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

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

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

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.

Defining meaning from words in a statute

September 24, 2023 | The Law Office of Philip D. Cave

Generally

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

Speed up post trial review

September 1, 2023 | The Law Office of Philip D. Cave

Have you been convicted at court-martial? Want a speedy review of your case for appeal?

There are two major roadblocks: (1) having the record of trial delivered to and docketed with the Air Force, Army, Coast Guard, or Navy-Marine Corps Court of Criminal Appeals and (2) the workload of the military appellate defense counsel. The roadblocks are, in my opinion, the Service Judge Advocate General’s fault in not assigning enough people to complete post-trial actions or work on the appeal promptly.

Immediately after the trial, there has to be a formal Entry of Judgment–which usually takes 30-45 days to complete. Then, the Government must prepare a full trial record forwarded to the appellate court and the military appellate defense lawyers who will work on the appeal. Here is where most of the delay can happen. These records take time to prepare–and too often, the Government takes an unreasonably long to do this. Records can take six to two years to get to the appellate court before the appellate defense counsel can get to work, and a decision comes from the court. We have a case right now where it took 412 days. The Navy-Marine Corps just decided on a case that took about ten years.

Challenge MRE 311!

July 18, 2023 | The Law Office of Philip D. Cave

YOUR MILITARY DEFENSE COUNSEL SHOULD CHALLENGE THE APPLICATION OF THE MILITARY RULE OF EVIDENCE 311.

THE RULE VIOLATES THE U.S. CONSTITUTION.

WE ARE CHALLENGING THAT AT THE U. S. SUPREME COURT NOW.

Unanimous verdicts

May 9, 2023 | The Law Office of Philip D. Cave

Military lawyers know that since the Supreme Court decided Ramos v. Louisiana, the U. S. military is the only federal jurisdiction that does not require unanimous findings of guilt.

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

Another bad day at CAAF for the Fourth Amendment.

May 7, 2023 | The Law Office of Philip D. Cave

Two recent decisions of CAAF condone unlawful or bad practices when OSI, CID, NCIS, and CGIS search cellphones; United States v. Shields and United States v. Lattin. As a result, the MCIOs are unlikely to change their unlawful or bad practices. More than sloppy police work gets two passes because the military appellate courts think suppression of evidence won’t change that behavior–and the accused is a bad person. Military defense lawyers need to be fully aware of the issues whenever evidence from an accused’s cellphone comes up in evidence.

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.