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Send us a text This week, Sam and Trevor discuss four of the latest Court of Appeals for the Armed Forces opinions. The first case they cover is United States v. Malone, No. 25-0140, 2026 CAAF LEXIS 62 (C.A.A.F. Jan. 20, 2026), which addresses how defense counsel can waive multiplicity issues. But the CAAF’s reasoning also strongly suggests that ineffective assistance of counsel claims may increase following this decision.  The second case the duo covers is United States v. Moore, No. 25-0110, 2026 CAAF LEXIS 73 (C.A.A.F. Jan. 23, 2026), which is the latest installment of the Mendoza-Casillas saga. Moore is one of three cases that the CAAF decided, which appear to, once again, limit the once-powerful reach of United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024). See United States v. Casillas, 86 M.J. 94 (C.A.A.F. 2025) (tailoring Mendoza to a sexual assault case that included sleep). The other two cases the CAAF decided with Moore are United States v. Serjak, No. 25-0120, 2026 CAAF LEXIS 74 (C.A.A.F. Jan. 23, 2026), and United States v. Hennessy, No. 25-0112, 2026 CAAF LEXIS 72 (C.A.A.F. Jan. 23, 2026). While Sam and Trevor focus on Moore because it espouses three "new" legal principles for sexual assault cases without consent, all three cases provide insight into how Article 120(b)(2)(A), UCMJ, cases may evolve. As always, send us your comments or questions to [email protected].

Send us a text For the 100th episode of Litigator Libations, Sam and Trevor keep it short and sweet. They discuss two recent decisions. First, they talk about Case v. Montana, No. 24-624, 2026 U.S. LEXIS 432 (Jan. 14, 2026), from the Supreme Court. Case reaffirms Brigham City v. Stuart, 547 U.S. 398 (2006), which discussed the proper test for the emergency assistance exception to the warrant requirement, but addresses it in the context of a suicide attempt. Second, they discuss United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 6 (A.F. Ct. Crim. App. Jan. 16, 2026), from the Air Force Court of Criminal Appeals. Based on United States v. Jones, 66 M.J. 704 (A.F. Ct. Crim. App. 2008), and United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999), Marschalek reaffirms that preemption cannot be waived by a guilty plea.  As always, feel free to reach out with questions or comments at [email protected].

Send us a text Happy New Year, everyone! This week, Sam and Trevor cover two cases where the Court of Appeals for the Armed Forces (CAAF) analyzes the purported arbitrary application of military rules of evidence. The first is United States v. Maebane, No. 24-0196, 2025 CAAF LEXIS 772 (C.A.A.F. Sep. 18, 2025). In this 3-2 decision, the CAAF overturned a conviction where a third party’s confession was ruled inadmissible under Military Rule of Evidence 807. The duo dissects the detailed facts to show how and why the CAAF reached the decision it did. During their discussion, they talk about two Supreme Court cases: Chambers v. Mississippi, 410 U.S. 284 (1973), and Holmes v. South Carolina, 547 U.S. 319 (2006). The second case they discuss is United States v. Miller, No. 25-0025, 2025 CAAF LEXIS 803 (C.A.A.F. Sep. 24, 2025). In this 4-1 decision, the CAAF held that Military Rule of Evidence 412 hearings must be closed and that military judges need not hold an open hearing to decide whether, on the facts of the case, the hearing ought to be closed. Sam and Trevor also highlight the dissent and draw parallels between Miller and the Supreme Court’s recent decision in Pitts v. Mississippi, 223 L.Ed.2d 151 (U.S. 2025).  As always, feel free to reach out with questions or comments at [email protected].

Send us a text In their last episode of 2025, Sam and Trevor discuss all things waiver.  There are four cases on the agenda, so buckle-up! First, United States v. Arroyo, 2025 CAAF LEXIS 688 (C.A.A.F. Aug. 19, 2025), which deals with how and why an appellate court can consider that an appellant got the “benefit of the bargain” from a plea agreement during its sentence appropriateness analysis. Second, United States v. Cook, 2025 CAAF LEXIS 726 (C.A.A.F. Aug. 28, 2025), which covers how an accused can waive the maximum punishment calculation. Third, United States v. Suarez, 2025 CAAF LEXIS 651 (C.A.A.F Aug. 5, 2025), which holds that unlawful command influence can be waived. And, finally, United States v. Batres, 2025 CAAF LEXIS 755 (C.A.A.F. Sep. 9, 2025), which grapples with the meaning of “transaction” under Rule for Courts-Martial 1002(d)(2)(B)(i).  A few other cases that come up during their discussion are United States v. Brown, 2025 CAAF LEXIS 691 (C.A.A.F. Aug. 20, 2025) (granting review), United States v. Cole, 84 M.J. 398 (C.A.A.F. 2024), and United States v. Baker, 14 M.J. 361 (C.M.A. 1983), abrogated on other grounds by United States v. Teters, 37 M.J. 370 (C.A.A.F. 1993). The briefs for Brown are available here: https://www.armfor.uscourts.gov/GrantedCasesBriefs.htm After covering all these cases, the duo are taking a quick break and will see everyone again after the New Year! Happy Holidays! In the meantime, you can always email us with questions or comments at [email protected].

Send us a text Happy Thanksgiving! This week, Sam and Trevor tackle United States v. Gonzalez, 2025 CAAF LEXIS 761 (C.A.A.F. 2025), and United States v. Ruiz, 2025 CAAF LEXIS 656 (C.A.A.F. 2025). While both cases have some interesting facts, they also have big takeaways for trial practitioners.  In Gonzalez, we see the first effects of United States v. George, 85 M.J. 133 (C.A.A.F. 2024), where the parties’ interpretations of the specification at trial trump arguments on appeal. For Ruiz, prior consistent statements under MRE 801(d)(1)(B)(ii) seem to be expanded outside the narrow path articulated in United States v. Finch, 79 M.J. 389 (C.A.A.F. 2020). Now part of a circuit split, Ruiz is petitioning SCOTUS on this issue, so keep an eye out for any developments dealing with whether SCOTUS will extend Tome v. United States, 513 U.S. 150 (1995), to this category of prior consistent statements. The full Petition for Writ of Certiorari is available at: https://www.supremecourt.gov/DocketPDF/25/25-561/383633/20251105123311855_Ruiz%20v.%20United%20States%20Petition%20for%20Writ%20of%20Certiorari.pdf. If you have any questions or listener comments, please email us at [email protected].

Send us a text This week, Sam and Trevor tackle United States v. Downum, __ M.J. __, No. 24-0156/AR, 2025 CAAF LEXIS 828 (C.A.A.F. Sep. 30, 2025). Well, sort of. In Downum, the CAAF makes an interesting point about what is required to invoke the permissive inference for unlawful use of a controlled substance under Article 112a, UCMJ. The CAAF seems to imply that the Government “must” present certain evidence to get the permissive inference. But this appears to change decades of case law on how the permissive inference works in "naked UA" cases (i.e., when the only evidence of drug use is from the urinalysis test).  The duo discuss the history of the permissive inference, spanning United States v. Campbell, 50 M.J. 154, 160 (C.A.A.F. 1999) (aka Campbell I), United States v. Campbell, 52 M.J. 386, 388 (C.A.A.F. 2000) (aka Campbell II), and United States v. Green, 55 M.J. 76, 80 (C.A.A.F. 2001), before ending up back at Downum with some practice tips and advice for trial litigators.  As always, feel free to email the nerds with any feedback, thoughts, questions, or legal conundrums at  [email protected].

Send us a text Nothing is spookier this Hallow’s Eve than the Government failing to provide evidence to criminal defendants. In their Halloween special, Sam and Trevor untangle the web that is United States v. Secord, __ M.J. __, 2025 CAAF LEXIS 646 (C.A.A.F. 2025), a case about digital data and R.C.M. 701 possession. Then, they turn to a case straight out of the twilight zone, United States v. Roan, __ M.J. __, 2025 CAAF LEXIS 760 (C.A.A.F. 2025), involving hidden and destroyed evidence. Much like this lost evidence, no one is safe this Halloween! In discussing both cases, they mention a pending case at the CAAF, United States v. Braum, No. 25-0046/AF, 2025 LX 464077 (C.A.A.F. Oct. 8, 2025), and a case from last term, United States v. Strong, 85 M.J. 58 (C.A.A.F. 2024).  Questions, comments, concerns for the nerds? Email us at [email protected]!

Send us a text In their debut episode as hosts, Sam and Trevor discuss the recent CAAF decision,United States v. Casillas, __ M.J. __, 2025 CAAF LEXIS 692 (C.A.A.F. 2025). Casillas clarifies (or confuses?) the holding in United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024), that cases charging a “without consent” theory of liability under Article 120, UCMJ, cannot be proven where the complaining witness is incapable of consenting, i.e., asleep or unconscious. Sam and Trevor also discuss a recent Navy CCA decision, United States v. Grafton, No. 202400055, 2025 LX 342911 (N-M. Ct. Crim. App. Aug. 11, 2025), that highlights some of the post-Mendoza influences (or problems?) in military justice practice. Before concluding, the duo briefly discuss instructional errors under Yates v. United States, 354 U.S. 298, (1957).  Questions, comments, concerns for the nerds? Email us at [email protected]!

Send us a text In today's episode we say farewell to long-time host Darrel Johnson and officially welcome our new hosts, Sam Castanien and Trevor Ward!  In so doing, we discuss United States v. Saul & United States v. Navarro-Aguire, two cases that speak to the providence of a guilty plea and the importance of clarifying inconsistencies during the Care inquiry.  We then discuss United States v. George, an important case that makes new law on how the appellate courts will evaluate defective/ambiguous specifications.  

Send us a text In this week's episode we discuss one CAAF case, one N-MCCA case, and the reversing the script on MRE 404(b).  The CAAF case is United States v. Patterson, where CAAF declines to second guess the AFCCA on factual sufficiency because it is statutorily restricted to reviewing questions of law.  The N-MCCA case has several issues, including the permissive inference in a no-BCD SPCM, the Confrontation Clause, and the Constitutionality of a mandatory no-BCD SPCM in a drug case.  We then hear from Raquel Muscioni on utilizing M.R.E. 404(b) to prove up motive, competence, or other non-character matters pertaining to government witnesses.  

Send us a text In today's episode we discuss two cases from the Court of Appeals for the Armed Forces:  United States v. Johnson, which cements the conclusion that military appellate courts will not correct an erroneous indorsement to the Statement of Trial Results or Entry of Judgment requiring firearm prohibitions; and United States v. Thomas, which discusses the burdens on the defense and government under Batson v. Kentucky . . . even though it is not at all clear that that case applies to the facts of this case.  We then hear from Allen Abrams on the "permissive inference" and when and how to object to it.  

Send us a text In this week's (lengthy) episode we discuss United States v. Taylor, which deals with the statutory requirements that must be satisfied when involuntarily recalling a reserve member to active duty for purposes of court-martial (and how they differ from the statutory requirements that must be satisfied to subject the reservist to UCMJ jurisdiction).  We then discuss United States v. Harborth, where the issue was whether the government must have probable cause before accepting property seized by a private party . . . but the court avoids answering that question by finding 1) Harborth waived consideration of the length of time the property was held without probable cause, 2) a search or seizure by a private actor, not acting at the behest of the government, does not implicate the Fourth Amendment, and 3) the waiver was not IAC because, even if the search was unconstitutional, the military judge would have nevertheless exercised his discretion to find that suppression of the evidence was not warranted.  Not great.

Send us a text This week we discuss United States v. Brinkman-Coronel, where the CAAF acknowledges that cellular phones are unique under the Supreme Court's Fourth Amendment analysis, but then presses on to treat third party consent to the search of a cell phone in the same manner as third party consent to search a brief case.  Disappointing.  We then hear from Captain Elliot Ko with a very thoughtful discussion of MRE 513 in regard to Family Advocacy records -- including seven specific suggestions for defenders.  

Send us a text In this week's episode we discuss the AFCCA case of United States v. Hunt, where the AFCCA applies the new factual sufficiency analysis and concludes that the government failed to prove guilt beyond a reasonable doubt -- a huge defense win.  We then hear from Allen Abrams on Military Rule of Evidence 105 -- Allen does an excellent job of conveying the importance of the rule and how defenders can harness its power to ensure evidence is used in the manner most beneficial to the client.  

Send us a text Today Lt Col Allen Abrams joins to discuss the case of United States v. Shafran.  The issue in the case is an Article 134 specification that failed to include words of criminality, such as "wrongfully" or "unlawfully."  The case provides an excellent vehicle for Allen to provide defenders with considerations and options for attacking defective specifications.  We then hear from the Free Speech Dynamic Duo - Trevor Ward and Sam Castanien who apply the current state of Free Speech law in military justice to the enumerated Article 134 offense of Sexual Harassment.