        This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
           Trentlee D. MCCLOUR, Senior Airman
              United States Air Force, Appellant
                           No. 16-0455
                       Crim. App. No. 38704
       Argued November 2, 2016—Decided January 24, 2017
                    Military Judge: Ira Perkins
   For Appellant: Captain Annie W. Morgan (argued).
   For Appellee: Major Mary Ellen Payne (argued); Colonel
   Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
   Judge STUCKY delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges RYAN,
   OHLSON, and SPARKS, joined.
                    _______________

   Judge STUCKY delivered the opinion of the Court. 1

    While more cases in recent years are tried to military
judges sitting alone, the statutory presumption for an ac-
cused under the Uniform Code of Military Justice (UCMJ) is
still a trial involving members. Article 16, UCMJ, 10 U.S.C.
§ 816 (2012); Rule for Courts-Martial (R.C.M.) 501(a);
R.C.M. 903. Military judges are barred from contravening
the right to a trial by members by directing members to re-
turn a verdict of guilty. Sullivan v. Louisiana, 508 U.S. 275,
277 (1993). In this vein, we are faced with the issue of
whether it is plain error for a military judge to instruct pan-
el members that “if, based on your consideration of the evi-
dence, you’re firmly convinced that the accused is guilty of


   1  We heard oral argument in this case at Peterson Air Force
Base, Colorado Springs, Colorado, as part of the Court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a public
awareness program to demonstrate the operation of a federal
court of appeals and the military justice system.
           United States v. McClour, No. 16-0455/AF
                     Opinion of the Court

the offense charged, you must find him guilty.” (Emphasis
added.) We hold that it is not.
                         I. Background
   The issue before us is the result of a sexual encounter be-
tween Appellant and a fellow airman that was alleged to be
nonconsensual. Appellant was tried by a general court-
martial including members who, prior to deliberation, were
instructed by the military judge as follows with respect to
the Government’s burden of proof:
          A “reasonable doubt” is a conscientious doubt
      based upon reason and common sense, and arising
      from the state of the evidence. Some of you may
      have served as jurors in civil cases, or as members
      on administrative boards, where you were told that
      it’s only necessary to prove that a fact is more likely
      true than not. In criminal cases, the government’s
      proof must be more powerful than that. It must be
      beyond a reasonable doubt. Proof beyond a reason-
      able doubt is proof that leaves you firmly convinced
      of the accused’s guilt. There are very few things in
      the world that we know with absolute certainty,
      and in criminal cases, the law does not require
      proof that overcomes every possible doubt.… [I]f,
      based on your consideration of the evidence, you’re
      firmly convinced that the accused is guilty of the of-
      fense charged, you must find him guilty. If, on the
      other hand, you think there is a real possibility the
      accused is not guilty, you must give him the benefit
      of the doubt and find him not guilty.
These instructions were in accordance with the sample bur-
den of proof instructions provided in the Air Force
Benchbook. Dep’t of the Air Force, Air Force Benchbook,
ch. 2, § V, para. 2-5-12 (2016), available at https://www.
jagcnet.army.mil/Portals/USArmyTJ.nsf/(JAGCNetDocID)/E
lectronic+Benchbook?OpenDocument (last visited Jan. 17,
2017). Defense counsel voiced no objection to them.
    Contrary to his pleas, Appellant was convicted of abusive
sexual conduct under Article 120(d), UCMJ, 10 U.S.C.
§ 920(d) (2012). He was sentenced to a bad-conduct dis-
charge, confinement for 180 days, forfeiture of all pay and
allowances, and reduction to E-1. The findings and sentence
were approved by the convening authority.



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           United States v. McClour, No. 16-0455/AF
                     Opinion of the Court

    On appeal to the United States Air Force Court of Crimi-
nal Appeals, Appellant raised the issue that is now before
us, and the lower court rejected it. United States v. McClour,
No. ACM 38704, 2016 CCA LEXIS 82, at *15–18, 2016 WL
791285, at *6 (A.F. Ct. Crim. App. Feb. 11, 2016) (un-
published).
                        II. Discussion
   Appellant contends that “[b]y telling the panel that it
‘must’ convict if the evidence left them firmly convinced of
guilt, the military judge effectively ‘directed the jury to come
forward with…a verdict [of conviction],’” Brief in Support of
Petition Granted at 7, United States v. McClour, No. 16-0455
(C.A.A.F. Aug. 3, 2016) (alterations in original) (quoting
United States v. Martin Linen Supply Co., 430 U.S. 564, 572-
73 (1977)), and thereby violated the edict that a judge “‘may
not direct a verdict for the [government], no matter how
overwhelming the evidence.’” Id. (quoting Sullivan, 508 U.S.
at 277); see also Martin Linen Supply Co., 430 U.S. at 573
(“The trial judge is thereby barred from attempting to over-
ride or interfere with the jurors’ independent judgment in a
manner contrary to the interests of the accused.”).
    “‘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 juris-
prudence, Appellant has the burden of establishing (1) error
that is (2) clear or obvious and (3) results in material preju-
dice 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).
   Given that directed verdicts for the government in crimi-
nal cases are very clearly barred, Sullivan, 508 U.S. at 277,
and that, “in determining whether [an] error was clear or



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            United States v. McClour, No. 16-0455/AF
                      Opinion of the Court

obvious, we look to law at the time of the appeal,” Knapp,
73 M.J. at 37, such a verdict would constitute clear and ob-
vious error had it occurred. 2 However, Appellant is simply
incorrect, both with regard to what a directed verdict is and
with regard to what the Supreme Court has proscribed. A
directed verdict is “[a] ruling by a trial judge taking a case
from the jury because the evidence will permit only one rea-
sonable verdict.” Black’s Law Dictionary 1791 (10th ed.
2014). “The harm of [a] directed verdict ... is that it de-
prive[s] the [panel] of the power to determine guilt,” State v.
Ragland, 519 A.2d, 1361, 1368 (N.J. 1986), and the accused
of the statutory right to have his guilt determined by a panel
of fellow servicemembers. Article 16, UCMJ, 10 U.S.C. § 816
(2012); R.C.M. 501(a); R.C.M. 903.
    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.” (Emphasis added.) And the military judge
reiterated that the panel members were the ones to deter-
mine guilt or innocence by “weighing and evaluating the ev-
idence” and “us[ing] [their] own common sense, [their] own
knowledge of human nature and the ways of the world.”
   Although the Supreme Court has yet to consider whether
the bar against directed verdicts prohibits a verdict ren-
dered pursuant to an instruction that includes “must find”
or similar language, e.g., Sullivan, 508 U.S. at 277, numer-
ous federal appellate and state supreme courts have con-
cluded that it does not. E.g., United States v. Stegmeier,
701 F.3d 574, 583 (8th Cir. 2012); United States v. Mejia,
597 F.3d 1339, 1340–41 (D.C. Cir. 2010); Ragland, 519 A.2d
at 1367–68; Watts v. United States, 362 A.2d 706, 709–10
(D.C. 1976); see also United States v. Bustillo, 789 F.2d 1364,
1368 (9th Cir. 1986) (finding that an instruction that “the



    2 Martin Linen Supply Co. is not really a directed verdict case,
but rather deals with the appealability of a judgment of acquittal
in a case involving a deadlocked jury. 430 U.S. at 565–67.



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           United States v. McClour, No. 16-0455/AF
                     Opinion of the Court

jury must find [the accused] guilty” if guilt is proven beyond
a reasonable doubt did not constitute plain error).
    In addition, the Federal Judiciary Center’s Pattern Crim-
inal Jury Instructions, which we have cited approvingly,
United States v. Meeks, 41 M.J. 150, 157 n.2 (C.M.A. 1994),
read as follows with regard to a juror’s responsibility to con-
vict:
      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.
Federal Judicial Center, Pattern Criminal Jury Instructions
28 (1987) (emphasis added). At least two U.S. Circuit Courts
of Appeals have adopted this instruction. See Eighth Circuit
Manual of Model Jury Instructions: Criminal 84 (2014);
Tenth Circuit Pattern Jury Instructions: Criminal 9 (2011).
   Quite plainly, this was not a directed verdict. When tak-
en as a whole, the instructions clearly stated the proper
burden of proof and left it to the members to determine
whether the Government’s evidence met that burden. Noth-
ing more is required.
    For the foregoing reasons, it cannot be said that any er-
ror (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.
                        III. Judgment
   The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.




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