Argument Preview: Was it proper to instruct the members that they must convict the appellant in United States v. McClour, No. 16-0455/AF
CAAF will hear oral argument in the Air Force case of United States v. McClour, No. 16-0455/AF (CAAFlog case page), on Wednesday, November 2, 2016, at 2 p.m., at Peterson Air Force Base, Colorado Springs, Colorado. The case presents a single issue that challenges a standard instruction given to members in Air Force courts-martial:
Whether AFCCA erred when it failed to grant relief where the military judge instructed the members, “if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty,” where such an instruction is in violation of United States V. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.
Prior to closing a court-martial for deliberations, “the military judge shall give the members appropriate instructions on findings.” R.C.M. 920(a). Paragraph 2-5-12 of the Military Judges’ Benchbook contains Closing Substantive Instructions on Findings that instruct members on how to decide whether an accused is guilty. Those instructions include direction that:
[I]f on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.
(emphasis added). In the Air Force and sometimes in other services, however, military judges give a different instruction:
If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty.
App. Br. at 3 (emphasis added). Senior Airman (E-4) McClour was convicted after the military judge gave the members in his court-martial the must-convict instruction. Numerous other service members were convicted under similar circumstances; As of this writing CAAF has granted review of eight trailer cases raising the same issue: four from the Air Force, three from the Marine Corps, and one from the Navy.
The granted issue questions whether this must-convict instruction violates United States V. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977). Martin Linen involved a deadlocked jury and a subsequent entry of an acquittal by the district court that was appealed by the Government. The court of appeals determined that the Double Jeopardy Clause barred the appeal and the Supreme Court affirmed, concluding that “there can be no question that the judgments of acquittal entered here by the District Court were ‘acquittals’ in substance, as well as form.” 430 U.S. at 571-572. In so concluding, the Court rejected the Government’s argument that “only a verdict of acquittal formally returned by the jury should absolutely bar further proceedings,” with the observation that while “a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict . . . such a limitation on the role of a trial judge, however, has never inhibited his ruling in favor of a criminal defendant.” 430 U.S. at 572-573 (citations omitted).
And so the issue in McClour is whether the must-convict instruction – either generally or under the unique circumstances of a court-martial – is an improper direction to the members to come forward with findings of guilt.
McClour’s brief makes four primary arguments. First, it asserts that a military judge is prohibited from directing a finding of guilty. App. Br. at 7. Next, it notes that Article 51 enumerates certain mandatory instructions, and a must-convict instruction isn’t one of them. App. Br. at 7-8. Third, it asserts that the must-convict instruction conflicts with a different instruction to the members that they must determine guilt in part according to “[their] own conscience.” Br. at 9-10. And finally, it argues that the must-convict instruction deprived McClour of the possibility of nullification:
By instructing the panel members that they “must” convict if the government meets its burden, the military judge instructed the panel they did not have the power to disregard instructions on matters of law. In particular, they could not nullify. This violated Appellant’s legal right to a panel that is authorized to disregard the law. Court-martial members always have the power to disregard instructions on matters of law. . .
App. Br. at 14-15. In addition to these four arguments, McClour’s brief suggests that the military environment requires “additional safeguards to ensure that every conviction is supported by proof beyond a reasonable doubt.” App. Br. at 17-18.
The Government’s response points to civilian cases that approved of use of the same or a substantially identical instruction, including United States v. Mejia, 597 F.3d 1329, 1340 (D.C. Cir. 2010); United States v. Stegmeier, 701 F.3d 574 (8th Cir. 2012); Watts v. United States, 362 A.2d 706, 708-09 (D.C. 1976); and New Jersey v. Ragland, 519 A.2d 1361 (N.J. 1986). The Government also distinguishes Martin Linen as not directly addressing the issue presented in this case. And the Government strongly disputes McClour’s nullification argument:
Appellant next erroneously claims that he has the “legal right to a panel that is authorized to disregard the law.” (App. Br. at 15.) This Court has already dismissed that idea in Hardy, holding “a court-martial panel does not have the right to nullify the lawful instructions of a military judge.” Hardy, 46 M.J. at 74. While it is correct that juries have the “power” to nullify, this power does not arise from an accused’s “legal right to a panel that is authorized to disregard the law.” Id. at 70. Instead, it results as a collateral consequence from policies such as “the requirement for a general verdict, the prohibition against a directed guilty verdict, the protection against double jeopardy, and the rules that protect the deliberative process of a court-martial panel.” Id. at 75. “The courts cannot search the minds of the jurors to find the basis upon which they judge,” and therefore must abide by the jury’s decision to acquit, no matter what the underlying reason might have been. Id. at 71 (quoting United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969)).
Gov’t Br. at 18-19 (emphasis in original). Finally, addressing McClour’s concerns about the military environment, the Government suggests that additional safeguards would rekindle the idea of separate military due process that was finally rejected in United States v. Vazquez, 72 M.J. 13 (C.A.A.F. 2013) (CAAFlog case page).
I don’t believe that CAAF would need to reinstate the concept of military due process in order to find the must-convict instruction problematic in the military environment. The court could determine that military members might interpret the must-convict instruction as an order from the military judge to return only a finding of guilty, when the members could also legally return a finding of not guilty. Put differently, instructing the members that they must acquit (and only acquit) in the absence of proof beyond a reasonable doubt is a complete and accurate statement of the law. Instructing members that they must convict (and only convict) if there is such proof, however, certainly seems to be an incomplete statement of the law because the members could also acquit despite the existence of proof beyond a reasonable doubt.
Yet a significant twist in this case is that defense counsel failed to object to the instruction. While CAAF reviews instructional errors de novo, the failure to object means that the burden is on McClour to prove plain error. CAAF’s precedent does, however, offer a heightened burden for harmlessness in the case of instructional error: “If instructional error is found, because there are constitutional dimensions at play, the appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt.” United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006) (quoting United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006)) (marks omitted).
And so it’s very possible that CAAF will conclude that it is error to give the must-convict instruction, but that the court will not actually grant McClour (or the trailers that don’t involve objection) any relief.
• AFCCA’s opinion
• Blog post: CAAF to review the closing instructions given in Air Force cases
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview