The en banc published opinion in United States v. Wheeler addresses the newer MJA SPCM where the Appellant challenges the referral as violative of the Fifth and Sixth Amendments. A footnote suggests two similar cases were also included within the certified question.
Appellant was charged with a single specification of sleeping on post, an offense for which the President has authorized a maximum punishment of confinement for one year, forfeiture of all pay and allowances for one year, and a dishonorable discharge.
Appellant’s charge was referred to a judge-alone special court-martial in accordance with Articles 16 and 19, UCMJ.
Appellant moved to dismiss for a lack of jurisdiction, arguing that the referral of his case to a judge-alone special court-martial violated his rights under the Fifth and Sixth Amendments to the Constitution.
Motion denied; convicted and sentenced to 15 days’ confinement.
Articles 16 and 19 create a military judge alone.
Congress also delegated to the President the authority to prescribe further regulatory limitations to the new judge-alone special court-martial’s jurisdiction.
Rule for Courts-Martial [R.C.M.] 201(f)(2)(E)'s right to object to a judge-alone special court-martial do not apply here.
As discussed below, although the question before us focuses on the convening authority’s referral action, we decline to cabin our analysis to this step in the military justice process. We will examine first whether Articles 16 and 19 and R.C.M. 201(f)(2)(E) facially violate Appellant’s Fifth or Sixth Amendment rights. “The constitutionality of an act of Congress is a question of law that we review de novo.” If we find these articles and the President’s implementing rules to be constitutionally valid (and we do), we next turn to how they were applied in Appellant’s case.
During oral argument the appellant conceded no Fifth Amendment violation and focused on the Sixth Amendment claim. The court went ahead to discuss both claims in order to properly address the certified issue.
The Sixth Amendment of the Constitution guarantees, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” But, in Blanton v. N. Las Vegas, the United States Supreme Court held this right to trial by jury inapplicable to civilian prosecutions of petty offenses, with a presumption that any offense carrying a maximum punishment of six months or less is petty. In drawing this presumptive line between petty and serious offenses, the Supreme Court sought to ground the distinction in “objective indications of seriousness with which society regards an offense.” Of those indications, the Court held “most relevant . . . the maximum authorized penalty.” Against this was balanced “the benefits that result from speedy and inexpensive nonjury adjudications.” But the Blanton presumption is not dispositive here. Although the above considerations may be relevant in assessing Appellant’s Fifth Amendment due process rights, the Supreme Court and the Court of Appeals for the Armed Forces [C.A.A.F.] have held that the Sixth Amendment Jury Clause does not apply to courts-martial. If there is a constitutional right to a panel of members at a special court-martial, it does not reside in the Sixth Amendment.
Moving on the the Fifth Amendment.
For nearly 200 years, courts-martial in the United States military consisted solely of panels of members of varying numbers and types. This was true for general courts-martial as well as “lesser” courts-martial (the predecessor of our current special courts-martial). This requirement continued with the creation of the UCMJ in 1951. In 1968, Congress created military judges and, for the first time, authorized courts-martial without panel members—but only when an accused requested it.
Having worked through the various principles at play, the court affirms. However,
KIRKBY, Judge (concurring in the judgment):
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