Your Court-Martial Appeal and the Date of Your Offense: Why It Matters More Than You Think

If you were convicted at a court-martial, one fact could shape your entire appeal: the date the alleged offense occurred. Not the date of your trial. Not the date you were sentenced. The date of the offense itself.

Congress changed the rules for military appeals in 2021. That change created two completely different systems — one for people whose alleged offenses happened before January 1, 2021, and one for people whose alleged offenses happened on or after that date. Which system applies to you can be the difference between an appeals court that automatically takes a hard look at whether the evidence really proved you guilty, and one that requires you to jump through extra hoops just to get that review started.

This post explains both systems in plain terms, tells you which cases matter, and explains why having experienced appellate counsel makes all the difference.

The Old System: The Appeals Court Had to Personally Convince Itself You Were Guilty

Before January 1, 2021, the rules were straightforward and relatively favorable to the accused. The appeals court — called the Court of Criminal Appeals, or CCA — had to review every conviction automatically. No request needed. No hoops to jump through.

The standard the court applied was simple: Am I personally convinced, beyond a reasonable doubt, that this person is guilty? If the answer was no, the court could throw out the conviction — even if the panel at trial believed otherwise.

This gave the appeals court real power. It could look at everything fresh. It did not have to defer to the panel’s judgment. If the evidence was thin, contradicted, or just did not add up, the appeals court could say so and act on it.

The New System: You Have to Earn the Right to That Review

For offenses that occurred on or after January 1, 2021, Congress tightened the process considerably.

Under the new rules, the CCA does not automatically review whether the evidence was strong enough to convict you. You have to ask for that review, and you have to give the court a specific reason to look. The law calls this making “a specific showing of a deficiency in proof.” In plain terms, you cannot just say “I disagree with the verdict.” You have to point to something concrete — a gap in the evidence, a weakness in the government’s proof on a specific element of the offense, something that shows the conviction may not hold up under scrutiny.

Only after you clear that hurdle does the court actually weigh the evidence. And even then, the court gives some deference to what the trial court found. To overturn a conviction, the appeals court must be “clearly convinced” the guilty finding was against the weight of the evidence — still measured at proof beyond a reasonable doubt, but with a higher bar to clear before the court acts.

Which System Applies to You?

The answer depends on one thing: when did the alleged offense occur?

• Before January 1, 2021 — the old system applies. The CCA reviews your conviction automatically and must personally be convinced you are guilty beyond a reasonable doubt.
• On or after January 1, 2021 — the new system applies. You must assign the error, make the specific showing, and the court gives deference to the trial court’s findings.

The date of your trial, sentencing, or appeal does not matter for this purpose. Only the offense date counts.

The Cases That Prove This Matters

United States v. Patterson, No. ACM 40426 (A.F. Ct. Crim. App. Sept. 27, 2024)

This is the clearest Air Force example of the old system working in an accused’s favor. The Air Force Court of Criminal Appeals set aside Staff Sergeant Patterson’s conviction because the Government failed to prove beyond a reasonable doubt that the offense occurred during the dates alleged in the specification. The court applied the old standard — full, fresh review, no deference — because all the charged conduct predated January 1, 2021. The Government appealed to the Court of Appeals for the Armed Forces, which confirmed that it could only review the Air Force court’s decision for legal errors, not second-guess the factual findings. The conviction stayed set aside.

That case traces the full chain: the Air Force appeals court has real power over pre-2021 convictions, and CAAF cannot override it on the facts.

United States v. Harvey, 85 M.J. 127 (C.A.A.F. 2024)

This is the leading case on how the new system works. The Court of Appeals for the Armed Forces held that under the post-2021 rules, the appeals court must first decide whether the appellant has made that specific showing of a deficiency in proof before it does anything else. If you clear that hurdle, the court weighs the evidence — but still gives deference to what the trial court found. The court cannot presume you are guilty. But you have to give it a concrete reason to look.

United States v. Csiti, 85 M.J. 414 (C.A.A.F. 2025)

This case settled a question that had been floating around: can the Court of Appeals for the Armed Forces conduct its own factual sufficiency review? The answer is no. Under both the old and new systems, CAAF only reviews legal questions. Factual sufficiency — whether the evidence actually proved you guilty — lives entirely at the CCA level. Win it there, or you likely do not win it at all.

What About Charges That Span Both Sides of January 1, 2021?

Some cases involve charges that cover conduct both before and after the cutoff date–which lawyers call “bridge cases.” These situations are complicated, and the answer is not always obvious. Which standard applies can depend on how the charges are drafted, which specific findings are at issue, and how the appellate court decides to handle the split.

If your case involves charges from both sides of that date, you need counsel who understands both systems and can argue whichever standard gives you the best shot at relief.

Why This Matters for Your Appeal

The difference between the old and new systems is not a technicality. It is the difference between an appeals court that owes you a fresh look and one that starts with its hands somewhat tied. Getting this right — identifying which system applies, making the right showing under the right standard, and building the argument that gives the court a reason to act — is exactly the kind of work experienced military appellate counsel does.

Cave & Freeburg, LLP — We Are Actively Litigating These Issues Right Now

Cave & Freeburg currently represents Air Force, Army, and Navy-Marine Corps appellants in active appeals involving Article 66 factual sufficiency challenges — including cases turning on the pre- and post-2021 distinction and cases involving Article 120 convictions under the Mendoza framework.

If you or someone you know has a court-martial conviction and wants to know whether the appeals process could lead to a different result, contact us. We will tell you honestly what we see and what, if anything, can be done about it.

Cave & Freeburg, LLP — Military Defense and Appellate Lawyers www.court-martial.com | (703) 298-9562

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

• Looking at the context of the word or term in the statute. This means considering the other words and phrases in the statute, as well as the overall purpose of the statute.
• Considering the legislative history of the statute. This includes looking at the bill drafts, committee reports, and other materials that were created during the legislative process.
• Considering relevant case law. This includes looking at how other courts have interpreted similar words and terms in other statutes.

The court will use these tools to interpret the ambiguous word or term in a way consistent with the statute’s overall purpose. Readers should also be aware of Scalia & Garner’s excellent book–Reading the Law, for deep dives into the rules and their complexities. As military defense counsel, we have a copy handy on our bookshelf.

It is important to note that the rules of statutory interpretation are complex and no single rule can be applied to all cases. Courts will often weigh different factors when interpreting a statute, including the plain meaning of the text, the context of the statute, the legislative history of the statute, and relevant case law.

A specific case-–United States v. Cabuhat

Over the last few years, Congress has made life difficult for military defense counsel, actually all lawyers practicting military justice, because of the numerous changes to the definition of what is or is not a crime.

Before a description of Cabuhat, what does (Google) Bard say The phrase “in the presence of” means in the same place as and close enough to be seen or heard. It can be used to describe a physical presence, such as when you are sitting in a room with someone.’

Cabuhat, assigned to the 86th Aircraft Maintenance Squadron, Ramstein, Germany, was sentenced to 30 years confinement in June 2021. He plead guilty to SA of a child, wrongfully photographing the child, and viewing and possessing CP.

Cabuhat was arrested in 2021 after an Air Force Office OSI investigation. Cabuhat SA a child on many times and had photographed the person during the abuse. He also had a large collection of CP.

Cabuhat pleaded guilty to all charges in June 2021. The military judge sentenced him to 30 years (to be served at the U.S. Disciplinary Barracks, Fort Leavenworth, KS), a dishonorable discharge, reduction to E-1, and mandatory SOR.

The central issue in the case is the meaning of “in the prescence of.” This can be important when the parties are separated and are communicating via Skype, WhatsApp, FaceTime or similar application.

According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

Yes, back in 1976 I got my Bluebook and throughout the three years of law school, it was a regular reference. Ah, but it continues to be a daily tool–for motions, briefs, and such. I fear one day I’ll Bluebook a conversation with a relative or friend in everyday conversation.

One of the common questions is how best to quote, be it an appellate decision or a law journal. Jack Metzler proposes a solution, In Cleaning Up Quotations, to be published in 18 J. APP. PRAC. & PROCESS.

So it often turns out that the best quotation for a proposition is one in which a judge has quoted some other judge, and there’s a good chance that judge was quoting yet another.The Bluebook dictates how to cite the original source of quoted material, how to indicate that the quotation contains a quotation, and how to show any alterations to the immediate source or the original source. But once the quotation contains a quotation, the Bluebook rules often mean that good quotes quickly acquire a significant amount of citation baggage that makes it difficult to use them without significantly distracting from the author’s point or increasing the author’s work for little substantive gain.

His solution is quite elegant and I hope the Bluebook soon includes his suggestion.

While looking into the article I found The Journal of Appellate Practice & Process is available for a $25.00 a year subscription. It is advertised as “a professionally edited publication that provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.” (Note, I get nothing for telling you this.)

I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.” II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.

How does this happen?

Can a trial counsel think this argument is even possible, let alone appropriate. We’ll have to see because we don’t know when or how the Appellant was confronted by the witness(es). If this was after the advice of rights this is clearly wrong. There may be other circumstances, very narrow, where it might be appropriate to offer and then argue such actions of a suspect as consciousness of guilt.

Did not the defense counsel object? No, because the issue is being raised as “plain error.” That means the defense counsel did not object and therefore the issue is waived absent plain error. The plain error doctrine is a limited exception to the waiver rule. It would have been better for defense counsel to object to such statements. I don’t think there’s a tactical consideration here. Even if the military judge overrules the objection the error is preserved and the court may deal with it directly without having to worry whether the plain error doctrine applies.

To overcome waiver, appellant must convince (1) there was error; (2) that it was plain or obvious; and (3) that the error materially prejudiced a substantial right. United States v. Powell, 49 M.J. 460, 463 (1998). We will reverse for plain error only if the error had “an unfair prejudicial impact” on findings or sentence. Id. at 465.

This comes from:

Under F. R. Crim. Pro. 52(b): plain-error where there is an (1) error, (2) that is plain, and (3) that affects substantial rights, appellate court may correct an error not raised at trial, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See e.g., Johnson v. United States, 520 U.S. 461 (1997) .

In United States v. Quick:

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

As the gubmint’s oft-stated “it’s too hard” argument CAAF said:

As noted in Miller, sending a case to CCAs for a sentenceonly rehearing is somewhat cumbersome, as a new court must be assembled and informed of the facts. 10 C.M.A. at 299, 27 C.M.R. at 373. However, a process that is cumbersome does not equate to a process that is unworkable. The very fact that the CCAs have been ordering sentence-only rehearings for over sixty years demonstrates the workability of the process.

Along with deciding the issue, CAAF made a couple of comments interesting to those students of CAAF’s stare decisis belief.

• We do not believe that Miller was so poorly reasoned that it should be reversed on that basis alone, particularly when it has been accepted by and relied upon by both the legislative and executive branches of government in the intervening years.
• Legislative history does not support overruling.
• A long supportive history following the case sought to be overruled and thus an argument for consistency. But, one asks, what about Fosler?
• The Supreme Court has held that stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J. at 231. As noted, the Miller rule has been in effect for over sixty years and during that time has become accepted procedure in the military justice system. It has provided a predictable and consistent appellate remedy for both litigants and the lower courts to follow. (Fosler anyone?)
• (Note from the two dissenting judges) The fundamental error in the court’s analysis was in according the policy of stare decisis an aspect of flexibility that it does not have. A precedent-making decision may be overruled by the court that made it or by a court of a higher rank. That discretion, however, does not reside in a court of a lower rank. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)

The Supremes anyone?

1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001). Without this finding, there is no IAC even if there is an error, because there is no prejudice. However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error. There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion? No.

Do you have to raise every single motion the client asks you to? No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal? We know the MJ can hold such a hearing.

The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside. Charge II and its sole specification (false official statement) are dismissed with prejudice. A rehearing on the remaining charges is authorized.”

1. On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). “

2. The military appellate courts have been taking a hard look at the issue of what is or isn’t a “official statement” for purposes of a UCMJ prosecution at court-martial. The NMCCA has evaluated the facts in Brown’s case and determined that the circumstances surrounding his alleged false statements were not official.

While these conflicting accounts paint a confusing picture of what exactly was said, the two clearly had an official duty to keep custody of the appellant. But an informal conversation over sandwiches, one that GySgt T characterized as having nothing to do with his function as the legal officer, bore no bearing to any dialogue necessary to the appellant’s detention. We therefore conclude that this statement lacked officiality within the meaning of Article 107, UCMJ.

3. The more important decision of the court related to errors in the admission of adverse character evidence. Essentially the prosecution offered and the military judge admitted a number of allegations about Brown’s character that is best described as evidence of predisposition. Under the circumstances of this case predisposition evidence is inadmissible.

This case illustrates several points.

1. The defense must be alert and object to efforts by the prosecution to adduce improper character evidence. In this case the military defense counsel do a decent job at trial at objecting and preserving the issues.

2. The prosecution has to be careful in seeking to prove guilt by offering inflammatory character information. When they do that they risk taking a winnable case and making appellate issues.

On Thursday CAAF granted review in the Air Force case of United States v. Yanez:

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue: WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE MARITAL PRIVILEGE.

The Appellant in Yanez personally raised the issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The AFCCA opinion is here.

After giving further consideration to the language of the statute, its legislative history, the underlying rationale for the federal child pornography laws, and the brief of Solicitor General submitted on behalf of the United States, we hold that the statutory term “lascivious exhibition of the genitals or pubic area,” as used in 18 U.S.C. Sec. 2256(2)(E), does not contain any requirement that the child subject’s genitals or pubic area be fully or partially exposed or discernible through his or her opaque clothing. The statutory language is clear and contains no ambiguity. Therefore, the rule of lenity should not be applied to defeat the clear intent of Congress to prohibit the possession of child pornography to the maximum extent allowable under the Constitution.

Certainly the broadened definition of what can be CP opens up a wider array of images subject regulation. In response to First Amendment and other concerns raised by Knox, the court opined:

Knox’s prediction that our interpretation of an exhibition will result in prosecutors leafing through family albums and church bulletins containing innocent pictures of fully clothed children and pressing charges is unfounded. The limiting principle in the statute is the requirement of lasciviousness.17 A visual depiction of a child subject’s genitals or pubic area, whether the child is clothed or naked, must be lascivious in order to be proscribed. Whether a depiction is lascivious is essentially an inquiry into whether or not the material meets the standard of lasciviousness as guided by the Dost factors.

The ACCA notes that the Court of Appeals for the Armed Forces has implicitly adopted Knox.

[W]e determine whether an image contains a “lascivious exhibition” by review of the totality of the circumstances, including consideration of the so-called Dost [United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)] factors. See United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (adopting the approach of the Third Circuit in Knox but not specifically referencing their holding relative to nudity).

Slip op. at 6.

During my time as deputy director at Navy Appellate Defense we did an informal study of Grostefon issues and found that the appellate court would from time to time find error and sometimes grant meaningful relief.

So when you begin reading United States v. McIntosh, ARMY 20120780 (A. Ct. Crim. App. 29 ay 2014), a Grosty case, you wonder what’s in store – the usual – some may say yes.

Appellant asserted that the prosecution failed to prove his possession of CP was prejudicial to good order and discipline. The ACCA agreed. But, in the typical pyrrhic way, the ACCA affirmed the finding based on sufficient evidence of service discredit, and affirmed the sentence.

As best I could tell CPT Martin was really drunk at the time of the alleged offenses. A cab driver who dropped him off apparently testified that “he was the most drunk person he’s ever seen,” or words to that effect. The gate guard said that “he could have been knocked over with a finger push,” or words to that effect. And there was testimony that he could have been around a 2.5.

So, one of the judges asks appellate government counsel various questions about the appellant’s state of intoxication. Naturally the government was downplaying it because the argument was he was too drunk to form a specific intent for attempted rape. Eventually the judge asked if the appellant had been a complaining witness of sexual assault, would he have been drunk enough for a substantial incapacitation charge.

The humor — the government said no. If that’s the case, then the vast majority of the substantial incapacitation sexual assault by alcohol cases are “unfounded” and there is insufficient evidence on that element.

In United States v. Leubecker, the court took up a Fosler issue again. The two challenged specifications related to breaking restriction and communicating a threat. NMCCA ruled against appellant.

1. It was a guilty plea, with a PTA. 2. The accused did not object (although there was no express waiver of the issue). 3. The court was at pains to distance themselves from Fosler which is an adultery charge. 4. In addressing the breach of restriction the NMCCA emphasized the years of history and its peculiar military related offense.

NMCCA seems to be making the analysis hinge on the nature of the offense charged rather than the Article itself. Some charges are clearly related to good order and discipline. It seems to me that part of the analysis is surplusage – it was a guilty plea case. In a guilty plea case what’s the prejudice?