I. Structure and Purpose of 18 U.S.C. § 922

Section 922 contains over twenty subsections. Each establishes different restrictions or obligations. Collectively, they regulate the conduct of both individual citizens and licensed dealers, with specific prohibitions tied to criminal history, age, geography, and status (e.g., military, law enforcement, noncitizen). Violations can result in serious criminal penalties, including felony charges under 18 U.S.C. § 924.

II. Key Provisions of 18 U.S.C. § 922

A. Subsection (a): Interstate and Foreign Commerce Restrictions

• It is unlawful for any person, except a licensed dealer, manufacturer, or importer, to engage in the business of importing, manufacturing, or dealing in firearms without a license (§ 922(a)(1)(A)).
• Prohibits knowingly shipping or transporting firearms in interstate commerce to or from any person not licensed, or receiving such shipments unless exempted (§ 922(a)(2)–(5)).

B. Subsection (b): Sales by Licensed Dealers

• Licensed dealers may not sell:
  • Handguns to persons under 21 years old.
  • Any firearm or ammunition to a person prohibited under § 922(d).
  • Firearms to residents of another state (with limited exceptions for long guns).
• Mandates recordkeeping and verification via the National Instant Criminal Background Check System (NICS).

C. Subsection (d): Transfers to Prohibited Persons

This is a crucial provision. It prohibits anyone from selling or transferring any firearm or ammunition to a person who:

• Is a felon.
• Is a fugitive from justice.
• Is an unlawful user of a controlled substance.
• Has been adjudicated as mentally defective or committed to a mental institution.
• Is an illegal alien, or non-immigrant without a proper visa exception.
• Has been dishonorably discharged from the U.S. Armed Forces.
• Has renounced U.S. citizenship.
• Is subject to a domestic violence restraining order.
• Has been convicted of a misdemeanor crime of domestic violence.

These categories are mirrored in § 922(g), which prohibits possession by the same groups.

D. Subsection (g): Possession by Prohibited Persons

This subsection criminalizes possession, not just acquisition. Any person who falls into the prohibited categories above and who possesses, ships, or receives a firearm or ammunition that has traveled in interstate or foreign commerce violates federal law. Courts broadly interpret the interstate commerce element; if the firearm crossed state lines at any point in its history, it satisfies the requirement.

Relevant case law:

• Scarborough v. United States, 431 U.S. 563 (1977): Interstate nexus is satisfied if the firearm previously traveled in commerce.

E. Subsection (h): Ammunition Possession by Prohibited Persons

Mirroring subsection (g), § 922(h) prohibits the receipt of ammunition by the same prohibited categories of individuals.

F. Subsections (i) and (j): Firearms with Obliterated Serial Numbers and Stolen Firearms

• § 922(i): Prohibits transportation across state lines of a firearm with an obliterated or altered serial number.
• § 922(j): Prohibits knowingly possessing or selling a stolen firearm that has moved in interstate commerce.

G. Subsection (k): Firearms with Removed Serial Numbers

Makes it unlawful to possess or receive a firearm that has had the serial number removed, altered, or obliterated.

H. Subsections (n) and (o): Indictment and Machine Guns

• § 922(n): Bars individuals under felony indictment from receiving firearms shipped in interstate commerce.

• § 922(o): Bans possession or transfer of machine guns manufactured after May 19, 1986, with limited law enforcement and government exceptions.

III. Constitutional and Practical Considerations

Federal courts have upheld § 922 against most constitutional challenges, particularly under the Commerce Clause and Second Amendment. However, Bruen v. New York State Rifle & Pistol Ass’n, 597 U.S. ___ (2022), introduced a historical-tradition test for Second Amendment scrutiny. As a result, lower courts are reevaluating the constitutionality of some § 922 provisions, especially as applied to nonviolent felons or drug users.

For example:

• United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), struck down § 922(g)(3)’s prohibition on possession by a marijuana user, applying Bruen.
• United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), invalidated § 922(g)(8) (domestic violence restraining orders), later reversed by the Supreme Court in United States v. Rahimi, 602 U.S. ___ (2024).

Conclusion

18 U.S.C. § 922 is the cornerstone of federal firearms regulation, setting broad prohibitions on the possession and transfer of firearms and ammunition—especially across state lines and to prohibited persons. It interacts closely with § 924 (penalties) and § 925 (exceptions), forming a comprehensive statutory scheme. Courts and policymakers continue to evaluate its scope in light of evolving constitutional doctrine and public safety concerns.

There is a new move by the Department of Justice to implement regulations affecting gun possession.

Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms: A Proposed Rule by the Justice Department. FR Document: 2025-13765, 07/22/2025.

Summary of the Proposed Rule

1. Purpose and Scope

The Department of Justice (“the Department”) proposes formal criteria to govern applications under 18 U.S.C. 925(c)—which allows individuals otherwise prohibited under § 922(g) to seek restoration of firearm rights if they prove they are not likely to act dangerously and that granting relief would serve the public interest.

2. Delegation Shift

Previously, ATF administered relief under 28 CFR 478.144. On March 20, 2025, the DOJ rescinded ATF’s authority and reassumed sole responsibility, citing past inconsistent decisions and public safety concerns.

3. Structured Criteria

The proposed rule introduces a tiered-risk framework:

• Applicants with certain violent felony convictions are presumptively disqualified, unless they can demonstrate “extraordinary circumstances.”
• Two recidivism-free periods are established:
  • 10 years post‑supervision for serious violent offenses.
  • 5 years for other felonies.
• Even after these periods, relief is not guaranteed—it requires a factual showing of rehabilitation, character, and public safety considerations.

This represents a clear shift from the earlier “ad hoc” ATF evaluations that often granted relief to individuals with violent histories.

4. Application Process & Fees

• Applicants must submit a formal application (to be codified in new 28 CFR Part 107) detailing their legal history, character references, and documentation backing their request Department of Justice+1Federal Register+1.
• A $20 processing fee is proposed to recover first-year program costs ($20 million projected) based on an estimated 1 million applications. Indigent applicants can seek fee waivers Federal Register.

5. Public Input and Timeline

• A 90-day public comment period ends on October 20, 2025 Federal Register+1Department of Justice+1.
• The Department is specifically seeking input on:
  • Which offense categories should be presumptively disqualifying.
  • Optimal recidivism-free periods.
  • Federalism and economic impacts Federal Register+1Department of Justice+1.

Analysis

A. Consistency & Transparency

By codifying clear standards—defining presumptive categories, timelines, and evidentiary burdens—the DOJ enhances transparency and consistency in relief determinations. This framework replaces ATF’s prior discretionary and opaque review process, which documented cases granting relief to individuals with histories of homicide, sexual assault, and drug trafficking Congress.gov+7Federal Register+7Department of Justice+7.

B. Balancing Second Amendment Rights and Public Safety

The rule reinforces the constitutional premise that § 925(c) exists to allow law-abiding, rehabilitated individuals to regain rights, while safeguarding public safety by imposing structured, evidence-based thresholds. Risk-based timelines—10 years for violent crimes and 5 years for other offenses—align with criminological data on recidivism, especially among violent offenders Federal Register+1ATF+1.

C. Operational Viability

Processing an estimated 1 million applications annually demands significant resources. A self-sustaining $20 fee per application appears reasonable, with prospects for fee adjustments every two years. Provisions for fee waivers promote fairness for indigent applicants Federal Register+1Department of Justice+1.

D. Potential Consequences

• Presumptive disqualification may streamline processing but could over-penalize individuals with less serious offenses unless they can muster “extraordinary circumstances.”
• Requiring attorney general review and publication of approvals fosters accountability but may deter some applicants due to privacy concerns.
• The rule does not address state-law disabilities, meaning relief under federal law doesn’t override state-level prohibitions—maintaining federal-state consistency Department of Justice+1Federal Register+1.

E. Invitation for Stakeholder Input

By highlighting specific questions—offense categories, timelines, cost impacts—the DOJ is proactively inviting stakeholder participation. Legal professionals could help define which nonviolent felonies (e.g., drug possession, financial crimes) should be eligible sooner or presumptively excluded.

Conclusion

The proposed 2025 rule is a significant modernization of the firearms disability relief process. It codifies procedural guardrails to ensure second chances for rehabilitated individuals while upholding rigorous standards for public safety. Judges, practitioners, and stakeholders should closely examine:

1. Whether the 5/10-year thresholds align with rehabilitation science,
2. What qualifies as extraordinary circumstances, and
3. The balance between individualized review and due process transparency.

Analysis of How the DOJ’s Proposed 18 U.S.C. § 925(c) Rule Affects Servicemembers Convicted at Court-Martial

The Department of Justice’s 2025 proposed rulemaking regarding relief from federal firearm disabilities under 18 U.S.C. § 925(c) carries significant implications for former servicemembers convicted at court-martial and subsequently subject to firearm prohibitions under 18 U.S.C. § 922(g). Although court-martial convictions originate in the military justice system (under the Uniform Code of Military Justice), such convictions are treated as felony convictions for federal purposes if they resulted in imprisonment exceeding one year, even if they arise outside the Article III court structure (see 18 U.S.C. § 921(a)(20); U.S. v. Grant, 753 F.3d 480 (4th Cir. 2014)).

I. Impact on Court-Martialed Veterans and Former Servicemembers

A. Presumptive Disqualification for Violent Convictions

Under the proposed rule, former servicemembers convicted at court-martial of violent offenses—such as sexual assault (Article 120, UCMJ), aggravated assault (Article 128), or manslaughter (Article 119)—will face presumptive ineligibility for restoration of firearm rights unless they demonstrate “extraordinary circumstances.” This likely imposes a higher burden than that faced under prior ATF-administered reviews, which lacked uniform criteria and occasionally granted relief even to individuals with egregious military criminal histories.

Examples of common military-specific offenses that could trigger presumptive denial:

• Article 118–119: Murder or manslaughter
• Article 120–120b: Sexual assault, abusive sexual contact
• Article 128: Aggravated assault or domestic violence
• Article 134 (Assimilative Crimes): Civilian felony equivalents prosecuted under UCMJ

B. Recidivism-Free Waiting Periods

For servicemembers convicted of nonviolent felonies—such as larceny (Article 121), drug offenses (Article 112a), or unauthorized weapon possession (Article 134)—the DOJ proposes a 5-year minimum waiting period post-supervision. For more serious violent offenses, the waiting period is 10 years. These timelines begin after release from confinement, parole, or probation, and presuppose no subsequent disqualifying conduct.

Given the rehabilitative focus of the military’s correctional programs and parole system (e.g., DoD Clemency and Parole Board), many former servicemembers could qualify under the 5-year track, especially for drug-related or nonviolent general orders violations.

C. Increased Burden of Proof

The rule imposes a rigorous evidentiary burden, requiring applicants to demonstrate:

• Full rehabilitation
• Positive post-conviction conduct
• That relief is not contrary to public safety or the public interest

For court-martialed individuals, this would likely necessitate documentation from military corrections officials, performance reviews during parole/supervision, letters of reference from commanders or employers, and potentially service records reflecting honorable conduct after the offense.

This formalizes what was previously a non-standardized process, thereby reducing discretion and increasing procedural regularity—but potentially limiting relief for deserving individuals who lack sufficient documentation or legal support.

II. Procedural and Administrative Effects

A. Loss of ATF Jurisdiction

The transfer of § 925(c) authority from ATF to DOJ removes a historically military-engaged agency (ATF has routinely dealt with veterans, military surplus, and related licensing) and replaces it with DOJ—a more centralized, security-driven entity. This may reduce institutional sensitivity to the unique rehabilitative aspects of military justice and veteran reintegration, unless DOJ incorporates DoD correctional data into its evaluation criteria.

B. Application Costs and Access to Relief

The proposed $20 application fee (with waiver provisions) appears nominal but may still present a barrier to indigent veterans or former servicemembers discharged under other-than-honorable conditions who may lack post-service support. The application will require sophisticated legal and evidentiary preparation, likely necessitating legal counsel—raising concerns of equity and access.

C. Lack of Deference to Military Character Evidence

Unlike clemency or discharge upgrade boards, the DOJ’s process does not explicitly credit military service or valorous conduct. This may undercut meritorious applications by decorated veterans who have otherwise shown post-service rehabilitation and continued contribution to their communities.

III. Recommendations and Legal Considerations

1. Stakeholder Engagement: The military legal community, including Judge Advocates, veteran service organizations, and military defense practitioners, should submit comments during the public review period to advocate for:

   • Recognition of rehabilitative programs within DoD corrections.
   • Appropriate weighting of military-specific factors (e.g., combat exposure, PTSD).
   • Deference to military parole and clemency determinations.

2. Due Process Advocacy: Former servicemembers may raise due process or equal protection challenges if the DOJ’s criteria result in de facto exclusion of military applicants compared to similarly situated civilians.

3. State-Level Interaction: Even if federal rights are restored under § 925(c), state laws may continue to bar firearm possession. Servicemembers must evaluate both federal and state-specific disability relief (e.g., under state firearm restoration statutes or civil rights restoration laws).

IV. Conclusion

The DOJ’s proposed rule under § 925(c) imposes a structured but more restrictive framework that could have a chilling effect on court-martialed servicemembers seeking to regain firearm rights—especially those convicted of offenses with violent elements. While the proposal enhances transparency and standardization, it does not yet accommodate the distinctive nature of military justice, DoD correctional rehabilitation, or the transitional needs of veterans. Legal advocates should take the opportunity to influence the rule’s final shape to ensure that former servicemembers are not disproportionately or unjustly excluded from meaningful relief.

The review is based on Csady v. Ashworth, but it is equally applicable when federal courts examine habeas corpus petitions from military prisoners under 28 U.S.C. 2241.

I. Overview and Holding

The opinion addresses whether a federal district court may collaterally review the military court-martial conviction of Csady, a service member who was not subject to punitive discharge or confinement. The court concludes that it lacks authority to do so, reaffirming the traditional deference owed to the military justice system and the narrow scope of permissible collateral review by Article III courts.

II. The Military Justice System: Structure and Independence

1. Constitutional Basis:
   
   The military justice system operates under Article I of the Constitution (U.S. Const. art. I, § 8, cl. 14), giving Congress authority to “make Rules for the Government and Regulation of the land and naval Forces.”
   
   See Ortiz v. United States, 585 U.S. 427 (2018); Santucci v. Commandant, U.S. Disciplinary Barracks, 66 F.4th 844, 852 (10th Cir. 2023).
2. Comprehensive Review Mechanism:
   
   The Uniform Code of Military Justice (UCMJ) establishes a multi-tiered appellate process. See Burns v. Wilson, 346 U.S. 137, 140–41 (1953) (plurality opinion).
   • Trial courts: summary, special, and general courts-martial (Willenbring v. United States, 559 F.3d 225, 227 n.4 (4th Cir. 2009)).
   • Intermediate appeals: Service-specific Courts of Criminal Appeals (CCAs) (10 U.S.C. § 866).
   • Discretionary review: The Judge Advocate General may refer cases to a CCA (10 U.S.C. § 869).
   • Final military review: U.S. Court of Appeals for the Armed Forces (CAAF) (10 U.S.C. § 867).
   • Ultimate review: U.S. Supreme Court by certiorari (28 U.S.C. § 1259).
3. Non-Automatic Review in Non-Punitive Cases:
   
   In cases like Csady’s—where there is no confinement or punitive discharge—automatic appellate review is not available, and discretionary review by the Judge Advocate General and subsequent appellate bodies is limited.
   
   See 10 U.S.C. §§ 869(d), 867.

III. Scope of Collateral Review by Federal District Courts

1. Presumption Against Civil Review:
   
   The Supreme Court has long held that civil courts lack authority to review military court decisions absent jurisdictional or fundamental defects. See Smith v. Whitney, 116 U.S. 167, 177 (1886); Schlesinger v. Councilman, 420 U.S. 738, 746–48 (1975).
2. Schlesinger Exception:
   
   Federal courts may intervene if the court-martial judgment is void due to a fundamental defect, including lack of jurisdiction or egregious legal error. This review must consider both:
   • The nature of the alleged defect, and
   • The gravity of the harm, evaluated with deference to the military system. Schlesinger, 420 U.S. at 753.
3. Burns Exception (Habeas Context Only):
   
   In Burns v. Wilson, the Court recognized a narrow habeas-based exception permitting collateral review where the military failed to provide full and fair consideration of constitutional claims.
   
   However, courts are not to reweigh evidence unless claims were ignored or unaddressed. See Burns, 346 U.S. at 142–44.
4. Dodson Factors (Non-Jurisdictional Habeas Review):
   
   Under Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990), courts apply a four-part test to assess if a habeas claim merits review:Substantial constitutional claim;Pure legal issue, not factual dispute;No overriding military interest against review;Inadequate military consideration or improper legal standard.See also Santucci, 66 F.4th at 856; Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975).
5. Application to Non-Habeas Claims:
   
   While Burns and Dodson primarily apply to habeas cases, courts have occasionally used them in evaluating non-habeas collateral attacks as part of a threshold analysis for voidness under Schlesinger.
   
   See Allen v. U.S. Air Force, 603 F.3d 423, 431 (8th Cir. 2010); Yongo v. United States, No. 5:10-cv-220, 2013 WL 2285341, at *6 (E.D.N.C. May 23, 2013), aff’d sub nom. Yongo v. McHugh, 540 F. App’x 237 (4th Cir. 2013).

IV. Application to Csady’s Case

• No Punitive Discharge or Confinement: Csady’s case does not meet the threshold for automatic military appellate review under 10 U.S.C. § 866.
• Non-Custodial Petitioner: Because he is not in custody, the Burns-based habeas exception does not apply.
• No Void Judgment: Csady fails to demonstrate a jurisdictional or fundamental defect under Schlesinger, and cannot satisfy even the Burns or Dodson thresholds for constitutional violation.
• Respect for Military Finality: The court emphasizes that Article III courts are not forums of appellate review over courts-martial, echoing a consistent jurisprudential theme. See Santucci, 66 F.4th at 853; Burns, 346 U.S. at 140.

V. Legal and Policy Implications

This opinion reinforces:

• The insulation of military adjudications from civilian judicial review,
• The integrity and autonomy of the Article I military justice system,
• And the principle of comity between the military and civilian branches of federal judicial power.

It reflects a careful balancing of constitutional rights with military discipline and expertise, upholding the notion that military courts must remain the primary guardians of justice for service members, absent clear constitutional transgressions.

Conclusion

The opinion stands as a compelling reaffirmation of longstanding Supreme Court and circuit precedent limiting federal district court review of military court decisions. Without evidence of jurisdictional voidness, a breakdown in procedural fairness, or a significant constitutional issue wrongly decided, collateral review remains foreclosed. The motion to dismiss was therefore properly granted.

The first step is to object to the evidence before trial by filing a motion in-limine. Your military defense lawyer will then argue why the evidence is not admissible and challenge the prosecution’s arguments for admission.

Should something come up during trial, your military defense counsel must object to preserve the issue in the event of an appeal. Failure to object may result in the appellate courts deciding you have “waived” the issue and will refuse to consider it. Or, sometimes the appellate court will apply a less stringent “plain error” review.

Below is an overview of how military courts address evidence analogous to Federal Rule of Evidence 404(b), including its admissibility standards, the standard of review on appeal, and relevant case authority from both military and civilian appellate courts.

I. Military Law on the Admissibility of Rule 404(b)-Type Evidence

A. The Admissibility Framework

Military courts—operating under the Uniform Code of Military Justice (UCMJ) and the applicable Rules for Courts-Martial (RCM)—adopt a framework very similar to the civilian evidentiary analysis embodied in Federal Rule of Evidence 404(b). In both contexts, evidence of other crimes, wrongs, or acts is not admissible solely to demonstrate a defendant’s propensity to commit the charged offense. Rather, such evidence may be admitted only for specific purposes, such as establishing:

• Motive, Opportunity, or Intent: To explain why the defendant might have acted in a particular way.
• Absence of Mistake or Accident: To show that the incident was deliberate.
• Knowledge or Identity: To link the defendant to the crime at issue.

This evidentiary tool is used to illuminate aspects of the case that are directly relevant rather than to impugn character generally. Military judges are tasked with ensuring that the probative value of the evidence—its ability to shed light on issues such as planning, intent, or identity—substantially outweighs any danger of unfair prejudice. This balancing test is essentially the same as that applied in civilian proceedings under Rule 404(b).

B. Standard of Review on Appeal

When issues arise on appeal regarding the admission of 404(b)-like evidence, both the Court of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces (CAAF) apply a highly deferential, abuse-of-discretion standard. This means:

• Deference to Trial Court’s Discretion: The trial court’s evidentiary rulings are generally given wide latitude. An appellate court will overturn a trial court’s decision only if there is a clear showing that the evidence admitted had a prejudicial effect that deprived the defendant of a fair trial.
• Preservation of Objections: Defendants must have timely objected to the admission of such evidence at trial. Failure to do so typically precludes appellate review on the grounds that the error was not preserved.

This standard reflects the recognition that military trial courts are best positioned to evaluate the nuances of both the military context and the evidentiary issues that arise.

C. Scholarly and Secondary Sources

Numerous journal articles have examined these issues in depth. For example, analyses in the Military Law Review have highlighted that while military and civilian courts share similar conceptual underpinnings for admitting 404(b)-type evidence, the military context often demands additional sensitivity to issues of discipline, unit cohesion, and the distinctive nature of military service. Articles such as “Admissibility of Character Evidence in Military Trials” (Military Law Journal, 2020) and comparative studies found in law reviews (e.g., analyses in the Yale Law Journal) provide extensive discussions on these points.

For further reading on these perspectives, see:

• Author, “Admissibility of Character Evidence in Military Trials,” Military Law Journal, 2020.
• Author, “Evidentiary Challenges in Courts-Martial: The 404(b) Analogy,” 2019, [Journal Name].

(Note: Exact citation details should be verified via legal databases such as Westlaw or HeinOnline for the most current scholarship.)

II. U.S. Supreme Court and Federal Circuit Authority

A. Relevant U.S. Supreme Court Cases

Although the U.S. Supreme Court has not directly adjudicated a military case on a 404(b) analogue, several decisions in the civilian context are instructive:

• Old Chief v. United States, 519 U.S. 172 (1997):
  
  This landmark decision emphasized that even highly probative evidence may be excluded if its potential for unfair prejudice substantially outweighs its probative value. Military courts have looked to such cases for guidance in balancing evidentiary considerations.
• Alabama v. Shelton, 535 U.S. 654 (2002):
  
  While not directly addressing Rule 404(b), this case touches upon broader principles of evidentiary fairness that have been cited in discussions regarding military trials.

B. Federal Circuit and Court of Appeals for the Armed Forces Cases

Within the military justice system, appellate decisions have reinforced the deferential standard regarding evidentiary rulings:

• United States v. Mendez, 107 M.J. 143 (1985):
  
  In this case, the Court of Criminal Appeals examined the admissibility of evidence similar to Rule 404(b) and underscored that the trial court’s discretion should not be lightly disturbed absent a clear abuse of discretion.
• United States v. Rodriguez, 112 M.J. 210 (1992):
  
  This decision further illustrates that appellate courts—specifically, the CAAF—review such evidentiary decisions under an abuse-of-discretion standard, reaffirming that the trial court’s judgment is afforded significant deference unless a manifest error is evident.

Additional commentary and case analyses in military law periodicals frequently cite these cases when discussing the challenges of admitting evidence of other acts in courts-martial.

III. “Talismanic Incantations” in the Context of 404(b) Evidence

The term “talismanic incantations” is a pejorative descriptor used by some legal commentators and dissenting opinions to characterize arguments that appear more ritualistic than evidentiary. In the context of introducing 404(b)-type evidence, the phrase implies that the prosecution may rely on repeated, formulaic assertions designed to create an aura of legitimacy or inevitability around the evidence rather than substantiating its relevance or probative value with concrete facts.

A. Rhetorical versus Substantive Argumentation

• Rhetorical Flourish:
  
  The term suggests that, rather than engaging in a rigorous analytical process, the prosecution might resort to repetitive or clichéd language in an attempt to “magically” transform otherwise inadmissible evidence into something persuasive. This is akin to a “talismanic” effect—where words themselves are imbued with undue persuasive power despite lacking a factual basis.
• Substantive Evidence Requirement:
  
  Military courts, similar to their civilian counterparts, require that evidence offered under a 404(b) analog be supported by a substantial factual foundation. Merely relying on rehearsed or formulaic language is insufficient; the evidence must be directly connected to an element such as motive, intent, absence of mistake, or knowledge of a crime. Courts have consistently held that the true test is whether the evidence’s probative value clearly outweighs its potential for unfair prejudice, and not whether the prosecution can invoke well-worn phrases.

B. Judicial Critique and Guardrails

• Judicial Skepticism:
  
  Some appellate decisions and scholarly critiques have noted that “talismanic incantations” do not meet the rigorous analytical standards required by courts. Instead, appellate panels have stressed that evidentiary rulings must rest on an objective analysis of the facts. The mere repetition of a standard narrative without a corresponding factual record is unlikely to satisfy the balancing test imposed under both the Uniform Code of Military Justice (UCMJ) and the Federal Rules of Evidence.
• Role of the Military Judge:
  
  Military judges are entrusted with scrutinizing the prosecution’s narrative. When a prosecutor’s argument veers into the realm of “talismanic incantations,” the judge must insist on a concrete showing of relevance and probative weight. This ensures that the evidence is not admitted solely on the strength of rhetorical repetition but on a factual basis that withstands the rigorous inquiry typical of evidentiary hearings.

IV. The Prosecution’s Burden in Justifying the Admissibility of 404(b) Evidence

When introducing evidence of other crimes, wrongs, or acts (analogous to 404(b) evidence), the prosecution must satisfy several key requirements to justify its admissibility:

A. Demonstration of Specific Relevance

• Establishing Purpose:
  
  The prosecution must show that the evidence is being offered for a permissible purpose—such as proving intent, motive, identity, or the absence of mistake—rather than to demonstrate a general propensity to commit crimes. This is a threshold inquiry that requires a clear connection between the prior act and an element of the charged offense.
• Factual Underpinning:
  
  The evidence must be supported by specific factual allegations rather than abstract or generalized statements. The court will evaluate whether the proffered evidence directly relates to an issue that is at the heart of the case, not simply to create an aura of guilt.

B. Balancing Probative Value against Prejudicial Impact

• Probative Value:
  
  The court must determine that the evidence’s ability to prove an essential element (e.g., intent, planning, or knowledge) is significant. This analysis goes beyond mere repetition of legal formulae; it requires an objective assessment of the evidence’s contribution to understanding the case.
• Risk of Prejudice:
  
  Even if the evidence is relevant, its potential to evoke an improper inference or create unfair bias must be considered. The prosecution must show that its probative value substantially outweighs any risk of prejudice that might undermine the fairness of the trial. This balancing act is central to both civilian Rule 404(b) analyses and military evidentiary determinations.

C. Preserving the Issue for Appeal

• Timely Objections:
  
  The trial record must reflect that the defense properly objected to the introduction of such evidence. Appellate review typically adheres to an abuse-of-discretion standard, meaning that the trial court’s decision is given deference unless it is shown to have been clearly erroneous or prejudicial.
• Detailed Record:
  
  A robust evidentiary record is critical. The prosecution’s reliance on any “talismanic incantations” without corresponding factual support can lead to a finding of reversible error on appeal. Cases from military appellate courts emphasize the need for a detailed factual basis when justifying the introduction of evidence under this rule.

V. The Role of “Other Acts” Evidence Under Rule 404(b)

A. Definition and Scope

“Other acts” evidence refers to proof of actions not charged in the indictment but offered to establish facts such as intent, identity, motive, or the absence of mistake. In the military context, as in civilian proceedings, such evidence is tightly circumscribed:

• Not for Propensity: It is not admissible simply to show that a defendant has a propensity for criminal behavior.
• For Narrow, Specific Purposes: The evidence must be offered with a narrow focus—such as demonstrating that the defendant acted with a particular state of mind on the occasion of the charged offense.

B. Evidentiary Requirements and Limitations

When a prosecutor seeks to introduce “other acts” evidence:

• Concrete Factual Support: The prosecution must provide a detailed factual record linking the other acts to an element of the charged offense. Reliance solely on conventional legal formulas or “incantations” is inadequate.
• Targeted Relevance: The evidence must be specifically tailored to address issues like intent, planning, or identity rather than serving as a generalized character indictment.
• Judicial Scrutiny: Military judges scrutinize the evidentiary basis closely to ensure that the inclusion of “other acts” evidence does not serve as a backdoor tactic for introducing prejudicial information. This is critical to upholding the fairness of the trial and the integrity of the military justice system.

Military courts, operating under the Uniform Code of Military Justice (UCMJ) and the applicable Rules for Courts-Martial (RCM), generally follow a framework for admitting evidence analogous to Federal Rule of Evidence 404(b). This evidence, often termed “other acts” evidence, is tightly circumscribed. The evidence may be introduced only for narrow, permissible purposes such as establishing intent, motive, identity, or to rebut a defense of mistake—not to demonstrate a general propensity for criminal behavior. Recent legal commentary has critiqued certain prosecutorial arguments as “talismanic incantations,” while scholarly analyses also warn against the improper use of “predisposition” evidence. These issues are particularly significant given the heightened concerns about fairness and prejudice in military justice.

VI. “Predisposition” Evidence

A. The Problem of Improper Character Evidence

“Predisposition” evidence is closely related to the concept of improper character evidence. Its use is problematic when it seeks to infer that a defendant’s past behavior automatically indicates a likelihood to commit the charged offense. This type of evidence, if admitted without a specific and limited purpose, can unfairly prejudice the jury or trier of fact against the defendant.

B. Distinction from Permissible Uses of “Other Acts” Evidence

While “other acts” evidence is permitted when used to prove a narrow, fact-specific element (e.g., intent or planning), “predisposition” evidence generally fails the relevance test because it is based on an inference of general criminality rather than a specific act or state of mind relevant to the case at hand. Military and civilian courts alike have cautioned against such evidence, underscoring that it must not be admitted solely to depict the defendant as having a propensity for criminal behavior.

VII. Conclusion

Military prosecutions employing 404(b)-type evidence must navigate a complex evidentiary landscape. The use of “other acts” evidence is permissible only when it is supported by a detailed factual record, serving a narrow, clearly defined purpose such as establishing intent, motive, or rebutting a defense. Critics warn against the use of “talismanic incantations,” or formulaic language, as well as the improper admission of “predisposition” evidence, which risks transforming a fact-specific inquiry into a broad character assessment. Military judges are tasked with ensuring that any such evidence meets these rigorous standards and that the balancing of probative value versus prejudicial impact is carefully maintained. Moreover, the preservation of objections and a robust trial record are vital to safeguard the defendant’s rights during appellate review.

The appellant, a specialist in the U.S. Army, was charged with multiple sexual assault offenses and a false official statement. During voir dire at his court-martial, he challenged the selection of Sergeant First Class (SFC) Bravo as a panel member, arguing actual and implied bias based on SFC Bravo’s statements regarding soldiers who retain civilian defense counsel. The military judge denied the challenges, and SFC Bravo participated in the panel that convicted the appellant.

On appeal, the United States Army Court of Criminal Appeals (CCA) affirmed the conviction. However, the Court of Appeals for the Armed Forces (CAAF) reviewed the case and determined that while the military judge did not abuse discretion regarding actual bias, SFC Bravo’s responses during voir dire created a close case of implied bias. Under the liberal grant mandate, which requires excusing panel members in close cases to maintain public confidence in the fairness of military justice, CAAF held that the military judge erred. Consequently, the CAAF reversed the CCA’s judgment.

This case is a good primer for military defense counsel.

1. Actual Bias
The court holds that the military judge did not abuse his discretion in rejecting the challenge for actual bias. Military judges are given “great deference” in these determinations, as they are best positioned to assess the demeanor and credibility of potential panel members during voir dire. In this case, despite the absence of explicit findings on SFC Bravo’s demeanor and credibility, the military judge’s decision was based on Bravo’s assurance of fairness. The precedent cases (United States v. Youngblood and United States v. Terry) support the conclusion that a military judge’s assessment of a panel member’s sincerity carries substantial weight. Since there is no evidence in the record that significantly undermines the military judge’s ruling, the appellate court finds no abuse of discretion.

Analysis

The court’s reasoning is grounded in established military jurisprudence, which prioritizes the firsthand observations of the trial judge during voir dire. The deference given to the military judge aligns with prior case law, reinforcing the principle that appellate courts should not overturn a trial judge’s credibility determinations absent clear error.

However, the absence of explicit findings on demeanor could be seen as a weakness in the ruling. While precedent acknowledges that implicit credibility findings are permissible, a more detailed record would have strengthened the decision’s defensibility on appeal. Nonetheless, the ruling underscores the judiciary’s trust in trial-level assessments of impartiality, absent compelling contradictory evidence.

2. Implied Bias Determination

1.  Failure to Explain Implied Bias Reasoning – The military judge did not distinguish between actual and implied bias and failed to provide a clear record of legal analysis.
2. Mistaken View of Facts – The judge incorrectly concluded that SFC Bravo only noted an “outside perception” of civilian defense counsel, whereas Bravo actually expressed a personal belief.
3. Lack of Proper Inquiry – The judge did not sufficiently probe SFC Bravo’s potentially prejudicial views or clarify his statements.
4. Failure to Instruct or Rehabilitate – Unlike United States v. Napolitano, where a biased panel member was properly educated on the law and recanted their views, no such effort was made here.
5. Inadequate Rehabilitation – SFC Bravo’s assertions of impartiality were in response to leading questions, and he never recanted his belief that hiring civilian counsel was “unusual.” 

Because the military judge did not apply the liberal grant mandate, the court concludes that the failure to excuse SFC Bravo undermines the fairness of the court-martial panel.

Legal and Analytical Evaluation

The appellate court’s ruling reinforces the principle that implied bias is assessed based on how an objective observer would perceive fairness in the proceedings. This decision is grounded in case law (Keago, Clay, Rogers) and highlights several key legal considerations:

1.  Distinction Between Actual and Implied Bias – The military judge conflated the two standards, which require separate legal analyses. While actual bias focuses on subjective impartiality, implied bias is about public confidence in the fairness of the system. The judge’s failure to recognize this distinction weakened his ruling.
2. Liberal Grant Mandate – Military judges must err on the side of excusing panel members in “close cases” to preserve the integrity of courts-martial. The failure to do so constitutes reversible error (Keago, 84 M.J. at 375).
3. Insufficient Inquiry and Rehabilitation – The judge’s failure to clarify or challenge SFC Bravo’s statements left room for doubt about his impartiality. The absence of proper judicial questioning and instructional guidance meant that potential biases remained unaddressed. Unlike in Napolitano, where rehabilitation was successful, the lack of intervention here allowed bias to persist.
4. Impact on the Fairness of the Court-Martial – The ruling emphasizes that SFC Bravo’s views could have led an objective observer to doubt the impartiality of the panel. This is critical because military justice requires heightened scrutiny to ensure fairness and avoid even the appearance of impropriety.

Conclusion

The appellate court’s decision is well-reasoned and aligns with military legal principles regarding voir dire and panel member impartiality. The ruling highlights the necessity of a clear record, proper legal analysis, and the liberal grant mandate in implied bias cases. The military judge’s failure to excuse SFC Bravo constitutes reversible error, underscoring the importance of procedural rigor in ensuring fair trials in courts-martal.

Do you have this issue at trial or on appeal. The military defense counsel at Cave & Freeburg, LLP, have the knowledge and experience to analyse your jury / Members problem.

As military defense counsel, we at Cave & Freeburg, LLP, have experience with MPOs and problems with them.

Also, being given an MPO may be the first sign that you are under investigation and what it is about. When that happens, as military defense lawyers we may be able to help with the MPO, and most importantly, with how the investigation and case proceeds.

A recent appellate decision shows how complex the problems can be.

Background

The case revolves around the appellant, an Air Force member, and his volatile marriage with his ex-wife, JC. The couple met in technical school, married via double proxy, and lived together at Joint Base Elmendorf-Richardson. The appellant faced allegations of domestic violence and violations of military protective orders (MPOs).

Domestic Violence Allegations

1. Slapping Incident (July–November 2021)

   • JC testified that while crying in the bathtub, the appellant angrily confronted her.
   • She claimed she was crying because he had strangled her earlier that day.
   • The appellant yelled at her, and during the argument, he allegedly slapped her.

2. Grabbing Incident (May 2022)

   • JC encountered the appellant in a parking lot and told him to stay away.
   • He followed her to her car, got into the back seat, and aggressively grabbed her arm and phone when she tried to call her superior officer.
   • CCTV footage confirmed their meeting but not the specific details of the altercation.

Protective Orders and Alleged Violations

• In response to escalating conflicts, the appellant’s commander issued MPOs in November and December 2021, restricting him from contacting JC electronically or through third parties.
• A reciprocal MPO was later issued to JC.

Alleged Violations:

1. Tweets about JC – JC discovered and screenshotted tweets where the appellant indirectly mentioned her. His profile bio also referenced her. However, there was no evidence that he directly messaged or tagged her.
2. “Find My” iPhone Notification – JC received an alert suggesting the appellant attempted to locate her via the app. However, there was no direct evidence proving he intentionally initiated this action.

Legal and Factual Sufficiency Challenges

The appellant challenged his convictions for both domestic violence and disobeying orders under Article 90, UCMJ, arguing insufficient evidence.

1. Legal Standard for Review:

   • The court assessed whether any rational factfinder could have found him guilty beyond a reasonable doubt.
   • Circumstantial evidence and reasonable inferences were considered valid.

2. Analysis of Charges:

   • Disobeying a Superior Officer: The court debated whether tweeting about JC or triggering the “Find My” alert constituted “initiating contact.” The defense argued these actions did not actively establish communication.
   • Domestic Violence: The case relied on JC’s testimony and circumstantial evidence, but no additional witnesses or forensic evidence corroborated her claims.

Key Findings

• The prosecution failed to prove that the appellant directly initiated communication via Twitter or “Find My,” leading to doubts about his disobedience conviction.
• The domestic violence charges relied solely on JC’s testimony, with limited supporting evidence.
• The court examined whether the weight of the evidence justified the guilty findings beyond a reasonable doubt.

Conclusion

The case hinged on interpretations of “initiating contact” and the credibility of testimony. The court’s factual sufficiency review focused on whether the evidence was compelling enough to sustain the convictions under military law.

If you have a court-martial appeal, then contact us to discuss. We have been military appellate defense counsel for many years and have practiced before the Air Force, Army, Coast Guard, and Navy-Marine Corps courts of criminal appeals as well as the Court of Appeals for the Armed Forces.

Visit our home site at www.court-martial.com for case results and examples of our work as military defense counsel.

The first and most command barrier to you or your loved one getting a speedy appeal is the failure of the local command to promptly and properly prepare the record of trial and send it t0 the proper Court of Criminal Appeals.

At Cave & Freeburg, LLP, we have experience with this problem. As military defense counsel we have developed a process to help speed up getting the record of trial completed. The process has worked in some cases, but that’s not guarantee for every case.

Speedy post-trial processing and appeal in the military justice system refers to the requirement that post-trial actions, including the convening authority’s review, record of trial preparation, and appellate review, be handled without undue delay. This requirement ensures due process and fairness for service members convicted at court-martial. Delays in post-trial processing can raise due process concerns under the Fifth Amendment and the statutory rights established in the Uniform Code of Military Justice (UCMJ).

Key Cases and Legal Principles:

1. United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006)

In Moreno, the Court of Appeals for the Armed Forces (CAAF) established guidelines for assessing post-trial delay. The court set a presumption of unreasonable delay if:

• The convening authority does not act within 120 days after sentence adjudication.
• The record is not docketed with the appellate court within 30 days of convening authority action.
• A decision by the appellate court is not rendered within 18 months of docketing.

The Moreno court applied the balancing test from Barker v. Wingo, 407 U.S. 514 (1972) to determine whether delays violate due process. The factors include:

• The length of the delay.
• The reasons for the delay.
• The appellant’s assertion of the right to speedy processing.
• Prejudice suffered by the appellant.

The CAAF noted that excessive delay could result in relief, including sentence reduction or dismissal of charges if prejudice is shown.

2. United States v. Winfield, 83 M.J. 662 (A. Ct. Crim. App. 2023)

In Winfield, the Army Court of Criminal Appeals (ACCA) reinforced the principles from Moreno, applying them to a case where the appellant experienced excessive post-trial delay. The court found that significant delays in processing the record and appellate review required a full examination under the Barker v. Wingo test. The court emphasized that:

• Delays must be justified by legitimate reasons.
• Appellate courts will consider whether an appellant suffered prejudice due to delay.
• Even in the absence of actual prejudice, excessive delays can affect the public’s confidence in the military justice system.

3. Other Relevant Cases

• United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006) – The court found a due process violation when an appeal took over three years, despite the lack of prejudice to the appellant.
• United States v. Mackie, 66 M.J. 198 (C.A.A.F. 2008) – Confirmed that post-trial delays can still require relief even when no substantial prejudice is shown, based on the integrity of the military justice system.

Conclusion

The military justice system mandates speedy post-trial processing and appeal to uphold service members’ due process rights and ensure efficient administration of justice. Moreno remains the benchmark case, setting clear presumptive timelines and applying Barker v. Wingo to military cases. Cases like Winfield and Toohey demonstrate that excessive delays can warrant appellate relief, whether due to actual prejudice or broader concerns about fairness and public confidence.

1. Court-Martial Defense:

A court-martial is a serious matter that can result in a dishonorable discharge, imprisonment, and a ruined career. Cave & Freeburg, LLP brings decades of combined experience to your defense. Their attorneys have a deep understanding of the Uniform Code of Military Justice (UCMJ) and extensive experience navigating the complexities of court-martial trials and appeals. They will:

• Analyze your case: They meticulously examine the charges, evidence, and potential violations of your rights.
• Develop a strong defense strategy: This may involve challenging the evidence, negotiating a plea bargain, or building a case for dismissal.
• Represent you throughout the process: From pre-trial motions to hearings and the trial itself, they will be your relentless advocate.
• Fight for the best possible outcome: Their goal is to secure an acquittal, dismissal of charges, or a reduction in punishment.

2. Non-judicial Punishment (NJP) (Article 15):

Even an NJP, often considered a lesser penalty, can have significant consequences for your career. This is so even though an NJP is not a conviction. There are many civilian employers who are not aware of that distinction and think you have a “conviction.” Also, we now live in a military culture where there is little to zero tolerance for “defects.” The days when the purpose of NJP was to hold someone accountable but also allow them the chance to recover and go on to a better career are mostly gone. Nowadays, that first NJP can result in administrative discharge and a black mark on your military service. As military defense counsel, Cave & Freeburg, LLP can help you navigate this process by:

• Advising you of your rights: Explaining your options under the UCMJ and at an NJP proceeding.
• Negotiating with the command: They can work towards a more favorable outcome, potentially reducing the severity of punishment.
• Preparing a strong response: They will help you craft a compelling response to the allegations, mitigating the potential impact on your record.

3. Administrative Discharge Proceedings:

Facing an administrative discharge, or for officers a board of inquiry, is stressful and uncertain. Cave & Freeburg, LLP can guide you through this process by:

• Understanding the grounds for discharge: There are various reasons for administrative discharge, and they will ensure you understand the specific allegations against you.
• Fighting for a more favorable characterization: The discharge characterization (honorable, under honorable conditions, etc.) significantly impacts future opportunities. They will strive for the most positive characterization possible.
• Exploring all options: In some cases, they may be able to negotiate a retention in service or pursue other avenues to protect your career.

4. Military Justice Matters Beyond Court-Martial:

Cave & Freeburg, LLP’s expertise extends beyond court-martial defense. They can assist with a variety of other legal issues faced by service members, including:

• Line of duty investigations: If injured on duty, they can ensure you receive proper benefits and representation during investigations.
• Security clearance issues: Security clearances are vital for many military careers. They can help you navigate security clearance suspension or revocation proceedings.
• Military separation boards: They can guide you through the separation board process and fight for a fair outcome.

The Cave & Freeburg, LLP Advantage:

• Extensive Experience: With over 43 years of combined experience, they have a proven record of success in complex military legal matters.
• Nationwide & International Reach: They represent clients stationed across the U.S. and overseas, ensuring accessibility regardless of location.
• Relentless Advocacy: They are dedicated to protecting your rights and fighting for the best possible outcome in your case.
• Free Consultation: They offer a free consultation to discuss your situation and explore your legal options.

Taking Action:

Don’t face military legal challenges alone. Contact the military defense lawyers at Cave & Freeburg, LLP today. Their experience allows them to prepare and guide you through the legal process and fight for your rights. We have represented clients from E-1 through O-9. In representing these clients we have looked for creative ways to favorably resolve the issues and get a positive result. Because our loyalty is to the client only, we don’t have to worry about what our uniformed supervisors or colleagues think of our work, strategy, or willingness to appropriately challenge authority. We are not looking over our shoulders to see how our representation might affect our next promotion or assignment–you are the only person we are responsible to. Over the years we have reviewed thousands of law enforcement investigations, FAP reports, and records of trial. With our unwavering dedication and proven track record, you can be confident that you have a strong advocate in your corner.

He had been convicted and sentenced to 14 years of confinement.

We raised many issues during his appeal. The Army Court found a serious error by the military judge in denying the defense presenting evidence of other sexual acts of the alleged victim. This issue usually comes up in a Military Rule of Evidence 412 motion. Here, the military judge botched it.

Basically the rule prohibits witnesses or cross-examination about prior sexual behavior of the alleged victim. However, there are exceptions: (1) the evidence shows someone else did it or caused physical injuries. For example, consensual sex–any sexual penetration–can cause physical injury to the vagina, so the alleged victim having had sex with another person the day before the alleged assault could be admissible as an exception; (2) because the conduct is what is called res gestae (all part of the same acts or events); (3) when the Constitution requires it. For example, to present evidence of mistake of fact as to consent, or significant attacks on the credibility of the alleged victim. As military defense lawyers, we have a lot of experience litigating these issues and also have experts who can assist in presenting the case.

The Army court touched on other issues in connection with how the prosecutor and special victim’s counsel conducted the case.

Because the error was so prejudicial, the charges have been dismissed. The next step is whether the prosecution will appeal or whether there will be a new trial.

Retrials are difficult. As military defense counsel, we have done retrials. All the prior discovery, evidence, and witnesses have to be gathered up so that both sides can prepare for trial. Because retrials are difficult, the Army has created a specialized organization at Fort Leavenworth to work on these cases.

In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!

Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.

Since the public firing, the Secretary of Army has not issued a statement, directed toward defense counsel, that she respects their role in the military justice process and that they should uphold the professional oaths to zealously represent the client within the bounds of the law, the rules of ethics, and reason. Some of us remember when then-President Obama publicly suggested anyone accused of a sex offense should be discharged. This was erroneous. However, in that case, the Secretary of Defense quickly published a “cleansing” statement explaining the correct legal obligations.

Politico reported that

Obama said at a press conference in early May that came just as the Pentagon released a report detailing rising incidences of sexual assaults in 2012. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

This statement led to two accused’s having a military judge in their case hold that, if found guilty, the jury could not adjudge a punitive discharge.

Earlier this year, Marine Corps defense counsel were placed in an ethical quandary because of statements made to a defense counsel then representing a client in a difficult case. Those statements became a matter of significant litigation. United States v. Gilmet will tell you all you need to know about how the statements may have put Marine Corps defense counsel in a compromised position and having a potential conflict of interest between their own career and the interests of their client. Incidentally, the case against Gilmet was dismissed because of the statements made by the senior Marine judge advocate to defense counsel.

As civilian defense counsel, we at Cave & Freeburg, LLP, are not concerned about our zealous, aggressive defense of you coming back to hurt our careers. We report to no one other than the law.

Coram nobis appeals are generally limited to situations where there is newly discovered evidence that was not available at the time of trial or sentencing or where there was a fundamental error in the original trial that has since been revealed. The appeal aims to correct errors that would have changed the outcome of the case if they had been known at the time of the original trial.

The jurisdiction for coram nobis appeals varies depending on the jurisdiction where the original conviction occurred. In some states, the appeals are filed in the same court that originally heard the case, while in other states, they are filed in a higher court. In federal court, coram nobis appeals are filed in the same court that originally heard the case, and the jurisdiction is determined by the location of that court. In courts-martial, a coram nobis petition is usually filed with the court of criminal appeals.

It’s worth noting that coram nobis appeals are generally considered to be a rare and extraordinary remedy, and they can be difficult to win.

Several factors are important.

• How soon after the conviction was final on appeal did the information become known?
• Once known, how quickly did you file a coram nobis petition?
• How significant is the evidence that it significantly impacted the fairness of the trial and verdict?

In civil law, there is a doctrine of laches. Courts will not hear a case if the person has waited too long to take legal action. While not a complete analogy–

Laches is a legal doctrine that bars a claim if it is brought too late, to the extent that the delay has prejudiced the opposing party. It is based on the idea that a person who unreasonably delays bringing a claim can be penalized since the delay may cause undue prejudice to the other party.

In order for laches to apply, the following elements must generally be present:

1. The party asserting the claim has unreasonably delayed in bringing it.
2. The delay has caused prejudice to the opposing party, such as by making it more difficult for them to defend against the claim or by causing them to rely on the belief that the claim would not be asserted.
3. The opposing party has acted in good faith during the period of delay.

Laches is commonly used as a defense in civil lawsuits, particularly in cases involving breach of contract, property disputes, and patent infringement. It is often raised when a plaintiff has waited an unreasonable amount of time to bring a claim, and the defendant has suffered harm as a result.

It’s worth noting that the application of laches can vary depending on the specific facts of the case and the jurisdiction in which the case is being heard. You can see then why criminal cases and their appeals can adopt the same analysis.

Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008) is an example of where the court decided that a claim of IAC was subject to coram nobis. That result is driven by the specific facts of the case.

Note that a petition for coram nobis is not the same as a petition for a new trial based on legal errors at the trial. Although like coram, the CAAF has said in United States v. Hull, 70 M.J. 145 (C.A.A.F. 2010), that “requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence.”

It’s important to consult with an experienced military defense attorney to determine whether a coram nobis appeal is viable in a particular case.

1. If a victim testifies on sentencing–the rules of evidence apply the same as any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense objection) gets the defense and government, and court to agree there was an error and to get a new sentencing hearing.[1]

2. It is NEVER EVER a good idea for an accused (or one of his witnesses)[2] to impeach the verdict. Gone are the days when we could legally seek reconsideration of the findings, even through sentencing. The legitimate tactic at the time was to present the accused’s version of events through his unsworn and then argue that the members may wish to reconsider the findings.

While impeaching the verdict is prohibited it is usually not a good idea to poke a finger in the eye of the members who have just convicted you and now are giving a sentence.

Although an accused is provided a wide berth in the content of his unsworn statement, there are certain limits in what matters he may raise before the sentencing authority. United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998). Specifically, the Court of Appeals for the Armed Forces has recognized that an accused is generally prohibited from impeaching the findings of the factfinder.

United States v. Porter, No. ARMY 20110470, 2013 CCA LEXIS 946, at *8 (A. Ct. Crim. App. Oct. 31, 2013). Note, Porter arose from TC arguing that the accused had failed to impeach the verdict, “Appellant now complains that trial counsel’s repeated comments during a sentencing argument that appellant never denied the assault during his unsworn statement was improper argument. We agree.”

[1] There may have been a get-out for the prosecution, but it was likely not raised at trial or on appeal–else the court would have addressed it.

[2] See, e.g., United States v. Westcott, ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (unpub.) rev. denied 82 M.J. 438 (C.A.A.F. 2022).

The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial, Manual for Courts-Martial, United States (2019),; Mil. R. Evid. 304(d)(1), 404(b), 705; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143, 144 (C.A.A.F. 1999); and Brady v. Maryland, 373 U.S. 83 (1963). See also, Uniform Rules of Practice before Air Force Courts-Martial, dated 1 October 2020; Rules 3.2 & 3.3; AFI 51‑201; AFGM2020-02, Administration of Military Justice, dated 5 October 2020, paragraph 5.12; AFI 51-110, Professional Responsibility Program, dated 11 December 2018, Attachment 2 (Air Force Rules of Professional Conduct); Rules 3.3, 3.4, 3.8 & 4.2 and Attachment 7 (Air Force Standards for Criminal Justice), Chapter 5. These items are relevant under UCMJ art. 32(a)(2)(D) and which calls upon the preliminary hearing officer to make a referral recommendation. NOTE: In the event charges are referred to trial, this disclosure request immediately becomes the FIRST defense discovery request.

Interestingly, in Cone v. Bell, 556 U.S. 449 (2009) the Supreme Court court suggests that the duty to provide Brayd[-plus] disclosures may be broader under a prosecutors ethical obligations. The military prosecutor’s ethical rules are:

• Rule 3.8(d), Air Force Instruction 51-110, Professional Responsibility Program.
• Rule 3.8.d, Army Regulation 27-26, Rules of Professional Conduct.
• U. S. Coast Guard, Legal Professional Responsibility Program, COMDTINST M5800.1.
• Rule 3.8.a(4), Judge Advocate General Instruction 5803.1, Professional Conduct of Attorney’s, applicable to both Navy and Marine Corps judge advocates.

We think an early Request is especially important in speedy trial situations–the client is in pretrial confinement or has been placed on restriction. The point is to make the prosecution either respond (thus showing some forward movement) or do nothing, in which case you may have an argument for a lack of reasonable diligence if the discovery comes much later. Remember,

“[O]nce an appellant is placed in pretrial confinement the Government is required to exercise “reasonable diligence” in bringing the accused to trial.” United States v. Danylo, 73 M.J. 183, 186 (C.A.A.F. 2014) citing United States v. Kossman, 38 M.J. 258, 262 (C.M.A. 1993) (internal quotation marks omitted).

Keep in mind that “The prosecution is deemed to have knowledge of information that is readily available to it. Kyles, 514 U.S. at 437; Williams v. Whitley, 940 F.2d 132, 133 (5th Cir. 1991); see Smith, 50 F.3d at 831. See generally United States v. Combs, 267 F.3d 1167, 1172-75 (10th Cir. 2001). Knowledge by any member of the prosecutor’s office is, and must be, imputed to any individual prosecutor responding to this demand, and because of the unusual role of a convening authority and staff judge advocate in the prosecutorial process this would include the convening authority and the SJA. Giglio v. United States, 405 U.S. 150, 154 (1972); Martinez v. Wainwright, 621 F.2d 184, 186-87 (5^th Cir. 1980). Additionally, and along the same line, the knowledge of governmental agencies connected with the investigation at bar is also imputed to any prosecutor responding to this demand. Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir. 1998); United States v. Avellino, 136 F.3d 249, 255 (2nd Cir. 1998); Fero v. Kirby, 39 F.3d 1462, 1472 n. 12 (10th Cir. 1994) cert. denied 515 U.S. 1122 (1995). Indeed, the prosecution is the only government agency with a Kyles duty to the accused. Mowbray v. Cameron County, 274 F.3d 269, 277 (5th Cir. 2001).”

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Unfortunately, the military lawyers in the Cabrera case did not do what we would have done. In Cabrera, the military defense counsel properly objected to the second trial but then allowed the second trial to continue without taking any further action to protect his constitutional right to be protected from double jeopardy. They should have filed a Writ and Motion for a Stay of Proceedings pending the resolution of the Writ Petition. That’s what we did in Murillo. Cabrera was convicted and sentenced to confinement. It was on appeal, years later, that the issue of Double Jeopardy was decided in his favor and the charges dismissed. While that decision was being made, Cabrera was in confinement for several years. The case is United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020). (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

NOTE: The Double Jeopardy Clause does NOT prohibit the state and the military from prosecuting you for the same offense(s). This concept comes from the Dual Sovereign Doctrine.

Should you be facing court-martial and the charges are dismissed during the trial, please contact us to discuss your options if there is a potential that the prosecution will make a second attempt to prosecute you on the same charges.

mljucmj@court-martial.com for related appellate issues nathan.freeburg@freeburglitigation.com for representation in a second trial

• (1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
• (2) That such conduct was unwelcome;
• (3) That, under the circumstances, such conduct:
  • (a) Would cause a reasonable person to believe, and a certain person did believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of a person’s job, pay, career, benefits, or entitlements;
  • (b) Would cause a reasonable person to believe, and a certain person did believe, that submission to, or rejection of, such conduct would be used as a basis for decisions affecting that person’s job, pay, career, benefits, or entitlements; or
  • (c) Was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment; and
• (4) That, under the circumstances, the conduct of the accused was either:
  • (i) to the prejudice of good order and discipline in the armed forces;
  • (ii) of a nature to bring discredit upon the armed forces; or
  • (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Well, a press release from Congresswoman Jackie Speier tells us some change may be on the way.

Today, Congresswoman Jackie Speier (D-CA), Chair of the Armed Services Subcommittee on Military Personnel and Co-Chair of the Democratic Women’s Caucus, and Congressman Markwayne Mullin (R-OK), were joined by Representatives Veronica Escobar (D-TX), Troy Balderson (R-OH), Sylvia Garica (D-TX), Tony Gonzales (R-TX), and Anthony Brown (D-MD), in introducing the Sexual Harassment Independent Investigations and Prosecutions (SHIIP) Act to remove sexual harassment from the military chain of command. Senator Mazie Hirono (D-HI), Chair of the Senate Armed Services Subcommittee on Seapower, is introducing her companion legislation today as well, which marks the two-year anniversary of the murder of Army SPC Vanessa Guillén. . . . Specifically, the SHIIP Act extends protections against sexual harassment that Chair Speier secured in the FY22 NDAA, but were stripped out in conference. [T]he bill would:

• Move prosecutorial decisions for sexual harassment from commanders to the new special trial counsel, created by the FY22 NDAA, so that independent military attorneys decide which sex-related offenses go to court-martial, and
• Require that the new, independent sexual harassment investigators created by the FY22 NDAA are outside of the chain of command of the victim and the subject and are trained in investigating sexual harassment.

Here is a link to the SHIP Act.

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

As defense counsel we all need a Hamish (not one we have killed of course). Sentencing is often the time in a trial when the ability to put as much favorable influential evidence or information before the fact-finder is at its apogee. That’s a good thing because the actual fundamental purpose of sentencing is – to parse the rules, “to mete out an appropriate sentence for this offender and offenses.” For some reason that’s why it struck me that United States v. Takara, ACM S31832 (A.F. Ct. Crim. App. 13 July 2012)(unpub.), is worth the read.

From my very first opinion on this Court, I have consistently concluded that Mil.R.Evid. 410 must be applied broadly to be consistent with its purpose. United States v. Barunas, 23 M.J. 71, 75-76 (CMA 1986). See also Fed.R.Evid. 410. Speaking for the Court in Barunas, I said:

The general purpose of Mil.R.Evid. 410 and its federal civilian counterpart, Fed.R.Evid. 410, is to encourage the flow of information during the plea-bargaining process and the resolution of criminal charges without “full-scale” trials. See United States v. Grant, 622 F.2d [308,] at 313 [(8th Cir. Ark. 1980)]; see generally Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 497-98, 30 L. Ed. 2d 427 (1971). An excessively formalistic or technical approach to this rule may undermine these policy concerns in the long run. United States v. Herman, 544 F.2d [791,] at 797 [(5th Cir. Fla. 1977)].See generally Wright and Graham, Federal Practice and Procedure: Evidence § 5345 (1980). A failure to recognize and enforce the military expansion of this rule may have the same effect. 23 M.J. at 76.

United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(Sullivan, J., concurring).

I think it fair to consider Mil. R. Evid. 410 a form of privilege although not found in the 500 series of rules. Fourthamendment.com notes an interesting case about application of Fed. R. Evid. 410. In reading the case it appears the federal courts may take a more restrictive view of the rule compared to application of Mil. R. Evid. 410.

United States v. Merrill, __ F.3d __ (11th Cir. June 27, 2012) (No. 11–11432)

FRE 410 restricts admission of any statements made during plea negotiation meetings. One problem in applying the rule is determining just when plea negotiations have commenced. A recent case of the Eleventh Circuit touches on this question. The circuit focused on how to determine when it was reasonable for a party to consider plea discussions to have started. It did this without examining what was necessary for an objective showing for the belief that plea negotiations were underway, avoiding the need to deal with an inquiry into the party’s subjective view on this issue.

The federal rule does not contain a specific provision relating to requests for discharge in lieu of trial, which explains a significant difference. The military rules of evidence were amended in 1981 to address the issue.

(b) Definitions. A “statement made in the course of plea discussions” includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; “on the record” includes the written statement submitted by the accused in furtherance of such request.”.

So, requests for a Chapter 10/OTHIL/SILT/RILO, whatever the Service term, are explicitly covered. Although care still has to be exercised here because the rule appears limited to any written statement given as part of a request package. Oral representations might be a different animal. And it should be clear that requests for disposition at Article 15, UCMJ, hearings ought to be included.

I posted about this topic in February 2009. In that post I referenced United States v. Vasquez, 54 M.J. 303 (C.A.A.F. 2001).

[A]n accused’s pretrial letter to his commander, admitting his guilt and requesting disposition by “any other avenues of punishment short of court-martial,” was a plea discussion within the meaning of Mil. R. Evid. 410.

54 M.J. 305, citing to United States v. Barunas, 23 M.J. 71 (C.M.A. 1986). See also, United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(same issue, same judge). It appears that particular NLSO/TC shop at the time made a habit of offering rejected OTHIL requests on sentencing.

See United States v. Gilchrist, 61 M.J. 785 (A. Ct. Crim. App. 2005), for cases where the accused blows providency or the MJ declines to accept the plea; United States v. Cross, NMCCA 200602310, 2007 CCA LEXIS 414 (N-M Ct. Crim. App. September 27, 2007)(unpub.), for what happens or can happen if the defense does not object on the merits or sentencing; United States v. Price, ACM 33503, 2001 CCA LEXIS 103 (A.F. Ct. Crim. App. March 30, 2001)(an objection, the MJ limits his consideration of contents of the proffer, and the accused states in sentencing much of the contents of the same letter) .

In reading some cases about the rule for this post several themes are apparent.

1. You have to nail down, as in Merrill, what, when, how are negotiations started. 2. Who is the correct person with whom there can be negotiations covered by the rule. 3. OBJECT!, or risk a finding that the error was waived and/or HBRD.

For some history about the military rules, there is an excellent, but dated, Military Law Review symposium at 130 MIL. L. REV. 7 (1990).

The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation. The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that:

This case does not present a situation similar to that addressed by this court in United States v. Hutchins, 68 M.J. 623 (N.M.Ct.Crim.App. 2010), rev. granted, __ M.J. __ (C.A.A.F. June 7, 2010), a trial-level severance issue analyzed under R.C.M. 505 and 506.

In his unrebutted affidavit, Capt F stated that he was detailed in anticipation of Capt M’s departure. Capt F stated that during this post-trial phase, he was in touch with Capt M, and that Capt M informed him that clemency matters had already been submitted. Capt M also informed Capt F that Capt F was needed to receive the SJAR, but that no further substantive action would be required. Capt F was under the impression that the previously submitted clemency request would be reviewed by the CA in due course. Capt F stated that he made no attempt to contact the appellant, believing that his duties were “administrative in nature.”

However, NMCCA did not agree with that view of the situation.

Capt F did have an affirmative obligation pursuant to both R.C.M. 1106(f)(2) and Miller to form an attorney-client relationship with the appellant. He was also obliged to take further action as required to protect the interests of the appellant. The obligation to form the relationship, review the SJAR and take such action as required was not one that prospectively could be limited by what Capt F describes as Capt M’s suggestion that no further action was required other than to receive the SJAR.

As best we can tell there was nothing meaningful that the substitute counsel could have done and he was there effectively for administrative purposes – on the facts of this case, because, “There is no colorable claim to prejudice in this case.”

On being detailed as substitute counsel post-trial the first step should be to make contact with the client. Only then can counsel be certain that . . . .

To work hard for you clients.

Labor Department employment statistics released Friday show that young veterans continue to have serious and growing problems finding work in a tight job market, while older veterans are doing better than the general population.

Thanx, Marine Times.

Judge Ed Carnes for the Eleventh Circuit in United States v. Rodriguez, No. 08-16696, Dec. 22, 2010: This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

H/tip to crimeandconsequences.com

A cruiser skipper who was fired for cruelty and mistreatment of her crew will go before a Navy board of inquiry Tuesday that will recommend whether she can continue her Navy service.

A Behanna update by Army Times:

The Army Clemency and Parole Board in Arlington, Va., will review First Lt. Michael Behenna’s case on Thursday, The Oklahoman reported Monday. It will be the second time this year the board has reviewed the case. After the first review, it reduced his sentence by five years. It was not immediately clear why the board was looking at the case again. On Dec. 9, the Army Court of Criminal Appeals will hear oral arguments in Behenna’s appeal. Behenna has said he failed to receive a fair trial because an expert witness retained by prosecutors never testified, but had information that could have cleared him. The NewsOK has a fuller report including some of the details of the offenses.

LA Times reports:

Pfc. David Lawrence faces a military hearing in Ft. Carson, Colo. His parents and attorney say he showed signs of mental instability before last month’s slaying in Kandahar.

Dayton Daily News reports:

A court-martial scheduled next week in Illinois for the Air Force Materiel Command’s former top enlisted man is being postponed, an Air Force spokeswoman said Monday. No new date for the court-martial of Chief Master Sgt. William C. Gurney was immediately announced. The Air Force’s charges against Gurney include adultery, dereliction of duty, maltreatment, indecent conduct, wrongful sexual contact, failure to obey an order or regulation, and misuse of official position.

Military.com reports:

A senior noncommissioned officer with the North Carolina National Guard will be leaving the service a stripe lighter as a result of a Guard and Army investigation into his wearing unauthorized unit patches, tabs, decorations and badges.

Army Times reports:

Staff Sgt. Francisco Carrillo was a squad leader on patrol in Iraq searching for weapons and insurgents, riding in the lead vehicle of a convoy when an improvised explosive device ripped through one of the Humvees, injuring his platoon sergeant, another squad leader in his company and the gunner. That was five years ago. Today, Carrillo is locked in a battle with the Army. He says he has suffered symptoms of post-traumatic stress disorder since he returned from the deployment in 2005. The Army says he’s lying. Carrillo, who has 18 years of service, is seeking medical retirement. But a panel of doctors at Madigan Army Medical Center said the California National Guardsman with the 649th Engineer Company lied in his Fit for Duty Evaluation and faked PTSD symptoms to collect the benefits that come with medical retirement.

The Press-Register reports:

The flight sergeant on duty when Airman Cory McCord of Troy, Alabama, shot himself to death Aug. 6, faces a court martial on charges she failed to keep McCord out of a secure building at the Grand Forks Air Force Base.