Interlocutory Orders
 
No. 26-0090/MC. U.S. v. Sivar Y. Cox. CCA 202400194. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the pleadings filed in the case, it is ordered that Appellee will file a substantive answer to the following assigned issues raised by Appellant:
 
i.  Whether the appellate defense counsel who represented appellant before the lower court was ineffective.
 
Ii. Whether appellant's constitutional rights were violated when the military judge replaced the entire court-martial panel mid-trial pursuant to Article 29, Uniform Code of Military Justice.
 
Iii. Did the military judge erroneously instruct the members in light of United States v. Mendoza and United States v. Moore?

​No. 26-0122/AR. U.S. v. Daniel J. Valdez. CCA 20220274. 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 issues:
 
I. WHAT IS THE PROPER STANDARD OF REVIEW FOR THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES WHEN REVIEWING THE DECISION OF A COURT OF CRIMINAL APPEALS IN GRANTING OR DENYING RELIEF FOR EXCESSIVE POST-TRIAL DELAY USING ITS POWER UNDER ARTICLE 66(d)(2), UCMJ?
 
II. WHETHER APPELLANT IS ENTITLED TO RELIEF FOR 952 DAYS OF POST-TRIAL DELAY WHERE THE GOVERNMENT AGREED APPELLANT'S SENTENCE SHOULD BE SET ASIDE.

The ACCA is one page with the two standard short-form sentences.

CAAF Supplement.

Of interest to those who find their servicemember client is appearing in the EDVA. And perhaps of broader interest to practitioners.

United States v. Guinsler, No. 4:26-cr-7. Guinsler was charged with CSAM, identified through a cypertip based on his Snapchat.

Is a search authorization issued to Army CID valid in a federal prosecution?

Guisler argued for suppression based on the search authorization's lack of particularity. The military magistrate's authorization allowed

The judge does not discuss Lattin, a CAAF case, while not dispositive, potentially informative, on a similar issue. See, United States v. Lattin and Lattin v. United States (pet. denied).

Williams (see below) presents the issue of whether the findings were ambiguous or if there is a general verdict that can be confirmed. The military judge convicted Williams of one rape (V1), one sexual assault without consent (V-2), but not of guilty of one sexual assault due to incapacity (V-2).

ACCA finds that the sexual assault on V-2 is fatally ambiguous.

We have two competing doctrines.
​
The General Verdict Rule lets an appeals court uphold a conviction even when the factfinder could have reached guilt via multiple routes, as long as the evidence supports at least one of those routes beyond a reasonable doubt. The factfinder doesn't need to explain its reasoning — "guilty is guilty."

The Fatally Ambiguous Verdict Rule says the opposite: when the court convicts on one theory but acquits on another, and both theories arise from the same facts, the appeals court cannot safely affirm.

Why the Ambiguity?

The court identifies multiple scenarios the military judge could have had in mind — and cannot rule any of them out:

1. She convicted based on the first sexual act (victim awake and objecting) and acquitted on the second because the victim was asleep — a theory the CAAF later validated in Mendoza,
2. She convicted based on the second sexual act and acquitted on the first,
3. She treated both acts as a single continuing transaction and entered a general guilty finding, acquitting on the parallel specification to avoid a multiplicity problem — inadvertently creating a double jeopardy problem instead;
4. She was satisfied either act sufficed and entered what she believed was a general verdict.

Because ACCA cannot know, it cannot conduct the factual sufficiency review required by Article 66, UCMJ. Affirming the conviction risks endorsing a finding of guilt for the very act the military judge found Williams-Clark not guilty of committing.

"Underpinning this ambiguity is the fact that the government itself has vacillated on its theory of the case." Slip op. at 8.

At trial, the prosecution charged two distinct sexual acts but then argued both formed a single continuing transaction, urging the court to consider both specifications together. That argument was questionable on its face: both parties left the room, pursued other activities, and returned separately — a clear break in time and intent.

On appeal, the government pivoted.

Then, at oral argument, the government reversed again.

Basically, the court holds that Walters and Wilson — not Brown and Nicola — control here. The critical distinction is that this case involves not just multiple acts but also a parallel acquittal on a specification arising from the same facts.

Brown and Nicola were involved in multiple possible means of committing a single charged offense. Here, the government charged two separate offenses, presented evidence of two distinct acts, and the military judge returned both a guilty and a not guilty finding. That mirrors Walters and Wilson precisely. The court sees no meaningful difference between excepting "divers occasions" language (as in Walters) and acquitting on a parallel specification covering the same factual ground.

Because the one finding is dismissed, two years of the Appellant's seven-year sentence is set aside on sentence reassessment.

Another example of confusion arising when capacity or incapacity to consent is at issue under the current Article 120.

Armsbury's unanimous decision, addresses a CCA's broad authority to review, in pre-December 27, 2023, cases, for sentence appropriateness. So at some point this authority may age-out. Having lost at ACCA, The Judge Advocate General of the Army certified two questions:

• Did the ACCA have authority to set aside a bad-conduct discharge that was a negotiated term of a plea agreement?
• Did the ACCA abuse its discretion in finding the sentence highly disparate?

Some facts

Private Armsbury and two fellow soldiers were walking back to post after a night of drinking when they stumbled into a street brawl. One of the men in the other group, Marine LCpl KC, ended up on the ground. SGT JH violently kicked him in the head. Armsbury followed with a light kick, then walked away. SPC JW stayed and struck the victim multiple times.

Armsbury was charged with aggravated assault, maiming, and conspiracy. He pled guilty, with a pretrial agreement, to the lesser charge of assault consummated by a battery. In exchange, the government dismissed the remaining charges and locked the sentence into a range of 60 to 120 days confinement with a mandatory bad-conduct discharge. The military judge sentenced him to sixty days and the BCD.

SGT JH — the soldier who threw the violent kick — pleaded guilty to the more serious charge of aggravated assault, drew 121 days confinement, and walked away with no punitive discharge at all.

ACCA set aside Armsbury's BCD, finding it highly disparate compared to SGT JH's sentence with no rational basis for the difference.

The Old Article 66 applies here because the new amendment to Article 66 applies only to cases where all findings of guilty are for offenses occurring after December 27, 2023. Armsbury's offense occurred in May 2022.

Under the old Article 66, a CCA possessed broad, virtually plenary sentence-appropriateness review authority. CAAF held that CCAs operating under the prior version of Article 66 retain the ability to invalidate even bargained-for terms of a plea agreement when appropriate. The court reasoned that Article 53a — which authorizes plea agreements — binds only the court-martial itself, not the CCAs, and contains no language limiting CCA review authority.

Under the new Article 66, that broad sentence-appropriateness review seems somewhat narrowed rather than engage in wide-open "sentence appropriateness" reassessment. The Armsbury opinion does not directly apply or interpret the new Article 66, but its repeated emphasis on "the prior version" signals that the outcome could differ for post-2023 offenses.

Highly Disparate Sentences. The long-standing framework comes from United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999):

• The accused bears the initial burden of showing (1) the comparator case is closely related and (2) the sentences are highly disparate.
• If the accused meets that burden, the burden shifts to the government to demonstrate a rational basis for the disparity.

Closely related: The ACCA found SGT JH's case closely related because both men faced the identical charges from the same incident and were simultaneously involved — and CAAF agreed this finding was not an abuse of discretion.

Highly disparate: SGT JH pleaded guilty to the more severe charge and received no punitive discharge, while Armsbury pleaded to the lesser offense and received a bad-conduct discharge. The ACCA found the significant adverse stigma of a punitive discharge alone made the sentences highly disparate, and CAAF affirmed.

No rational basis: The government offered three arguments, all rejected:

• Gratuitousness of conduct — The CCTV footage and stipulation of fact showed Armsbury's kick was the least egregious act among the three participants. The government's characterization of it as "gratuitous" did not hold up.
• Difference in unsworn statements — The ACCA found no substantive difference between the two statements and added the sharper point: the length and content of an unsworn statement carries no weight where the plea agreement gave the military judge no discretion over whether to impose a punitive discharge in the first place.
• Differing military careers — CAAF noted the government itself conceded in its ACCA briefing that Armsbury "raises a fair point regarding the expectation of a noncommissioned officer versus a brand-new soldier" and that the argument "cuts both ways." An experienced NCO like SGT JH could just as reasonably be held to a higher standard than a new enlistee.

Practical Takeaways. The case establishes three important points for military practitioners on pre-2023 cases:

• Plea agreements do not insulate sentences from CCA review under old Article 66. A negotiated BCD can be set aside on appeal even if the accused agreed to it.
• The new Article 66 changes the landscape. Defense counsel handling post-December 2023 offenses cannot rely on the same broad sentence-appropriateness platform.
• Co-actor disparities carry real appellate weight. When a more culpable co-actor avoids a punitive discharge entirely, that disparity — particularly when no rational basis supports it — creates strong appellate grounds under the old Article 66 framework.

Sentence disparity cases are rare and at some point there will not be any pre-2023 cases entering the system. But the question remains whether a sentence appropriateness challenge for sentence disparity survives. Article 66(e)(1)(B) and (D) suggest there is room for the Lacy test. (Note (e)(1)(B)'s reference to future parameters.

Hurtado CAAF addresses a fundamental question of Fifth Amendment law in the military justice context: whether a suspect's statement—"I mean, I would like to speak to a lawyer, but um, yeah"—constitutes an unequivocal invocation of the right to counsel sufficient to trigger the suppression protections established in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1982), and as narrowly interpreted based on Davis v. United States, 512 U.S. 452 (1994)[1].

The Majority

The majority reverses the Army Court of Criminal Appeals and reinstates the military judge's suppression order. It applies the Davis v. United States "reasonable officer" standard but reads it contextually rather than mechanically.

When Special Agent NL asked Hurtado directly whether he wanted a lawyer, he replied: "I mean, I would like to speak to a lawyer, but um, yeah." The Army CCA held the word "but" rendered the statement inherently equivocal. The majority disagrees. It reads the statement structurally: it opens with an unambiguous request ("I would like to speak to a lawyer") and closes with an affirmative ("yeah"). The intervening "but um" functions as a conversational hesitation—common in informal speech under stress—not a retraction of expressed intent. The majority notes that "[i]n ordinary speech, filler words such as 'but um,' often serve as conversational hesitations rather than signaling a retraction of the speaker's expressed intent, particularly in a stressful custodial interview."

The majority also rejects the Government's claim that the military judge failed to apply the Davis reasonable-officer test. Military judges carry a presumption of knowing the law, the judge expressly cited Davis, and nothing in the record rebuts that presumption.

The Dissent. Chief Judge Ohlson argues the answer is simple: Appellant changed his mind twice in the same sentence, and no statement that ambiguous can meet Davis's requirement.

The dissent performs a three-phase parse of the statement. The opening — "I'd like to speak with an attorney" — is clear. The word "but" then signals contradiction: by dictionary definition it introduces a phrase "contrary to" or "in opposition" with what precedes it. And "um, yeah" resolves nothing — it could reaffirm the request, affirm the doubt, or carry no semantic value at all. The dissent draws on Davis itself for the proposition that "there is no 'tie-goes-to-the-runner' canon of interpretation under which Appellant may seek shelter. Any plausible ambiguity, doubt, or alternative interpretation necessarily means the statement is not 'unambiguous.'"

The dissent also argues that even if invocation occurred, Special Agent NL's clarifying follow-up questions constituted "good police practice" as Davis commends — and Hurtado's subsequent response ("I want to know what I'm here for, first") relinquished any prior invocation under Berghuis v. Thompkins, 560 U.S. 370 (2010).

The Kaufman Framework: Rights as Burden

This is where the case becomes important beyond its immediate facts. As Kaufman documents, criminal procedure rights once operated as jurisdictional constraints on judicial power — "inalienable" rules that "nothing a defendant did or said could" waive. "Defects in the criminal process — for example, a jury of only eleven people or a trial in the wrong place — were problems of jurisdiction." Harvard Law Review

At the turn of the twentieth century, courts reconceived these rules as individual entitlements: "venue provisions, the double jeopardy ban, the requirement that a defendant witness his own trial, the prohibition on self-incrimination, the grand jury, the jury trial — each became a 'personal' right rather than a jurisdictional rule. Once these new rights existed, they could be waived, forfeited, and traded." Harvard Law Review

Davis — and the dissent's reading of it — represents the fullest expression of that post-revolutionary paradigm applied to the right to counsel during interrogation. As one scholarly commentary has observed, the Davis rule's requirement of an "unambiguous" assertion "appears to conflate knowing that you have a right to a lawyer with knowing that you have to unambiguously assert your desire for one to preserve that right." Harvard Law Review The burden falls on the person least likely to understand its technical requirements: a non-lawyer, under custodial pressure, who may have nothing beyond a high school education and no experience with law enforcement.

Kaufman describes the practical consequence: "criminal procedure rights evolved from inflexible rules into bargaining chips." The modern system of mass processing "only works if" rights can be forfeited — and forfeiture happens, routinely, because the invocation threshold requires a precision that frightened, informal speakers cannot always produce. NYU School of Law

The majority's contextual reading of "but um, yeah" is a modest corrective within this framework — it doesn't restore the jurisdictional model, but it insists that the reasonable-officer standard must account for how human beings actually speak under duress, not how lawyers draft legal briefs.
_____________
[1] Ably argued by then Major Dave Jonas, USMC, Code 45.
​

Having had a chance to review the JAG realignment Memo, any thoughts?

In the I-Remember-When (IRW) category, some might remember the mid-1980's when the Navy General Counsel went to war with Navy TJAG about "jurisdiction," similar to some of the realignments in Table 1 to the Memo, including intruding into military justice areas. At the same time, mission creep brought more formalized uniformed Legal Assistance services and, more recently, more civilians into LA. Oh--TJAG won.

Rocha having been decided, there is a lot to unpack, both legally and viscerally — that will take some time. However, here is a link to Stars & Gripes (sorry, some of us older folks had a different opinion of S&G's content in ancient times).

Friday, March 6, 2026
Appeals - Summary Dispositions
 
No. 25-0195/AF. U.S. v. Douglas C. Boren. CCA 40296. On consideration of the two issues granted for review and United States v. Moore, __ M.J. __ (C.A.A.F. 2026), it is, ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.
 
No. 25-0244/AR. U.S. v. Isac D. Mendoza. CCA 20210647. On consideration of the three issues certified to this Court by the Judge Advocate General of the Army and United States v. Moore, __ M.J. __ (C.A.A.F. 2026), it is, ordered, the Court answers the certified issues in the negative. The decision of the United States Army Court of Criminal Appeals is affirmed.*
 
*Judge Hardy dissents.
 
No. 26-0022/AR. U.S. v. Matthew L. Coe. CCA 20220052. On consideration of the issue granted for review and United States v. Moore, __ M.J. __ (C.A.A.F. 2026), it is, ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.

​The issue in Moore.

The Judge Advocate General of the Air Force (Acting) filed a certificate for review of Appellee's case pursuant to Art. 67(a), UCMJ, asking the Court to address whether the Air Force Court of Criminal Appeals erred in applying United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024), to find Appellee's sexual assault conviction legally and factually insufficient.