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.

The U.S. Air Force Court of Criminal Appeals (AFCCA) decided this case on March 17, 2026. Airman First Class Noah Bogert pleaded guilty to involuntary manslaughter (Article 119, UCMJ) after negligently shooting and killing his fellow airman, BA, during a self-initiated “house clearing” exercise at his off-base residence. The military judge sentenced Bogert to:

• Dishonorable discharge
• 42 months confinement (within a plea-agreement range of 30–48 months)
• Reduction to E-1

The AFCCA affirmed all findings and the sentence.

The Core Legal Question: How Does Article 66 Now Govern Sentence Review?

This case arrives under the post-FY2017 NDAA framework for appellate sentence review, which significantly narrowed AFCCA’s authority compared to the prior “sentence appropriateness” standard. The court’s treatment of Issue 4 directly illustrates this shift.

The Old Standard

Before the 2017 reforms, Article 66 granted Courts of Criminal Appeals broad plenary authority to affirm only sentences they found correct in law and fact and appropriate — essentially de novo sentence review. Courts could reduce sentences based on their own judgment of what was fitting.

The Current Standard: Article 66(e)(1), UCMJ

The reformed statute now limits sentence review to two narrow tracks:

The AFCCA explicitly applied both tracks to Bogert’s sentence — but only after finding no prejudicial error on Issues 1–3. The court cited United States v. Guinn, 81 M.J. 195, 204 (C.A.A.F. 2021), for the proposition that Issue 4 required no separate discussion once Issues 1–3 failed.

What “Plainly Unreasonable” Actually Means

Guinn and its progeny establish that “plainly unreasonable” sets a high bar for relief — the sentence must be so disproportionate that no reasonable sentencing authority could have imposed it. A sentence within a negotiated plea agreement range, as here (42 months within 30–48), will almost never clear this bar. The AFCCA correctly identified that Bogert’s sentence fell squarely within his own agreed parameters, making a “plainly unreasonable” finding functionally unavailable.

Issue-by-Issue Analysis

Issue 1: Admission of 24 Life Photographs (PE 3)

Standard applied: Abuse of discretion (United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018))

Key legal framework:

• R.C.M. 1001(b)(4) authorizes aggravation evidence “directly relating to or resulting from the offense,” including social and psychological victim impact
• Mil. R. Evid. 403 requires exclusion only when probative value is substantially outweighed by danger of unfair prejudice

Court’s reasoning: The military judge conducted a thorough on-the-record Mil. R. Evid. 403 balancing analysis — noting the photos’ probative value in contextualizing the victim’s life and each family member’s loss, while acknowledging but rejecting the concern about cumulativeness. The AFCCA correctly deferred to that analysis under United States v. Carter, 74 M.J. 204 (C.A.A.F. 2015), which specifically protects on-record balancing decisions from casual appellate second-guessing.

Assessment: The ruling is well-grounded. Bogert’s argument that Taylor (admitting one photo) implicitly capped the number of admissible photos reads Taylor far too narrowly. Neither Taylor nor Curtis imposed numerical limits, and R.C.M. 1001(b)(4) contains no such restriction. The court’s conclusion that each photograph served a distinct purpose — capturing different life stages and evoking distinct family memories — is persuasive and legally sound.

Issue 2: Family Testimony About the Photographs (“Family Lore”)

Standard applied: Abuse of discretion (court treated the photo objection as sufficiently preserving this issue)

Key issue: Bogert characterized the testimony as inadmissible “family lore” exceeding R.C.M. 1001(b)(4) and violating United States v. Edwards, 82 M.J. 239 (C.A.A.F. 2022).

Court’s reasoning: The AFCCA distinguished Edwards on two critical grounds:

1. The testimony here was sworn, not unsworn as in Edwards
2. The family — not trial counsel — prepared and selected the photographs, avoiding the Edwards concern about prosecution-shaped victim impact

Assessment: The distinction holds. Edwards targeted prosecutorial manipulation of victim impact evidence and unsworn statements that circumvent cross-examination. Here, the family’s sworn testimony about their own memories and grief falls squarely within the “social and psychological impact” language of R.C.M. 1001(b)(4). Labeling authentic family testimony “lore” without evidentiary support — as the court pointedly noted in footnote 4 — does not transform admissible victim impact into inadmissible character evidence.

Issue 3: Family Requests for “Strong” or “Severe” Punishment

Standard applied: Plain error (no defense objection at trial)

Plain error test: (1) error, (2) clear or obvious, (3) material prejudice to substantial rights (United States v. Lopez, 76 M.J. 151 (C.A.A.F. 2017))

The testimony at issue: BA’s eldest sister stated that Bogert’s “actions were deliberate” and “should carry a severe consequence.” BA’s father called for “fair but just” punishment.

Court’s reasoning: The AFCCA took the notable step of affirmatively praising the family’s decorum — characterizing the testimony as “a model of propriety and grace” — before finding that requests for fairness and justice do not constitute requests for legally impermissible punishment. Even assuming error existed, Bogert failed the prejudice prong: he offered no explanation of how the outcome would have differed, particularly given that (a) a military judge — not a panel — sentenced him, and (b) he operated under a plea agreement that already constrained the sentencing range.

Assessment: The court correctly identifies the high bar for plain error in judge-alone trials. Military judges carry a presumption of legal knowledge and the ability to filter inadmissible evidence (United States v. Robbins, 52 M.J. 455 (C.A.A.F. 2000)). The sister’s “deliberate choices” language came closest to legal risk — since Bogert was convicted of involuntary manslaughter — but the court’s implicit conclusion that this did not actually infect the judge’s sentencing calculus is defensible on this record.

The Sentence Appropriateness Question: Deeper Considerations

Was 42 Months + Dishonorable Discharge Appropriate?

While the AFCCA declined to conduct a full sentence appropriateness review under the reformed Article 66, several factors bear on this question analytically:

Factors supporting the sentence:

• Bogert was a trained security forces airman who negligently failed to clear a weapon he knew might be loaded — the standard of care was higher than for an ordinary civilian
• He initiated the “house clearing” exercise of his own volition while holding a loaded handgun simultaneously
• BA was 21 years old with no opportunity to protect himself
• The dishonorable discharge reflects the gravity of an offense that ended a fellow service member’s life through culpable negligence

Factors a reviewing court might weigh in mitigation:

• Bogert pleaded guilty and accepted responsibility
• The offense was involuntary — no intent to kill
• The plea agreement itself (30–48 months) represents a negotiated recognition of the appropriate range
• 42 months sits toward the upper middle of that range, not at the ceiling

Under the “plainly unreasonable” standard, none of the mitigation factors come close to rendering 42 months and a dishonorable discharge unreasonable, let alone plainly so. This sentence aligns with comparable military involuntary manslaughter cases and reflects the aggravated nature of the negligence.

Broader Doctrinal Significance

Though unpublished and non-precedential under AFCCA Rule 30.4, this case illustrates three important trends in post-reform military appellate practice:

1. Article 66 sentence review is now largely deferential. Appellants who negotiate plea agreements with sentencing ranges face a near-insurmountable burden on sentence challenges. The “plainly unreasonable” standard provides minimal appellate traction when the sentence falls within agreed parameters.
2. Victim impact evidence continues to expand. The AFCCA’s approval of 24 photographs accompanied by multi-family-member sworn testimony signals that military courts read R.C.M. 1001(b)(4) broadly. Practitioners should expect robust victim impact presentations in homicide and manslaughter cases.
3. Plain error doctrine protects judge-alone sentences. The military judge’s presumed ability to filter inadmissible evidence provides a powerful shield against unpreserved sentencing challenges — reinforcing the critical importance of timely, specific defense objections at trial.

Bottom Line

The AFCCA reached the correct result on all four issues. The military judge conducted careful, on-record analysis at every contested evidentiary decision, which is precisely the kind of record that survives appellate review. Under the current Article 66 framework, Bogert’s sentence — legally imposed, within negotiated parameters, and supported by substantial evidence of aggravation — was never a viable appellate target.

The case arose from the court-martial of Technical Sergeant Irvin Bryant, Jr., who faced charges under the Uniform Code of Military Justice (UCMJ), including offenses under Articles 120 and 128b. The petitioner, identified as LB, was the named victim in each specification. LB asked the Air Force appellate court to block the military judge’s order before the case moved further toward trial.

The central issue involved what the defense could learn about LB’s mental health history. Earlier in the case, the defense sought access to certain mental health records. The military judge refused to order production of privileged communications between LB and mental health providers. Later, however, the judge ruled that the defense could seek limited non-privileged information, often called Mellette material. Under United States v. Mellette, diagnoses, treatments, and similar information in medical records do not automatically receive the same privilege protection as confidential communications with a psychotherapist. That distinction can matter a great deal to a military defense lawyer preparing to challenge credibility, evaluate prior statements, or build a theory of defense.

To protect privileged material, the military judge did not order the medical facilities to produce LB’s actual records. Instead, she directed two Air Force medical groups and two military treatment facilities to answer narrow written questions, known as interrogatories. The questions asked whether certain records existed and, if so, requested limited information about diagnoses, medications, treatment, and providers. The judge specifically barred the facilities from sending copies of the actual medical or mental health records. In other words, she tried to give the defense relevant non-privileged information without exposing confidential communications. Military defense counsel often face exactly this kind of problem: how to seek relevant evidence without crossing into privileged territory.

LB argued that the military judge clearly erred in three ways.

First, LB argued that the requested information was not relevant. The appellate court rejected that argument. The court explained that the question at the discovery stage is not whether the information will definitely be admitted at trial. The question is whether the information could help the defense prepare its case. Here, the military judge relied on evidence suggesting LB may have received mental health services on base, which appeared inconsistent with earlier testimony. Because that information could matter to witness credibility and case preparation, the appellate court held that LB failed to show a clear and indisputable error. That point is significant for any military defense counsel litigating discovery in a contested court-martial.

Second, LB argued that even non-privileged mental health information could not be disclosed unless one of the formal exceptions in Military Rule of Evidence 513 applied. Rule 513 protects confidential communications between a patient and a psychotherapist. LB argued for a broad reading that would require an exception to the privilege even for non-privileged material. The appellate court did not accept that position. The judges acknowledged tension in recent case law, but they concluded that the military judge had not clearly and indisputably violated Rule 513 by allowing discovery of non-privileged information. For a military defense lawyer, that part of the opinion matters because it confirms that courts may still treat diagnoses, treatment, and similar information differently from protected communications.

Third, LB argued that the judge’s interrogatories were really an improper written deposition. The appellate court disagreed. It explained that military judges have broad authority to control the time, place, and manner of discovery under the Rules for Courts-Martial. In this case, the judge used targeted questions to gather limited relevant information while reducing the risk of improper disclosure. The court also noted that a concurring opinion from a higher military court had suggested that interrogatories could be used in this way. Although that concurrence did not bind the court, it supported the conclusion that the judge’s approach was not clearly unlawful. This part of the opinion will interest military defense counsel because it recognizes practical ways to obtain relevant non-privileged information in difficult privilege disputes.

In the end, the Air Force court denied LB’s petition for a writ of mandamus. That result is important because mandamus is an extraordinary remedy. A petitioner must show not just possible error, but a clear and indisputable right to relief. The court found that LB did not meet that demanding standard.

This decision does not give the defense unlimited access to a victim’s mental health history. It does show that, in the right case, a military judge may allow narrow discovery of non-privileged information when that information is relevant to defense preparation. For a military defense lawyer, the opinion highlights the continuing tension between protecting victim privacy and protecting the accused’s right to present a defense.

The military defense lawyers of Cave & Freeburg have substantial experience litigating these issues. That experience includes challenges involving Military Rule of Evidence 513, access to potentially relevant mental health information, witness credibility issues, and the limits of lawful discovery in serious courts-martial. When a case turns on privileged versus non-privileged material, a skilled military defense counsel must know how to preserve the record, frame the discovery request, and challenge unlawful restrictions while respecting legitimate privacy protections. Those are issues the military defense lawyers at Cave & Freeburg understand well from practice.

What Happened

An Army Specialist pleaded guilty to possessing child pornography under Article 134 of the UCMJ. His defense lawyer negotiated a plea deal that kept him out of prison entirely. The only punishment: a bad-conduct discharge. No confinement. No additional penalties. For this type of charge, that outcome stands out as remarkably favorable.

After the conviction, the Specialist appealed. He didn’t raise formal legal errors through his attorneys. Instead, he personally filed fourteen separate complaints with the Army Court of Criminal Appeals. His biggest claim: his lawyer gave him bad advice and pushed him into a deal he didn’t fully understand.

The appeals court reviewed everything. Then it reviewed everything again after the Specialist submitted a late statement. Both times, the court reached the same answer: the lawyer did a competent job, and the conviction stands.

The Soldier’s Complaints

The Specialist raised several specific complaints about his defense counsel. He claimed his lawyer pushed him toward the plea agreement instead of helping him pursue an administrative discharge — what the Army calls a “Chapter 10.” He said his lawyer discouraged him from exploring other options. He believed his lawyer never watched the video of his interrogation. He also said his lawyer talked him out of submitting paperwork after sentencing that might have helped him down the road.

In short, his position boiled down to this: “If my lawyer had communicated better, I would have made different choices.”

Why the Court Said No

The appeals court applied a well-known two-part test. To win on an ineffective assistance claim, a service member must show two things: first, that the lawyer’s performance fell below an acceptable standard; and second, that the bad performance actually changed the outcome. In a guilty plea situation, that second part means proving you would have rejected the deal and gone to trial if your lawyer had done a better job.

The court found neither element here. And the reason comes down to the paper trail — and the record of communication. The text messages told a different story. The defense lawyer submitted a screenshot of a text exchange with his client. In those messages, the lawyer explained the difference between a Chapter 10 administrative discharge and a criminal conviction. He also explained why the Chapter 10 route was unlikely to succeed. The Specialist’s own reply acknowledged the plea deal was probably the best option available.

The lawyer also showed the court that he negotiated the deal aggressively. Email evidence suggested the prosecutor may not have even had full authority to offer the terms — but the command agreed to honor them as long as the case moved quickly. The lawyer pushed to lock in that deal before it disappeared, and the court found that decision completely reasonable.

On the interrogation video, the lawyer explained he reviewed the evidence and the documents supporting the search of the Specialist’s phone. He determined the phone search didn’t flow from the interrogation, so a motion to throw out the evidence had no legal basis. The court agreed.

On the post-sentencing paperwork, the Specialist himself admitted the lawyer discussed it with him — but the lawyer said he saw no strong issues to raise. The court looked at the record and agreed that assessment was sound. And critically, the Specialist never told the court what he would have submitted if he’d had the chance. You can’t prove you were harmed by missing an opportunity if you can’t say what the opportunity would have produced.

What the Specialist Said Under Oath Matters Most

Here’s the part that sealed it.

During the guilty plea hearing, the military judge asked the Specialist — under oath and on the record — a series of pointed questions. Did he understand his rights? Yes. Was he satisfied with his lawyer’s advice? Yes. Did he know he could plead not guilty and force the government to prove its case? Yes. Did he still want to plead guilty? Yes.

The judge then did something important. He paused the hearing. He told the Specialist to step aside, talk to his lawyer one more time, and come back with a final answer. The Specialist came back and confirmed: he still wanted to plead guilty. What you say under oath doesn’t disappear when you change your mind later. The court-martial record is built to capture your choices at every step — and those choices follow you on appeal. The court pointed out something that every service member should understand. Those routine questions the judge asks during a plea hearing are not just formalities. They exist to protect the record. They create a permanent, sworn account of what you knew, what you understood, and what you chose. When you later tell an appeals court the opposite story, the court looks at both versions — and almost always credits the one you gave under oath.

The court called the Specialist’s later claims “inherently incredible” because they directly contradicted everything he said to the judge on the day of his plea.

The Sex Offender Registration Issue

The Specialist also claimed he didn’t fully understand the consequences of sex offender registration. The court rejected this claim too. The record showed that his lawyer explained the registration requirement. The judge confirmed that explanation on the record. The Specialist signed a form stating that because registration laws differ by state and local jurisdiction, he bore responsibility for finding out the rules wherever he lived, worked, or attended school. He also circled and initialed a separate statement on his post-trial rights form confirming he knew about the registration requirement when he decided to plead guilty.

All of that documentation existed because someone communicated the information clearly and made sure the Specialist acknowledged it in writing. That paper trail protected the conviction.

Why Communication Is Everything

This case drives home a single truth that we see play out over and over again in military justice: communication between a defense lawyer and a client isn’t just good customer service — it’s the foundation of a defensible outcome.

When a lawyer communicates clearly and documents that communication, two things happen. First, the client actually understands their options and makes informed decisions. Second, the record reflects that understanding — which protects both the client and the lawyer if questions come up later.

The defense counsel in Navarro kept text messages. He sent emails. He explained the difference between a criminal conviction and an administrative discharge. He walked his client through the plea deal and why it was the best available path. And when the court needed to evaluate whether his work measured up, all of that communication spoke for itself.

Now look at the flip side. The Specialist’s appeal failed in large part because his own words contradicted his complaints. Every time the judge asked him a question, he confirmed he understood. Every form he signed told the same story. He couldn’t unring that bell on appeal. The lesson for anyone facing a court-martial: If something about your case confuses you, say so — before you sign anything, before you stand in front of a judge, and before you plead guilty. Ask your lawyer questions. Push back. Demand explanations in plain English. A good defense attorney welcomes that conversation. A great one insists on it.

What This Means for Service Members

If you face charges under the UCMJ, this case carries a few hard lessons.

Your guilty plea hearing creates a permanent record. Every answer you give under oath becomes evidence that you understood your rights and made a voluntary choice. If you didn’t actually understand something, the time to speak up is right there in that courtroom — not months later in an appeal.

Administrative discharge options like a Chapter 10 exist, but they aren’t always available and they aren’t always the best move. Your lawyer should explain every option to you clearly and tell you why they recommend one path over another. If they don’t, ask.

Ineffective assistance of counsel claims are hard to win — especially after a guilty plea. Courts look at what you said under oath, what you signed, and what the record shows. If the record shows your lawyer communicated clearly and you agreed at every step, an appeals court will almost certainly trust that record over a different story you tell later.

And finally, documentation matters on both sides. Your lawyer should keep records of the advice they give you. And you should keep track of what you’re told, what you understand, and what still confuses you. That two-way communication protects everyone.

Facing a Court-Martial? Talk to Us First.

At Cave & Freeburg, LLP, we believe the best defense starts with a conversation — one where we explain every option in plain language and make sure you understand your choices before you make them. We handle military defense cases across all branches and at every stage, from investigation through appeal.

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

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

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

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

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

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

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

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

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

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

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

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

Which System Applies to You?

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

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

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

The Cases That Prove This Matters

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

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

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

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

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

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

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

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

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

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

Why This Matters for Your Appeal

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

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

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

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

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

Air Force Court of Criminal Appeals — Decided 19 March 2026

OVERVIEW

The AFCCA denied all three prongs of victim LB’s petition for a writ of mandamus, filed under Article 6b(a)(9), UCMJ, arising from the ongoing general court-martial of TSgt Irvin Bryant Jr. at Joint Base Anacostia-Bolling. Bryant faces two Article 120 sexual assault specifications, three Article 128b domestic violence specifications, and one additional Article 120 specification — all involving LB, his spouse during the charged period (June 2020 – October 2023).

ISSUE ONE: Mil. R. Evid. 412 Admissibility Rulings

What the Military Judge Did

The military judge conducted a proper closed Article 39(a) hearing, compelled LB’s sworn testimony over objection, and then issued rulings admitting eight categories of evidence (labeled (a)–(h) by Petitioner) under Mil. R. Evid. 412(b)(2) (consent — prior sexual behavior with the accused) and/or 412(b)(3) (constitutionally required evidence). The admitted categories included:

• Consensual sexual history of the same acts charged in Specification 1 of Charge I, both before and after the charged period
• Similar consensual acts related to the Additional Charge
• Frequency of LB’s requests for sex and Bryant’s denials
• Specific sexual conversations
• Sexual photographs exchanged between LB and Bryant

The military judge denied portions of the defense request where the factual predicate was unsupported.

The AFCCA’s Analysis

The court applied the demanding mandamus standard: the petitioner must show the right to relief is clear and indisputable, and issuance is appropriate under the circumstances. H.V.Z. v. United States, 85 M.J. 8, 12 (C.A.A.F. 2024). Reversal via mandamus further requires error amounting to judicial usurpation of power or an erroneous practice likely to recur. In re KK, 84 M.J. 664, 667 (A.F. Ct. Crim. App. 2023).

The court found:

1. LB received her right to be reasonably heard — the military judge considered her position before ruling
2. The military judge’s relevance and materiality findings were supported by the evidence and within her range of discretion
3. The military judge ruled more narrowly than the defense requested
4. The Mil. R. Evid. 403 balancing, though not highly specific, was conducted for each category
5. When evidence is constitutionally required under 412(b)(3), the military judge correctly excluded LB’s privacy interests from the balancing analysis — only the 403 test applies

Critical Doctrinal Point — 412 and Other Rules

The court seized on an important issue the parties had not fully litigated at trial: LB argued the military judge erroneously found evidence “otherwise admissible” without analyzing hearsay or character evidence rules. The AFCCA declined to rule on those potential objections, noting they were not ripe, but used the occasion to clarify the proper analytical sequence:

Mil. R. Evid. 412 works with, not instead of, other rules of evidence.

The sequence is: (1) determine whether evidence overcomes 412’s presumptive exclusion; (2) then determine whether it is otherwise admissible under all other applicable rules. The 412 ruling does not preemptively resolve hearsay, character evidence, or foundation issues. The court also noted — consistent with Schelmetty and Rosales — that military judges retain wide latitude to shape how 412-admissible evidence comes in at trial.

Strategic Significance

This is important going forward at trial. The AFCCA explicitly preserved LB’s — and the Government’s — ability to raise additional evidentiary objections (hearsay, Mil. R. Evid. 404, foundation) when the defense attempts to introduce this evidence at trial. The 412 ruling is a gate, not a guarantee. The Government should anticipate and prepare specific objections to the form and manner of introduction of each category, particularly the text messages and photographs, where authentication, hearsay, and Mil. R. Evid. 403 arguments remain live. The court also signaled that military judges can and may expressly limit how 412-admitted evidence comes in — as in Rosales — so renewed motions in limine at trial are appropriate and encouraged.

ISSUE TWO: Protective Order / Standing

What the Military Judge Did

On 9 December 2025, the military judge ordered trial counsel to produce LB’s medical records related to her surgery and post-surgical lab results under R.C.M. 701. On 11 December, LB’s counsel moved for a protective order limiting dissemination and requiring destruction of records outside the ruling’s scope. The military judge refused to even consider the motion, ruling LB lacked standing under Article 6b to raise it.

Subsequently — and notably — the Government itself moved for a protective order on 17 December, which the military judge granted. That order limited copies, protected PII, and governed retention through appellate review, but said nothing about surplus records potentially produced outside the ruling’s scope.

The AFCCA’s Analysis

The court found the issue arguably moot given the Government’s protective order, but analyzed it on the merits anyway. It found:

1. Nothing in the record demonstrated that records outside the scope of the 9 December order were actually produced, so there was no factual basis to find the writ was not moot
2. Even assuming the scope was exceeded, the military judge did not clearly and indisputably err in finding LB lacked standing
3. While a military judge could consider a victim’s privacy-based request as a factor in balancing competing interests, there is no precedent requiring her to do so — the military judge was not compelled to grant standing

The court cited In re VM for the proposition that while Article 6b(a)(4) provides a specific right to be heard, most other Article 6b rights do not carry a corresponding statutory right to be heard, even though a military judge is not prohibited from considering such a request.

Strategic Significance

The practical outcome here actually favored the Government’s position: the protective order the Government obtained provides the framework for records management through appellate review. However, the open question about surplus records — those produced beyond the ruling’s scope — was not resolved. If such records exist, that issue could resurface. The Government should ensure compliance with the scope of the 9 December order and document what was produced to foreclose any later appellate argument.

More broadly, the AFCCA’s standing analysis is significant: it confirmed that victim standing under Article 6b is not unlimited and does not automatically attach to every privacy-related motion a victim wishes to bring before the trial court.

ISSUE THREE: DHA as “Military Authority” Under R.C.M. 701

What the Military Judge Did

The defense sought LB’s surgical records and post-operative lab results from the Fort Belvoir Medical Hospital — a Defense Health Agency (DHA) facility — under R.C.M. 701(a)(2)(A), which covers records in the “possession, custody, or control of military authorities.” The military judge found DHA qualifies as a military authority, ordered production of records from six months post-surgery, and denied the pre-surgery lab records.

The AFCCA’s Analysis

The court found the military judge did not clearly and indisputably err, relying heavily on H.V.Z., 85 M.J. 8 (C.A.A.F. 2024), where CAAF upheld a similar finding regarding a military medical group. The AFCCA’s reasoning tracked the military judge’s own analysis: DHA is an organizational entity of DoD; the definition of “military authorities” in R.C.M. 701 contains no express limiting language excluding Defense Agencies; and agencies like DFAS, DISA, and DLA would be absurdly excluded if Defense Agencies fell outside the definition.

The court encouraged (but did not require) future rulings to apply the H.V.Z. factors: (1) location of the facility; (2) clientele served; (3) command structure; (4) mission. It acknowledged those factors are not dispositive of discretion.

Strategic Significance

This ruling effectively extends H.V.Z. from military medical groups to DHA facilities more broadly. The lack of a limiting principle in the rule, combined with CAAF’s and now AFCCA’s deference to military judges on this question, means that defense counsel in future cases can argue R.C.M. 701 broadly to reach virtually any DoD-operated medical facility. For the Government in this case, the records are already produced. The more pressing question — which this opinion does not resolve — is how those records will be used at trial and whether the Government can limit their use through the protective order framework or additional motions in limine.

PROCEDURAL AND JURISDICTIONAL OBSERVATIONS

Standing / Article 6b(e) Specificity: The court noted twice — and pointedly — that LB filed under Article 6b(a)(9) without citing specific Article 6b(e)(4) provisions granting appellate jurisdiction. The court reached the merits anyway, but flagged this as a best-practice deficiency. Future petitions from victims’ counsel should cite specific Article 6b(e)(4) subsections expressly.

Unpublished Status: This opinion does not serve as precedent under AFCCA Rule 30.4. However, the court’s doctrinal statements on the 412/other-rules interplay, the scope of victim standing, and the DHA-as-military-authority holding will carry persuasive weight and will almost certainly be cited in future cases given the dearth of precedent in these areas.

Mootness Avoidance: The court’s willingness to reach all three issues even where mootness arguments existed reflects a recognition that these questions — particularly victim standing on protective orders and the scope of military authority under R.C.M. 701 — need judicial guidance.

BOTTOM LINE FOR TRIAL PREPARATION

The government appeal context aside, the key takeaways going into trial are:

1. The 412 rulings stand, but the battle over admission continues. Every category of admitted evidence remains subject to independent objections at trial — hearsay, authentication, Mil. R. Evid. 404(b), and renewed 403 balancing. The AFCCA explicitly preserved those arguments and did not foreclose them.
2. Shape how the evidence comes in. Consistent with Rosales and the court’s guidance, the Government should move to restrict the form of admitted 412 evidence — e.g., requiring it come through LB’s cross-examination rather than through documents, statements, or other witnesses where hearsay and confrontation issues arise.
3. Protect the medical records. Ensure strict compliance with the protective order and document the scope of what was produced. The surplus-records question remains open.
4. LB’s rights were vindicated procedurally. The court confirmed she was heard, her objections were considered, and the rulings were within the military judge’s lawful discretion. That record matters for any future appellate review.

A NOTE ON REPRESENTATION

Cases like In re LB — involving intersecting Article 6b victim rights, Mil. R. Evid. 412 litigation, medical records discovery, and interlocutory mandamus practice — demand counsel who know both the trial battlefield and the appellate landscape. Cave & Freeburg, LLP brings exactly that combination. The firm’s attorneys have handled complex Article 120 and domestic violence prosecutions and defenses at the trial level, litigated government appeals and Article 6b petitions before the CCAs and CAAF, and understand how rulings made in pretrial motions ripple through to verdict and beyond. Whether the mission is protecting a conviction on government appeal, navigating victim rights litigation mid-trial, or preparing the record for review, Cave & Freeburg brings the experience that these high-stakes military justice cases demand. For consultation on pending courts-martial, interlocutory appeals, or government appeal strategy, contact Cave & Freeburg, LLP.