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The case matters even though AFCCA labeled the opinion unpublished and nonprecedential.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

(rentas-nmcca-providence-ineffective-assistance-military-defense-lawyer)

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

United States v. Byrd (AFCCA 2026) — Delta-8 THC

April 30, 2026 | The Law Office of Philip D. Cave

The Air Force Court of Criminal Appeals set aside an Airman’s drug conviction because the Government failed to prove delta-8 THC was a Schedule I controlled substance. A military defense lawyer at Cave & Freeburg explains what it means.

(delta-8-thc-article-112a-byrd-military-defense-lawyer)

Delta-8 THC and Article 112a, UCMJ: Why the Government Lost in United States v. Byrd

UCMJ Appeal-Factual Sufficiency-Cave & Freeburg, LLP

March 30, 2026 | The Law Office of Philip D. Cave

A change to Article 66, UCMJ, has created difficulties in interpreting and applying the factual sufficiency standard of review and in deciding whether a charge should be set aside. Note: this change only affects cases where ALL findings of guilt are based on conduct alleged to have been committed before 1 January 2021. If it’s a bridge case — convictions for an offense both before and after 1 January 2021 — the old rule applies. Call Cave & Freeburg, LLP, at (703) 298-9562 or (917) 701-8961 to discuss your case.

Your Court-Martial Appeal and the Date of Your Offense: Why It Matters More Than You Think

If you were convicted at a court-martial, one fact could shape your entire appeal: the date the alleged offense occurred. Not the date of your trial. Not the date you were sentenced. The date of the offense itself.

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

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.