TONY J. VIOLA, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-1239

   In the Supreme Court of the United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals

   Brief For The United States In Opposition

             TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            Opinions Below

   The order of the Court of Military Appeals (Pet. App. 1a-2a)
affirming petitioner's conviction is not yet officially reported.  The
opinion of the Army Court of Military Review (Pet. App. 3a-35a) is
reported at 26 M.J. 822.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on
December 1, 1988.  The petition was filed on January 26, 1989.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1259(3) (Supp.
IV 1986).

                          QUESTION PRESENTED

   Whether Articles 16(1)(A) and 52(a)(2) of the Uniform Code of
Military Justice, 10 U.S.C. 816(1)(A) and 852(a)(2) (1982 & Supp. V
1987), violate the Constitution by permitting a defendant to be
convicted by the two-thirds vote of a court-martial panel containing
as few as five members.

                               STATEMENT

   Petitioner, a member of the United States Army, was tried by a
general court-martial at Camp Casey in the Republic of Korea.  He was
convicted of premeditated murder, in violation of Article 118 of the
Uniform Code of Military Justice (UCMJ), 10 U.S.C. 918.  He was
sentenced to confinement for life, total forfeiture of pay, a
reduction in rank, and a dishonorable discharge.  The Army Court of
Military Review affirmed the findings and sentence.  The Court of
Military Appeals granted review and summarily affirmed.

   1.  Petitioner and the victim were members of the same tank
platoon.  Petitioner was a Private First Class.  The victim, Jon R.
Watson, was a corporal, and, as such, occassionally supervised
petitioner's work.  Tr. 1090-1092.  Petitioner disliked Corporal
Watson.  Tr. 761, 763, 1164-1165;  Pet. App. 28a.  That dislike began
after petitioner's commanding officer imposed nonjudicial punishment
on petitioner for being insubordinate to Corporal Watson.  Tr. 744,
821.  /1/ Petitioner blamed Corporal Watson for that punishment and
offered another soldier $50 if the soldier would "beat the shit" out
of Watson.  /2/ Tr. 791-792, 1166.

   During the weekend of March 1-3, 1986, 17 members of petitioner's
platoon went on a ski trip to the Dragon Valley Ski Resort in Yong
Pyong, Korea.  The platoon leader organized the trip to reward the
platoon following a field training exercise, and to allow the soldiers
to relax.  Tr. 505, 837-838, 1091.  On the evening of March 2, a
number of the platoon members gathered in the lobby of their hostel to
play the game "Trivial Pursuit." Petitioner played and drank alcoholic
beverages.  /3/ Tr. 896.  At approximately 11:30 p.m., petitioner and
Corporal Watson followed two other soldiers to a discotheque, which
they discovered was closed.  Tr. 510-511, 857-859, 1111;  Pet. App.
5a.  While the other two soldiers walked to a nearby bar, petitioner
led Corporal Watson toward a dark part of the resort.  Tr. 1120, 1172.
 Shortly thereafter, petitioner killed Corporal Watson.  /4/

   Petitioner returned to the hostel at approximately 12:16 a.m. Tr.
907.  Another soldier, Sergeant Greene, asked him where he left
Corporal Watson.  Petitioner stated at various times that he left
Corporal Watson at the discotheque, by the swimming pool, and at the
front desk of the hostel.  Ibid.  /5/ A search party was organized,
but did not locate Corporal Watson.  Tr. 908, 914.

   Corporal Watson's body was found the next morning.  Tr. 703;  Pet.
App. 6a.  Nearby was a length of wood with blood on one end of it.
Tr. 709-710;  GX 21, 22;  Pet. App. 7a.  /6/ Blood was also found on a
wall near the body, indicating that the victim had been struck while
on the ground.  Tr. 1287, 1289;  GX 8, 9.  An autopsy revealed that
Corporal Watsons's death had been caused by a number of blunt force
blows to his head.  Tr. 623.

   When Corporal Watson's body was found, his pants were unbuttoned
and the zipper was open.  GXs 8-10.  Petitioner told one of the
witnesses that he had hit Corporal Watson from behind with a pole
while Watson was urinating.  Pet. App. 9a.

   Shortly after Corporal Watson's body was discovered, all of the
platoon members were gathered together, informed of the death, and
told that they would need to make statements.  Petitioner asked two
fellow soldiers to help him "get the bloody sweat pants out of my
bag." Tr. 707, 771.  Petitioner told another soldier that he had
hidden Corporal Watson's wallet.  Tr. 708;  Pet. App. 9a.  The wallet
was later recovered from a snowbank not far from the body.  The Army
Court of Military Review determined from that evidence that petitioner
had hoped that the investigators would conclude that the murder was
committed during the course of a robbery.  Pet. App. 32a.

   2.  Pursuant to its authority under Art. I, Section 8, Cl. 14, of
the Constitution to "makes Rules for the Government and Regulation of
the land and naval Forces," Congress has enacted the Uniform Code of
Military Justice, which governs the size, selection process,
composition, and voting procedures of courts-martial.  Article
16(1)(A) of the UCMJ, 10 U.S.C. 816(1)(A) (Supp. V 1987), provides
that general courts-martial shall consist of at least five members,
although any greater number is permissible.  Article 25(d)(2) of the
Code, 10 U.S.C. 825(d)(2), directs the court-martial convening
authority /7/ to select as court-martial panel members "such members
of the armed forces as, in his opinion, are best qualified for the
duty by reason of age, education, training, experience, length of
service and judicial temperament." /8/ Article 25(c)(1) of the Code,
10 U.S.C. 825(c)(1) (Supp. V 1987), allows an enlisted defendant to
insist that at least one-third of the court-martial panel be made up
of enlisted personnel equal to or senior in rank to the defendant and
from a different military unit, unless physical conditions or military
exigencies prevent such persons from being assigned to a
court-martial.  Article 52(a)(2) of the UCMJ, 10 U.S.C. 852(a)(2),
requires a two-thirds majority vote of the panel members for a finding
of guilty of all crimes not carrying a mandatory death sentence.  /9/
On sentencing, a two-thirds majority vote is necessary for a sentence
of imprisonment less than ten years, a three-fourths majority is
required for sentences of ten years' incarceration or more, and a
unanimous vote is necessary to impose the death penalty.  /10/ The
military justice system does not provide for a retrial in the event
that the panel is unable to agree by the necessary majority.  When
that occurs, the defendant is automatically acquitted.  Rule
921(c)(3), Manual.

   3.  Petitioner's trial convened on April 21, 1986.  He pleaded not
guilty and requested that the court-martial panel be composed of both
officer and enlisted members.  Tr. 8.  Originally, nine members were
detailed to petitioner's court-martial.  Tr. 226.  The trial judge
granted two of petitioner's three challenges for cause.  Tr. 424-427.
Each party exercised one peremptory challenge, Tr. 428, leaving a
court-martial panel consisting of five members.  The defense then
moved the trial court to hold that the Sixth Amendment jury trial
right applied to courts-martial and that the panel, consisting of less
than six members, violated the Sixth Amendment.  The trial judge
denied petitioner's motion.  Tr. 440.

   Following the presentation of the evidence, the trial judge
instructed the panel, without defense objection, that the concurrence
of four out of the five members was required for any findings of
guilty.  Tr. 1475.  He further instructed the panel members that if
they reached a unanimous finding of guilty to premeditated murder or
felony murder, that unanimity should be announced.  Tr. 1476.  The
president of the panel announced that two-thirds of the panel found
petitioner guilty of premeditated murder.  Tr. 1481, 1489-1490.

   4.  The Army Court of Military Review affirmed, Pet. App. 3a-35a,
noting that challenges of the nature that petitioner now makes have
been repeatedly rejected.  Id. at 34a.  The Court of Military Appeals
granted review on the issue presented by petitioner and summarily
affirmed.  Id. at 1a-2a.

                               ARGUMENT

   In Ballew v. Georgia, 435 U.S. 223 (1978), the Court held that the
Sixth and Fourteenth Amendments require that at least six persons
serve on the jury in serious state criminal cases.  In Burch v.
Louisiana, 441 U.S. 130 (1979), the Court ruled that the verdict by
such a six-person jury must be unanimous.  Relying on Burch and
Ballew, petitioner contends that his conviction by four members of a
five-member court-martial panel violates the Due Process Clause of the
Fifth Amendment.  That contention does not warrant review by this
Court.  /11/

   1.  Petitioner has not properly preserved his unanimity claim.  At
trial, petitioner relied solely upon the claim that the Sixth
Amendment applies to trials by courts-martial and requires that the
court-martial consist of at least six members.  Tr. 431, 438.
Petitioner did not contend, as he does now (Pet. i, 16 n.3), that due
process requires a unanimous verdict.  Tr. 431-438.  Before this
Court, petitioner has not pressed his Sixth Amendment claim (Pet. 16),
but urges that a court-martial panel must consist of at least six
members and that the vote of a six-member panel must be unanimous.
His purpose in adding the unanimity argument is clear:  If the
court-martial had consisted of six members, the military rule
requiring a two-thirds majority vote to convict would have required
the concurrence of only four members, which was the same number
required to convict with a panel of five.  Because petitioner did not
raise the unanimity claim at trial, however, the trial judge's
instructions to the panel regarding the degree of concurrence required
to convict cannot be held erroneous unless they amounted to plain
error.  For the reasons discussed below, petitioner cannot meet that
standard.

   2.  There is no conflict among the circuits on the question
presented by petitioner.  The military courts have consistently
rejected the claim that the court-martial system established by
Congress is invalid under Burch v. Louisiana, supra, and Ballew v.
Georgia, supra, because a servicemember may be convicted by a
two-thirds vote of the court-martial panel.  United States v. Mason,
24 M.J. 127, 128 & n.* (C.M.A. 1987), cert. denied, 108 S. Ct. 257
(1987);  United States v. Hutchinson, 17 M.J. 156, 156-157, 18 M.J.
281 (C.M.A.), cert. denied, 469 U.S. 981 (1984);  see United States v.
McClain, 22 M.J. 124, 128 (C.M.A. 1986);  United States v. Kemp, 22
C.M.A. 152, 154, 46 C.M.R. 152, 154 (1973) (the Sixth Amendment
cross-section requirement is inapplicable to court-martial panels).
The decisions of that court are consistent with the decision of the
only federal court of appeals to consider the issue in light of this
Court's decisions in Burch and Ballew.  Mendrano v. Smith, 797 F.2d
1538, 1544-1547 (10th Cir. 1986).

   3.  The decision below is correct.  The statutes governing the
number of members on court-martial panels and the number that must
concur to return a verdict do not offend either the Fifth or Sixth
Amendments to the Constitution.

   a.  Petitioner seeks to impose on courts-martial the same
requirements that Art. III, Section 2, Cl. 3, and the Sixth Amendment
impose in civilian cases.  It is well settled, however, that the right
to a jury trial that is guaranteed by those provisions does not apply
to court-martial proceedings.  Ex parte Milligan, 71 U.S. (4 Wall.) 2,
123 (1866);  Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858).  /12/
The Fifth Amendment specifically exempts "cases arising in the land or
naval forces" from the requirement of an indictment by a grand jury
for serious crimes.  By drafting the Fifth Amendment in that manner,
"the framers of the constitution, doubtless, meant to limit the right
of trial by jury, in the sixth amendment, to those persons who were
subject to indictment or presentment in the fifth." Ex parte Milligan,
71 U.S. (4 Wall.) at 123.  As the Court explained in Ex parte Quirin,
317 U.S. 1, 39 (1942), neither Section 2 of Article III of the
Constitution nor the Sixth Amendment requires a trial by jury in the
military, because those provisions were intended "to preserve
unimpaired trial by jury in all those cases in which it had been
recognized by the common law * * *, but not to bring within the sweep
of the guaranty those cases in which it was then well understood that
a jury trial could not be demanded as of right." Accordingly, because
petitioner had no Article III or Sixth Amendment right to a trial by a
petit jury, he also had no right under those provisions to a unanimous
vote by a jury composed of at least six persons.

   b.  Petitioner's claim fares no better unde the Due Process Clause.
 The Constitution authorizes Congress to "make Rules for the
Government and Regulation of the land and naval Forces," Art. I,
Section 8, Cl. 14, and grants Congress "primary responsibility for the
delicate task of balancing the rights of servicemen against the needs
of the military." Solorio v. United States, 107 S. Ct. 2924, 2931
(1987).  See also Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality
opinion).  Congress's judgment about the composition and voting
procedures of a court-martial is entitled to special deference, not
only because "(t)he constitution of courts-martial, like other matters
relating to their organization and administration * * *, is a matter
appropriate for congressional action," Whelchel v. McDonald, 340 U.S.
122, 127 (1950) (citations omitted), /13/ but also because the
practices at issue have been carried forward from the earliest days of
our nation.  Cf. Solorio v. United States, 107 S. Ct. at 2928-2930.

   The nation's first military law was the American Articles of War of
1776.  1 & 2 W. Winthrop, Military Law and Precedents 47, App. 961-971
(2d ed. 1920).  Section 14, Art. 1, provided that at least 13 officers
would serve on general courts-martial (i.e., a president and 12
members).  5 J. Continental Cong. 800 (W. Ford ed. 1906);  1 & 2 W.
Winthrop, supra, App. 967.  In 1782, Congress substantially adopted
the English practice for naval courts-martial of detailing five
officers to a court-martial in a capital case and three in a
noncapital case.  22 J. Continental Cong. 325 (G. Hunt ed. 1914).
Four years later, when large numbers of desertions and an
understaffing of officers had become a particularly acute problem for
commanders at frontier outposts, Congress amended the American
Articles of War to permit a quorum of five officers at a general
court-martial and three officers at regimental courts-martial when 13
members could not be detailed "without manifest injury to the
service." 30 J. Continental Cong. 145, 316 (J. Fitzpatrick ed. 1934);
1 & 2 W. Winthrop, supra, at 22-23, App. 972;  Van Loan, The Jury, the
Court-Martial, and the Constitution, 57 Cornell L. Rev. 363, 384-385
n.118 (1972).  That language was merely advisory to the officer
responsible for appointing the members of a court-martial, however,
and his decision to select a small number of members was both lawful
and conclusive.  Martin v. Mott, 25 U.S. (12 Wheat.) 19, 34-35 (1827).
 /14/

   Congress endorsed that practice throughout the nineteenth century
and the early part of the twentieth century when revising the Articles
of War.  1 & 2 W. Winthrop, supra, at 77, 159;  American Articles of
War of 1806, ch. 20, Art. 64, 2 Stat. 367, reprinted in 1 & 2 W.
Winthrop, supra, App. 981-982;  American Articles of War of 1874, Art.
75, reprinted in 1 & 2 W. Winthrop, supra, App. 992;  American
Articles of War of 1916, ch. 418, Art. 5, 39 Stat. 651.  In the
aftermath of World War II, Congress replaced the Articles of War with
the Uniform Code of Military Justice.  In so doing, Congress retained
the requirement of a quorum of five members for general
courts-martial, as well as the convening authority's discretion to
detail a greater number of panel members, the system that exists
today.  Art. 16, UCMJ, 10 U.S.C. 816 (1982 & Supp. V 1987).

   History also shows that unanimity has never been a feature of
court-martial proceedings.  /15/ The American Articles of War of 1776,
like their predecessor, the British Articles of War, /16/ required
only a simple majority vote to convict a defendant and a two-thirds
majority to sentence him to death.  Articles of War of 1776, Section
14, Art. 5, reprinted in 5 J. Continental Cong. 801 (W. Ford ed.
1906);  1 & 2 W. Winthrop, supra, at 377, App. 968;  A. Macomb, A
Treatise on Martial Law and Courts-Martial 144 (1809).  Congress
thereafter repeatedly endorsed similar majority vote requirements in
statutes passed in 1800, 1806, 1862, and 1874.  /17/ Throughout the
nineteenth century, a majority vote of the panel members was
sufficient to convict a defendant of a noncapital crime, with a
two-thirds vote sufficient to impose capital punishment.  1 & 2 W.
Winthrop, supra, at 377;  Stout v. Hancock, 146 F.2d 741, 742-743 (4th
Cir. 1944), cert. denied, 325 U.S. 850 (1945).

   Early in the twentieth century, Congress modified the voting
requirements for Army courts-martial, requiring a unanimous vote to
impose the death penalty or to convict a defendant of a crime carrying
a mandatory death penalty.  Act of June 4, 1920, ch. 227, Art. 43, 41
Stat. 795-796;  Stout v. Hancock, 146 F.2d at 741-743.  For all other
crimes, conviction required only a two-thirds majority.  At the same
time, the voting requirements for courts-martial in the Navy were left
untouched.  Thus, only a simple majority was necessary to convict a
sailor, and a two-thirds majority to impose the death penalty.  See
H.R. Rep. No. 491, 81st Cong., 1st Sess. 26, 74 (1949).  When
considering the UCMJ following World War II, Congress adopted Article
52 of the UCMJ, 10 U.S.C. 852, in substantially its present form.
/18/

   In 1984, Congress amended the UCMJ to coincide with proposed
changes to the Manual for Courts-Martial.  Military Justice Act of
1983, Pub. L. No. 98-209, 97 Stat. 1393.  Concurrently, the President,
acting pursuant to his rule-making authority, promulgated the current
Manual.  In 1986, Congress enacted additional changes to the UCMJ,
including the addition of Article 106a, 10 U.S.C. 906a (Supp. V 1987),
an espionage statute that provides for capital punishment.  That year,
the President modified the Manual to limit the imposition of the death
penalty to those cases in which the court-martial panel members
unanimously find the defendant guilty of an offense for which Congress
has authorized the death penalty, and then only if the court finds at
least one enumerated aggravating factor.  Rule 1004, Manual;  Exec.
Order No. 12,550, 3 C.F.R. 192 (1986 comp.).  Neither Congress nor the
President sought to extend the unanimity requirement to other
situations.  In sum, it is clear that the five-member, two-thirds
majority vote procedures in Articles 16(1)(A) and 52(a)(2) of the
UCMJ, 10 U.S.C. 816(1)(A) and 852(a)(2) (1982 & Supp. V 1987),
represent the longstanding and considered judgment of Congress and the
President on the proper balance to be struck between the rights of an
individual serviceman and the special needs of the armed forces.

   That judgment is a reasonable one.  The essential function of the
military is "to fight or be ready to fight wars should the occasion
arise." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).
 When servicemembers are diverted from that function by the need to
serve as court-martial panel members, "the basic fighting purpose of
armies is not served." Ibid.  Congress therefore has determined that
the diversion of resources necessary to conduct the retrials that
would result from a unanimous verdict requirement is too high a price
to pay in terms of lost military preparedness.  /19/ Accordingly,
Congress provided for only one trial, at which a two-thirds majority
vote would suffice to convict.  /20/

   The military justice system does not exclusively favor the
prosecution.  The rule that no retrials are permitted in the military
if there is a "hung jury" provides a defendant with "a significant
recompense" for the disadvantages of not requiring a unanimous
verdict.  Mendrano v. Smith, 797 F.2d at 1546.  Moreover, as a
safeguard against an inaccurate verdict by a court-martial panel, the
military courts have required the prosecution independently to prove
the defendant's guilt before a court of military review.  The standard
of review applied by a court of military review to determine whether
the evidence is sufficient to support the defendant's conviction
substantially differs from, and is more generous to military
defendants than, the standard employed by civilian appellate courts.
A civilian appellate court does not inquire whether it believes that
the evidence is sufficient to prove the defendant's guilt beyond a
reasonable doubt, but instead only determines "whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis in original).  By contrast, a court of military
review must independently review the record and be convinced of the
correctness of the court-martial panel's findings, including its
ultimate finding that the accused is guilty, before the findings may
be upheld.  Art. 66(c), UCMJ, 10 U.S.C. 866(c).  /21/

   In addition to the more exacting standards of appellate review, the
military defendant enjoys greater rights than his civilian counterpart
at the pretrial and post-trial stages of the proceedings.  No charge
may be referred to a general court-martial for trial without an
impartial investigation into the evidence supporting the charge.  Art.
32, UCMJ, 10 U.S.C. 832.  That procedure includes the right of the
accused to be represented by counsel.  A convening authority may not
refer a charge to a general court-martial for trial without
independently assessing the sufficiency of the evidence.  Art. 34(a),
UCMJ, 10 U.S.C. 834(a) (Supp. V 1987).  After trial, the convening
authority receives a report of the trial, and he may disapprove
findings of guilt or reduce the sentence as a matter of clemency or as
a prerogative of command.  Art. 60, UCMJ, 10 U.S.C. 860 (Supp. V
1987).  To assist the convening authority, the accused has the right
to submit legal arguments and other matters with respect to the
findings and sentence.  Ibid.  See generally, United States v. Boland,
1 M.J. 241 (C.M.A. 1975);  Moyer, Procedural Rights of the Military
Accused:  Advantages Over a Civilian Defendant, 22 Me. L. Rev. 105
(1970).  In light of these special protections against the risk of
inaccurate verdicts in the military justice system, petitioner has not
made the "extraordinarily weighty" case necessary to overcome the
longstanding congressional judgment that the court-martial system
satisfies due process requirements.  Middendorf v. Henry, 425 U.S. 25,
44 (1976).

   There is also no merit to the specific objections that petitioner
asserts (Pet. 15, 24) to his trial.  Petitioner's conviction is not
invalid because his court-martial panel was not randomly selected from
a pool containing all servicemen, including enlisted personnel of the
same rank as petitioner.  De War v. Hunter, 170 F.2d 993, 997 (10th
Cir. 1948), cert. denied, 337 U.S. 908 (1949) (court-martial panel
composed exclusively of officers to try an enlisted man does not
violate Sixth Amendment);  United States v. McClain, 22 M.J. at 128
(Sixth Amendment cross-section requirement inapplicable to
court-martial proceedings);  see Mendrano v. Smith, 797 F.2d
1544-1547.  Moreover, the fact that a military defendant receives only
one peremptory challenge is of no significance, since a civilian
defendant has no constitutional right to peremptory challenges at all,
much less to any specific number of them.  Batson v. Kentucky, 476
U.S. 79, 91 (1986);  id. at 108 (Marshall, J., concurring) (collecting
cases);  Stilson v. United States, 250 U.S. 583, 586 (1919).  Finally,
there is no merit to petitioner's claim that the exclusion from the
court-martial panel of servicemembers who would not consider imposing
the death penalty violated due process.  This Court has twice recently
rejected that precise claim.  Buchanan v. Kentucky, 107 S. Ct. 2906,
2913-2916 (1987);  Lockhart v. McCree, 476 U.S. 162 (1986).

   4.  Petitioner argues that the nonunanimous verdict of a
five-member court-martial is inherently unreliable.  To support that
claim, petitioner relies on the studies cited in the lead opinion in
Ballew v. Georgia, 435 U.S. at 231-243 (opinion of Blackmun, J.),
which relied heavily on empirical studies of the group dynamics of
civilian juries.  Much of the same reasoning formed the basis for the
decision in Burch v. Louisiana, 441 U.S. at 138.  There are no
comparable studies, however, that have addressed the dynamics of
courts-martial panels.  /22/ In light of the functional and
compositional differences between civilian juries and courts-martial
panels, the studies on which Burch and Ballew relied are not
immediately applicable to the military setting.  United States v.
Guilford, 8 M.J. 598, 601-602 (A.C.M.R. 1979), pet. for review denied,
8 M.J. 242 (C.M.A. 1980).  /23/ Given the special deference due to
Congress's judgments in this area, the question whether studies of the
type relied upon in Ballew justify a change in the UCMJ should be left
to Congress.  /24/

   5.  Petitioner suggests (Pet. 9-10) that this Court's recent
decision in Solorio v. United States, supra, requires a different
result.  He argues that the procedures at issue may have been
permissible before Solorio, but are no longer justified now that the
Court has eliminated the service-connection restriction on
courts-martial.  That argument is misdirected.

   The Solorio decision did not abolish the service-connection
requirement;  it merely reaffirmed the traditional principle that a
crime is sufficiently service-connected for purposes of court-martial
jurisdiction if the defendant is a servicemember at the time of the
commission of the crime and at the time of trial.  The effect of
Solorio is not to convert the military justice system into one closely
analogous to a civilian system, in which Fifth and Sixth Amendment
principles apply just as they do in the civilian courts.  Solorio
simply restored court-martial jurisdiction to a class of cases, not
covered during the 18-year period following O'Callahan v. Parker, 395
U.S. 258 (1969), consisting of certain cases in which the crimes were
committed by servicemembers off the premises of military bases.  The
rules regarding the number and voting requirements of court-martial
panels were adopted prior to the Court's decision in O'Callahan, not
during the period between O'Callahan and Solorio.  Moreover, there is
no historical or logical connection between the service-connection
restriction, as applied in O'Callahan, and the court-martial rules at
issue here.  The decision in Solorio therefore has no bearing on the
validity of those rules in the military justice system.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   NORMAN G. COOPER

      Col., JAGC, USA

   GARY F. ROBERSON

      Lt. Col., JAGC, USA

   GARY L. HAUSKEN

      Major, JAGC, USA Appellate Government Counsel Government
      Appellate Division United States Army Legal Services Agency

   MARCH 1989

   /1/ Nonjudicial punishment is a form of minor punishment authorized
by the UCMJ.  10 U.S.C. 815 (1982 & Supp. V 1987).  Petitioner's
punishment was to perform "extra duty," which was to be completed
after normal working hours.  Tr. 1094.

   /2/ Petitioner made no secret of his intense dislike for Corporal
Watson.  He admitted expressing his contempt for Corporal Watson to
other members of the platoon, Tr. 1165, and he admitted that he was
"dead serious" when he tried to pay another soldier to beat up Watson.
 Tr. 1166.  A fellow soldier testified that petitioner purchased a ski
mask in November 1985 to conceal his identity because he was going to
"kick Corporal Watson's ass." Tr. 1040.

   /3/ Petitioner's platoon leader, First Lieutenant Clays, testified
that petitioner's alcohol consumption did not affect his behavior,
that he played the game for four hours (ending at 11:30 p.m.), and
that petitioner was in control of his actions at the end of the game.
Tr. 841.  On the other hand, Lieutenant Clays and several other
witnesses testified that Corporal Watson was noticeably intoxicated,
so much so that he could not play the game and could not be expected
to defend himself or start a fight.  Tr. 842-843, 866, 881-883.  The
Army Court of Military Review specifically found that both petitioner
and his victim were "somewhat intoxicated, the victim more so than
(petitioner)." Pet. App. 29a.

   /4/ At trial petitioner claimed that he acted in self-defense and
that he lacked an intent to kill.  Petitioner's story was as follows:
He and Corporal Watson had crossed paths with two Koreans after
leaving the discotheque.  Tr. 1123-1124.  Corporal Watson wanted to
fight the Koreans, but petitioner restrained him.  Corporal Watson
then turned on petitioner, kicking him in the groin.  Tr. 1126.
Corporal Watson provoked petitioner to fight.  Tr. 1128-1132.  The
fight ended when petitioner first kicked Watson in the face, then hit
him with a stick.  Tr. 1144.  Petitioner admitted trying to hide the
stick and hiding Watson's wallet.  Tr. 1146-1148.  Petitioner also
admitted that he cleaned the blood off his shoes.  Tr. 1150.  The Army
Court of Military Review found that petitioner's attack on Corporal
Watson was unprovoked by any physical or verbal aggression by the
victim, Pet. App. 30a-31a, and that "the defense's theory of the case
is implausible." Id. at 23a.  That court also concluded that
petitioner's blows were calculated to kill, not merely to wound, as
shown by the concentration and severity of the blows.

   /5/ At trail petitioner admitted giving several inconsistent
responses to Sergeant Greene.  Tr. 1154.

   /6/ The stake, GX 23, was found bracing a nearby tree with the
bloody end placed in the snow.  The stake was placed so as to resemble
similar stakes used as supports for young trees.  Tr. 709, 959.

   /7/ A "convening authority" is a commander who is authorized to
convene a court-martial pursuant to Articles 22-24 of the UCMJ, 10
U.S.C. 822-824 (1982 & Supp. V 1987), and Rule for Courts-Martial 504,
Manual for Courts-Martial, United States -- 1984 (Manual).  The duties
of the convening authority include the selection and appointment of
court-martial panel members (a practice commonly known as "detailing"
members of a court-martial), directing that the accused be tried by
the court-martial for the charged offenses (a practice commonly known
as the "referral" of charges to a court-martial), and a post-trial
review of the proceedings.  See Arts. 25, 34, 60, UCMJ, 10 U.S.C. 825,
834, 860 (1982 & Supp. V 1987);  see also Rules 503, 601, 1107,
Manual.

   /8/ Before the court-martial panel is assembled, the convening
authority is free to add, delete, or substitute panel members.  Arts.
25, 29, UCMJ, 10 U.S.C. 825, 829 (1982 & Supp. V 1987).

   /9/ Rule 1004, Manual, requires a unanimous verdict as a
prerequisite to the imposition of the death penalty.

   /10/ See Mendrano v. Smith, j797 F.2d 1538, 1540-1541 (10th Cir.
1986);  United States v. Shroeder, 27 M.J. 87 (C.M.A. 1988), cert.
denied, No. 88-873 (Feb. 21, 1989);  United States v. Morphis, 7
C.M.A. 748, 752-754, 23 C.M.R. 212, 216-218 (1957);  United States v.
Walker, 7 C.M.A. 669, 673-675, 23 C.M.R. 133, 137-139 (1957).

   /11/ This Court has previously denied certiorari in several other
cases presenting substantially the same question.  Johnson v. United
States, cert. denied, 109 S. Ct. 69 (1988);  Hargrove v. United
States, cert. denied, 109 S. Ct. 76 (1988);  Mason v. United States,
cert. denied, 108 S. Ct. 257 (1987);  Delacruz v. United States, cert.
denied, 481 U.S. 1052 (1987);  Dodson v. United States, cert. denied,
479 U.S. 1006 (1986);  Garwood v. United States, cert. denied, 474
U.S. 1005 (1985);  Hutchinson v. United States, cert. denied, 469 U.S.
981 (1984).

   /12/ See also O'Callahan v. Parker, 395 U.S. 258, 261 (1969),
overruled on other grounds, Solorio v. United States, 107 S. Ct. 2924
(1987);  Reid v. Covert, 354 U.S. 1, 19 (1957) (plurality opinion);
Whelchel v. McDonald, 340 U.S. 122, 127 (1950);  Ex parte Quirin, 317
U.S. 1, 40-41 (1942);  Kahn v. Anderson, 255 U.S. 1 (1921);  Mendrano
v. Smith, 797 F.2d at 1544;  King v. Moseley, 430 F.2d 732, 734 (10th
Cir. 1970);  Branford v. United States, 356 F.2d 876, 877 (7th Cir.
1966);  Owens v. Markley, 289 F.2d 751, 752 (7th Cir. 1961).  See De
War v. Hunter, 170 F.2d 993, 997 (10th Cir. 1948), cert. denied, 337
U.S. 908 (1949) (court-martial panel composed exclusively of officers
to try an enlisted man does not violate the Sixth Amendment).  See
generally Van Loan, The Jury, the Court-Martial, and the Constitution,
57 Cornell L. Rev. 363 (1972);  Henderson, Courts-Martial and the
Constitution:  The Original Understanding, 71 Harv. L. Rev. 293
(1957).

   /13/ See also, e.g., Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981)
(the decisions of Congress are entitled to particular deference when
they involve "Congress" authority over national defense and military
affairs").

   /14/ See also Bishop v. United States, 197 U.S. 334, 339-340
(1905);  Mullan v. United States, 140 U.S. 240, 245 (1891) (convening
officer's determination that trial by members junior in rank to the
accused could not be avoided was proper).

   /15/ During the Revolution, the Continental Congress adopted the
British naval regulations for use by the Continental Navy.  The
British regulations provided for courts-martial similar to the general
courts-martial under the British Articles of War, which required only
a simple majority to convict and sentence a defendant.  Van Loan,
supra, 57 Cornell L. Rev. at 382 & n.102.

   /16/ The British Articles of War required a vote of 9 of 13
court-martial members to impose the death penalty.  1 & 2 W. Winthrop,
supra, App. 943, Section 15, Art. VIII.  The Articles of War did not
specify the number of votes necessary to convict a defendant at a
general court-martial or to impose any sentence other than death.  The
Articles of War, however, provided that inferior courts-martial "shall
give Judgment by the Majority of Voices." 1 & 2 W. Winthrop, supra,
App. 943, Section 15, Art. XII.  See R. Scott, The Military Law of
England 131 (1810).

   /17/ Act of Apr. 23, 1800, ch. 33 Section 1, Art. 41, Stat. 51 (An
Act for the Better Government of the Navy of the United States);
American Articles of War of 1806, ch. 20, Art. 87, 2 Stat. 369,
reprinted in 1 & 2 W. Winthrop, supra, App. 984;  Act of July 17,
1862, ch. 204, Art. 19, 12 Stat. 605 (An Act for the Better Government
of the Navy of the United States);  American Articles of War of 1874,
Art. 96, reprinted in 1 & 2 W. Winthrop, supra, App. 994.

   /18/ In so doing, Congress decided not to extend the unanimous vote
requirement to noncapital crimes.  See Uniform Code of Military
Justice (No. 37):  Hearings on H.R. 2498 Before a Subcomm. of the
House Comm. on Armed Services, 81st Cong., 1st Sess. 1081-1082 (1949).

   /19/ Petitioner contends (Pet. 36) that requiring six members and
unanimity would not require retrials, because it would apply only to
those cases "where mens rea and not actus rea is in dispute." While
petitioner's scenario holds true for this case, it is not true for all
premeditated or felony murder cases.  In particular, petitioner's
argument would not necessarily be true where the defense of alibi is
raised.  Further, petitioner provides no reason why premeditated
murder and felony murder should require unanimity while convictions of
other offenses for which death or life imprisonment are authorized
(e.g., espionage and rape, Art. 106a, UCMJ, 10 U.S.C. 906a (Supp. V
1987) and Art. 120, UCMJ, 10 U.S.C. 920) could be accomplished by
two-thirds majority vote.

   /20/ That judgment is certainly reasonable in a case like this one,
which was prosecuted in an overseas region (Korea) that is still
regarded as a combat zone.

   /21/ A court of military review may affirm "only such findings of
guilty * * * as it finds correct in law and fact and determines, on
the basis of the entire record, should be approved." Art. 66(c), UCMJ,
10 U.S.C. 886(c).  Although nothing in the text of the statute or its
legislative history suggests that the courts of military review must
independently apply the "beyond a reasonable doubt" standard to the
record when reviewing the sufficiency of the evidence, see Jackson v.
Taylor, 353 U.S. 569, 577 & n.8 (1957), the military courts have read
that standard into the Act.  E.g., United States v. Palenius, 2 M.J.
86, 91 n.7 (C.M.A. 1977).

   /22/ Petitioner argues (Pet. 26-32) that the conclusions drawn from
studies of civilian juries should be applied to court-martial panels
and that they rebut the conclusions in United States v. Guilford, 8
M.J. 598 (A.C.M.R. 1979), pet. for review denied, 8 M.J. 242 (C.M.A.
1980), on which the court of military review relied.  Pet. App. 34a.
In support of his argument, petitioner relies on an undated letter
from Professor Saks that was not submitted at trial.  Id. at 36a-45a.
Professor Saks admits that he knows of no studies involving
court-martial panels similar to those conducted with juries.  Id. at
37a-38a.  He admits that he is unfamiliar with the procedures used in
courts-martial.  Id. at 38a.  He is therefore unable to address any
effects that may result from the dissimilarities between
courts-martial and jury trials.

   /23/ In Burch, the Court concluded that juries must have at least
six members, in part "to provide a fair possibility that a cross
section of the community would be represented." 441 U.S. at 135,
citing Williams v. Florida, 399 U.S. 78, 100 (1970).  That goal is
inapplicable to courts-martial.  The members of a civilian jury are
selected at random to represent a cross-section of the community.  By
contrast, the members of the court-martial panel are deliberately
chosen on the basis of their qualifications to sit as panel members.
Art. 25, UCMJ, 10 U.S.C. 825 (1982 & Supp. V 1987).

   /24/ An excellent analysis of the separate nature of military
society, past and present, and the reasons why Congress is the branch
of government best suited to deal with military justice, is contained
in Hirschhorn, The Separate Community:  Military Uniqueness and
Servicemen's Constitutional Rights, 62 N.C. L. Rev. 177 (1984).