Litigator Libations

Sam Castanien & Trevor Ward

Updates and tips on defensive litigation in military justice including discussing recent appellate decisions and providing advocacy tips.

  1. 6D AGO

    107 - Res Gestae for Sexual Assault Cases & Post Trial Motions

    Send us Fan Mail This week, Sam and Trevor discuss a new Court of Appeals for the Armed Forces (CAAF) case, United States v. Washington, No. 25-0044, 2026 CAAF LEXIS 353 (C.A.A.F. Apr. 13, 2026), and then feature a trial-level practitioner, Raquel Musconi, to discuss post-trial motions. Before jumping into both, the pair cover a quick update to United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 189 (A.F. Ct. Crim. App. Apr. 17, 2026). The Air Force Court of Criminal Appeals issued a new opinion, but not much changed. Check out Episode 100 for a refresher! Sam and Trevor then discuss Washington. The CAAF found that the military judge abused their discretion when they determined the conduct leading up to the alleged sexual assault fell under Military Rule of Evidence 412. In coming to this conclusion, the CAAF seems to expand the realm of res gestae and the meaning of “surrounding circumstances” for sexual assault offenses. The CAAF also seems to cast doubt on United States v. Erikson, 76 M.J. 231 (C.A.A.F. 2017), the case analyzing false sexual assault claims under Rule 412. After resolving the Rule 412 issue, the CAAF tackled the military judge’s decision to strike most of the appellant’s testimony. The CAAF found that the military judge abused their discretion again, highlighting that this extreme remedy was not appropriate. While talking about this, Trevor references several state cases, including State v. Mende, 304 Ore. 18 (Or. Sup. Ct. 1987), to explain why the caselaw the Government and the dissent rely on is unpersuasive. Raquel finishes the episode with post-trial motions, specifically related to confinement conditions. Send us your questions, comments, and feedback at litigator.libations@gmail.com!

    33 min

  2. APR 17

    106 - A Whole Lot of “Chutzpah”

    Send us Fan Mail This week, Sam and Trevor cover two cases, United States v. Braum, __M.J.__, No. 25-0046/AF, 2026 CAAF LEXIS 343 (C.A.A.F. Apr. 8, 2026), and United States v. Talley, No. ACM 40828, 2026 CCA LEXIS 171 (A.F. Ct. Crim. App. Apr. 9, 2026). In Braum, another divided Court of Appeals for the Armed Forces (CAAF) found there was no prejudice when the Government refused to turn over the complaining witness’s cellphone extraction in its possession, custody, or control. The duo lament how the lead opinion did not answer whether the military judge erred by failing to order disclosure of the phone to the defense. But the two are hopeful that the CAAF may soon answer that question in United States v. Wicks, __M.J.__, No. 26-0062/AR, 2026 CAAF LEXIS 302 (C.A.A.F. Apr. 3, 2026).  In better news, the Air Force Court of Criminal Appeals found that the military judge abused his discretion by excluding evidence under Mil. R. Evid. 412 and set aside the finding of guilt for a sexual assault conviction. As Sam and Trevor explain, both cases deal with complaining witnesses turning their rights into a sword against the accused and what trial defenders can do to disarm such “chutzpa[dik]” witnesses. See Braum, __M.J.__, No. 25-0046/AF, 2026 CAAF LEXIS 343, at *28 (Ohlson, C.J., dissenting) (labeling the colloquial terms for the victim’s approach as “chutzpah”). Note: We apologize for any audio issues you may notice during listening. We are aware of the microphone issues and are working to fix it for future episodes. As always, we welcome your questions, comments, and feedback at litigator.libations@gmail.com!

    31 min

  3. APR 3

    105 - Sex Dolls & Rights Invocations (Rocha IV and Hurtado)

    Send us Fan Mail The case you've all been waiting for! *drumroll please*  United States v. Rocha, No. 25-0157, 2026 CAAF LEXIS 254 (C.A.A.F. Mar. 16, 2026), the child-like sex doll case, is back and finally resolved! This week, Sam and Trevor spend most of the time breaking down the various opinions in Rocha. Spoiler alert: the CAAF affirms the lower court's decision to set aside the conviction, but perhaps not in the way you'd expect. While the CAAF doesn’t address the liberty interest under Lawrence v. Texas, 539 U.S. 558 (2003), Sam and Trevor do. While talking about liberty interests, they also discuss United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013).  After tackling what is sure to be the most controversial decision of the CAAF term, the duo turn to United States v. Hurtado, No. 25-0212, 2026 CAAF LEXIS 273 (C.A.A.F. Mar. 23, 2026). There, the CAAF found that the appellant's rights invocation was clear and unequivocable, despite the law enforcement agent, the lower court, and two CAAF judges thinking otherwise...I'd like my lawyer, dawg, now please. See State v. Demesme, 228 So. 3d 1206 (La. 2017) (finding that requesting a "lawyer dog" was an ambiguous invocation).     As always, we welcome questions and comments from our fans at litigator.libations@gmail.com.

    36 min

  4. MAR 20

    104 - Nothing New Here...

    Send us Fan Mail On this week's episode, Sam and Trevor focus on a recent case from the Supreme Court, Villarreal v. Texas, 2026 U.S. LEXIS 1103 (U.S. 2026). Villarreal explains the limits on how and when a judge can prevent a testifying defendant from talking to his or her attorney during a recess. The Supreme Court discusses two major cases in resolving this issue: Geders v. United States, 425 U. S. 80 (1976), and Perry v. Leeke, 488 U. S. 272 (1989).  Following their discussion about Villarreal, Sam and Trevor turn to a recent Navy-Marine Corps Court of Criminal Appeals case, United States v. Gonzalez, No. 202500333, 2026 CCA LEXIS 115 (N-M Ct. Crim. App. Mar. 6, 2026). There, the duo discusses how old sentencing tips remain valuable even after the changes to Article 66, UCMJ, that turned appellate "sentence appropriateness" review into an assessment over, amongst others, whether a sentence is "plainly unreasonable."   Questions, comments, feedback? Email us at litigator.libations@gmail.com!

    34 min

  5. MAR 6

    103 - Improper Argument Strikes Again

    Send us Fan Mail This week, Sam and Trevor start off by answering a listener question about one of last episode’s cases: United States v. Kruse, No. 202500370, 2026 CCA LEXIS 13 (N-M Ct. Crim. App. Jan. 21, 2026). After a brief recap and debate, the two tackle United States v. Matti, No. 25-0148, 2026 CAAF LEXIS 189 (C.A.A.F. Feb. 17, 2026), a recent Court of Appeals for the Armed Forces (CAAF) decision on improper argument. Matti reveals the frustration of the CAAF judges, who appear tired of repeatedly dealing with the same improper arguments by Government counsel. To educate the field, the CAAF published an appendix to Matti, which un-exhaustively lists twenty-two improper arguments, and encouraged all military judges and counsel to read the appendix to protect against future errors.  But a week after Matti, the Air Force Court of Criminal Appeals issued United States v. Kindred, No. ACM 40607 (f rev), 2026 CCA LEXIS 87 (A.F. Ct. Crim. App. Feb. 24, 2026). In this case, the Air Force Court seemingly disagreed with the CAAF’s determination that certain arguments were improper. Sam and Trevor discuss Kindred and how the Air Force Court got it right for at least one improper argument that implicated constitutional rights, but got it wrong for others.        Questions, comments, concerns? Send them our way at litigator.libations@gmail.com! (Since, apparently, we can’t respond to Buzzsprout fan mail immediately…)

    45 min

  6. FEB 20

    102 - Get it Together, for Efficiency's Sake!

    Send us Fan Mail This week, Sam and Trevor tackle two cases that foretell the risks of prioritizing expediency over process. First, after eight years, United States v. Jacinto, No. 24-0144, 2026 CAAF LEXIS 116 (C.A.A.F. Feb. 2, 2026), comes to end. This case went up and down on appeal due to a denied continuance and in camera review request concerning medical records disclosed on the “eve” of trial. While the Court of Appeals for the Armed Forces (CAAF) found the denied continuance harmless, this case should be in any trial practitioner’s back pocket when seeking a continuance.  Second, the duo debate United States v. Kruse, No. 202500370, 2026 CCA LEXIS 13 (N-M Ct. Crim. App. Jan. 21, 2026), a published Navy-Marine Corp Court of Criminal Appeals case that addresses how convening authorities can refer what looks like a covered offense after the Office of Special Trial Counsel defers prosecution…so long as it’s not labeled as “a covered offense.” Sam and Trevor’s spirited debate ends with a reminder about ensuring jurisdiction in each case and testing the bounds of Kruse.  Questions, comments, concerns? Send them our way at litigator.libations@gmail.com!

    37 min

  7. FEB 6

    101 - "Moore" Clarification/Confusion on Mendoza

    Send us Fan Mail This week, Sam and Trevor discuss four of the latest Court of Appeals for the Armed Forces opinions. The first case they cover is United States v. Malone, No. 25-0140, 2026 CAAF LEXIS 62 (C.A.A.F. Jan. 20, 2026), which addresses how defense counsel can waive multiplicity issues. But the CAAF’s reasoning also strongly suggests that ineffective assistance of counsel claims may increase following this decision.  The second case the duo covers is United States v. Moore, No. 25-0110, 2026 CAAF LEXIS 73 (C.A.A.F. Jan. 23, 2026), which is the latest installment of the Mendoza-Casillas saga. Moore is one of three cases that the CAAF decided, which appear to, once again, limit the once-powerful reach of United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024). See United States v. Casillas, 86 M.J. 94 (C.A.A.F. 2025) (tailoring Mendoza to a sexual assault case that included sleep). The other two cases the CAAF decided with Moore are United States v. Serjak, No. 25-0120, 2026 CAAF LEXIS 74 (C.A.A.F. Jan. 23, 2026), and United States v. Hennessy, No. 25-0112, 2026 CAAF LEXIS 72 (C.A.A.F. Jan. 23, 2026). While Sam and Trevor focus on Moore because it espouses three "new" legal principles for sexual assault cases without consent, all three cases provide insight into how Article 120(b)(2)(A), UCMJ, cases may evolve. As always, send us your comments or questions to litigator.libations@gmail.com.

    36 min

  8. JAN 23

    It’s our 100th Episode!

    Send us Fan Mail For the 100th episode of Litigator Libations, Sam and Trevor keep it short and sweet. They discuss two recent decisions. First, they talk about Case v. Montana, No. 24-624, 2026 U.S. LEXIS 432 (Jan. 14, 2026), from the Supreme Court. Case reaffirms Brigham City v. Stuart, 547 U.S. 398 (2006), which discussed the proper test for the emergency assistance exception to the warrant requirement, but addresses it in the context of a suicide attempt. Second, they discuss United States v. Marschalek, No. ACM S32776, 2026 CCA LEXIS 6 (A.F. Ct. Crim. App. Jan. 16, 2026), from the Air Force Court of Criminal Appeals. Based on United States v. Jones, 66 M.J. 704 (A.F. Ct. Crim. App. 2008), and United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999), Marschalek reaffirms that preemption cannot be waived by a guilty plea.  As always, feel free to reach out with questions or comments at litigator.libations@gmail.com.

    20 min
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Ratings & Reviews

5
out of 5
20 Ratings

About

Updates and tips on defensive litigation in military justice including discussing recent appellate decisions and providing advocacy tips.

Information

  • Creator
    Sam Castanien & Trevor Ward
  • Years Active
    2021 - 2026
  • Episodes
    107
  • Rating
    Explicit
  • Copyright
    © 2026 Litigator Libations
  • Show Website
    Litigator Libations

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