Court of Appeals for the Armed Forces

United States v. Wheeler

The Fifth Amendment’s Due Process Clause guarantees the right to trial by jury for serious offenses. CAAF granted review to determine whether the Clause applied to military judge-alone special courts-martial convened pursuant to Article 16(c)(2)(A). Because the Court concluded Appellant failed to overcome the particular deference afforded Congress in balancing service member rights, it held the Clause does not apply and affirmed the decision below.
 
Procedural History
 
Appellant faced court-martial for sleeping on post. The convening authority referred the charge to the court-martial as mentioned above, which precluded Appellant from electing trial by panel members and likewise barred the military judge from adjudging a sentence including, inter alia, a punitive discharge or confinement for more than six months.
 
Appellant moved to dismiss, arguing the convened court-martial lacked jurisdiction because sleeping on post was a “serious offense,” entitling him to a trial by panel members pursuant to the Fifth and Sixth Amendments. The military judge denied the motion and ultimately convicted Appellant, contrary to his pleas.
 
The Judge Advocate General (TJAG) ultimately certified the question to the Navy-Marine Corps Court of Criminal Appeals (NMCCA) for review.[1] The NMCCA affirmed in an en banc published decision. CAAF subsequently granted two issues for review.[2] Appellant did not assert his previous Sixth Amendment argument.
 
Summarized Analysis
 
The Military Necessity Doctrine
 
CAAF acknowledged that service members are entitled to Fifth Amendment Due Process protection. However, “[w]hether this process embodies a specific right—in this case, 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 he is subject.” It added that no violation occurs unless the challenged procedure “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
 
“Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military . . . subject to the requirements of the Due Process Clause. . . .” Accordingly, courts must give particular deference to Congressional determinations pursuant to its constitutional authority to regulate the land and naval forces.
 
Thus, it is the Appellant’s burden to demonstrate the requested deviation of procedure is “so extraordinarily weighty as to overcome the balance struck by Congress.” This is a three-part balancing test:
 

1. Historical practice with respect to the procedure at issue

 

1. The effect of the asserted right on the military

 

1. The existence in current practice of other procedural safeguards that satisfy the Due Process Clause of the Fifth Amendment

 
Historical Practice
 
CAAF agreed with the lower court that “the possibility of a criminal conviction at an unrefusable proceeding without members is remarkable,” such that this factor weighed “in favor of a due process right to a panel in this case.” For nearly 200 years, the military solely used panels for general courts-martial, as well as “lesser” courts-martial. Though, it noted there exists an equally long tradition of resolving minor offenses without a jury or a panel. In addition to more summary military discipline, the Sixth Amendment right to trial by jury does not extend to petty civilian offenses.
 
Effect on the Military
 
In contrast, allowing a service member to refuse a military judge-alone special court-martial unduly burdens the military and thus weighed against finding such a right for three reasons. First, such a court-martial is an efficient disposition in non-judicial punishment and summary courts-martial refusals, and in deployed environments when addressing minor misconduct.
 
Second, CAAF analogized its rationale to SCOTUS in Middendorf, where it held that “similar considerations outweighed a servicemember’s claim to a Fifth Amendment due process right to counsel in a summary court-martial.” Though conceding that, in contrast to the court-martial at issue, a summary court-martial is not a criminal forum and does not result in a criminal conviction, “the burdens that would accompany the proposed process is equally applicable [here].”
 
Third, allowing refusal here pulls more service members from their regular duties for longer periods to deal with minor offenses. In support, CAAF cited precedent long misapplied by courts and likewise critiqued by several authors:
 
[I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. . . . To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served.
 
Toth v. Quarles, 350 U.S. 11, 17 (1955).
 
Legal Safeguards
 
Finally, several existing safeguards ensure impartiality and fairness for four reasons. First, there is a qualified, independent military judge. This is due to the Article 138 complaint process, the Article 37 unlawful command influence process, and the All Writs Act.
 
Second, service members are entitled to military defense counsel at no cost or, if reasonably available, to military defense counsel of one’s choosing.
 
Third, Congress and the President have limited the jurisdiction of these courts.
 
Fourth, though (at the time) not entitled to a direct appeal to the NMCCA, a process existed to do that (like in this case).
 
As a result, this also weighed against finding a due process right.
 
Because historical tradition is not dispositive, and Congress is entitled to particular deference, Appellant failed to meet his burden to overcome the balance struck by Congress and the President.
 
Quick Summary of Issue II
 
CAAF quickly disposed of the second issue. The Constitution grants Congress authority to govern the military. It did so and delegated some authority to the President to implement its authority. SCOTUS has approved of that practice.[3] And that practice is bolstered by the fact the military is a “specialized community. . . .” Since all the rules were followed, the lower court’s deferral was proper.
 
Parting Thought
 
I and others have raised questions about the rigor, historical development, and application of what is commonly referred to as the military necessity doctrine; however, Wheeler at least organizes a structure that can be replicated when asserting constitutional arguments. Practitioners at least know what the judges are looking for . . . at least right now.


[1] Certified Question:
 
Did the convening authority violate the Fifth and Sixth Amendments of the Constitution by referring charges for which the President authorized a penalty of over six months of confinement, forfeiture of all pay, and a punitive discharge to a judge-alone special court-martial under Article16(c)(2)(A), UCMJ[?]
 
U.S. v. Wheeler, 83 M.J. 581, 583 (N-M. Ct. Crim. App. 2023 (en banc).

[2] Issues Presented:
 
I. Did the lower court err in holding that the Due Process Clause of the Fifth Amendment does not protect a servicemember’s fundamental right to a panel of members at court-martial?
 
II. Did the lower court err by deferring to a convening authority’s case-by-case referral decision rather than an objective standard to determine whether an offense is serious?

[3] It might be worth noting this may be an open question post-Raimondo if the basis for this principle was akin to Chevron-like deference.

Rodrigo Caruço