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UPDATED 29082025. After you read Goins (or before), read United States v. Torres Gonzales, decided 29 August 2025, by AFCCA. AFCCA said the following. In regard to issue (1) we agree with Appellant and set aside his finding of guilty for failure to obey a lawful general order. As to the remaining assignments of error, we find no error that materially prejudiced Appellant’s rights. So, we have two Services where the GO was not in force, the Appellant was convicted for violating that "order," its not caught until an appellate defense counsel catches it, and the Government properly concedes. [W]e find appellant's conviction for violating a general order is legally and factually insufficient because, as the government concedes. the general order was rescinded and no longer in effect at the time of appellant's offenses. United States v. Goins, __ M.J. ___ (A. Ct. Crim. App. 2025). Briefs. Goins had also been convicted of one sexual assault of a child, three specifications of sexual contact with a child, one specification of indecent communication to a child, and obstruction of justice. Was the issue identified at the Article 32? Or was this a paper drill, thus missing an arguably important issue? Note that this was a guilty plea without a plea agreement. The sentencing case suggests why there was no pretrial agreement. The prosecution requested 25 years' confinement and the defense 18 months. The MJ gave 42 months "total," of which the segmented sentence for the orders violation was four months. It has been many, many, many years since I was taught that the first thing you do when an order, regulation, or Memorandum, violation is charged is to verify it was in force at the time of the conduct, that it was published correctly (for GOs) [Check out United States v. Tolkach, 14 M.J. 239 (C.M.A. 1982); United States v. Jackson, No. ACM 39955, 2022 CCA LEXIS 300 (A.F. Ct. Crim. App. May 23, 2022) rev. denied 82 M.J. 425 (C.A.A.F. 2022); United States v. Henderson, No. ACM 40419, 2025 CCA LEXIS 172, at *18 (A.F. Ct. Crim. App. 18 Apr. 2025). These cases focus on the "publication" aspect.]
Is the regulation punitive (or the relevant parts are punitive) (Check out United States v. Shavrnoch, 49 M.J. 334 (C.A.A.F. 1998). The practice then, and I suppose now, is that the TC would ask the MJ to take judicial notice of the general order or regulation. So, when shifting to being a TC or SJA, guess what we did? The Order in Torres Gonzales said, the memorandum “becomes void after one year has elapsed from the date of this Memorandum, or upon publication of an Interim Change or rewrite of DAF-MAN 44-197, whichever is earlier.” This is similar to what you might see in Navy, Marine Corps, or Coast Guard orders--an automatic expiration date. You also may have noticed similar issues with MPOs. Cf. para. 18.c.(b), at IV-27, MCM (2024 ed.) "a general order or regulation issued by a commander with authority under Article 92(1) retains its character as a general order or regulation when another officer takes command, until it expires by its own terms or is rescinded by separate action, even if it is issued by an officer who is a general or flag officer in command and command is assumed by another officer who is not a general or flag officer." The electronic benchbook lists the first elements as: (1) That there was in effect a certain lawful general (order) (regulation), to wit: (state the date and specific source of the alleged general order or regulation and quote the order or regulation or the specific portion thereof)[.] Note 5., copies the MCM "A general (order) (regulation) issued by a commander with authority to do so retains its character as a general (order) (regulation) when another officer takes command, until it expires by its own terms or is rescinded by separate action." Does the FY23 NDAA’s expansion of Article 66(b)(1)(A), UCMJ—granting a right of direct review to all general or special court-martial convictions “that include[] a finding of guilty,” regardless of sentence—applied to an accused whose court-martial had concluded before December 23, 2022 but whose case had not yet been submitted to a CCA or to TJAG under Article 69?
Judge Sparks, writing for a unanimous court, says AFCCA had jurisdiction to hear Folts's appeal. Basically, Congress spoke clearly in § 544(d) of the FY23 NDAA about the only matters excluded from the new Article 66(b)(1)(A) regime—(1) cases already “submitted” to a CCA or (2) cases already “submitted” to TJAG under Article 69 before enactment. Because Folts had done neither by December 23, 2022, his notice of direct appeal by February 2023 fell within the amended statute. The AFCCA’s decision affirming the findings and sentence was therefore within its statutory power and is affirmed. BLUF: Does Casillas harmonize Mendoza with fact patterns where a sexual act straddles incapacity → capacity (capability): if the Government proves a capable-but-non-consenting window, a (b)(2)(A) conviction can stand; intoxication evidence may be considered as context, not as a back-door incapacity theory. He was convicted of one specification of sexual assault “without consent” under Art. 120(b)(2)(A), UCMJ (2018). In Mendoza, CAAF rejected the “umbrella offense” theory, holding that 120(b)(2)(A) is the distinct offense of sexually assaulting a person capable of consenting who does not consent. Casillas tells us that Art. 120(g)(7) does not bar the Government from introducing intoxication as surrounding circumstances to show absence of consent under (b)(2)(A). Mendoza forbids the Government from proving absence of consent by incapacity alone when prosecuting under (b)(2)(A), but it does not forbid jurors from considering intoxication at all. However, this still does not present a bright-line "rule." Instead, it requires a very detailed factual analysis of the testimony, the tone, tenor, and perceived intent of the prosecution's direct or re-direct, their voir dire, their opening statement, and what emphasis they put on facts during the closing argument. We say that because the prosecution's "intent" to pursue an umbrella theory may not be obvious, especially if they are careful, but cannot intent be inferred on the totality of how the prosecution presents and argues its case? We suss Casillas might be what could be termed a "window" case where the issue is "she was asleep." The alleged victim was asleep, but woke, and while awake was capable of consenting--and did not. Thus the window. The next question would be whether upon realizing the person was awake and not consenting, how quickly did the accused stop. Here we have an issue of actual and perceived time. It seems common knowledge that people do not always have an accurate sense of how much time has passed or how long an event happened. I suspect plenty of police officers have had the experience of a witness saying it was about 29 seconds, but then they look at the CCTV and find it was much shorter in reality, or perhaps longer. Some years ago, I had an expert testify about reaction times and memory. His testimony was based on studies, primarily of police officers on the firing range, that has been otherwise validated. How long does it take for a trained police officer in controlled circumstances to draw her weapon and pull the trigger--several seconds. The police officer knows in advance a target will pop-up and be a threat--that's what I mean by controlled tests. Now add in real life. In other words, a startling event lengthens the reaction time because the messages take longer to bounce around the brain from immediately seeing to pulling the trigger. The brain first has to identify and decide there is a threat, then decide how to respond, and then transmit the needed action in order to act on that decision. (It's a bit more complicated than that and you definitely need an expert to explain the process.) Overlaying this is the memory of what happened and its recall, as I noted above. We've all heard the expression time slows down--it doesn't in reality, but why is that. See, e.g., Stetson, et. al., Does Time Really Slow Down During a Frightening Event? One of my techniques in trial when these issues arise is to stop talking, and then, having watched the second hand, said, well that was 10 seconds of silence-I'm hoping the pause and effect is helpful. See, e.g. Blair, et. al., Reasonableness and Reaction Time. 14 Police Quarterly 323 (2011); Fayolle, et. al., Fear and Time Fear speeds up the internal clock. 120 Behav. Processes 35 (2015); Choice Reaction Time, Science Direct; Encyclopedia.com. If you want to try some of the theory out with a friend. Do a Stroop Effect test; (ISEE); (Wiki) and gauge their reaction time. The Stroop test is defined as an assessment that measures recognition reaction times to color stimuli, evaluating psychomotor speed and cognitive flexibility, with performance influenced by factors such as age, sex, and education. While Casillas does not bring a reconsideration of Mendoza (probably unlikely) it shows how complicated 120 cases are and how careful the prosecution has to be about their evidence and arguments. A throw it at the wall strategy is unlikely to be productive. Take a look at Mendoza, Slip op. 14-15, and you can see several common approaches the government has been taking to prove a non-consent specification. In Casillas, the Appellant also argued that the judge erred in not giving an instruction related to the alcohol effects. The MJ denied the following instruction because it was not an accurate statement of the law. You have heard evidence that [SF] consumed alcohol on the night in question and she may have been in some state of intoxication during the alleged sexual events at issue. You may have previously attended sexual assault training or briefings in which the topic of consumption of alcohol and sex was addressed. In this sexual training or briefings, you may have been informed that women who are drinking or intoxicated are not capable of consenting to sex. That is a misstatement of the law. You are only to follow the law as I instruct you, and not be influenced in any way by training or briefings you may have received outside this courtroom. That is particularly important as it is possible the sexual assault training or briefings you have attended were not consistent with the law. In this case, there is no allegation that [SF] was too intoxicated to consent to sex. You are not permitted to consider whether she was too intoxicated to consent to sex. That is not an issue before you. CAAF says the MJ was right. But, should someone review the Benchbook to see if there is an instruction that could remastered to accurately state the law while ensuring the members' consideration of the alcohol or sleep is properly cabined the to purpose for which it is presented?
History is replete with servicemembers who are injured but who are voluntarily or involuntarily returned to duty after they are made whole--sorta.  Nelson at Trafalgar https://tinyurl.com/tvwt4tth But I digress.
CAAF has denied two writ petitions for lack of jurisdiction. AF. A.F., Petitioner v. United States Air Force Court of Criminal Appeals, et. al. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, and in view of M.W. v. United States, 83 M.J. 361 (C.A.A.F. 2023), and the motion to supplement the petition for extraordinary relief, it is ordered that the petition is hereby dismissed for lack of jurisdiction and that the motion is denied as moot. K.K., Petitioner v. United States Air Force Court of Criminal Appeals, et. al. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, and in view of M.W. v. United States, 83 M.J. 361 (C.A.A.F. 2023), it is ordered that the petition is dismissed for lack of jurisdiction. In Arroyo, the Appellant sought sentence relief at AFCCA based on a claim of inappropriateness. The plea agreement said that she could be sentenced to at least 14 days of confinement and a BCD. She was sentenced to 37 days' confinement, reduced to E-2, and a BCD. At CAAF, granted review to decide whether the AFCCA erred by recognizing the benefit Appellant received from her plea agreement when reviewing the appropriateness of her sentence. An accused’s own sentence proposal is a reasonable indication of the sentence’s probable fairness to the accused. Accordingly, the AFCCA may—to ascertain the fairness and thus the appropriateness of an adjudged sentence—consider the context in which the parties reached the plea agreement, including the benefits from that agreement to the accused. We therefore affirm the decision of the AFCCA. AFCCA had found the sentence to be inappropriate and reduced the confinement to 14 days, but despite a request, the court did not set aside the BCD. (There was a dissent arguing the BCD was inappropriate.) AFCCA noted, It is also worth noting in this case that Appellant, with the assistance of competent counsel, negotiated and secured a plea agreement, where she received the benefit of having two specifications of sexual assault withdrawn and dismissed with prejudice, in exchange for her plea of guilty to a separate offense. This benefit not only reduced Appellant’s criminal exposure, but it also ensured Appellant would not be exposed to additional significant collateral consequences that were possible under the dismissed specifications. In exchange for this benefit, Appellant agreed to a minimum punishment that would include at least 14 days of confinement and a bad-conduct discharge. Arroyo argued at CAAF that AFCCA "improperly and unconstitutionally assumed guilt on the dismissed charges" during its review. CAAF disagreed. To be clear, we do not suggest that it would be impossible for a service court to violate an appellant’s presumption of innocence when performing sentence appropriateness review or to improperly compare an adjudged sentence to a theoretical maximum sentence from withdrawn specifications. But nothing in the AFCCA’s opinion suggests that it presumed Appellant committed the sexual assaults or used the dismissed charges to justify a harsher sentence than it would otherwise have approved as appropriate. At most, the AFCCA considered why Appellant agreed that a bad-conduct discharge was a fair punishment for her assault of A1C LP. Different Spanks for Different Ranks: a Critical Appraisal of Character Evidence in Courts-Martial
Franklin Rosenblatt Mississippi College - School of Law Date Written: August 01, 2025 Abstract This chapter explores character evidence in the U.S. military’s court-martial system. Courts-martial, unlike civilian criminal trials, permit defendants to present evidence of their own good character even when the character trait is not pertinent to the charged offenses. This derogation has been cheered by some as giving military defendants an extra tool to fight back in a system that may be stacked against them. But concerns about expansive use of character evidence soon became apparent: it tends to distort and confuse the issues in trial, and disproportionately benefits only high-status defendants. For all its good intentions, liberalized military character evidence became a tool of impunity for the powerful and a contributing factor to a sexual assault epidemic in the ranks. Part II provides a basic overview of the U.S. court-martial system. Part III describes the military’s character evidence rules, including the novel “good soldier defense” which erased the usual limitation that defendants are only allowed to raise “pertinent” character traits. After some troubling results of defendants wielding the “good soldier defense,” Congress attempted to rein it in, but seems to have merely driven it underground. Regardless of what the character evidence rules say, courts-martial tend to rely heavily on unofficial and unregulated character evidence. Part IV uses three examples of this – a scene from “A Few Good Men” and two real courts-martial – to show how unofficial character evidence such as military rank and decorations can shape court-martial outcomes in ways that evade formal evidentiary gatekeeping. Appellant asserts seven assignments of error (AOE): I. Is a new trial required where the members prematurely deliberated on Appellant’s guilt throughout the Government’s case in violation of the military judge’s instructions? Waived. II. Were the trial defense counsel ineffective when they failed to challenge the panel members for cause or move for a mistrial based on the members’ premature deliberations throughout the Government’s case and instead advised Appellant to waive the issue? Reasonable tactical decision. III. Did the court-martial lack jurisdiction due to the military judge’s inactive status with the state bar of California? See United States v. Painter, 82 M.J. 806, 808 (N-M Ct. Crim. App. 2022); United States v. McNulty, 84 M.J. 628, 635 (N-M Ct. Crim. App. 2024). IV. Is the evidence factually sufficient to support a finding of guilty for Specification 1 of the Charge? V. In light of United States v. Mendoza, whether the evidence is legally insufficient to support the finding of guilty to the sexual assault without consent? VI. In light of United States v. Mendoza, were the instructions erroneous? VII. In light of United States v. Mendoza, were the members’ findings legally impossible and thus void? We find prejudicial error with respect to AOE VI as a result of the Court of Appeals for the Armed Forces (CAAF) opinion in United States v. Mendoza. We set aside the finding of guilty as to Specification 1 and dismiss it, and we reinstate and affirm the finding of guilty as to Specification 2. We reassess and affirm the same sentence. A summarySecord was charged with multiple offenses stemming from alleged cocaine use with junior enlisted soldiers. Army Criminal Investigation Division (CID) seized his cell phone but could not access its encrypted, passcode-protected data. Secord refused to provide his password or PIN.
Defense moved to compel the government to allow a defense digital forensic examiner to inspect the phone and extract data, arguing that the information fell “within the possession, custody, or control of military authorities” under R.C.M. 701(a)(2). The military judge denied the motion but offered conditional access: the defense could extract the data if the government received equal and simultaneous access. The judge also required the inspection to occur at CID headquarters in the presence of a CID representative and barred the government from installing tracking software on the device. Secord rejected the offer. Both sides proceeded to trial without accessing the phone’s data. A general court-martial convicted Secord of all charges, and the United States Army Court of Criminal Appeals affirmed. CAAF held that the military judge was correct. R.C.M. 701(a)(2) did not require the government to give Secord access to the seized phone’s data. The government physically possessed the phone, but lacked “possession, custody, or control” of the data because it could not unlock the device. Relying on United States v. Strong, the court treated the phone’s digital contents as distinct from the physical handset. The court also emphasized that discovery rules—particularly R.C.M. 701(e)—ensure both parties have an “equal opportunity to inspect evidence.” Allowing Secord unilateral access would have undermined that parity. Having answered the first issue in the negative, the court declined to reach the second and third issues and affirmed the ACCA. The court rejects the appellant’s plain-language reading of R.C.M. 701(a)(2)(A). Although the Government indisputably possessed the physical phone, the court holds that this fact does not place the encrypted digital contents in the Government’s “possession, custody, or control” for discovery. The court aligns with the prevailing federal view under Fed. R. Crim. P. 16: when investigators cannot access encrypted contents, those data fall outside the Government’s Rule 16/R.C.M. 701 control. Relying on Riley v. California, 573 U.S. 373, 393–97 (2014), and CAAF precedent, the court treats a phone and its data as distinct objects for legal analysis. Because R.C.M. 701(e) guarantees equal opportunity to inspect evidence, the court refuses to grant the defense unilateral access to data the Government cannot reach; doing so would upset parity and undermine the discovery regime’s fairness aims. The court also rejects the appellant’s reliance on Strong. Even if the Government “seized” the data for Fourth Amendment purposes by cutting off the user’s ability to access or delete it, “seizure” does not equal “possession, custody, or control” for discovery. The Fourth Amendment guards against unreasonable interference with possessory interests, while discovery rules promote fair pretrial access. Different purposes yield different thresholds. The appellant reads R.C.M. 701(a)(2)(A)’s disjunctive “possession, custody, or control” and clause (iv) covering items “obtained from or belong[ing] to the accused” to favor inspection of an accused’s own data. The court instead reads 701(a) alongside 701(e)’s equal-access mandate and the rules’ purpose to eliminate pretrial gamesmanship and ensure fairness. That integrated reading fits Roberts, 59 M.J. at 325, and the Rule 16 district-court line. Riley’s core principle—that a smartphone’s digital cache dwarfs traditional containers—justifies treating “phone” and “data” differently. 573 U.S. at 393–97. Strong carries that logic into military law by refusing to equate seizing a handset with seizing its bits. This decision applies the same separation in discovery: physical custody does not equal digital control. Judge Maggs dissented. He would have answered all three granted questions in Secord’s favor. In his view, the data rested in the “custody” of military authorities because CID guarded, preserved, and safeguarded the phone and its contents. He further argued that the military judge erred by conditioning Secord’s access on giving the government access to all of his personal data, a condition that exceeded the scope of the original search authorization. Because the record left a realistic possibility that the phone contained exculpatory evidence, Judge Maggs concluded the government failed to prove the error harmless beyond a reasonable doubt. So now what? On 25 March 1983, as planned, approximately 1200 troops attended a post-wide formation at Pinder Barracks. United States v. Cruz, 20 M.J. 873, 875-76 (A.C.M.R. 1985). On appeal, the then styled C.M.A. affirmed the findings but a new sentencing hearing was ordered. 25 M.J. 326 (C.M.A. 1987). The C.M.A. noted that
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