United States v. Richard, 83 M.J. ___ (CGCCA)
(Record of Trial) **

Appellant with two specifications of murder under Article 118, UCMJ[.] The first murder specification alleged Appellant did “with an intent to kill or inflict great bodily harm, murder [SFG], a child under the age of 16 years, by asphyxia.” The second murder specification alleged Appellant did “with knowledge that death or great bodily harm was a probable consequence, murder [SFG], a child under the age of 16 years, while engaging in an act which is inherently dangerous to another and evinces a wanton disregard of human life, to wit: by asphyxia.”
. . . 
​[CGCCA] conclude[s] that the specification failed to provide adequate notice of the act(s) or omission(s) on which the involuntary manslaughter conviction was based and that this error was not harmless beyond a reasonable doubt.

 The MCM’s sample specification for the charged offense of murder reads, in relevant part, that the accused did “murder ______ by means of (shooting (him) (her) with a rifle (_______)).” MCM, para. 56.e at IV-78. The shortcoming of the specification charged is not that charging authorities omitted the words “by means of.” It is that they missed the point: the model specification calls for alleging that the accused murdered someone by doing a specific thing—like “by means of shooting him with a rifle,” not by means of a cause of death like asphyxia or exsanguination. In the same vein, the Military Judges’ Benchbook advises instructing that the “death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged).” Together, these should act as guideposts to charging authorities not just to charge that some act or omission resulted in a certain cause of death, but to state what that act or omission was. 

U.S. Senators John Cornyn (R-TX) and Jeanne Shaheen (D-NH) today introduced their Safeguarding Tactics and Operational Procedures from (STOP) Enemies Act, which would update the Uniform Code of Military Justice (UCMJ) to prohibit active duty and retired service members from providing military education, military training, or tactical advice to foreign adversaries[.]
. . . 
​Article 103b of the UCMJ currently prohibits U.S. active duty and retired service members from providing material items such as arms, ammunition, supplies, or money to the enemy as well as harboring, protecting, or providing intelligence to the enemy. This legislation would clarify the scope of Article 103b to prohibit individuals subject to the UCMJ from providing military education, military training, or tactical advice to enemies of the U.S., which could include any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades; organized forces of the enemy in time of war; and members of military organizations.

Congressman Morgan Luttrell (R-TX), along with Representatives Dale Strong (R-AL), Chris Deluzio (D-PA), and Elissa Slotkin (D-MI), introduced the Safeguarding Tactics and Operational Procedures (STOP) from Enemies Act of 2024 in the House of Representatives.

​Vermillion China, an investigative organization that provides strategic analysis of US-China competition, identified that a Chinese national closely linked with the People’s Liberation Army (PLA) special forces received training from former U.S. special forces while living in the United States from 2014-2020. During this time, the Chinese operator took part in multiple tactical training courses held by former U.S. special forces, allowing the Chinese operator to gain tactical knowledge of U.S. special operations. In 2020, the Chinese operator returned to China and began training the People’s Armed Police and the PLA units on tactics, techniques, and procedures he learned from former U.S. special forces.

Brenner Fissell

Cyber-flashing, which can involve offenders sending people an unsolicited sexual image on social media, dating apps or by other electronic communication, became a crime in England and Wales on Jan. 31. It was part of the government's Online Safety Act.

United States v. Williams 

United States v. Colletti

The AFCCA began its analysis in Martinez by noting that neither party could cite precedent for charging the conduct at issue as wire fraud, and that the case raised an issue of first impression. Given that the wire fraud statute was enacted back in 1952, the absence of any precedent should have alerted the AFCCA—and subsequently the Government in this case—that it was “proceeding at flank speed…off course in thick fog, with no one on the bridge, helm or engine order telegraph.” As recently as last term, the Supreme Court again cautioned lower courts against embracing “novel” interpretations of the federal wire fraud statute. See, e.g., Percoco v. United States, 143 S. Ct. 1130, 1136 (2023), the AFCCA began its analysis by correctly holding that the federal wire fraud statute is “limited in scope to the protection of property rights[.]” But are digital images [alone] property for purposes of that statute? The AFCCA thought so.

In Ciminelli, the Court overruled this line of precedent and held that the right-to-control theory “cannot be squared with the text of the federal fraud statutes, which are ‘limited in scope to the protection of property rights.’”
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For its part, upon being haled before the Supreme Court in Ciminelli, the Government immediately beat a hasty retreat and abandoned the right-to-control theory. Despite relying on the right-to-control theory for decades, the Government conceded that if “the right to make informed decisions about the disposition of one’s assets, without more, were treated as the sort of ‘property’ giving rise to wire fraud, it would risk expanding the federal fraud statutes beyond property fraud as defined at common law and as Congress would have understood it.” “Thus, even the Government now agrees that the Second Circuit’s right-to-control theory is unmoored from the federal fraud statutes’ text.”
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But the Government makes no such concession here. Despite the repeated references in the record to Martinez, and Martinez’s express reliance on Second Circuit precedent like Percoco that has since been reversed, the Government insists Appellant “was not prosecuted under a ‘right-to-control’ theory.” No. Appellant was prosecuted, according to the Government, under an “exclusive use” theory, which the Government maintains is a “traditionally recognized property right.” Under this newly-minted, traditional property right, the victims in this case lost “the exclusive use over their intangible property—the sexually explicit depictions of their bodies in digital photographs.” Put another way, they lost the right to control the use of their digital images. Needless to say, that is “slicing the baloney mighty thin.”

"​schemed to deprive the intended victims of the fraud, the girls, the talent agency, and the photographer of property and money."
“schemed to defraud the models, their families, the photographer, and the modeling agency of various services and property of some value.”
​"actors expecting payment for an audition or performance."
"​Catfishing for profit, as the phrase suggests, describes catfishing in which the fake identity is used to obtain money from a duped victim.” 

​Indeed, this case heralds the arrival of the parade of horribles predicted in cases like Ciminelli and Cleveland. The Government’s “exclusive use” theory of criminal liability “makes a federal crime of an almost limitless variety of deceptive actions traditionally left to state contract and tort law—in flat contradiction with our caution that ‘absent a clear statement by Congress,’ courts should ‘not read the mail and wire fraud statutes to place under federal superintendence a vast array of conduct traditionally policed by the States.”

Judges interpret the law as written, not as they wish it were written. And Congress may yet empower the Government to police internet dating sites to ensure that Marines obtain nude photographs from otherwise consenting adults without resorting to loathsome deception. Congress just hasn’t done that in the federal wire fraud statute. 

United States v. Flores

However, this can be a hazardous legal path to tread when, as here, the CCAs are applying a new statutory provision. We have entered an era where there are many changes afoot in the military justice system. Mischief will result if this Court fails not only to provide crisp, clear guidance to the CCAs about the practical effects of those changes[.]

​In addition to reviewing the appropriateness of each segment, the CCAs must also continue to review the appropriateness of the entire sentence.

Alex Eckhardt

Class of 2026, Villanova University Charles Widger School of Law

United States v. Hasan

United States v. Ramirez

Appellant asks this Court to decide whether the military judge improperly denied his request to ask a question about racial bias during voir dire. For the reasons set forth below, we conclude that the military judge did not clearly abuse his discretion and affirm the judgment of the CCA.