Litigator Libations

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Happy Halloween! And this year, there is nothing spookier than when appellate courts reverse your trial suppression rulings.

On a happier note, we welcome back the founder of Litigator Libations, Darrel Johnson! Darrel, Trevor, and Jordan talk about two CAAF cases from last term, both dealing with suppression of evidence. The first case is United States v. Ixcolgonzalez, 2026 CAAF LEXIS 711 (C.A.A.F. 2026). In that case, the CAAF found the military judge abused their discretion by suppressing evidence from a search that purportedly lacked specificity. In so doing, the CAAF takes a side in a circuit split about how and when a probable cause affidavit is incorporated into a search warrant. But the CAAF seems to miss the mark on this one, ignoring seminal Supreme Court decisions, such as Riley v. California, 575 U.S. 373 (2014), and Carpenter v. United States, 585 U.S. 296 (2018).

The trio next tackle United States v. Armour, 2026 CAAF LEXIS 712 (C.A.A.F 2026). In that case, the CAAF again held a military judge abused their discretion by suppressing evidence. The CAAF was unpersuaded that an initially tainted search impacted later searches of the same place and objects. This decision, too, seems faulty, especially considering the Tipsy Coachman Doctrine—a doctrine which usually leads appellate courts to uphold trial court decisions so long as the result is right (even if the rationale is wrong). 

As always, reach out with questions and comments at [email protected]!

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In this week's episode, our trio discuss three cases involving servicemembers' rights to counsel. The first case is United States v. Marshalek, __ M.J. __, 2026 CCA LEXIS 438 (A. Ct. Crim. App. Sep. 28, 2026). In that case, an Army Staff Judge Advocate is alleged to have interfered with the lead defense counsel's representation of their client by threatening the counsel's career. On appeal, the appellant claimed that these actions constituted UCI. The Army Court ultimately concluded that the statutory change to Article 37, UCMJ, means that military accuseds can no longer raise apparent UCI. And, distinguishing United States v. Gilmet, 83 M.J. 398, 402 (C.A.A.F. 2023), the Army Court held that the SJA's actions did not amount to actual UCI.

After Marshalek, our hosts move on to United States v. Deremer, __ M.J. __, 2026 CAAF LEXIS 616 (C.A.A.F. 2026). There, the CAAF interpreted 10 U.S.C. § 1044e, the statute providing a right to victim's counsel. It held that while a victim has a right to a counsel when they are under investigation for conduct stemming from their initial allegation, there is no statutory remedy for a violation under Section 1044e.

Finally, the trio discuss United States v. Flores, __ M.J. __, 2026 CAAF LEXIS 719 (C.A.A.F. 2026). In that case, the CAAF was asked whether the military judge erred when they failed to suppress statements made by the appellant to NCIS agents when the appellant already had an attorney representing him in a similar state-related case. Joining a growing circuit split, the CAAF held that the military judge did not err because the Sixth Amendment right to counsel is "offense specific" not "investigation specific." And because offenses under the UCMJ are distinct from state offenses, there was no basis to suppress the statements. In discussing this case, Trevor, John, and Jordan discuss two Supreme Court cases:  Texas v. Cobb, 532 U.S. 162 (2001) and Montejo v. Louisiana, 556 U.S. 778 (2009).

Please reach out to us with questions or comments at [email protected]!

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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! 

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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]!

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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]!

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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]!

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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!

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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] 

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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].

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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]!