Court-Martial Trial Practice Blog

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:

Post-trial delay

April 22, 2025 | The Law Office of Philip D. Cave

The recent Coast Guard case outlines nicely for an accused and military defense counsel how an appellate court evaluates lengthy post-trial delay.

1. Governing Framework for Post‑Trial Delay

Courts evaluate post‑trial processing under two independent regimes:

Severance of charges

April 22, 2025 | The Law Office of Philip D. Cave

What is the bottom line for a military defense counsel or accused who want to sever court-martial charges? Southworth is the leading military case on the subject.

Factual Synopsis

Appellant faced a single, joint general court‑martial for two sexual‑assault episodes committed on successive evenings, 5–6 August 1995. The first involved AL, an adult Navy sailor, in a barracks “group‑sex” setting; the second involved LP, a 13‑year‑old civilian dependent, in a storage shed at a base festival. Before trial the defense sought severance under Rule for Courts‑Martial (RCM) 906(b)(10), contending that joinder posed an undue “spillover” risk because evidence from one incident would be inadmissible at a separate trial on the other. The military judge denied severance but offered special findings and ultimately instructed members that each specification must “stand on its own.” The panel acquitted appellant of raping AL (convicting only of indecent assault, later set aside for factual insufficiency) and convicted him of raping LP. On appeal, appellant claimed that the AL evidence impermissibly bolstered the LP case and that the limiting instruction was inadequate.

Right to counsel and continuances

April 22, 2025 | The Law Office of Philip D. Cave

In Weisbeck, the Court of Appeals for the Armed Forces addressed the question of a delay in trial after the accused hired a civilian counsel. This is a case your military defense counsel should be aware of. The case does not hold that a delay is automatic, but it does outline how an accused may make arguments in his favor.

An important point is what happens when the prosecution wants to offer evidence under Mil. R. Evid. 404(b), and the defense needs time to investigate and respond to that evidence.

United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) — Summary

Family Advocacy Program and Due Process

April 21, 2025 | The Law Office of Philip D. Cave

Here is a summary of an interesting article about how the Army FAP denies a servicemember of due process, and recommending changes.

We at Cave & Freeburg, have represented many servicemembers caught up in the FAP.

Executive Summary

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

Other acts-predisposition-Rule 404(b)

March 30, 2025 | The Law Office of Philip D. Cave

You are on trial for an offense and the prosecution wants to introduce evidence against you under Military Rule of Evidence 404(b). How does that work and what can your military defense lawyer do to exclude such evidence.

The first step is to object to the evidence before trial by filing a motion in-limine. Your military defense lawyer will then argue why the evidence is not admissible and challenge the prosecution’s arguments for admission.

Should something come up during trial, your military defense counsel must object to preserve the issue in the event of an appeal. Failure to object may result in the appellate courts deciding you have “waived” the issue and will refuse to consider it. Or, sometimes the appellate court will apply a less stringent “plain error” review.