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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].

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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]!

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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]!

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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.  

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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.  

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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.  

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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.

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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.  

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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.  

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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.