Pretrial agreements Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

May 8, 2026 | The Law Office of Philip D. Cave

United States v. Marschalek provides military defense counsel with a useful issue of first impression: can the Government accept a guilty plea to Article 134 indecent conduct when the conduct, as pleaded, is really Article 120c indecent exposure minus the intent element? The Air Force Court of Criminal Appeals answered no. In the court’s view, the Government cannot revive the old Article 134 route after Congress and the President moved indecent exposure into a specific punitive article. See United States v. Marschalek, No. ACM S32776 (A.F. Ct. Crim. App. Apr. 17, 2026).

The case matters even though AFCCA labeled the opinion unpublished and nonprecedential. It shows how quickly a negotiated plea can become an appellate problem when the charging theory does not match the UCMJ’s structure. It also shows why court-martial experience matters. A military defense lawyer must know the punitive articles, the limitations on Article 134, the Care inquiry, the waiver doctrine, and appellate remedies before advising a client to plead guilty or before deciding whether to challenge a specification.

At Cave & Freeburg, LLP, we look for these issues because they often hide in plain sight. The question is not merely whether the accused admitted misconduct. The question is whether the Government charged a valid offense, proved or obtained admissions to every required element, and used a theory Congress allows under the UCMJ.

Recess Pressure, Pleas, and Forensic Experts: NMCCA Affirms in United States v. Rentas

May 7, 2026 | The Law Office of Philip D. Cave

NMCCA affirmed a Marine’s child pornography pleas despite claims that counsel pressured him during a recess and failed to hire a digital forensic expert. A military defense lawyer at Cave & Freeburg explains the takeaways.

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United States v. Rentas: When “Trash” Almost Sank a Plea—And the IAC Claim That Followed

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.

Statute of Limitations

November 26, 2024 | The Law Office of Philip D. Cave

Statutes of limitations are legal deadlines for filing criminal charges. They are essential because:

Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.

Don Rehkopf as a reminder to defense counsel

July 24, 2019 | The Law Office of Philip D. Cave

Here is something from good friend Don Rehkopf as a reminder to defense counsel.

1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or

2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD;

Plea agreement waivers

August 5, 2018 | The Law Office of Philip D. Cave

Navy Times reports the NMCCA decision in United States v. Saugen. “Ensign Joseph P. Saugen, 26, remains in San Diego’s Naval Consolidated Brig Miramar serving a three-year sentence after pleading guilty to two specifications of possessing child pornography and another for distributing the illicit videos.”

In Saugen, the Appellant executed a pretrial agreement. One of the standard terms in that agreement was,

to waive all motions except those that are otherwise nonwaivable pursuant to [RULE FOR COURTS-MARTIAL] 705(c)(1)(B). I have not been compelled to waive my right to due process, the right to challenge the jurisdiction of the court-martial, the right to a speedy trial, the right to raise the issue of unlawful command influence, or any other motion that cannot be waived. I have no motions to bring and I am not aware of any motion that was waived pursuant to this provision. [1]

Pretrial agreement terms

February 4, 2018 | The Law Office of Philip D. Cave

In general a court-martial accused can waive most rights and privileges in a pretrial agreement. A common term where there are multiple accuseds (drug or sexual assault cases for example) is an agreement to testify truthfully in another court-martial. But,

Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).

And

The Terlap sentencing issue

October 9, 2017 | The Law Office of Philip D. Cave

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence. The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.”

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

WorthTheRead-complexities of good time credit

October 12, 2015 | The Law Office of Philip D. Cave

Here is another case where a military prisoner has sought habeas corpus relief, in the Kansas District Court (the Tenth Circuit).

Valois v. Commandant, USDB

The case provides a fascinating discussion of the maze and complexities of DoD and Service regulations the award of good time credit, work abatement, and such, applicable to clients confined at the USDB.

Worth your read-pretrial agreements

January 24, 2015 | The Law Office of Philip D. Cave

Military law and practice requires that any pretrial agreement discussions be conducted between the defense, the prosecutors, and the convening authority. The military judge is not allowed to be involved. The military judge’s involvement is during trial when she reviews a PTA with the accused to ensure it is all transparent and that it’s terms do not offend law or significant policy considerations. Historically, courts have been reluctant to permit agreements to incorporate terms that deprive an accused of basic fundamental rights. See e.g., United States v. Callahan, 22 C.M.R. 443 (A.B.R. 1956); United States v. Cummings, 38 C.M.R. 174, 177 (C.M.A. 1968); and United States v. Schmeltz, 1 M.J. 8 (C.M.A. 1975). R.C.M. 705 specifically lists examples of permissible and impermissible terms in a pretrial agreement.

The Court of Military Appeals in United States v. Schaffer, 12 M.J. 425, 428 (C.M.A. 1982) opened the door to non-traditional bargained for PTA provisions when it expressly acknowledged a judicial willingness to accept more complex PTAs, especially when the proposed term is proposed by the accused and his defense counsel. For some odd terms the courts don’t like:
An agreement providing for a reduction of the accomplice’s confinement sentence by one year for each occasion that the accomplice testified against his co-accused. The court in United States v. Scoles, 33 C.M.R. 226, 232 (C.M.A. 1963) held that the agreement “offered an almost irresistible temptation to a confessedly guilty party to testify falsely in order to escape the adjudged consequences of his own misconduct.”