In United States v. Varlaro, __ M.J. ___, ARMY 20240319 (A. Ct. Crim. App. 29 June 2026), the court affirmed a willful damage of non-military property conviction under Article 109, UCMJ, and in doing so extended transferred-intent and concurrent-intent doctrine—long confined to the law of homicide—to a crime against property. The opinion is short, candid about the novelty of its holding, and worth attention for the doctrinal move at its center.

The facts

During an argument, the appellant began what the court called a rampage in a parking lot: he beat his wife’s car, slammed its doors, tore her suitcase, and threw her backpack “hard” onto the pavement. The backpack held a laptop the appellant says he did not know was there. The laptop was destroyed. The government charged a single Article 109 specification for the laptop. A military judge sitting alone convicted on that count, along with charges under Articles 90, 115, 121, 128b, 129, and 131b, and acquitted on an Article 120 sexual-assault specification and an Article 130 stalking specification.

The legal-sufficiency holding

The appellant’s lead argument was that the government failed to prove specific intent to damage the laptop because it offered no evidence he knew the backpack contained one. The court rejected the premise that knowledge of the specific item is required, resting on three independent grounds: a factfinder may find that a person intends the natural and probable consequences of his acts; a factfinder may use common sense to infer that the appellant felt the backpack’s heft and knew it was not empty; and the manner of the act itself supplies circumstantial evidence of willfulness under the Manual.

Distinguishing Saul

The appellant leaned on United States v. Saul, 86 M.J. 30 (C.A.A.F. 2025), where CAAF found a guilty plea improvident after the accused said he never intended to crack the windshield he struck. The Varlaro court distinguished Saul as a providence case: the question there was whether the accused believed he was guilty, not whether the government could prove guilt beyond a reasonable doubt. Because Varlaro was contested, the factfinder could draw inferences unavailable to a judge testing a plea. The distinction is well grounded in Faircloth and in Saul itself, which expressly contemplated that a contested trial “might or might not” produce sufficient circumstantial proof of willfulness.

The novel move: transferred and concurrent intent

The court could have stopped at ordinary inference. It did not. It went on to hold that transferred intent and concurrent intent—doctrines drawn from the homicide line, principally United States v. Willis, 46 M.J. 258 (C.A.A.F. 1997), and the “kill zone” authorities it cites (Ford, Ruffin)—apply with equal force to Article 109. Taking the Willis formulation and substituting “damage or destroy” for “kill,” the court reasoned that the proven intent to damage the backpack transferred to its contents, and that the rampage created a zone of danger encompassing the property within the appellant’s reach.

The strongest case for the holding

The court’s reasoning has real force. Transferred and concurrent intent are, at bottom, tools for proving a single mens rea—intent to bring about a specified result—and Article 109 and intentional homicide share that mental state. The Manual nowhere bars transferred intent for property crimes, and it is equally silent on transferred intent for intentional murder under Article 118(2), yet the doctrine indisputably applies there. The court read Saul’s statement that transferred intent “do[es] not apply here” as fact-bound--Saul involved one item and one act, leaving nothing to transfer from—rather than as a categorical exclusion. On that reading, Varlaro fills a gap CAAF left open.

The strongest case against it

The counterargument is that the court reached doctrine it did not need and imported it from an ill-fitting source. The ordinary natural-and-probable-consequences inference already disposed of the case; the transferred- and concurrent-intent discussion is arguably dicta dressed as holding. More substantively, the “kill zone” cases respond to a specific problem—a defendant who sprays gunfire to guarantee a target’s death and thereby imperils bystanders—and their logic does not obviously map onto a man throwing a bag. One might also read Saul’s rejection of transferred intent more broadly than the panel did. And there is a line-drawing worry: if intent to damage one item transfers to everything in a “zone,” the contours of Article 109 liability in any multi-object outburst become difficult to predict. CAAF has not spoken to any of this, and the question is a clean candidate for review.

The sentencing wrinkle

Separately, the panel found that the military judge miscalculated confinement. He announced 374 days, then convened a post-adjournment Article 39(a) session to “correct” a perceived 30-day overage by running one specification concurrently—an adjustment that in fact reduced the total to 344 days. Invoking the principle that an accused should not be harmed by computational error, the court affirmed only 344 days. It also corrected two clerical errors in the Statement of Trial Results.

A question for the comments

The UCMJ already supplies a tailored, commander-administered remedy for exactly this conduct—a servicemember who wrongfully takes or willfully damages another’s property. Article 139 of the UCMJ, the oft-forgotten claim, allows the victim to recover from the offender’s pay through the command, with no court-martial required. It is a staple of the seagoing legal-officer’s toolkit, usually administered alongside shepherding the offender to NJP. Stealing and damaging personal belongings aboard ship ain’t conducive to morale and good order and discipline--so your prompt attention to this matter is encouraged.

So, did the wife ever submit an Article 139 claim? The opinion does not say, and nothing requires it to. If so, was it filed first, while there was a paycheck to draw from? While it’s appropriate to applaud the accountability, it would have been nice for the wife if she were not out of pocket for a new computer. This is one of the few ways for restitution. When did you last see an Article 139 claim actually filed, and would one have changed anything here?

Thursday, June 25, 2026
Order Granting Petition for Review
 
No. 26-0179/NA. U.S. v. Brian J. Sumpter. CCA 202400329. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following assigned issue:
 
Whether this Court should overturn its decision in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), considering the Supreme Court's decision in Harrow v. Dept. of Defense, 601 U.S. 480 (2024), and hold the sixty-day deadline to appeal a Court of Criminal Appeals' decision is not jurisdictional.
 
Appellant will file a brief on or before 15 July, 2026; Appellee will file an answer brief no later than 21 days after the filing of Appellant's brief; and Appellant may file a reply brief no later than 7 days after the filing of Appellee's answer brief.
 
The Court reserves judgment on whether it will grant, deny, or dismiss assigned issue II.

In United States v. Bass, in a somewhat fractured decision Appellant's conviction is set aside with authority to conduct a rehearing. 

Wednesday, June 17, 2026
Certificate for Review
 
No. 26-0223/MC. United States, Appellant v. Joel Gonzalez, Appellee. CCA 202500333. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:
 
Did the lower court err finding the sentence plainly unreasonable, where the sentence was bargained for and within parameters and where trial counsel chose not to exercise discretion under R.C.M. 1109 to issue a substantial assistance letter?

​NMCCA decision.

Cert. denied.

Miller has now filed a reply to the SG. Petitioner argues that the new argument, not made before CAAF is that the Sixth doesn't apply to a court-martial. This retrograde argument would take us back decades to a rougher form of justice. Goodness, what will they argue next, no Fifth, no Fourth, and no Eighth--ooh, bring back the plank, let's give new meaning to "swim call" while on cruise. 

Tuesday, June 16, 2026
Certificate for Review
 
No. 26-0221/AF. U.S. v. Hannes Marschalek. CCA S32776. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
 
I.   Can an accused waive a claim of preemption under Article 134, UCMJ?
 
II.  Did the appellee waive his preemption claim through either his unconditional guilty plea or the waive all waivable motions provision in his plea agreement, or both?
 
III. If appellee did not waive his preemption claim, was Article 134, UCMJ, offense to which appellee pleaded guilty preempted by Article 120C, UCMJ, under a plain error standard or otherwise?
​

One to watch.

No. 26-0170/AR. U.S. v. Rene D. Alfaro. CCA 20220282. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
 
Whether the Army Court incorrectly held that Mil. R. Evid. 513 is absolute and a military judge must ignore exculpatory materials that he examines in camera.
 
Supplement brief       No reply brief
Appellant's brief       Appellee's brief       Appellant's reply brief

ACCA opinion.

AI is a useful tool--certainly way better than boolean searching. Having tried ChatGPT, Gemini, Claude, OpenCase, and Perplexity, Claude seems to be the better solution, not just on results, but cost. It's worth it to run any result through Grammarly's AI checker. However, if you don't check the cites, the quotes, and read the case . . .

It took 2 minutes to write this query in Claude Fable 5 High

"What is your answer to this question. "Whether the Army Court incorrectly held that Mil. R. Evid. 513 is absolute and a military judge must ignore exculpatory materials that he examines in camera." Army court decision uploaded and Appellant's Supplement here at https://www.armfor.uscourts.gov/briefs/2025Term/Alfaro260170Supplement.pdf.

This is what was pumped out about five minutes later.

Many years ago, I had a client kill himself at the DB after his Dubay hearing but before he got the good news--the Dubay judge found IAC and recommended a new trial. His case was abated — it was a mandatory review case, and briefs had been filed. His wife and children did get his death benefits (there was a time when SGLI was questionable, but that resolved because there's no "suicide" clause. There is history and law on this issue of death-on-appeal. But first, AFFCA has entered an order in United States v. Cox, No. ACM 26038 (A.F. Ct. Crim. App. Jun. 5, 2026) (Order) on the question--now what.

The Constitutionality of the Special Trial Counsel Under the Apogee of Judicial DeferenceAuthors. Josef Danczuk, 46 Pac L. Rev. 145 (2026).

Abstract

​Congress has undertaken some of its broadest reforms of military courts-martial in decades. The creation of the Special Trial Counsels (STCs) intentionally removes nearly all courts-martial powers from military commanders for “covered offenses,” some of the most serious prosecutions. Many commentators have expressed concern that this change untethers the courts-martial system from its historical anchor of discipline within the military—an anchor that the Supreme Court has used to grant exceptional deference to Congress for its legislation pursuant to the Make Rules Clause. However, the constitutionality of the STCs and the deference federal courts grant Congress in this realm should not be considered in jeopardy. STCs are akin to many prior Congressional exceptions to the command-centric disciplinary model. And under Ortiz v. United States, the Supreme Court’s most recent courts-martial case, STCs are neatly within the courts-martial’s supporting aims of discipline and justice.