Downum leaves everybody guessing about the proper use of factual sufficiency powers

1/29/2026

Some old themes persist even after changes to the law. United States v. Downum, _ M.J. _ (2025) illustrates that factual sufficiency review is still unsettled terrain even after changes to the Code purported to clarify the power.
In Downum, the accused faced a general court-martial for wrongful cocaine use. The government evidence included a drug lab expert that the accused's sample tested positive for cocaine at a level that could not have been produced by any means other than cocaine ingestion. The defense did not contest that he had ingested cocaine but attempted an innocent ingestion defense through the accused's testimony that he never knowingly ingested cocaine and that his drink could have been spiked. The members did not buy this effort, and the accused was convicted of wrongful use of cocaine.
The Army Court of Criminal Appeals (ACCA) reversed, holding that the testimony from the government’s expert witness on drug testing was “not relevant” because the government did not admit the printed results of the drug lab test.
Judge Hardy wrote for a CAAF majority agreeing with ACCA’s decision to toss out the conviction, holding that factual sufficiency powers permit such broad discretion.
Judge Sparks dissented, joined by Judge Johnson, writing that the expert testimony met the low standard for "relevance" in Military Rule of Evidence 401, and that the question of whether the accused had ingested cocaine was not even contested by the defense.
This case illustrates that whether and how military appellate courts will apply their factual sufficiency powers is not knowable, which might tend to chill prosecutorial decisions from the start. The result in Downum might be especially pertinent in prosecutions of high-status defendants (here, the defendant was a West Point graduate and Army Captain) where factual sufficiency muscles are more likely to be exercised to convey impunity. CAAF's 3-2 decision portends more factual sufficiency disputes in the future.

Frank Rosenblatt

Guest comment.

8 Comments

Scott

1/29/2026 18:19:10

The quote from ACCA is not exactly right. The ACCA opinion says the expert testinony "lacked relevance" not that it was "not relevant." There was disagreement between the majority and dissent at CAAF as to what ACCA meant. The CAAF dissent interpreted the ACCA's language to mean the expert testimony was irrelevant, but the majority expressly disclaimed this interpretation.

Having worked on the case I think the majority is correct, especially when the first and second ACCA opinions are compared and contrasted. The original ACCA opinion had stronger language that could fairly be interpreted to mean the expert testimony was irrelevant. But the government moved for reconsideration, making similar 401 arguments as the CAAF dissent. ACCA granted the motion, reconsidered, and issued a revised opinion with softened language ("lacked relevance"). The best interpretation is that ACCA agreed with the government and that is why they changed their language on reconsideration- though the ultimate result did not change.

Is the basis for the claim that officer or high-status cases are more likley to be overturned as factually insufficient empirical or anecdotal? That has not been my experience at all. To the extent this claim is empiricaly accurate, what is the basis for the accompanying claim that this dynamic is intended to "convey impunity?"

Scott

1/29/2026 18:23:58

As an addendum to the point on high-status appellants, I do see a pattern of higher ranking servicemebers being court-martialed for either less serious or more unusual conduct - and such prosecutions may be more likely to give rise to appellate issues. Particularly when the government gets creative and utilizes novel charging schemes. But these issues are not necessarily coralated with factual sufficiency reversals.

Anonymous

1/29/2026 23:04:48

"Lacked relevance," "not relevant," and "irrelevant" all mean the same thing. Only sophistry distinguishes them.

Scott

1/29/2026 23:17:01

The CAAF majority directly rejected that reading.

Tami a/k/a Princess Leia

2/1/2026 14:59:46

Well, I happen to agree that the expert's testimony WAS irrelevant to the SECOND element of "wrongfulness," and frankly, the government's choice to not introduce the actual report (which makes me wonder why the Government DIDN'T introduce the report) wouldn't change this. It seems there was zero evidence of "knowing" use of cocaine, and the Government's reliance on the permissible inference of knowing use based solely on the cutoff level was misplaced. I would expect the service appellate courts to rule a conviction factually insufficient across the board if they're presented with these facts, not just in "high profile" cases. My perspective is that "high-profile" cases are more likely to result in a wrongful conviction, so if a CCA uses its authority to overturn a factually insufficient conviction, then such use is not only legally required, it's also a righteous use of that authority. The Whisenhunt case is a prime example.

We can never really predict how CCAs will exercise their discretion in factual sufficiency reviews, because the nature of the review is incredibly fact-dependent, each case is unique. Ultimately I think that is why CAAF affirmed.

Anonymous

2/1/2026 19:24:22

In a case where the CCA held the conviction was legally and factually insufficient, what greater "work" does the factual sufficiency review accomplish? Wouldn't either the Jackson v Virginia standard (contemporary legal sufficiency review standard) or even the Thompson v City of Louisville standard (older "no evidence" legal sufficiency standard) accomplish the same thing? To be sure, legal sufficiency is a low standard but it does still have teeth. Here, the CCA claimed the conviction was legally insufficient. And recently, CAAF dismissed a different use of a controlled substance case in United States v Navarro-Aguirre because the Government's inferences were too speculative.

Tami a/k/a Princess Leia

2/2/2026 13:38:57

CAAF can review legal sufficiency de novo, whereas CAAF generally can't review factual sufficiency except in limited circumstances, and certainly not de novo. Legal sufficiency is also reviewed in light most favorable to the Government; factual sufficiency isn't. Factual sufficiency can also be used (not necessarily in this case) to dispute credibility of witnesses, whereas legal sufficiency doesn't. Finally, a conviction reversed for factual insufficiency has the same effect as an acquittal.

Factually, the Government failed to prove "wrongful" use of cocaine. Although the Government produced enough evidence factually to prove use, it didn't provide enough evidence (relying solely on a permissible inference) to show knowing use, which in ACCA's view, was no evidence. Would the result change if the Government had introduced the test results? Without testimony about the significance of the test results, or anyone to testify how Downum was acting after ingesting cocaine, or how he acted during the urinalysis, ACCA still could've overturned the conviction for factual insufficiency.

Anonymous

2/2/2026 15:45:09

Doesn't a conviction that's dismissed for legal insufficiency also function as an acquittal?

As for relying on the permissive inference, isn't that the point of Frank's post? Straight paper urinalysis cases aren't rare. Many of these cases don't have additional evidence or testimony suggesting a guilty mind (e.g. testimony from observer that the accused appeared nervous). And admitting the test results wouldn't address wrongfulness either as it only adds evidence to support use. Yet other servicemembers' cases are largely not overturned on factual insufficiency. When high-status accused get the benefit of the doubt, but the rest do not, is that not unfair?

I have problems with the permissive inference in general and think these cases should be handled administratively absent aggravating circumstances. But I believe Frank's post intended to get at the arbitrary application of CCA's authority to declare cases factually insufficient.

CAAFlog

Downum leaves everybody guessing about the proper use of factual sufficiency powers

Frank Rosenblatt

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