U.S. Court of Appeals for the Armed Forces | Decided February 2, 2026

What Happened

The Navy court-martialed Aviation Structural Mechanic First Class Salvador Jacinto for sexually abusing his minor stepdaughter, E.B. A panel convicted him of rape of a child and three specifications of sexual abuse of a child, sentencing him to a bad-conduct discharge and eight years of confinement.

The case turned on a dramatic pre-trial discovery failure: the prosecution disclosed E.B.’s mental health records to the defense only on the eve of trial — records that defense counsel immediately called a “bombshell.” Those records showed that after E.B. accused Jacinto of abuse, a hospital admitted her for in-patient psychiatric treatment and a physician prescribed Thorazine, an antipsychotic medication. The defense argued this information directly attacked E.B.’s credibility, her memory, and her ability to accurately perceive events.

Despite that late disclosure, the military judge denied a continuance and the case proceeded to trial.

The Prolonged Appellate Fight (2018–2026)

This case traveled through courts for nearly eight years across six separate appellate decisions:

• Jacinto I & II (2020–2021): CAAF found the record incomplete and remanded for factfinding on whether E.B.’s physician actually diagnosed her with psychotic agitation.
• Jacinto III (2024): The lower court found the military judge abused his discretion in denying the continuance — but then held the error caused no prejudice.
• Jacinto IV–VI (2024–2025): CAAF ordered an affidavit from E.B.’s treating psychiatrist, Dr. Harwant Gill. When his affidavit proved “unresponsive,” CAAF remanded yet again.
• Final DuBay Hearing (2025): Dr. Gill testified that E.B. never exhibited psychotic agitation, never received Thorazine (the prescription was standard admissions protocol for all patients her age), and denied experiencing hallucinations or delusions.
• Final Decision (Feb. 2, 2026): CAAF affirmed the conviction.

The Core Legal Issues

1. Did the Military Judge Abuse His Discretion by Denying the Continuance?

Yes — all parties agreed the denial was error. The prosecution disclosed critical mental health records on the eve of trial, and the defense never had adequate time to investigate them. Every court that examined this question found the denial constituted an abuse of discretion.

2. Did That Error Prejudice Jacinto?

No — CAAF held the error harmless. Because Dr. Gill ultimately established that E.B. never suffered psychotic agitation and never received Thorazine, the records did not contain the exculpatory evidence the defense hoped to use. A continuance would not have given the defense any materially different ammunition. Under Article 59(a), UCMJ, courts grant relief only when an error “materially prejudices the substantial rights of the accused” — and CAAF found that bar unmet.

3. Did the DuBay Judge Violate Jacinto’s Right to Confront Dr. Gill?

The DuBay judge allowed only the judge himself to question Dr. Gill and shut the defense out entirely. CAAF acknowledged its own precedent requires cross-examination at DuBay hearings as a matter of due process (citing United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) and United States v. Levite, 25 M.J. 334). Nevertheless, CAAF held any Confrontation Clause violation was harmless beyond a reasonable doubt for three reasons:

• The defense’s proposed questions would not have produced evidence about E.B.’s mental state before her hospitalization.
• Dr. Gill already acknowledged his testimony rested on medical records, not personal memory — making cross-examination on memory limits redundant.
• The DuBay judge already knew about an ex parte communication because Dr. Gill had emailed him directly about E.B.’s counsel attempting to dissuade him from testifying.

4. Did the Lower Court Comply with CAAF’s Remand Orders?

Yes. CAAF held the CCA and DuBay judge answered both remanded questions — why Thorazine was prescribed and whether E.B. exhibited psychotic agitation — and declared the compliance issue moot once the factual record closed.

Key Takeaways for Military Accused

This case raises several critical issues that defense counsel must understand:

Late Discovery Is Reversible Error — But You Must Prove Harm. The prosecution’s late disclosure of mental health records was wrong, and courts said so. But Jacinto could not win relief because the underlying records ultimately failed to support his theory. Counsel must aggressively pursue the substance of late-disclosed evidence, not just the procedural violation.

Mental Health Records of Accusers Can Devastate Credibility. Evidence of psychotic agitation, hallucinations, or antipsychotic medication directly attacks a witness’s ability to accurately perceive and recall events. Courts take these records seriously enough to order multiple DuBay hearings here. Defense counsel must file for in camera review under Military Rule of Evidence 513 early and persistently.

DuBay Hearings Require Full Due Process. CAAF explicitly reaffirmed that DuBay hearings must afford accused servicemembers notice, the right to be heard, and the right to cross-examine witnesses. Defense counsel must object loudly and preserve the record when DuBay judges restrict cross-examination.

The Confrontation Clause Applies Even Post-Trial. Jacinto raised a real Confrontation Clause violation. CAAF found it harmless — but the same fact pattern with a different underlying record could change the outcome entirely.

How Phil Cave and Nathan Freeburg Can Help

Cases like Jacinto demand experienced military defense counsel who understand the intersection of discovery law, psychiatric evidence, and appellate procedure. Phil Cave and Nathan Freeburg at CAAFlog / Cave & Freeburg represent servicemembers at exactly these pressure points.

Late Discovery and Brady/Giglio Violations

When the prosecution discloses critical evidence late — or not at all — Cave and Freeburg know how to immediately move for a continuance, preserve the error for appeal, and build a record that demonstrates actual prejudice. Jacinto shows that losing the motion is not the end: the appellate record matters enormously.

Victim Mental Health Records (MRE 513 Motions)

Accessing a victim’s mental health records requires navigating Military Rule of Evidence 513 — a complex, in camera review process. Cave and Freeburg regularly litigate these motions, understanding exactly what evidence of psychotic disorders, hallucinations, or antipsychotic treatment can do to a government witness’s credibility at trial.

DuBay Hearings and Post-Trial Litigation

Jacinto spent years in post-trial proceedings. Most defense counsel never litigate a DuBay hearing. Cave and Freeburg have the appellate experience to navigate these specialized proceedings, protect the client’s due process rights, and challenge improper restrictions on cross-examination.

Confrontation Clause and Constitutional Challenges

When a military judge restricts cross-examination of any witness — including expert witnesses at post-trial hearings — Cave and Freeburg recognize the Confrontation Clause issue, object on the record, and preserve it for appeal at every level through the CCA and CAAF.

Sexual Assault Defense

Jacinto’s conviction rested entirely on E.B.’s credibility. Cave and Freeburg understand that in Article 120b cases, attacking that credibility through lawful means — motive to fabricate, mental health history, prior inconsistent statements — forms the heart of the defense. They build that strategy from day one, not on the eve of trial.

Bottom Line

United States v. Jacinto stands as a cautionary tale about the limits of appellate relief. The prosecution made a serious discovery error. The military judge compounded it by denying a continuance. Courts condemned both decisions — and still affirmed the conviction. The lesson: experienced defense counsel must fight these battles at trial, before the evidence record closes. Phil Cave and Nathan Freeburg bring exactly that experience to servicemembers facing court-martial, DuBay proceedings, or appeals at any stage.

This analysis is for informational purposes. It does not constitute legal advice. Servicemembers facing military justice proceedings should consult a qualified military defense attorney. You can reach us through our main website at court-martial.com.

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.

An Article 32 investigation is intended to establish if “probable-cause” exists before a charge can be referred to a court-martial. The “old” Article 32 hearing was an adversarial hearing where the accused could produce evidence, be represented by counsel, could remain silent, give an unsworn statement, or testify, and counsel could cross-examine witnesses.

Some of the benefits for the accused and military defense counsel included:

1. Early Case-theory testing
   By exposing factual weaknesses at Article 32, defense counsel gains insight into the government’s trial strategy and can refine their own from the outset.
2. Leverage for pretrial negotiations
   A strong Article 32 showing may induce the convening authority to offer a pretrial agreement or to dismiss marginal charges.
3. Preservation of key issues
   Objections or challenges raised at Article 32 (e.g., to evidence or jurisdiction) may bolster later motions or appellate claims.
4. Resource for trial preparation
   Transcripts, exhibits, and witness lists generated at Article 32 form a ready investigative roadmap for the defense team.

That investigation benefited the prosecution as well as the defense. Sadly, those who decided to change Article 32 failed to understand the basics and how the prosecution team (and alleged victims) could benefit from it. Congress enacted the change to Article 32 because of political pressure.

Sure enough, what many of us military defense counsel said has come true.

The Military Justice Review Panel, established by Congress in Article 146 reported in 2024 how useless Article 32 has become.[1] [2]

The 2023 MJRP Interim Assessment of Preliminary Hearings and Prosecution Standards, concluded that Article 32 hearings are currently of limited utility to the prosecution, defense, and referral authority. On the related issue of the standard by which a convening authority or special trial counsel should refer a case to trial, the Panel recommended adopting a standard for prosecution consistent with the United States Attorney General’s Justice Manual.

The MJRP also assessed and recommended that Congress amend Article 32 with a package of reforms that would “(1) allow for a reasonable level of discovery at the preliminary hearing while retaining victim protections, (2) require a certification process for the preliminary hearing officer, and (3) preclude referral if the preliminary hearing officer determines that a charge lacks probable cause, subject to a right of appeal to a military judge and without prejudice to the government referring the charge anew.”

So how does all of this compare?

1. Historical “Full-Inquiry” Article 32 (Pre-FY14/NDAA 2014 – and thus pre-2019)

Before Congress’s sweeping reforms in the National Defense Authorization Act for FY 2014, Article 32 hearings functioned as evidence-rich, adversarial investigations akin to civilian preliminary hearings or grand juries. Under the Manual for Courts-Martial:

• Broad discovery and fact-finding: The hearing officer could compel production of documents and live testimony from both prosecution and defense witnesses, and the parties could conduct “searching investigations” into every contested fact JAG Legal Center and School.
• Robust adversarial testing: Both counsel examined witnesses under oath, argued evidentiary questions under the Military Rules of Evidence, and developed the theory of the case in real time Dacipad.
• Screening function: A no-probable-cause finding by the preliminary hearing officer would almost always prevent referral to a general court-martial, protecting the accused from baseless charges JAG Legal Center and School.

2. Modern “Probable-Cause-Only” Article 32 (Post-FY14/NDAA 2014 – and post-2019)
Since the FY 2014 amendments took effect (and remain largely in force today), Article 32 hearings have been narrowed to a paper-based probable-cause check:

• Elimination of discovery: Congress expressly removed “discovery” as a purpose of the hearing, limiting evidence to what the government chooses to present by summary or affidavit MJRP.
• Advisory, non-binding recommendations: Even if the preliminary hearing officer finds no probable cause, the convening authority may still refer charges, rendering the hearing’s factual findings largely moot MJRP.
• Decline of live testimony: Empirical data show that live witness appearances plummeted from nearly 98 % of hearings in FY 2014 to about 36 % by FY 2018, as summaries replaced in-person examination JAG Legal Center and School.

3. Core Deficiencies of the Current Article 32 Regime

1. Erodes Fairness and Fundamental Rights
   Without meaningful discovery or live testimony, defense counsel cannot test the government’s case before referral, undermining both due-process and the accused’s “bulwark” against unfounded charges DacipadJAG Legal Center and School.
2. Fails to Screen Baseless Charges
   Advisory findings mean that specifications lacking probable cause routinely proceed to trial, clogging dockets and subjecting servicemembers to unwarranted stress and expense MJRP.
   Reduces Utility to Convening Authorities
3. Referral authorities receive little more than a one-page recommendation, often based on untested summaries, hampering informed disposition decisions MJRP.
4. Creates Systemic Inefficiency
   The “paper drill” format shifts fact-finding into the trial phase, prompting last-minute motions, evidentiary hearings, and potential appellate issues—delaying justice and increasing costs

[1] As of the end of April 2025, it appears the Secretary of Defense has put the Congressionally mandated MJRP in hiatus.

[2] 21 June 2023 Report; 8 December 2023 Report.

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.

• Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
• Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.
• Resource Management: Statutes of limitations play a crucial role in efficiently managing law enforcement and court resources. These institutions have limited resources, and prioritizing recent crimes helps them focus on cases with fresher evidence and more readily available witnesses.
• Public Interest: Statutes of limitations are not just about justice; they also consider the public interest. Allowing people to move on with their lives after a certain period, especially for less serious offenses, benefits society. This broader impact is an important aspect of these legal concepts.
• Serious crimes often have no statute of limitations. This includes offenses like murder, war crimes, and crimes against humanity.
• Statutes of limitations can be ‘tolled’ (paused) under certain circumstances. For instance, if the defendant flees the jurisdiction or if the crime is concealed, the statute of limitations may be extended. This means that the clock on the statute of limitations stops running during these periods, ensuring that the defendant cannot escape justice by simply waiting out the time limit.

The statute of limitations (SoL) in Article 43, UCMJ, limits the ability to prosecute specific charges at court-martial. While the general rule is five years, many offenses, such as sex offenses, have longer SoLs. For example:

• There is no SoL for AWOL in times of war, murder, rape, sexual assault, rape or sexual assault of a child, maiming of a child, kidnapping of a child, or any other offense punishable by death, or
• having committed a child abuse offense against a child and sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period.

It is important for military defense counsel to always check the SoL for each specification and make a motion to dismiss if appropriate. However, keep in mind several points (1) the SoL can be waived, usually as part of a pretrial agreement (PTA), or (2) can be waived or forfeited by defense counsel not making a timely motion to dismiss.

A common term in a PTA is that the accused will “waive all waivable” motions. The accused needs to understand how that bargaining chip works. And military judges have to be careful when that comes up. It is unclear what happened during the PTA discussions in Espejo. Espejo was charged with multiple sexual assaults of a child over time. He pleaded guilty with a PTA and was sentenced to 50 years confinement. The main issues were:

Statute of Limitations: There is no discussion during the trial or the PTA proceeding about the applicability of the SoL to one of the charges. It appears neither the defense and prosecution lawyers nor the judge realized there was an SoL problem with one of the specifications. Ergo, the military judge’s error in accepting a guilty plea to a charge outside the statute of limitations is a serious issue. Had the military judge asked the right questions, there’s possibly a valid waiver would have been identified and thus no issue on appeal. However, there was an error, and upon sentence reassessment, the confinement was reduced to 43 years.

Plea Agreement: The plea agreement contained language that violated the Appellant’s post-trial and appellate rights. Specifically, the language in question restricted the Appellant’s ability to appeal the case. This language was struck from the agreement. The court opinion reads as if this was the prosecution being creative in bargaining, which didn’t succeed.

Military judges in the various military services play a crucial role in defining reasonable doubt to their panels (juries). For instance, the Army and the Coast Guard judges instruct the panel that a “reasonable doubt is a fair and reasonable hypothesis other than that of guilt.” Soldiers and Coasties are guided to acquit if there is another rational, innocent explanation for the facts. On the other hand, the Air Force, Navy, and Marine Corps use different language, telling the panel that they must be “firmly convinced” or similar language to convict.

The highest standard of legal proof in criminal trials is beyond Reasonable Doubt. This means that the prosecution must present evidence strong enough to convince a reasonable person that there is no other logical explanation for the facts except that the defendant committed the crime. This demanding standard makes it less likely that someone will be convicted based on weak or insufficient evidence. The evidence must firmly convince the jury of the defendant’s guilt. If there is any reasonable uncertainty, the jury is instructed to acquit. This standard recognizes the gravity of depriving someone of their freedom, or worse, their life, and requires that the evidence be overwhelmingly convincing.

See our video for more, presented by Nathan Freeburg, our lead trial attorney.

The reason for the high burden of reasonable doubt on the prosecution is the severe consequences of a court-martial conviction. If you are convicted at a court-martial, the implications are grave. You could lose your retirement and practically all benefits of your military service, go to prison for years, have to register as a sex offender, and, in a capital trial, lose your life.

The reasonable doubt standard ultimately unites with the presumption of innocence to create a sound defense at a court-martial. The presumption of innocence means that no matter how many bad things are said about you, you remain innocent until (and only if) the court-martial president says “Guilty.” The court-martial panel can only say “Guilty” if the prosecution has presented evidence proving your guilt beyond a reasonable doubt. Our job as your military defense attorney is to persuade the jury that the prosecution didn’t and couldn’t meet their burden.

Sometimes I see military prosecutors proudly proclaim to the panel: “I’m Major or Lieutenant Commander so and so, and we represent the United States.” When this happens, I get up and say to the panel, “actually it is you that represents the United States and it is your job to apply the presumption of innocence and the reasonable doubt standard that our country requires.”

In a court-martial, the stakes are incredibly high. However, the reasonable doubt standard is everything when it comes to protecting your innocence. This standard, upheld by the legal system, provides a sense of reassurance and security in the face of such high stakes.

As military defense counsel, we at Cave & Freeburg, LLP, have the experience to help ensure the best opportunity for the jury to have some doubt that can lead to a not guilty finding. Visit our court-martial and court-martial appeal pages for some of our many successes. As military defense attorney’s we follow several key strategies to introduce reasonable doubt and challenge the prosecution’s case, here are some examples:

1. Attacking the Evidence:

• Highlighting inconsistencies: Discrepancies in witness testimonies, conflicting forensic evidence, or gaps in the timeline can all raise doubts about the prosecution’s narrative.
  Challenging the reliability of evidence: The defense can question the methods used to collect and analyze evidence, suggesting potential contamination, errors, or biases in the process.
  Presenting alternative explanations: Offering alternative interpretations of the evidence that are consistent with the defendant’s innocence can create doubt about the prosecution’s version of events.

2. Undermining Witness Credibility:

• Impeaching witnesses: The defense can cross-examine witnesses to expose inconsistencies in their statements, biases, or motives that might affect their testimony.
• Presenting evidence of prior misconduct: If a witness has a history of dishonesty or criminal behavior, the defense can use this information to cast doubt on their credibility.
• Introducing alibi witnesses: Witnesses who can place the defendant at a different location at the time of the crime can create doubt about their involvement.

3. Focusing on the “Burden of Proof”:

• Reminding the jury of the presumption of innocence: The defense emphasizes that the defendant is innocent until proven guilty and that the burden of proof rests entirely on the prosecution.
• Highlighting gaps in the prosecution’s case: If the prosecution fails to address key elements of the crime or leaves unanswered questions, the defense can argue that this creates reasonable doubt.
• Emphasizing the high standard of proof: The defense reminds the jury that the prosecution must prove guilt “beyond a reasonable doubt,” not just show that the defendant is probably guilty.

4. Presenting an Alternative Narrative:

• Offering a different version of events: The defense may present a theory of the case that is consistent with the evidence but points to a different perpetrator or suggests that the defendant acted in self-defense or under duress.
• Providing a plausible motive for someone else: If the defense can suggest a motive for another individual to commit the crime, it can raise doubts about the defendant’s guilt.

5. Utilizing Expert Testimony:

• Challenging forensic evidence: Defense experts can offer alternative interpretations of forensic evidence or highlight limitations in the techniques used.
• Providing alternative explanations for the defendant’s behavior: Experts in psychology or other fields can offer explanations for the defendant’s actions that are consistent with innocence.

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.

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.

Under the Uniform Code of Military Justice (UCMJ), military defendants have the right to be represented by counsel at trial. If a defendant believes that their defense counsel provided them with ineffective assistance, they can raise this claim on appeal. The standard for evaluating claims of ineffective assistance of counsel in a court-martial is the two-part test established in Strickland v. Washington, a case decided by the U.S. Supreme Court in 1984.

Under the Strickland test, the defendant must show that their counsel’s performance was deficient and that this deficient performance prejudiced the outcome of the trial. Deficient performance means that the attorney’s representation fell below an objective standard of reasonableness, and prejudice means that there is a reasonable probability that, but for the deficient performance, the outcome of the trial would have been different.

If a military defendant successfully raises a claim of ineffective assistance of counsel, the remedy will depend on the specific circumstances of the case. The remedy could include a new trial, a reduction in sentence, or some other form of relief.

The appeals court will review claims of IAC de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (To establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice. United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016). You should be aware that appellate courts strongly presume the counsel gave reasonable professional assistance. Also, you must show “a reasonable probability that, but for counsel’s [deficient performance] the result of the proceeding would have been different.” See United States v. Cueto, 82 M.J. 323, 327 (C.A.A.F. 2022).

Your military appellate defense counsel can argue the cumulative effect of various errors when those errors aren’t necessarily significant. Also, in Cueto, the court said that

Perhaps in a rare case an attorney’s overall performance could be deficient even though the attorney did not make specific errors. See, e.g., People v. Raosto, 50 A.D.3d 508, 509, 856 N.Y.S.2d 86 (N.Y. App. Div. 2008) (holding that a defense counsel’s overall performance was deficient where the defense counsel “displayed general carelessness and inattention throughout the trial,” “appeared to be confused,” and was generally unsuccessful in cross-examining witnesses). But such cases usually would arise only when “the defendant can point to a long series of questionable omissions by counsel” that “were not simply the product of human fallibility, but the result of a lack of conscientious effort.” Wayne R. LaFave et al., Criminal Procedure § 11.10(c) (4th ed. 2015).

Ineffectiveness claims can relate to pretrial preparations and advice on guilty plea negotiations, for action or inaction during trial, and for actions or inactions during the sentencing case.

United States v. Scott United States v. Scott, 2018 CCA LEXIS 522 (A.C.C.A., Oct. 30, 2018) aff’d 61 M.J. 79 (C.A.A.F. 2021), is an example of alleged military defense counsel failure during sentencing. But the courts decided the accused was not prejudiced based on the conduct of which convicted and other mitigating evidence in the record.

It is important to note that a claim of ineffective assistance of counsel is a complex legal issue. Anyone facing a court-martial should consult with an experienced military defense attorney to discuss their legal options.

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.

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.

The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.” U.S. Const. amend. VI. One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315 (1974). This is the“principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316. A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.” United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted). Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’” Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).

Here’s what the defense wanted to XE on and what the USA had successfully excluded by a motion in-limine, as objectionable under FRE 403.

Before Defendant’s trial began, the government filed a motion in limine to prohibit Defendant from offering evidence concerning a prior determination made by a different federal district court judge that the MTD inspector was not credible. In United States v. Variste, No. CR 06-1349 BB (D.N.M.), the district court issued a suppression order containing a finding that the court did not believe the inspector’s testimony. Specifically, the Variste court found: “This Court does not believe [the inspector] detected the odor of raw marijuana emanating from the back of the trailer because he did not follow up and that information was not communicated to any other law enforcement personnel involved or given as a basis for any subsequent stop.”

The court found this to be an issue of first impression within the Tenth, so:

Although we have not addressed the issue of whether past judicial credibility determinations are admissible under Rule 608(b), several of our sister circuits have done so and held that they are. United States v. Cedeño, 644 F.3d 79, 82-83 (2d Cir.), cert denied, 132 S. Ct. 325 (2011); United States v. Dawson, 434 F.3d 956, 957-59 (7th Cir. 2006) . . . United States v. Whitmore, 359 F.3d 609, 619-22 (D.C. Cir. 2004).

The court concluded that the proposed cross-examination was “relevant and highly probative.” The court then analyzed a number of factors to find that there was constitutional error in excluding the proposed evidence. After an HBRD analysis the case was returned for a new trial.

Any CID, NCIS, OSI, CGIS agents out there who have testified and a military judge (perhaps extraordinarily so) has found them not credible in a prior case? Discovery?