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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. 

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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.

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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. 

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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). 

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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].

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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.

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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). 

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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). 

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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.