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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.

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 general standard of review for a government certificate for review under the Uniform Code of Military Justice (UCMJ) is governed by Article 67(a)(2), UCMJ (10 U.S.C. § 867(a)(2)), which grants the U.S. Court of Appeals for the Armed Forces (CAAF) jurisdiction to review decisions of the service courts of criminal appeals (CCAs) upon certification by the Judge Advocate General (JAG) of the respective service.

Standard of Review for Government-Certified Issues

1. De Novo Review for Legal Issues:
   • CAAF generally applies a de novo standard of review when considering legal issues presented under a certificate for review. This applies to questions of statutory interpretation, constitutional law, and other legal determinations made by the lower courts.
   • See United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012) (“Questions of law are reviewed de novo.”).
2. Deference to Factual Findings:
   • When the case involves factual determinations by the service courts of criminal appeals (CCAs), CAAF generally applies a clearly erroneous standard. The court gives deference to the lower courts’ factual findings unless they are unsupported by the record or clearly erroneous.
   • See United States v. Burris, 78 M.J. 280 (C.A.A.F. 2019) (“We will not overturn the factual determinations of the lower court unless they are clearly erroneous or unsupported by the record.”).
3. Abuse of Discretion for Procedural and Evidentiary Rulings:
   • When reviewing matters involving procedural decisions, evidentiary rulings, or discretionary rulings by the trial court (such as rulings on expert witnesses, sentencing decisions, or admission of evidence), CAAF applies an abuse of discretion standard.
   • See United States v. Feliciano, 76 M.J. 237 (C.A.A.F. 2017) (holding that evidentiary rulings are reviewed for abuse of discretion).

Limitations on CAAF’s Review Authority

• CAAF’s review is limited to the specific issues certified by the JAG unless the accused also files a petition for review on separate issues under Article 67(a)(3), UCMJ.
• If the CCA’s decision is based on independent grounds not related to the certified issue, CAAF may decline to rule on the issue.
• CAAF does not generally reweigh evidence or substitute its judgment on witness credibility unless there is a legal deficiency.

Precedents from CAAF Regarding Government Certificates of Review

• United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008): CAAF’s authority under a government certificate of review is limited to the specific issues certified by the JAG.
• United States v. Adams, 63 M.J. 223 (C.A.A.F. 2006): The lower court’s ruling will generally be upheld unless it is “arbitrary, capricious, or an abuse of discretion.”
• United States v. Jones, 78 M.J. 37 (C.A.A.F. 2018): When a case presents a mixed question of law and fact, the legal conclusions are reviewed de novo, while the factual findings are reviewed for clear error.

Conclusion

When CAAF reviews a case under a government certificate of review, it generally applies:

• De novo review for pure legal questions.
• Clearly erroneous standard for factual determinations.
• Abuse of discretion standard for procedural and evidentiary matters.

An important issue in such “appeals” is whether the prosecution is asking CAAF to find new facts or reinterpret the facts–its complex, and something we as military defense lawyers are familiar with.

A key appellate case supporting the proposition that the Court of Appeals for the Armed Forces (CAAF) does not generally reweigh evidence or substitute its judgment on witness credibility unless there is a legal deficiency is United States v. Wheeler, 76 M.J. 564 (C.A.A.F. 2017).

Rule from Wheeler (2017)

In United States v. Wheeler, CAAF reaffirmed that it does not engage in reweighing evidence or making independent determinations of witness credibility, stating:

“It is the duty of the factfinder, not this Court, to determine the credibility of witnesses and weigh the evidence presented at trial. We will not disturb such findings unless there is a clear legal error or the findings are unsupported by the record.”

— United States v. Wheeler, 76 M.J. 564, 568 (C.A.A.F. 2017).

Other Supporting Cases

• United States v. Rosario, 76 M.J. 114 (C.A.A.F. 2017):
  • Held that CAAF does not reassess credibility determinations unless there is a legal deficiency, noting that the fact-finder’s determinations are given great deference unless unsupported by the record.
• United States v. Beatty, 64 M.J. 456 (C.A.A.F. 2007):
  • Stated that appellate courts do not reweigh evidence but rather assess whether the court below had a basis in law and fact for its conclusions.
• United States v. Satterly, 74 M.J. 544 (C.A.A.F. 2015):
  • Affirmed that CAAF does not second-guess factual findings or witness credibility assessments unless they are “clearly erroneous” or based on incorrect legal standards.

Conclusion

CAAF follows the principle that credibility determinations and factual findings rest with the factfinder (trial court or CCA), and appellate review is limited to assessing whether there was a legal deficiency, such as insufficiency of evidence, misapplication of law, or due process violation. The case of United States v. Wheeler, along with Rosario and Beatty, directly supports this appellate principle.

A most interesting questions is what can CAAF review and how may it do that when a CCA has dismissed a charge because it is not factually sufficient to support a finding of guilty–stated another way, the appeals court is saying the person should not have been found guilty. The Government likes to certify these cases because it doesn’t like the result.

When the certified issue relates to a Court of Criminal Appeals (CCA) finding of factual insufficiency, the U.S. Court of Appeals for the Armed Forces (CAAF) applies a deferential standard of review and does not reassess the factual sufficiency of the case de novo. Instead, its review is limited to determining whether the CCA applied the correct legal standard and whether its decision is clearly erroneous or unsupported by the record.

Standard of Review for a CCA’s Factual Insufficiency Determination

Under Article 66(d), UCMJ (10 U.S.C. § 866(d)), CCAs are required to conduct a factual sufficiency review by independently weighing the evidence and determining whether the conviction is correct beyond a reasonable doubt. If a CCA finds the evidence factually insufficient and sets aside a conviction, CAAF’s review of that decision is highly deferential.

• United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002):
  • CAAF does not have the authority to review a CCA’s factual sufficiency determination de novo. Instead, it reviews whether the CCA applied the correct legal standard and whether its factual determination is clearly erroneous.
  • “Once the Court of Criminal Appeals determines that the evidence is factually insufficient, we are bound by that determination absent clear error or application of an erroneous legal standard.”
• United States v. Smith, 76 M.J. 524 (C.A.A.F. 2017):
  • Reaffirmed that CAAF does not reweigh evidence or reassess credibility when reviewing a CCA’s factual sufficiency determination.
  • “The Courts of Criminal Appeals have unique fact-finding powers under Article 66, UCMJ, which we do not disturb unless their decision is clearly erroneous or based on a misapplication of the law.”
• United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010):
  • Held that CAAF’s review of a CCA’s factual sufficiency determination is limited to ensuring that the CCA applied the correct standard under Article 66, UCMJ, and does not substitute its own judgment for that of the CCA.

Key Points About CAAF’s Standard of Review in Certified Cases Involving Factual Insufficiency

1. Highly Deferential Standard:
   • CAAF does not reassess factual sufficiency but only reviews whether the CCA applied the correct legal standard.
2. Clearly Erroneous Review:
   • CAAF will only reverse a CCA’s finding of factual insufficiency if it is clearly erroneous or unsupported by the record (Washington, Smith).
3. Legal Standard Review:
   • If a CCA misapplies Article 66(d), UCMJ, or fails to properly conduct a factual sufficiency review, CAAF can intervene (Nerad).

Conclusion

If a government certificate for review challenges a CCA’s factual insufficiency determination, CAAF does not reweigh the evidence but only ensures the CCA applied the correct legal standard and that its decision was not clearly erroneous. This principle has been upheld in Washington, Smith, and Nerad.

Would you like a case-specific analysis or further discussion on a particular aspect–contact the military defense lawyers at Cave & Freeburg, LLP, and we’ll see if we can help.

United States v. Brassfield, __ M.J. ___ (Army Ct. Crim. App. 2024) (en banc)

The court reaffirms that a servicemember accused of assault against their child may raise the defense of “it was parental discipline.” The definition of what is or isn’t criminal corporal punishment has changed over the years. The Court of Military Appeals (CMA) (predecessor to the Court of Appeals for the Armed Forces (CAAF)), said so in United States v. Brown, 26 M.J. 148 (1988). The CMA adopted a two-part test from the Model Penal Code.

1. The force is used to safeguard or promote the welfare of the minor, including the prevention or punishment of his misconduct and
2. the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, mental distress, or gross degradation.

The use of parental discipline is an affirmative defense. When there is some evidence of an affirmative defense, the military judge is obligated to instruct the members (jury) about the defense so they can consider it. For example, in United States v. Rich, 79 M.J. 472, CAAF said the military judge must give instructions for any special defense. In United States v. Davis, 76 M.J. 224, CAAF makes clear that an instruction on that defense is required where the evidence reasonably raises a special (affirmative) defense.

These are matters a military defense counsel should know.

One of the obligations of a military defense counsel is to make sure the jury is properly told what the law is and what they can consider in favor of the defense. Sometimes, the defense counsel doesn’t do that. The good news is that in United States v. MacDonald, 73 M.J. 426 and some other cases, the appellate courts say that “the military judge has a sua sponte duty to instruct the members on that defense; a defense is reasonably raised when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose).”

If you are accused of assault on your child, talk to us, or your military defense counsel about what the prosecution has to prove and how you might defend against the charges. The lawyers and Cave & Freeburg, LLC, are experienced in these and other cases.

The prosecution has to prove that you assaulted the child, that there was an injury. In defense, you have to show that you didn’t intend to have the punishment be one of these factors: death, serious bodily injury, disfigurement, extreme pain, mental distress, or gross degradation, and/or you can show you had no idea your physical punishment could cause one of those factors. Keep in mind that your conduct is evaluated under the objective standard of reasonableness.

For example, a slight slap with a belt might be OK, but if the body was hit with the buckle end, that might be viewed as unreasonable punishment.

In Brassfield, the evidence showed multiple bruising from an Army web belt which left signs of the “whipping” several days later.The father testified that he was aiming for the buttocks, but his sons kept jumping around so the belt hit them elsewhere.

The military judge found that the appellant’s subjective intent was to promote the boys’ welfare and punish them for stealing of money from their stepmother, and the repeated lies.” The military judge also found, however: that the force used was objectively unreasonable and excessive. Basically, the accused’s directing his children to remove their clothing before striking them, the nature and extent of injuries to the children’s bodies, the locations of the injuries on their bodies, and the extreme pain described by the children.

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

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

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

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

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

A specific case-–United States v. Cabuhat

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

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

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

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

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

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

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.

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.

There are several rules set out in the Manual for Courts-Martial that your military lawyer or civilian defense counsel knows about. The rules are contained in Rule 701.

Special defenses.

Rule 701(b)(2) is reasonably straightforward and requires notice “before trial” of

• An alibi defense. Basically, you were somewhere else than at the place of the alleged offense so you couldn’t be the person who committed the offense.
• A lack of mental responsibility (LMR) defense. Generally, this means that at the time of the alleged offense you had
  • “a severe mental disease or defect, and
  • was unable to appreciate the nature and quality or the wrongfulness of your acts.
  • An innocent ingestion defense. Generally, this comes up most frequently when someone tampers with a drink or food. Your military defense counsel will be able to discuss the ways in which you unknowingly or unintentionally ended up with drugs in your body.
  • The notice requires information about the time, place, and witnesses to the defense. This includes expert witnesses who will testify about an LMR at the time of the offense or at trial.
    • It is my view as a military defense counsel that you do not have to give everything to the prosecution at this stage, but there are several other rules that later will require you to give more information such as any witness statements you have.

Evidence on the merits.

If, repeat if, your military defense lawyer has submitted a discovery request to the prosecution then Rule 701(b)(3) requires you to disclose evidence you intend to use the item in the defense case-in-chief at trial. I take a narrow view of this rule. Please note that all competent military defense counsel is usually going to submit a detailed discovery request on your behalf. I have in a couple of cases not submitted a written discovery request purposefully so Rule 701(b)(3) doesn’t apply. This is tricky because you are relying on the prosecutor to provide Brady material and discovery that is required of them.

If you have the evidence in your possession, custody, or control, and

You will present the evidence through a defense witness, a certified copy of a document, or judicial notice, you must provide it before trial on the merits, and the prosecution asks for it. If the prosecutor doesn’t ask you don’t have to give. I will say, however, that it is best to give anyway. If you don’t the prosecutor will whinge to the judge and the judge will be unhappy because there’s a delay in moving the trial forward. Usually, any “anger” is directed to the defense counsel even though it is the prosecutor’s fault for not asking.

What is the defense case-in-chief?

• The prosecution has rested their presentation of evidence, and
• it is the defense’s time to call witnesses.

That is your case-in-chief period.

• In my view, you do not have to disclose anything to be introduced through the accused’s testimony until he actually takes the stand. This is because his right to remain silent protects that information. When he takes the stand the right to silence is waived on the issues about which the accused testifies as well as the attorney-client privilege.

Sentencing.

Unfortunately, the military justice process requires that your defense counsel prepare a sentencing case in the event of a conviction. In the process, your military defense lawyer will gather documents (from your service record) and statements from people who would be rehabilitation and character witnesses.

Under Rule 701(b)(1)(B) your defense counsel must provide a list and contact information for witnesses and also allow the prosecution to “inspect” any written materials. Technically, to inspect means to be allowed to read and review. But the common practice is for each side to share copies of any documents and statements.

Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 12 soldiers and a civilian at Fort Hood last month, won’t get the two additional military lawyers his defense team has requested. John P. Galligan, the retired Army colonel who is representing Maj. Hasan, asked the Army earlier this month to add the veteran legal officers to the defense team. In addition to Mr. Galligan, Maj. Hasan has a military-appointed defense counsel, Maj. Christopher Martin. But Mr. Galligan said Friday night that the Army had denied his request, although he may be able to ask for different officers to join the defense.

The IMC rules allow for a request to appoint a named military attorney, and the commander can make a discretionary decision to allow, Major Martin the current military defense counsel to remain on the case. Thus the Army retains control over who can represent Major Hasan, while at the same time having unfettered discretion on who and how many trial counsel to assign the case.

Officials at Fort Hood couldn’t immediately be reached for comment. The Army has several lawyers working for the prosecution, including Col. Michael E. Mulligan, a high-ranking prosecutor with experience in death-penalty cases.

The Wall Street Journal reports.