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.

Article 120, UCMJ, and Mendoza

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

United States v. Mendoza, No. 23‑0210 (C.A.A.F. Oct. 7, 2024), along with a review of the historical evolution of Article 120, UCMJ.

The Air Force is now challenging four decisions of the Air Force Court of Criminal Appeals (AFCCA) before the Court of Appeals for the Armed Forces (CAAF) because they disagree with AFCCA setting aside Article 120, UCMJ, convictions based on the Mendoza case.

We at Cave & Freeburg, LLP, represent one of the four.

Third party consent to searches in the military under the UCMJ

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

A recent case from the Court of Appeals for the Armed Forces (CAAF) highlights the ongoing problem of third-party consent to search of you property. For example, your wife consents.

United States v. Brinkman‑Coronel, Docket No. 24‑0159 (C.A.A.F. May 28, 2025) U.S. Courts – Armed Forces+1Justia Law+1, with historical context on recusal and consent-search doctrine in courts-martial.

1. 🧑‍⚖️ Case Summary

Gun possession after court-martial

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

If you are convicted of certain offenses or a sentenced to a dishonorable discharge, you may lose your right to own, possess, use, and buy a firearm. Your military defense lawyer can tell about the effects of those convictions under the UCMJ.

United States v. Johnson, No. 24‑0004 (C.A.A.F. 2025), along with broader context on 18 U.S.C. § 922(g) firearm prohibitions in courts-martial:

📘 Case Summary: United States v. Johnson

Batson and members challenges

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

United States v. Thomas, Docket No. 24‑0147 (C.A.A.F. June 2025). Batson challenges are relatively rare in courts-martial, and that’s something your military defense counsel should know about. Thomas is a recent example of how such a challenge should be conducted and evaluated.

The history of Batson v. Kentucky, 476 U.S. 79 (1986), in courts-martial reflects the adaptation and development of equal protection principles within the military justice system, particularly as applied to peremptory challenges during member (jury) selection. Below is a structured and detailed history, tracing its introduction, doctrinal development, and modern application in military courts.

I. 🧾 Batson v. Kentucky (1986): Civilian Origin

You have rights

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

Military defense counsel advised a client in trouble under the UCMJ will know about the right to silence and counsel.

1. Fifth Amendment Rights & Article 31, UCMJ — Overview

Fifth Amendment

Access to psych records

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

United States v. Mellette. Your military defense counsel needs to know about and understand this case.

📘 1. Background and Prior History

Accused & Charges
EM1 (Nuclear) Wendell E. Mellette, Jr. was tried by general court-martial at NAS Jacksonville in August 2019. Contrary to his plea, he was convicted under Article 120b, UCMJ (sexual abuse of a child) for committing sexual contact upon his 15-year‑old sister-in-law. He received five years’ confinement and a dishonorable discharge afcca.law.af.mil+10Lewis & Clark Law School+10Findlaw+10.

Virtual pornography

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

Case Summary and Analysis: United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009), that your military defense lawyer should consider. The Court of Appeals for the Armed Forces is about to get the case of United States v. Rocha, to consider private conduct which may or may not offend.

I. Background and Procedural History

Lieutenant Junior Grade Brendan C. Forney, U.S. Navy, was convicted at a general court-martial of conduct unbecoming an officer and a gentleman under Article 133, UCMJ, 10 U.S.C. § 933, for possessing child pornography. The pornography, consisting of approximately 1,700–1,800 images of naked adolescent girls aged 10–15, was found on government computers aboard the USS David R. Ray while the ship was underway.

Gambling–UCMJ

July 4, 2025 | The Law Office of Philip D. Cave

There are new reports that gambling by servicemembers is becoming a significant problem.

Patty Nieberg, Gambling addiction in the military may be going unnoticed, advocates warn. Task & Purpose, 3 July 2025.

Gambling is not per se criminalized under the Uniform Code of Military Justice (UCMJ), but it can be punished under several punitive articles when associated with misconduct that undermines good order and discipline. This is something your military defense counsel should know and be prepared to defend against.

You get what you ask for — Article 32s

May 1, 2025 | The Law Office of Philip D. Cave

For those who practiced under the “old” Article 32, UCMJ, it was considered an important stage in whether a person would be prosecuted at a general court-martial. Any military defense counsel who practiced before 2020, they would remember what the original Court of Military Appeals (CMA) (the name has since been changed to U.S. Court of Appeals for the Armed Forces (CAAF) said in 1959 (just nine years after the UCMJ was enacted) that the Article 32 investigation “serves a twofold purpose. It operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges.” In addition, the investigating officer was required to be independent and impartial–a quasi judicial actor, as the CMA said in the Reynolds case.

An Article 32 investigation is intended to establish if “probable-cause” exists before a charge can be referred to a court-martial. The “old” Article 32 hearing was an adversarial hearing where the accused could produce evidence, be represented by counsel, could remain silent, give an unsworn statement, or testify, and counsel could cross-examine witnesses.

Some of the benefits for the accused and military defense counsel included: