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Court-Martial Appeals

Here is a listing of new Army Base Names.

Now Then

Fort Barfoot Fort Pickett

Fort Novosel Fort Rucker

Fort Moore Fort Benning

Fort Liberty Fort Bragg

Fort Eisenhower Fort Gordon

Fort Walker Fort A. P. Hill

Fort Cavazos Fort Hood

Fort Gregg-Adams Fort Lee

Fort Johnson Fort Polk

 It's rare to win on a lack of factual sufficiency claim--we recently did this in the Ramirez case. 

The E-6 client was accused and convicted of possessing CP (contraband images) and distributing them on social media. Initially the trial judge had abated the trial because of lost critical evidence. The Government appealed that decision and the Air Force Court of Criminal Appeals reversed the military judge and trial proceeded. When we got the case on appeal we were able to see that the client was prejudiced because of the lost evidence. We also saw how weak the Government's evidence was so we raised both issues in our appeal. The Air Force court agreed with us that there was not enough evidence to sustain the conviction beyond reasonable doubt and dismissed the charges with prejudice. Result: No conviction, no Sex Offender Registration, back pay, no reduction, and the possibility of retention on active duty.

Is the prosecution appealing a decision of the judge in your case?

Under the UCMJ, the prosecution (or an alleged victim) can appeal a decision of the military judge that is in your favor. Recently, a military judge in one of our cases decided to supress statements of the client from being used against him by the prosecution. The prosecution appealed and we successfully defended the decision of the military judge in the client's favor. As civilian appellate defense counsel we know how to litigate prosecution appeals. Our arguments were persuasive and the prosecution decided not to appeal to the next level of appellate court. We set a new precedent in this case for future cases.

Does your military defense lawyer know what to do if the prosecution wants to appeal a decision by the judge at your trial--we do.

The Air Force Court of Criminal Appeals has set aside and dismissed with prejudice the conviction of our client charged with possessing and distributing CP (contraband images). They dismissed the charges because the decided the prosecution had not introduced sufficient evidence to prove the offenses beyond reasonable doubt. It is rare for a court of criminal appeals to dismiss charges because of "factual insufficiency." The client no longer has a conviction and does not have to continue to register as a sex offender.

The Army Court of Criminal Appeals has set aside the convictions of a Soldier accused of sexual assaults. The court found that the military judge had made a constitutionally serious error in ruling on Mil. R. Evid. 412 motion and the prosecutor had made a significant improper argument on findings. The court was also concerned about arguments made by the SVC.

Recently we successfully defended a client who was facing a prosecution appeal of a judge's decision. The judge had suppressed pretrial statements of the client and the prosecution appealed. We defended that client in the Navy-Marine Corps Court of Criminal Appeals and won. In the process we established a new legal principle applied in some "pretext" phone call/text situations. The prosecution decided not to appeal to the Court of Appeals for the Armed Forces.

Does your military defense lawyer know what to do when there is a double jeopardy situation. We do.

One of our clients recently had his first trial dismissed because of prosecution problems. The prosecution then decided to start again and do a retrial of the exact same charges. This move immediately raised the issue of a second trial being prohibited by the Double Jeopardy clause in the U.S. Constitution. Unlike the military defense counsel in United States v. Cabrera, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial--we have been successful. The military defense counsel did not do that in Cabrera and his DJ issue had to be resolved on appeal--an appeal during which he has been serving confinement as the result of a conviction in the second trial. We set the precedent in this case for filing a writ immediately rather than wait to see what happens. The prosecution later informed us that they did not intend filing an appeal with the Court of Appeals for the Armed Forces.

Have you, or a loved one, been convicted at court-martial and want to appeal? We can represent you before the Air Force Court of Criminal Appeals, the Army Court of Criminal Appeals, the Coast Guard Court of Criminal Appeals, the Navy-Marine Court of Appeals, or the Court of Appeals for the Armed Forces.

In 1991 I reported for duty as Deputy Director, Navy-Marine Corps Appellate Defense Division. I carried my own caseload in addition to supervising the full-time lawyers and a significant number of Reserve lawyers "drilling" with us. When I retired in 2000, I expanded my practice to include Air Force, Army, and Coast Guard cases, for a total of 21 years involved with court-martial appeals.

Did you get a new trial? Give us a call to discuss representation. Retrial cases come to mind because of a new result in a pending retrial I had: the client has an approved separation in lieu of trial. This means he is no longer a sex offender registrant and is no longer subject to trial by the military.

Are You a Medical Provider Accused of Sexual Offenses?

Here's another successful appeal for a medical provider: United States v. L, AFCCA (2018).

Findings and Sentence set Aside

I noted the case of S.where we were challenging the finding of guilty because there was UCI in the jury deliberations.

"At the beginning of deliberations on findings of appellant's court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, 'How does the Chief of Staff of the Army's current emphasis on sexual harassment affect the findings and our decision in this matter?' [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish "beyond a reasonable doubt that UCI . .... was not improperly brought to bear on any member during the findings phase of [appellant's] court-martial." As correctly noted by the DuBay military judge "[COL JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge's clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military judge." The UCI was a "palpable cloud throughout the deliberations" left to permeate in each panel member's decision-making process. "

Today (5 February 2018) the Army Court of Criminal Appeals agreed with us. When a military jury decides to convict a person because of sexual assault prevention politics and the Service public relations--that's unlawful command influence (UCI).

Findings and Sentence set Aside

When the government argues predisposition it should be careful of Hills. In United States v. Contreras the Air Force Court of Criminal Appeals has set aside the findings of guilty and the sentence for our client in February 2018. We now wait on the decision whether there will be a retrial. Last month we had good news for another client because the Army decided against retrial and he received his backpay.

Here is a link to the briefs and oral argument in United States v. Condon, a case that we are waiting for a decision by CAAF.

ACCA has made short-shrift of a prosecution appeal in one of our cases today (23 Nov. 17). In the middle of our September trial, the prosecution appealed a decision of the military judge effectively excluding some testimony. The ACCA summarily denied the appeal as being "without merit."

CAAF has granted another of my petitions in a case.

(Update 1 February 2018: briefs have been filed and we are waiting to see if CAAF will summarily reverse the Army Court of Criminal Appeals or when the oral argument would be held.)

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is, by the Court, this 16th day ofOctober 2017,


That said petition is hereby granted on the following issue:


Good news for the client, but sad.

[Update: 23 January 2018. A decision was made not to subject the client to a second prosecution, and he has received his pay "lost" while confined, in excess of $130,000.00.] Last year we took up the appeal of an Army sergeant. After reading the record of trial, I went to meet with the client at the JRCF, Fort Leavenworth, KS to hear from him. (I make every effort to visit an appellant client in person.) What he told me was supportive of some issues I'd already identified. But he had more to say about the work his military defense counsel had done--or not done. One of his points was that his counsel did not prepare for him to testify and told him would testify on short notice. We did some investigation and talked to various people who had not been contacted about the case, or who were subpoenaed to trial, but not called to testify.

We filed our brief alleging some legal and factual errors--and especially ineffectiveness of counsel (IAC). As part of the brief, we asked for a Dubay hearing to investigate the claims. After the government had filed its response with affidavits from the military defense counsel, the court ordered a Dubay hearing. A Dubay hearing is uncommon. The Order is here.

We represented the client at the Dubay hearing. The military judge issued his findings of fact and conclusions of law (which are here) Notably, he said:

36. In this case, I conclude that trial defense counsel were deficient in three areas. First, counsel were deficient in failing to present evidence about x's motives to engineer this prosecution and her repeated statements that she would make sure the appellant was punished. Second, counsel were deficient in failing to conduct a full investigation regarding x and her motives to fabricate. Third, counsel were deficient in failing to prepare the appellant to testify. In each of these three areas, counsel's performance fell below an objective standard of reasonableness.

37. Regarding evidence about x, there were witnesses who would have testified that she loathed the appellant and made several statements about ruining the appellant's life, making him pay, and pushing the Army to prosecute him. None of these comments were made in the context of the charged offenses; rather, the statements were made because of marital problems, financial problems, and the appellant's plan to divorce x. At trial, defense counsel failed to show the extent of xvitriol. As Mr. x and Mr. x testified at the hearing, x made erratic demands and threats. This evidence was not presented at trial.

[My colleagues and I are seeing an increasing number of cases where sexual assault allegations crop up at the time of a messy divorce and child custody issues.]

In another unusual move today, the Army Court of Criminal Appeals set aside the findings and sentence in a summary decision--no discussion. The client is now subject to retrial, and we will continue to represent him through this additional traumatic time.

The difficult case
where persistence pays

"Appeals" under UCMJ art. 69(b), or "reconsiderations" under UCMJ art. 69(a) are difficult to win. If you do not get a punitive discharge or at least a year confinement, the service JAG decides your appeal. Most of the time that means an appeal is denied except in very few cases. Today we received the good news in a UCMJ art. 69(a) reconsideration that The Judge Advocate General has referred the case to the Court of Criminal Appeals. This means that the client will now get a full and proper appeal of his issues and the validity of his convictions.

After the court-martial, the client was processed for separation. The first time the Board heard the case they declined to find misconduct because they did not believe a crime had been committed. Told to do it again, the Board still stated disagreement with the finding of guilty, but also recommended retention.

Do not be Discouraged

In United States v. Plant we were unsuccessful at the Air Force Court of Criminal Appeals. Reported below where we were successful before the Court of Appeals for the Armed Forces. Now, the Air Force court has taken action on the reassessment of the sentence and granted the full relief we asked for.

In the beginning, the client and his family were discouraged and did not think they could get any help on appeal.

Getting a Conviction Through any Means?

Because of the political and leadership pressures to get convictions in sexual assault cases, some prosecutors are resorting to almost any means they think necessary. In United States v. Garcia that included government misconduct by using UCI in their argument and arguing that Garcia should be convicted because he invoked his right to have a trial and right to confront the accusations. The result is that the Army Court of Criminal Appeals dismissed the sexual assault and forcible sodomy charges. The court did leave intact some minor sexual harassment allegations. But most importantly, the client does not have to register as a sex offender and is not a convicted rapist. The court noted:

It is fundamentally unjust to incriminate an appellant by improperly commenting on his invocation of a constitutional right. . . . During her rebuttal argument on findings, trial counsel made two improper references to appellant's exercise of his constitutional rights. --Wrong.


In light of the three factors in Simpson, we first conclude government counsel's multiple improper references to Army-wide efforts to respond to and prevent sexual assault created the appearance of unlawful command influence. As set forth below in our prejudice analysis, we conclude that the proceedings were unfair and that the government's persistent and improper references to Army policy were a source of an unfair trial. --Wrong.

Persistence Pays

On 5 November 2015, the CAAF issued an order in United States v. Pinkela. They accepted our arguments without further briefing or oral argument. Now we are on the way to getting the client a sentencing rehearing, and hopefully, he will get his retirement.

This makes three of four successful appeals before the Court of Appeals for the Armed Forces this year.

The Prosecution Overcharges

United States v. Plant. In this case, we challenged a conviction for child endangerment. The C.A.A.F. held that the evidence was legally insufficient and set aside the conviction.

United States v. Pinkela. The C.A.A.F. summarily reversed the ACCA decision and ordered ACCA to redo their Article 66, UCMJ, review.

United States v. Brown, Result – new trial.

United States v. Savala, 70 M.J.70 (2011). NMCCA found legal error but opined the error was harmless beyond reasonable doubt. On appeal to CAAF that court found the error was prejudicial and that the government did not establish the error was harmless beyond reasonable doubt. The CAAF ordered a retrial or dismissal. The command elected to accept an OTH separation in lieu trial. Thus Savala has no conviction and does not have to register as a sex offender.I represented Savala at trial and on appeal. After the court reversed his conviction and granted a new trial, the military decided could not prosecute him, so he was issued an administrative discharge.

United States v. Saylor, This was an amicus petition I and several others filed on behalf of the National Institute of Military Justice.

United States v. Dorman: 58 M.J. 295 (C.A.A.F. 2003).

United States v. Lee,54 M.J. 285 (C.A.A.F. 2000): Argued for amicus the National Institute of Military Justice. Question of quorum for CCA appellate judges.

United States v. USAF 0-3: Convicted of bigamy, use of false official documents, falsifying immigration-related documents.

King v. United States (May 4, 2000): Counsel for, and argued for amicus the National Institute of Military Justice. Writ-appeal petition. CAAF All Writs jurisdiction, prejudicial pretrial publicity, and Sixth Amendment right to effective assistance of counsel.

United States v. Weiss, 36 M.J. 224 (1993), aff'd Weiss v. United States, 510 U.S. 163 (1994). Challenge to the designation of military trial and appellate judges as violating the Appointments Clause, Article II, U.S. Constitution.

United States v. Jordan. Petition to the U.S. Supreme Court, cert. denied Jordan v. United States, 510 U.S. 1177 (1994).

United States v. Smith: 43 M.J. 390 (1996). Members challenge.

United States v. Saylor: 40 M.J. 715 (N.M.Ct.Crim.App. 1994). Case clarified the effect of post-trial misconduct on plea agreements and the procedures required to vacate a suspended sentence.

United States v. Collins: 39 M.J. 739 (N.M.Ct.Crim.App. 1994). Speedy trial issue under UCMJ, Article 10, 10 U.S. Code §810 (pretrial confinement delay). Case helped expand the rule for a showing of prosecutorial "diligence.".

United States v. Clemons: 39 M.J. 865 (N.M.Ct.Crim.App. 1994). BCD not an authorized punishment.

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Many years after retiring from the USN, I suddenly found myself in a very unwelcome legal matter with the Navy. It was a total shock and I was very concerned as to the impact this would have on me and my family. Philip was so helpful, truly a calming force, and his legal help was invaluable to me, I am so thankful that I availed myself of his services! Rob
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Mr. Cave saved my military retirement! His promise to me from day one was that he would fight as hard as he could he right the wring that had been done to me. And he did! I am so very thankful and grateful to him. He genuinely cared about me and made my case his priority. He used all his experience and knowledge to put forth a good defense. I am very pleased with him and will recommend him to anyone in need of an attorney. Crystal