Navy-Marine Corps Court of Criminal Appeals

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 prosecu​tions 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.

Given the clear historical requirement for members, both predating and incorporated in the UCMJ, it is not surprising that there is no case law holding that trial before a panel of members is a right at a special court-martial—there was simply no need for the courts to address it. The creation of the judge-alone special court-martial changed this. Thus, we now examine the novel question of whether the right to a panel of members was a creature solely of statute and regulation, or, as Appellant now argues, the right is also implicit in the Due Process Clause of the Fifth Amendment.

Having worked through the various principles at play, the court affirms. However,

KIRKBY, Judge (concurring in the judgment):

I write separately to express my concern with the methodology used by Congress in creating a military judge-alone special court-martial. While I concur with the majority that neither the changes to Articles 16 and 19, UCMJ, nor the creation of Rule for Courts-Martial 201(f)(2)(E)), on their face or asapplied, violate either the Fifth or Sixth Amendments to the Constitution, my position on this would be different if the current limited protections offered to servicemembers by R.C.M. 201(f)(2)(E) were eroded in the future without full congressional oversight.
. . . 
The majority suggests “Congress (in creating the judge-alone special courtmartial) and the President (in limiting the offenses that could be tried by such a court-martial over an accused’s objection) each struck a balance between competing interests.” But, I am unclear how the Soldiers, Sailors, Marines, Airmen, Coastguardsmen or our Space Guardians in the field will view the creation of this new forum, one where they have objectively lost their choice of finder of fact, as well as any form of balance. Simply put: a servicemember, charged with an offense that carries a maximum punishment of 5 years in prison (according to Presidential decree) is unlikely to believe that this change accommodates justice. While this may not offend the Constitution, we should be wary of the impact on good order and discipline that servicemembers, in a wholly voluntary force, must be able to view as just.

Finally, I will point out that the Government’s arguments and the majority’s reasoning in this case provide no reason that Congress could not amend the UCMJ and do away with members completely. Perhaps that too would not offend the Constitution, but I am hesitant to conclude that the members of the armed forces who dedicate their lives to upholding the Constitution should be guaranteed so little due process when facing prosecution for crimes as serious as any prosecuted in civilian courts.