— Court-Martial Trial Practice Blog

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The case matters even though AFCCA labeled the opinion unpublished and nonprecedential.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.

The issue of first impression

Marschalek presented a precise first-impression problem in the Article 120c context. The military justice system already had preemption doctrine. It already had cases explaining that Article 134 cannot serve as a catch-all when Congress has occupied the field. But this case forced AFCCA to apply that doctrine to the modern Article 120c indecent-exposure framework after a plea agreement changed the wording of the specification.

The original case included Article 120c specifications alleging indecent exposure and an Article 134 specification alleging indecent conduct. The plea agreement did something important. It removed the words “outside” and “masturbating” from the remaining Article 134 specification and substituted language alleging that the accused stood “at or near the door” of his residence “naked” in public view. The Government then dismissed the Article 120c specifications with prejudice. That bargain narrowed the facts, but it also sharpened the legal defect.

The resulting question was straightforward: once the facts described indecent exposure, could the Government keep the case under Article 134 and avoid proving that the exposure was intentional? The majority held that it could not. That answer matters because Article 120c(c) requires proof of intentional exposure. The amended Article 134 specification required proof of indecent, service-discrediting conduct, but it did not require proof that the exposure was intentional.

Why the court treated Article 120c as controlling

AFCCA focused on substance, not labels. The Government called the offense “indecent conduct,” but the amended specification described a person standing at or near a door naked in public view. The court treated that conduct as indecent exposure “no more or no less.” Once the conduct fit Article 120c, the Government could not use Article 134 as an easier substitute.

The statutory history carried much of the weight. Indecent exposure once appeared as an Article 134 offense. The law then moved indecent exposure into Article 120, and later into Article 120c. The majority read that movement as meaningful. Congress did not merely create another optional charging theory. It placed indecent exposure into a specific punitive article with a specific mens rea requirement.

That mens rea requirement drove the preemption analysis. Article 120c required intentional exposure. The Article 134 theory did not. The court refused to count the Article 134 terminal element as a meaningful distinction for preemption purposes. That left intent as the only material difference. And deleting a vital element from a specific punitive article is exactly what preemption doctrine prevents.

Cave & Freeburg has addressed this same practical problem in our prior discussion of Preemption, Article 120c, and the Limits of Article 134 and in our earlier analysis of UCMJ indecent exposure and the preemption doctrine. The charging label does not control. The elements and the factual theory control.

Why the guilty plea did not solve the problem

The Government argued waiver. That argument had surface appeal because the accused entered a plea agreement, pleaded guilty to the amended Article 134 specification, and agreed to waive all waivable motions. The majority rejected that argument under AFCCA precedent treating preemption as a jurisdictional issue that a guilty plea does not waive.

That portion of the opinion serves as a powerful reminder to military defense counsel. A plea agreement can resolve many litigation risks, but it does not automatically cure a charge that the law does not permit. If Article 134 cannot carry the offense because Article 120c occupies the field, then a client’s admission does not transform the specification into a valid charge.

The dissent saw the waiver issue differently. Judge Morgan would have held that the unconditional guilty plea to a Clause 2 Article 134 offense waived the preemption challenge. Alternatively, the dissent would have reviewed for plain error and found no material prejudice because the accused bargained for the very Article 134 theory he later attacked. That dissent highlights the unsettled edge of the doctrine. It also makes Marschalek a strong blog-worthy case: the result rested not only on Article 120c, but also on waiver, guilty pleas, jurisdiction, and appellate remedies.

That is the same lesson we drew from our post on guilty pleas under the UCMJ. A guilty plea does not end the analysis. The judge, counsel, and appellate courts still must examine whether the plea rests on a valid legal theory and a sufficient factual basis.

What the case teaches trial and appellate lawyers

First, defense counsel should test the charging theory early. Article 134 remains important, but it does not give prosecutors a free hand to repackage offenses Congress placed elsewhere in the UCMJ. A motion to dismiss for failure to state an offense or preemption may change the case before trial, before a plea, or on appeal.

Second, counsel must compare elements, not just offense titles. In Marschalek, the decisive difference was intent. If the Government uses Article 134 to avoid a mens rea element in Article 120c, the defense should ask whether the Government has stripped away a vital element. That question requires close familiarity with both the Manual for Courts-Martial and CAAF preemption cases such as Kick, Avery, Wheeler, and Grijalva.

Third, counsel must scrutinize plea agreements. A plea that appears to reduce exposure may create a new appellate issue if the amended specification no longer tracks a valid offense. That is especially true in sex-offense cases, digital-evidence cases, and Article 134 cases where prosecutors may charge overlapping theories.

Fourth, appellate counsel must read the record for legal structure, not just factual sufficiency. The strongest issue may not be whether the accused did something wrong. The strongest issue may be whether the Government charged the wrong article, deleted the wrong element, or asked the military judge to accept a plea to an offense the UCMJ does not allow.

Why experienced court-martial military defense counsel matter

Military criminal practice differs from civilian criminal practice in important ways. Article 134, the punitive articles, the Rules for Courts-Martial, military guilty-plea practice, and Article 66 appellate review all interact. A lawyer who misses one part of that structure can miss the issue that decides the case.

Article 120c cases prove the point. The Government must prove specific conduct, specific private-area or exposure requirements, and the required mental state. Cave & Freeburg discusses those proof problems in our Article 120c UCMJ defense page. We also address preemption in related charging contexts, including image-broadcasting and Article 117a issues, in our discussion of CSAM and contraband-image allegations at court-martial.

Jurisdiction and waiver issues require the same precision. Our discussion of court-martial jurisdiction explains why a defect can survive a plea, a dismissal provision, or a lack of objection. Our appellate work also tracks how service courts review convictions and identify legal errors in the record. See our discussion of UCMJ appeals and factual sufficiency for another example of how appellate standards shape real outcomes.

The practical point is simple. Court-martial defense demands more than general criminal-law experience. It demands counsel who can move between trial strategy, statutory interpretation, evidentiary burdens, plea practice, and appellate preservation. Marschalek shows why.

Bottom line

Marschalek turns a narrow indecent-exposure plea into a broad court-martial lesson. When Congress creates a specific punitive article, the Government cannot use Article 134 to make the case easier by deleting a vital element. Article 134 fills gaps. It does not let prosecutors plead around Article 120c.

For servicemembers, the case underscores the need for experienced military defense counsel before entering a plea agreement. For trial lawyers, it shows why charging theory matters. For appellate lawyers, it confirms that an issue can survive even when everyone at trial believed the case had been resolved.

At Cave & Freeburg, LLP, we litigate these problems in courts-martial and military appeals. We analyze the charge sheet, the elements, the plea agreement, the Care inquiry, and the appellate record because any one of those points can decide the case.

This post provides general information about military law and courts-martial. It does not create an attorney-client relationship and does not provide legal advice for any specific case.

Related Cave & Freeburg links

United States v. Marschalek, No. ACM S32776 (A.F. Ct. Crim. App. Apr. 17, 2026) (unpublished)