Yesterday’s oral argument at CAAF in United States v. Winckelmann, reviewed when an accused takes the substantial step required to prove attempted enticement of a minor in violation of 18 U.S.C. § 2422(b).

The argument was fact-intensive. Our own Mary T. Hall, arguing for the appellant, opened with a list of things that the appellant did not do (that, perhaps, one would expect him to have done) in the course of attempting to entice a minor. Then, after about 20 minutes of argument on how the facts of this case are insufficient to prove the offense, she closed with citation to precedent that states that “not every communication with a minor about sex is a violation of § 2422(b).”

Counsel for the government focused on the things the appellant did do during the online chat with the minor, and early in the government’s argument (and a full week before Halloween), the appellant’s actions were characterized as a Christmas tree, with the different parts of the chat taking the place of ornaments. The court also focused on the meaning of “mere preparation” and “a substantial step,” at one point questioning whether it was necessary for the trial military judge to instruct the members on the meaning of these terms (they were not so instructed).

The court also inquired into the instruction given to the members on the ultimate offense; the violation of § 2422(b). The ACCA’s opinion in this case discusses the difference between an attempt to entice a minor to engage in sexual activity and an attempt to engage in sexual activity with a minor, and highlights that the trial military judge instructed the members on the latter:

Having listed the elements, the military judge went on to instruct that “it is necessary for the government to prove that the accused intended to engage in some form of unlawful sexual activity with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in that sexual activity.”  Thus, the military judge required intent and a substantial step toward an actual sexual act, and, in so doing, went beyond what has been required by the majority of circuit courts, which only require intent and a substantial step toward enticement.

United States v. Winckelmann, ACCA No. 20070243, Slip Op. at 8.

The government counsel distinguished the facts of this case based on the geographical proximity of the appellant and the minor, which he argued was the consequence of the deliberate choice of this particular minor by the appellant, and contributed to the finding of a substantial step. The government also distinguished this case from a typical federal prosecution by the fact that this case did not involve a “sting” operation with a cooperating minor (who would have prompted an actual meeting).

On rebuttal, counsel for the appellant highlighted the difference between “mere preparation” and “a substantial step” by citing the explanation of Article 80, UCMJ, in the Manual for Courts-Martial, that discusses an arson charge and distinguishes purchasing matches (mere preparation) from applying a burning match to a haystack (a substantial step).

One Response to “Argument Recap: United States v. Winckelmann, No. 11-0280/AR”

  1. stewie says:

    I would think defining a substantial step for the panel would be somewhat important.