U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201500408
                         _________________________

                 UNITED STATES OF AMERICA
                                  Appellee
                                     v.
                         DAVID R. RENDON
                   Sergeant (E-5), U.S. Marine Corps
                              Appellant
                       _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Major Michael D. Zimmerman, USMC.
        For Appellant: Captain Daniel R. Douglass, USMC.
  For Appellee: Lieutenant Commander Catheryne E. Pully, JAGC,
           USN; Lieutenant Jetti L. Gibson, JAGC, USN.
                      _________________________

                        Decided 1 November 2016
                         _________________________

Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
                       _________________________

                PUBLISHED OPINION OF THE COURT
                      _________________________

CAMPBELL, Senior Judge:
   At a contested trial, officer and enlisted general court-martial members
convicted the appellant of aggravated assault, assault consummated by a
battery, and disorderly conduct—violations of Articles 128 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 928 and 934 (2012). The
convening authority approved the adjudged sentence of 180 days’
confinement, total forfeitures for six months, reduction to pay grade E-1, and
a bad-conduct discharge.
    Having been found incompetent to stand trial during the course of the
trial proceedings, the appellant’s initial assignment of error (AOE) contends
his RULE FOR COURTS-MARTIAL (R.C.M.) 909, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.) procedural rights were violated when he underwent
a second mental competency board instead of being delivered to the custody
                      United States v. Rendon, No. 201500408


of the United States Attorney General.1 In a supplemental AOE, the
appellant further argues the military judge erred in the findings instructions
provided to the court-martial members.
    We conclude the findings and sentence are correct in law and fact, and we
find no error materially prejudicial to the appellant’s substantial rights. Arts.
59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
    The appellant’s trial proceedings before members began on 7 July 2015.
After the conclusion of the government’s case-in-chief, the appellant was in a
single-motor-vehicle accident on the evening of 8 July 2015. He lost
consciousness, injured his right hand and right shoulder, and was flown to a
civilian hospital in La Jolla, California, for initial treatment.
   When the appellant returned to court on 10 July 2015, the military judge
ordered a mental competency examination pursuant to R.C.M. 706 to
determine whether the accident was indicative of the appellant suffering
from, or caused the appellant to suffer, a mental disease or defect rendering
him unable to understand the nature of the proceedings against him or to
conduct or cooperate intelligently in his defense. Later that day, the military
judge conducted an R.C.M. 909(e) mental competency hearing. A psychiatrist,
who conducted an evaluation and completed a truncated report2 between the
court-martial sessions, testified that the appellant “had a severe head injury;
and now I noted significant memory problems; and what, in my opinion, was
a definite increase in a level of irritability . . . .”3 The expert witness
concluded the appellant was unable to cooperate intelligently in his defense,
and estimated it would take four to six weeks to restore the appellant’s
competence. The military judge then found, by a preponderance of the
evidence, that the appellant was incompetent to stand trial, and he
forwarded the findings to the convening authority, “so that the proper
measures [could] be taken in accordance with R.C.M. 909(f).”4
   The appellant then received inpatient care at the Naval Medical Center,
San Diego, California. Upon his 16 July 2015 release, the military judge


   1 The initial AOE is raised pursuant to United States v. Grostefon, 

(C.M.A. 1982).
    2 The psychiatrist wrote, “Is the accused presently suffering from a mental

disease or defect rendering the accused unable to understand the nature of the
proceedings against the accused or to conduct or cooperate intelligently in his
defense. Yes.” Appellate Exhibit (AE) LXVI.
   3   Record at 704-05.
   4   AE LXVII.

                                        2
                        United States v. Rendon, No. 201500408


ordered another R.C.M. 706 mental competency examination pursuant to a
government request.5 At the next court session, the military judge described
the examination’s purpose: “[T]o tell us whether or not the interim time from
the accused’s car accident and trial – or today had allowed him to be restored
to competence, or whether or not we did, in fact, need to have him committed
to the custody of the United States Attorney [General].”6 Consequently, the
appellant had a neuropsychological evaluation and an interview with another
psychologist on 23 and 24 July 2015. The 24 July 2015 evaluation report
indicated the appellant had “sufficient mental capacity to understand the
nature of the proceedings against him and to conduct and cooperate
intelligently in his defense.”7 At a 28 July 2015 hearing, over defense
counsel’s objections, the military judge found the accused competent.
   Later in that same court-martial session, the appellant also discussed his
desire to fire his three attorneys (a civilian counsel and two detailed military
counsel) and represent himself for the remainder of the case. The following
exchange was part of the lengthy colloquy with the military judge:
         MJ: It seems to me, though, that reading between the lines of
         what you are telling me, you don’t want to – you are not going
         to do anything [to present a defense case]. You are confident
         there’s not going to be any issues because you are not going to
         do anything; is that right?
         ACC: Yes, Your Honor.8
    A detailed military defense counsel then requested that the military judge
“reconsider the [R.C.M.] 909 decision” because “it’s clear that [the appellant
is] making decisions that no competent or rational person would make.”9
After a recess, the military judge had the Navy psychologist who conducted
the 23-24 July R.C.M. 706 board testify telephonically about the results. The
psychologist explained neuropsychological testing was done because of the
appellant’s potential head injury and loss of consciousness during the car
accident, and that beyond interviewing the appellant, he also reviewed the
previous R.C.M. 706 board and the appellant’s electronic medical records.
The military judge continued to find the appellant competent.




   5   AE LXX.
   6   Record at 718.
   7   AE LXVIII.
   8   Record at 750.
   9   

States v. Rendon, No. 201500408


   Trial resumed before the court-martial members on 29 July 2015.10
During voir dire, the military judge first advised the members about the
standard of proof:
        Sergeant Rendon is presumed innocent and I will instruct you
        prior to your deliberations of the guilt or innocence of Sergeant
        Rendon. I will advise you that he must be presumed to be
        innocent until his guilt is established by legal and competent
        evidence beyond a reasonable doubt; that, in this case, if there
        is reasonable doubt to the guilt, the doubt shall be resolved in
        the accused's favor and he shall be acquitted. That the burden
        of proof to establish the guilt of the accused beyond a
        reasonable doubt is upon the government. I will also give you
        other instructions concerning the law with which you must
        follow. At this time, have any of you formed or expressed an
        opinion concerning the guilt or innocence of the accused?
        That’s a negative response from the members.
        I do think because we have mentioned reasonable doubt a few
        times, this is an appropriate time for me to talk to you a little
        bit about what that means, so that you have a frame of
        reference when you’re evaluating the evidence and what proof
        beyond reasonable doubt means.
        A reasonable doubt is not intended a fanciful, speculative, or
        ingenious doubt of conjecture; but an honest and actual doubt
        suggested by the material evidence or lack of it in the case. It is
        a genuine misgiving caused by insuffici ency of proof of guilt.
        Reasonable doubt is a fair and rational doubt based upon
        reason and common sense, and arising from the state of the
        evidence. Proof beyond a reasonable doubt is proof that leaves
        you firmly convinced of the accused's guilt.
        There are very few things in this world that we know with
        absolute certainty. And in criminal cases, the law does not
        require proof that overcomes every possible doubt.



   10   The appellant’s military and civilian defense counsel represented him
throughout the trial. On 28 July 2015, the military judge determined there was no
valid R.C.M. 506(d) waiver of the right to counsel, and the appellant’s request
reflected no irreconcilable conflict or breakdown in communication with his counsel,
as required for approval of a mid-trial request to proceed pro se. Instead, the record
revealed only frustrations and a difference of opinion on trial tactics and strategy
between the appellant and his counsel. AE LXXIV at 14-16.

                                          4
                      United States v. Rendon, No. 201500408


         If, based on your considerations of the evidence, you are firmly
         convinced that the accused is guilty of the crimes charged, you
         must find him guilty. If, on the other hand, you think there is a
         real possibility he is not guilty, you should give him the benefit
         of the doubt and find him not guilty.
         The rules for reasonable doubt extends to every element of the
         offense; although, each particular fact advanced by the
         prosecution that does not amount to an element need not be
         established beyond a reasonable doubt. However, if on the
         whole of the evidence you are satisfied beyond a reasonable
         doubt of the truth of each and every element of an offense, then
         you should find the accused guilty of that offense.
         Do all members understand this definition of beyond a
         reasonable doubt and how it applies to this case?
         That’s a positive response from the members.
         Although the government is required to prove every element
         beyond a reasonable doubt, does any member expect the
         government to prove its case beyond all doubt?
         That’s a negative response from the members.
         At the end of the trial, the evidence shows two reasonable
         theories as to what happened. One pointing to the guilt, the
         other pointing to the innocence of the accused. Do you all
         understand that in that circumstance, you are obligated to find
         the accused not guilty?
         Positive response from the members.11
   Following the parties’ closing arguments on findings, the military judge
again instructed the members about the standard of proof and their roles and
responsibilities during their deliberations:
         You are further advised, first, the accused is presumed to be
         innocent until his guilt is established by legal and competent
         evidence beyond a reasonable doubt. Second, if there is
         reasonable doubt as to the guilt of the accused, that doubt must
         be resolved in favor of the accused and he must be acquitted.
         Third, if there’s reasonable doubt as to the degree of guilt, that
         doubt must be resolved in favor of the lower degree of guilt as
         to which there is no reasonable doubt. And lastly, the burden of
         proof to establish the guilt of the accused beyond a reasonable

   11   Record at 302-03.

                                         5
            United States v. Rendon, No. 201500408


doubt is on the government. The burden never shifts to the
accused to establish innocence or disprove the facts necessary
to establish each element of each offense.
There is one caveat to that that I’m going to discuss with you
here in just a moment. But that is only with regard to the
defense of lack of mental responsibility. But as to the elements
of each offense, there is no caveat. That burden’s on the
government, the government alone. It never shifts to the
accused.
Some of you may have served as jurors in a civil case or as
board members in an administrative board where you were told
that it is only necessary to prove that a fact is more likely true
than not true. In criminal cases, the government’s proof must
be more powerful than that. It must be beyond a reasonable
doubt. Reasonable doubt is not a fanciful, ingenious doubt or
conjecture, but an honest, conscientious doubt suggested by the
material evidence or lack of it in the case. It is an honest
misgiving caused by the insufficiency of proof of guilt.
Reasonable doubt is a fair and rational doubt based upon
reason and common sense and arising from the state of the
evidence.
Proof beyond a reasonable doubt means proof to an evidentiary
certainty, although not necessarily to an absolute or
mathematical certainty.
Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the accused’s guilt. There are very few things in
this world that we know with an absolute certainty; and
criminal cases in the law does [sic] not require proof that
overcomes every possible doubt. 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.
If based on your consideration of the evidence, you’re firmly
convinced the accused is guilty of crimes charged, you must
find him guilty. If on the other hand, you think there is a real
possibility that he is not guilty, you must give him the benefit
of the doubt and find him not guilty.
The rule as to reasonable doubt extends to every element of the
offense, although each particular fact advanced by the
prosecution that does not amount to an element need not be
established beyond a reasonable doubt. However, if on the


                                6
                         United States v. Rendon, No. 201500408


         whole evidence, you’re satisfied beyond a reasonable doubt of
         the truth of each and every element, then you should find the
         accused guilty.
         Bear in mind that only matters properly before the court as a
         whole should be considered. In weighing and evaluating the
         evidence, you’re expected to use your own common sense, your
         knowledge of human nature and the ways of the world. In light
         of all of the circumstances in the case, you should consider the
         inherent probability or improbability of the evidence. Bear in
         mind that you may properly believe one witness and disbelieve
         several other witnesses whose testimony conflicts with one.
         The final determination as to the weight or significance of the
         evidence and the credibility of witnesses in this case rest solely
         upon you.
         You must disregard any comment or statement or expression
         made by me during the course of the trial that might seem to
         indicate any opinion on my part as to whether the accused is
         guilty or not guilty since you alone have the responsibility to
         make that determination. 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
         conscious.12
                                    II. DISCUSSION
A. Appellant’s competency
    In the appellant’s view, by conducting another R.C.M. 706 board after the
initial competency hearing, instead of transferring him to the U.S. Attorney
General for further hospitalization, the court-martial convening authority
failed to “follow the correct mental health process under R.C.M. 909[.]”13 The
appellant further argues this failure merits our setting aside the convictions:
         By failing to take the exact steps of R.C.M. 909, the
         Government violated Sgt Rendon’s rights to proper mental
         health care. As such, his actual competency to stand trial is
         placed into question. Because it is unclear if he was actually
         competent to stand trial at that time, his participation [in] the
         subsequent defense case in chief and sentencing must be



   12   

   13Appellant’s Motion to File Supplemental Assignment of Error granted on 31
May 2016 at 4.

                                           7
                    United States v. Rendon, No. 201500408


         questioned. As such, the findings of guilt and the sentence are
         invalid.14
    “No person may be brought to trial by court-martial if that person is
presently suffering from a mental disease or defect rendering him or her
mentally incompetent to the extent that he or she is unable to understand the
nature of the proceedings . . . or to conduct or cooperate intelligently in the
defense of the case.” R.C.M. 909(a). A service member is presumed competent
to stand trial unless the contrary is established by a preponderance of the
evidence. R.C.M. 909(b) and (e)(2). We review the appellant’s mental capacity
as “an interlocutory question of fact,” R.C.M. 909(e)(1), and overturn a
military judge’s finding on mental capacity to stand trial only if it is clearly
erroneous, United States v. Proctor, 

, 336 (C.M.A. 1993).
   Under R.C.M. 706(a), an inquiry into an accused’s mental capacity may be
made if it appears he does not have the capacity to stand trial. “If an inquiry
pursuant to R.C.M. 706 . . . concludes that an accused is suffering from a
mental disease or defect that renders him or her mentally incompetent to
stand trial, the military judge shall conduct a hearing to determine the
mental capacity of the accused.” R.C.M. 909(d). An accused whom the
military judge finds incompetent to stand trial “shall be hospitalized by the
Attorney General as provided in section 4241(d) of title 18, United States
Code.” R.C.M. 909(f).
      Under the same statute, civilian courts have determined that
commitment is mandatory even when medical evidence indicates that
defendants’ mental conditions are untreatable. United States v. Shawar, 

, 860 (7th Cir. 1989) (notwithstanding the trial judge’s
belief that hospitalization, treatement and observation would not change the
defendant’s incompetence due to mental retardation, “the intent of Congress
is clear. The statute plainly states that ‘the court shall commit the defendant
to the custody of the Attorney General [who] shall hospitalize the defendant
for treatment . . . .’ 18 U.S.C. § 4241(d). The plain meaning of this phrase is
. . . that once a defendant is found incompetent to stand trial, a district judge
has no discretion in whether or not to commit him”) (emphasis and alteration
in original); United States v. Ferro, 

, 762 (8th Cir. 2003) (“[E]ven
where the medical reports presented to the district court showed by a
preponderance of the evidence that the condition [progressive dementia] was
permanent, the statutory scheme [of 18 U.S.C. § 4241(d)] appropriately
affords additional time during which the Attorney General may explore
medical options.”).



   14   

                                       8
                     United States v. Rendon, No. 201500408


    We agree with the appellant’s assertion that in courts-martial where a
military judge finds an accused incompetent, commitment to the U.S.
Attorney General’s custody is mandatory. Furthermore, as with the perceived
permanence of an incapacitating condition, the language of 18 U.S.C. §
4241(d), Article 76b, UCMJ, and R.C.M. 909 equally provides no exception
based on whether an incapacitating condition is perceived to be ephemeral.15
The military judge’s determination that the appellant was incompetent
triggered mandatory commitment to the custody of the U.S. Attorney General
as of 10 July 2015, notwithstanding concerns about that commitment’s
duration.16 Thus, efforts by the military judge to circumvent committing the
appellate to the Attorney General’s custody in favor of local treatment would
violate the statute.
    But the record reveals no such efforts,17 and the 10 July 2015 competency
determination was not final. The military judge could revisit the matter at
his discretion. R.C.M. 706(c)(4) (“Additional examinations may be directed
under this rule at any state of the proceedings as circumstances may
require.”); United States v. Collins, 

, 266 (C.A.A.F. 2004) (“The
question of whether an additional psychiatric examination is necessary rests
within the discretion of the military judge and is reviewable only for abuse of
discretion.”) (citation and internal quotation marks omitted); United States v.
Cornejo-Sandoval, 

, 1234 (10th Cir. 2009) (“[W]hether to order
a second competency exam is a matter wholly within the sound discretion of
the trial court.”) (citations and internal quotation marks omitted); United
States v. Sherman, 

, 909 (7th Cir. 1990) (rejecting collateral

    15See United States v. Salahuddin, 

, 919-20 (A.F. Ct. Crim. App.
2001) (denying application for writ to quash convening authority’s order for
commitment to the custody of the Attorney General because “Article 76b[, UCMJ],
and the federal statute upon which it is based, both provide that if an accused is
found to be mentally incompetent to stand trial, he ‘shall’ be committed to the
custody of the Attorney General” regardless of whether the accused “requires
hospitalization for his own welfare and protection of others,” even when the R.C.M.
706 board “estimated that the petitioner might recover enough within the next 3
months to meet competency requirements”).
    16 At the second competency hearing, during discussions with counsel about
information that the Federal Bureau of Prisons might hold those committed for
incompetence for a full 120 days due to an administrative policy “[t]hat had nothing
to do necessarily with the [time required for] treatment,” the military judge stated, “I
have some concerns about whether or not Sergeant Rendon should spend 120 days in
the Federal Bureau of Prisions mental facility if he didn’t need to, if it was just a
concussion that maybe had subsided in the interim.” Record at 724.
    17The military judge’s findings of fact demonstrate on-going efforts during the
period between the first and second competency hearings to effect the appellant’s
transfer of custody to the U.S. Attorney General. AE LXXIV at 3-6.

                                           9
                          United States v. Rendon, No. 201500408


estoppel challenge to second competency hearing because “the issue of [the
defendant’s] competency can hardly be considered final when the very
objective of competency determinations is to discover whether or when a
defendant will be competent to stand trial.”). Particularly in light of the 10
July 2015 R.C.M. 706 evaluation’s indication that the appellant might
quickly regain competency, the military judge did not abuse his discretion in
ordering another examination while the appellant’s transfer to the custody of
the Attorney General remained pending.
    Despite the appellant’s contentions, he suffered no legal prejudice from
the military judge’s revisiting the competency determination.18 The military
judge received the results of another R.C.M. 706 board before the appellant
was ever committed to the Attorney General’s custody. He considered this
information and conducted another competency hearing based upon it. The
determination that the appellant was competent at that latter competency
hearing obviated the need for further hospitalization and removed the
mandatory commitment predicate.
    We next turn to whether the appellant met his burden to overcome the
presumption that he was, in fact, competent to stand trial under R.C.M.
909(b) and (e). A military judge may certainly consider the results of an
R.C.M. 706 board during an R.C.M. 909 competency hearing—indeed, a
board’s finding that mental disease or defect adversely impacts mental ability
to stand trial requires that the military judge conduct a hearing and
determine whether an accused is competent. The R.C.M. 706 board that the
military judge considered during the 28 July 2015 mental competency
hearing was conducted on 23 and 24 July 2015, and it involved a
neuropsychological evaluation and interview of the appellant by two highly
trained mental health professionals. The military judge found the appellant
“competent to stand trial based . . . [l]argely [on] Appellate Exhibit LXVIII
[the 24 July 2015 evaluation report], there being very little evidence
presented, if any, to the contrary.”19 Having considered the entire record of
trial and the appellant’s brief—which does not allege that the appellant is
incapable of participating in this court-martial phase and assisting his



    18See United States v. Erb, 

, 114-16 (C.M.A. 1961) (upholding a
medical board’s decision that the appellant could distinguish right from wrong at the
time of the offense, contrary to an earlier board’s decision, because “[m]edical board
proceedings, of course, are not judicial in nature, purpose, or effect; they are entirely
administrative,” and “action of an undiluted administrative character, can, in itself,
contain no latent double jeopardy problems.”) (citation and internal quotation marks
omitted) .
    19   Record at 728.

                                           10
                     United States v. Rendon, No. 201500408


appellate defense counsel—we conclude the military judge’s finding is not
clearly erroneous.
B. Findings instruction
   In his supplemental AOE, the appellant avers the military judge
committed reversible error in his instruction about the standard of proof
required for a conviction. We disagree.
   Whether a court-martial panel was properly instructed is a question of
law which we review de novo. United States v. Medina, 

, 465
(C.A.A.F. 2011) (quoting United States v. Ober, 

, 405 (C.A.A.F.
2008)). When counsel does not object to an instruction at trial, as in this case,
we review for plain error—which occurs when (1) there is error, (2) the error
is plain or obvious, and (3) the error results in material prejudice to a
substantial right. United States v. Tunstall, 

, 196 (C.A.A.F. 2013).
    The specific instructional language now challenged—“[i]f, based on your
consideration of the evidence, you are firmly convinced that the accused is
guilty of the crime charged, you must find him guilty”20—is part of the Navy
and Marine Corps’ electronic benchbook’s reasonable doubt instruction.21 It
also comes directly from Instruction 21 in the Federal Judicial Center’s
Pattern Criminal Jury Instructions, FEDERAL JUDICIAL CENTER, 28 (1987),
http://federalevidence.com/pdf/JuryInst/FJC_Crim_1987.pdf,22 which has


    20Appellant’s Motion to File Supplemental Assignment of Error granted on 12
Sep 2016 at 3 (citing Record at 935) (emphasis in original).
    21 The 2016 Electronic Benchbook – NMC (v16.2), https://www.jagcnet.army.mil/
Sites/trialjudiciary.nsf/homeContent.xsp?open&documentId=900756AC675854ED852
5804400729CBB (last accessed 27 Oct 2016). With only minor variances, the
members also received the complete Closing Substantive Instructions on Findings
from the Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 1164-65
(Chapter 8, §III, ¶ 8-3-11) (10 Sep 2014). The substantive difference between the U.S.
Army publication’s relatively truncated instruction and the one here is due to the full
incorporation the Federal Judicial Center’s model instruction at this trial.
    22 “Definition of Reasonable Doubt. As I have said many times, the government
has the burden of proving the defendant guilty beyond a reasonable doubt. Some of
you may have served as jurors in civil cases, where you were told that it is only
necessary to prove that a fact is more likely true than not true. In criminal cases, the
government’s proof must be more powerful than that. It must be beyond a reasonable
doubt.
    Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the
defendant’s guilt. There are very few things in this world that we know with absolute
certainty, and in criminal cases the law does not require proof that overcomes every
possible doubt. If, based on your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime charged, you must find him guilty.

                                          11
                     United States v. Rendon, No. 201500408


been endorsed as a proper explanation of reasonable doubt for juries by a
concurring Supreme Court opinion,23 by our superior court,24 by this court,25
and by the Air Force Court of Criminal Appeals.26
   Specifically regarding the “must find him guilty” portion of the Federal
Judicial Center’s instruction, the Air Force Court of Criminal Appeals27 and
numerous Federal Circuit and state appellate courts28 have expressly held
that jurors may be instructed that they “must find” a defendant guilty if they
are convinced of the guilt beyond a reasonable doubt. Indeed, the Eighth and



If on the other hand, you think there is a real possibility that he is not guilty, you
must give him the benefit of the doubt and find him not guilty.”
    23Victor v. Nebraska, 

, 27 (1994) (Ginsburg, J., concurring in part and
concurring in the judgment) (“This instruction plainly informs the jurors that the
prosecution must prove its case by more than a mere preponderance of the evidence,
yet not necessarily to an absolute certainty. The ‘firmly convinced’ standard for
conviction, repeated for emphasis, is further enhanced by the juxtaposed prescription
that the jury must acquit if there is a ‘real possibility’ that the defendant is innocent.
This model instruction surpasses others I have seen in stating the reasonable doubt
standard succinctly and comprehensibly.”).
    24United States v. Meeks, 

, 157 n.2 (C.M.A. 1994) (“[T]he Armed
Forces should reexamine their reasonable-doubt instruction. One possibility is the
one recommended by the Federal Judicial Center . . . .”).
    25  United States v. Jones, 

, 817-18 (N-M. Ct. Crim. App. 1997)
(rejecting argument that “the military judge improperly shifted the burden to the
appellant” by “using the phrase ‘real possibility’” in the reasonable doubt instruction
drafted by the Federal Judicial Center).
    26United States v. McClour, No. ACM 38704, 2016 CCA LEXIS 82 (A.F. Ct. Crim.
App. 11 Feb 2016), rev. granted, 

(C.A.A.F. 2016) (“The language used by
the military judge in Appellant’s case is . . . an accepted reasonable doubt instruction
used in Air Force courts-martial” and “[i]t was also offered by our superior court as a
suggested instruction.”) (citing United States v. Sanchez, 

, 511 (A.F. Ct.
Crim. App. 1999); 

n.2)).
    

(upholding instructions that “[i]f the Government
meets their burden, you have a duty to return a conviction, whether you like it or
not-whether you like the law or not,” and if “you are firmly convinced that the
accused is guilty of the offense charged, you must find him guilty,” because the
military judge “did no more than advise the members of their sworn duty.”).
    28 See, e.g., United States v. Stegmeier, 

, 583 (8th Cir. 2012); United

States v. Mejia, 

, 1340 (D.C. Cir. 2010); United States v. Carr, 

(2nd Cir. 2005); Farina v. United States, 

(D.C. 1993); People v. Goetz,

(N.Y. 1988); State v. Ragland, 

(N.J. 1986); People v.
Stewart, No. 230899, 2002 Mich. App. LEXIS 751 (Mich. Ct. App. May 28, 2002);
State v. Santiago, 

(Conn. App. Ct. 1989).

                                           12
                     United States v. Rendon, No. 201500408


Tenth Circuit Courts of Appeals’ own model criminal jury instructions have
the same language that the military judge used in this case.29
    Despite this well-settled law, the appellant contends the reasonable doubt
instruction here was the equivalent of a directed guilty verdict, in violation of
United States v. Martin Linen Supply Co., 

(1977). In dicta,
Martin Linen Supply Co. states that “a trial judge is prohibited from entering
a judgement of conviction or directing the jury to come forward with such a
verdict . . . regardless of how overwhelmingly the evidence may point in that
direction.” 

(citations omitted).30 However, cases in which that
prohibition has truly been at issue are clearly distinguishable from this case
and in no way suggest that the military judge directed a conviction, or
otherwise erred, in providing the reasonable doubt instruction at issue here.
    For example, a jury instruction stating that if the government disproved
the defendant’s alibi defense beyond a reasonable doubt, then the jury must
find the defendant guilty, violates the defendant’s Sixth Amendment right “to
have that jury decide all relevant issues of fact and to weigh the credibility of
witnesses.” United States v. Hayward, 420 F2d 142, 143-44 (D.C. Cir. 1969).
However, that instruction is a directed verdict not due to the “must find”
language, but because the instruction as a whole “eliminated all
considerations relevant to the jury’s determination of guilt except whether
the defendant was present at the scene of the crime at the time it occurred.”
United States v. Pierre, 

, 1357 (D.C. Cir. 1992) (citation
omitted).
   Thus, the D.C. Circuit Court of Appeals held that an instruction very
similar to the one at issue here, “[i]f you find that the government has proven
beyond a reasonable doubt every element of the offense with which the

    29 Instruction 3.09, Manual of Model Criminal Jury Instructions for the District

Courts of the Eighth Circuit, 84 (5 Aug. 2014), http://www.juryinstructions.ca8.
uscourts.gov/Manual_of_Model_Criminal_Jury_Instructions_New_and_Revised_8_5_
2014.pdf (“If all of [these] [the] elements have been proved beyond a reasonable doubt
as to [the defendant] . . . then you must find [the defendant] . . . guilty of the crime
charged . . . otherwise you must find [the defendant] . . . not guilty of this crime
[under Count __].”) (emphasis added); Instruction 1.05, Tenth Circuit Court of
Appeals      Criminal     Pattern     Jury    Instructions,   9     (10  Sept.     2015),
https://www.ca10.uscourts.gov/sites/default/files/clerk/JuryInstructionsUpdate2015_0
.pdf (“If, based on your consideration of the evidence, you are firmly convinced that
the defendant is guilty of the crime charged, you must find him guilty. If on the other
hand, you think there is a real possibility that he is not guilty, you must give him the
benefit of the doubt and find him not guilty.”) (emphasis added).
    30The holding in Martin Linen Supply Co. resolved the question of whether the
government could appeal a directed verdict of not guilty, without ever addressing the
propriety of reasonable doubt 

.

                                          13
                    United States v. Rendon, No. 201500408


defendant is charged, and which I will define for you, it is your duty to find
him guilty[,]” was not a directed verdict. 

    The reasonable doubt instruction that the military judge used for the
appellant’s fact-finders did not eliminate any elements from their
consideration, assess witness credibility for them, or determine the ultimate
issue of guilt in usurpation of their role. Instead, the instruction’s
requirements for conviction were contingent upon the members’ being firmly
convinced of the appellant’s guilt beyond a reasonable doubt based upon their
own individual consideration of all the evidence—as the overall instructions
given by the military judge make clear.32 The various times the members
were also instructed that they must acquit the appellant were similarly
dependent on their own evaluation of the evidence. Consequently, we hold
the military judge did not err in instructing the court-martial members as he
did regarding reasonable doubt.
                                III. CONCLUSION
   The findings and sentence are affirmed.
   Judge RUGH and Judge HUTCHISON concur.


                                          For the Court



                                           R.H. TROIDL
                                           Clerk of Court




   31 See also 

; People v. Waller, 2016 Colo. App. LEXIS 1173
at *28, *38-39 (Colo. Ct. App. Aug. 11, 2016); and 

.
   32 See United States v. Hardy, 

, 75 (C.A.A.F. 1997) (“[C]omments of the
military judge should be considered in the context of the . . . full body of the
instructions given . . . .”).

                                        14