Sanford v. U.S.

• Decision Date: 13 November 2009
• Docket Number: No. 08-5402.,08-5402.
• Citation: 586 F.3d 28
• Parties: Kevin R. SANFORD, Appellant v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

586 F.3d 28

Kevin R. SANFORD, Appellant v. UNITED STATES of America, Appellee.

No. 08-5402.

United States Court of Appeals, District of Columbia Circuit.

Argued September 18, 2009.

Decided November 13, 2009.

Appeal from the United States District Court for the District of Columbia (No. 1:07-cv-01792-RCL).

Eugene R. Fidell argued the cause for appellant. With him on the briefs was Matthew S. Freedus.

Doris Coles-Huff, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney. Alan Burch, Assistant U.S. Attorney, entered an appearance.

Before ROGERS, TATEL and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In challenging his conviction by a military court-martial consisting of less than six persons, Kevin Sanford invites this court to hold that his rights under the Due Process Clause of the Fifth Amendment were violated. He relies on the Supreme Court's announcement of a constitutional minimum six-person jury for the trial of civilian, non-petty offenses in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), and suggests it is the government's burden to show that his due process rights were not violated. Because Ballew was grounded in the Sixth Amendment right to a jury trial, however, Sanford is actually seeking a new due process right to a court-martial panel of a minimum size. Sanford's focus on rebutting the government's assertions thus fails to engage the appropriate inquiry under Weiss v. United States, 510 U.S. 163, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994), which is "whether the factors militating in favor of [the proposed rule] are so extraordinarily weighty as to overcome the balance struck by Congress," id. at 177-78, 114 S.Ct. 752 (quoting Middendorf v. Henry, 425 U.S. 25, 44, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976)). Because Sanford failed to engage this standard before the military courts, their resolution of his claim suffered from no fundamental defect and was properly upheld by the district court.

The Supreme Court's conclusion regarding minimum jury size in the civilian system was based on empirical studies. Ballew, 435 U.S. at 231-39, 98 S.Ct. 1029. Sanford presented no similar empirical evidence regarding the military justice system, which has features to ensure accurate fact finding not found in the civilian justice system. Rather, Sanford contends that Ballew reflects a conclusion about a fundamental right that is required by due process under both the Fifth and Fourteenth Amendments. Still he fails to show that the empirical data underlying Ballew's holding applies with equal force to the military justice system, which is based on Congress' balancing of interests, some of which are unique to the military. Doubtless it is fundamental that there be accurate fact finding under the justice system Congress established in the Uniform Code of Military Justice, 10 U.S.C. §§ 801, et seq. ("UCMJ"), but Sanford fails to show that the design of the military system is so incompatible with that principle as to violate due process. Accordingly, we affirm the dismissal of his complaint.

I.

A.

Pursuant to Article I of the Constitution, U.S. CONST. art. I, § 8, cl. 14, Congress established a military justice system that includes three types of courts-martial: summary, special, and general. See 10 U.S.C. § 816. The summary court-martial consists of only one commissioned officer, id. § 816(3), has jurisdiction over enlisted men and women only, can be conducted only with their consent, and can impose only a limited array of minor punishments for minor offenses, see id. § 820. At the other end of the spectrum is the general court-martial, which comprises a military judge and at least 5 members, or the judge alone if the accused so requests, id. § 816(1), has jurisdiction over all persons in the military for offenses under the UCMJ, and can impose all lawful sentences, even death, see id. § 818.

The special court-martial, at issue in this appeal, falls somewhere in between. Consisting of not less than three members, a military judge and not less than three members, or the military judge alone if the accused requests, id. § 816(2), the special court-martial has jurisdiction over most offenses under the UCMJ and may, "under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dishonorable discharge, dismissal, confinement for more than one year, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year," id. § 819. Subject to an exception for exigency, adjudgment of "[a] bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months" requires that a military judge have presided over the court-martial, that a complete record have been made, and that counsel have been detailed to the accused. See id.

The military judge who presides over a special or general court-martial rules on all legal questions and instructs the members regarding the law and procedures to be followed. Id. § 851. The members (if the accused has not opted to be tried by the military judge alone) decide guilt or innocence, as well as the sentence, if any, to be imposed. Id. Except in death cases, their verdict need not be unanimous. 10 U.S.C. § 852. Members of the court-martial are selected on the basis of being "best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament." 10 U.S.C. § 825(d)(2).

Upon conviction, the defendant may appeal, id. § 866, and the service court of appeals is required to review the entire record de novo, id. § 866(c), and may "`substitute its judgment' for that of the military judge [and] that of the court members," United States v. Cole, 31 M.J. 270, 272 (C.M.A.1990). A further appeal may be had upon petition to the United States Court of Appeals for the Armed Forces at that court's discretion. 10 U.S.C. § 867(a)(3). The Court of Appeals for the Armed Forces may only set aside convictions that are "incorrect in law." Id. § 867(c); see also Cole, 31 M.J. at 272. The court's refusal to grant a petition is not subject to review by the United States Supreme Court. 10 U.S.C. § 867a(a); 28 U.S.C. § 1259.

B.

Sanford is a former sergeant who served in the United States Marine Corps. On October 3, 2004, a special court-martial comprised of a military judge and four members convicted him of violating a lawful order, dereliction of duty, larceny, and impersonating an officer, all in violation of the UCMJ, 10 U.S.C. §§ 892, 921, 934. The conviction was based on his false preparation of recall orders for a marine reservist that, along with other false representations, induced the reservist's employer to purchase airfare on his behalf from Texas to Camp Pendleton, California. Sanford was sentenced to confinement for six months, forfeiture of $767.00 pay per month for six months, reduction from pay grade E-5 to E-1, and a bad-conduct discharge.

On appeal, the United States Navy-Marine Corps Court of Criminal Appeals ("the Marine Corps Court") affirmed the court-martial's finding of guilt with some modifications and reduced the period of his confinement to 150 days. United States v Sanford, 2006 WL 4571896, at *11 (N-M.Ct.Crim.App. Nov. 6, 2006). Rejecting Sanford's argument that empaneling fewer than six members for his court-martial violated his Fifth Amendment right to due process in contravention of the standard articulated in Ballew, the Marine Corps Court stated:

We have considered the appellant's eighth assignment of error challenging his convictions for `non-petty offenses' by a panel of only four members, and find it to be without merit. See United States v. Wolff, 5 M.J. 923, 925 (N.C.M.R.1978); see also Art. 29, UCMJ.

Id. at *10 n. 2. The Court of Appeals for the Armed Forces denied Sanford's petition for review. United States v. Sanford, 64 M.J. 428 (C.A.A.F.2007).

On October 4, 2007, Sanford filed suit in the federal district court challenging the validity of his conviction. As he did on direct appeal, Sanford argued that his four-member court-martial violated his due process rights under Ballew. The district court ruled that the Marine Corps Court had given thorough consideration to Sanford's argument and that the court's judgment did not contravene Supreme Court standards. Sanford v. United States, 567 F.Supp.2d 114 (D.D.C.2008). Sanford appeals, and this court reviews de novo the dismissal of his complaint for failure to state a claim. Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).

II.

This court has recognized that the standard of review in non-custodial collateral attacks on court-martial proceedings is "tangled." United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406 (D.C.Cir.2006) ("New II"). Two lines of precedent are relevant: the first deals with the "full and fair consideration" standard that applies for habeas review of courts-martial, and the second deals with the "void" standard that applies to collateral attacks on court-martial proceedings by persons who are not in custody. The court in New II, which was faced, as here, with a non-custodial plaintiff, attempted a synthesis of the two standards, looking primarily to the military courts' analyses of the merits of the plaintiff's claim. Because the first standard ("full and fair consideration") is, if anything, less deferential than the second ("void"), the court observed that a claim that fails the former a fortiori fails the latter. Id. at 408. In that situation, the court did not need to address how much more deference, if any, was due to the military court's judgment on non-custodial review.

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