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.

Case Links:
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

14 Responses to “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”

  1. Burner says:

    So do any of the trailers CAAF granted involve an objection at trial?

  2. Zachary D Spilman says:

    Good question.

  3. Dew_Process says:

    But, is “plain error” the correct standard? A good argument can be made I think under Sullivan v. Louisiana (1993), LINK that it is structural error, under the circumstances. I can’t get the link to the Appellant’s brief to work, so I don’t know if they argued that or not.

  4. Zachary D Spilman says:

    A “structural error” is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Johnson v. United States, 520 U.S. 461, 468 (1997) (quoting Arizona v. Fulminante, 449 U.S. 279, 310 (1991)). Structural errors cannot be tested for harmlessness and lead to automatic reversal. But there are precious few structural errors:

    We have recognized that most constitutional errors can be harmless. . . . Indeed, we have found an error to be structural, and thus subject to automatic reversal, only in a very limited class of cases.

    Neder v. United States, 527 U.S. 1, 8 (1999) (marks and citations omitted). A structural error isn’t just prejudicial, it’s irredeemably prejudicial. 

    But the must convict instruction must be an error before it can be a structural error.

  5. Chuck Bass says:

    It would not be structural error.  In Sullivan, there was structural error because the impermissible instruction abridged the 6th amendment right to trial by jury.  There is no 6th amendment right to trial by jury for military members.

  6. Dew_Process says:

    While CAAF is “final” until either reversed or this decision is overruled, their opinion did not clearly point out the Circuit and State split on the “must convict” issue. But, without an articulated objection at trial, this probably isn’t the case to seek cert on.
    While I agree that there’s no Sixth Amendment “jury” requirement applicable to courts-martial, there is a Fifth Amendment right to a fair trial which includes fair and accurate instructions to the members.
    There is a philosophical problem with the “must convict” language as well, as this conflicts with the members oath which in relevant part states:

    Do you swear or affirm that you will answer truthfully the questions concerning whether you should serve as a member of this court-martial; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws applicable to trials by court-martial, the case of the accused now before this court . . . . [emphasis added]. Benchbook at 37.

    Virtually the same language is used in the final instruction [2-5-12] for findings:

    Each of you must impartially decide whether the accused is guilty or not guilty according to the law I have given you, the evidence admitted in court, and your own conscience. [Emphasis added] Benchbook, at 54.

    Telling members (or jurors for that matter) that they must convict after telling them that they must make their decision on findings based upon the law, the evidence and their own conscience, simply negates the so-called “conscience clause,” which may by itself be reasonable doubt.

  7. Isaac Kennen says:

    *This is my view, not the view of the federal government, DoD, or any other federal department or subordinate agency.A military member is already denied the right to a trial by a jury of his or her peers.  Instead, they face trial by a group of military officers who are hand-selected by the person accusing them.  That hand-picked group’s ability to fully deliberate is then hampered by the fact that the miliary jury can be comprised of as few as 3 members.  Added to that, the military jury doesn’t even need to be unanimous to convict.  A mere 2/3 majority vote will suffice.   Such a court would be structurally unsound outside of the military.  The Supreme Court has long held that to be true.Now, because of this decision, those glaring deficiencies are amplified by the fact that the military jury, comprised of military members accustomed to following orders, can be ordered to convict, regardless of the dictates of their conscience.  In that way, this decision not only harms the accused.  Perhaps, more importantly, it undermines the freedom of the military juror.  It undermines the right of the military juror to exercise their own conscience.  It dehumanizes the military juror and makes him or her a mere automaton.  It establishes that a court-martial is really only a tool of government power.  It is not, as a true American criminal court should be, a forum where the will of the governed act as a check on the government.  The military juror has been reduced to a mere computer, deprived of the right to conscience, deprived of the right to show mercy, and, without so much as a hearing, deprived of their own liberty.This decision does not serve to further the legitimacy of the military justice system.   It peels back the last leaf of the onion and reveals that system for what it is.  Unlike a true court, a court-martial does not stand as a co-equal instrument of power against the Executive branch officers who are prosecuting the accused.  A court-martial is instead a wholly-owned subsidiary of the Executive-branch officers who convene it, detail it’s members, refer cases to it, preside over it’s proceedings, present evidence to it, and rate the performance of its members.  

  8. stewie says:

    That’s a bit extreme…panels exercise common sense checks on a routine basis. They aren’t perfect, but flawed just as all juries made up of humans are. And you raise legit concerns obviously, but they are not automatons, for good and for ill. I’ve seen them give very light sentences, acquittals where the accused was clearly guilty because they didn’t like the charges or they thought it should have been an Article 15, or other reasons.
    I mean, I don’t agree with this decision, but it’s not the sole thing standing between an independent panel and mass hysteria either.

  9. Zachary D Spilman says:

    I have to disagree with a couple of your points, Isaac Kennen.

    First, as I’ve noted before on a number of occasions (here’s a good example), a court-martial panel is no jury. The panel is a panel, and the members are members. There is no such thing as a military jury or a military juror. This is an important distinction – and not just semantics – because of the meaningful differences between a jury and a panel (size, composition, non-unanimity, etc.).

    Second, the members of a court-martial are not “hand-selected by the person accusing.” The accuser (both ministerially and actually) is specifically prohibited from being the convening authority by Articles 22(b) and 23(b), and by caselaw involving related issues (like UCI). Any convening authorities undoubtedly has feelings about the information he considers when making a referral decision, but that doesn’t mean he can’t maintain an open mind about the case and appoint members who can be fair and impartial.

    We shouldn’t mislabel a court-martial panel as a military jury, or suggest that a convening authority is an accuser, because that’s both inaccurate and a distortion of the basic premise of the military justice system: that it is a check on the inherent disciplinary authority of command of military forces.

  10. Isaac Kennen says:

    I have a lot of respect for your views, and I am incredibly appreciative of this forum you maintain where we can discuss the nitty gritty aspects of a system of justice that is so incredibly important to the defense of our Nation.  But I have to disagree with a couple (but not all) of the points you made.The convening authority may not sign the charges as the accuser.  That is true.  But, it’s not as if charges in the military justice system are sworn out by the actual victim/accuser.  They are, instead, as we all know, sworn out by commanders who are, by and large, wholly accountable to the convening authority.  The fact that the convening authority has not signed as the accuser himself or herself, but has instead had his or her subordinate perform that function, is, to me, a difference without distinction.  In my eyes, the whole process is a command action which occurs outside of public view and without public input.  Indeed, for most sexual assault cases, a subordinate commander is required to obtain the convening authority’s consent to not levy an accusation. See Memo, Secretary of Defense, Withholding Initial Disposition Authority under the Uniform Code of Military Justice in Certain Sexual Assault Cases (April 20, 2012); see also The Services’ Directives Withholding Initial Disposition Authority in Sexual Assault Cases .  To say that the convening authority is not the accuser is, in my view, an “alternative fact.”  
    As to the composition of courts-martial panels: As I see it, the fact that the Sixth Amendment right to a jury does not apply to courts-martial is irrelevant.  The Fifth Amendment still requires that the government give a military accused a fair trial.  That means a trial before an impartial finder of fact, not one hand-picked by the convening authority that levied the charges.  That means a trial before a finder of fact that includes a sufficient number of members to collectively remember important evidence and judicial instructions when they enter deliberations.  That means a trial before a finder of fact that is large enough that it will be able to overcome the individual biases of its members.  That means a trial before a finder of fact that will be aided in overcoming individual biases by the the requirement of unanimity.  In sum, regardless of the fact that the Sixth Amendment right to a jury does not apply in the military justice system, a military accused still has the right to a reliable finder of fact under the Fifth Amendment.  The UCMJ does not protect that right – that is a structural defect.  Now, this decision amplifies that defect by allowing the members to be ordered to render a verdict despite their conscience.  

  11. westpointquaker says:

    If UCMJ stands for UNIFORM Code of Military Justice, then why don’t all the services use the same instruction.  The Army Benchbook, which used to be the GOLD standard for instructions, has always used the “should” find the accused guilty instruction.  The Coast Guard uses the same.  Only the Air Force and Navy-MC have modified the Army instruction with the “must” language.  When and why did the Air Force and Navy-MC change?  I assume they changed the instruction to convince more panels to convict and to eliminate any possibility of “jury nullification.”  I hope that in future Air Force or Navy-MC contested members cases that defense counsel object to this “must” instruction.  I’d like to see this issue back to CAAF with a more favorable standard of review.      

  12. Vulture says:

    WPQ.  By invoking the Gold standard you address the idea that, at least implicitly, the panel should consider “what would I want if I was in that guys place.”  It is unfortunate that this was unanimous because it makes the issue less likely to be seen as prejudicial in the future.  Few things in the UCMJ preserve that Gold standard and its good to see someone thinking about it.

  13. Zachary D Spilman says:

    But, it’s not as if charges in the military justice system are sworn out by the actual victim/accuser.  They are, instead, as we all know, sworn out by commanders who are, by and large, wholly accountable to the convening authority.  The fact that the convening authority has not signed as the accuser himself or herself, but has instead had his or her subordinate perform that function, is, to me, a difference without distinction. 

    Much of this is a service-level distinction, Isaac Kennen. Marine Corps practice, for example, is that the trial counsel is functionally the person who picks the charges. But R.C.M 502(d)(4) prohibits the trial counsel from being an accuser too. In any case, the point is that the convening authority isn’t picking the charges (and if he is, defense counsel need to object). The narrative that the convening authority is the prosecutor is just wrong. Furthermore, the narrative that trained prosecutors aren’t part of the charging decision is equally wrong.

    As for juries, I agree with you on the underlying issue. And there’s certainly no reason why we can’t require unanimous verdicts fin courts-martial. My problem is with language that equates a panel to a jury. 

    Finally, as for the must convict instruction, I think the instruction is problematic for the reason I noted in my argument preview:

    [I]nstructing 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.

  14. Someone says:

    westpointquaker: You asked where the change came from and suggested the potential that it was from nefarious desire to get more convictions.  CAAF suggested the wording in US v. Meeks, 41 M.J. 150, FN2 (CMA 1994) after they apparently got frustrated with the service’s difficulties in crafting a beyond a reasonable doubt instruction that would survive appellate review. In light of the footnote in Meeks, the better question may be why the Army and Coast Guard didn’t follow suit …