The NDAA, executive order, and other politics, have distracted me from the sober work of caselaw, but (at least by Monday) I will get back on the horse with this opinion analysis, argument recaps for the four oral arguments at CAAF this week, and whatever new business of interest the CCAs have to offer.
On Monday, CAAF released it’s fourth opinion of the term in United States v. Winckelmann, No. 11-0280/AR, 70 M.J. 403 (C.A.A.F. Dec. 12, 2011) (CAAFlog case page) (link to slip op.). Judge Ryan writes for a unanimous court, finding that the ACCA erred in affirming the finding of guilty (contrary to the appellant’s plea) of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). CAAF found that the evidence of a substantial step toward enticement of a minor was factually insufficient.
The factual and procedural background are set forth in the argument preview and recap (links below). The issue was whether (under and in the context of the facts of the case) the chat line “u free tonight” constitutes a substantial step. Judge Ryan writes that “there is an elusive line separating mere preparation from a substantial step.” Moreover, the fact that the members were not instructed on the definition of a substantial step (discussed during the oral argument) gets a relatively strongly-worded footnote. (Those last two sentences are big foot-stompers for anyone prosecuting violations of § 2422(b)).
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CAAF has released its fourth opinion of the term: United States v. Winckelmann, No. 11-0280/AR. CAAF reverses ACCA and favorably quotes Judge Ham the Great’s separate opinion below. Judge Ryan wrote for a unanimous court. And this is the second recent opinion in which Chief Judge Baker didn’t dissent to a Fosler remand.
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).
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CAAF has posted the audio of today’s oral arguments in United States v. Kreutzer, Jr., and United States v. Winckelmann.
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.
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CAAF granted review of an Army case today. United States v. Wincklemann, __ M.J. __, No. 11-0280/AR (C.A.A.F. July 7, 2011). Of course the grant included the obligatory Fosler trailer. But CAAF also granted review of two non-Fosler issues:
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.
ACCA’s unpublished decision in the case, featuring a separate concurring in part/dissenting in part opinion by Judge Ham the Great as well as a concurring in the result opinion by Judge Gifford, is available here. United States v. Winckelmann, No. ARMY 20070243 (A. Ct. Crim. APp. Nov. 30, 2010).