Court of Appeals for the Armed Forces

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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.

Now to CAAF's holdings.

Holding one: dual sovereignty. CAAF reads Cobb’s statement that there is “no constitutional difference” between “offense” in the double jeopardy and right-to-counsel contexts, 532 U.S. at 173, together with Gamble v. United States, 587 U.S. 678, 681-82 (2019), and concludes that the same word carries the same meaning in both settings. Thus, two sovereigns make two offenses for Sixth Amendment purposes, even when Blockburger would call them identical. The court joins the First, Fourth, Fifth, Sixth, Tenth, and Eleventh Circuits and rejects the Second and Eighth (Mills, Red Bird). It distinguishes Mills because the Second Circuit later cabined that decision in Worjloh to evidence state officers obtained in violation of the right, whereas NCIS obtained this statement itself. It also distinguishes Red Bird because that case rested on the “unique and limited” character of tribal sovereignty.
Regarding the joint investigation argument, CAAF finds no precedent for a joint investigation exception and adopts the First Circuit’s Bartkus framing from United States v. Coker, 433 F.3d 39, 45-46 (1st Cir. 2005): dual sovereignty gives way only when one sovereign controls the other’s prosecution to circumvent the right to counsel. Ordinary cooperation does not qualify. The court declines to decide when the joint investigation here ended because the answer would not change the result. Because the government did not prefer the military charges until more than a month after the interview, the Sixth Amendment had not attached to the military prosecution, and Rule 305(c)(3), Military Rules of Evidence (Mil. R. Evid.), Manual for Courts-Martial (M.C.M.), United States (2024 ed.), did not apply.

Holding two: Montejo. Even without dual sovereignty, the claim fails. CAAF applies Montejo v. Louisiana, 556 U.S. 778, 786, 795 (2009), to the military for the first time: a valid Miranda/Article 31(b) waiver also waives the Sixth Amendment right, whether counseled or not, represented or not. The court finds nothing in Mil. R. Evid. 305 that counsels otherwise. Because the MJ’s findings on reinitiation and voluntary waiver stand and Flores offered no legal argument attacking them, the statement comes in under both amendments.

Why it matters. The dual sovereignty holding is the headline, but the Montejo holding is the working tool. From now on, a government that clears Edwards and Mil. R. Evid. 305(e) reinitiation will rarely lose a separate Sixth Amendment fight. Defense counsel will note what the opinion does not discuss. The Supreme Court warned long ago that “[s]ubtle pressures may be as telling as coarse and vulgar ones,” Garrity v. New Jersey, 385 U.S. 493, 496 (1967) (citations omitted), and that the test is whether the accused kept the “free choice to admit, to deny, or to refuse to answer,” Lisenba v. California, 314 U.S. 219, 241 (1941). Twenty minutes of small talk, a reminder that his family needed him, and a compliment on his service preceded the rights form here. CAAF treats “So what’s next?” as reinitiation and moves on. Defense counsel will also note that the court never reaches the trial counsel’s “be mindful” (arguably incomplete) text. The Bartkus exception remains available on the right facts, and the Supreme Court has still not spoken. Government counsel will note that CAAF sided with the circuit majority and treated cooperation between sovereigns as “commendable” rather than suspect.

The fork in the road. Beneath CAAF’s discussion of dual sovereignty and the Sixth Amendment lies a much simpler question of fact. Flores had invoked his right to counsel twice, first during the Georgia interrogation and again when NCIS advised him under Article 31(b), the second time to an NCIS agent who had watched the first invocation, though not one of the two agents who later drove him back. The critical question therefore became who started the conversation on the ride back to base. The agent testified that Flores began talking about his situation and that the agents did not try to obtain admissions. Flores disputed that account by affidavit: both agents asked him questions, he answered them, and he started nothing.

That dispute matters because Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980), makes the agents’ professed purpose largely beside the point. “Interrogation” includes express questioning and its functional equivalent. And under Edwards, 451 U.S. at 484-85, once a suspect invokes counsel, police may not reinitiate custodial interrogation unless they make counsel available. The exception is a suspect who initiates further communication with police. So if a court credited Flores’s account of the car ride, the analysis would look simple: the agents questioned a custodial suspect who had invoked counsel, and Flores merely answered. That is a very different case from one in which Flores spontaneously resumed discussing the investigation.

The MJ, however, credited the agent. That finding effectively resolved the Edwards problem. She found that Flores voluntarily initiated conversation about the investigation and analogized his later question, “So what’s next?” to the defendant’s “Well, what is going to happen to me now?” NMCCA accepted that finding. 85 M.J. at 620, and CAAF saw “no reason to question” it. 2026 CAAF LEXIS 719, at *22. Who started the conversation in the car? If Flores did, Edwards and Bradshaw give the government a path to a valid waiver. If the agents did, Innis and Edwards point strongly the other way. CAAF did not need to explore that fork. Flores petitioned on the reinitiation question, but the court declined to grant it, United States v. Flores, No. 26-0005/NA, 2026 CAAF LEXIS 48 (C.A.A.F. Jan. 15, 2026) (order granting review), and the merits briefs on both sides then left it alone. The opinion nonetheless notes that Flores developed no legal challenge to the Fifth Amendment waiver finding, which is accurate, if a little circular, since the court had already chosen not to hear one.

The text messages. The exchange deserves a closer look than either court gave it. The agent’s message told trial counsel two things: that the agents were “minding 31B” and that the interview they had in mind would be “a third time.” 85 M.J. at 616. It did not say that the first two times had ended with Flores asking for a lawyer, once to the Georgia detective and once to an NCIS agent. Trial counsel’s reply shows that counsel knew Flores had an attorney; it says nothing about invocation, and neither opinion says anyone told trial counsel about it. Whether a trial counsel who knew that a shackled suspect had twice invoked counsel over the preceding five weeks would still have answered “no, no issues” is a fair question, and neither court asked it. The government has an answer of its own. NMCCA read the “won’t stop talking” text as corroborating the agent’s account rather than undermining it, id. at 620, and the granted issue gave CAAF no occasion to revisit a Fifth Amendment finding that was no longer before it. The briefs confirm the gap: Flores’s brief used the texts only to show that NCIS knew he was represented, and nobody argued that the agent left the invocations out of the message.

From the briefs. Two other things stand out. Neither merits brief cites Montejo; CAAF’s second holding came from NMCCA’s opinion, not from the parties. And the government devoted a full section to harmlessness, arguing on the strength of the victim’s testimony, the wife’s eyewitness account, the DNA, and the SANE findings that the interview added nothing, with Flores’s reply answering that trial counsel built the opening and closing around the accused’s “own words.” CAAF never reached it, so that dispute stays open for the next case.