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Argued September 18, 2009

Before: ROGERS, TATEL and BROWN, Circuit Judges.

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.

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