CAAFlog » September 2013 Term » United States v. Winckelmann

CAAF decided the Army case of United States v. Winckelmann, No. 11-0280/AR, 73 M.J. 11 (Winckelmann IV) (CAAFlog case page) (link to slip op.), on December 18, 2013, finding that the Army CCA did not abuse its discretion when it decided to reassess Appellant’s sentence rather than remand the case for a sentence rehearing. CAAF affirms the CCA and denies further relief to Appellant, whose original sentence included confinement for 31 years, but after two reassessments that term of confinement was reduced to eleven years.

Chief Judge Baker writes for the court. Judges Stucky and Ryan write separately, concurring in the result.

Appellant (a Lieutenant Colonel in the Army) was convicted in 2007, pursuant to his pleas of guilty at a general court-martial composed of officer members, of two specifications of conduct unbecoming an officer and two specifications of indecent acts with another in violation of Articles 133 and 134, UCMJ. Additionally, contrary to his pleas, he was convicted of two additional specification of conduct unbecoming an officer in violation of Article 133, and one specification of possession of child pornography, three specifications of attempted enticement of a minor (in violation of 18 U.S.C. § 2422(b)), two specifications of communicating indecent language, and two specifications of obstruction of justice, all in violation of Article 134. The military judge merged some of the offenses for sentencing and Appellant was sentenced by the members to confinement for 31 years, total forfeitures, and a dismissal.

The Army CCA set aside the sole specification of possession of child pornography and one of the three specifications of attempted enticement of a minor in a 2010 opinion (Winckelmann I), and then reassessed the sentence, reducing the period of confinement from 31 years to 20 years. CAAF then reviewed the case and set aside a second of the attempted enticement specifications, remanding the case for reconsideration of three of the Article 134 charges in light of Fosler, in a 2011 opinion (Winckelmann II) (CAAFlog case page). On remand, the CCA set aside two of the charges under Article 134 due to the Government’s failure to charge a terminal element, and again reassessed the sentence, reducing the term of confinement to eleven years, in a 2012 opinion (Winckelmann III).

Appellant then petitioned CAAF, arguing that rather than “reassess” the sentence, the CCA should have remanded the case for a sentence rehearing (an entirely new sentencing hearing, but where Appellant could not receive an approved sentence greater than the original sentence). CAAF granted review of a single issue:

Whether the Army Court of Criminal Appeals, after disapproving the findings of guilty for Charge IV and its Specifications and after considering this Honorable Court’s decision dismissing Specification 3 of Charge III, erred by reassessing appellant’s sentence to confinement, first from 31 years to 20 years (in their initial decision), and then from 20 years to 11 years (in a subsequent decision), rather than directing a sentence rehearing.

The Chief Judge’s majority opinion traces the history of sentence reassessments, beginning further back in time than my argument preview in this case. It starts with the Supreme Court’s consideration of a sentence reassessment in the military murder/rape habeas case of Jackson v. Taylor, 353 U.S. 569 (1957):

In Jackson v. Taylor, the appellant was convicted of premeditated murder and attempted rape, and received a life sentence. The board of review set aside the murder conviction, reassessed the sentence and affirmed a term of confinement of twenty years. Jackson argued before the Supreme Court that the board should have ordered a rehearing on sentence and that it lacked authority to impose the twenty-year sentence to confinement.

Slip op. at 7 (citations omitted). Jackson lost.

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Audio from today’s oral arguments at CAAF is available at the following links:

United States v. Winckelmann, No. 11-0280/AR (Winckelmann IV) (CAAFlog case page): Audio here.

United States v. Merritt, No. 13-0283/AF (CAAFlog case page): Audio here.

CAAF will begin the September 2013 Term oral argument calendar with United States v. Winckelmann, No. 11-0280/AR (Winckelmann IV) (CAAFlog case page), on Tuesday, September 17, 2013, at 9:30 a.m. This will be the second trip to Judiciary Square for this case, which involves an Army Lieutenant Colonel who was convicted of numerous offenses related to sexual misconduct involving minors. CAAF heard oral argument and issued an opinion in this case in the September 2011 Term (CAAFlog case page) that discussed the difference between “mere preparation” and a “substantial step” in a prosecution for an attempt, and reversed one of Appellant’s convictions.

Now the case returns to CAAF to determine whether the Army Court of Criminal Appeals should have ordered a sentence rehearing rather than reassessing the sentence; something the CCA did twice. CAAF granted review of one issue:

Whether the Army Court of Criminal Appeals, after disapproving the findings of guilty for Charge IV and its Specifications and after considering this Honorable Court’s decision dismissing Specification 3 of Charge III, erred by reassessing appellant’s sentence to confinement, first from 31 years to 20 years (in their initial decision), and then from 20 years to 11 years (in a subsequent decision), rather than directing a sentence rehearing.

The history of the case deserves some consideration. Appellant was convicted in 2007, by a general court-martial composed of officer members, pursuant to his pleas of guilty, of two specifications of conduct unbecoming an officer and two specifications of indecent acts with another (“for videotaping himself and two other males engaging in acts of oral and anal sodomy, and maintaining possession of the videotape.” Gov’t Br. at 2.) in violation of Articles 133 and 134, UCMJ. Additionally, contrary to his pleas, he was convicted of two additional specification of conduct unbecoming an officer (“for engaging in ‘cyber-sex’ for his own sexual gratification to solicit individuals he believed to be minors.” Gov’t. Br. at 2.) in violation of Article 133, and one specification of possession of child pornography, three specifications of attempted enticement of a minor (in violation of 18 U.S.C. § 2422(b)), two specifications of communicating indecent language, and two specifications of obstruction of justice, all in violation of Article 134. The military judge merged some of the offenses for sentencing and Appellant was sentenced by the members to confinement for 31 years, total forfeitures, and a dismissal. The convening authority disapproved the forfeitures.

On automatic review in this 2010 opinion (Winckelmann I) the Army CCA set aside the sole specification of possession of child pornography and one of the three specifications of attempted enticement of a minor, and then reassessed the sentence, reducing the period of confinement from 31 years to 20 years. CAAF then granted review of three issues, one of which questioned the legal sufficiency of of the evidence supporting a second of the three attempted enticement offenses. CAAF unanimously found the evidence insufficient, set aside a second of the attempted enticement specifications, and remanded the case for reconsideration of three of the Article 134 charges (indecent acts with another, communicating indecent language, and obstruction of justice) in light of Fosler in this 2011 opinion (Winckelmann II) (70 M.J. 403).

On remand, in this 2012 opinion (Winckelmann III), the CCA set aside two of the charges under Article 134 consisting of two specifications of communicating indecent language and two specifications of obstruction of justice, due to the Government’s failure to charge a terminal element. However, applying United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) (opinion) (CAAFlog case page), the CCA affirmed Appellant’s pleas of guilty to the two specifications of committing indecent acts with another. The court again reassessed the sentence, and again reduced the term of confinement, this time to 11 years, leading to the present appeal.

Also worthy of consideration is the history of sentence reassessments, and particularly the cases of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Peoples, 29 M.J. 426 (C.M.A. 1990), which one esteemed military justice commentator has called “abominations in the eyes of the law.”

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