Criminal Law Department Presents – CAAF Chats Ep 79: United States v. Malone (C.A.A.F. 2026)

In this episode, we review the CAAF's ruling that a defense counsel's statement of “no motions” at arraignment constituted an affirmative, express waiver of a multiplicity challenge to duplicative Article 128b domestic violence specifications. We examine the tension between waiver and forfeiture, the majority's reliance on the absence of an ineffective assistance of counsel claim, and the dissent's concern that constitutional double jeopardy rights were relinquished without any showing the accused personally understood or intended to give them up. We also discuss the still-unresolved question, left open in both Malone and the subsequent Ford decision, of what constitutes the “unit of prosecution” for Article 128b offenses, and provide takeaways for practitioners on documenting client conversations, charging strategy for “super specs,” and preserving multiplicity issues for appeal. Learn more about The Quill & Sword series of podcasts by visiting our podcast page at https://tjaglcs.army.mil/thequillandsword. The Quill & Sword show includes featured episodes from across the JAGC, plus all episodes from our four separate shows: “Criminal Law Department Presents” (Criminal Law Department), “NSL Unscripted” (National Security Law Department), “The FAR and Beyond” (Contract & Fiscal Law Department) and “Hold My Reg” (Administrative & Civil Law Department). Connect with The Judge Advocate General’s Legal Center and School by visiting our website at https://tjaglcs.army.mil/.