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Send us Fan Mail In this season debut, Trevor is joined for the first time by Jordan and John. The trio kick-off Season Six by covering the oft discussed case of United States v. Kruse, 2026 CAAF LEXIS 727 (C.A.A.F. 2026). This case (mostly) concludes the drama about a non-OSTC convening authority’s power to refer charges for conduct that is a “covered offense.” In a 5-0 decision, the CAAF held that the plain language of Article 24a, UCMJ, allows a non-OSTC convening authority to refer charges for conduct that qualifies as a covered offense, so long as the charge itself is not a covered offense. This issue was discussed last season by Sam and Trevor in Episodes 103 and 111; so, for a more in-depth take, go (re)-listen to those episodes!  Next, our hosts delve into personal jurisdiction issues in two CCA cases that came out over the summer: United States v. Thomas, 2026 CCA LEXIS 318 (A. Ct. Crim. App. July 8, 2026) and United States v. Grant, 2026 CCA LEXIS 332 (A.F. Ct. Crim. App. July 17, 2026). In Thomas, the Army Court held that a member who had applied and been accepted to retire was still subject to the Army’s jurisdiction. This is because none of the factors outlined in United States v. Christensen were met: the appellant did not receive a DD 214, did not our-process from his unit, and did not receive and final pay and accounting. 78 M.J. 1 (C.A.A.F. 2008). In Grant, the Air Force Court found that one of the Christensen factors were met: the member received a DD 214. Because one of the Christensen factors was met, the court engaged in a “circumstantial” analysis, looking to “objective” factors. In doing so, the Air Force Court found that Grant believed he was still subject to the Air Force’s jurisdiction because he signed a stipulation saying he was and he showed up to court with his uniform on. The trio talk about how these seemingly subjective factors don’t really meet the exacting “objectively reasonable belief” standard set out by the Christensen Court and discussed in United States v. Nettles, 74 M.J. 289, 291 (C.A.A.F. 2015).  We hope you enjoy the first episode of the season! And, please remember you can send any questions or comments to [email protected]. Happy libating!

Send us Fan Mail In the final episode of the season, Sam and Trevor cover two cases. First, Chatrie v. United States, __ U.S. __, No. 25-112, 2026 U.S. LEXIS 2878 (June 29, 2026), a recent Supreme Court case covering geofence warrants. There, the majority held that an individual has a reasonable expectation of privacy in records about his or her cellphone location, relying heavily on Carpenter v. United States, 585 U. S. 296 (2018). The Government needs a warrant when demanding such information, even from third parties. See United States v. Miller, 425 U. S. 435 (1976); Smith v. Maryland, 442 U. S. 735 (1979). Both Sam and Trevor think this case allows for broader challenges to cellphone searches, while also emphasizing how this case provides a good overview of Fourth Amendment jurisprudence starting with Katz v. United States, 389 U. S. 347 (1967). Ultimately, the Supreme Court remanded for whether the warrant in Chatrie’s case was valid, which could implicate the good faith exception later on (see Episode 110, The “Bad Faith” Exception, for a refresher). Second, the duo cover United States v. Bass, __ M.J. __, No. 25-0149, 2026 CAAF LEXIS 544 (C.A.A.F. June 24, 2026), a fractured Court of Appeals for the Armed Forces (CAAF) decision on M.R.E. 404(b) and the permissive inference (see Episode 96, Did Downum Change the Permissive Inference?). Bass was charged with violating Article 92, UCMJ, for allegedly using hemp after testing positive for THC-8. The majority held that his positive urinalyses used in a previous court-martial resulting in an acquittal could not be admitted under M.R.E. 404(b) without a “repeated, fact specific innocent ingestion narrative linked to the same product or event.” The majority also held that the permissive inference under Article 112a, UCMJ, does not apply to hemp and hemp derived products. The logic the CAAF uses to find the permissive inference does not apply to hemp seems to be readily applicable to marijuana, something Trevor emphasized in Episode 112 when discussing Hemani, so keep challenging the permissive inference in marijuana cases! After covering these cases, Sam signs off with a goodbye. She’s taking a new assignment and stepping away from the defense world, but, as always, she wishes everyone good luck with litigating their cases! We will miss her deeply. Questions, feedback, comments? Send them to [email protected]!

Send us Fan Mail This week, Sam and Trevor tackle two Supreme Court cases and then welcome back Mr. Darrel Johnson, the creator of Litigator Libations, to discuss Article 93a, UCMJ. The duo begins with United States v. Hemani, __ U.S. __, No. 24-1234, 2026 U.S. LEXIS 2559 (June 18, 2026). Mr. Hemani was charged with being an "unlawful user" of a controlled substance (i.e., using marijuana every other day) while possessing a firearm, a violation of 18 U.S.C. § 922(g)(3). The Court determined that simply being an "unlawful user" was insufficient for the Government to disarm someone. Sam and Trevor believe that Hemani can be used to challenge the permissive interference in marijuana cases, prevent temporary disarmament following a urinalysis or confession of drug use, and inform plea agreements that could impact firearm rights.  The second case they cover is Hunter v. United States, __ U.S. __, No. 24-1063, 2026 U.S. LEXIS 2558 (June 18, 2026). Hunter deals with an appeal waiver contained in a plea agreement that prevented Mr. Hunter from appealing a seemingly unconstitutional sentence provision. The Court held that an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice. Trevor and Sam discuss how Hunter can be used to push back against unfavorable plea terms and the concept of waiver overall. Darrel takes this episode to the finish line by discussing his recent experience in litigating an Article 93a, UCMJ, case, specifically whether non-commissioned officers who are cross training and going through a "training program for initial career qualification" are "specially protected junior member of the armed forces." We welcome him and anyone else who would like to share their practice tips or military justice thoughts! Questions, feedback, comments? Send them to [email protected]!

Send us Fan Mail This week, Sam and Trevor discuss United States v. RosarioMartinez, __M.J.__, 2026 CAAF LEXIS 485 (C.A.A.F. 2026), a case that troubles them both. There, after convicting the appellant, the senior panel member informed defense counsel that the panel had actually voted to acquit the accused. Apparently, the panel had misunderstood the voting instructions. Despite this, the CAAF declined to overturn the guilty verdict based on Mil. R. Evid. 606(b)(2)(C), which forbids courts from considering evidence from panel member deliberations. Next, the duo dive into United States v. Galvin, 2026 CCA LEXIS 266 (A.F. Ct. Crim. App. June 5, 2026), which deals with the ongoing saga of whether a convening authority has the power to refer charges for conduct that OSTC determined was a "covered offense." Contradicting the Navy-Marine Court’s decision in United States v. Kruse, 86 M.J. 556 (N-M. Ct. Crim. App. 2026), rev. granted, CAAF 367 (C.A.A.F. 2026) (see episode 103), the Air Force Court ruled the convening authority lacked the ability to refer charges for conduct that OSTC said was a covered offense. Trevor maintains that the plain text of Article 24a, UCMJ, permits convening authorities to refer covered offense conduct to a court-martial, so long as the charged offense is a non-covered offense under Article 1(17), UCMJ. Sam—and the Air Force Court—rely on R.C.M. 303A(a) to argue that once the underlying conduct is determined to be a covered offense by OSTC (as it did here), then the conduct is covered and can only be referred to general or special court-martial by a special trial counsel. Sam recommends that if you are looking to file a motion to dismiss using Galvin, also cite R.C.M. 201(b)(3) and United States v. Henderson, 59 M.J. 350, 353 (C.A.A.F. 2004). Stay tuned for the CAAF's forthcoming decision in Kruse, which should resolve this issue! Questions, feedback, practice tips? Send them to [email protected]!

Send us Fan Mail On this week's episode, Sam and Trevor tackle the CAAF's most recent decision on the good faith exception: United States v. Johnson, No. 25-0202/AF, 2026 CAAF LEXIS 464 (C.A.A.F. May 26, 2026). Before diving into that case, though, the duo discuss a new Supreme Court case on Batson challenges: Pitchford v. Cain, No. 24-7351, 2026 U.S. LEXIS 2296 (May 28, 2026). There, the Supreme Court reversed the Fifth Circuit, concluding that a criminal defendant has the right under Batson to have the trial judge fully analyze a Batson claim once a prima facie showing is made.  The two then turn to Johnson. There, the CAAF held that the good faith exception applies so long as a judge advocate advises law enforcement/the search authority that there is probable cause (even when there is no probable cause…). For this, the CAAF relied heavily on United States v. Perkins, 78 M.J. 381 (C.A.A.F. 2019), where the CAAF found the good faith exception applies whenever search authorities rely on the advice of government lawyers. The CAAF also relied on United States v. Leon, 468 U.S. 897 (1984), a Supreme Court case discussing the good faith exception, Mil. R. Evid. 311, which incorporates Leon's test, and United States v. Hernandez, 81 M.J. 432 (C.A.A.F. 2021). This expansive view of the good faith exception draws the ire of both Sam and Trevor, as well as Chief Judge Ohlson, who writes a powerful dissent. Referencing the problems highlighted in United States v. Lattin, 83 M.J. 192 (C.A.A.F. 2023), Chief Judge Ohlson emphasized that “it is judicially necessary to penalize reckless or grossly negligent government behavior. . . . Otherwise, we should not be surprised if government investigators come to believe that there will be no negative consequences if they fail to comply with the rule of law.” Please send your questions, comments, or concerns to [email protected]. We look forward from hearing from you!

Send us Fan Mail Prior consistent statements strike again in this week’s episode as Sam and Trevor discuss United States v. Brown, __ M.J. __, 2026 CAAF LEXIS 418 (C.A.A.F. 2026). With prior consistent cocktails in hand, the duo review the CAAF’s recent decision analyzing Mil. R. Evid. 801(d)(1)(B)(ii), the rule covering prior consistent statements offered on “other grounds.” A majority of the court found that a military judge did not abuse his discretion when he admitted a prior consistent statement from the complaining witness. This is because trial defense counsel attacked her credibility on “other grounds,” i.e., her “inconsistency,” thereby opening the door for admission of the prior consistent statements. As Sam and Trevor explain, this new(ish) rule under (B)(ii) runs the risk of having the exception swallow the rule. As the Chief Judge says in his concurrence, this is the “mischief” lurking behind the court’s Brown opinion. During this episode, Sam and Trevor reference Episode 97, which covered United States v. Ruiz, 86 M.J. 75 (C.A.A.F. 2025), cert. denied, 146 S. Ct. 993 (2025). They also discuss the differences between Mil. R. Evid. 801(d)(1)(B)(i) and (B)(ii) and the specific applications of United States v. Frost, 79 M.J. 104 (C.A.A.F. 2019), United States v. Finch, 79 M.J. 389 (C.A.A.F. 2020), and United States v. Ayala, 81 M.J. 25 (C.A.A.F. 2021). They end with some helpful practice tips about how to limit the impact of Brown and a brief remark about utilizing the Benchbook instruction for inconsistent statements. As always, please send any comments, questions, or concerns to [email protected]

Send us Fan Mail This week, Sam and Trevor focus on United States v. Kershaw, No. 25-0177/AF, 2026 CAAF LEXIS 396 (C.A.A.F. Apr. 30, 2026), another divided Court of Appeals for the Armed Forces (CAAF) decision. Before diving into Kershaw, Sam briefly highlights that the portions of the Manual for Courts-Martial that were changed in Annex 2 of Executive Order (EO) 14103 apply to offenses that occurred after December 27, 2023 (the other Annexes in this EO have different effective dates). She discusses this effective date in the context of panel randomization under RCM 911. Specifically, the plain text applying this rule change contradicts the Military Judge's Electronic Benchbook and the Air Force Instructions (which themselves conflict too): neither arraignment nor referral date dictate when the new randomization rule applies. The offense date does. Thus, keep an eye out for which rules apply when; Annex 2's application is a little odd! If you disagree or have seen something different in practice, please let us know!  Following that discussion, the two walk through the Kershaw decision. In Kershaw, the CAAF holds that a Court of Criminal Appeals can affirm a conviction by using "variance," even when the trier of fact did not do so. The duo explain how CAAF's precedent, and the text, don't conform with that reading. They go on to provide some hopefully helpful tips for trial practitioners in light of the CAAF's new rule, but are cognizant of the new territory charted by the Kershaw decision.  Send us your questions, comments, or concerns at [email protected].

Send us Fan Mail This week, Sam and Trevor discuss a new Court of Appeals for the Armed Forces (CAAF) case, United States v. Washington, No. 25-0044, 2026 CAAF LEXIS 353 (C.A.A.F. Apr. 13, 2026), and then feature a trial-level practitioner, Raquel Musconi, to discuss post-trial motions. Before jumping into both, the pair cover a quick update to United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 189 (A.F. Ct. Crim. App. Apr. 17, 2026). The Air Force Court of Criminal Appeals issued a new opinion, but not much changed. Check out Episode 100 for a refresher! Sam and Trevor then discuss Washington. The CAAF found that the military judge abused their discretion when they determined the conduct leading up to the alleged sexual assault fell under Military Rule of Evidence 412. In coming to this conclusion, the CAAF seems to expand the realm of res gestae and the meaning of “surrounding circumstances” for sexual assault offenses. The CAAF also seems to cast doubt on United States v. Erikson, 76 M.J. 231 (C.A.A.F. 2017), the case analyzing false sexual assault claims under Rule 412. After resolving the Rule 412 issue, the CAAF tackled the military judge’s decision to strike most of the appellant’s testimony. The CAAF found that the military judge abused their discretion again, highlighting that this extreme remedy was not appropriate. While talking about this, Trevor references several state cases, including State v. Mende, 304 Ore. 18 (Or. Sup. Ct. 1987), to explain why the caselaw the Government and the dissent rely on is unpersuasive. Raquel finishes the episode with post-trial motions, specifically related to confinement conditions. Send us your questions, comments, and feedback at [email protected]!

Send us Fan Mail This week, Sam and Trevor cover two cases, United States v. Braum, __M.J.__, No. 25-0046/AF, 2026 CAAF LEXIS 343 (C.A.A.F. Apr. 8, 2026), and United States v. Talley, No. ACM 40828, 2026 CCA LEXIS 171 (A.F. Ct. Crim. App. Apr. 9, 2026). In Braum, another divided Court of Appeals for the Armed Forces (CAAF) found there was no prejudice when the Government refused to turn over the complaining witness’s cellphone extraction in its possession, custody, or control. The duo lament how the lead opinion did not answer whether the military judge erred by failing to order disclosure of the phone to the defense. But the two are hopeful that the CAAF may soon answer that question in United States v. Wicks, __M.J.__, No. 26-0062/AR, 2026 CAAF LEXIS 302 (C.A.A.F. Apr. 3, 2026).  In better news, the Air Force Court of Criminal Appeals found that the military judge abused his discretion by excluding evidence under Mil. R. Evid. 412 and set aside the finding of guilt for a sexual assault conviction. As Sam and Trevor explain, both cases deal with complaining witnesses turning their rights into a sword against the accused and what trial defenders can do to disarm such “chutzpa[dik]” witnesses. See Braum, __M.J.__, No. 25-0046/AF, 2026 CAAF LEXIS 343, at *28 (Ohlson, C.J., dissenting) (labeling the colloquial terms for the victim’s approach as “chutzpah”). Note: We apologize for any audio issues you may notice during listening. We are aware of the microphone issues and are working to fix it for future episodes. As always, we welcome your questions, comments, and feedback at [email protected]!

Send us Fan Mail The case you've all been waiting for! *drumroll please*  United States v. Rocha, No. 25-0157, 2026 CAAF LEXIS 254 (C.A.A.F. Mar. 16, 2026), the child-like sex doll case, is back and finally resolved! This week, Sam and Trevor spend most of the time breaking down the various opinions in Rocha. Spoiler alert: the CAAF affirms the lower court's decision to set aside the conviction, but perhaps not in the way you'd expect. While the CAAF doesn’t address the liberty interest under Lawrence v. Texas, 539 U.S. 558 (2003), Sam and Trevor do. While talking about liberty interests, they also discuss United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013).  After tackling what is sure to be the most controversial decision of the CAAF term, the duo turn to United States v. Hurtado, No. 25-0212, 2026 CAAF LEXIS 273 (C.A.A.F. Mar. 23, 2026). There, the CAAF found that the appellant's rights invocation was clear and unequivocable, despite the law enforcement agent, the lower court, and two CAAF judges thinking otherwise...I'd like my lawyer, dawg, now please. See State v. Demesme, 228 So. 3d 1206 (La. 2017) (finding that requesting a "lawyer dog" was an ambiguous invocation).     As always, we welcome questions and comments from our fans at [email protected].

Send us Fan Mail On this week's episode, Sam and Trevor focus on a recent case from the Supreme Court, Villarreal v. Texas, 2026 U.S. LEXIS 1103 (U.S. 2026). Villarreal explains the limits on how and when a judge can prevent a testifying defendant from talking to his or her attorney during a recess. The Supreme Court discusses two major cases in resolving this issue: Geders v. United States, 425 U. S. 80 (1976), and Perry v. Leeke, 488 U. S. 272 (1989).  Following their discussion about Villarreal, Sam and Trevor turn to a recent Navy-Marine Corps Court of Criminal Appeals case, United States v. Gonzalez, No. 202500333, 2026 CCA LEXIS 115 (N-M Ct. Crim. App. Mar. 6, 2026). There, the duo discusses how old sentencing tips remain valuable even after the changes to Article 66, UCMJ, that turned appellate "sentence appropriateness" review into an assessment over, amongst others, whether a sentence is "plainly unreasonable."   Questions, comments, feedback? Email us at [email protected]!

Send us Fan Mail This week, Sam and Trevor start off by answering a listener question about one of last episode’s cases: United States v. Kruse, No. 202500370, 2026 CCA LEXIS 13 (N-M Ct. Crim. App. Jan. 21, 2026). After a brief recap and debate, the two tackle United States v. Matti, No. 25-0148, 2026 CAAF LEXIS 189 (C.A.A.F. Feb. 17, 2026), a recent Court of Appeals for the Armed Forces (CAAF) decision on improper argument. Matti reveals the frustration of the CAAF judges, who appear tired of repeatedly dealing with the same improper arguments by Government counsel. To educate the field, the CAAF published an appendix to Matti, which un-exhaustively lists twenty-two improper arguments, and encouraged all military judges and counsel to read the appendix to protect against future errors.  But a week after Matti, the Air Force Court of Criminal Appeals issued United States v. Kindred, No. ACM 40607 (f rev), 2026 CCA LEXIS 87 (A.F. Ct. Crim. App. Feb. 24, 2026). In this case, the Air Force Court seemingly disagreed with the CAAF’s determination that certain arguments were improper. Sam and Trevor discuss Kindred and how the Air Force Court got it right for at least one improper argument that implicated constitutional rights, but got it wrong for others.        Questions, comments, concerns? Send them our way at [email protected]! (Since, apparently, we can’t respond to Buzzsprout fan mail immediately…)

Send us Fan Mail This week, Sam and Trevor tackle two cases that foretell the risks of prioritizing expediency over process. First, after eight years, United States v. Jacinto, No. 24-0144, 2026 CAAF LEXIS 116 (C.A.A.F. Feb. 2, 2026), comes to end. This case went up and down on appeal due to a denied continuance and in camera review request concerning medical records disclosed on the “eve” of trial. While the Court of Appeals for the Armed Forces (CAAF) found the denied continuance harmless, this case should be in any trial practitioner’s back pocket when seeking a continuance.  Second, the duo debate United States v. Kruse, No. 202500370, 2026 CCA LEXIS 13 (N-M Ct. Crim. App. Jan. 21, 2026), a published Navy-Marine Corp Court of Criminal Appeals case that addresses how convening authorities can refer what looks like a covered offense after the Office of Special Trial Counsel defers prosecution…so long as it’s not labeled as “a covered offense.” Sam and Trevor’s spirited debate ends with a reminder about ensuring jurisdiction in each case and testing the bounds of Kruse.  Questions, comments, concerns? Send them our way at [email protected]!

Send us Fan Mail 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 Fan Mail 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].