Sanford v. United States

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2009 Decided November 13, 2009

No. 08-5402

KEVIN R. SANFORD,
APPELLANT

v.

UNITED STATES OF AMERICA,
APPELLEE

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.
 2

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 (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 (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 (quoting Middendorf
v. Henry, 425 U.S. 25, 44 (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. 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
 3

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
 4

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
 5

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.
 6

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
 7

deference, if any, was due to the military court’s judgment on
non-custodial review.

In Burns v. Wilson, 346 U.S. 137 (1953) (plurality), the
Supreme Court first articulated the “full and fair consideration”
standard, stating in the context of military habeas proceedings
that “when a military decision has dealt fully and fairly with an
allegation raised in that application, it is not open to a federal
civilian court to grant the writ simply to re-evaluate the
evidence,” id. at 142. In Kauffman v. Secretary of the Air Force,
415 F.2d 991 (D.C. Cir. 1969), this court interpreted that
standard, observing that “[t]he Supreme Court has never
clarified the standard of full and fair consideration, and it has
meant many things to many courts,” id. at 997. The court
reasoned that the standard should not differ “from that currently
imposed in habeas corpus review of state convictions,” and held
that “the test of fairness requires that military rulings on
constitutional issues conform to Supreme Court standards,
unless it is shown that conditions peculiar to military life require
a different rule.” Id.

The second line of precedent follows Schlesinger v.
Councilman, 420 U.S. 738 (1975), which held that federal courts
have jurisdiction to review the validity of court-martial
proceedings brought by non-custodial plaintiffs who cannot
bring habeas suits, id. at 752–53. However, for a court to grant
any relief to such plaintiffs, the military court judgment must be
“void,” id. at 748; see id. at 753, meaning the error must be
fundamental. The Supreme Court stated that “whether a court-
martial judgment properly may be deemed void . . . may turn on
the nature of the alleged defect, and the gravity of the harm from
which relief is sought. Moreover, both factors must be assessed
in light of the deference that should be accorded the judgments
of the carefully designed military justice system established by
Congress.” Id. at 753. This court adopted the Councilman
 8

standard as law for the circuit for non-custodial collateral attacks
on court-martial judgments in Priest v. Secretary of the Navy,
570 F.2d 1013, 1016 (D.C. Cir. 1977), and there considered the
fundamental nature of the purported constitutional errors, id., in
light of Supreme Court precedent examining the requirements
of the First Amendment, id. at 1016–18.

In New II, the court traced both these standards, their
interplay with the evolution of the relevant standards for habeas
review of civilian criminal judgments, and the level of deference
to be accorded by the court in each type of proceeding. In the
end, however, the court stated it had “serious doubt whether the
judicial mind is really capable of applying the sort of fine
gradations in deference that the varying formulae may indicate.”
New II, 448 F.3d at 408. Acknowledging “Councilman’s
statement that errors must be fundamental to void a court-
martial judgment on collateral review,” id., the court held that
“in light of Councilman’s point that non-habeas review is if
anything more deferential than habeas review of military
judgments, a military court’s judgment clearly will not suffer
such a defect if it satisfies Burns’ ‘fair consideration’ test,” id.
at 408 (internal citation omitted). Ultimately, the court found no
fundamental defect in the military Court of Appeals’ resolution
of the claim. Id. at 408, 410.

However, in applying the “full and fair consideration” test,
the court in New II did not strictly follow Kauffman, which
would have required the court to consider New’s claims de novo
and solely on the merits before shifting the burden to the
military to show that the needs of military life require a different
rule. In New II the court’s review was searching, but deferential,
much as in Priest, 570 F.2d at 1018, stating, for example, “the
Court of Appeals reasonably found,” 448 F.3d at 409, and “we
can find no fundamental defect in the Court of Appeals’
consideration of the issue,” id. at 410, and “the military courts’
 9

use of the political question doctrine deserves deference,” id.
By contrast, the Kauffman view of “full and fair consideration,”
which asks whether the military court’s decision conforms to
Supreme Court standards, does not appear to contemplate such
deference. Although in New II the court did not describe the
exact degree of deference accorded to the military courts, its
analysis suggests there are two steps in applying the “full and
fair consideration” standard: (1) a review of the military court’s
thoroughness in examining the relevant claims, at least where
thoroughness is contested; and (2) a close look at the merits of
the claim, albeit with some degree of deference and certainly
more than under Kauffman’s de novo standard.

The contrast between Kauffman and New II is sharp because
New II does not refer to Kauffman, which represented this
court’s most extensive previous interpretation of the Burns “full
and fair consideration” standard that New II purports to apply
(albeit as a stand-in for the Councilman “void” standard).
However, Sanford’s appeal does not present the occasion in
which the inconsistencies are outcome-determinative, and we
reserve for another day the question whether, on collateral
review in non-custodial cases, the court need ever reach Burns’
“full and fair consideration” inquiry: that is, resolving the extent
to which the Burns and Councilman standards may differ and
the content of those standards. Sanford presents two challenges
to his conviction: he contends, first, that the military courts did
not give his due process claim thorough-enough consideration
to satisfy the “full and fair consideration” standard, and second,
that his four-member court-martial violated the Due Process
Clause of the Fifth Amendment under Ballew. Although in a
non-custodial case Councilman frames the inquiry, we apply
New II’s approach, considering Sanford’s claims on the merits
— the least deferential test possible under either Burns or
Councilman — for it remains true that if they are unpersuasive
 10

on the merits, Sanford’s claims would fail a fortiori under the
more deferential “void” inquiry.

III.

For a Fifth Amendment due process claim in the court-
martial context, the Supreme Court has instructed that in light of
the fact that “[j]udicial deference . . . is at its apogee when
reviewing congressional decisionmaking in this area,” Weiss,
510 U.S. at 177 (internal quotations omitted), “the appropriate
standard to apply . . . is found in Middendorf,” id., where the
Court inquired “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 (quoting
Middendorf, 425 U.S. at 44). The question here, therefore, is
whether Sanford has shown that the factors militating in favor
of a six-member court-martial are so extraordinarily weighty as
to overcome the balance struck by Congress when it provided
that special courts-martial could proceed with as few as three
members.

A.
The Marine Corps Court addressed Sanford’s due process
argument in a footnote to its multi-page opinion, citing United
States v. Wolff, 5 M.J. 923 (N.C.M.R. 1978). In Wolff, the Navy
Court of Military Review,1 after noting the Sixth Amendment’s
inapplicability to courts-martial, id. at 924, concluded the
Ballew factors were inapplicable through the Fifth Amendment
as well, id. at 925. The court observed that Wolff’s contentions

1
Until 1994, the Navy-Marine Corps Court of Criminal
Appeals was called the Navy Court of Military Review and the Court
of Appeals for the Armed Forces was called the Court of Military
Appeals. See National Defense Authorization Act for Fiscal Year
1995, Pub. L. No. 103–337, § 924, 108 Stat. 2663, 2831–32 (1994).
 11

“rel[ied] upon the Ballew rationale that the quality of justice
varies proportionately with the number of members in the
deliberating body.” Id. However, it concluded that no evidence
in the record supported this premise when applied to courts-
martial. Furthermore, because of differences between civilian
jurors and court-martial members, the court was unwilling to
adopt empirical data compiled in the civilian community. Id.
The court noted that court-martial members are not selected to
represent a cross-section of the community and are deliberately
selected, not at random, but on the basis of who is best qualified
for the position. Id.; see also United States v. Corl, 6 M.J. 914,
915–16 (N.C.M.R. 1979); United States v. Guilford, 8 M.J. 598,
601–02 (A.C.M.R. 1979).

Sanford’s strongest point in contending that the military
courts failed to give his due process claim “full and fair
consideration” is that because Congress doubled the
confinement and forfeiture powers of special courts-martial
from six to twelve months,2 after Wolff was decided but before
his case, simply citing Wolff was insufficient. However, neither
Wolff, Corl, nor Guilford relied on the panel’s punishment
power to justify their holdings. Corl like Wolff instead focused
on the empirical data before the Supreme Court in Ballew, and
on the judicially recognized fact that the civilian community is
different from the military community. See Corl, 6 M.J. at 915
(citing Parker v. Levy, 417 U.S. 733 (1974); Councilman, 420
U.S. 738); see also Guilford, 8 M.J. at 601–02. Furthermore, the
factual premises underlying the rationale in all three of those
cases has not changed. It remains true that there are differences
between civilian jurors and court-martial members and that
court-martial members are not selected at random to represent

2
National Defense Authorization Act for Fiscal Year 2000,
Pub. L. No. 106–65, § 577(a), 113 Stat. 512, 625 (1999) (amending 10
U.S.C. § 819).
 12

a cross-section of the community but rather selected from the
military population on the basis of who is best qualified for the
position. 10 U.S.C. § 825(d)(2). Because Sanford’s due process
claim was therefore controlled by those prior decisions, it is
unclear what benefit could have come from a longer discussion.

Taking New II at its word, 448 F.3d at 410, that summary
disposition is appropriate for a weak claim, the Marine Corps
Court’s citation to precedent addressing the relevant
considerations and UCMJ Article 29 sufficed. The Marine
Corps Court gave “full and fair consideration” to Sanford’s due
process claim in light of the fact that its resolution was
predetermined by binding precedent.

B.
In Ballew the Supreme Court held that five-person juries for
non-petty offenses violated the Sixth Amendment right to a
criminal jury trial, 435 U.S. at 239, a right that previously had
been incorporated through the Fourteenth Amendment to apply
to the States, see Duncan v. Louisiana, 391 U.S. 145 (1968).
Relying on empirical studies of juries and group dynamics more
generally, the Court concluded that there was a constitutional
deficiency with juries that were too small. The studies showed
that, in general, as group size decreased beyond a certain
threshold, so did the quality of deliberation, Ballew, 435 U.S. at
232–33. When juries in particular were smaller, the studies
raised doubts about the accuracy and consistency of the results
achieved. Id. at 234. The studies further indicated that smaller
juries resulted in fewer minority viewpoints being represented,
and that jurors holding those viewpoints were less likely to
speak up during deliberations. Id. at 236. Finally, the studies
indicated that representation of minority groups decreased with
decreasing panel size. Id. at 236–37. Given the Sixth
Amendment’s requirement of “an impartial jury of the State and
district wherein the crime shall have been committed,” the Court
 13

was concerned that juries with fewer than six members would
limit “the opportunity for meaningful and appropriate
representation” of a “cross-section of the community,” id. at
237.

Members of the military are entitled to the basic guarantees
of due process. Burns, 346 U.S. at 142–43. However, the Sixth
Amendment right to a criminal jury trial does not, itself, apply
to the military. Ex parte Quirin, 317 U.S. 1, 38–41 (1942).
Therefore, Sanford’s challenge to a special court-martial of less
than six members must proceed without the benefit of that right.
Thus, Sanford was obligated to demonstrate to the military
courts that, under the Fifth Amendment, “the factors militating
in favor of [at least six-member courts-martial] are so
extraordinarily weighty as to overcome the balance struck by
Congress,” Weiss, 510 U.S. at 177–78 (quoting Middendorf, 425
U.S. at 44). Instead, Sanford attempts to avoid the balancing
that Weiss requires for new due process rights by recasting
Ballew as a due process case that would apply directly to courts-
martial as a preexisting constitutional requirement. He
maintains that because courts-martial are subject to the Due
Process Clause of the Fifth Amendment, and because the Sixth
Amendment jury trial right applies to the States through the Due
Process Clause of the Fourteenth Amendment, Ballew is in fact
a “due process” case that provides the requisite Supreme Court
standard, from which the military must justify deviation under
Kauffman. See Appellant’s Br. at 18–21. For at least two
reasons, this position is flawed.

First, adoption of Sanford’s reasoning would undermine
Quirin, essentially importing a Sixth Amendment jury trial right
that the Supreme Court has held is inapplicable to the military
through the Fifth Amendment. Second, Sanford misapprehends
the doctrine of incorporation. As Ballew makes clear, the
“[Sixth] Amendment’s provision as to trial by jury is made
 14

applicable to the States by the Fourteenth Amendment.” 435
U.S. at 224 n.1 (emphasis added). The right to jury trial is not,
however, converted into a procedural due process right by
incorporation. Sanford’s assertion of a Fifth Amendment due
process right to a trial by at least six court-martial members
therefore seeks recognition of an as yet undiscovered
constitutional right.

Sanford’s flawed conclusion that Ballew recognized a due
process right infects the rest of his argument, which presumes
that “[t]he burden is on the government to show ‘that military
conditions require a different rule than that prevailing in the
civilian community.’” Appellant’s Br. 24 (citing Courtney v.
Williams, 1 M.J. 267, 270 (C.M.A. 1976) (in turn citing
Kauffman, 415 F.2d at 997)). If the Sixth Amendment jury trial
right applied directly to the military, then it would have been
relevant (if true) that “[t]he government never demonstrated . .
. that the empirical basis on which Ballew rests would be any
different in light of the compositional differences between court-
martial panels and civilian juries,” id. at 21. Under Kauffman
judgments can diverge from Supreme Court standards only
when military life requires a different rule. Because Ballew was
not a due process case, however, there is no prevailing Fifth
Amendment standard on this issue with which to require
military conformity, and Sanford had to do more than simply
rebut the government’s arguments about why Ballew was
inapposite; he had to offer affirmative arguments to meet the
higher standard articulated in Weiss.

Sanford does contend that court-martial members are not
functionally different from civilian jurors. Both need to evaluate
evidence and find facts, and both justice systems are premised
on the implicit assumption that there will be a fair and impartial
tribunal that will find facts accurately. One circuit has
suggested this similarity lends “some credence” to Sanford’s
 15

view that the numerosity requirements should be similar.
Mendrano v. Smith, 797 F.2d 1538, 1541 (10th Cir. 1986).
Sanford points to Williams v. Florida, 399 U.S. 78, 100 (1970),
for the proposition that the “purpose of the jury trial . . . is to
prevent oppression by the Government.” Even so, Sanford’s
contention suffers from the same flaw as his contention the
burden is on the government: because Ballew was not a Fifth
Amendment case, arguing that civilian jurors and court-martial
members are functionally equivalent does not advance Sanford’s
Fifth Amendment due process claim. The Due Process Clause
does not currently contain a requirement of a trial by jury or
court-martial panel, and Sanford therefore needed to offer a
persuasive connection between the considerations underlying
Ballew and Fifth Amendment due process.

Sanford assumes that the differences between courts-martial
and civilian trials, considered holistically, are irrelevant to the
due process inquiry. See Appellant’s Br. at 20. However, Wolff
recognized that courts-martial are not empaneled to represent a
fair cross-section of the community, Wolff, 5 M.J. at 925, and
Ballew’s holding rested in part on this requirement, see Ballew,
435 U.S. at 236–37. Indeed, civilian justice and military justice
differ in ways even as fundamental as the purposes that the two
systems of justice serve. Sanford himself recognizes that one of
the purposes of military law, unlike civilian law, is “to assist in
maintaining good order and discipline in the armed forces, to
promote efficiency and effectiveness in the military
establishment, and thereby to strengthen the national security of
the United States.” Appellant’s Br. 20 n.12; Reply Br. 5–6
(quoting Manual for Courts-Martial, United States, Preamble ¶
3 (2008 ed.)). Yet Sanford never confronts those parts of the
military justice system that focus on the accuracy of fact finding,
nor on its various procedural safeguards regarding qualifications
for members of courts-martial, see, e.g., 10 U.S.C. § 825(d)(2),
the requirement of fair and impartial panel members, United
 16

States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004), much less on
the provision of de novo appellate review, 10 U.S.C. § 866(c).

Under Weiss, it is insufficient for Sanford simply to posit
that members of a court-martial have the same legal duty as
civilian jurors to follow the judge’s instructions and thus to
conclude that the military justice system is not so “distinct” as
to preclude the application to the military of the numerosity
requirement identified in Ballew. Neither is it enough to point
out that the government failed to demonstrate through studies or
otherwise that the empirical basis on which Ballew rests would
be any different in light of the compositional differences
between court-martial panels and civilian juries. In light of
those differences and the functional differences between the
civilian and military justice systems more generally, the military
courts’ rejection of Sanford’s claim was not fundamentally
defective. In urging a new due process right Sanford had to
demonstrate that the empirical studies relied on in Ballew or
comparable studies of the military justice system would show a
due process violation in the context of the military justice
system.

It is true that Sanford points to history showing that courts-
martial of three members or fewer have never been able to
impose imprisonment of greater than six months, although
courts-martial of five members were granted such authority by
the Continental Congress (as are general courts-martial under
the UCMJ). History is “a factor that must be weighed” in the
due process analysis. Weiss, 510 U.S. at 179. But Sanford
acknowledges that the absence of historical precedent is not
enough for him to succeed. See Appellant’s Br. 30.

To the extent Sanford sought to rely on Ballew, it was
incumbent on him to demonstrate, at a minimum, that Ballew,
or the considerations underlying its holding, applied outside of
 17

the Sixth Amendment to the Due Process Clause of the Fifth
Amendment. That is, he needed to show that the same concerns
underlying the Ballew decision also undermine “a fair trial in a
fair tribunal,” which is “a basic requirement of due process,”
Weiss, 510 U.S. at 178 (internal quotation omitted), so as to
meet his burden under Weiss. This Sanford did not do. Because
he presumed that the government had the burden to justify a
departure from the Ballew rule, the majority of his briefing
simply rebuts the arguments that the government presented in
the district court. But these arguments do not offer affirmative
reasons why courts-martial that fail to conform to Ballew
violate the Fifth Amendment. As the advocate of a rule that
does not already apply, Sanford needed to show that Fifth
Amendment due process requires a court-martial panel to have
six or more members. Instead, by presuming the burden was on
the government to justify a “departure” from Ballew, which in
turn incorrectly presumed that Ballew applied to courts-martial,
he failed to present arguments under the appropriate standard
articulated in Weiss. Accordingly, because the military courts’
analysis suffered from no fundamental defect, we affirm the
dismissal of Sanford’s complaint pursuant to Rule 12(b)(6).