# Opposition Brief — Webber v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1092

## Text

No. 93-736 Me

OCTOBER TERM, 1993

PRINCE S.J. WEBBER, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO i 4E UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

Drew S. Days, III
Solicitor General
Department of Justice
JEFFREY T. INFELISE Washington, D.C. 20530
Colonel, USAF (202) 514-2217

JULES D. SILVERBERG
Captain, USAF
Appellate Government Counsel
Government Trial and Appellate

Counsel Division

Air Force Legal Services Agency
Bolling Air Force Base
Washington D.C. 20332-5113

a BEST AVAILABLE E COPY i

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QUESTIONS PRESENTED

1. Whether the Constitution permits the use of a
court-martial panel consisting of five members who may
convict on a vote of two-thirds of the members.

2. Whether the facts relied upon as a basis for
issuance of the search authorization in this case estab-
lished probabie cause.

3. Whether the evidence was sufficient to support
petitioner’s conviction.

4. Whether the Judge Advocate General of an Armed
Force, who is not authorized to make appointments
under the Appointments Clause of the Constitution, may
appoint commissioned officers to serve as military trial
and appellate judges.

5. Whether military trial and appellate judges must be
appointed to their judicial duties for fixed terms.

TABLE OF CONTENTS

Page
ene eds retascaciekasng cacdaadshaapnbandicicesuees 1
nn Be TEES RoR ORE ARIAL mE Loe EOS Te 1
esas ke eae ican isagawucnmedpuceeoud 2
ead th a a ans mnasnandons 5
a a os scaganahbedsaseddvasaneus 18
TABLE OF AUTHORITIES
Cases:
Ballew v. Georgia, 485 U.S. 223 (1978) ..........cccccccccseeeeee 5, 14
Branford vy. United States, 356 F.2d 876 (7th Cir.

| Eo sehen te Sad i Sa en RS eS oe a 7
Burch v. Louisiana, 441 U.S. 130 (1979) ......... eee 5, 14, 15
Burns v. Wilson, 346 U.S. 187 (1953) ......................00000. i)
De War v. Hunter, 170 F.2d 993 (10th Cir. 1948), cert.

I tO as dsadcnnaxanaddosesssacioconees 8, 15
Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) 2... 7
Hutchinson v. United States, 18 M.J. 281 (C.M.A.),

re, Geen, SE UL, DEE CRGBE) cecccccecccccccsncccccccsceseccese 7
Jackson v. Taylor, 353 U.S. 569 (1957) ................0..000. 14
Jackson v. Virginia, 443 U.S. 307 (1979) ....................08. 13
Kahn v. Anderson, 255 U.S. 1 (1921) wc cee ceceeeeeeeees 7-8
King v. Moseley, 430 F.2d 732 (10th Cir. 1970) ........... 7
Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) ........00.... 10
Mendrano v. Smith, 797 F.2d 1538 (10th Cir.

i sddnausaueenne 7, 8, 13, 15
Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866) .... 7,8
O'Callahan v. Parker, 395 U.S. 258 (1969) 0.0... 7
Owens v. Markley, 289 F.2d 751 (7th Cir. 1961) 2.00.00... 7-8
Quirin, Ex parte, 317 U.S. 1 (1942) 2.0... cece eeeceeee noes 7,8
ee PE, BIER BC RUNDED creeiesconsacesssccéiccscosseassess 7
Rostker v. Goldberg, 453 U.S. 57 (1981) 0.0.00... eee ceeeee i)
Solorio v. United States, 483 U.S. 435 (1987) ................ 7,9

(III)

IV

Cases—Continued: Page
Stout v. Hancock, 146 F.2d 741 (4th Cir. 1944), cert.
denied, 325 U.S. 850 (1945) .....ccccccccccccccccccccccecccccocccccosee 11

United States v. Allen, 31 M.J. 572 (N.-M.C.M.R. 1990),
aff’d, 33 M.J. 209 (C.M.A. 1991), cert. denied, 112 S. Ct.

PD CUED ccs matadsoasedssidsassseuibaaaess oanramaea ie 7
United States vy. Carter, 25 M.J. 471 (C.M.A. 1988) ...... 15
United States v. Curtis, 32 M.J. 252 (C.M.A.), cert.

denied, 112 S. Ct. 406, remanded, 33 M.J. 101 (C.M.A.

1991), cert. denied, 112 S. Ct. 1177 (1992) oo... cee. F
United States v. Guilford, 8 M.J. 598 (A.C.M.R. 1979),

petition for review denied, 8 M.J. 242 (C.M.A. 1980) ... 14
United States v. Mason, 24 M.J. 127 (C.M.A.), cert.

denied, 484 U.S. 912 (1987) ............. saad daneadisaabcarnverectiicss 7
United States v. McClain, 22 M.J. 124 (C.M.A. 1986) ... 7,15
United States v. Palenius, 2 M.J. 86 (C.M.A. 1977) ...... 14
United States v. Santiago-Davila, 26 M.J. 380 (C.M.A.

DOME cs cagditck at eils wek tae yeh at CE eet eA Ely 15
United States er rel. Toth vy. Quarles, 350 U.S. 11

SINE Uceaboisseuens arcs ocarsoMaaedr a aioe ates 12
Whelchel v. McDonald, 340 U.S. 122 (1950) ..........00000.05. 7,9
Williams v. Florida, 399 U.S. 78 (1970) c.cccccccccccccsccceseeee 15

Constitution, statutes, regulation, and rule:

U.S. Const. :

a Ba Pe As Ow a aanicniacoakan teeeilinbbescas ane Sceaenrias &-9

Art. II, § 2, Cl. 2 (Appointments Clause) .......0..0..... 18

PR BER sana daeassoiacecextadsusenckennseces paleebunatatdt Dceecnetse 8

ode badsicomnadacicvantiite Geimccsab onal dihis acticin cae mie 7,8

ob ly Reena Rar Reco IR NS Hee MONEE ON NEARED NEL UN TaD 7

WN ranch etecasennae alee aus eer tae ecu ete en 7,8

IEP IRIN SE nn gor is 8

PE vosareaisei cdddncaicstsvennlcdaaertdeieretnenue 7, 8, 15

Act of Apr. 23, 1800, ch. 33, § 1, art. 41, 2 Stat. 51 oo... 11

Act of July 17, 1862, ch. 204, art. 19, 12 Stat. 605 0.0.0.0... 11

Act of June 4, 1920, ch. 227, art. 43, 41 Stat. 795-796 ....... 11

V

Statutes, regulation, and rule—Continued: Page

American Articles of War of 1776, reprinted in 1 & 2
W. Winthrop, Military Laws and Precedents (2d ed.

1920):
§ 14:
ONE. 2) icisunsaccscuunsssseackasssauuassceerteniiee ee eee 9
REN sD scinnvbanatanatensetarinesksksena emacs eens a 10
American Articles of War of 1806, ch. 20, § 1, 2 Stat. 359:
OFT. G4, 2 BML, DEE ois ccsvcsssniasisasanssessnan eae 10
art... 86, Z tat. DOD ai sasiscesss-satsarisatneeeee ee ee 1]
American Articles of War of 1874, reprinted in 1 & 2 11
W. Winthrop, Military Law and Precedents (2d ed.
1920):
BOR EG scrsccasasssciiskauceauicesdsbaqeabaeeee neta eee 10)
WT DG aca disco benavaenaniatsacecouuehieeaneicadebeeeiae nein teen 1]
American Articles of War of 1916, ch. 418, art. 5, 39 Stat.
EEE si arnasiccvnsues save banegraneunnceooweteadalecnmenine tatiana ee 10
Uniform Code of Military Justice, 10 U.S.C. 801 ef seq.:
Art. 16, 10 U.S.C. 816 (1982 & Supp. V 1987) ..0......... 10
Art. 16(1)(A), 10 U.S.C. 816(1)(A) (1982 & Supp. V
WORSE) sincacsaseseceseuntasanigus ie adeiaasae eee eee eee 12
Art. 25, 10 U.S.C. 825 (1982 & Supp. V 1987) ............ 14
Art..Ga{a), 16 U Bil BagGecnccassc eee li
Art. 52(a)(2), 10 U.S.C. 852(a)(2) (1982 & Supp. V
SOME): .cusrdjaddusiansued anus puansanqgheraeeaee dees dea eee 12
Art. GGle), 10 UBC. BGs «accmeniaeceeenane 13, 14
Art. 67(¢), 10 U.S.C. 867(¢) (Supp. IV 1992) oo... 6
Art. 67a(a), 10 U.S.C. 867a(a) (Supp. TV 1992) 220.000... 6
Art. 126, 10. U3.) GEO cnc aneee 2
Art. 121, 20: U 30 Set ose eee =
Ast. 335, 30 3B 6 Oe caacansc eee 2
Art, 134, 19-U 35) Wee coe 2
28 U.S.C. 1259(3) (Supp. IV 1992) ..cccccscccescccescsceseseeeees 6

Exec. Order No. 12,550, 3 C.F.R. 192 (1986 comp.) ......... 12
Mil. R. Evid. 311(b)(3)

$n the Supreme Court of the Chuted States
OCTOBER TERM, 1993

OPINIONS BELOW

Y OpmMion of the (Court of Military \ppeals | eT.
\pp. la) is unreported. The opinion of the Air Force
Court of Military Review (Pet. App.

+)
ported.

2Za-10a) is unre-

JURISDICTION
The judgment of the Court of Military als was
entered on August 12, 1993. The petition for a writ o

°
i
‘ertiorari was filed

on November 9,
ourt
>) (Supp lV 199?)

1993. The

: | = » 6) Ty]
is invoked under 2S |

urisdiction of this © A;

|

STATEMENT
Petitioner, a member of the United States Air
Force, was convicted after a general court-martial of
rape, larceny, burglary, and indecent assault, in viola-

tion of Articles 120, 121, 129, and 134 of the Uniform |
Code of Military Justice, 10 U.S.C. 920, 921, 929, and |

934. He was sentenced to a dishonorable discharge,
confinement for 40 years, forfeiture of all pay and
allowances, and reduction to the lowest enlisted
grade. The convening authority approved the findings
and sentence. The Air Force Court of Military
Review affirmed the findings and sentence. Pet. App.
sa. The Court of Military Appeals granted dis-
cretionary review on two issues, which are raised
before this Court in Questions 4 and 5 above, but it
denied the petition for new trial and otherwise
affirmed the decision of the court of military review.
Id. at la.

The victim of the rape and the other charged
offenses, Airman Linda Jean Nantkes, lived in a
women’s dormitory at Kirtland Air Force Base in
New Mexico. On September 11, 1990, she went to
sleep at about 10 p.m. in her room. Soon afterward she
was awakened by a knock at her door. She asked who
was at the door. Her visitor answered with a muffled
reply that sounded like “It’s Webber.” On opening the
door the victim saw a black man, later determined to
be petitioner, who told her that her windows were
open. When she said her windows were not open, the
man said, “Well, | mean your shades or your blinds
are open.” Nantkes said, “Okay,” and shut the door.
She went to the shades, which were open just a crack,
but not enough that someone could see into her room.

ee

Nantkes then returned to her bed and went to sleep.
Vr. 225-227, 255-254.

At about 4:50 a.m., Nantkes awoke to find a man
ta .ding by her bed touching her groin area. She
could not see the man well, but believed him to be a
black man. The assailant covered her mouth, magein
her onto her stomach, and raped her. Tr. 228-229,
The assailant then put a pillowease over her head
before turning her back over on her back and raping
her a second time. Tr. 229-231. After forcing her to
shower with him, the pillowcase still over her head,
the assailant covered her head with a towel and raped
her a third time. Tr. 232-234. Nantkes subsequently
noticed that the nightgown she had been wearing
before the attack was missing from her rooin. Tr. 238

Although Nantkes was unable to identify her
assailant, she was able to describe the person who
announced himself as “Webber” when he knocked at
her door the previous night. Tr. 226-227. She also
was able to assist the agents in creating a composite
picture of that person. She described him as black,
about 20 years old, about 5’3” to 5’5” tall, and of
slender build. Tr. 227, 238, 259-260; Pros. Exh. 4. In
addition, she testified that she perceived the accent of
the assailant’s voice as that of a black man; that when
the assailant forced her to put her arms around him
she perceived his height to be similar to hers, 5'4”;
and that his build was slender. ‘Tr. 227, 250, 255.

Agents investigating the incident learned that male
servicemembers from a dormitory across the street
often frequented the women’s dormitory. Tr. 260-261.
The agents then conducted a door-to-door inquiry at
the men’s dormitory. One of the agents encountered
petitioner and recognized him as the person depicted

in the composite picture that had been prepared from
Nantkes’ deseription of the man who had visited her

on the night of the rape. Tr. 259, 261. When asked if

he knew anyone who matched the composite picture,
petitioner said that the picture looked like a man who
had been living in a room down the hall. None of the
occupants of that room matched the picture. Tr. 262.

Upon interviewing petitioner, the agents learned
that his last name was Webber. Tr. 262. In the course
of discussion with one of the agents, petitioner said
that on the previous night he had walked by the
women’s dormitory across the street from the tran-
sients’ dormitory; that he noticed an individual who
appeared to be looking at a woman undressing in the
window of the female dormitory; that as he ap-
proached, the individual walked off; and that he
knocked on the woman’s door and informed her that
her shades were open. Tr. 263. The agents then
obtained oral probable cause search authority—the
military equivalent of a warrant—to search peti-
tioner’s room for, among other items, the missing
nightgown. Tr. 265-264. In the course of the ensuing
search, the agents found the nightgown under a seat
cushion in petiticner’s apartment. When the agents
found the gown, petitioner exclaimed spontaneously,
“Oh, shit!” Tr. 264, 294. The agents then sought and
obtained a further authorization to search for other
evidence related to the rape. They then found a hand-
written note containing Nantkes’ name. The note
was written in petitioner’s handwriting. Tr. 264-265,
Oo].

Physical evidence from the crime scene was seized
and later examined. A serologist testified that, by
using the ABO test, he determined that the semen

‘aaa ili i

5

found on the victim’s nightshirt matched petitioner’s
saliva type.’ Tr. 307-309. On the basis of that test, the
serologist testified that 75% of black males could be
excluded as the originators of the stains, but that
petitioner could not be excluded. Tr. 309. A second
type of test did not establish a match between the
samples at the crime scene and the fluid sample taken
from petitioner. The serologist offered three possible
explanations for that result: that the semen stains did
not originate from petitioner; that the pertinent
enzymes detected in the second test had deteriorated
by the time of the test; or that the samples that were
tested were of a different substance, such as vaginal
fluid. Tr. 308, 319-826.

ARGUMENT

1. Petitioner argues (Pet. 14-18) that he was
denied due process because he was tried and convicted
by a jury of fewer than six members who were not
required to reach their verdict by a unanimous vote.
Citing Burch v. Louisiana, 441 U.S. 130 (1979), which
invalidated a conviction for a non-petty offense by
only five members of a six-person jury, and Ballew v.
Georgia, 435 U.S. 223 (1978), which invalidated a
conviction for a non-petty offense by a five-person
jury, petitioner argues that the same standards
should apply to the military justice system and that
his conviction should therefore be reversed.

| The serologist testified that while most secretors have
saliva and seminal typing consistent with their blood typing,
that was not true in petitioner's case. The serologist therefore
based his analysis on a comparison of petitioner's saliva sample
and the specimens of semen obta.ned from the crime scene.
Tr. 304; Pros. Exh. 8, at 2.

6

a. Petitioner’s complaints about the makeup of the
court-martial panel were not raised before the Air
l’orece Court of Military Review. Moreover, although
they were argued in the petition for grant of review to
the Court of Military Appeals, those claims were not
among the issues that the Court of Military Appeals
accepted for review. Accordingly, it is not clear that
those issues are subject to review by certiorari in
this Court.

The statutes providing certiorari review of the
judgments of the Court of Military Appeals, 10 U.S.C.
&867a(a) (Supp. [IV 1992) and 28 U.S.C. 1259(3) (Supp. 1V
1992), restrict this Court’s certiorari jurisdiction to
“Idjecisions” of the Court of Military Appeals.
Article 67a(a) of the UCMJ, 10 U.S.C. 867a(a) (Supp.
IV 1992), further provides that this Court may not
review by certiorari “any action of the Court of
Military Appeals in refusing to grant a petition for
review.” The Court of Military Appeals has the
statutory authority to limit decisions in any case to
less than all the issues urged by the defendant.
Article 67(¢c), UCMJ, 10 U.S.C. 867(¢) (Supp. TV 1992).
Since that court did not pass on those questions,
there is a question whether that court rendered a
“{djecision” on those questions within the meaning of
the statutes authorizing this Court to review
judgments of the Court of Military Appeals.

b. On the merits, there is no force to petitioner's
constitutional challenge te the five-member court-
martial panel or to the statutory authorization for
nonunanimous verdicts in the military criminal jus-
tice system. The courts that have examined the
question have uniformly upheld the military practice
of convening court-martial panels with as few as five

7

members and the military practice of requiring only a
two-thirds vote of the members to convict. See
Mendrano v. Smith, 797 F.2d 1588 (0th Cir. 1986);
United States v. Allen, 31 M.J. 572 (N.-M.C.M.R.
1990), aff'd, 33 M.J. 209 (C.M.A.), cert. denied, 112 S.
Ct. 1473 (1992); United States v. Curtis, 32 M.J. 252
(C.M.A.), cert. denied, 112 S. Ct. 406, remanded on
other grounds, 38 M.J. 101 (C.M.A. 1991), cert. denied,
1128. Ct. 1177 (1992); United States v. Mason, 24 M.J.
127, 128 & n.* (C.M.A.), cert. denied, 484 U.S. 912 .
(1987); Hutchinson v. United States, 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).

Those decisions are 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 the Sixth Amend-
ment to the Constitution.

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
yuaranteed by those provisions does not apply to
court-martial proceedings. Hw parte Milligan, 71
U.S. (4 Wall.) 2, 128 (1866); Dynes v. Hoover, 61 U.S.
(20 Hlow.) 65, 79 (1858). The Fifth Amendment specif-

“ See also O'Callahan v. Parker, 395 U.S. 258 (1969), over-
ruled on other grounds, Solorio v. United States, 483 U.S. 4385
(1987); Reid v. Covert, 354 U.S. 1, 19 (1957) (plurality opinion);
Whelchel v. McDonald, 340 U.S. 122, 127 (1950); Ev parte
Quirin, 317 U.S. 1, 40-41 (1942); Kahn v. Anderson, 255 U.S. 1
(1921); Mendrano v. Smith, 797 F.2d at 1544; King v. Moseley,
430 F.2d 782, 734 (10th Cir. 1970); Branford v. United States,
356 F.2d 876, 877 (7th Cir. 1966); Owens v. Markley, 289 F.2d

8
ically exempts “cases arising in the land or naval
forces” frum the requirement 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
persons who were subject to indictment or present-
ment in the fifth.” Ha parte Milligan, 71 U.S. (4
Wall.) at 125. 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 Amend-
ment 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.

Petitioner’s claim fares no better under the Due
Process Clause. The Constitution authorizes Con-
gress to “make Rules for the Government and
Regulation of the land and naval Forces,” Art. I, § 8,

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 officers to try an en-
listed man does not violate the Sixth Amendment). See gener-
ally Van Loan, The Juru, the Court-Martial, and the Constitu-
tion, 57 Cornell L. Rev. 368 (1972); Henderson, Courts-Martial
and the Constitution: The Original Understanding, 71 Harv. L.
Rev. 293 (1957).

9

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, 483 U.S. 435, 447 (1987). See
also Burns v. Wilson, 346 U.S. 137, 140 (1953)
(plurality opinion). Congress’s judgment about the
composition and voting procedures of a court-martial
is entitled to special deference, not only because
“It|he constitution of courts-martial, like other mat-
ters relating to their organization and administration
* * *, is a matter appropriate for congressional
action,” Whelchel v. McDonald, 340 U.S. 122, 127
(1950),’ but also because the practices at issue have
been carried forward from the earliest days of our
nation. Cf. Solorio v. United States, 483 U.S. at 447.
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. Several 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 Articles of War to
permit a quorum of five officers at a general court-
martial when 13 members could not be detailed “with-
out manifest injury to the service.” 30 J. Continental
Cong. 145, 316 (J. Fitzpatrick ed. 1934); 1 & 2 W.
Winthrop, supra, at 22-23, App. 972; Van Loan, The

* 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”).

10

Cornell L. Rev. 363, 384-385 n.118 (1972). As a result,
court-martial panels often consisted of fewer than 13
members. See Martin v. Mott, 25 U.S. (12 Wheat.) 19,
34-35 (1827).

Congress endorsed that practice throughout the
19th century and the early part of the 20th century
when revising the Articles of War. 1 & 2 W.
Winthrop, supra, at 77, 159; American Articles of War
of 1806, ch. 20, § 1, art. 64, 2 Stat. 367, reprinted in 1 &
2 W. Winthrop, supra, App. 981-982; American Art-
icles of War of 1874, art. 75, reprinted in 1 & 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 quo-
rum 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 unanimous verdicts have
never been a necessary element of court-martial pro-
ceedings. The American Articles of War of 1776, like
their predecessor, the British Articles of War, re-
quired only a simple majority vote to convict a
defendant and a two-thirds majority to sentence him
to death. American 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 stat-

11

utes passed in 1800, 1806, 1862, and 1874.4 Throughout
the nineteenth century, a majority vote of the panel
members was sufficient to convict a defendant of a
noncapital crime, with a two-thirds vote sufficient to
impose capital punishment. 1 & 2 W. Winthrop, supra,
at 577; Stout v. Hancock, 146 F.2d 741, 742-743 (4th
Cir. 1944), cert. denied, 325 U.S. 850 (1945).

Karly in the 20th century, Congress modified the
voting requirements for Army courts-martial, re-
quiring a unanimous vote to impose the death penalty
or to convict a defendant of a crime carrying a
mandatory death penalty. 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 in the Navy
were left untouched. Thus, only a simple majority
Was necessary to convict a sailor, and a two-thirds
majority to impose the death penalty. See H.R. Rep.
No. 491, 81st Cong., Ist Sess. 26, 74 (1949). When
considering the UCMJ following World War I],
Congress adopted Article 52(a) of the UCMJ, 10
U.S.C. 852(a), in substantially its present form, so
that an accused may be convicted on a two-thirds vote
of the court-martial panel, except in the case of an

* 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, § 1, 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.

12

offense carrying a mandatory penalty of death, in
which event the panel must be unanimous.

In 1986, the President modified the Manual for
Courts-Mariial 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 aggravating factor. Rule 1004, Man-
wal; 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,
however. In sun, 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 Executive on the proper balance to be struck
between the rights of an individual serviceman and
the special needs of the armed forces.

That judgment is a reasonable one. The essential
function 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 armies is not served.”
Ibid. Congress therefore has determined that the
diversion of resources necessary to conduct the
retrials that would result from a unanimous verdict
requirement is too high a price to pay in terms of lost
military preparedness. Accordingly, Congress pro-
vided for only one trial, at which a two-thirds major-
ity vote would suffice to convict.

That “one-trial” system does not exclusively favor
the prosecution. The rule that no retrials are per-
mitted 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. More-
over, as a safeguard against an inaccurate verdict by a
court-martial panel, the military courts have re-
quired 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 substan-
tially 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 defendant’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 finding that the accused is guilty, before the
findings may be upheld. Art. 66(¢), UCMJ, 10 U.S.C.
S66(c).”

A court of military review may affirm “only such findings
of guilty * * * as it finds correct in law and fact and deter-
mines, on the basis of the entire record, should be approved.”
Art. 66(c), UCM, 10 U.S.C. 866(¢). Although nothing in the

14

Finally, petitioner argues that the nonunanimous
verdict of a five-member court-martial violates due
process because such a verdict is inherently unreli-
able. The court reached that conclusion for civilian
cases based on the studies cited in the lead opinion in
Ballew v. Georgia, 435 U.S. at 251-248 (opinion of
Blackmun, J.), regarding the group dynamics of
civilian juries. Much of the same reasoning formed
the basis for the decision in Burch v. Louisiana, 441
U.S. at 188. There are no comparable studies,
however, that have addressed the dynamics of courts-
martial panels. In light of the functional and
compositional differences between civilian juries and
court-martial panels, the studies on which Burch and
Ballew relied are not obviously applicable to the
military setting. United States v. Guilford, &8 M.J.
598, 601-602 (A.C.M.R. 1979), petition for review
denied, 8 M.J. 242 (C.M.A. 1980).°) Given the special

text of the statute or its legislative history suggests that the
courts of military review must independently apply the
“beyond a reasonable doubt” standard to the record when re-
viewing the sufficiency of the evidence, see Jackson v. Taylor,
353 US. 569, 577 & n& (1957), the military courts have read
that standard into the Act. F.g., United States v. Palenius, 2
M.J. 86, 91 n.7 (C.M.A. 1977).

* 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
ULS. at 135, citing Williams v. Florida, 399 ULS. 78, 100 (1970).
That goal is inapplicable to courts-martial. The members of a
civilian jury are selected at random to represent a cross-section
of the community. By contrast, the members of the court-mar-
tial panel are deliberately chosen on the basis of their qualifica-
tions to sit as panel members. Art. 25, U.C.M.J., 10 U.S.C. 825
(1982 & Supp. V 1987).

15

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 UCMJ should be ieft
to Congress. See Hirschhorn, The Separate
Community: Military Uniqueness and Service-
men’s Constitutional Rights, 62 N.C. L. Rev. 177
(1984).

c. There is also no merit to petitioner’s claim
regarding the method of selecting the court-martial
members. A serviceman has no right to a court-mar-
tial panel randomly selected from a pool containing all
servicemen, including enlisted personnel of the same
rank as the defendant. De War v. Hunter, 170 F.2d
993, 997 (Oth 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 inap-
plicable to court-martial proceedings); see Mendrano
v. Smith, 797 F.2d 1544-1547; United States v. Carter,
25 M.J. 471 (C.M.A. 1988); United States v. Santiago-
Davila, 26 M.J. 380 (C.M.A. 1988).

As to petitioner’s argument that minorities were
unfairly underrepresented on petitioner’s court-
martial panel, there is no indication that there was
any ethnic or racial bias in the process used to seleét
the panelmembers for petitioner’s court-martial.
Indeed, two of the nine prospective panelmembers in
this case were minorities. See Tr. 125-126. But
petitioner challenged both of them—one for cause and
the other peremptorily. Tr. 207, 211. Petitioner was
therefore solely responsible for keeping the two
minority members of the pool from being on his panel.
See Tr. 125-126.

16

In short, petitioner presented no evidence of racial
discrimination in the selection of court members, no
evidence of the racial makeup of the base community,
and no evidence of racial bias in the use of peremptory
challenges. See Tr. 120-123, 211; App. Exh. X. Under
those circumstances, petitioner has failed to show
that there was any constitutional infirmity in the
method by which his court-martial panel was selected.

2. Petitioner argues (Pet. 18-20) that the informa-
tion on which the search authorization was granted
did not amount to probable cause. His argument
ignores the information known to the investigating
agents and the reasonable inferences from that
information.

The identification of petitioner as the late evening
‘aller who told Nantkes (apparently falsely) that her
blinds were open focused attention on him as a
suspect. That focus was substantially enhanced by
the match between the race and size of the late
evening caller and the apparent race and size of the
rapist, as reported by Nantkes. The force of that
report was further enhanced by the fact that Nantkes
reported that both the late evening caller and the
rapist were approximately 5’4” in height—quite small
for a man. Finally, the rapist took several items,
including a nightgown, from Nantkes’s room, and it
_was reasonable for the officers and the commander
who authorized the search to conclude that there was
probable cause that petitioner committed the rapes
and that evidence would be found in petitioner’s room.
Because the showing of probable cause turned in part
on the similarity between the identification of the late
night caller and the rapist, it was not, as petitioner

ee

17

claims, dependent entirely on innocent conduct that
did not tend to identify petitioner as the rapist.

Kiven if the evidence known to the officers and
conveyed to the commander at the time of the search
authorization did not constitute probable cause, the
question of probable cause was, at worst, a debatable
one. It was therefore reasonable for the investigating
officers to rely on the search authorization that they
secured. For that reason, even if the search was not
supported sy probable cause, the nightgown and the
note containing Nantkes’s name would be admissible
under Mil. R. Evid. 311(b)(3), the military equivalent
of the good faith exception to the exclusionary rule.

3. Petitioner next asserts (Pet. 20-22) that the
court of military appeals misunderstood the serologi-
‘al evidence and therefore failed to appreciate how
strong that evidence was in supporting petitioner’s
claim of innocence. In fact, however, petitioner has
not shown that the serological evidence significantly
supported his claim of innocence, and he has failed
completely to explain the highly incriminating
physical evidence found in his room the day after the
rapes.

Petitioner’s argument regarding the serological
evidence fails to acknowledge the serologist’s testi-
mony that petitioner’s blood type did not match the
type of his other body fluids. For that reason, the
serologist compared the semen samples with petition-
er’s saliva specimen, not his blood specimen. For one
of the two tests that the serologist conducted, peti-
tioner’s saliva type matched the semen specimen. For
the other test, the two did not match, but the
serologist explained that the failure of that test to
produce a match could have been attributable to

18

deterioration of the pertinent enzyme in the sample
or contamination of the sample by other fluids on the
surfaces from which the samples were taken. Accord-
ingly, the serologist’s testimony did not exculpate
petitioner at all. To the contrary, that evidence did
nothing to rebut the powerful force of the other
evidence in the case, including the physical evidence
found in petitioner’s room.

4. Finally, petitioner presents (Pet. 22-50) the two
issues that are pending before this Court in Wezss vy.
United States, No. 92-1482 (argued Nov. 3, 1995).
Those claims are: (1) that the military trial and
appellate judges in his case were not qualified to hold
those positions because they were appointed to them
by the Judge Advocate Generai in violation of the
Appointments Clause of the Constitution, Art. I], § 2,
C]. 2; and (2) that his trial and his appeal to the court
of military review were fundamentally unfair because
the military judges sitting on those courts do not
enjoy fixed terms of office and can be reassigned to
other military duties by the Judge Advocate Generai
based on his evaluation of their performance as
judges.

Because those questions are pending before the
Court in Weiss v. United States, supra, the petition
should be held until the Court has decided Weiss and
should then be disposed of as appropriate in light of
the Court’s decision in that case.

CONCLUSION

With respect to questions 4 and 5, the petition for a
writ of certiorari should be held pending this Court’s
decision in Weiss v. United States, No. 92-1482, and
then disposed of as appropriate in light of the Court's

~e

decision in that case. In all other respects, the

pet ition should be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0737%3A2. Public record. Not legal advice.