United States v. Czekala , 1995 CAAF LEXIS 63 ( 1995 )

Opinion of the Court

CRAWFORD, Judge:

1. Major Czekala was convicted of numerous offenses including conspiracy to violate a general regulation and violation of a general regulation (2 specifications)—all regarding parental kidnapping of his 2 ehildren; perjury (3 specifications); filing a false travel claim; conduct unbecoming an officer (3 specifications)—involving having an affair, ■wrongfully procuring a divorce, and dishonorable failure to pay a credit-card debt; and obstruction of justice, in violation of Articles 81, 92, 131, 132, 133, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 892, 931, 932, 933, and 934, respectively. The convening authority approved the adjudged sentence of a dismissal, 1 year’s confinement, and total forfeitures. The Court of Military Review¹ affirmed the findings and sentence. 38 MJ 566 (1993). We granted review on the following issues:

I

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE COURT-MARTIAL PANEL THAT THEY COULD FIND MAJOR CZEKALA GUILTY BEYOND A REASONABLE DOUBT WITHOUT EXCLUDING EVERY FAIR AND RATIONAL HYPOTHESIS OR THEORY OF INNOCENCE.

II

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED BY FINDING THAT THE MILITARY JUDGE ERRED IN HIS “REASONABLE DOUBT” INSTRUCTION AND THEN FINDING THAT THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT IN DIRECT CONTRAVENTION OF Sullivan v. Louisiana, — US.-, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

2. We hold that part of the judge’s instructions read in their entirety was not erroneous and the erroneous part when read in context was not plain error. Thus we need not answer Issue II.

FACTS

3. The judge instructed the members as follows:

You are further advised: first, that 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 a reasonable doubt as to his guilt, that doubt must be resolved in favor of the accused and he must be acquitted; third, if there is a reasonable doubt as to the degree of guilty [sic], that doubt must be resolved in favor of the lowest 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 doubt is on the Government. The burden never shifts to the accused to establish innocence or to disprove the facts necessary to establish each element of each and every offense alleged.

Now, a reasonable doubt is what the words imply. It is a doubt founded in reason arising from the evidence or the lack of it after consideration of all the evidence. Now a reasonable doubt is not a [i] flimsy, fanciful, imaginative, or [ii] fictitious doubt, since such doubts can be raised about anything and everything in the human experience. Rarely, if ever, can anything be proved to an absolute mathematical certainty, and such a burden is not required of the Government here. Rather, a reasonable doubt is a doubt which would cause a reasonably prudent person to hesitate to act in [iii] the more important and weighty of his own personal affairs.

Now, in considering the evidence in this case, before you may vote for a finding of guilty, you must be convinced to a moral certainty of the accused’s guilt; and you must be satisfied that the evidence is such as to exclude [iv]² not every fair and rational hypothesis or theory of innocence. Now, if you are not so convinced and satisfied, then it is your duty to find the accused not guilty.

Now, the rule as to reasonable doubt extends to every element of the offenses, although each particular fact advanced by the prosecution which does not constitute an element need not be established beyond a reasonable doubt. However, if, on the whole evidence, the court is satisfied beyond a reasonable doubt of the truth of each and every element, then the court should find the accused guilty.

(Emphasis added.)

DISCUSSION

4. The Due Process Clause of the Fifth Amendment to the Constitution requires the Government to prove a defendant’s guilt beyond a reasonable doubt. In re Winskip, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). But “the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Victor v. Nebraska, — U.S. -, -, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). Prior to Winship, since the Act of 1950 (Pub.L. No. 506, ch. 169, § 1, 64 Stat. 124), Article 51, UCMJ, 10 USC § 851, has required the Government to prove its case beyond a reasonable doubt.

5. Throughout appellant’s trial the importance of the reasonable-doubt standard was impressed upon the panel because it was mentioned by the judge more than 30 times. R. 628, 1387-88, 2291-92, 2296-97, 2299, 2301-05, 2312-14, 2316-17, 2319-20, 2321-23, 2325-26. Additionally, there is no indication that the mention of reasonable doubt was confusing, as the defense at no time objected or asked for clarification. R. 2332.

6. We hold that [i], [ii], and [iii], numbered in the judge’s instructions set out above, did not change the burden of proof. The judge instructed at [i] that a reasonable doubt is not “flimsy, fanciful, imaginative,” or at [ii] a “fictitious doubt.” Webster’s Ninth New Collegiate Dictionary (1991) defines “flimsy” as “having little worth or plausibility.” Id. at 473. Webster defines “fictitious” as “relating to, or characteristic of fiction: IMAGINARY” and “not genuinely felt.” Id. at 460. The language in Victor would seem to support these instructions. The Court recognized that “[a] fanciful doubt is not a reasonable doubt.” — U.S. at -, 114 S.Ct. at 1248. As to fictitious, the Court also noted that an “imaginary doubt” is not a reasonable doubt. Id. at-, 114 S.Ct. at 1249. As to [iii], while the instruction given has been approved by the Supreme Court, id. at-, 114 S.Ct. at 1250, the hesitation-to-act-in-important-personal-affairs formula probably is not helpful. At best it is ambiguous. If a member reaches a point of hesitation on which way to vote, the instruction does not answer his or her question and probably should not be given. In any event, the instructions read in context would not change the Government’s burden.

7. This ease is not unlike Victor. See also United States v. Hanley, 974 F.2d 14, 17-19 (4th Cir.1992). In Victor the Court held that “the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard.” — U.S. at-, 114 S.Ct. at 1250, quoting Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990). But the Court concluded that the instructions viewed as a whole were such that the members could not have construed the instructions “to indicate” that their “doubt must be anything other than a reasonable one.” — U.S. at-, 114 S.Ct. at 1250.

8. The troubling instruction in this case is [iv]. Instruction [iv], concerning “not every fair and rational hypothesis,” (emphasis added) makes no sense by itself. In fact, this instruction is erroneous and reverses the burdens.

9. There were no objections to the instructions; thus, absent plain error, we hold there was a waiver. To establish plain error appellant must demonstrate: that there was “error”; that such error was “plain, clear, or obvious”; and that the error “affect[ed]” appellant’s “substantial rights.” United States v. Olano, — U.S.-,-- -, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Appellant has not carried his “burden of persuasion with respect to prejudice.” Id. at-, 113 S.Ct. at 1778.

10. When read in context, the instructions as a whole emphasize the presumption of innocence and the burden on the Government to prove appellant’s guilt beyond a reasonable doubt. United States v. Hanley, supra; United States v. O’Brien, 972 F.2d 12, 16 (1st Cir.1992).

The decision of the United States Army Court of Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX and GIERKE concur.

1 . See 41 MJ 213, 229 n. * (1994).

2 . The court below did not seek to determine if the "not” was a typographical error by asking for a certificate of correction under RCM 1104(d)(2), Manual for Courts-Martial, United States, 1984. In fact the tape recording of the instructions used to prepare the record were destroyed. See 38 MJ 566, 578 n. 5.