U.S. v. Wheeler, 85 M.J. 70

First Principles: Constitutional Matters: Due Process

1. because servicemembers who are subject to appear before a court-martial may be subjected to loss of liberty or property, they are entitled to the due process of law guaranteed by the Fifth Amendment
2. whether the process afforded to servicemembers who are subject to appear before a court-martial embodies a specific right, such as a right to be tried by a panel of members, depends upon an analysis of the interests of the individual and those of the regime to which they are subject
3. a procedure does not violate the Due Process Clause of the Fifth Amendment unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental
4. in determining what process is due to a servicemember subject to a court-martial, appellate courts must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces
5. to succeed in a due process challenge to a statutory court-martial procedure, an appellant must demonstrate that the factors militating in favor of a different procedure are so extraordinarily weighty as to overcome the balance struck by Congress
6. in weighing a servicemember's interests in a procedural right against the needs of the military, an appellate court must consider (1) historical practice with respect to the procedure at issue, (2) the effect of the asserted right on the military, and (3) the existence in current practice of other procedural safeguards that satisfy the Due Process Clause of the Fifth Amendment
7. several features of the military justice system ensure the fairness of a military judge-alone special court-martial: (1) a qualified, independent military judge presides over the court, (2) an accused facing a military judge-alone special court-martial is entitled, at no cost to the accused, to detailed military defense counsel or, to the extent reasonably available, to military defense counsel of the accused's choosing, (3) the offenses that can be referred to a military judge-alone special court-martial are limited as are the punishments that can be adjudged, regardless of the specific offenses or number of offenses tried, and (4) any conviction is subject to post-trial review by a qualified judge advocate, the Judge Advocate General, and the CCA to the same extent as any other general or special court-martial resulting in the same sentence
8. although historical tradition weighs in favor of finding a due process right to a multi-member panel in a special court-martial, historical tradition is not dispositive of the question whether a proceeding violates Fifth Amendment due process; there is nothing in the Constitution that suggests that court-martial usage at a particular time must be frozen in such a way that Congress might not change it; and in determining whether the historical tradition of courts-martial before member panels gives rise to a right to a panel in this case, an appellate court must give particular deference to Congress's determination that an unrefusable military judge-alone special court-martial promotes discipline in the armed forces and enhances a commander's ability to fairly and efficiently deal with minor offenses
9. appellant asserting that a military judge-alone special court-martial violates his Fifth Amendment due process right has the burden to demonstrate that Congress's determination should not be followed
10. an unrefusable military judge-alone special court-martial where neither a punitive discharge nor confinement of more than six months may be adjudged does not run afoul of the Fifth Amendment Due Process Clause
11. the delegation of authority to determine whether a case shall be referred to a forum that limits the maximum sentence that may be adjudged is a proper exercise of Congress's power to delegate the authority to make policies and rules that implement its statutes
12. the President acted within his delegated authority to prescribe rules narrowing the category of cases that may be referred to a military judge-alone special court-martial and limiting the punishments that can be adjudged in that forum
13. the discretion to refer charges to an unrefusable military judge-alone special court-martial was appropriately vested in the convening authority, subject to the limitations prescribed by Articles 16 and 19 and RCM 201(f)(2)(B)(ii) and 201(f)(2)(E)(i)
14. in this case, appellant had no Fifth Amendment due process right to a trial before a panel of members where the military judge-alone special court-martial forum limited the maximum confinement that could be adjudged to six months and precluded a punitive discharge; in addition, the convening authority's forum selection in accordance with Articles 16 and 19, UCMJ, and RCM 201 did not violate due process the case where the referral was consistent with the limitations imposed by Congress with the additional limitations imposed by the President; although appellant could not elect trial by a panel of members, the military judge was barred from adjudging a sentence that included a punitive discharge, confinement for more than six months, or forfeitures of pay for more than six months; and furthermore, the maximum authorized confinement for the offense charged was not greater than two years if the case was tried by a GCM and sex offender registration was not required

First Principles: Constitutional Matters: Right to a Jury Trial

1. in the civilian context, the Sixth Amendment right to trial by jury applies only to serious offenses; any offense where the accused cannot possibly be sentenced to more than six months of confinement is presumed to be a petty offense not subject to the Sixth Amendment jury clause

Military Justice Personnel: Convening Authority: Referral

1. Article 16, UCMJ, allows a convening authority to refer a case to a special court-martial consisting of a military judge alone; neither a bad-conduct discharge, nor confinement for more than six months, nor forfeiture of pay for more than six months may be adjudged at such a court-martial; RCM 201(f)(2)(E) bars military judge-alone special court-martial jurisdiction if the accused objects before arraignment and the military judge determines that (1) the maximum authorized confinement would be greater than two years if the case was tried by a general court-martial (with certain exceptions) or (2) sex offender registration would be required
2. the delegation of authority to determine whether a case shall be referred to a forum that limits the maximum sentence that may be adjudged is a proper exercise of Congress's power to delegate the authority to make policies and rules that implement its statutes
3. the President acted within his delegated authority to prescribe rules narrowing the category of cases that may be referred to a military judge-alone special court-martial and limiting the punishments that can be adjudged in that forum
4. the discretion to refer charges to an unrefusable military judge-alone special court-martial was appropriately vested in the convening authority, subject to the limitations prescribed by Articles 16 and 19 and RCM 201(f)(2)(B)(ii) and 201(f)(2)(E)(i)
5. in this case, appellant had no Fifth Amendment due process right to a trial before a panel of members where the military judge-alone special court-martial forum limited the maximum confinement that could be adjudged to six months and precluded a punitive discharge; in addition, the convening authority's forum selection in accordance with Articles 16 and 19, UCMJ, and RCM 201 did not violate due process the case where the referral was consistent with the limitations imposed by Congress with the additional limitations imposed by the President; although appellant could not elect trial by a panel of members, the military judge was barred from adjudging a sentence that included a punitive discharge, confinement for more than six months, or forfeitures of pay for more than six months; and furthermore, the maximum authorized confinement for the offense charged was not greater than two years if the case was tried by a GCM and sex offender registration was not required

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. to succeed in a due process challenge to a statutory court-martial procedure, an appellant must demonstrate that the factors militating in favor of a different procedure are so extraordinarily weighty as to overcome the balance struck by Congress
2. appellant asserting that a military judge-alone special court-martial violates his Fifth Amendment due process right has the burden to demonstrate that Congress's determination should not be followed

Trial Stages: Pretrial: Referral

1. Article 16, UCMJ, allows a convening authority to refer a case to a special court-martial consisting of a military judge alone; neither a bad-conduct discharge, nor confinement for more than six months, nor forfeiture of pay for more than six months may be adjudged at such a court-martial; RCM 201(f)(2)(E) bars military judge-alone special court-martial jurisdiction if the accused objects before arraignment and the military judge determines that (1) the maximum authorized confinement would be greater than two years if the case was tried by a general court-martial (with certain exceptions) or (2) sex offender registration would be required
2. the delegation of authority to determine whether a case shall be referred to a forum that limits the maximum sentence that may be adjudged is a proper exercise of Congress's power to delegate the authority to make policies and rules that implement its statutes
3. the President acted within his delegated authority to prescribe rules narrowing the category of cases that may be referred to a military judge-alone special court-martial and limiting the punishments that can be adjudged in that forum
4. the discretion to refer charges to an unrefusable military judge-alone special court-martial was appropriately vested in the convening authority, subject to the limitations prescribed by Articles 16 and 19 and RCM 201(f)(2)(B)(ii) and 201(f)(2)(E)(i)
5. in this case, appellant had no Fifth Amendment due process right to a trial before a panel of members where the military judge-alone special court-martial forum limited the maximum confinement that could be adjudged to six months and precluded a punitive discharge; in addition, the convening authority's forum selection in accordance with Articles 16 and 19, UCMJ, and RCM 201 did not violate due process the case where the referral was consistent with the limitations imposed by Congress with the additional limitations imposed by the President; although appellant could not elect trial by a panel of members, the military judge was barred from adjudging a sentence that included a punitive discharge, confinement for more than six months, or forfeitures of pay for more than six months; and furthermore, the maximum authorized confinement for the offense charged was not greater than two years if the case was tried by a GCM and sex offender registration was not required

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the constitutionality of a statute is a question of law reviewed by an appellate court de novo
2. in determining what process is due to a servicemember subject to a court-martial, appellate courts must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces
3. to succeed in a due process challenge to a statutory court-martial procedure, an appellant must demonstrate that the factors militating in favor of a different procedure are so extraordinarily weighty as to overcome the balance struck by Congress
4. in weighing a servicemember's interests in a procedural right against the needs of the military, an appellate court must consider (1) historical practice with respect to the procedure at issue, (2) the effect of the asserted right on the military, and (3) the existence in current practice of other procedural safeguards that satisfy the Due Process Clause of the Fifth Amendment
5. although historical tradition weighs in favor of finding a due process right to a multi-member panel in a special court-martial, historical tradition is not dispositive of the question whether a proceeding violates Fifth Amendment due process; there is nothing in the Constitution that suggests that court-martial usage at a particular time must be frozen in such a way that Congress might not change it; and in determining whether the historical tradition of courts-martial before member panels gives rise to a right to a panel in this case, an appellate court must give particular deference to Congress's determination that an unrefusable military judge-alone special court-martial promotes discipline in the armed forces and enhances a commander's ability to fairly and efficiently deal with minor offenses