Opinion Analysis: Not plain error, if error at all, to instruct the members that they must convict in United States v. McClour, No. 16-0455/AF
CAAF decided the Air Force case of United States v. McClour, 76 M.J. 23, No. 16-0455/AF (CAAFlog case page) (link to slip op.), on Tuesday, January 24, 2017. With a short opinion that answers no more than the question presented by the specific facts of this case, CAAF concludes that it was not plain or obvious error for the military judge to instruct the members that if they were “firmly convinced that the accused is guilty of the offense charged, [they] must find him guilty.” Accordingly, CAAF affirms the decision of the Air Force CCA.
Judge Stucky writes for a unanimous court.
Military judges give instructions to the members of a court-martial. Model instructions are published in the Military Judges’ Benchbook (Dep’t of the Army, Pam. 27-9). Those model instructions include one commanding the members 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.
Benchbook ¶ 2-5-12 (emphasis added). In this case, however, in Air Force cases generally, and sometimes in cases in other services, 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.
Slip op. at 2 (emphasis added). McClour’s defense counsel did not object to this instruction at trial, but on appeal McClour asserted that it suffers from numerous flaws. The Air Force CCA disagreed. CAAF then granted review to determine:
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.
CAAF also granted review of a similarly-worded issue in 21 other cases: 7 from the Air Force and 13 from the Navy/Marine Corps.
Tuesday’s opinion might not resolve all of the cases presenting this issue, as CAAF neither endorses nor condemns the must convict instruction. Rather, Judge Stucky’s opinion concludes only that giving the must convict instruction is not plain error.
Judge Stuck explains:
“‘Whether a panel was properly instructed is a question of law reviewed de novo.’” United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011) (quoting United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)). However, where, as here, “there was no objection to the instruction at trial, we review for plain error.” United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) (citing United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012)). “Under this Court’s plain error jurisprudence, Appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citing United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)). “[T]he failure to establish any one of the prongs is fatal to a plain error claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006).
Slip op. at 3.
If the instruction were a directed verdict – which is an instruction that “deprives the panel of the power to determine guilt and the accused of the statutory right to have his guilt determined by a panel of fellow servicemembers” – than that would be plain error. Slip op. at 4 (marks and citation omitted). Judge Stucky concludes, however, that:
No such deprivation results from the use of the word “must” in the instructions before us, which plainly leaves the determination of guilt beyond a reasonable doubt based on the evidence in the hands of the members: “[I]f, based on your consideration of the evidence, you’re firmly convinced that the accused is guilty of the offense charged, you must find him guilty.”
Slip op. at 4 (emphasis in original). “Quite plainly, this was not a directed verdict.” Slip op. at 5.
But a finding that an error is not plain or obvious is not a finding that there was no error, as Judge Stucky concludes:
For the foregoing reasons, it cannot be said that any error (if error there were) on the military judge’s part in using the word “must” in his burden of proof instruction is clear or obvious. Accordingly, Appellant fails to establish plain error.
Slip op. at 5 (emphasis added).
This conclusion leaves this issue alive for another case where it was preserved by an objection from the defense. It also serves as another reminder of the importance of objections at trial.
• ACCA opinion (75 M.J. 537)
• Blog post: The ACCA tackles the standard of review for instructions not given
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis