officer members named above are excused,

and the members will be as follows:

LTC RICHARD D. BENJAMIN, 559-56-2127

LTC BILLY K. SOLOMON, 465-74-4119

MAJ RAYMOND J. LEISNER JR., 274-46-3267

MAJ HOWARD S. PERRY III, 460-68-6946

CSM DIETER POST, 157-30-6639

CSM JOHN F. VELD, 010-30-4550

1SG ALLEN E. LUCIOUS, 232-56-8009

BY COMMAND OF BRIGADIER GENERAL TAIT

/s/

MIGUEL A. MONTANEZ, SR.

CW2, USA

Legal Administrator

DISTRIBUTION:

l-Ea Indiv Conc

1-CDR, 2nd AD (FWD)

1-Record of Trial

1-Rec/Ref Set

UNITED STATES COURT OF MILITARY APPEALS

United States, ) USCMA Dkt. No. 55198/AR

Appellee ) CMR Dkt. No. 447095

)

Randy J.

DELACRUZ (553-

08-1620),

Appellant

eee eee ee”

On consideration of the peti-

tion for grant of review of the

decision of the United States

Army Court of Military Review, it

appears that appellant's court-

martial was properly constituted

and its verdict rendered under

the Uniform Code of Military

Justice, 10 U.S.C. Section 801

et. seq. Accordingly, it is by

the Court this 13th day of

January, 1987

ORDERED:

That said petition is granted;

and

That the decision of the

United States Army Court of

Military Review is affirmed.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

cc:

Judge Advocate General of the Army

Appellate Defense Counsel (ST. JAMES)

Appellate Government Counsel (O'HARE)

= be

UNITED STATES ARMY

COURT OF MILITARY REVIEW

Before

O'ROARK, WATKING and LYMBURNER

Appellate Military Judges

United States,

Appellee CM 447095

2d Armored Division

( Forward )

vs.

Private E-2 Randy

J. DELACRUZ (553-

08-1620), United

States Army,

Appellant

D. Morgan

Military Judge

wee ee eee ee ee ee ee

For Appellant: Lieutenant Colonel Paul

J. Luedtke, JAGC, Captain Wendell A.

Hollis, JAGC, Mr. William C. Halsey,

Esquire (on brief).

For Appellee: Colonel James Kucera,

JAGC, Lieutenant Colonel Adrian J.

Gravelle, JAGC, Lieutenant Colonel Gary

F. Roberson, JAGC, Captain Patrick J.

Cunningham, JAGC (on brief).

30 April 1986

Per Curiam:

On consideration of the entire

record, including consideration of the

issues personally specified by the appel-

lant, we hold the findings of guilty and

sentence as approved by the convening

authority correct in law and fact.

Accordingly, those findings of guilty and

the sentence are AFFIRMED.

Chief Judge O'ROARK took no part

in the decision of this case.

FOR THE COURT:

/s/

WILLIAM S. FULTON, JR.

Clerk of the Court

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