111 - Ya Win Some, Ya Lose Some (RosarioMartinez & Galvin)

Send us Fan MailThis week, Sam and Trevor discuss United States v. RosarioMartinez, __M.J.__, 2026 CAAF LEXIS 485 (C.A.A.F. 2026), a case that troubles them both. There, after convicting the appellant, the senior panel member informed defense counsel that the panel had actually voted to acquit the accused. Apparently, the panel had misunderstood the voting instructions. Despite this, the CAAF declined to overturn the guilty verdict based on Mil. R. Evid. 606(b)(2)(C), which forbids courts from considering evidence from panel member deliberations.Next, the duo dive into United States v. Galvin, 2026 CCA LEXIS 266 (A.F. Ct. Crim. App. June 5, 2026), which deals with the ongoing saga of whether a convening authority has the power to refer charges for conduct that OSTC determined was a "covered offense." Contradicting the Navy-Marine Court’s decision in United States v. Kruse, 86 M.J. 556 (N-M. Ct. Crim. App. 2026), rev. granted, CAAF 367 (C.A.A.F. 2026) (see episode 103), the Air Force Court ruled the convening authority lacked the ability to refer charges for conduct that OSTC said was a covered offense. Trevor maintains that the plain text of Article 24a, UCMJ, permits convening authorities to refer covered offense conduct to a court-martial, so long as the charged offense is a non-covered offense under Article 1(17), UCMJ. Sam—and the Air Force Court—rely on R.C.M. 303A(a) to argue that once the underlying conduct is determined to be a covered offense by OSTC (as it did here), then the conduct is covered and can only be referred to general or special court-martial by a special trial counsel. Sam recommends that if you are looking to file a motion to dismiss using Galvin, also cite R.C.M. 201(b)(3) and United States v. Henderson, 59 M.J. 350, 353 (C.A.A.F. 2004). Stay tuned for the CAAF's forthcoming decision in Kruse, which should resolve this issue!Questions, feedback, practice tips? Send them to [email protected]!