United States v. Rocha

Insulted from Review: Rocha II and Reviewing Factual Insufficiency

After much anticipation, CAAF has released its latest iteration of an opinion in United States v. Rocha. In Rocha, Appellee was convicted of indecent conduct for using a childlike sex doll. On its first review, CAAF reversed the AFCCA’s holding that the Appellee lacked fair notice his conduct was criminally sanctionable. United States v. Rocha, 84 M.J. 346, 352 (C.A.A.F. 2024). CAAF remanded the case to the AFCCA, and on its second review of the case, the AFCCA held the Appellee had a “constitutionally protected liberty interest to privately engage in sexual activities with his doll.” United States v. Rocha, 2025 CCA LEXIS 10, at *4 (A.F. Ct. Crim. App. Jan. 15, 2025) (unpublished). There has been significant coverage of this case from both within the military justice community[1] and in the broader media[2]. The lurid details of the case grab the media’s attention. While an advocacy group hoped CAAF would address the framework military courts apply for substantive due process privacy rights.[3] Yet the Court’s lead opinion[4] says little at all about that framework. See United States v. Rocha, No. 25-0157, slip op. at 2-12 (C.A.A.F. Mar. 16, 2026) (Rocha II). But there is an underappreciated aspect of the case: has CAAF interpreted its own governing statute in such a way that its immunized CCA factual insufficiency determinations from review? Given the isolated nature of the conduct at issue, the split amongst CAAF’s judges regarding the scope of CAAF’s review may come to represent the lasting significance of the Rocha series of cases.

The critical split between the opinions joining the judgment and the dissent concerns the scope of the CCA’s factual insufficiency holding. The lead opinion and concurrence viewed the CCA’s factual insufficiency holding as preclusive while the dissent—at great length[5]—takes issue with the CCA’s underlying legal reasoning. Yet, even between the lead opinion and the concurrence, the opinions approach the reviewability of the CCA’s factual insufficiency holding differently.

The plurality argues if the CCA had failed to follow the remand instructions, then another remand would be in order. For this reason, it begins by addressing the TJAG’s first certified question: whether the CCA failed to follow CAAF’s remand instructions. And it expressly cautions, “a remand would be necessary if the AFCCA had failed to comply with our remand order.” Id. at 8. Only after concluding that the CCA complied with the remand order did the lead opinion then hold that CAAF lacked the authority to disturb the CCA’s factual insufficiency holding.

The concurrence takes a different tack. The concurrence joined Part IV of the lead opinion addressing CAAF’s review of a CCA’s factual insufficiency holding. Yet it views the question of whether the CCA complied with the remand order as moot. See Rocha II (Maggs, J., concurring at 2). It also addresses an overriding concern raised by the dissent concerning the precedential value of the CCA’s opinion in the Air Force.[6] Id. at 4 n.2.

Unsurprisingly, the dissent disagrees with their framing. Instead, the dissent opens by reciting a litany of facts it views the plurality and concurrence missed. See Rocha II at 1-3 (C.J., Ohlson, dissenting). It then takes issue with the plurality opinion’s approach to the remand instructions and how the case should have proceeded if the CCA had properly followed the remand order. See id. at 3-12.

Standing alone, Rocha II does not amount to what supporters or detractors of the CCA’s decision might have thought. The plurality addresses Lawrence v. Texas and the scope of a right to privacy, but only through the lens of the CCA’s own analysis of the issue. It does not assert—one way or the other—which is correct. The concurrence likewise sidesteps the issue and the dissent, well…it’s a dissent. Underlying the tension here though is a recurring feature of these cases where the CCA holds a conviction to be factually insufficient. Does CAAF have authority to reverse such findings where it finds errors of law?

CAAF “lacks the authority to make its own findings of fact or to conduct its own factual sufficiency review, but retains the authority to review factual sufficiency determinations of the CCAs for the application of ‘correct legal principles, but only as to matters of law.” Rocha II at 6 (plurality opinion) (citation modified). Increasingly though, the Court has narrowed the aperture through which legal errors may be reversed. In United States v. Patterson, the Court held “only that we lack authority to review the AFCCA’s determination that the evidence was factually insufficient to prove the facts alleged in the specification at issue.” Patterson, 86 M.J. 24, 29 (C.A.A.F. 2025). Disregarding legal errors in the CCA’s decision, CAAF likewise held in Downum, “a conviction cannot stand if either a court-martial (in the first instance) or a CCA (on factual sufficiency review) finds the evidence factually insufficient to support a finding of guilty.” United States v. Downum, 86 M.J. 200, 207 (C.A.A.F. 2025). And this is all in the context of United States v. Csiti where the Court left its review of a CCA’s factual insufficiency holding untouched despite a statutory amendment to Article 67. See United States v. Csiti, 85 M.J. 414 (C.A.A.F. 2025).

Taken together, these cases trend in a direction where the CCA can effectively immunize its decisions from review by asserting the view that the conviction is factually insufficient. In future cases, if the CCA judges believe strongly in the correctness of their decision on legal grounds but worry about potential reversal by CAAF, they can add a quick nod to the conviction being factually insufficient to avoid undue scrutiny of their decision. It also suggests the possibility that a CCA could believe the conviction was entirely legal and proven, but disagree with the Government’s charging decision or found the appellant sympathetic, and as a result, find a conviction factually insufficient as a way to reduce or eliminate the appellant’s convictions. Indeed, this may also end up being the fulcrum by which CAAF itself decides whether it will review the CCA’s factual insufficiency decision. If a majority of judges believe the conduct to be criminally sanctionable, then it may pierce the CCA’s reasoning to probe for legal errors, but where a majority takes issue with the conviction, it can rest on its scope of review and claim its’ hands are tied.

This has significance not only for other cases this term (looking at you United States v. Kershaw), or even future cases, but also the relationship between CAAF and the CCAs. The dissent’s attack on the CCA judges’ integrity harkens back to an earlier era of frank hostility between the CCAs and CAAF (then CMA). See United States v. Nordstrom, 5 M.J. 528 (N.C.M.R. 1978) (CMA opinion lacks “logic and meaning”); United States v. Lilly, 7 M.J. 701 (N.C.M.R. 1979) (CMA opinion is “mystifying unless it can be written off as nothing more than an improvident and unfortunate mistake.”)

In an earlier era, the Court took a strong stand against equitable rulings by CCAs, saying in United States v. Nerad:

We hold that while CCAs have broad authority under Article 66(c), UCMJ, to disapprove a finding, that authority is not unfettered. It must be exercised in the context of legal -- not equitable -- standards, subject to appellate review. Relatedly, while Article 66(c), UCMJ, affords a CCA broad powers, when faced with a constitutional statute a CCA cannot, for example, override Congress’ policy decision, articulated in a statute, as to what behavior should be prohibited.
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Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010) (internal citations omitted) (quotation marks omitted). Under this new insulated review, equitable rulings may, in practice, be back under the guise of factual sufficiency review.       

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[1] See, e.g., U. S. Court of Appeals for the Armed Forces--grant - National Institute of Military Justice, Rocha? - National Institute of Military Justice.

[2] See, e.g., Military Law Doesn’t Clearly Forbid Private Masturbation With Child-Like Sex Doll, Airman’s indecent conduct conviction reversed following 5 years of litigation | Stars and Stripes.

[3] Rocha250157AmicusCuriaeBrief.pdf.

[4] Most of the lead opinion was only joined by Judge Hardy and Judge Johnson. Judge Maggs only joined Part IV of the lead opinion. As a result, most of the lead opinion is a plurality opinion.

[5] The tenor of the dissent (and the lack of a “I respectfully dissent”) and the attack on the integrity of the CCA judges suggests this was quite a controversial opinion at the Court.

[6] Here, the dissent has the better of the argument. The CCA’s opinion is a dual-holding opinion. See Rocha, 2025 CCA LEXIS 10, at *3. Dual holding opinions have alternative rationales that each could independently lead to the same result. See Ryan C. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint, 69 Stan. L. Rev. 795, 826–27 (2017). Courts treat such dual-holding opinions as though both (or all) alternative rationales are the holding of the case. Id. at 827 (citations omitted). Indeed, the bulk of the CCA’s analysis addresses the scope of constitutional privacy protection. If anything, the additional conclusion of the evidence being factually insufficient is flippantly added at the end—perhaps to forestall the very review the dissent sought to apply?

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