Litigator Libations

Send us Fan Mail 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....

Send us Fan Mail 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 d...

Send us Fan Mail 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 clie...

Send us Fan Mail 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 communica...

Send us Fan Mail 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-ma...

Send us Fan Mail 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 disc...

Send us Fan Mail 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...

Send us Fan Mail 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 Bo...

Send us Fan Mail 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 re...

Send us Fan Mail 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...

Send us Fan Mail 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...

Send us Fan Mail Today we discuss a NMCCA case that dismisses an illegal drug use charge under Article 112a, UCMJ, for being factually insufficient.  The case provides a great vehicle for discussing the permissive inference instruction and how defenders should push back against its use when there is no actual evidence that would make the inference reasonable.  We then hear from Captain Brusik on t...

Send us Fan Mail This week we discuss the case of  United States v. Guihama,  where the Court of Appeals for the Armed Forces revisits the issue of the quantum of evidence required to corroborate a confession before the confession can be admitted in evidence (spoiler alert - not much).  We then hear from Lt Col Tony Ghiotto who returns with weaponizing the rules of evidence and narrows in on chara...

Send us Fan Mail [Revised]  In this week's episode we discuss United States v. Flanner; an opinion from the Court of Appeals for the Armed Forces that walks back CAAF's earlier proclamation that the right to counsel attaches earlier in military justice than it does under the Fifth Amendment.  We then hear from Major Ciara Ryan on how to effectively communicate with and prepare your clien...

Send us Fan Mail This week we hear from Sam Castinien and Trevor Ward on major developments in Free Speech law in the military.  The issue is raised in United States v. Smith, which was decided by CAAF on September 13, 2024.  We then hear from first-time contributor Nicole Herbers, who discusses the sticky wicket of objecting to the government's argument in a judge alone forum.  

Send us Fan Mail Today we discuss the recent and significant case of  United States v. Mendoza,  where CAAF holds that evidence that a named victim lacked the capacity to consent due to impairment by drugs or alcohol, will not support a conviction for sexual assault without consent under Article 120(b)(2)(A).  This case will have a big impact on how sexual assault cases are charged and litigated g...

Send us Fan Mail In today's episode we discuss the CAAF decision in United States v. Strong, where CAAF creates a new definition of "seize" applicable only to electronic data for the offense of  Prevention of Authorized Seizure of Property, Article 131e, UCMJ .  We then hear from Captain Fredericks on Article 37, UCMJ,  Unlawful Influence.

Send us Fan Mail In this, the last episode of Season 3, we discuss HVZ v. U.S., where CAAF found that MRE 513(e) gives patient's standing to the extent that they have a right to be heard on a defense motion to compel their mental health records regardless of whether the records are privileged under MRE 513.  We also hear from Lt Col Ghiotto who discusses the rule against hearsay and a couple...

Send us Fan Mail In this week's episode we discuss United States v. Grijalva.  In this case the government had an Article 117a (wrongful distribution of intimate visual images) offense but didn't think it could prove a direct and palpable connection to a military mission or the military environment (element 4).  So it dropped that element and re-packaged it as an offense under the genera...

Send us Fan Mail In today's episode we hear from Lt Col Tony Ghiotto (a.k.a Professor Ghiotto) on the recent Supreme Court Case of Diaz v. United States, which speaks to how close an expert may come to providing an opinion on a ultimate issue (such as whether the accused held a specific intent).  It is an excellent discussion that includes how the law has developed over the years and why.  We...

Send us Fan Mail It is Case-A-Palooza!  In this episode we discuss two CAAF cases and then quickly touch on two SCOTUS cases.  United States v. Keago is a CAAF opinion holding that a military judge abused her discretion by failing to grant two defense challenges for cause at voir dire.  It preserves the liberal grant mandate and provides helpful guidance to defenders.  United States v. Metz holds...

Send us Fan Mail In this (lengthy) episode we discuss the recent CAAF case of United States v. Cole, where the CAAF set aside the sentence because it was far from clear whether the military judge was punishing A1C Cole for the crime he pled guilty to, or the more serious crime that the military judge described.  We also discuss a second case that also busts a guilty plea.  In United States v. Moor...

Send us Fan Mail In this week's episode we discuss United States v. Wilson, where the CAAF reviews the admission of MRE 404(b) evidence for an abuse of discretion.  The opinion provides helpful guidance and helpful language for defenders in defending off the admission of inappropriate propensity evidence.  We also hear from Major Ciara Ryan who discusses immunity and what to do when a witness...

Send us Fan Mail In this episode we discuss the recent case of United States v. Rocha, where the CAAF reversed the Air Force Court of Criminal Appeals, which found that the enumerated Article 134 offense of Indecent Conduct, did not put Airman Rocha on notice that masturbating with a sex doll with childlike characteristics was a crime.  CAAF says it did.  We then hear from Lt Col Allen Abrams who...

Send us Fan Mail In today's episode we discuss U.S. v. McNulty, which involved a claim of IAC based on defense counsel not seeking an R.C.M. 706 inquiry, A.K.A., a sanity board.  The claim fails but the case gives us an opportunity to discuss the issues of lack of mental responsibility and mental capacity.  We also discuss an AFCCA case (U.S. v. Csiti), which demonstrates the further degradat...