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)).

The opinion continues, noting that there are (essentially) two main categories of 2422(b) cases: travel and non-travel. In non-travel cases, such as this one, where the appellant did not travel to meet the minor, “courts analyze the factual sufficiency of the requisite substantial step using a case-by-case approach.” Slip op. at 12. With a fact-intensive analysis (after a fact-intensive oral argument, and fact-intensive briefs), the count finds:

The evidence in this case is not legally sufficient to constitute a substantial step when measured against any of the benchmarks described. There was no travel, no “concrete conversation,” such as a plan to meet, and no course of conduct equating to grooming behavior. Viewing the question “u free tonight” in the light most favorable to the Government, it is “simply too preliminary” to constitute a substantial step.

Appellant engaged in a single chat with “Il ovean al 12” containing forty-one lines of text. Even though the chat was sexually explicit, Appellant did not discuss when and where they would meet, how they would find each other, what they would do when they met, or make any other specific arrangements to facilitate the rendezvous. In fact, when “Il ovean al 12” typed “gotta go,” Appellant did not attempt to persuade him to remain in the chat room or to make plans to meet that night or any other time. Appellant simply typed, “ok.” Rather than pursuing “Il ovean al 12,” Appellant ended the chat with a request that “Il ovean al 12” should “e-mail me u want to get together,” which occurred only after “Il ovean al 12” asked for his phone number.

Consequently, there was no evidence when the chat ended that either enticement or sexual activity with a minor would take place unless interrupted by independent circumstances.

Slip op. at 13-14 (internal citations omitted).

The opinion also addresses the ACCA’s affirmation of forfeiture of pay where the convening authority’s action did not actually approve that part of the sentence. However, since automatic forfeitures apply, the court found no prejudice.

Case Links:
ACCA’s unpublished opinion
Appellant’s brief
Appellee’s (government) brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap
CAAF Opinion
Blog post: Opinion Analysis

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