CAAF granted review of the following issue today:

WHETHER SPECIFICATION 5 OF CHARGE I ALLEGING AN INDECENT ACT UNDER ARTICLE 120(k), UCMJ, FAILED TO STATE AN OFFENSE WHERE THE INDECENT ACT ALLEGED WAS APPELLANT ORALLY REQUESTING DURING A SKYPE INTERNET CONVERSATION THAT A CHILD UNDER THE AGE OF 16 YEARS EXPOSE HER BREASTS SO THAT HE COULD VIEW THEM UTILIZING THE WEB CAMERA.

United States v. King, __ M.J. __, No. 11-0583/NA (C.A.A.F. July 21, 2011) (order granting review).  NMCCA’s unpublished opinion in the case is available here.

Appellate defense types will be interested to learn that the issue was raised under Grostefon.

6 Responses to “CAAF grant on Article 120 issue”

  1. Mike "No Man" Navarre says:

    By the way, did Judge Booker in King say that only Congress has the authority to delineate the elements of offenses with respect to the land and naval forces? Sacre bleu, is that an non-delegation argument?

  2. Cloudesley Shovell says:

    I thought Judge Booker raised some very interesting arguments in his dissent. Art. 120(k) (like the rest of Art. 120) is not a model of clear statutory drafting.

    This is a good case for CAAF to continue to clean up and clarify the various parts of Art. 120. I’m a bit surprised counsel persisted with the Grostefon characterization given Judge Booker’s dissent. It’s a good solid issue.

    CS

  3. bill almett says:

    Does CAAF not know that Grostefons are all BS issues?

  4. Ama Goste says:

    This isn’t the first time CAAF has granted review of a Grostefon issue.

  5. Charles Gittins says:

    I have a reported decision on CAAF Grostefon submitted by the client after the military appellate counsel did not raise IAC at AFCCA. In a sexual assault case, the female civilian counsel in Japan failed to make an opening statement; asked cross exam of the prosecutrix amounting to nothing (2 pages of record, I believe), failed to call military waiting character witnesses for a Master Sergeant on the merits, and failed to ask for an LIO raised by the evidence. She also said she destroyed all of her case file which she said would show her strategy, which she could not articulate at the DuBay. I was hired to do the DuBay and CAAF brief/Argument following the DuBay. No IAC, said CAAF. Different court than this one, but to reach that conclusionCAAF pretty much ignored the record. But the point is, on his own, the client got himself a DuBay hearing.

  6. Phil Cave says:

    There are, I suspect more than you would think, cases where an appellant wins on a Grosty.