United States v. Czekala

11. I concur in the majority opinion except that portion which treats the military judge’s incorrect instruction that, to convict appellant, they “must be satisfied that the evidence is such as to exclude not every fair and rational hypothesis or theory of innocence.” (Emphasis added.) Noting that there was no objection to this instruction, the majority invokes waiver in the absence of plain error. I do not join in this analysis.

12. The court below faced the same dilemma: Finding that the insertion of “not” was incorrect, it proceeded to consider the repercussion of appellant’s failure to…