In deciding Flores, CAAF decided a question that the Supreme Court left open: does the dual sovereignty doctrine carry over from double jeopardy to the Sixth Amendment right to counsel? The Court says yes and adds a second, independent ground that may matter more over time. United States v. Flores, No. 26-0005, 2026 CAAF LEXIS 719 (C.A.A.F. Aug. 27, 2026).

First the facts.

MT1 Flores’s wife found him naked in bed with their nine-year-old daughter. Local police in St. Mary’s, Georgia, interviewed him with an NCIS agent present. He invoked silence; the officer kept going, and he then invoked counsel. NCIS gave Article 31(b) warnings; he invoked again. Georgia arrested him on state felonies, and he retained civilian counsel, who filed for a preliminary hearing and bail. Before that hearing, Georgia released him to the Navy. On the drive to base, an NCIS agent texted trial counsel that Flores “won’t stop talking to us” and asked about a third interview. Flores later swore that the agents questioned him in the car and that he started nothing. Trial counsel replied: no issues, get a written or recorded waiver, and “be mindful” that he has an attorney. Back at the office, after about twenty minutes of small talk, Flores asked, “So what’s next?” The agent later invited him to tell his side. Flores signed an Article 31(b) waiver with a cleansing warning and gave an hour-long statement corroborating his wife’s and daughter’s accounts.

Now to trial and NMCCA.

The military judge (MJ) suppressed the Georgia interview because the officer failed to honor the invocation of silence, but she admitted the NCIS interview. She credited the agent’s testimony over Flores’s affidavit, found reinitiation under Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), and Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983), found a valid waiver, and, in the alternative, held that dual sovereignty applied because the Sixth Amendment right is offense-specific under Texas v. Cobb, 532 U.S. 162, 167 (2001). NMCCA affirmed on both rationales in a published opinion, reasoning that the right is offense-specific, not investigation-specific, and adding that the text messages corroborated the agent’s account.

Major Victoria J. Bell, USA, Feature: Mental Competence and Responsibility in Courts-Martial. Army Lawyer, 2026(2).

Major Alexandria J. Altimas and Major Allyson J. Montgomery, Practice Notes: From Soldier to "Condemned Prisoner: A Review of Modern Military Death Sentence Procedure. Army Lawyer 2026(1). Depending on how the habeas proceeds under 28 U.S.C. 2241, it may be some time before Hasan proceeds to the execution stage--perhaps past January 2028. He's at the USDB, which puts him in the Dist. Ct. for Kansas and the Tenth. They set the law (across the circuits) and the tone for military habeas petitions—it's not good for a petitioner. See also, Dwight H. Sullivan, Lore of the Corps, The Man Behind the SCOTUS Military Justice Case Names: Warden J. Parker. Army Lawyer, 2026(1).

In United States v. Armour, No. 26-0116/AF (C.A.A.F. Aug. 24, 2026), it is Judge Johnson who again writes for a unanimous court, and again the Government prevailed. Readers who take Ixcolgonzalez together will notice a difference in kind. Ixcolgonzalez decided the merits of the search and sent the case back with nothing left on the suppression question but a scope footnote. Armour corrected one legal error in a military judge's (MJ) reasoning and sent the case back with almost everything else still open.

The posture is a little unusual. The MJ granted a second suppression motion; the Government appealed under UCMJ art. 62, 10 U.S.C. § 862; AFCCA vacated the suppression ruling in a published opinion, United States v. Armour, 86 M.J. 515 (A.F. Ct. Crim. App. 2025); and the accused petitioned CAAF. Thus, the airman is the appellant, and the Government is the appellee, in a case the Government started. Slip op. at 2 n.1. The issue presented asked whether CAAF should affirm the MJ's suppression ruling "because information gained from multiple unlawful searches affected law enforcement agents' decision to seek a search authorization and the search authority's decision to grant it." Slip op. at 2. CAAF answered no and affirmed AFCCA. Slip op. at 14.

Three searches and one bad sentence

The investigation began with a National Center for Missing and Exploited Children (NCMEC) report in August 2021 that a Kik account, "aftermatter," had uploaded and shared CSAM. The account had been accessed from seven IP addresses. Of those, four were logins, three were uploads, and the physical locations of the upload addresses were masked by VPNs. One login address, and only a login address, traced to a Spectrum internet connection at a house in Dalzell, South Carolina. Slip op. at 3 & n.2. That distinction between a login and an upload is the whole case.

A Sumter County sheriff's investigator obtained subscriber information, learned that the account holder, BB, was in the Air Force, and notified the Air Force Office of Special Investigations (OSI). In January 2022, the investigator obtained a state warrant for the Dalzell house based on an affidavit stating that she had viewed media "from" the Spectrum IP address and that it was CSAM. The affidavit did not mention the other six IP addresses. Slip op. at 3-4. While executing that warrant, she found mail addressed to the accused at the house, and a DMV check confirmed that both the accused and BB lived there. Slip op. at 4.

The accused was deployed. In February 2022, OSI obtained authorization to search him and his deployed quarters, based on affidavits stating that the Spectrum address had been used to upload CSAM. OSI seized an iPhone, an iPad, two laptops, and an SD card, and turned them over to the sheriff's office. A state magistrate refused to issue a warrant to search the devices. The sheriff's office dropped out, and the devices returned to OSI, which took over the case in July 2023. The Department of Defense Cyber Crime Center (DC3) then found evidence of possession, viewing, receipt, and distribution on the iPhone and iPad. Slip op. at 4.

The first suppression motion succeeded. The MJ found that the February affidavits contained a false statement and were written with reckless disregard for the truth; "even a cursory review of the NCMEC report makes quite apparent" that the Spectrum address was never tied to an upload. The MJ found the state investigator reckless, found OSI reckless for repeating her assertion while the lead agent had the NCMEC report in hand, found the remaining statements insufficient to establish probable cause, and declined to apply inevitable discovery or good faith. Slip op. at 5. The Government did not appeal. It asked for reconsideration, lost, and asked for a continuance to try again. Slip op. at 5. Hold that choice for the practice notes.

In March 2025, OSI submitted a new affidavit regarding the devices it had held since February 2022. It told the story accurately: the subscriber warrant and return, the packages found at the Dalzell house in January 2022, the DMV check, and the fact that the accused lived at the house during the reported activity and deployed in October 2021, three months after the last reported upload. It explained the inference plainly: the accused shared BB's house and internet connection when "aftermatter" logged in from that connection, so there was reason to believe his devices would contain CSAM. Slip op. at 5-6. Trial counsel and the affiant took it to Colonel MT, the operations group commander. Col MT asked why three years had passed since the seizure and was told there had been a problem with the first authorization's use of the words "upload" and "login." Col MT signed. DC3 found the same evidence on the same two devices. Slip op. at 6.

The second ruling: both Murray prongs satisfied, then a freezer

The defense moved to suppress the fruits of the January 2022 and March 2025 searches, arguing that the January affidavit contained the same reckless falsehood and that the March affidavit was based on January's fruits, the packages at the Dalzell house. Slip op. at 6-7. The Government responded that the accused lacked standing to challenge a search of a house where he no longer lived and that the independent source doctrine saved the March search in any event. Slip op. at 7.

The MJ applied Murray v. United States, 487 U.S. 533, 542 (1988), and found both prongs met. The decision to seek the March authorization was prompted by information known before the February search, and nothing learned in the February search reached Col MT. Slip op. at 7-8. The MJ then kept going. The March search, he held, was not genuinely independent because the Government had held the devices continuously since the unlawful February seizure, preserving them in the same condition for three years. But for that seizure, probable cause to believe CSAM sat on the devices would have gone stale. The February ruling was law of the case. The Government could therefore show an independent source for the information supporting probable cause, but not for the evidence, the iPhone and iPad themselves. Slip op. at 8. On reconsideration the MJ added a second ground: even if the independent source analysis was "inapt," seven separate false statements made with reckless disregard for the truth warranted exclusion. Slip op. at 8 n.5.

What CAAF held

CAAF reviewed the MJ's ruling for abuse of discretion, taking the evidence in the light most favorable to the accused, the prevailing party below. Slip op. at 8-9 (citing United States v. Hurtado, 86 M.J. 431, 434 (C.A.A.F. 2026), and United States v. Shields, 83 M.J. 226, 230 (C.A.A.F. 2023)). The MJ's findings on the two Murray prongs were not clearly erroneous. Slip op. at 10. CAAF said that should have been the end of the analysis. Agreeing with AFCCA, CAAF held that once the MJ found that neither the decision to seek authorization nor the decision to grant it was affected by the unlawful search, the MJ abused his discretion by failing to conclude that the March search was genuinely independent. Slip op. at 10-11 (quoting Armour, 86 M.J. at 525).

The staleness rationale failed on two levels. As a matter of law, CAAF found no authority for a theory that "would prevent the Government from rectifying a defective warrant when evidence originally seized remains in the Government's possession." Slip op. at 11 (quoting Armour, 86 M.J. at 525). Murray itself rejected the idea that objects once seized cannot be reseized without first being returned to private hands, and saw no reason the independent source doctrine should not apply to a reseizure of tangible evidence, so long as the later seizure is genuinely independent. Slip op. at 11 (quoting Murray, 487 U.S. at 541-42). As a matter of fact, CAAF found no record basis for the conclusion that probable cause would have gone stale. Timeliness informs probable cause, United States v. Macomber, 67 M.J. 214, 220 (C.A.A.F. 2009), and if the devices had gone back to the accused for three years, evidence of his 2021 use might well have disappeared. But the devices were frozen in February 2022, so probable cause as to their contents at that moment did not decay. Slip op. at 11-12. Nor could the Government be faulted for the freeze. Once agents knew the devices held CSAM, returning them would itself have been unlawful. Slip op. at 12 (quoting Armour, 86 M.J. at 526).

The defense position, fairly stated

The MJ's theory was not conjured from nothing. In the same passage CAAF quotes, Murray says that genuine independence "may well be difficult to establish where the seized goods are kept in the police's possession." 487 U.S. at 542. The MJ read that as an invitation to look beyond the two prongs to the unlawful seizure's causal role. The devices existed as objects of a 2025 search only because OSI took them in 2022 based on an affidavit the MJ deemed reckless, and the state magistrate had already refused to let anyone look inside them. On that reading, the "same, not worse, position" rationale in Murray cuts the other way: absent the unlawful seizure, the Government in 2025 would have had a four-year-old tip and no devices.
CAAF's answer, and it is a sound one on the text of Murray, is that the parenthetical describes a proof problem under the two prongs, not a third prong. The difficulty Murray anticipates is showing that the decision to seek the second warrant was not driven by what the first seizure revealed. Where the MJ found as fact that it was not, the difficulty is resolved. The freezer preserved probable cause; it did not supply it. The Government will add that the accused's reading would turn the independent source doctrine into a dead letter in every digital device case, since contraband devices are never returned, and that Murray was written to prevent exactly that outcome.

What the opinion does not squarely address is the MJ's reconsideration ground, the seven reckless statements. Slip op. at 8 n.5. If the independent source doctrine applies, the March evidence was not "obtained as a result of" the February search, and the Government will argue that Mil. R. Evid. 311(a) is never triggered. The defense will argue that deterrence is the whole point of the exclusionary rule, that the MJ found reckless disregard by two agencies across seven affidavits, and that a rule under which a reckless affidavit costs the Government nothing but a continuance deters nothing. CAAF left that argument where it found it, with a general statement that it expresses no opinion on whether any other exception to the exclusionary rule saves any of the searches. Slip op. at 13.

The tipsy coachman stays in the stable

The accused's main appellate argument was the affirm-on-other-grounds move: the January search was tainted by the same recklessly false statement, and the March affidavit relied on January's fruits (the packages), so the March search fails both Murray prongs as to January, even if it passes them as to February. Slip op. at 13. CAAF would not go there. Neither the MJ nor AFCCA ruled on whether the January search was unlawful, whether it tainted the March search, or whether any exception applied, and CAAF declined to decide any of it in the first instance. Slip op. at 7 n.4, 13. The MJ found that Col MT had a substantial basis for probable cause without reaching the January arguments, and that finding is where the record stops. Slip op. at 7 n.4.

This is the part of the opinion that matters on remand, because the list of undecided questions is long. Whether the accused has standing to challenge the January search of a house he shared with BB until his October 2021 deployment. Whether the January affidavit's "from" or "via" language, which the MJ already found reckless, invalidates that search. Whether the March affidavit's reliance on the January packages and on the DMV check those packages prompted means the decision to seek the March authorization was affected by the January search under Murray's first prong. Whether the DMV record, a public database, provides an independent path to the residence link. And whether good faith or inevitable discovery rescues anything. None of those has a ruling. Each is now a trial-level motion.

Footnote 6 adds one more. CAAF acknowledged that a delay in executing a search can render an initially lawful seizure unreasonable by its length, citing United States v. Harborth, 85 M.J. 469, 479 (C.A.A.F. 2025), and United States v. Cote, 72 M.J. 41, 46 (C.A.A.F. 2013), in which an MJ properly suppressed a hard drive searched more than a year after the authorization's time limit expired. But the accused "has not challenged the duration of the seizure of his devices," so CAAF did not address it. Slip op. at 12 n.6. Three years passed between the February 2022 seizure and the March 2025 authorization, with a state magistrate's refusal and a change of agencies in the middle. A durational challenge under Harborth is sitting unfiled.

Like Ixcolgonzalez, there is an extended passage of time since the 2021 tip and going back to trial. Can we expect a further delays?

CAAF hands the Government a clean win in United States v. Ixcolgonzalez, No. 25-0243/MC (C.A.A.F. Aug. 24, 2026), an interlocutory appeal under UCMJ art. 62, 10 U.S.C. § 862, that reached the court on four certified issues. Judge Johnson writes for a unanimous court. CAAF that sets aside NMCCA's decision.

Two holdings do the work. First, a command authorization for search and seizure (CASS) that confines the search to a named Marine's digital devices, on his person or in his barracks room, for evidence of CSAM under Article 134 is sufficiently particular under the Fourth Amendment. Slip op. at 11, 13. Second, even if it were not, the CASS incorporated the eleven-page affidavit that accompanied it, and the affidavit supplied whatever particularity the CASS lacked. Slip op. at 13-15. Having answered the first and third certified issues that way, CAAF left the second (good faith) and fourth (deterrence) issues on the shelf. Slip op. at 3. Those two issues, along with a footnote about sixty-three Telegram messages, are why suppression litigation in this case may not be over.

The paperwork

The investigation began as usual. In January 2022, Snap, Inc. sent a cyber tip to the National Center for Missing and Exploited Children about a user who had uploaded suspected CSAM. The tip was forwarded to the North Carolina State Bureau of Investigation, then to the Naval Criminal Investigative Service (NCIS). A warrant returned four videos from Snap. Slip op. at 3. An NCIS special agent then sought the accused's commanding officer's approval for a CASS covering the barracks room and the accused's digital devices.

The request form contained the line that gives this case its texture. When the form asked for the facts establishing grounds to search, the agent wrote: "See Attachment A." Slip op. at 4. Attachment A ran eleven pages. It set out the cyber tip and the Snap warrant, explained why the agent expected to find CSAM on the accused's mobile devices, and listed six categories of items sought: any and all digital storage devices in the room and on the accused's person pertaining to the Article 134 offenses; the Snapchat application; a named Gmail address; child pornography images and videos; proof of ownership of the devices; and "[a]ny and all applications in which videos and photographs are stored or records thereof." Slip op. at 4-5.
The CASS itself said less. It recited that an affidavit had been made before the commander; identified the premises as the accused's digital devices and his barracks room; described the property sought as evidence of possession, receipt, viewing, and distribution of child pornography under Article 134; and stated that grounds for the search existed "as stated in the supporting affidavit(s)." Slip op. at 5. The agent briefed the commander orally, handed over both documents, and swore to probable cause. The commander signed the CASS and the first and last pages of the affidavit. Slip op. at 5. The search followed in August 2022. The Department of Defense Cyber Crime Center found 254 videos and 272 images of suspected CSAM on the iPhone, plus sixty-three Telegram messages in which the accused requested, sent, or received such material. Slip op. at 5-6. Snapchat is in the affidavit. Telegram is not. Hold that thought.

What the military judge did with it

The MJ agreed with the Government on the devices. The CASS "marginally satisfies" particularity as to the things to be seized, and it would have been unreasonable to demand more when the Government did not know what devices the accused owned. Slip op. at 11-12. The trouble, in the MJ's view, lay inside the devices. The CASS said nothing about which data, data sets, or applications agents could search, and nothing about whether they were after pictures, videos, communications, or all three. Slip op. at 6-7. Relying on United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005), the MJ held that a digital search authorization must use "as much specificity as the government's knowledge and circumstances allow," and that this one fell "well-short." Slip op. at 7, 12.

The MJ then found what became the Government's best fact on appeal. The affidavit, the MJ found, "unambiguously provided a particularized list" of the places within the devices to be searched and the things to be seized, and the forensic examiner worked from a request nearly identical to it. Slip op. at 7. Having found that, the MJ held the affidavit did not count, because the CASS's reference to it was "boilerplate language" about probable cause that "did nothing to actually incorporate the specificity within the supporting affidavit." Slip op. at 7. The MJ also found, by a preponderance, that the affidavit did not accompany the CASS when it was served on the accused. Slip op. at 7 n.5. NMCCA affirmed on particularity and incorporation, though it rejected any suggestion that service on the accused matters, quoting United States v. Grubbs, 547 U.S. 90, 98-99 (2006), for the point that the Constitution does not require the warrant to be shown to anyone during the search. Slip op. at 8 n.5.

Particularity: Richards governs, and Riccardi does not add to it

CAAF reviewed for abuse of discretion, with overbreadth reviewed de novo, and, as it customarily does on interlocutory review, pierced NMCCA’s decision. Slip op. at 9-10. The anchor is United States v. Richards, 76 M.J. 365 (C.A.A.F. 2017). There, an AFOSI authorization reached "all electronic media" without a date range, even though agents knew the relevant communications fell within a seventeen-month window. CAAF held that a temporal limit is "one possible method" of tailoring but "by no means a requirement," because the authorization did not give "carte blanche to search in areas clearly outside the scope of the crime being investigated." Slip op. at 12-13 (quoting Richards, 76 M.J. at 370). The same logic disposes of this case. The CASS confined agents to the accused's devices, on his person or in his room, for evidence of identified child pornography offenses. That is not Groh v. Ramirez, 540 U.S. 551, 558 (2004), where the warrant described the items to be seized "at all." Slip op. at 13.

CAAF then said something about the MJ's method that trial judges will want to note. Reliance on Riccardi to require as much specificity as the Government could have provided is "inconsistent with this Court's precedent," and although the MJ said he did not "discount" Richards, his reliance on Riccardi "suggests otherwise." Slip op. at 12-13. A ruling built on that view of the law is an abuse of discretion. Slip op. at 13.

The defense side deserves a fair hearing here, because the MJ did not invent his standard. Richards itself quoted Riccardi for the rule that computer warrants "must affirmatively limit the search to evidence of specific federal crimes or specific types of material," and Richards also adopted the Sixth Circuit's line that "[t]he proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation." Richards, 76 M.J. at 369-70 (quoting United States v. Richards, 659 F.3d 527, 541 (6th Cir. 2011)). The MJ took that metric at face value, asked whether NCIS could reasonably have said more about what it wanted inside the phone, and answered yes, since the agent's own affidavit said more. What Ixcolgonzalez tells us is that the "proper metric" sentence is not the test. The operative question is the carte blanche one: does the authorization confine agents to evidence of identified offenses? If it does, it survives even when a sharper version sat on the agent's desk. Defense counsel who have been citing Richards for the "reasonable to be more specific" line should expect the Government to answer with pages 12 and 13 of this opinion.

The Government's better argument, which the opinion carries forward from Richards, is that digital evidence hides. File names lie, dates lie, and an examiner may have to open a great many files to find the ones that matter. Richards, 76 M.J. at 370. (Or they might be smart enough to put all the CSAM in the Windows Thumbnail folder that is hidden from a user.) A rule that requires the CASS to name the applications and file types in advance lets the target pick the hiding place. On that view, the fight over what an examiner may open belongs at the execution stage, where scope and plain view are litigated on an actual record, and not on the face of the authorization. That is a coherent position, and it is now the law of the military courts on facial challenges.

Incorporation: "See Attachment A" is enough

The alternative holding matters more for drafting. Groh says the Fourth Amendment requires particularity "in the warrant, not in the supporting documents," but Groh also acknowledged that most circuits will read the two together "if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant." 540 U.S. at 557-58. CAAF picked Baranski v. Fifteen Unknown Agents, 452 F.3d 433 (6th Cir. 2006), as its model. In Baranski, the warrant said "See Attached Affidavit," the magistrate signed both documents, and the affidavit described the guns to be seized; the Sixth Circuit held that was incorporation and that the warrant described the items when the magistrate issued it. Slip op. at 14 (citing Baranski, 452 F.3d at 436, 439-40).

The parallel here was close. The CASS referred to the affidavit twice, the affidavit announced that it was made "in support of a request for a Command Authorization for Search and Seizure," the agent briefed the commander and handed over both documents, and the commander signed both. Slip op. at 14-15. The accused argued that the CASS mentioned the affidavit only in the probable cause sentence and not in the "places to be searched" block where particularity lives. CAAF was not persuaded: the reference was not limited by its terms, so it incorporated the entire affidavit, and a second reference in another block was unnecessary. Slip op. at 15 n.7. Then CAAF took the MJ's own finding that the affidavit "unambiguously" particularized the places and things within the devices and used it to finish the job. Slip op. at 15.

Two observations from the other side of the aisle. First, Groh's formula has two prongs, words of incorporation and accompaniment, and CAAF decided only the first. The MJ found the affidavit was not with the CASS when the search was served; NMCCA said that does not matter under Grubbs; and the accused did not challenge that ruling at CAAF, so CAAF declined to reach it. Slip op. at 8 n.5. Some federal courts read "accompanies" to require that the affidavit be physically present at the search, not just at issuance. United States v. McGrew, 122 F.3d 847, 849-50 (9th Cir. 1997); United States v. SDI Future Health, Inc., 568 F.3d 684, 699 (9th Cir. 2009). Whether military law follows that reading remains open, and the next accused should preserve it. Second, footnote 2 reminds readers that a commander stands in for a magistrate. Slip op. at 3 n.2 (citing Rule 315(d)(1), Military Rules of Evidence (Mil. R. Evid.), Manual for Courts-Martial, United States (2019 ed.)). After Ixcolgonzalez, the agent's own description of what the agent wants becomes the constitutional boundary of the search, on the strength of a cross-reference and a signature on the first and last pages of an eleven-page attachment. The Government will fairly answer that this is how every federal warrant works: agents draft, magistrates sign. The defense will fairly answer that the CASS form gave the commander a place to describe the property sought and the commander used it to describe an offense.

What is left when the case goes back

The interesting part of the opinion is what CAAF declined to decide. Footnote 6 preserves the MJ's observation that, even with the affidavit incorporated, the forensic examiner "may have exceeded the scope" of the authorization by seizing Telegram messages, where the affidavit named Snapchat and photos and videos. Slip op. at 8 n.6. The MJ could not resolve that because the examiner did not testify, so the MJ could not assess the search sequence or whether the messages came into plain view. CAAF construed the MJ's comments as something short of conclusions of law and expressed no opinion on the question. Slip op. at 8-9 n.6.

This does not seem to be small leftover. The charge sheet carries one possession specification, seven distribution specifications, one receipt specification, and a solicitation specification under UCMJ art. 82, 10 U.S.C. § 882. Slip op. at 6. The images and videos support possession. The distribution, receipt, and solicitation counts look like they ride on the sixty-three Telegram messages. So the scope motion on remand is aimed at most of the case.

Both sides have material. The affidavit's sixth category asked for "[a]ny and all applications in which videos and photographs are stored," and CAAF's own footnote 4 quotes the DC3 report describing Telegram as an application that saves exchanged pictures and videos to the user's cloud account. Slip op. at 6 n.4. The Government will say Telegram is exactly what category six describes. The defense will say the agent knew how to name a messaging application, named Snapchat, and did not name Telegram; that category six reads as a gallery-and-storage clause, not a communications clause; and that a communications seizure needs its own authorization. Plain view is the Government's fallback, and it requires the examiner on the stand. Who must put the examiner there is worth a paragraph in the motion: once the defense moves to suppress, Mil. R. Evid. 311(d)(5)(A) puts the burden on the prosecution to show by a preponderance that the evidence was not obtained by an unlawful search. [Lexis check the subparagraph and the 2019 versus 2024 edition.] The examiner's absence hurt the defense at the first hearing because the MJ could not find a scope violation on the record before him. On the second try, the absence may cut the other way.

If the MJ finds a scope violation, the two certified issues CAAF did not reach come back to life at the trial level: whether the exclusionary rule's deterrent value outweighs its costs under Mil. R. Evid. 311(a)(3), and whether good faith applies under Mil. R. Evid. 311(c)(3). Those questions look different when the claimed error belongs to an examiner exceeding a valid authorization rather than a commander signing a deficient one.

One last note on the calendar. The cyber tip arrived in January 2022. The search followed in August 2022. NMCCA ruled in April 2025. CAAF ruled in August 2026, and the case now returns to the Judge Advocate General of the Navy for further proceedings. Slip op. at 16. Four and a half years after the tip, no one has been tried, and the next stop is likely another suppression hearing. Presumably Appellant has been on active receiving pay during this time? If trial proceeds, does he get his original defense counsel back? See, e.g., United States v. Hutchins, 69 M.J. 282 (C.A.A.F. 2010); United States v. Hohman, 70 M.J. 98 (C.A.A.F. 2011).

United States v. Armour and United States v. Ixcolgonzalez, both involving the MJ's suppression of evidence, were answered in favor of the Government.

Interestingly in Armour, it appears the Government victory may not be complete, because CAAF effectively says the MJ suppressed for the wrong reason, but is now free to review suppression of other reasons raised by Appellant.

It would seem that CAAF has granted two issues in United States v. Lawrence, USCA Dkt. No. 26-0237/AF.

I. Whether the permissive inference is unconstitutional for marijuana cases, both facially and as applied to this case.
 
II. Whether Appellant’s conviction for marijuana use is legally insufficient.

AFCCA's unpublished opinion.

This link should take you to the filings at AFCCA.

https://afcca.law.af.mil/afcca_opinions/cp/appellate_filings_redacted_2813206.pdf

The (Federal) Committee on Rules of Practice and Procedure, Judicial Conference of the United States, has issued its Preliminary Draft: Proposed Amendments to the Federal Rules of Appellate Procedure, . . .  Criminal Procedure, . . . and Rules of Evidence. Written comments are due by 15 February 2027. There are proposed changes to Fed. R. Evid. 104 and 902(1). Assuming adoption, the changes will apply to courts-martial 18-months after adoption, IAW Mil. R. Evid. 1102.

For those interested in how transparent the sausage-making under the federal rules is, compared to the EO, read the Appendix beginning on page 193.

UPDATE.

The Federal Rules Advisory Committee has proposed amendments to Federal Rule of Evidence 104 that would clarify who decides preliminary evidentiary questions. The proposal largely reflects principles the Court of Appeals for the Armed Forces already applies under parallel Military Rules of Evidence: a military judge decides questions assigned to the court, while court members decide disputed predicate facts when the evidence permits a reasonable finding.

The proposed amendment matters because it draws a cleaner line between judicial gatekeeping and factfinding. A judge decides whether the proponent has met the applicable threshold for admission. But when relevance turns on a disputed factual predicate, the judge ordinarily does not resolve that dispute. The factfinder does.
​
The Advisory Committee’s May 17, 2026 report proposes two material changes to Fed. R. Evid. 104.

First, proposed Rule 104(a) expressly requires a proponent to establish a preliminary fact by a preponderance of the evidence unless another rule provides otherwise:

"Unless these rules provide otherwise, the proponent must establish the existence of a preliminary fact by a preponderance of the evidence."

The Committee characterizes this as codifying  Bourjaily v. United States, 483 U.S. 171 (1987), rather than a change in the governing standard.

"Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court." Petitioner and the Government agree that the existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court. The Federal Rules, however, nowhere define the standard of proof the court must observe in resolving these questions."

483 U.S. at 175.

Second, the proposal would revise Rule 104(b). The current rule addresses “conditional relevance” and requires proof sufficient to support a finding that the conditional fact exists. The proposed language would provide:

“To establish that evidence is relevant, the proponent must demonstrate to the court that the trier of fact could reasonably find that the requirements of Rule 401 have been met.”

That formulation tracks Huddleston v. United States, 485 U.S. 681, 690 (1988). The judge asks whether the factfinder could reasonably find the predicate fact by a preponderance of the evidence. The judge does not decide whether the predicate fact actually exists.

"In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact -- here, that the televisions were stolen -- by a preponderance of the evidence."

The proposal also recognizes that the court may rely on the proffered evidence, other evidence, common knowledge, and experience. It preserves conditional admission: the judge may admit evidence subject to the proponent later supplying the required foundation.

Henry and conditional relevance

United States v. Henry, 81 M.J. 91 (C.A.A.F. 2021), is the closest military-law analogue. There, CAAF considered whether a child declarant had the personal knowledge required by Mil. R. Evid. 602. The court held that the proponent need not conclusively establish the declarant’s personal knowledge before admission. Rather, the military judge asks whether the evidence would permit a reasonable court member to find that the declarant possessed personal knowledge. Id. at 95–96.

CAAF described that inquiry as one governed by Mil. R. Evid. 104(b). The judge screens for a legally sufficient basis for the predicate finding; the members decide whether the predicate fact exists and what weight the evidence deserves. As Henry put it, “[t]his is not a high bar.” Id. at 96.

That allocation closely parallels the proposed amendment. When relevance depends on a preliminary factual issue, the judge decides whether a reasonable factfinder could make the required finding. The factfinder resolves competing inferences, assesses credibility, and determines the evidence’s ultimate weight. See n. 1.

Whiteeyes and Maebanene

United States v. Whiteeyes, 82 M.J. 168 (C.A.A.F. 2022), reinforces the same functional division of responsibility, though it arose under a different rule. Whiteeyes addressed corroboration of an accused’s admission or confession under Mil. R. Evid. 304(c), not conditional relevance under Mil. R. Evid. 104(b).U nder Whiteeyes, the military judge determines whether independent evidence raises an inference of truth and tends to establish the statement’s trustworthiness. The required corroboration is modest; it need not prove the confession true beyond a reasonable doubt. Id. at 174–75. The judge may conditionally admit corroborating evidence, but the members decide what weight to give the confession after admission. Id. 

United States v. Maebane, 86 M.J. 173 (C.A.A.F. 2025), supplies a contrast. That case concerned residual hearsay under Mil. R. Evid. 807, which makes admissibility depend on sufficient guarantees of trustworthiness. The majority held that the military judge applied the rule arbitrarily by failing to account properly for relevant trustworthiness evidence and by focusing improperly on the strength of the Government’s case. Id. at 180–84. Maebane does not interpret Mil. R. Evid. 104(b). It instead illustrates a question the governing rule assigns to the military judge: whether the proponent has established the threshold for admissibility. A judge may not reject otherwise admissible evidence merely because the judge doubts its ultimate truth or would assign it little weight. But when Rule 807 makes trustworthiness an admissibility prerequisite, the judge must decide that preliminary question under the rule’s standard. See n. 2.

The proposed federal amendment does not narrow judicial gatekeeping. It clarifies boundaries. Under proposed Rule 104(b), the judge determines whether the factfinder could reasonably find the facts needed to establish relevance under Rule 401. The judge does not decide the ultimate factual dispute, choose among permissible inferences, or exclude evidence simply because the judge finds another inference more persuasive.

For military practitioners, Henry provides the clearest parallel. Whiteeyes illustrates how conditional admission can preserve the factfinder’s role under a different evidentiary rule. And Maebane identifies the opposite situation: when the rule makes a preliminary factual determination a condition of admissibility, the military judge must make that determination under the governing standard.

A petition for writ of certiorari is now pending before the U.S. Supreme Court in Clark v. United States. The SG has waived a response. Here are the filings.

1. Petition.             
2. Amici brief of The Betty and Michael D. Wohl Veterans Legal Clinic & NIMJ. 
​3. Amici brief of Navy, Marine Corps, Coast Guard Defense Services Organization.

I have studied and taught the law of superior orders in military criminal law for the past five years. When first encountering it, I remember being surprised at its complexity—a complexity largely unknown to the public, or even to most JAGs with whom I discussed it. Most seemed to know that there were lawful orders and unlawful orders, and that this distinction mattered. But few knew much beyond this. The statements provided by some of the six lawmakers in the now-infamous “Don’t give up the ship” video reflect this, with Representative Chris Deluzio erroneously claiming that servicemembers “must” disobey unlawful orders.

What is conceptually elusive to most observers, and to Representative Deluzio, is that there is a legal “gray” zone in which an unlawful order can be either disobeyed or obeyed, with both options resulting in a criminal law defense. This is the zone of orders that are apparently lawful but technically unlawful; another way of describing this is the zone of orders that do not rise to the level of patently unlawful orders. Here, obedience results in a criminal law excuse for the conduct commanded, while disobedience results in acquittal at trial once a judge has adjudicated that the order was unlawful. Thus, it is not true that “unlawful” orders must be disobeyed. This is only true of patently unlawful orders (as well as another category to be discussed below). In the wake of the video’s released, critical reaction has centered on this error.

Public attention on the Caribbean boat strikes at times focuses, appropriately, on this question: did the orders rise to the level of manifest or patent illegality, as in the case of the My Lai Massacre?

While I am glad that the public conversation is now accounting for the nuance between patently unlawful orders and technically unlawful orders, I have noticed that there is something missing: The duty to disobey applies even to non-patently unlawful orders if the defendant (I will use this term instead of “accused”) knew the orders were unlawful. As stated in the canonical case, United States v. Calley:

"The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful."

United States v. Calley, 48 C.M.R. 19, 27 (1973) (emphasis added). This is appropriate for a mistake-of-law-based excuse in criminal law: There can be no mistake, after all, if the defendant knows the order is unlawful. See Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199, 224 (1982).

One can forgive most commentators for forgetting about this half of the duty to disobey: There are no reported military cases in which a court found that a defendant possessed subjective knowledge of orders’ illegality. It is unlikely, after all, that those who are on the receiving end of an order—lower-level officers and enlisted—would be privy to the determination of an order’s lawfulness vel non.

There is one class of servicemembers, though, who are uniquely privileged on this count: military lawyers, and especially military lawyers who are involved in the decision-making leading up to the issuance of the order. These lawyers are able to witness and participate in the deliberation that results in an unlawful order, including any willful distortions of fact or law. Since they are trained in law, they will know, more than the lower-level servicemember, if an order is technically unlawful even though it is not patently unlawful. In such a case, military lawyers have a duty to disobey that order and have a duty to not facilitate its promulgation. Since military lawyers will more likely possess actual knowledge regarding an order’s illegality, they will more often be held to the higher standard that is imposed on most others only in cases of patently unlawful orders.
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It is said that the military “‘is the executive arm’ whose ‘law is that of obedience,’” Parker v. Levy, 417 U.S. 733, 751 (1974), but this cannot be true with respect to military lawyers. No lawyer, even a lawyer in uniform, can be permitted to turn off his or her brain when it spots illegality. In doing so, she would cease to be a lawyer in any real sense. In recognizing the duty to disobey orders one knows to be unlawful, the law reflects this higher burden.