United States v. Ellis: Waiver vs. Forfeiture

The Case: United States v. Ellis

The First Amendment Under Article 133, UCMJ

Here is the part that makes United States v. Ellis genuinely uncomfortable. Nobody missed the issue at trial.

The Hartwig Standard

At the Article 39(a) session on the defense motion to dismiss, the military judge acknowledged that Ellis’s statements were likely protected by the First Amendment. He then correctly recognized that in the military, speech that would be protected outside the gate can still be punishable under Article 133, UCMJ.

And then — this is straight out of the slip opinion — both parties and the judge agreed that for protected speech to be punishable, the finder of fact must determine whether there is a clear and present danger that the speech will personally dishonor and disgrace, or seriously compromise the person’s standing as an officer.

Everyone in the room said the words. Everyone agreed on the standard. That standard comes from United States v. Hartwig, 39 M.J. 125, 128 (C.M.A. 1994), and it is not a boutique theory; it is the test.

The Article 133 Instructions

The judge then asked trial counsel how he should instruct on the Article 133 specification.

Three answers followed:

• Trial counsel: instructing on the terminal element — whether the conduct was unbecoming an officer — would be sufficient.
• Defense counsel: proposed no First Amendment instruction and stood on the motion to dismiss.
• The military judge: gave the standard Article 133, UCMJ instructions.

Nobody objected.

So the panel that decided whether a colonel’s private speech to his wife could be punished never heard the constitutional test that all three lawyers in the room had agreed governed the question. The military judge is presumed to know the law. Members are not. Members get their law from one place — the bench.

Waiver, Forfeiture, and the Standard of Review

In United States v. Ellis, ACCA said error. CAAF said wrong standard of review.

At the Army Court of Criminal Appeals

The Army Court took the instructional issue and ran. It declined to decide the legal sufficiency question, held that the judge erred by withholding the Hartwig clear-and-present-danger standard from the factfinder, and found the error not harmless beyond a reasonable doubt.

It set aside the findings and the sentence and ordered a rehearing.

Army Court of Criminal Appeals (ACCA) also did something that will matter in unrelated cases and is worth putting in your file: it held that Article 66(f) gives a Court of Criminal Appeals exactly two options when it sets aside findings — order a rehearing, or dismiss. R.C.M. 1203 speaks of “authorizing” a rehearing rather than “ordering” one, and the Army Court declined to let a procedural rule promulgated by the President override the plain text of a congressional mandate.

On the waiver question, ACCA reached the defense’s result on generous reasoning. It held that the military judge’s broad “subject to all the objections and such” caveat “transmogrified the defense’s previous motions into objections to the instructions.”

At the Court of Appeals for the Armed Forces

The acting Judge Advocate General of the Army certified four issues. Judge Hardy, writing for Chief Judge Ohlson and Judges Sparks and Johnson, split them.

Issue One: No Waiver

On the first: no waiver. The Government argued that under United States v. Davis, 79 M.J. 329 (C.A.A.F. 2020), counsel who participates in the instructions colloquy, requests nothing on the First Amendment, and lodges no objection has expressly and unequivocally acquiesced — and thereby waived every objection to the instructions, elements included.

That is exactly what Davis holds, and on these facts it was a live argument. The distinction CAAF drew is the judge’s own question. It was ambiguous. It is not clear to the Court, and did not appear clear to the parties at the time, what counsel were agreeing to. Add the hedge in the answer — “as best we could tell” — and there is no intentional relinquishment of a known right. Waiver requires a deliberate decision. This was not one.

Issue Two: Forfeiture

On the second: forfeiture, and back to ACCA. Here the Court parted company with the Army Court and did the work that will outlive this case. ACCA had treated the First Amendment challenge and the instructional claim as intrinsically linked, so that preserving one preserved the other.

CAAF said they are related but separate, and each must be “raised and pressed independently” to survive. A motion to dismiss on First Amendment grounds is a motion to dismiss. It is not an objection to an instruction. The failure to object put the claim squarely inside R.C.M. 920(f), which forfeits it, and forfeited claims get plain error review — error, clear or obvious, and material prejudice.

Issues Three and Four: Not Reached

CAAF declined to reach the third and fourth certified issues so the Army Court can decide them under the right standard in the first instance.

Where the Case Stands Now

CAAF Returned the Case for Plain Error Review

Because ACCA had reviewed the claim de novo and never addressed plain error, CAAF vacated its decision, vacated the rehearing order, and returned the case to the Judge Advocate General for remand.

The First Amendment Claim Remains Available on Remand

Forfeiting an objection to omitted instructions does not necessarily extinguish a separately preserved challenge to the conviction’s legal sufficiency. In United States v. Ellis, CAAF noted that the underlying First Amendment challenge to the Article 133, UCMJ conviction remained available on remand even though the instructional claim was forfeited.

United States v. Ellis: Win or Loss for Ellis?

Someone will tell you Ellis won. In a sense, he did. He kept his no-waiver ruling, he kept his preserved First Amendment claim, and the Government did not get a judgment affirming the conviction. Fair enough, and the Air Force Appellate Defense Division (AFADD) and the National Institute of Military Justice (NIMJ) both filed in his support to protect exactly that ground.

But look at what he lost. He had a rehearing order in hand and a decision holding the error not harmless beyond a reasonable doubt. That is gone. What he has instead is a remand to a court that must now ask whether the error was clear or obvious at the time and whether it materially prejudiced a substantial right. Those are different questions with a heavier lift, and the party carrying the lift is now the appellant, not the Government. The distance between “not harmless beyond a reasonable doubt” and “plain error” is measured in convictions.

What United States v. Ellis Means Tuesday Morning

The operating rule out of United States v. Ellis is short enough to tape to the inside of a trial notebook.

Say It on the Record, in the Words

Say it on the record, in the words, at the instructions conference. A pretrial motion preserves the motion. It does not preserve an instruction. If your theory requires the members to hear a legal standard, you must (1) request the instruction under R.C.M. 920(c), in writing where you can, and (2) object under R.C.M. 920(f) when the judge declines to give it. Two separate acts. Do both.

Draft the Instruction Yourself

In United States v. Ellis, all three lawyers agreed on the Hartwig standard out loud, and nobody handed the judge language. A judge who is handed a clean paragraph and refuses it has made a record. A judge who is handed nothing has made your appellate problem.

Never Answer a Compound Question With a Hedge

“As best we could tell, yes, sir” saved Ellis from waiver by accident. Do not plan on that. If you are agreeing, agree. If you are not, say: “Defense objects to the instructions as given, specifically the omission of the clear-and-present-danger instruction under Hartwig; we requested it at Appellate Exhibit ___ and renew the objection now.” Fourteen seconds.

Judges: Ask a Clean Question

“Subject to all the objections and such” did nothing but generate two years of appellate litigation. The better question is the one Davis rewarded: does either party object to the instructions as given, and does either party request any additional instruction? Then wait for a yes or a no.

Trial Counsel: The Shortcut Is Not Free

The Government advised the judge that the terminal element alone would be sufficient, won on that advice, won the conviction, and then spent a certificate for review defending an instruction it had recommended. There is a lesson in that about the difference between winning the colloquy and keeping the finding.

Two Notes Before You Cite United States v. Ellis

First, the ACCA decision is an unpublished per curiam summary disposition, 2025 CCA LEXIS 214, 2025 WL 1400359 (A. Ct. Crim. App. May 13, 2025). It is not freely available on a public site; you will need a subscription database to pull it.

Second, and this will trip up anyone who cites the slip: the caption line of the CAAF PDF reads “Argued December 10, 2025—Decided July 28, 2028.” The court’s own opinions table gives the decision date as 28 July 2026. Treat the 2028 as a typographical error in a document that says on its face that it is subject to revision before publication, and cite the 2026 date. Then check the published version when it lands, because that is the job.

FAQ