797 F.2d 1538 (10th Cir. 1986), 84-1735, Mendrano v. Smith

Docket Nº:84-1735.
Citation:797 F.2d 1538
Party Name:Jaime B. MENDRANO, Petitioner-Appellant, v. William French SMITH, Attorney General of the United States, Casper Weinberger, Secretary of Defense, John O. Marsh, Secretary of the Army, Colonel O.L. McCotter, Commandant, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, Kansas, Respondents-Appellees.
Case Date:July 31, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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797 F.2d 1538 (10th Cir. 1986)

Jaime B. MENDRANO, Petitioner-Appellant,


William French SMITH, Attorney General of the United States,

Casper Weinberger, Secretary of Defense, John O. Marsh,

Secretary of the Army, Colonel O.L. McCotter, Commandant,

U.S. Disciplinary Barracks, U.S. Army Combined Arms Center,

Fort Leavenworth, Kansas, Respondents-Appellees.

No. 84-1735.

United States Court of Appeals, Tenth Circuit

July 31, 1986

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Henri J. Watson, Dennis D. Gooden, Kansas City, Mo., and C. Albert Herdoiza, Kansas City, Kan., were on brief for petitioner-appellant.

Benjamin L. Burgess, Jr., U.S. Atty. and Alleen S. Castellani, Asst. U.S. Atty., Topeka, Kan., were on brief for respondents-appellees.

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge, and WINDER, District Judge. [*]

HOLLOWAY, Chief Judge.

In this habeas corpus proceeding, petitioner-appellant Jaime B. Mendrano, a discharged army private incarcerated in the United States Disciplinary Barracks at Fort Leavenworth, Kansas, challenges his convictions for premeditated murder and lewd and lascivious conduct with respect to one woman, and rape with respect to another. He asserts that his trial violated his Sixth Amendment right to jury trial and "to a fair and impartial jury," and his Fifth Amendment due process rights because Article 52(a)(2) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. Sec. 852(a)(2), allowed a six-member General Court-Martial to convict him with the possible concurrence of only two-thirds of the voting members. We affirm the district court's denial of his petition for habeas relief.



The United States Army Court of Military Review in its written opinion related the following facts, apparently as being supported by the Government's evidence or inferences to be drawn from them.

Late on the evening of October 4, 1980, or in the early morning hours of October 5 petitioner met Mrs. Sheree Kearney, the wife of a serviceman stationed in West Germany, in Junction City, Kansas. Sometime after midnight, Mrs. Kearney, petitioner, and another soldier took a taxi from Junction City to Camp Funston, located on the premises of Fort Riley, Kansas. Sometime later, petitioner was seen forcibly leading a woman towards the Camp Funston Bowling Alley, located in the general area where Mrs. Kearney's body was later found. Petitioner, on several occasions said "Come on, Baby," to which the woman repeatedly responded that she wanted to go home and that she wanted someone to call a taxi. Petitioner struck Mrs. Kearney on the head with a blunt instrument and strangled her with his hands. He then dragged her body 123 feet and left it at the bottom of a subterranean stairway adjacent to the Camp Funston Theatre. Later he violated Mrs. Kearney's corpse anally and vaginally. The corpse was discovered on the morning of October 6, 1980. United States v. Mendrano, No. CM 440893, Slip op. at 2-3 (A.C.M.R., Mar. 23, 1983).

Petitioner was charged with premeditated murder and two counts of lewd and lascivious conduct under UCMJ Articles 118 and 134, 10 U.S.C. Secs. 918 & 934, for Mrs. Kearney's death and the violation of her corpse. In addition, petitioner was charged with the rape of another woman, Specialist Four Karen Turner, in violation of UCMJ Article 120, 10 U.S.C. Sec. 920, although we have no facts concerning the circumstances of this incident. After a five day trial, a six-officer general court-martial convicted petitioner on all counts and sentenced him to a dishonorable discharge, confinement at hard labor for life, and forfeiture of all pay and allowances. Appl. For Writ of Habeas Corpus, p 1; United States v. Mendrano, supra, Slip op. at 1-2.

Petitioner Mendrano appealed to the Army Court of Military Review, which affirmed

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his convictions, United States v. Mendrano, supra, Slip op. at 6, and to the United States Court of Military Appeals, which denied his petition for review. United States v. Mendrano, 17 M.J. 47 (C.M.A.1983). Mendrano then filed his habeas petition in the District Court for the District of Kansas, alleging that his confinement violates his Fifth Amendment right of due process and his Sixth Amendment "right to a fair and impartial jury" because "[t]he court-martial panel which convicted petitioner consisted of six members, and only two-thirds of those members were required to concur in the findings of guilty." Habeas Appl. p 4, I R. 2. 1 The district court rejected petitioner's arguments, relying on our statement in Millwood v. Nix, Unpublished No. 82-1909 (10th Cir., Apr. 29, 1983), that "there is no constitutional right to trial by jury in military court-martial cases." Mendrano v. Smith, Civ. Case No. 84-3071, Slip op. at 1-2 (D. Kan., Mar. 30, 1984), I R. 4-5.

Petitioner appeals the district court's denial of his application for a writ of habeas corpus.


The general court-martial which convicted petitioner is the highest of three types of courts-martial and it may try persons, such as petitioner, who are subject to the Uniform Code of Military Justice, for "any offense" punishable under the Code. UCMJ Art. 18, 10 U.S.C. Sec. 818. The general court-martial must consist of "a military judge and not less than five members," unless the accused requests in writing a trial by military judge alone. Id., Art. 16(1), 10 U.S.C. Sec. 816(1). Under the statute, the number of panel members on the court may vary from case to case as long as the court-martial panel consists of at least five members. See, e.g., McDaniel v. Hiatt, 78 F.Supp. 573, 574 (M.D. Pa.1948); United States v. Wolff, 5 M.J. 923, 925 (N.C.M.R.1978). The convening authority, usually the defendant's commanding officer, may detail a commissioned officer, who must be a member of a state or federal bar and certified as legally qualified by the appropriate Judge Advocate General, to serve as military judge, UCMJ, Art. 26, 10 U.S.C. Sec. 826, and shall also detail qualified trial counsel and defense counsel. Id., Art. 27, 10 U.S.C. Sec. 827. The military judge presides over the court-martial, rules on evidentiary and other matters, and instructs the court-martial panel members how to apply the law to the case. Id., Arts. 26(a), 51(b), (c), 10 U.S.C. Secs. 826(a), 851(b), (c).

Like a common law jury, the panel members serve subject to challenge and weigh the evidence in the trial. Winthrop, Military Law & Precedents 55 (2d ed. 1920). A general court-martial conducts all of its voting by secret written ballot. However, unlike most juries, a general court-martial may convict a defendant of any offense other than one "for which the death penalty is made mandatory by law" with the concurrence of only two-thirds of its voting members, UCMJ, Arts. 51(a), 52(a), 10 U.S.C. Secs. 851(a), 852(a). 2 The "beyond reasonable doubt" standard applies in a general court-martial trial like that of petitioner's. See note 7, infra. Further, with respect to sentencing, the Code provides that no person may be sentenced to suffer

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death except by the concurrence of all members of the court-martial present when the vote is taken and for an offense expressly made punishable by death. In addition no person may be sentenced to life imprisonment or confinement for more than ten years except with the concurrence of three-fourths of the members present when the vote is taken. UCMJ, Art. 52(b)(1) and (2), 10 U.S.C. Sec. 852(b)(1) and (2). 3 Also, unlike the rule in a jury trial, failure to convict results in acquittal; there are no "hung juries." 4 Nevertheless, the modern military court-martial proceeding bears a considerable resemblance to a civilian jury trial and this similarity lends some credence to petitioner's argument that the same number and unanimity requirements which govern conviction in a civilian criminal trial should also apply to convictions by a court-martial panel. 5



Military law has evolved a long way since Chief Justice Chase said, nearly 120 years ago, that "the power of Congress, in the government of the land and naval forces and of the militia, is not at all affected by the fifth or any other amendment." Ex parte Milligan, 71 U.S. [4 Wall.] 2, 138, 18 L.Ed. 281 (1866) (concurring opinion). The Supreme Court has since held that members of the military are entitled to at least some of the protections of the Bill of Rights, see Brown v. Glines, 444 U.S. 348, 354, 100 S.Ct. 594, 599, 62 L.Ed.2d 540 (1980) (freedom of speech subject to differing application required for military effectiveness); Burns v. Wilson, 346 U.S. 137, 142-43, 73 S.Ct. 1045, 1048-49, 97 L.Ed. 1508, reh. denied, 346 U.S. 844, 74 S.Ct. 3, 98 L.Ed. 363 (1953) (basic guarantees of due process), and the Court of Military Appeals, relying on the Court's decision in Burns v. Wilson, has held that constitutional safeguards apply to military trials "except insofar as they are made inapplicable either expressly or by necessary implication." United States v. Tempia, 16 U.S.C.M.A. 629, 634, 37 C.M.R. 249, 254 (1967).

Generally, our circuit will limit its review of military habeas petitions to a determination whether the military courts have dealt fully and fairly with properly asserted constitutional claims, but we feel that full review

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of petitioner's claim here is especially appropriate. 6


In determining the extent to which the Due Process Clause of the Fourteenth Amendment imposes the Sixth Amendment's right to jury trial on the States, the Supreme Court has refused to hold that the Constitution requires conformity to the historic view that a jury must consist of twelve persons and that its verdict must be unanimous. However, the Court has held that due process imposes certain minimum requirements to...

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