CAAFlog » October 2016 Term » United States v. McClour

CAAF decided the Air Force case of United States v. McClour, __ M.J. __, 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.

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Audio of last week’s project outreach oral arguments before CAAF is available at the following links:

United States v. Bowen, No. 16-0229/AF (CAAFlog case page): Oral argument audio.

United States v. McClour, No. 16-0455/AF (CAAFlog case page): Oral argument audio.

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.

(emphasis added).

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.

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On Friday, September 30, 2016 – the last day of the September 2015 Term, which is the last September term (discussed here) – CAAF granted review in five trailer cases.

First, the court granted, set-aside, and remanded in a trailer to United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page):

No. 16-0697/AR. U.S. v. Douglas E. Reynolds, Jr. CCA 20140856. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT OTHER CHARGED MISCONDUCT.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

I can’t find an opinion on the Army CCA’s website (indicating that the CCA summarily affirmed the findings and sentence). This is the fifth such case reversed by CAAF since the court decided Hills.

Next, CAAF granted review in two trailer cases to the Air Force case of United States v. McClour, No. 16-0455/AF (grant discussed here):

No. 16-0579/AF. U.S. v. William P. Smith, Jr. CCA 38728. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER, BY INSTRUCTING THE MEMBERS THAT THEY LACK THE POWER OF JURY NULLIFICATION, THE MILITARY JUDGE ERRED AND MATERIALLY PREJUDICED APPELLANT’S RIGHT TO BE TRIED BY A PANEL VESTED WITH ITS FULL PREROGATIVE.

No briefs will be filed under Rule 25.

No. 16-0674/AF. U.S. v. James M. Kmet. CCA 38755. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE 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.

No briefs will be filed under Rule 25.

The AFCCA’s decision in Smith is available here and its decision in Kmet is available here. These are the third and fourth trailer cases to McClour. All but one (Taylor, discussed here) are from the Air Force.

Finally, CAAF granted review in two trailers to the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here):

No. 16-0693/AR. U.S. v. Marcos A. Bustamante. CCA 20150486. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

WHETHER JUDGE HERRING AND JUDGE BURTON, WHO CURRENTLY SIT ON THE CMCR, ARE STATUTORILY AUTHORIZED TO ALSO SIT ON THE ACCA.

WHETHER JUDGE HERRING AND JUDGE BURTON’S SIMULTANEOUS SERVICE ON BOTH THE CMCR AND ACCA VIOLATES THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

No briefs will be filed under Rule 25.

No. 16-0720/AR. U.S. v. Robert S. Echols. CCA 20160126. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

WHETHER CMCR JUDGE JAMES HERRING IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY CCA.

WHETHER JUDGE JAMES HERRING’S SERVICE ON BOTH THE CMCR AND ARMY CCA VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

I can’t find opinions in either case on the Army CCA’s website (indicating that the CCA summarily affirmed the findings and sentence). There are now three Dalmazzi trailers at CAAF, all from the Army.

Disclosure: I represent – in my personal capacity – an appellant who has also raised a Dalmazzi issue at CAAF.

In United States v. McClour, No. 16-0455/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that commands them that they must (as opposed to the more-common instruction that members should) find the accused guilty if the prosecution has proven the offense beyond a reasonable doubt.

Last week CAAF specified the issue in a trailer case:

No. 16-0482/AF. U.S. v. Blake E. Taylor. CCA 38700. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE 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.

No briefs will be filed under Rule 25.

(emphasis added).

Paragraph 2-5-12 of the Military Judges’ Benchbook contains Closing Substantive Instructions on Findings to inform members how to decide whether an accused is guilty. Those instructions include:

“Proof beyond a reasonable doubt” means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. The rule as to reasonable doubt extends to every element of the offense, although each particular fact advanced by the prosecution which does not amount to an element need not be established beyond a reasonable doubt. However, if 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).

Last week CAAF granted review of an Air Force case challenging a modified version of this instruction:

No. 16-0455/AF. U.S. v. Trentlee D. McClour. CCA 38704. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

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.

Briefs will be filed under Rule 25.

(emphasis added).

The AFCCA’s decision is available here.