Articles Posted in The CCAs

In United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and United States v. Quigley, 35 M.J. 345 (C.M.A. 1992), the court set out a procedure to follow when an Appellant wants to raise and issue, but appellate counsel do not think it has merit for briefing.

During my time as deputy director at Navy Appellate Defense we did an informal study of Grostefon issues and found that the appellate court would from time to time find error and sometimes grant meaningful relief.

So when you begin reading United States v. McIntosh, ARMY 20120780 (A. Ct. Crim. App. 29 ay 2014), a Grosty case, you wonder what’s in store – the usual – some may say yes.

I was over at ACCA today for the oral argument in United States v. Martin.

As best I could tell CPT Martin was really drunk at the time of the alleged offenses.  A cab driver who dropped him off apparently testified that “he was the most drunk person he’s ever seen,” or words to that effect.  The gate guard said that “he could have been knocked over with a finger push,” or words to that effect.  And there was testimony that he could have been around a 2.5.

So, one of the judges asks appellate government counsel various questions about the appellant’s state of intoxication.  Naturally the government was downplaying it because the argument was he was too drunk to form a specific intent for attempted rape.  Eventually the judge asked if the appellant had been a complaining witness of sexual assault, would he have been drunk enough for a substantial incapacitation charge.

I posted a couple of weeks ago almost, that NMCCA’s cases in which the Fosler issue was addressed.  We have another case which appears consistent with NMCCA’s approach in those prior cases.

In United States v. Leubecker, the court took up a Fosler issue again.  The two challenged specifications related to breaking restriction and communicating a threat.  NMCCA ruled against appellant.

1.  It was a guilty plea, with a PTA.