On August 6, 2026, the United States Court of Appeals for the Armed Forces (CAAF), the military’s highest court, decided United States v. Hunt, No. 25-0257, 2026 CAAF LEXIS 661 (C.A.A.F. Aug. 6, 2026). The decision is important for any service member appealing a court-martial conviction, and especially for those convicted of sexual assault under Article 120, UCMJ, 10 U.S.C. § 920, where credibility and consent are usually the whole ballgame.

What is factual sufficiency review?

The service Courts of Criminal Appeals (CCAs) have a power that almost no civilian appellate court has. They can reweigh the evidence, judge the credibility of witnesses, and set aside a conviction if they are clearly convinced the finding of guilty was against the weight of the evidence. Congress narrowed that power in the FY 2021 NDAA, and we explained how Congress changed factual sufficiency review in 2021 in an earlier post. Under the current version of Article 66, UCMJ, 10 U.S.C. § 866, the court no longer conducts that review automatically. The appellant must request it and must make a specific showing of a deficiency in proof. The new rule applies only when every finding of guilty rests on conduct committed on or after January 1, 2021; we covered whether the old or new factual sufficiency rule applies to your case, including bridge cases, in a separate post. We explain the full appellate process, including CCA review and CAAF petitions, on our military appellate defense page.

Since 2021, the Government has argued that this new requirement does double duty: it not only controls whether the CCA conducts the review, it also confines the court to the exact deficiency the appellant identified, and nothing else. Hunt rejects that argument.

What happened in Hunt

A general court-martial convicted Senior Airman Hunt of one specification of sexual assault. The case turned on a withdrawal of consent during an otherwise consensual encounter, and the complaining witness gave conflicting accounts of when she said stop and what happened next. On appeal, the defense asked the Air Force Court of Criminal Appeals (AFCCA) for factual sufficiency review, pointing to her inconsistent statements and her admitted lie to investigators, and arguing a reasonable possibility that the act stopped promptly when she withdrew consent.

The AFCCA agreed the conviction could not stand, but on a related ground the defense had not named: the Government failed to disprove beyond a reasonable doubt that the accused honestly and reasonably believed he still had consent, the mistake of fact as to consent defense. The Air Force certified the case to CAAF, asking whether a CCA can grant relief on a basis the appellant never specifically raised.

What CAAF held

CAAF said yes. The request and specific showing required by Article 66(d)(1)(B)(i) are a threshold to review, not a limit on its scope. Once an appellant clears that threshold as to a particular finding of guilty, the CCA may weigh the entire record on that finding and may set the finding aside on any factual ground, including a defense theory the appellant did not expressly argue. Hunt, 2026 CAAF LEXIS 661, at *2-3, *8-9. The one boundary: the review stays tied to the finding the appellant actually challenged. The CCA cannot roam into findings the appellant left alone.

The decision was close on the legal question. Two of the five judges, Chief Judge Maggs and Judge Ohlson, read the statute the Government’s way. But Judge Ohlson voted to affirm anyway because CAAF gives deference to how a CCA applies the statute, so the AFCCA’s decision setting aside the conviction stands.

Why this matters if you are appealing

First, the playing field on factual sufficiency is broader than the Government wanted. If your appellate counsel makes a solid, specific showing of a weakness in the proof on a finding, the CCA reviewing that finding is not boxed into the exact words of the brief. In sexual assault cases, where consent, withdrawal of consent, and mistake of fact overlap and blur into one another, that flexibility can be the difference between an affirmed conviction and a dismissal.

Second, the threshold still matters, a lot. CAAF has never defined exactly what a “specific showing of a deficiency in proof” requires, and one judge wrote that he would have found the showing in this case inadequate. A boilerplate claim that the evidence was weak will not open the door. The brief must identify real, particular problems with the Government’s proof. That is careful, record-intensive work, and it is where experienced appellate counsel earn their keep.

Third, name your defenses anyway. Hunt saved this appellant, but nothing in the opinion rewards vague pleading. The safe course remains to identify every deficiency in proof, including the Government’s failure to disprove defenses like mistake of fact, expressly and specifically.

Talk to us

Cave & Freeburg, LLP has handled court-martial appeals before every service CCA, CAAF, and the Supreme Court, and we have defended Article 120 sexual assault cases at trial and on appeal for decades. If you or a family member has been convicted at court-martial, the deadlines run quickly and the first brief is the one that matters most. Contact us for a confidential consultation, and follow our ongoing analysis of military justice decisions at the Court-Martial Trial Practice Blog.

The case

A military judge (MJ) sitting alone convicted a sergeant, contrary to his pleas, of two specifications of abusive sexual contact and one specification of assault with intent to commit sexual assault, in violation of UCMJ arts. 120 and 128, 10 U.S.C. §§ 920 and 928. The events occurred on deployment in Poland, first in the bunk area of a tent during a movie and then outside against a generator. The MJ sentenced the sergeant to a bad-conduct discharge, 120 days of confinement, total forfeitures, and reduction to E-1.

Two hearsay rulings drove the appeal. First, the complaining witness left the tent, found a specialist, and, while described as scared, shaken, and hyperventilating, said the appellant tried to kiss her. Second, the next morning she discovered a bruise on her inner thigh, “started crying even more,” found a corporal, and after calming down enough to be coherent gave a fuller account and attributed the bruise to the appellant. The defense objected to both statements as hearsay. The MJ held two Article 39(a) sessions, made findings on the record, and admitted both statements under Rule 803(2), Military Rules of Evidence (Mil. R. Evid.), Manual for Courts-Martial, United States (2024 ed.), the excited utterance exception.

The first statement: deference earned on the record

ACCA reviewed the rulings for abuse of discretion, citing *United States v. Henry*, 81 M.J. 91, 95 (C.A.A.F. 2020), and applied the familiar three-part foundation from *Henry*, 81 M.J. at 96: the statement must be spontaneous rather than the product of reflection, the event must be startling, and the declarant must still be under the stress of excitement the event caused. For the third element, courts weigh the six *Donaldson* factors, including lapse of time and the declarant’s physical and mental condition. *United States v. Donaldson*, 58 M.J. 477, 483 (C.A.A.F. 2003).

The defense had a real timeline argument. The complaining witness testified she stayed in the bunk area for what felt like two or three minutes before leaving to get help. Eyewitnesses put it at fifteen to twenty minutes and described her as “normal.” The MJ resolved the conflict on the record, discounting the bunk-room witnesses because they were watching a movie in a dark tent and crediting the specialist, who was actually focused on her. He also noted that the appellant’s parting instruction, to meet him at his bed at 2 or 3 in the morning, kept the fear alive. ACCA affirmed, and its reasoning contains the practice point: when an MJ lays out facts, analysis, and findings on the record, the appellate court gives the ruling more deference. *United States v. Smith*, 83 M.J. 350, 355 (C.A.A.F. 2023). A thin record cuts the other way. Trial counsel on both sides should treat the Article 39(a) session as the whole ballgame, because it usually is.

The second statement: assume error, find no prejudice

The next-morning statement to the corporal was the more interesting issue. Hours had passed. The complaining witness had slept, or at least had the night to reflect. The government’s theory had to be that discovering the bruise renewed the excitement, a doctrine *Donaldson* acknowledges but treats warily, since the whole premise of the exception weakens once a declarant has had the opportunity to deliberate. *Donaldson*, 58 M.J. at 483.

ACCA called this “a closer call” and then declined to decide it. Instead the court assumed error and tested for prejudice under the four-factor framework of *United States v. Kohlbek*, 78 M.J. 326, 334 (C.A.A.F. 2019): strength of the government’s case, strength of the defense case, and the materiality and quality of the contested evidence. Because the declarant testified and faced cross-examination, the error was nonconstitutional, so the question was whether it had a substantial influence on the findings. *See United States v. Pablo*, 53 M.J. 356, 359 (C.A.A.F. 2000). The court found the government’s case strong, the defense case built on minor inconsistencies, and the corporal’s account both less detailed than the in-court testimony and silent on the tent specifications entirely. No prejudice, findings and sentence affirmed.

What appellants and counsel should take from Kindschi

Three things. First, excited utterance litigation is won or lost on the trial record. Nail down the timeline through cross, and force the MJ to make findings; deference flows to reasoned rulings and away from bare ones. Second, the “renewed excitement” theory for next-day statements remains unsettled in the military courts. ACCA had a clean opportunity to draw a line and chose the prejudice off-ramp instead, which means the issue is still live for a case where the hearsay actually mattered. Third, prejudice is where most evidentiary appeals die. An appellate court that can call a ruling a close question and still affirm has told you what the real battlefield is: showing that the contested statement carried weight the rest of the record did not.

We litigate hearsay and confrontation issues at trial and on appeal, including in Article 120 sexual assault courts-martial and Article 128 assault cases, where excited utterance fights are routine. If you have been convicted and want an honest assessment of the evidentiary issues in your record, start with our overview of court-martial appeals under the UCMJ.

The case in brief

An enlisted panel sitting as a general court-martial convicted Specialist Rice, contrary to his pleas, of three specifications of making false official statements in violation of UCMJ art. 107, 10 U.S.C. § 907. The military judge (MJ) sentenced him to a bad-conduct discharge, fourteen months of confinement, and reduction to E-1. The panel acquitted him of two specifications of domestic violence under Article 128b, and the government withdrew and dismissed an accessory-after-the-fact specification before trial.

The false statement charges arose after another soldier, driving with Rice as a passenger, intentionally struck a fellow soldier with the vehicle after an argument in Kaiserslautern, Germany. Rice told CID the driver said he had hit a deer and that Rice had been asleep in the back seat. A third specification rested on a false quarters slip Rice handed his first sergeant.

On appeal to the United States Army Court of Criminal Appeals (ACCA), Rice raised four assignments of error. Only one drew discussion: a claim that the MJ abandoned the role of impartial arbiter and became a partisan, or an adjunct to the prosecution. ACCA disagreed and affirmed.

What the military judge did

The claim rested on two episodes.

The infotainment evidence. The government called a digital forensic examiner to present his analysis of GPS data pulled from the infotainment system of the driver’s vehicle. The defense objected on Confrontation Clause grounds because the examiner had analyzed data that a different agent collected. In an Article 39(a) session, the MJ told the government it had to lay its foundation, sustained the defense objection when the foundation fell short, and explained the gap: the government had not shown how the data “got from Point A to Point B.” The MJ granted a recess for both sides to reassess. When the government’s second attempt through the examiner’s chain-of-custody hash value testimony also failed, the MJ told counsel “the answer is going to be ‘no.'”

Is a military judge’s impartiality called into question?

Then came the moment that gave the appeal its traction. During a collecting agent’s later testimony, the MJ sua sponte excused the panel because he noticed the analyzed data referred to the driver’s identity, which made him wonder whether other identifying information in the raw data could tie the data to the right vehicle and cure the deficiency. He told counsel they would also need to establish the vehicle’s brand, model, or serial number from the property custody document, and he recessed again so both sides could talk to the examiner. The government returned, matched the vehicle identification number to identifiers in the data through two witnesses, and the report came in over the defense’s continuing Confrontation objection.

The excusal note. During the defense case on the quarters slip charge, the government sought to admit a patient excusal note through a defense expert. The defense objected that nothing showed the note was ever given to Rice. The MJ asked the doctor two questions: did you generate this document for the accused, and did you give it to him? The doctor said yes and added, “I was in the room when he received it.” Objection overruled, note admitted.

The defense never moved to challenge or disqualify the MJ at trial.

The court’s reasoning

Because the defense raised disqualification for the first time on appeal, ACCA reviewed for plain error under United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011). The accused has a constitutional right to an impartial judge, implemented by Rule 902(a), Rules for Courts-Martial (R.C.M.), Manual for Courts-Martial, (M.C.M.) United States (2024 ed.), and an appearance of bias suffices without proof of actual bias. United States v. Uribe, 80 M.J. 442, 446 (C.A.A.F. 2021). But MJs are presumed impartial, and the presumption sets a high hurdle. United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001).

The court leaned on the long line of authority that an MJ is not a mere “umpire in a contest between the Government and accused,” Quintanilla, 56 M.J. at 43, and may ask questions, clarify the evidence, and explain evidentiary requirements or the state of the record. United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995). Occasional suggestions to counsel do not make the MJ a partisan advocate, and intervention to “prevent further fumbling and waste of the court’s time on a procedural matter involving obviously relevant and admissible evidence” is permissible. United States v. Zaccheus, 31 M.J. 766, 768 (A.C.M.R. 1990).

On the forensic evidence, ACCA held the MJ acted within the gatekeeping duty that Rule 104(a), Military Rules of Evidence (Mil. R. Evid.), Manual for Courts-Martial, (M.C.M.) United States (2024 ed.), assigns to the trial judge. The MJ identified what was missing from the foundation, did not vouch for the evidence or relieve the government of producing witnesses, and gave both sides equal access to the examiner during the recesses. On the excusal note, the two clarifying questions fell within Ramos and Zaccheus. Findings and sentence affirmed.

Analysis

Three points deserve attention, especially if there is a question about the military judge’s impartiality.

First, preservation decided this case before the merits did. Because the defense never challenged the MJ at trial, the plain error standard applied, and the Quintanilla presumption of impartiality did the rest. Trial defense counsel who believe an MJ has started steering the government’s case should say so on the record, request an R.C.M. 902 recusal ruling, and build the record contemporaneously. Raising judicial partiality for the first time on appeal, under plain error, against a presumption of impartiality, is close to the steepest climb in military appellate practice.

Second, the hard fact for the defense was not that the MJ ruled on foundation. It was that he found the cure. Sustaining an objection and explaining why is ordinary judging. The sua sponte 39(a), called because the MJ noticed identifying data in the raw evidence and wondered aloud whether it might resolve the deficiency he had just identified, sits closer to the line. The court answered that observation with the Zaccheus trial-management rationale, and the record helped the government’s position here: the MJ sustained the defense objection twice, told the government “no” twice, and gave the defense the same recess access to the witness. A reasonable observer, ACCA concluded, sees a judge managing admissibility rather than assisting a party. The defense-side reading is different: each sustained objection arrived with a map, and the final map came from the bench unprompted. United States v. Foster, 64 M.J. 331, 335-37 (C.A.A.F. 2007), tolerates even questioning that resembles cross-examination when it is limited and the record as a whole shows neutrality, and that framework gave the court all the room it needed.

Third, notice what happened to the Confrontation Clause objection. The defense objected that the examiner analyzed data someone else collected, an objection that echoes the surrogate-testimony problems the Supreme Court addressed in Smith v. Arizona, 602 U.S. 779 (2024). The litigation then played out entirely as a foundation and chain-of-custody fight over hash values and vehicle identifiers, and the opinion resolved it the same way. Whether the examiner’s report carried testimonial statements of the non-testifying collecting agent never received separate analysis. Counsel litigating digital forensics should keep the two objections distinct, because a cured foundation does not answer a Confrontation objection, and the argument is easier to press on appeal when the record separates them.

Are there concerns about the military judge’s impartiality?

For service members facing charges of false official statements under Article 107, Rice is also a reminder that statements to CID about someone else’s misconduct can become the government’s whole case against you. If you are appealing a court-martial conviction and believe the trial judge crossed the line, contact us to review the record with counsel who have litigated these issues since 1991.

The facts

A military judge (MJ) sitting alone convicted Sergeant First Class Varlaro, contrary to his pleas, of willful disobedience, damaging non-military property, communicating a threat, wrongful appropriation, domestic violence, burglary, and obstructing justice, in violation of UCMJ arts. 90, 109, 115, 121, 128b, 129, and 131b, 10 U.S.C. §§ 890, 909, 915, 921, 928b, 929, and 931b. The MJ acquitted him of sexual assault and stalking.

The Article 109 specification arose from an argument with his wife. When she returned to pick him up after dropping him off, he beat the trunk of her car, tore her suitcase by throwing it on the pavement, threw her car key, slammed the doors, and hurled her backpack “hard” into the parking lot. The backpack held her laptop. The laptop worked before the throw and never worked again.

On appeal, the defense argued the evidence was legally insufficient because the government never proved the appellant knew the laptop was inside the backpack. Without that knowledge, the argument ran, he could not have formed the specific intent Article 109 requires. United States v. Bernacki, 13 U.S.C.M.A. 641, 643-44, 33 C.M.R. 173, 175-76 (1963).

Distinguishing Saul

The defense leaned on Saul, where CAAF found a guilty plea to destroying a windshield improvident because the accused told the MJ he never intended to damage it and was surprised it cracked. 86 M.J. at 32, 34. ACCA’s answer is the one every appellate practitioner should have ready: providence and sufficiency are different questions. In a guilty plea, the issue is whether the accused believes in his or her own guilt. United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996). In a contested trial, the factfinder may draw every permissible inference from the evidence, and legal sufficiency review asks only whether any rational factfinder could convict. United States v. Robinson, 77 M.J. 294, 297-98 (C.A.A.F. 2018). CAAF itself flagged the distinction in Saul, observing that a factfinder at a contested trial “might or might not” find the circumstantial evidence sufficient. 86 M.J. at 35.

On that conventional footing, ACCA affirmed. The factfinder could infer the appellant intended the natural and probable consequences of throwing a backpack hard onto pavement, could conclude from the bag’s heft that he knew it was not empty, and could look to the manner of the acts as circumstantial proof of willfulness. United States v. Johnson, 24 M.J. 101, 105-06 (C.M.A. 1987); Manual for Courts-Martial, United States (2019 ed.), pt. IV, para. 45.c.(2).

The new ground: transferred and concurrent intent for property

The court could have stopped there. Instead, Judge Williams wrote an alternative rationale importing transferred intent and concurrent intent, doctrines built for homicide cases, into Article 109. Taking CAAF’s formulation in United States v. Willis, 46 M.J. 258, 261 (C.A.A.F. 1997), the court swapped three words: where there is an intent to damage or destroy and an act designed to bring it about, the accused answers for all natural and probable consequences regardless of the intended object. Under the concurrent intent theory, the appellant’s rampage created a “zone of danger” that swept in the backpack and everything inside it. Under transferred intent, his intent to damage the backpack transferred to the laptop within.

The court acknowledged in footnote 4 that CAAF said in Saul the doctrines “do not apply here,” and reads “here” as fact-bound: Saul involved one act against one item, leaving nothing from which intent could transfer. That is a plausible reading, but it is ACCA’s inference, not CAAF’s holding. The extension is also, strictly, an alternative holding, since the court had already affirmed on ordinary permissive-inference grounds.

Why it matters

Defense counsel should watch three things. First, the unit-of-prosecution question the opinion invites: if one throw transfers intent to every item in a bag, may the government charge a separate specification for each broken item inside? The opinion suggests it “reasonably should be criminalized for each item,” which raises unreasonable multiplication concerns the court did not address. Second, whether CAAF grants review to decide if property crimes really warrant doctrines developed for kill zones and stray bullets. The severity gap between murder and a broken laptop did not trouble ACCA (footnote 5 answers it by noting both require the same category of mens rea, and footnote 6 enlists Locke and Hume), but the fit is contestable. Third, the government now has published language to quote in every contested Article 109 case involving containers, vehicles, and rooms full of property.

A sentencing footnote worth more than a footnote

Separately, and unraised by either party, ACCA caught a segmented-sentencing error. The MJ announced consecutive and concurrent terms totaling 374 days, then reconvened, misstated his own total as 404 days, and ran a 30-day term concurrent to “fix” it. The actual effect cut the total to 344 days. ACCA held the appellant should benefit from the computational error and affirmed only 344 days. The lesson for trial practitioners: do the arithmetic on segmented sentences yourself, on the record, before the court adjourns. Appellate counsel should do it again on review.

Cave & Freeburg handles court-martial appeals before all the service courts, CAAF, and the Supreme Court, including sufficiency challenges and sentence-computation issues, and defends domestic violence charges under Article 128b at trial. More case coverage appears on our Court-Martial Trial Practice Blog.

The United States Army Court of Criminal Appeals (ACCA) decided United States v. Thomas, ARMY 20240080, 2026 CCA LEXIS 318 (A. Ct. Crim. App. 8 Jul. 2026) (mem. op.), on 8 July 2026. An officer panel convicted Captain Thomas, contrary to his pleas, of sexual assault, two specifications of sexual assault of a child, and conduct unbecoming an officer and a gentleman, in violation of UCMJ arts. 120, 120b, and 133, 10 U.S.C. §§ 920, 920b, 933. The panel sentenced him to a dismissal, twenty years of confinement, total forfeitures, and a reprimand. ACCA affirmed. Two issues warranted discussion: whether the Army lost personal jurisdiction when the appellant’s mandatory removal date passed, and whether the evidence sufficiently proved the “parental role” theory underlying the Article 133 conviction.

The timeline drove the appeal. After two non-selections for major, Human Resources Command set a mandatory removal date (MRD) of 31 December 2022. The appellant elected retirement and received orders effective that date. On 22 December 2022, after a four-year investigation and a North Carolina sexual battery conviction, the government preferred court-martial charges. On 10 January 2023, the command revoked his retirement orders, and it arraigned him the following month. The defense moved to dismiss, arguing the retirement orders were never properly revoked before they became effective and that the appellant was never recalled to active duty. The military judge (MJ) denied the motion, and ACCA reviewed the question de novo. 2026 CCA LEXIS 318, at *6.

The court applied the familiar three-part test drawn from 10 U.S.C. §§ 1168(a) and 1169 and adopted in United States v. Hart, 66 M.J. 273, 276-79 (C.A.A.F. 2008), and United States v. Christensen, 78 M.J. 1, 4 (C.A.A.F. 2018): delivery of a valid discharge certificate, a final accounting of pay, and completion of the clearing process. The appellant satisfied none of the three. No final DD Form 214 existed in iPERMS or TRANSPROC. The Defense Finance and Accounting Service cancelled his separation transaction and paid him active duty pay for January 2023. And he never completed out-processing because the command flagged him upon preferral. 2026 CCA LEXIS 318, at *11-12.

Two regulatory provisions did the heavy lifting. Army Reg. 27-10, Military Justice, para. 5-22b (20 Nov. 2020), provides that preferral of charges automatically suspends all favorable personnel actions and renders void any discharge certificate issued afterward. Army Reg. 600-8-24, Officer Transfers and Discharges, para. 1-18 (8 Feb. 2020), bars separation of an officer pending court-martial without HQDA approval. Because the government preferred charges on 22 December, nine days before the retirement date, the automatic flag attached before any discharge could become final.

A factual wrinkle deserves attention. The installation personnel office could not issue DD Form 214s or orders from 23 December 2022 through 10 January 2023 because the Army took its legacy personnel and pay systems offline during the IPPS-A “brownout.” 2026 CCA LEXIS 318, at *4. The government’s own administrative paralysis thus overlapped with the critical window. The court did not need to decide whether a discharge blocked only by a systems outage would count, because the preferral flag independently voided any certificate. Still, the appellant held a retiree ID card and had moved to retiree Tricare, facts the court found insufficient against the tripartite test. The out-processing supervisor testified she was “stumped” that he obtained the card at all. Id. at *5 n.4.

The court also declined to consider a new theory, raised for the first time on appeal, that the MRD should have been December 2021, citing United States v. Lloyd, 69 M.J. 95, 101 (C.A.A.F. 2010). Id. at *10 n.6. The lesson for trial practitioners is blunt: litigate every jurisdictional theory at trial or lose it.

The Article 133 “parental role” theory

The Article 133 specification charged a sexual act upon the victim “while acting in a parental role over her.” The victim was over eighteen during the charged period and was not the appellant’s biological, adopted, or step daughter. The defense argued the government failed to prove the parental role because any legal custody ended at the age of majority.

ACCA rejected the argument on functional grounds. The appellant raised the victim from age five, obtained permanent custody of her in 2014, set rules, assigned chores, and provided food, clothing, and housing. She called him “Dad,” and trial defense counsel themselves referred to him that way during cross-examination. The court held the parental role did not end when the victim turned eighteen, and that the conduct fell below the standards established for officers regardless of the victim’s age or consent, relying on its earlier decision in United States v. Myer, ARMY 20160490, 2019 CCA LEXIS 13, at *10 (A. Ct. Crim. App. 10 Jan. 2019) (mem. op.), which affirmed an Article 133 conviction for sexual activity with an eighteen-year-old adopted daughter. 2026 CCA LEXIS 318, at *17-18. In a footnote, the court also found fair notice satisfied: any reasonable officer would understand the conduct risked dishonor and compromised standing as an officer. Id. at *18 n.10.

One procedural note. Because every offense predated 1 January 2021, the court applied the pre-amendment Article 66 factual sufficiency standard, taking a fresh, impartial look at the evidence rather than the deferential post-2021 test. Id. at *15 n.8.

Takeaways

Thomas confirms how narrow the Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997), escape hatch remains. Jurisdiction ends only when a valid discharge actually issues before findings and sentence. An MRD, retirement orders, a retiree ID card, and a Tricare change do not substitute for the three statutory markers of a completed separation. Once the government prefers charges before the effective date, the automatic flag under AR 27-10 closes the door. For a fuller discussion of who remains subject to the UCMJ, see our pages on court-martial jurisdiction and court-martial of retirees, and our ongoing coverage of jurisdiction decisions on the Court-Martial Trial Practice Blog.

The Decision

On 24 July 2026, ACCA issued its summary disposition in United States v. Ayuso, ARMY 20240332 (Army Ct. Crim. App. 24 July 2026) (unpub.). Judge Schlack wrote for the court. Senior Judge Cooper and Judge Williams concurred. The court held that the military judge (MJ) abused her discretion when she allowed a consenting participant in an extramarital affair to deliver an unsworn victim impact statement, and it then held the error harmless.

Two propositions sit inside that holding. First, “victim” status under UCMJ art. 6b, 10 U.S.C. § 806b, is a legal status a proponent must establish on the record, not a label counsel may assert. Second, winning the legal point and winning the case remain separate projects.

What Happened at Trial

Master Sergeant Ayuso served as a company first sergeant at Joint Base Lewis-McChord. For roughly five months he carried on a consensual sexual relationship with a staff sergeant (SSG) in the same company, a platoon sergeant he knew to be married. Most encounters occurred at his residence. One occurred in his office after duty hours.

The court-martial convicted him of extramarital sexual conduct under UCMJ art. 134, 10 U.S.C. § 934, soliciting the distribution of a controlled substance under UCMJ art. 82, 10 U.S.C. § 882, and assault with an unloaded firearm under UCMJ art. 128, 10 U.S.C. § 928. Critically, the court acquitted him of maltreating the SSG. The adjudged sentence consisted of a reprimand and reduction to E-5. His exposure ran to a dishonorable discharge, fifteen years of confinement, total forfeitures, a reprimand, and reduction to E-1.

After findings, the SSG asked through her Special Victims’ Counsel (SVC) to give an unsworn victim impact statement. Defense counsel objected. Counsel pointed to the maltreatment acquittal and argued that the surviving Article 134 conviction rested on consensual conduct in which the SSG had participated voluntarily. The SVC responded that, given the facts, he believed her to be a victim entitled to speak. The MJ demanded no proffer, identified no harm, entered no findings of fact, and overruled the objection.

The SSG then described feeling “stuck,” having “spiraled downward,” questioning her integrity as a noncommissioned officer, and concluding that she should leave military service. She also referenced harm to her husband, career, family, and friends.

The Rule: “Direct” Means Direct

ACCA reviews a decision to admit a victim impact statement over defense objection for abuse of discretion. United States v. Edwards, 82 M.J. 239, 242-43 (C.A.A.F. 2022). A military judge abuses that discretion when the findings of fact do not support the ruling, when the judge applies incorrect legal principles, or when the application of correct principles to the facts is clearly unreasonable. United States v. Green-Watson, 85 M.J. 340, 345 (C.A.A.F. 2025) (quoting United States v. Wilson, 84 M.J. 383, 390 (C.A.A.F. 2024)).

Article 6b(a)(4)(B) affords crime victims the right to be reasonably heard at presentencing. Rule 1001(c), Rules for Courts-Martial (R.C.M.), Manual for Courts-Martial (M.C.M.), United States (2024 ed.), implements that right and supplies the gatekeeping definition. Only a person who suffered “direct physical, emotional, or pecuniary harm as a result of the commission of an offense” of which the accused stands convicted may speak. UCMJ art. 6b(b), 10 U.S.C. § 806b(b); R.C.M. 1001(c)(2)(A).

The whole case turns on one adjective. ACCA read the rule by its plain language and common usage, as United States v. Fetrow, 76 M.J. 181, 186 (C.A.A.F. 2017), instructs. Its own published decision in United States v. Goins, 85 M.J. 643, 649 (Army Ct. Crim. App. 2025), pet. denied, 2025 CAAF LEXIS 1023 (C.A.A.F. 16 Dec. 2025), supplies the test: harm qualifies as direct when it stands logically and causally related to the offense of conviction, with no intervening cause. Harm that arrives through some other source fails the standard.

Two Independent Abuses of Discretion

ACCA found error twice, and either finding alone would have carried the point.

First, the empty record. The MJ decided a threshold legal question on the bare assertion of counsel. She requested no proffer and placed no findings on the record. A ruling reached in a factual vacuum earns minimal deference. See United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). ACCA called the ruling arbitrary and unsupported by the record. A judge who never examines the claimed harm cannot evaluate its nexus to the criminal act.

Second, the unexamined causal chain. Assuming the MJ did read the statement before ruling, she still failed to address the intervening causes the record put in front of her. ACCA identified three: the SSG’s voluntary participation in the offense, her later regret over an informed choice, and the fallout that followed her disclosure, including an administrative separation. The court attributed her described emotional harm to her own conduct rather than to the accused’s, and it attributed the professional consequences to discovery rather than to commission. Goins, 85 M.J. at 649.

A Deliberately Narrow Holding

ACCA emphasized the limits of what it decided. The court declined to hold that a consenting participant in extramarital sexual conduct can never qualify as a crime victim under Article 6b. It held only that this record failed to establish the direct harm the rule requires. The court also declined to decide whether the SSG suffered emotional harm at all, observing that it was not well positioned to make that judgment.

Counsel who read Ayuso as a categorical bar will overread it. The decision is unpublished and carries no precedential weight. Goins remains the engine, and Goins is published.

Error, But No Relief

Error alone buys nothing. UCMJ art. 59(a), 10 U.S.C. § 859(a), demands material prejudice to a substantial right. ACCA asked whether the statement substantially influenced the adjudged sentence, weighing the relative strength of the parties’ cases along with the materiality and quality of the challenged matter. United States v. Barker, 77 M.J. 377, 384 (C.A.A.F. 2018).

Three facts drove the harmlessness conclusion. The MJ confined the SSG’s victim status to the extramarital conduct specification, which the court considered minor next to the firearm assault. The government introduced no sentencing evidence. And the adjudged sentence, a reprimand and a single-grade reduction, sat far below the authorized maximum. The court affirmed the findings and sentence and denied the petition for a new trial.

Practice Points

• Object, and object with specificity. Defense counsel in Ayuso preserved the issue by tying the objection to the acquittal and to the consensual nature of the surviving offense. That framing gave ACCA the record it needed.
• Demand a proffer. An SVC’s conclusion that a client qualifies as a victim is advocacy, not evidence. Ask the military judge to require a proffer of the claimed harm and its causal link before ruling.
• Ask for findings on the record. A threshold ruling without findings invites reversal, and it also gives appellate counsel something to work with. Trial counsel and SVCs should want those findings as much as the defense does.
• Map the intervening causes. Voluntary participation, later regret, the consequences of disclosure, and collateral administrative action all sit outside the causal chain that Article 6b contemplates. Identify them on the record before the statement is read.
• Mark the exhibit early. The unsworn statement in Ayuso reached the court only shortly before the SVC read it aloud. Counsel who see the document late lose the chance to prepare rebuttal, and the record should reflect that.
• Remember the prejudice hurdle. A clean Article 6b win at the CCA still produces nothing if the sentence looks lenient. Preserve the sentencing record that shows what the statement actually did.

Open Questions

Ayuso leaves useful ground unbroken. Can a spouse who did not participate claim victim status for the same offense? Where does an accused’s superior rank and position, here a first sergeant to a platoon sergeant, fit into a consent analysis that ACCA treated as binary? And how does the harmlessness inquiry work under offense-by-offense sentencing, where the reviewing court can trace the challenged matter to a specific segment of the sentence rather than to an undifferentiated whole?

Cave & Freeburg, LLP

Victim impact litigation now shapes military sentencing in every service. We have written before on the mechanics of victim statements at court-martial, on Article 6b victim writ petitions, and on the related problem of acquitted conduct at sentencing, which Ayuso quietly implicates through the maltreatment acquittal.

Cave & Freeburg, LLP has practiced military law exclusively since 1991, before the Courts of Criminal Appeals, the United States Court of Appeals for the Armed Forces (CAAF), and the Supreme Court. For questions about sentencing, victim rights litigation, or appeals under the UCMJ, contact the firm.

On July 23, 2026, the United States Court of Appeals for the Armed Forces (CAAF) decided United States v. Deremer, No. 25-0158/MC, 2026 CAAF LEXIS 616 (C.A.A.F. July 23, 2026), and every service member who reports a sex-related offense should understand what it says. The Court gave with one hand and took with the other. It held that 10 U.S.C. § 1044e entitled a Marine recruit to her Victims’ Legal Counsel (VLC) when Naval Criminal Investigative Service (NCIS) agents interviewed her a second time as a suspect. It then held that Congress supplied no remedy, so her statements stay in evidence. Deremer, 2026 CAAF LEXIS 616, at *3-*4.

The practical translation matters more than the doctrine. A VLC or Special Victims’ Counsel (SVC) can advise you. That counsel cannot keep investigators away from you and cannot suppress what you say when investigators leave your lawyer out of the room.

How the case arose

Private First Class Deremer reported to Marine Corps Recruit Depot Parris Island in June 2021 at the age of seventeen. Within two weeks she began reporting leg pain. Over the next five months she underwent extensive testing, including ankle imaging and MRIs of her knee, cervical spine, and brain, all of which came back unremarkable. In October 2021 a provider recommended administrative separation for a condition not amounting to a disability, which carries no disability benefits. The day after a provider noted that her symptoms were inconsistent with her account and recommended starting that separation process, she reported that she could not walk. Providers documented concerns about malingering in late October and again in November.

In November 2021 she told NCIS that a female recruit in her training platoon had sexually abused and harassed her. Her VLC and her uniformed victim advocate sat with her through that interview. At the end of it, the lead agent told her that if he needed to talk to her again he would go through her VLC. Deremer, 2026 CAAF LEXIS 616, at *4.

One recruit initially corroborated the account. Nearly a dozen others did not, and several said Deremer had been seen using her legs. The agent re-interviewed the corroborating recruit after advising her under Article 31(b), UCMJ, 10 U.S.C. § 831(b), and telling her she was suspected of conspiracy, false official statement, and obstruction of justice. She then changed her account. The parties described that change differently on appeal. The Government said she recanted outright and confirmed she had never witnessed an assault. The defense said she withdrew only what she claimed to have seen, explaining that she had not been wearing her glasses, and stood by what she had heard.

NCIS closed the sexual assault investigation as unsubstantiated in December 2021 and notified the command, the staff judge advocate, the sexual assault response coordinator, and the victim advocate. In February 2022 it opened a new investigation naming Deremer as the subject, and the same agent interviewed her again six days later. He did not contact her VLC, and the record shows that choice was deliberate. He told her she was looking at lying to a federal agent, and he assured her that initialing the rights form was not signing any rights away. She waived, initially held to her account, and changed it after the agent told her she would be charged with something if he still believed she was lying. Deremer, 2026 CAAF LEXIS 616, at *5-*6.

A week later trial counsel told the VLC what had happened. NCIS answered the VLC’s inquiry by explaining that his client had been interviewed under a different case control number and so had no right to a VLC. Deremer, 2026 CAAF LEXIS 616, at *6-*7. The Government later conceded that the VLC represented her continuously before, during, and after that interview.

A special court-martial convicted her of malingering and making a false official statement in violation of Articles 83 and 107, UCMJ, 10 U.S.C. §§ 883, 907. The military judge (MJ) denied the suppression motion from the bench, weighing her youth and relative inexperience, finding the agents used an appropriate tone, that she was rested, and that the interview ran about thirty-five minutes. The MJ never decided whether her rights waiver was knowing and intelligent, and never addressed what the missing VLC did to that question. Deremer, 2026 CAAF LEXIS 616, at *16 n.9.

What CAAF decided

A divided en banc United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that § 1044e reached the second interview, that NCIS knowingly violated it, and that the statements had to be suppressed. United States v. Deremer, 85 M.J. 546, 552, 554 (N-M. Ct. Crim. App. 2025). The Judge Advocate General of the Navy certified four issues. CAAF agreed with NMCCA on the first and rejected the rest.

The right exists. A second interview about whether the first report was true is a proceeding connected to the reporting and investigation of the alleged sex-related offense. NCIS could not end an attorney-client relationship by re-titling a file, and the Court endorsed NMCCA’s view that the NCIS policy has no foundation in law. Deremer, 2026 CAAF LEXIS 616, at *12 n.5, *13. The statute separately authorizes legal consultation about a victim’s own potential criminal liability arising from the report. 10 U.S.C. § 1044e(b)(1).

Waiving defense counsel did not waive VLC. The two rights come from different sources, attach at different moments, and serve different functions. Nobody advised Deremer of her VLC right or asked whether she wanted to proceed without it. Deremer, 2026 CAAF LEXIS 616, at *17.

No due process violation. Under United States v. Caceres, 440 U.S. 741, 752-53 (1979), the question is whether the individual reasonably relied on the right and suffered substantially from its violation. CAAF found no record evidence of reliance, noting that Deremer never asked for her VLC during the interview and had not pressed the reliance theory in her suppression motion. Deremer, 2026 CAAF LEXIS 616, at *19.

No suppression. Section 1044e names no remedy, and CAAF declined to supply one. Courts suppress for statutory violations that implicate Fourth or Fifth Amendment interests. Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006). Section 1044e protects no constitutional interest, because neither the Fifth nor the Sixth Amendment gives a victim a right to counsel. Deremer, 2026 CAAF LEXIS 616, at *23-*24. CAAF also refused to revive the old McOmber notification rule, which it had already overruled in United States v. Finch, 64 M.J. 118, 124-25 (C.A.A.F. 2006). Deremer, 2026 CAAF LEXIS 616, at *21.

Judge Sparks, joined by Judge Maggs, concurred in the judgment on a shorter path: a Marine who waives her right to “a lawyer” waives every lawyer, including her VLC. Deremer, 2026 CAAF LEXIS 616, at *25-*28 (Sparks, J., concurring in the judgment).

What this means if you are a service member

Reporting a sex offense does not immunize you. Investigators who come to doubt your account will turn the file around and question you as a suspect. Deremer confirms they can do that without calling your VLC first, and that your statements will be admitted anyway.

A VLC is not defense counsel. Your VLC represents your interests as a victim. Once investigators suspect you of an offense, you need independent defense counsel, and § 1044e(b)(1) expressly contemplates advice about seeking military defense services. Ask for it early, and ask in writing.

Article 31(b) is the protection that still has teeth. CAAF built its remedial analysis around the gap between a constitutional right and a statutory one. The right that produces suppression is the right to counsel and the right to silence under Article 31(b), UCMJ, 10 U.S.C. § 831(b). Invoke both, out loud, and stop talking.

Reassurances from an agent are not law. The agent told Deremer he would go through her VLC. He did not, and CAAF held the broken assurance produced no relief because she had not shown she relied on it. Treat nothing an investigator says as a commitment, including anything said about what a form does or does not do.

Witnesses need advice too. The recruit who initially backed Deremer’s account changed it after an agent advised her of her rights and named three felonies she was suspected of. Whatever the truth of that account, a witness in a military investigation can consult a lawyer before answering questions. Do it.

Build the record at the motion, not on appeal. Much of what CAAF held against Deremer traces to what her trial team did not put in front of the MJ. The Court found no evidence she relied on the agent’s promise, and it noted she had not raised that theory in the suppression motion. Suppression theories that are not raised with particularity can be lost.

Where this goes next

CAAF set aside the entire NMCCA decision, including the part that had set aside the false official statement conviction, and returned the record for a new Article 66, UCMJ, 10 U.S.C. § 866, review. It also declined to reach the fourth certified issue, which asked whether the malingering conviction survived suppression of the confession.

That disposition matters more than it looks. Because NMCCA resolved the case on § 1044e, it never ruled on the other suppression theories the defense had raised: that the MJ analyzed only voluntariness and never whether the waiver was knowing and intelligent; that government-created confusion defeated a knowing waiver; that the rights waiver was obtained by trickery; and that the confession itself was involuntary because the agent threatened prosecution. Those theories return to NMCCA now, alongside CAAF’s own observation that the MJ never made the knowing-and-intelligent finding.

Whether any of it changes the outcome is a separate question. The Government’s case on malingering rested on fifteen witnesses, extensive medical records, and photographs, and the false official statement charge rested on the first interview, where the VLC was present. The defense called no witnesses at trial.

CAAF closed with an invitation. Congress can amend § 1044e to authorize a remedy. The President can amend the definition of an involuntary statement in Mil. R. Evid. 304(a) to include § 1044e violations, exactly as it already includes Article 31 violations. Deremer, 2026 CAAF LEXIS 616, at *23-*24. Until one of them acts, § 1044e states a right that nobody has to enforce.

Talk to us before you talk to them

If NCIS, CID, OSI, or CGIS wants a second conversation with you, the moment to call a lawyer is before that conversation. That holds whether the file lists you as a victim, a witness, or a subject, and it holds no matter what an agent tells you about the form in front of you.

Cave & Freeburg, LLP handles courts-martial, investigations, and appeals across every service. See our pages on UCMJ investigations, what to do when you are under investigation, Article 120 court-martial defense, and pretrial motions practice. More case analysis appears on our Court-Martial Trial Practice Blog.

By Philip Cave and Nathan Freeburg at www.court-martial.com.

The Navy-Marine Corps Court of Criminal Appeals decided United States v. Sanchez, No. 202500114, on May 28, 2026. A military judge at a general court-martial at MCAS Miramar convicted a 19-year-old Marine, in accordance with his pleas negotiated with the Office of Special Trial Counsel, of two specifications of sexual abuse of a child by indecent communication under Article 120b, UCMJ, and of production and possession of child pornography under Article 134. The plea agreement set total confinement between 60 and 180 months; the judge adjudged segmented, concurrent terms totaling 144 months, plus reduction to E-1, total forfeitures, and a dishonorable discharge. The sole assignment of error asked whether 144 months was “plainly unreasonable.” NMCCA affirmed — and in doing so, gave the new standard its first real architecture.

The Issue That Matters: Defining the Standard Congress Never Defined

For offenses committed on or after December 28, 2023, military judges sentence alone within sentencing parameters, and Congress replaced the Courts of Criminal Appeals’ old sentence-appropriateness authority with review for whether a sentence “is plainly unreasonable” under Article 66(e)(1)(D). But no one defined the phrase. CAAF has not addressed it, and the 2024 Manual for Courts-Martial deleted the prior R.C.M. 1117(e) definition. Sanchez fills the gap.

The court traced the phrase to its source: the Military Justice Review Group lifted it from 18 U.S.C. § 3742, intending “substantial deference to the trial judge” in line with Booker and Gall. NMCCA then adopted the Fourth Circuit’s two-step framework from United States v. Crudup. Step one asks whether the sentence is “unreasonable” — irrational, capricious, lacking common sense or a rational legal basis. If the sentence survives that inquiry, the analysis ends. Only an unreasonable sentence proceeds to step two: whether it is “plainly” so, meaning clearly or obviously, borrowing from plain-error jurisprudence. Stack that two-step on top of parameter-compliant sentencing and bargained-for ranges, and appellate relief on sentence severity becomes vanishingly rare.

Two more holdings deserve attention. First, the court openly questioned whether the Lacy closely-related-case sentence comparison requirement survives the Article 66 amendments at all — and held that even assuming it does, listing eight cases that share one charge, with no facts, meets no burden. Second, the court invoked its Avellaneda principle: when a represented accused bargains for a sentence range, that bargain is strong evidence the sentence is not too severe. Sanchez received 36 months less than his agreed ceiling and 96 months below the parameter maximum.

Lessons for the Defense

Sanchez confirms that real sentencing advocacy now happens before and at trial, not on appeal. The plea negotiation with OSTC is where confinement gets decided — note that the agreement’s 60-month floor sat below the 120-month parameter minimum for production alone, a below-parameter term the military judge could have rejected under Article 53a but accepted. A military defense lawyer must master parameter categories, segmented sentencing, and concurrent-versus-consecutive structuring, because the appellate safety net Congress wove for the old system no longer catches within-parameter sentences. And appellate rights now turn on offense dates twice over: January 1, 2021 divides the factual sufficiency regimes, and December 28, 2023 divides the sentencing regimes. Counsel — including Article 120 defense lawyers handling child-offense cases where parameter categories run highest — must know which rules govern before advising on any plea. Our Article 120 penalties and sentencing guide explains the parameter system in detail.

Experience Matters

The military justice system rebuilt its sentencing rules from the ground up, and Sanchez shows the appellate courts constructing doctrine in real time. Military defense counsel who litigated under both regimes — and who track each new decision interpreting the UCMJ’s amendments — hold a decisive advantage in plea negotiations and on appeal. If you face charges or sentencing under the new parameters, call Cave & Freeburg, LLP, at (703) 298-9562 or (917) 701-8961.

The Navy-Marine Corps Court of Criminal Appeals decided United States v. Fulsom, No. 202500166, on May 29, 2026. Officer members at a general court-martial at Joint Base Pearl Harbor-Hickam convicted a 19-year-old Lance Corporal, contrary to his pleas, of attempted sexual assault of a child and attempted sexual abuse of a child by indecent communication, both under Article 80, UCMJ. The charges arose from an Army CID sting, Operation Keiki Shield-18, in which an agent ran a fictitious persona — “Chloe,” listed as 18 on an adult dating app but disclosed by text as “almos 15.” The members sentenced Fulsom to reduction to E-1, forty-five days of confinement, total forfeitures, and a dishonorable discharge. The military judge conditionally dismissed the indecent-communication specification as an unreasonable multiplication of charges, to ripen upon completion of appellate review. Fulsom’s sole assignment of error — that the evidence was legally and factually insufficient because the Government entrapped him — failed, and NMCCA affirmed.

The Issue That Matters: Why Entrapment Failed — and What’s Left of It

Under R.C.M. 916(g) and United States v. Hall, once the defense shows a Government agent originated the suggestion to commit the offense, the Government must prove beyond a reasonable doubt either that the criminal design did not originate with it or that the accused was predisposed. The military judge found the defense raised and instructed the members accordingly — the Government carried the burden. The defense still lost, and the opinion shows exactly how the modern sting playbook defeats entrapment.

First, inducement requires more than opportunity. The agents used trickery — an adult app, an age-regressed decoy photo — but the law permits stratagem. What the record lacked was pressure, persuasion, threats, or appeals to sympathy. Second, the agents’ “matching” methodology is built for this litigation: they never raise sexual activity first, escalating only to whatever level the suspect introduces. Fulsom raised it first. Third, the agents offered repeated “off-ramps” — explicit chances to walk away — and the court treated each ignored exit as affirmative evidence of predisposition. Fulsom initially refused after learning the age, but re-engaged within minutes, asked for a real-time photo and video calls to verify “Chloe” was real, proposed intercourse, told his roommate his intentions, and rode an Uber forty-five minutes with condoms in his pocket.

The most consequential doctrinal move comes last: Fulsom repeatedly voiced hesitation — “not risking my career,” “it’s illegal.” The court read those statements not as the conscience of an innocent man but as fear of apprehension, which it called strong evidence of predisposition. That inversion — your client’s expressed reluctance becomes the Government’s proof — should shape how every military defense lawyer evaluates sting cases. The court also conducted a full Article 66(d)(1)(B) factual sufficiency review, finding the gateway showing met and listening to the call recordings itself; we explain that post-2021 framework here.

Lessons for the Defense

Fulsom confirms that entrapment rarely wins on sufficiency review where the suspect first raises sexual activity and travels. The fight that remains is at trial: securing the instruction (won here), forcing the Government to its beyond-a-reasonable-doubt burden, and building inducement facts — persistence after refusal, emotional appeals, extraordinary pressure — where they genuinely exist. Counsel must also confront the digital record early; the single deleted “almos 15” text recovered from the phone extraction handed the Government consciousness of guilt. Attempt liability under Article 80 means no actual child need exist, and these prosecutions move on overwhelming documentary evidence, which is why experienced Article 120 defense lawyers insist on involvement from the first moment of the investigation.

Experience Matters

Online sting cases under the UCMJ turn on doctrine — inducement, predisposition, substantial step — and on details most counsel never see coming, like how an ignored off-ramp or a deleted text will read on appeal. Our military defense counsel have defended these cases at trial and on appeal for decades. If you are under investigation or charged after an online operation, call Cave & Freeburg, LLP, at (703) 298-9562 or (917) 701-8961 before speaking to anyone.

The Navy-Marine Corps Court of Criminal Appeals decided United States v. Durbin, No. 202400333, on June 2, 2026, over a dissent. A military judge sitting alone at a special court-martial at Camp Lejeune convicted Captain Durbin, contrary to her pleas, of one specification of conduct unbecoming an officer under Article 133, UCMJ, for manually stimulating a fellow Marine officer’s penis in her truck — on divers occasions, including once in a publicly accessible parking structure sixty yards from the squadron’s hangar, during working hours, in uniform. The military judge acquitted her of extramarital sexual conduct under Article 134 and excepted some of the charged conduct. The sentence: a reprimand. Durbin raised one assignment of error — legal and factual sufficiency — and a divided panel affirmed.

The Issue That Matters: The Substantive Limits of Article 133

The fight between Judge Gannon’s majority and Senior Judge Kisor’s dissent matters far more than the result. The majority held it “per se unbecoming” for two Marine officers — one of them married — to engage in sexual activity in a public area of the base, in uniform, during working hours. The opinion grounds Article 133 in the British Articles of War of 1765, Parker v. Levy, and CAAF’s 2025 decision in Gonzalez, and it invokes United States v. Norvell for the rule that misconduct need not be seen or discovered to be unbecoming — conduct unsuited to an officer “often occurs under circumstances where secrecy is intended.”

Senior Judge Kisor would reverse. In his view, consensual sexual activity between adults in a privately owned vehicle, parked in a secluded location where no one saw it, involving neither oral sex nor intercourse, shows “lapses in judgment” — not indecency, moral turpitude, or a crime. He faults the Government for proving no nexus between the conduct and Durbin’s fitness to serve, and he warns that the majority converts Article 133 “into a tool for policing private, otherwise lawful behavior.” That dissent now exists as citable persuasive authority under NMCCA Rule 30.2, and a military defense lawyer challenging an Article 133 charge built on private conduct should put it to work.

The court’s factual sufficiency discussion deserves attention too. NMCCA hedged on its own Valencia gateway rule — assuming, after CAAF’s summary affirmance, that a broad credibility attack triggers full review — then applied United States v. Harvey and held that deference to the military judge sits “at its apogee” in a pure credibility contest. The majority also turned the defense theory against itself: Durbin asked the court to believe her accuser’s account on every fact establishing his motive to lie, except the single fact that convicted her. We explain the post-2021 factual sufficiency framework here.

Lessons for the Defense Durbin carries a hard practical lesson about the NJP decision. The other officer accepted nonjudicial punishment, testified at a board of inquiry, and left the Marine Corps with an administrative separation — no federal conviction. Durbin, after consulting counsel, refused NJP; the command referred the case to a special court-martial, and she now carries a federal conviction, even though the adjudged sentence was only a reprimand. Refusing NJP is every accused’s right, and sometimes the correct call — but the choice demands clear-eyed advice from experienced military defense counsel about what referral risks. And because allegations involving sexual conduct reach officers through Article 133 and Article 134 as readily as through Article 120, Article 120 defense lawyers must know this terrain as well.

Experience Matters

A reprimand-only sentence still produced a court-martial conviction and a published appellate fight over what the UCMJ criminalizes. Our military defense lawyers have defended officers in Article 133 and sexual misconduct cases, and litigated appeals before every service court and CAAF, for decades. If you face charges or NJP as an officer, call Cave & Freeburg, LLP, at (703) 298-9562 or (917) 701-8961 before you decide anything.

The Navy-Marine Corps Court of Criminal Appeals decided United States v. Benton, No. 202400332, on June 5, 2026. A military judge sitting alone at a special court-martial at Marine Corps Air Station Cherry Point convicted Private First Class Benton, contrary to his pleas, of breaching restriction under Article 87b, UCMJ, and of attempting to escape from custody under Article 80, UCMJ. The escape charge arose at the base medical clinic. While two brig escorts walked Benton through pre-confinement screening, he kept pushing the revolving door, exited back into the parking lot, sprinted to a friend’s waiting car, and climbed in. A gunnery sergeant stepped in front of the car and ended the attempt.

The military judge sentenced Benton to fourteen days of confinement and credited him with eleven days of pretrial confinement. Critically, the judge also awarded day-for-day Article 13, UCMJ, credit after ruling that the commanding officer “inappropriately imposed punishment on the accused prior to trial” and that the CO’s justification for pretrial confinement “was unreasonable.” On appeal, Benton argued that the conviction for attempting to escape could not stand because the underlying custody was illegal. NMCCA affirmed the findings and sentence.

The Issue That Matters: “Illegal” Custody Versus “Improper” Custody

Benton’s appellate argument had real ingenuity. Article 87a defines custody as restraint of free locomotion imposed by lawful apprehension, and the Manual for Courts-Martial bars a conviction for escape “if the custody was illegal.” Benton reasoned that when the military judge found his pretrial confinement amounted to unlawful pretrial punishment under Article 13, the judge necessarily made the custody illegal — and no one commits an offense by escaping illegal custody.

NMCCA rejected the syllogism by enforcing a distinction the Court of Military Appeals drew fifty years ago in United States v. Rozier, 1 M.J. 469 (C.M.A. 1976). Apprehension is illegal when probable cause is missing or when the person apprehending lacks authority — and a service member may lawfully resist it. Apprehension that is merely improper or irregular — wrong process, wrong place, or a sincere belief in one’s own innocence — “is not subject to relief through self-help.” The remedy lives in the courtroom, not the parking lot.

The court held that Benton conflated the two doctrines. The Article 13 ruling addressed punitive intent and the reasonableness of the CO’s justification; the military judge never found an absence of probable cause. Indeed, the judge observed that the command may have justified confinement “if the command had acted quicker and relied on the actual alleged misconduct.” The CO ordered confinement under R.C.M. 305, the Sergeant Major notified Benton, and trained brig escorts took custody under R.C.M. 302(b). Probable cause existed at the moment the escorts took charge of him. Benton pursued the correct remedy through his Article 39(a) motion — and won it, in the form of day-for-day confinement credit. The system gave him relief through the proper channel; sprinting for a getaway car was not a second one.

Lessons for the Defense

For a military defense lawyer at the trial level, Benton cuts two ways. Counsel should litigate pretrial confinement and restraint issues aggressively — Article 13 credit is real currency, and here it nearly consumed the entire sentence. But counsel must also advise clients in plain terms: self-help against questionable confinement converts a credit issue into a new charge. Benton entered the process facing restriction violations and left it with an attempt-to-escape conviction.

For appellate military defense counsel, the lesson is about record-building. A Rozier argument requires evidence attacking probable cause or apprehension authority at the moment of custody — not an after-the-fact finding of punitive intent. The court also applied the post-2021 Article 66(d)(1)(B) factual sufficiency framework from United States v. Harvey; we explain that changed factual sufficiency standard here.

Experience Matters

Cases like Benton turn on doctrinal distinctions that only experienced counsel spot in time to use them. Our military defense lawyers have litigated pretrial confinement, Article 13, and court-martial appeals before every service court and the Court of Appeals for the Armed Forces for decades. If you face pretrial restraint or have a conviction on appeal under the UCMJ, call Cave & Freeburg, LLP, at (703) 298-9562 or (917) 701-8961.

For Cave & Freeburg, LLP, the case also shows why an accused should bring experienced military defense counsel into the case early. Trial litigation, plea negotiations, mental-health evidence, and appellate preservation do not operate in separate boxes. Each decision changes the next one. A military defense lawyer who understands both trial and appellate practice can use that reality to protect the client when the case turns quickly.

The first Reimonenq decision changed the case

The first decision, United States v. Reimonenq, No. 1509, 2025 WL 1702021, came to the CGCCA on a Government appeal under Article 62, UCMJ. The military judge had suppressed Reimonenq’s statements to CGIS and one command-related statement. The CGCCA denied the Government’s appeal and affirmed the suppression ruling.

That ruling mattered. The 2025 opinion focused on Article 31(b), Miranda custody, invocation of counsel, and whether CGIS obtained a knowing and intelligent waiver. The court emphasized the totality of the circumstances: command-imposed restriction, a mental-health evaluation, guarded movement, misleading rights advice, the agent’s statement that CGIS was not suspecting him of anything, the lack of a cleansing warning, and the failure to honor a request for counsel.

That background connects directly to Cave & Freeburg’s existing guidance on Article 31 and the right to remain silent, and to the Court-Martial Trial Practice Blog post on Reimonenq and rights advisements. Service members often think they can talk their way out of trouble. Investigators often count on that. Reimonenq shows why an accused should invoke the right to silence and ask for counsel before answering questions.

The case also fits the firm’s analysis of Article 62 Government appeals. When the Government appeals a suppression ruling, defense counsel must defend the military judge’s factual findings, preserve the standard of review, and show why the ruling falls within the judge’s permissible range of choices. Reimonenq I gave the defense a major litigation victory before trial.

The second decision shows what happens after a guilty plea

After the Government lost the Article 62 appeal, Reimonenq entered a plea agreement. A military judge sitting as a general court-martial convicted him, consistent with his pleas, of willful dereliction of duty, false official statement, and two specifications of carrying a concealed weapon, in violation of Articles 92, 107, and 114, UCMJ. The judge sentenced him to 518 days of confinement, reduction to E-1, and a dishonorable discharge.

On appeal, Reimonenq personally raised three Grostefon issues: unlawful command influence, ineffective assistance of counsel, and whether the military judge should have conducted a further competency inquiry. The CGCCA rejected all three and affirmed.

Issue One: the plea agreement waived adjudicative UCI

Reimonenq first argued that his command and CGIS committed unlawful command influence. The court did not reach the merits. Instead, it enforced the plea agreement. Reimonenq had agreed to waive all waivable motions, and the military judge had expressly told him that an unconditional guilty plea would waive the UCI issue. Reimonenq said he understood and still wanted the agreement.

The CGCCA relied on United States v. Suarez, 86 M.J. 65 (C.A.A.F. 2025), which holds that claims of adjudicative UCI can be waived. The lesson is straightforward: the phrase “waive all waivable motions” does real work. It can eliminate appellate review of issues the defense litigated or could have litigated unless the parties and the military judge preserve an issue in a legally effective way.

That point makes waiver and forfeiture more than appellate vocabulary. A service member may think, “we raised that issue,” while the appellate court asks a different question: “did the accused intentionally give it up?” A military defense lawyer must explain that distinction before the client signs a plea agreement.

Issue Two: a suppressed statement does not bar a later guilty plea

Reimonenq next argued that trial defense counsel performed ineffectively by allowing him to plead guilty to making a false official statement to CGIS when the military judge had suppressed that statement. The CGCCA rejected the claim under Strickland, Davis, Furth, and Bradley. The court found no factual foundation for deficient performance and no prejudice.

This part of the opinion deserves careful attention. A suppression ruling prevents the Government from using inadmissible evidence at a contested trial. It does not erase the underlying offense. It also does not prevent an accused from later admitting the facts during a guilty plea if the plea is provident, voluntary, and supported by an adequate factual basis.

The CGCCA emphasized two points. First, Reimonenq pleaded guilty after the military judge personally advised him about the meaning and effect of his plea. By pleading guilty, he waived objections to the factual issue of guilt, relieved the Government of proving guilt with admissible evidence, and waived nonjurisdictional defects regarding the additional charge. Second, the plea agreement gave him a substantial benefit: the Government withdrew and dismissed the far more serious attempted premeditated murder charge and agreed to confinement already served.

That does not mean every plea after suppression makes strategic sense. It means appellate courts will not infer ineffective assistance from the mere fact that a military defense counsel allowed a client to accept a favorable plea deal after winning a suppression motion. The appellant must show specific unreasonable conduct and objective prejudice. In the guilty-plea context, he must show a reasonable probability that, but for counsel’s errors, he would have rejected the deal and insisted on trial. Reimonenq did not make that showing.

The false official statement issue also highlights why early representation matters in Article 107 and statement cases. Cave & Freeburg discusses Article 107 and related UCMJ offenses on its military financial crimes and false statement defense page, and the same principle applies outside financial cases: counsel must attack the statement, test admissibility under M.R.E. 304 and M.R.E. 305, and then decide whether the suppression win creates trial leverage or plea leverage.

Issue Three: two sanity boards and a clean plea colloquy defeated the competency claim

Reimonenq also argued that the military judge should have inquired further into his competency before accepting his pleas. The CGCCA found no abuse of discretion. The record contained two R.C.M. 706 sanity boards. The first board found that Reimonenq was mentally responsible at the time of the offenses and could understand the proceedings and cooperate intelligently in his defense. The second board, which the military judge ordered after referral, again found that he could understand the proceedings and cooperate intelligently in his defense.

The guilty-plea record reinforced those opinions. Reimonenq signed a stipulation that disclaimed a mental defect or disease that caused the offenses. During the colloquy, he answered the military judge’s questions, confirmed that he understood the plea agreement, admitted the offenses with the required mental state, and acknowledged that he could have avoided committing the offenses. Nothing in that record triggered a duty to order a third sanity board or conduct a broader inquiry.

The practice point cuts both ways. If competency or mental responsibility remains a live issue, defense counsel must build the record before the plea. That may require expert assistance, an additional R.C.M. 706 request, treatment records, affidavits, or a clear objection. If the record instead shows two sanity boards, a coherent plea colloquy, and no specific warning signs, the appellate court will usually defer to the military judge.

What Reimonenq teaches trial teams

• Win suppression early, but plan the next move. Reimonenq I shows that a strong Article 31/Miranda motion can strip the Government of important evidence and create negotiating leverage. The defense still must decide whether to try the case, seek a favorable agreement, or preserve issues for appeal.
• Treat “waive all waivable motions” as a major term. A broad waiver clause can end UCI, suppression, discovery, and other appellate claims. Defense counsel should identify which issues survive the plea and should make that record unmistakable.
• Do not confuse inadmissibility with innocence. Suppression blocks use of evidence; it does not necessarily block prosecution or a guilty plea. The defense should use suppression as leverage, not as a substitute for element-by-element trial analysis.
• Make ineffective-assistance issues factual, not rhetorical. Appellate courts reject broad complaints. A viable IAC claim needs specific errors, supporting evidence, and a persuasive explanation of why the accused would have rationally gone to trial.
• Develop mental-health issues before the plea. A competency claim gains force from contemporaneous evidence. Without that evidence, a valid R.C.M. 706 record and a careful plea colloquy will usually defeat the claim.

How Cave & Freeburg can help at trial and on appeal

Reimonenq shows why service members should not wait until trial to seek experienced help. A civilian military defense lawyer can investigate the command’s actions, challenge unlawful questioning, demand discovery, litigate Article 31 and Fifth Amendment issues, request expert assistance, and build a record that protects the client at trial and on appeal. Cave & Freeburg handles these problems before charges, at Article 32 proceedings, during motions practice, at trial, and in military appellate courts.

If investigators have contacted you, read Cave & Freeburg’s guidance on UCMJ investigations and your right to remain silent and request counsel. Do not try to explain your way out of an investigation. Do not assume command questioning is harmless. Do not sign a waiver or plea agreement until you understand exactly what rights you give up.

If a court-martial conviction has already happened, Cave & Freeburg’s military appellate defense practice can evaluate whether the case presents viable issues involving suppression, waiver, plea providence, ineffective assistance, competency, sentence relief, or post-trial error. A conviction does not automatically end the fight, but successful appeals require precision, facts, and strategy.

Cave & Freeburg, LLP represents service members worldwide. The firm combines trial advocacy with appellate experience, giving clients a defense team that understands how a motion ruling, plea term, waiver clause, and sanity-board record will look both to the trial judge and to the appellate court. If your career, liberty, retirement, or reputation is at risk, speak with experienced military defense counsel before you act.

Call 703-298-9562 for a confidential consultation.

The unpublished NMCCA decision in Simmons is a modern, post-Military Justice Act application of a much older problem addressed in United States v. Palenius, 2 M.J. 86 (C.M.A. 1977): what does trial defense counsel still owe the accused after sentence is announced?

1. The Palenius baseline

Palenius remains the foundational CMA case for the proposition that defense counsel’s obligations do not end when the military judge adjourns the court. Later CAAF cases describe the accused’s right to effective representation through the entire period of review after trial, including representation before the service Court of Criminal Appeals and CAAF.

The most useful Palenius principle for Simmons is this: post-trial rights are not self-executing. The accused needs counsel to understand what can be done, when it must be done, and how counsel can cause the post-trial and appellate system to act. CAAF recently summarized Palenius as faulting counsel for failing to advise an appellant about the powers of the lower appellate court and counsel’s role in invoking those powers.

That matters because the post-trial stage historically was the accused’s “last best chance” for sentence relief from the convening authority. Even under today’s narrower convening-authority regime, the stage remains important because R.C.M. 1106 still permits the accused to submit written matters to the convening authority after sentence is announced.

2. What Simmons held

In Simmons, the appellant pleaded guilty to four Article 134 child pornography specifications and received the exact sentence required by the plea agreement: dishonorable discharge, 26 months confinement, total forfeitures, and reduction to E-1. After trial, he submitted no clemency matters. On appeal, he alleged that trial defense counsel’s “total abandonment” prevented him from exercising the R.C.M. 1106 clemency right.

NMCCA rejected the claim on both Strickland prongs.

On prejudice, the court held that Simmons did not make a colorable showing of possible prejudice. His declaration apparently described what he would have said—brig conditions and a comparative culpability argument—but did not identify the specific clemency relief he would have requested or what the convening authority could realistically have granted. That tracks CAAF’s Capers approach: the “colorable showing” threshold is low, but prejudice must bear a reasonable relationship to the error and involve a reasonably available remedy; vague speculation about undefined relief is not enough.

The confinement point was fatal. Because Simmons received 26 months confinement, and because there was no military judge clemency recommendation and no substantial-assistance recommendation, the convening authority could not reduce the confinement under R.C.M. 1109. The 2024 MCM makes that limitation clear: for sentences including confinement over six months, the convening authority may modify confinement only as provided in the limited exceptions, while lesser punishments such as forfeitures and reduction in grade remain more accessible forms of relief.

On deficient performance, NMCCA found counsel’s actions professionally reasonable. Before sentencing, counsel reviewed post-trial rights with Simmons; the military judge confirmed the advice on the record; Simmons signed a rights form identifying the 10-day clemency deadline; and he expressed no questions. Later, when brig personnel told counsel that Simmons wanted to speak with him, the R.C.M. 1106 deadline had already expired. Counsel then tried to contact him and continued efforts over several months. On those facts, NMCCA treated the abandonment claim as factually unsupported.

3. The Palenius tension

The key tension is that Simmons relies heavily on the signed post-trial rights form and military-judge colloquy, while Palenius warns against treating post-trial representation as a paperwork event. Palenius is about a real attorney-client function: counsel must explain the process, identify available relief, protect deadlines, and assist the accused in making a meaningful submission.

But Simmons does not necessarily dilute Palenius. It is better read as a fact-specific rejection of a weak record. The appellant did not show that counsel ignored a timely request, failed to explain a specific available form of relief, refused to prepare matters, or caused him to miss a deadline. He also failed to articulate a remedy the convening authority could lawfully grant. That combination let NMCCA say, in effect: Palenius requires continuing representation, but it does not create relief where the record shows advice, no timely request, reasonable follow-up, and no legally available confinement clemency.

4. The strongest defense critique

The best critique of Simmons is that NMCCA could have given more weight to the Palenius duty to provide case-specific post-trial advice. A generic rights form tells the accused that he may submit matters; it does not necessarily explain what matters are worth submitting, what forms of clemency remain legally available, or how a post-trial submission may preserve facts for appellate review.

That last point matters. CAAF has recognized that an appellant can place prison-condition information into the record through clemency submissions to the convening authority. In Simmons, the appellant said he would have raised brig conditions. A sharper appellate theory might have argued that counsel’s alleged failure prejudiced him not merely by losing convening-authority clemency, but by losing the chance to make confinement-condition facts part of the record for later Article 66 review. NMCCA did not develop that theory, likely because the appellant’s declaration and briefing focused on clemency and did not request a precise, legally available remedy.

5. Practical lesson from Palenius and Simmons

For trial defense counsel, Simmons is a warning disguised as a government win. Counsel should not rely on the appellate-rights form alone. The safer Palenius practice is to document a client-specific post-trial conference, identify the precise forms of relief still available under R.C.M. 1109, get a written decision if the client declines clemency, and preserve contact procedures for confined clients.

For appellate defense counsel, the lesson is equally direct: a post-trial IAC claim needs a precise prejudice theory. In a case with more than six months confinement, do not simply say the accused lost a chance at “clemency.” Identify the available relief—reduction in grade, forfeitures, reprimand relief, suspension where authorized, or record-preservation consequences—and explain exactly what the convening authority could have done. Capers and Simmons both punish vague prejudice claims.

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United States v. Rentas: When “Trash” Almost Sank a Plea—And the IAC Claim That Followed

On 30 April 2026, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) issued a per curiam opinion affirming the convictions and sentence in United States v. Rentas, No. 202500082. Lance Corporal Joshua J. Rentas had pleaded guilty at a general court-martial at Camp Foster, Okinawa, to four specifications of possessing child pornography and one specification of distributing child pornography under Article 134, UCMJ. The military judge sentenced him to a dishonorable discharge, 36 months of confinement, total forfeitures, and reduction to E-1. On appeal, Rentas raised two Grostefon issues: improvident pleas based on alleged pressure from counsel during a mid-providence recess, and ineffective assistance of counsel for failing to retain a digital forensic expert. NMCCA rejected both. The opinion offers a textbook walk-through of how providence inquiries work, what an “inconsistency” actually means, and how Strickland prejudice plays out in the guilty-plea context. For service members and any military defense lawyer working a pretrial agreement, it is worth a careful read.

The Facts the Court Cared About

Rentas confessed to NCIS, consented to the search and seizure of his electronic devices, and submitted a “letter of apology” with his proposed plea agreement. Pursuant to that agreement, he pleaded guilty to possessing child pornography on two laptops, an iPhone, and an external hard drive, and to one distribution specification.

During the providence inquiry on Specification 2 (the external hard drive), Rentas told the military judge he had put the hard drive in “the trash can.” Trial counsel called for a recess. Eight minutes later the inquiry resumed. Rentas explained “trash” actually meant a desk drawer “full of a bunch of trash,” that he had transferred the data—including some of the child pornography files—from the hard drive onto a different laptop, and that he planned to eventually get rid of the hard drive. The military judge accepted the pleas and imposed the agreed-upon sentence.

After trial, Rentas filed a declaration alleging that during the recess his trial defense counsel and the trial counsel both told him to “stick to the script” or his plea deal would collapse and he would face “over 50 years of confinement.” NMCCA initially denied his motion to attach the declaration, then denied reconsideration, then on its own reconsidered again and granted the motion. Even with the declaration in the record, the appeal failed.

Issue One: The Providence Inquiry and the “Trash” Problem

The standard of review for accepting a guilty plea is abuse of discretion, with questions of law reviewed de novo. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). Under Article 45, UCMJ, and R.C.M. 910(h)(2), the military judge must reject a plea—or resolve the inconsistency—if the accused sets up matter inconsistent with the plea. The substantial basis test asks whether anything in the record raises a substantial question about the plea.

NMCCA held nothing in the record raised that question for Specification 2. The “trash” comment was not an inconsistency. Rentas explained the desk-drawer-full-of-trash meaning, admitted he transferred the files including the child pornography to another device, and never claimed he was not guilty or that he obtained the files inadvertently. The stipulation of fact had him admitting “exclusive dominion and control” of the hard drive. That is the opposite of an inconsistency. The court distinguished United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2012), and United States v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006): a military judge must dig deeper when the accused raises a possible defense, but mere mitigation or rationalization is not the same thing as a defense. See United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007).

The recess-pressure allegation got even shorter treatment. Rentas did not argue coercion. The court flatly stated that “it is reasonable for a defense counsel to inform a client of possible and foreseeable consequences if a military judge were to reject a guilty plea as improvident.” Telling a client what the maximum punishment looks like if the deal collapses is not improper pressure—it is candid lawyering. The court also pointed out that Rentas did not challenge providence as to Specifications 1, 3, 4, or 5, but asked that all five findings and the sentence be set aside. NMCCA was not biting.

For background on how the Care inquiry functions and how plea problems develop in the record, see our prior post: Guilty pleas under the UCMJ.

Issue Two: Ineffective Assistance and the Digital Forensic Expert

Rentas’s second claim was that trial defense counsel was ineffective for failing to retain a digital forensic expert who could have explained “the process by which files can be transferred from one device to another without the knowledge or intent of the user.” The court reviewed the claim de novo under Strickland v. Washington, 466 U.S. 668 (1984), and the guilty-plea-specific prejudice standard from Lee v. United States, 582 U.S. 357 (2017): whether there is a reasonable probability that, but for counsel’s errors, the accused would not have pleaded guilty and would have insisted on going to trial.

The opinion did two things that matter for any future Strickland claim in the plea context. First, it presumed reasonable tactical judgment. Rentas had already confessed to NCIS and consented to the searches that produced the devices. Against that record, declining to retain a digital forensic expert was a reasonable strategic call—and there is “significant” evidence to overcome before that presumption breaks. Second, it applied Suarez and Furth. A bare post-trial assertion that the accused would not have pleaded guilty is not enough. The court must look at contemporaneous evidence—the confession, the consent search, the apology letter, the stipulation of fact, the agreed sentence cap—because every appellant has an incentive to retroactively reframe the deal. United States v. Suarez, 86 M.J. 65 (C.A.A.F. 2025); United States v. Furth, 81 M.J. 114 (C.A.A.F. 2021).

The court added a sharp factual finding tucked in a footnote: it did not credit Rentas’s claim that he was unaware files would download onto the hard drive. With that credibility call, the prejudice analysis was over.

What This Opinion Teaches

Several practical points emerge. A providence inquiry is not a verbatim test. The military judge must resolve actual inconsistencies, not chase every mitigating word. Rationalization, minimization, and clarification do not invalidate a plea unless they negate an element or set up a defense. See our discussion of this principle: Providence shines down or upon.

Recess conversations between an accused and defense counsel about the consequences of an improvident plea are normal and lawful. Allegations of “pressure” must show coercion that overrides voluntariness, not just candor about exposure if the deal collapses. A post-trial declaration alone, even if attached to the record, rarely moves the needle when the contemporaneous record—confession, consent, stipulation, apology letter, plea agreement—uniformly supports the plea.

Ineffective-assistance claims in the plea context turn on whether the accused would have rejected the deal and gone to trial. That is an objective inquiry, anchored to the actual evidence of guilt, not to the appellate brief’s hindsight. When the Government has a confession, consensual search results, and a stipulation, the Lee prejudice showing is steep.

Digital forensic experts can be powerful tools in CSAM and computer-evidence cases. See United States v. Douangdara and our prior post: How a guilty plea can go wrong. But timing matters. The right place to litigate digital forensics is before the guilty plea, not after. Once an accused confesses, consents to searches, signs a stipulation, and pleads guilty, the appellate burden to undo the plea on a forensics theory becomes very heavy.

The Strategic Lesson Before You Sign a Plea Agreement

If digital forensics could exonerate or mitigate—if there is a real argument about automatic syncing, cloud backups, malware downloads, shared devices, or unintended file transfers—those arguments belong in pretrial motions, suppression litigation, expert assistance requests under R.C.M. 703(d), and pretrial negotiations. They lose nearly all their power once the providence inquiry is over and the plea is accepted. Rentas is the latest reminder that the leverage in a CSAM case is built before arraignment, not after sentencing.

How Cave & Freeburg Can Help

At Cave & Freeburg, our military defense lawyers handle Article 134 child pornography cases, NCIS, OSI, CID, and CGIS investigations, and the full range of pretrial and appellate work in courts-martial across every service. We litigate motions to suppress under the Fourth and Fifth Amendments, secure expert assistance for digital forensics under R.C.M. 703(d), evaluate plea agreements with realistic exposure analysis, and—when the government’s case has real weaknesses—we contest at trial rather than settle. On appeal, we know how NMCCA, AFCCA, ACCA, the Coast Guard CCA, and CAAF handle providence challenges, Strickland claims under Suarez, Furth, and Lee, and post-trial declarations. If you face a child pornography investigation or charge under Article 134, UCMJ, or you have already been convicted and want a candid appellate assessment, contact Cave & Freeburg, LLP, today. Call (703) 298-9562 or (917) 701-8961 to speak confidentially with an experienced military defense counsel.

United States v. Hurley: What a One-Line CAAF Denial Actually Means

On 29 November 2012, the United States Court of Appeals for the Armed Forces (CAAF) denied the petition for grant of review in United States v. Hurley, 71 M.J. 468, 2012 CAAF LEXIS 1305. The entry is two words long: “Petition Denied.” That brevity hides a great deal of legal weight—and a great deal of professional opportunity for a service member who knows where the post-CAAF road actually leads. Any military defense lawyer who handles appeals will tell you a denied petition is rarely the end of the line. But it is a hinge moment, and what happens next determines everything.

The Procedural Posture

Godfrey J. Hurley was a soldier whose case originated at the Army Court of Criminal Appeals (ACCA) under docket 20080262. After ACCA’s decision, Hurley filed a petition for grant of review at CAAF. CAAF reconsidered an earlier order on 10 September 2012 (Hurley, 2012 CAAF LEXIS 1021), and on 29 November 2012 the court issued the final order denying review. The entry is reported under “Decision Without Published Opinion.” There is no merits opinion to dissect, no published reasoning, and no precedential value. That is itself the lesson.

What “Petition Denied” Does and Does Not Do

CAAF reviews Court of Criminal Appeals decisions discretionarily under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3). The court grants review in roughly seven to ten percent of petitions filed each term. Denial of a petition is not a decision on the merits. It is a decision not to decide. Several consequences follow.

The ACCA decision becomes final for purposes of further military appellate review. The conviction stands as affirmed by ACCA. Article 71(c) finality follows once the time for further action expires, with consequences for execution of any punitive discharge and confinement. The appellant retains the right to seek certiorari at the United States Supreme Court under 28 U.S.C. § 1259, though the odds there are even longer. Collateral remedies—coram nobis at the service Court of Criminal Appeals, federal habeas under 28 U.S.C. § 2241, and applications to the Army Board for Correction of Military Records—remain available depending on the facts.

Why a Denial Is Not a Verdict on the Issues

Reading any signal into “Petition Denied” beyond docket management is a mistake. CAAF denies petitions for many reasons that have nothing to do with the strength of the underlying issues: the issue lacks broad applicability across the services; another case already raises a cleaner version of the same question; the record is poor for the legal question; or the issue, while real, is fact-bound. None of that means the appellant did anything wrong, and none of that means the issues lack merit on a different procedural track.

Where Real Opportunity Often Lives

A coram nobis petition can revive certain claims after CAAF denies review—particularly where new evidence surfaces, where ineffective assistance of trial or appellate counsel is shown, or where a fundamental jurisdictional or constitutional defect went unaddressed. United States v. Denedo, 66 M.J. 114 (C.A.A.F. 2008); Chapman v. United States, 75 M.J. 598 (A.F. Ct. Crim. App. 2016). The standard is high, but the door is real. For the framework, see our recent piece on coram nobis denials: Military Coram Nobis.

Federal habeas under § 2241 may also be available once the conviction is final and confinement (or its collateral consequences) supports custody. The federal courts apply the Schlesinger v. Councilman, 420 U.S. 738 (1975), framework, intervening only where the court-martial judgment is void due to a fundamental defect. For the boundaries of habeas review after CAAF, see our post on Military Habeas Corpus.

A BCMR application can deliver discharge upgrades, sentence reductions as clemency, and record corrections that meaningfully change a former service member’s life even when the underlying conviction stays in place. As the AFCCA explained in In re White (Misc. Dkt. No. 2026-04, 27 Apr. 2026), BCMR clemency and appellate relief operate on different tracks and serve different purposes.

The Practical Lesson for Appellants

Three points stand out for any service member whose petition CAAF has denied. First, do not read the denial as a comment on your case. It is a docketing decision. Second, calendar every collateral and post-conviction option immediately—coram nobis, habeas, BCMR or BCNR, discharge review board. Each track has its own timing rules, evidentiary requirements, and standards of review, and missing one can foreclose another. Third, if appellate counsel handled the CAAF petition, get a fresh set of eyes on the record before assuming nothing more can be done. Different counsel often see different issues.

How Cave & Freeburg Can Help

At Cave & Freeburg, our military defense lawyers handle the entire post-trial and post-appellate landscape: ACCA, AFCCA, NMCCA, and Coast Guard CCA appeals; CAAF petitions; coram nobis petitions; federal habeas under § 2241; and BCMR, BCNR, and discharge review board applications across every branch. We understand that a CAAF denial is a transition point, not a conclusion. If your CAAF petition has been denied and you want a candid assessment of what comes next, contact Cave & Freeburg, LLP. Call (703) 298-9562 or (917) 701-8961 to speak with an experienced military defense counsel about your case.

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Coram Nobis After a Court-Martial: Lessons from In re White

On 27 April 2026, the Air Force Court of Criminal Appeals denied a pro se petition for a writ of error coram nobis in In re White, Misc. Dkt. No. 2026-04. Major Chantay P. White had served almost sixteen years before her 2008 general court-martial conviction for two specifications of false official statement under Article 107, UCMJ. The court-martial sentenced her to a dismissal. After more than a decade of effort with the Air Force Board for Correction of Military Records (BCMR), she finally won a clemency upgrade to an honorable discharge in 2020. She then asked the AFCCA to vacate the underlying findings. The court said no. The opinion is required reading for anyone considering a coram nobis petition—and a sharp reminder that you need an experienced military defense counsel to thread this needle.

The Path to the Petition

A panel of officer members convicted Major White, contrary to her pleas, of two false official statement specifications. AFCCA affirmed in 2009. CAAF granted review on an evidentiary issue, found no abuse of discretion, and affirmed in 2010. United States v. White, 69 M.J. 236 (C.A.A.F. 2010).

Beginning in 2012, Major White sought relief from the BCMR. A majority of the Board recommended changing the dismissal to an honorable discharge because the majority “did not believe [she] intended to deceive the Air Force” when she made the statements. The Department of the Air Force overturned that recommendation, holding the BCMR may correct a court-martial sentence only for clemency purposes and the Board had not articulated why clemency was warranted. After two more denials, in March 2020 the BCMR recommended an honorable-discharge correction expressly as clemency, citing her sixteen years of honorable service, character statements, and post-service accomplishments. The Director of the Air Force Review Boards Agency directed the correction, and a new DD Form 214 issued in April 2020.

In March 2026, Major White petitioned AFCCA pro se. Her core argument: the Air Force “has now formally determined that Petitioner’s statement was unintentional, eliminating the mens rea required for conviction.” She wanted the findings and sentence vacated.

The Coram Nobis Standard the Court Applied

AFCCA reaffirmed the familiar six-element test for coram nobis relief drawn from Chapman v. United States, 75 M.J. 598, 601 (A.F. Ct. Crim. App. 2016), and United States v. Denedo, 66 M.J. 114, 126 (C.A.A.F. 2008). A petitioner must demonstrate (1) the alleged error is of the most fundamental character; (2) no remedy other than coram nobis is available; (3) valid reasons exist for not seeking relief earlier; (4) the new information could not have been discovered through reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the conviction persist.

The court ruled Major White failed at least two of the elements—element (1) and element (5). Two failures are enough.

Why the BCMR Decision Did Not Help

The opinion explains what the 2020 BCMR decision actually did, and what it did not do. The BCMR did not find Major White innocent. The BCMR upgraded her discharge as a matter of clemency, expressly invoking 10 U.S.C. § 1552(f)’s limitation that the Board may correct a court-martial record only for clemency. The Board emphasized her sixteen years of honorable service, character references, and post-service success. The BCMR’s decision did not “purport to determine Petitioner was not guilty of the charged offenses.”

The 2012 BCMR majority recommendation that she lacked intent to deceive was, frankly, dead on arrival. The Air Force overturned that recommendation because the Board had applied the wrong standard. A vacated agency recommendation cannot anchor a coram nobis petition more than a decade later.

The court added a structural point that every military defense lawyer should drill into clients: the BCMR and a Court of Criminal Appeals do fundamentally different jobs. The BCMR can act on equitable, character-based, and post-service considerations. It is not bound by the rules of evidence. It can review materials the trial judge properly excluded. AFCCA, by contrast, is a court of law that reviews findings and sentences for legal error. United States v. Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010). A clemency-based factual observation in a BCMR addendum cannot substitute for an appellate finding of legal insufficiency.

Reevaluation Is Not Allowed

Coram nobis is not a second appeal. The court flagged that Major White’s argument—that her convictions were “legally and factually invalid”—was the same sufficiency claim the AFCCA already rejected in 2009. Element five of the Chapman/Denedo test bars relitigation of issues previously decided. Once the AFCCA found legal and factual sufficiency, that door closed for coram nobis purposes.

For a more general overview of the writ in military practice, see our prior post: Military Coram Nobis.

The Court’s Closing Caveat

AFCCA closed with an important note. Denial of coram nobis relief did not undo or impugn the BCMR’s clemency or any future favorable action Major White might receive. Clemency and exoneration are different things. A discharge upgrade, a sentence reduction, even a record correction can do enormous practical good for a former service member’s life, employment, and benefits—without ever touching the underlying findings.

Practical Takeaways for Service Members and Veterans

Several lessons jump out. First, coram nobis is an extraordinary remedy with a heavy burden. Service members who win it almost always have new evidence of a fundamental error—prosecutorial misconduct, ineffective assistance of counsel, Brady violations, immigration consequences not advised, jurisdictional defects. Equitable considerations, however compelling, will not carry the writ. Second, BCMR clemency and AFCCA review run on different tracks; pursuing one does not preserve the other, and confusing the standards sinks petitions. Third, timing and diligence matter: the writ may be filed at any time, but unexplained delay raises the bar. Fourth, pro se petitions in this area almost always lose. The Chapman/Denedo framework is technical and unforgiving.

How Cave & Freeburg Can Help

At Cave & Freeburg, our military defense lawyers handle coram nobis petitions, BCMR and BCNR applications, discharge upgrade requests, and federal habeas corpus actions under 28 U.S.C. § 2241. We know the difference between a clemency case and a fundamental-error case, and we know how to build each one from the record. If you have a court-martial conviction and believe new evidence, ineffective assistance, or a fundamental legal error infected the proceedings, do not file pro se. Talk to an experienced military defense counsel first. Contact Cave & Freeburg, LLP, at (703) 298-9562 or (917) 701-8961 for a confidential consultation.

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Delta-8 THC and Article 112a, UCMJ: Why the Government Lost in United States v. Byrd

On 29 April 2026, the Air Force Court of Criminal Appeals (AFCCA) handed down a clean win for the defense in United States v. Byrd, No. ACM S32814. The court reversed Airman Basic Chance J. Byrd’s conviction for wrongful use of delta-8 tetrahydrocannabinol (THC-8) under Article 112a, UCMJ, set aside his bad-conduct discharge, and dismissed the charge with prejudice. Even the Government conceded the conviction could not stand. For any service member charged with using delta-8 THC, hemp-derived CBD, or related cannabinoid products, this opinion matters. A military defense lawyer who understands the chemistry, the statutes, and the appellate standards can turn a “positive” urinalysis into a dismissed charge.

What Happened at Trial

A special court-martial at Minot Air Force Base convicted Byrd of one specification of wrongful use of a Schedule I controlled substance based on four urinalyses showing THC-8 (and not THC-9) in his system. The military judge sentenced him to a bad-conduct discharge and five months of confinement.

The Government’s expert, an Air Force Drug Testing Laboratory (AFDTL) forensic toxicologist, told members that THC-8 is a Schedule I controlled substance “depending on how it’s produced.” He explained the three production paths: isolation from marijuana (controlled), synthesis from small molecules (controlled), or isolation from hemp (not controlled). On cross, he conceded the urinalysis cannot identify the source. On redirect, he allowed that the THC-8 “could be” from a non-hemp source.

That “could be” was the entire case. And that is exactly why it failed.

The Statutory Problem the Government Could Not Solve

The 2018 Farm Bill amended the Controlled Substances Act to exempt tetrahydrocannabinols in hemp from Schedule I. Hemp means cannabis with a delta-9 THC concentration of 0.3% or less on a dry-weight basis. THC-8 derived from hemp—almost always made by chemically converting hemp-derived CBD—is therefore not a controlled substance under federal law. The AFDTL’s own forensic toxicologist testified outside the members’ presence that “almost all THC-8—99.99% of it” comes from hemp because isolating it from marijuana is economically pointless. The DEA itself has signaled that cannabinoids derived from hemp are not scheduled.

Because of that legal reality, every other military service charges THC-8 use under Article 92, UCMJ, as a violation of a punitive regulation or general order. The Army uses AR 600-85. The Navy and Marines use ALNAV 074/20. The Coast Guard uses COMDTINST 1000.10B. The Air Force’s own DAFMAN 44-197 paragraph 1.2.2.1 expressly prohibits hemp-derived products and warns that violations “may also” support Article 112a—but the AFDTL Legal Advisor specifically advised charging Article 92, not Article 112a, because the lab cannot prove the substance is scheduled.

The trial counsel ignored that advice. The court called it “the road less traveled by”—and reversed.

Legal and Factual Sufficiency: The Two Bites at the Apple

Judge Kubler’s opinion walks through the standards. For legal sufficiency under Robinson, the court asks whether any rational trier of fact could have found every element beyond a reasonable doubt. The Government produced no evidence the THC-8 came from a non-hemp source. “Could be” does not clear the reasonable-doubt bar. No rational fact-finder could find the element of “controlled substance” satisfied.

For factual sufficiency under the post-2021 Article 66(d)(1)(B), UCMJ, the appellant must make a specific showing of a deficiency of proof to trigger review. Once triggered, the court weighs the evidence, gives appropriate deference to the trial court’s witness assessments, and may set aside the finding if it is clearly convinced the verdict was against the weight of the evidence. The AFCCA was clearly convinced. The defense team made the right showing, and the appellate panel did the rest.

For background on how Congress narrowed factual sufficiency review for offenses on or after 1 January 2021, see our prior post: Congress Changed Factual Sufficiency Review — What That Means for Your Military Appeal.

The 12 November 2026 Change — Why This Window Matters Now

The court flagged something every service member and every military defense counsel needs to track. Effective 12 November 2026, the new statutory definition of “hemp” eliminates the carve-out for hemp-derived THC-8. The amended Section 297A of the Agricultural Marketing Act will measure total THC—not just delta-9 THC—at 0.3% on a dry-weight basis. After that date, the Byrd defense disappears for offenses committed under the new law. Until then, every Article 112a charge for THC-8 in the Air Force—and frankly across the services where commands try to push beyond their own punitive regulations—deserves close scrutiny.

What This Means If You Tested Positive for THC-8

Several practical takeaways stand out. First, a positive urinalysis for THC-8 with a negative THC-9 result is not a confession to using a Schedule I controlled substance. Second, the Government must affirmatively prove the source of the THC-8 was something other than hemp, and the laboratory testimony in Byrd shows how hard that is. Third, charging decisions matter: if your command charged Article 112a instead of Article 92, the charging document itself may be defective on these facts. Fourth, if you have already been convicted under Article 112a for THC-8 based on conduct before the November 2026 statutory change, an appeal raising legal and factual sufficiency under Byrd, Robinson, and Harvey should be on the table immediately.

How Cave & Freeburg Can Help

At Cave & Freeburg, our military defense lawyers handle Article 112a cases at every stage—command investigations, Article 32 preliminary hearings, special and general courts-martial, and appeals to the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces. We have litigated drug urinalysis cases involving cannabinoid chemistry, AFDTL and Navy Drug Screening Laboratory protocols, and the legal-and-factual-sufficiency standards that decided Byrd. We know the AFDTL Legal Advisor’s guidance, the sister-service regulations, and the exact appellate playbook used to win Byrd-type challenges. If your case involves delta-8 THC, hemp-derived CBD, or any cannabinoid charged under Article 112a, contact Cave & Freeburg, LLP today. Call (703) 298-9562 or (917) 701-8961 for a confidential consultation with an experienced military defense counsel.

United States v. Marschalek, No. ACM S32776 (A.F. Ct. Crim. App. Apr. 17, 2026) (unpublished), offers a useful reminder that charging decisions matter as much on appeal as they do at trial. The Air Force Court of Criminal Appeals held that the Government could not use Article 134 to plead around Article 120c when the conduct at issue was, in substance, indecent exposure. The court set aside the finding and sentence because Article 120c covered the field and Article 134 could not serve as a watered-down substitute.

For trial counsel, defense counsel, and appellate counsel alike, Marschalek matters because it ties preemption to the Government’s burden of proof. The decision warns that once Congress creates a specific punitive article for a defined kind of sexual misconduct, the Government cannot simply relabel the same conduct under Article 134 and delete a vital element. That point becomes especially important in cases involving guilty pleas, plea negotiations, and exceptions and substitutions to specifications.

The preemption doctrine

Preemption limits Article 134. In military practice, Article 134 fills gaps. It does not give the Government a free hand to recreate offenses that Congress has already addressed in Articles 80 through 132. Marschalek restated the familiar two-part test: preemption applies when Congress intended a specific punitive article to cover a class of misconduct in a complete way, and the Article 134 offense is made up of a residuum of the elements of that specific offense.

That doctrine exists for a practical reason. It prevents the Government from taking an enumerated offense, stripping out a difficult element, and charging the remaining conduct as a simpler Article 134 offense. In Marschalek, that concern drove the analysis. Article 120c required proof that the exposure was intentional. The Article 134 indecent-conduct theory to which the accused pleaded guilty did not.

Why Article 120c mattered

The court treated the statutory history as highly significant. Before 2007, indecent exposure appeared in the Manual as an Article 134 offense. Then the offense moved into the sexual-offense framework under Article 120. Later, Congress placed it in Article 120c, a narrower article that specifically addressed indecent exposure. The majority read that progression to mean Congress had moved indecent exposure out of the general article and into a specific punitive article designed to govern that misconduct directly.

That history mattered because the specification the accused ultimately admitted did not describe some broader or different form of indecent conduct. It described standing at or near the door of his residence naked in view of the public. In the majority’s view, that was indecent exposure “no more or no less.” Once the conduct fit Article 120c, the Government could not shift to Article 134 merely because Article 134 offered an easier route to conviction.

Article 120c versus the older Article 134 charging approach

Marschalek is especially useful because it contrasts the current structure with the older practice. Under the earlier regime, indecent exposure could be charged under Article 134. After Congress and the President moved that offense into the more specific sexual-misconduct articles, however, the charging landscape changed. The court read that change as substantive, not cosmetic. In other words, Article 120c did not merely coexist with Article 134 as one more option. It displaced Article 134 when the conduct charged was actually indecent exposure.

The mens rea issue sharpened the point. Article 120c required the Government to prove intentional exposure. The modified Article 134 specification required proof that the conduct was indecent and service discrediting, but not that the exposure was intentional. The court viewed that omission as exactly the kind of dilution the preemption doctrine forbids. The terminal element of Article 134 did not save the charge, because courts do not count that terminal element when deciding whether an Article 134 offense is merely a residuum of a more specific offense.

Why the guilty plea did not cure the problem

The accused entered into a plea agreement under which he pleaded guilty to an amended Article 134 specification, while the Government dismissed the Article 120c specifications with prejudice. The Government argued that he had waived preemption by making that bargain. The majority rejected that argument. Relying on existing military precedent, the court treated preemption as a jurisdictional problem that a guilty plea does not waive.

That part of the decision carries real trial-level consequences. Counsel cannot assume that a negotiated plea will insulate a legally defective charge from review. If the Government accepts a plea to an Article 134 offense that Article 120c preempts, the case still carries appellate risk. Marschalek therefore serves as a warning to litigators on both sides: the parties may bargain over facts and forum, but they cannot bargain around a charging theory that the law does not allow.

What practitioners should take from the case

Marschalek teaches three practical lessons. First, counsel should test the charging theory early. If Congress has enacted a specific punitive article for the conduct, Article 134 may not remain available. Second, counsel should compare elements closely and pay particular attention to mens rea. A missing intent requirement may look like a simple pleading choice, but it can become the decisive sign that the Government has created a diluted Article 134 version of a specific offense. Third, counsel should revisit preemption during plea negotiations. A plea agreement that appears to narrow exposure may instead create a reversible defect.

The decision also shows why appellate counsel must read beyond the label attached to the specification. A charge called “indecent conduct” may still amount to indecent exposure if the facts and elements line up that way. In Marschalek, the court looked past the title of the offense and focused on substance. That is often where the strongest appellate issue lives.

Conclusion

Marschalek gives practitioners a clean statement of a simple rule: when Congress has specifically addressed indecent exposure in Article 120c, the Government cannot revive the old Article 134 route by charging the same conduct without the intent element. For lawyers trying cases and handling appeals, that rule affects charging strategy, motion practice, plea advice, and post-trial review.

At Cave & Freeburg, LLP, we pay close attention to issues like this because they often hide in plain sight. A case may look resolved at trial, especially after a plea agreement, yet still contain a serious defect in the charge itself. Careful counsel must spot those issues before findings are entered, preserve them when necessary, and know how to litigate them on appeal when the Government pushes Article 134 beyond its proper limits.

Doolin involved a guilty plea to attempted sexual abuse of a minor by indecent language. The accused communicated online with someone he believed was a 14-year-old girl, who was in fact an undercover law enforcement agent. Pursuant to a plea agreement, he pleaded guilty before a military judge alone, elected trial by judge alone, and entered into a detailed stipulation of fact. The stipulation was substantial: eighty-eight pages, a disc, and multiple attachments that memorialized the communications.

What a Care inquiry is

A Care inquiry is the military guilty-plea colloquy. Its purpose is not ceremonial. It protects the accused, the integrity of the record, and the finality of the conviction. The military judge cannot simply accept counsel’s assurance that the plea is proper. The accused must personally describe what he did and why those facts satisfy the charged offense. That matters because appellate courts review the entire plea record, not just the word “guilty.”

In Doolin, the military judge walked through the elements of the offense and defined the charged “lewd act” as intentionally communicating indecent language the intent to arouse or gratify sexual desire. The appellate issue arose because the judge used a broad definition of “indecent language” drawn from Article 134 jurisprudence. On appeal, the defense argued that the definition was too broad and that the accused’s answers did not establish that his statements were indecent in the way Article 120b required.

Why the plea survived in Doolin

The court held that the plea remained provident. It reasoned that even if the trial judge used a definition that was broader than necessary, the correct concept still appeared within that definition. More important, the stipulation of fact and the accused’s own answers showed that he understood the criminal nature of the charged communications. He admitted the specific charged statement, admitted several additional sexually driven statements, and acknowledged that the statements were sexual by nature and intended to arouse his sexual desire.

The opinion is especially useful because it confirms that a military judge may rely on both the stipulation of fact and the accused’s answers during the Care inquiry when deciding whether a plea is provident. That point matters in practice. A well-drafted stipulation can reinforce a plea by tying the accused’s conduct directly to each element. But the reverse is also true: a poorly drafted stipulation, an overbroad stipulation, or a stipulation that contains ambiguity can create the very inconsistency that later undermines the plea.

How a plea becomes improvident

Doolin also illustrates the broader rule that guilty pleas can fail for reasons that surface in different parts of the record. A plea may become improvident when the accused says something to the judge that negates an element, raises a defense, or shows he does not actually understand why his conduct was criminal. The same problem can arise in a stipulation of fact. If the stipulation contradicts the plea, waters down the mens rea, suggests a defense, or describes conduct that does not match the offense as charged, the judge must stop and resolve the issue.

The danger does not disappear once the formal plea colloquy ends. Statements made later in the trial can also cast doubt on the plea. That can happen during motions, sentencing, an unsworn statement, or other parts of the proceeding if the accused or the evidence introduces a matter inconsistent with guilt. When that occurs, the military judge must reopen the inquiry and address the inconsistency. If the inconsistency remains unresolved, the plea may not stand on appeal.

That is why experienced counsel watch the entire record, not just the plea itself. The issue is rarely whether the accused uttered the right conclusion. The real issue is whether the record, taken as a whole, shows a knowing plea supported by facts that actually establish the offense. A conviction that looks secure at trial can unravel on appeal if counsel, the stipulation, or the judge leaves a substantial inconsistency unresolved.

Why the case matters

For lawyers and clients alike, Doolin is a practical case. It shows that plea litigation turns on precision: the words used in the colloquy, the wording of the stipulation, and anything later said on the record. Those details can preserve the plea, or they can destroy it. That is exactly why trial and appellate experience matters. Counsel must know how to build a record that supports a provident plea, and just as importantly, how to identify the moments when the record has gone off course.

Cave & Freeburg, LLP handles these issues with that full-record perspective. The firm understands that the decisive issue may arise in the judge’s questions, the accused’s answers, the stipulation of fact, or a later statement that appears minor at the time but proves critical on appeal. Cases like Doolin underscore the value of counsel who can spot those problems early, address them at trial, and litigate them effectively on review.

Depending on the nature of the lost or destroyed evidence, you can ask for a mistrial or dismissal. This is especially important if you can prove the evidence would be substantially helpful in presenting your case or contradicting the prosecution’s case. However, before that, the military judge must use less severe remedies if possible. One remedy is to exclude testimony related to that evidence or, more likely, instruct the members (jury) that they may draw an adverse inference that the lost or destroyed evidence would have information favorable to the defense. Let’s look at that more closely. The military defense lawyers at Cave & Freeburg write from experience in these situations at trial and on appeal.

The military judge may draw, or permit the members to draw, an adverse inference when the government loses, destroys, or suppresses evidence that should have been available to the defense. The Court of Appeals for the Armed Forces has recognized that an adverse inference instruction is an appropriate curative measure for improper destruction of evidence. United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002). The remedy fits especially well where the missing evidence would have helped the defense test the government’s proof or present an alternative explanation for the charged conduct.

Courts-martial already treat discovery broadly and require disclosure of exculpatory and impeachment material. R.C.M. 701; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999). When the government’s failure deprives the defense of materially helpful evidence, the military judge may tailor relief to cure the prejudice rather than automatically dismiss the case. United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999). An adverse inference instruction serves that function by allowing the factfinder to infer that the missing evidence would have been unfavorable to the party responsible for its absence.

The remedy also accords with the military justice system’s truth-seeking function. The Military Rules of Evidence direct courts-martial to administer proceedings fairly and to ascertain the truth. Mil. R. Evid. 102 When the government’s conduct prevents full adversarial testing of the evidence, an adverse inference instruction helps restore the balance. It does not shift the burden of proof; it simply allows the factfinder to account for the government’s evidentiary failure.

At the same time, the military judge should tailor the instruction to the circumstances. The judge should consider the degree of prejudice, the culpability of the party responsible for the loss, and whether a less severe remedy will suffice. Where the lost evidence goes to a central issue and no adequate substitute exists, the judge may grant stronger relief, including abatement. R.C.M. 703; United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. 2015). But where the prejudice is narrower, an adverse inference instruction often provides a proportionate and effective remedy.

In short, courts-martial may use an adverse inference instruction to address evidentiary loss or destruction, preserve fairness, and protect the accused’s ability to present a complete defense. United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002).

Give us a call at 703-298-9562 or 202.931.8509 to discuss.