On Monday CAAF will hear oral argument in United States v. Winckelmann, No. 11-0280/AR. The granted issues are:
I. Whether the lower court erred in affirming the finding of guilty as to Specification 3 of Charge III when it found that an online chat containing the line “u free tonight” was sufficient to prove attempted enticement.
II. Whether the Army Court of Criminal Appeals erred by affirming forfeiture of all pay and allowances when the convening authority did not approve any forfeiture.
III. Whether an Article 134 Clause 1 or 2 Specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this court’s recent opinions in Medina, Miller, and Jones.
(note: no brief were filed on issue III).
The appellant, a Lieutenant Colonel in the Army, was convicted of multiple offenses, including, contrary to his pleas, three specifications of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b), incorporated under Clause 3 of Article 134, UCMJ (one of which was set-aside by the ACCA). The ACCA’s opinion is here: link.
18 U.S.C. § 2422(b) prohibits persuading, inducing, enticing, or coercing any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.
The facts are essentially that the appellant engaged in a brief, online, sexual chat with a minor, that included the line “u free tonight.” Issue I is the primary issue before CAAF, and the briefs largely focus on the significance of a lack of travel to a rendezvous location to the determination of the existence of a substantial step necessary to prove the attempt, because the appellant only engaged in the brief internet chat with the minor party and did not make or attempt any actual travel.
The briefs rely heavily on non-military law due to the incorporation of a federal statute, with the appellant’s brief relying largely on Seventh Circuit caselaw that discuss “non-travel” cases, and the government’s brief giving significant weight to a Ninth Circuit case (United States v. Goetzke, 494 F.3d 1231 (9th Cir., 2007)) and a N-MCCA case (United States v. Garner, 67 M.J. 734 (N.M. Ct. Crim. App., 2009)) adopting the reasoning of Goetzke.
Because legal sufficiency is reviewed de novo, considering whether any rational trier of fact could have found all the elements of the charged offense beyond a reasonable doubt, the oral argument on this issue will be fact-intensive.
Issue II questions whether it is error for a CCA, in reassessing a sentence, to approve a sentence that includes forfeitures when the Convening Authority does not approve any adjudged forfeitures in his action. The government’s brief notes that in this case these forfeitures would be automatic under Article
Our own Mary T. Hall represents the appellant.