Here is the view of the military defense lawyers at Cave & Freeburg, LLP, on how the preemption doctrine can be applied at court-martial.

United States v. Marschalek, No. ACM S32776 (A.F. Ct. Crim. App. Apr. 17, 2026) (unpublished), offers a useful reminder that charging decisions matter as much on appeal as they do at trial. The Air Force Court of Criminal Appeals held that the Government could not use Article 134 to plead around Article 120c when the conduct at issue was, in substance, indecent exposure. The court set aside the finding and sentence because Article 120c covered the field and Article 134 could not serve as a watered-down substitute.

For trial counsel, defense counsel, and appellate counsel alike, Marschalek matters because it ties preemption to the Government’s burden of proof. The decision warns that once Congress creates a specific punitive article for a defined kind of sexual misconduct, the Government cannot simply relabel the same conduct under Article 134 and delete a vital element. That point becomes especially important in cases involving guilty pleas, plea negotiations, and exceptions and substitutions to specifications.

The preemption doctrine

Preemption limits Article 134. In military practice, Article 134 fills gaps. It does not give the Government a free hand to recreate offenses that Congress has already addressed in Articles 80 through 132. Marschalek restated the familiar two-part test: preemption applies when Congress intended a specific punitive article to cover a class of misconduct in a complete way, and the Article 134 offense is made up of a residuum of the elements of that specific offense.

That doctrine exists for a practical reason. It prevents the Government from taking an enumerated offense, stripping out a difficult element, and charging the remaining conduct as a simpler Article 134 offense. In Marschalek, that concern drove the analysis. Article 120c required proof that the exposure was intentional. The Article 134 indecent-conduct theory to which the accused pleaded guilty did not.

Why Article 120c mattered

The court treated the statutory history as highly significant. Before 2007, indecent exposure appeared in the Manual as an Article 134 offense. Then the offense moved into the sexual-offense framework under Article 120. Later, Congress placed it in Article 120c, a narrower article that specifically addressed indecent exposure. The majority read that progression to mean Congress had moved indecent exposure out of the general article and into a specific punitive article designed to govern that misconduct directly.

That history mattered because the specification the accused ultimately admitted did not describe some broader or different form of indecent conduct. It described standing at or near the door of his residence naked in view of the public. In the majority’s view, that was indecent exposure “no more or no less.” Once the conduct fit Article 120c, the Government could not shift to Article 134 merely because Article 134 offered an easier route to conviction.

Article 120c versus the older Article 134 charging approach

Marschalek is especially useful because it contrasts the current structure with the older practice. Under the earlier regime, indecent exposure could be charged under Article 134. After Congress and the President moved that offense into the more specific sexual-misconduct articles, however, the charging landscape changed. The court read that change as substantive, not cosmetic. In other words, Article 120c did not merely coexist with Article 134 as one more option. It displaced Article 134 when the conduct charged was actually indecent exposure.

The mens rea issue sharpened the point. Article 120c required the Government to prove intentional exposure. The modified Article 134 specification required proof that the conduct was indecent and service discrediting, but not that the exposure was intentional. The court viewed that omission as exactly the kind of dilution the preemption doctrine forbids. The terminal element of Article 134 did not save the charge, because courts do not count that terminal element when deciding whether an Article 134 offense is merely a residuum of a more specific offense.

Why the guilty plea did not cure the problem

The accused entered into a plea agreement under which he pleaded guilty to an amended Article 134 specification, while the Government dismissed the Article 120c specifications with prejudice. The Government argued that he had waived preemption by making that bargain. The majority rejected that argument. Relying on existing military precedent, the court treated preemption as a jurisdictional problem that a guilty plea does not waive.

That part of the decision carries real trial-level consequences. Counsel cannot assume that a negotiated plea will insulate a legally defective charge from review. If the Government accepts a plea to an Article 134 offense that Article 120c preempts, the case still carries appellate risk. Marschalek therefore serves as a warning to litigators on both sides: the parties may bargain over facts and forum, but they cannot bargain around a charging theory that the law does not allow.

What practitioners should take from the case

Marschalek teaches three practical lessons. First, counsel should test the charging theory early. If Congress has enacted a specific punitive article for the conduct, Article 134 may not remain available. Second, counsel should compare elements closely and pay particular attention to mens rea. A missing intent requirement may look like a simple pleading choice, but it can become the decisive sign that the Government has created a diluted Article 134 version of a specific offense. Third, counsel should revisit preemption during plea negotiations. A plea agreement that appears to narrow exposure may instead create a reversible defect.

The decision also shows why appellate counsel must read beyond the label attached to the specification. A charge called “indecent conduct” may still amount to indecent exposure if the facts and elements line up that way. In Marschalek, the court looked past the title of the offense and focused on substance. That is often where the strongest appellate issue lives.

Conclusion

Marschalek gives practitioners a clean statement of a simple rule: when Congress has specifically addressed indecent exposure in Article 120c, the Government cannot revive the old Article 134 route by charging the same conduct without the intent element. For lawyers trying cases and handling appeals, that rule affects charging strategy, motion practice, plea advice, and post-trial review.

At Cave & Freeburg, LLP, we pay close attention to issues like this because they often hide in plain sight. A case may look resolved at trial, especially after a plea agreement, yet still contain a serious defect in the charge itself. Careful counsel must spot those issues before findings are entered, preserve them when necessary, and know how to litigate them on appeal when the Government pushes Article 134 beyond its proper limits.