Litigator Libations

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In this episode we discuss United States v. Caswell, where the Air Force Court of Criminal Appeals declined to follow the bench book and CAAF precedent, because it found that by moving the offense of unlawful possession of a concealed dangerous weapon from Article 134 to Article 114, the nature of the offense changed to put more onus on the unlawfulness element.  Therefore, it declined to apply the "permissive inference" that previously allowed the factfinder to infer unlawfulness based solely on evidence the weapon was concealed.  We then shift gears and talk about an upcoming CAAF case (United States v. Miller) on the issue of whether the automatic closure of an MRE 412 hearing is unconstitutional.

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In this episode we discuss the case of United States v. Urieta, where CAAF found an abuse of discretion in a military judge's failure to grant a defense challenge for implied balance in light of the liberal grant mandate.  We also discuss United States v. Valentin-Andino, which makes clear that "appropriate relief" may not feel like any relief at all to the client.  We also get to hear from Major Rebecca Saathoff on  strategic considerations when objecting (or hoping opposing counsel fails to object) to a proper confrontation of a witness with a prior inconsistent statement.  

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This week we discuss the CAAF case of United States v. Greene-Watson, which is another case addressing Military Rule of Evidence 404(b) and the very thin line between common scheme or plan and propensity under CAAF's recent case law.  We also here from contributor Captain Jeffrey Critchlow on the history, evolution, and current state of the law regarding the spousal communication privilege.  

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In this episode Sam Castanien and Trevor Ward return with a great discussion on Free Speech law in military justice - particularly in regard to the possession of obscene cartoon, anime, or computer generated images that the government attempts to charge as child pornography.  Making her Litigator Libations debut, is Rebecca Saathoff providing important information on how courts-martial and appellate review can impact your client's online presence.  Two great discussions from the good folks at Appellate Defense!

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Today we discuss the CAAF case of United States v. Campos, decided on February 19, 2025.  It is an important case for defense counsel because the court provides important distinctions between what might be admissible as aggravation evidence in the prosecution's sentencing case, but is improper in an unsworn victim impact statement.  We then hear from Major Ciara Ryan who discusses how to object when the government notices M.R.E. 404(b) evidence, but the evidence they seek to admit for a relevant non-propensity purpose is already coming in to prove a separate charged offense.  

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This week we discuss United States v. Davis, where the majority at CAAF held that where a military judge removes himself from a case to avoid granting a defense motion, and then details a different judge to the same case in hopes of the motion being denied, was not structural error and, although wrong, did not prejudice the appellant.  We then hear from Captain John Fredericks on a recent trend of represented victims refusing to appear at MRE 412 or MRE 513 motion hearings and he provides advise on how to ensure those witnesses appear and provide testimony necessary to resolve the motion.  

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In this episode we discuss the CAAF case of United States v. Shelby, which was an Article 62 appeal of the military judge dismissing an abusive sexual contact charge with prejudice.  The CAAF held that the military judge abused his discretion by applying the cumulative error doctrine at the trial level.  We then pass on a hot take from Captain Riley Vann, who educated me on the Boyfriend Loophole to firearm prohibitions upon conviction of a misdemeanor crime of domestic violence.  Finally, we once again here from Lt Col Mouakar who provides an excellent discussion on the importance of early investigation into mitigation evidence, how to conduct that investigation, and how to use the information gained.  

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In today's episode we discuss the Air Force Court of Criminal Appeals case of United States v. Rocha, which considers the constitutional protections, as set out in Lawrence v. Texas, to private, secret, solitary masturbation with a child-sized sex doll.  Spoiler alert:  The Constitution Wins!  We then provide some comments on changes to the Manual for Courts-Martial as a result of the 2025 National Defense Authorization Act and Executive Order 14,130.  

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In today's episode we discuss the recent Air Force Court of Criminal Appeals case of United States v. Doroteo, where the court discussed three important issues for defensive litigation:  1) liberal discovery rules applicable to military justice, 2) the awesome power of R.C.M. 914, and 3) the excited utterance exception to the prohibition against hearsay.  The advocacy piece this week is just some thoughts on how to get sex offender registration under SORNA into the defense mitigation case in sentencing (rather than just in the unsworn) so as to avoid the Talkington instruction that essentially tells the members to disregard sex offender registration as a collateral consequence.  

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Happy Holidays!  Today's episode discusses the recent CAAF case of United States v. Wells, where Airman Wells asserted that Clause 2 of Article 134 (acts made criminal where they act is of a nature to bring discredit upon the armed serves) is unconstitutionally void for vagueness.  The CAAF found the Clause constitutional and re-iterated that the government is not required to prove that anyone knew of the conduct or that it actually impacted any person's opinion of the armed services.  Because the CAAF relies on Parker v. Levy for the constitutionality of Article 134, I take a detour to discuss that case in hopes of putting it in context.  We then hear from Major Nicole Moukar from the Appellate Defense Division with some important considerations and strategies when working with child witnesses.