Court-Martial Trial Practice Blog

Air Force appeals court dismisses charges because of lack of evidence

May 16, 2024 | The Law Office of Philip D. Cave

Any experienced military appellate lawyer will tell you that the chances of winning on appeal can be low, depending on the issues raised in the appellate briefs. The hardest issue to have a court of criminal appeals dismiss the charges because they did not find there was enough evidence to sustain and conviction beyond reasonable doubt.

That is what happened for us and our appellate client in a just recently decision by the Air Force Court of Criminal Appeals.

The Appellant was charged with possession and distribution of CP (contraband images). The prosecution’s first attempt to get a conviction failed when the military judge abated the trial. The military judge did that because there was a lot of critical evidence that had been lost or destroyed by the police. The prosecution appealed that decision and the Air Force Court granted the prosecution’s appeal. So, the trial recommenced. After a contested trial the client was convicted.

Post-trial delay

April 22, 2025 | The Law Office of Philip D. Cave

The recent Coast Guard case outlines nicely for an accused and military defense counsel how an appellate court evaluates lengthy post-trial delay.

1. Governing Framework for Post‑Trial Delay

Courts evaluate post‑trial processing under two independent regimes:

Severance of charges

April 22, 2025 | The Law Office of Philip D. Cave

What is the bottom line for a military defense counsel or accused who want to sever court-martial charges? Southworth is the leading military case on the subject.

Factual Synopsis

Appellant faced a single, joint general court‑martial for two sexual‑assault episodes committed on successive evenings, 5–6 August 1995. The first involved AL, an adult Navy sailor, in a barracks “group‑sex” setting; the second involved LP, a 13‑year‑old civilian dependent, in a storage shed at a base festival. Before trial the defense sought severance under Rule for Courts‑Martial (RCM) 906(b)(10), contending that joinder posed an undue “spillover” risk because evidence from one incident would be inadmissible at a separate trial on the other. The military judge denied severance but offered special findings and ultimately instructed members that each specification must “stand on its own.” The panel acquitted appellant of raping AL (convicting only of indecent assault, later set aside for factual insufficiency) and convicted him of raping LP. On appeal, appellant claimed that the AL evidence impermissibly bolstered the LP case and that the limiting instruction was inadequate.

Right to counsel and continuances

April 22, 2025 | The Law Office of Philip D. Cave

In Weisbeck, the Court of Appeals for the Armed Forces addressed the question of a delay in trial after the accused hired a civilian counsel. This is a case your military defense counsel should be aware of. The case does not hold that a delay is automatic, but it does outline how an accused may make arguments in his favor.

An important point is what happens when the prosecution wants to offer evidence under Mil. R. Evid. 404(b), and the defense needs time to investigate and respond to that evidence.

United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) — Summary

Family Advocacy Program and Due Process

April 21, 2025 | The Law Office of Philip D. Cave

Here is a summary of an interesting article about how the Army FAP denies a servicemember of due process, and recommending changes.

We at Cave & Freeburg, have represented many servicemembers caught up in the FAP.

Executive Summary

Sentence appropriateness

April 21, 2025 | The Law Office of Philip D. Cave

Your military defense counsel will discuss with you the terms and requirements of a pretrial agreement, should you decide it is in your best interest to get “a deal.”

However, once that deal is signed, the judge accepts it, and it is now on appeal, it is hard to get the appellate court to reduce the sentence that is actually adjudged so long as it is within the specified limits of the deal and does not contain any clause that violates public policy. United States v. Spencer from the Navy-Marine Corps Court of Criminal Appeals is one example of how the appeals court looks at the sentence appropriateness where there is a pretrial agreement.

The Navy–Marine Corps Court of Criminal Appeals (NMCCA) reviewed LCpl Spencer’s sentence de novo under the pre‑2023 version of Article 66(d)(1), UCMJ. That statute authorizes the service courts to approve only so much of the sentence as they find “correct in law and fact” and, on the whole record, “should be approved.” Congress removed this text when it overhauled military sentencing in the Fiscal Year 2022 NDAA, but the new regime applies only to offenses occurring on or after 27 January 2023, so the legacy standard controlled here.

Collatoral Review, including habeas

March 30, 2025 | The Law Office of Philip D. Cave

Summary and Analysis of the Opinion: Deference Owed to the Military Justice System and the Limits of Collateral Review by Federal District Courts

The review is based on Csady v. Ashworth, but it is equally applicable when federal courts examine habeas corpus petitions from military prisoners under 28 U.S.C. 2241.

I. Overview and Holding

Other acts-predisposition-Rule 404(b)

March 30, 2025 | The Law Office of Philip D. Cave

You are on trial for an offense and the prosecution wants to introduce evidence against you under Military Rule of Evidence 404(b). How does that work and what can your military defense lawyer do to exclude such evidence.

The first step is to object to the evidence before trial by filing a motion in-limine. Your military defense lawyer will then argue why the evidence is not admissible and challenge the prosecution’s arguments for admission.

Should something come up during trial, your military defense counsel must object to preserve the issue in the event of an appeal. Failure to object may result in the appellate courts deciding you have “waived” the issue and will refuse to consider it. Or, sometimes the appellate court will apply a less stringent “plain error” review.

Jury biases at court-martial–voir dire

March 25, 2025 | The Law Office of Philip D. Cave

In United States v. Urieta,

The appellant, a specialist in the U.S. Army, was charged with multiple sexual assault offenses and a false official statement. During voir dire at his court-martial, he challenged the selection of Sergeant First Class (SFC) Bravo as a panel member, arguing actual and implied bias based on SFC Bravo’s statements regarding soldiers who retain civilian defense counsel. The military judge denied the challenges, and SFC Bravo participated in the panel that convicted the appellant.

On appeal, the United States Army Court of Criminal Appeals (CCA) affirmed the conviction. However, the Court of Appeals for the Armed Forces (CAAF) reviewed the case and determined that while the military judge did not abuse discretion regarding actual bias, SFC Bravo’s responses during voir dire created a close case of implied bias. Under the liberal grant mandate, which requires excusing panel members in close cases to maintain public confidence in the fairness of military justice, CAAF held that the military judge erred. Consequently, the CAAF reversed the CCA’s judgment.

Government “appeals”

March 14, 2025 | The Law Office of Philip D. Cave

When the government does not like the decision of a Court of Criminal Appeals–because it favors the Appellant, the Government has an automatic “appeal.” It’s called certifying the issue. This is an example of unfairness and discrimination in the appellate process which military defense lawyers are well aware of. So, how does that work.

The general standard of review for a government certificate for review under the Uniform Code of Military Justice (UCMJ) is governed by Article 67(a)(2), UCMJ (10 U.S.C. § 867(a)(2)), which grants the U.S. Court of Appeals for the Armed Forces (CAAF) jurisdiction to review decisions of the service courts of criminal appeals (CCAs) upon certification by the Judge Advocate General (JAG) of the respective service.

Standard of Review for Government-Certified Issues

Stalking Under the Uniform Code of Military Justice (UCM

March 13, 2025 | The Law Office of Philip D. Cave

I. Introduction

Stalking is a serious offense under military law, reflecting the military’s commitment to protecting service members from harassment, intimidation, and threats. It is criminalized under Article 130 of the Uniform Code of Military Justice (UCMJ), which was introduced as part of the 2013 amendments under the National Defense Authorization Act (NDAA) for Fiscal Year 2013. The offense aligns with the broader efforts to address domestic violence, harassment, and misconduct affecting unit cohesion and readiness.

As court-martial defense lawyers, Cave & Freeburg, LLP, have experience and success in defending persons accused of offenses under the Uniform Code of Military Justice. Call or email to discuss your investigation, charges, court-martial, or appeal.