United States v. Winckelmann , 70 M.J. 403 ( 2011 )

UNITED STATES, Appellee
v.
Douglas K. WINCKELMANN, Lieutenant Colonel
U.S. Army, Appellant
No. 11-0280
Crim. App. No. 20070243
United States Court of Appeals for the Armed Forces
Argued October 24, 2011
Decided December 12, 2011
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and COX, S.J., joined.
Counsel
For Appellant: Mary T. Hall, Esq. (argued); Captain A. Jason
Nef (on brief).
For Appellee: Captain Stephen E. Latino (argued); Major Amber
J. Williams and Captain Ellen S. Jennings (on brief).
Military Judge: David L. Conn
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Winckelmann, 11-0280/AR
Judge RYAN delivered the opinion of the Court.
We granted the petition for review to determine whether the
United States Army Court of Criminal Appeals (ACCA) erred in
affirming the finding of guilty as to Specification 3 of Charge
III, attempted enticement of a minor in violation of 18 U.S.C.
§ 2422(b) (2006), and whether the ACCA erred in affirming the
forfeiture of all pay and allowances.1 We hold that the lower
court erred in both instances. First, under the facts of this
case, the line “u free tonight” did not constitute a substantial
step toward enticement of a minor. The evidence related to
Specification 3 of Charge III was thus not legally sufficient.
Second, the ACCA erroneously affirmed the forfeiture of all pay
1
On July 7, 2011, we granted the petition for review on two
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.
We also specified a third issue:
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.
Senior Judge Cox did not participate in the resolution of the
specified issue.
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and allowances because the convening authority did not approve
any forfeitures in the final convening authority’s action.
Article 66(c), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 866(c) (2006). However, no prejudice was caused by
this error, because Appellant was nonetheless subject to
automatic forfeitures. Article 58b, UCMJ, 10 U.S.C. § 858b
(2006).
I. PROCEDURAL HISTORY
Pursuant to his pleas, Appellant was found guilty of two
specifications of conduct unbecoming an officer and a gentleman
and two specifications of indecent acts with another, in
violation of Articles 133 and 134, UCMJ, 10 U.S.C. §§ 933, 934
(2006). A panel of officer members convicted Appellant,
contrary to his pleas, of two specifications of conduct
unbecoming an officer and a gentleman, 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, in violation
of Articles 133 and 134, UCMJ. The members sentenced Appellant
to confinement for thirty-one years, forfeiture of all pay and
allowances, and a dismissal. The convening authority initially
issued an order that approved “the forfeiture of all pay and
allowances,” but it later withdrew the order and substituted it
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with an order that approved “[o]nly so much of the sentence as
provides for confinement for 31 years and a dismissal.”
Appellant challenged the factual and legal sufficiency of
the convictions, and the ACCA set aside two of the findings:
(1) Specification 2 of Charge III, involving the attempted
enticement of a minor by sending a nude picture of a male, for
failure to state an offense; and (2) the finding of guilty for
possession of child pornography. United States v. Winckelmann,
No. ARMY 20070243, 2010 CCA LEXIS 390, at *26, *39, 2010 WL
4892816, at *9, *12 (A. Ct. Crim. App. Nov. 30, 2010)
(unpublished). After setting aside the two guilty findings, the
court reassessed the sentence and affirmed only so much of the
sentence that provided for confinement for twenty years,
forfeiture of all pay and allowances, and a dismissal.2 2010 CCA
LEXIS 390, at *45, 2010 WL 4892816, at *15. The ACCA affirmed
the remaining findings, although it was divided over the legal
sufficiency of the evidence and the military judge’s
instructions with respect to Specification 3 of Charge III.
Compare 2010 CCA LEXIS 390, at *21, *30, 2010 WL 4892816, at *7,
*10 (holding that the evidence was “overwhelming” and finding no
error in the attempt instruction), with 2010 CCA LEXIS 390, at
2
The ACCA did not state or suggest that it had affirmed the
forfeiture of all pay and allowances, which was not approved by
the convening authority in his final action, as part of this
sentence reassessment.
4
United States v. Winckelmann, 11-0280/AR
*51, 2010 WL 4892816, at *16 (Gifford, J., concurring in the
result) (finding the instructions “minimally sufficient”), and
2010 CCA LEXIS 390, at *64, *84, 2010 WL 4892816, at *20, *26
(Ham, J., concurring in part, dissenting in part and in the
result) (concluding that the evidence was neither “factually
[n]or legally sufficient” and that the military judge failed to
properly instruct the members).
II. FACTUAL BACKGROUND
The following facts are relevant to Specification 3 of
Charge III.
While serving in Bosnia, Appellant received letters from
second grade children on Valentine’s Day. Appellant wrote back
to the children and became “pen-pals” with a young boy named RM.
Appellant maintained the relationship with RM, and, over the
years, he became a friend of the family and developed a “big
brother/little brother relationship” with RM. Appellant visited
often, wrote letters, and used his e-mail address to correspond
with RM. The family knew Appellant’s screen name, “NYJOJO2G.”
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When RM’s mother, KM, purchased a new computer in 2005, she
received a “buddy list”3 update from her online service provider,
America Online (AOL), that contained Appellant’s screen name.
She noticed that “NYJOJO2G” was in a chat room called “boys with
small ones.” KM continued to monitor the buddy list, and she
later had her son create the screen name “2CUTE4U” to chat with
Appellant in a chat room labeled “boys wearing briefs.” The
conversation was sexually explicit, and it ended abruptly when
RM identified Appellant by his first name.
Using a second fictitious screen name, “Il ovean al 12,” KM
again followed “NYJOJO2G” into a chat room. As “Il ovean al
12,” KM identified herself as a fifteen-year-old male from New
York, and Appellant asked KM to join him in a private chat room.
The private chat lasted approximately twenty-two minutes with
eleven minutes of dialogue and had forty-one lines of text, as
follows:
NYJOJO2G [9:04 PM]: u in nyc
Il ovean al 12 [9:05 PM]: yeah
NYJOJO2G [9:05 PM]: where
3
A “buddy list” is a service that AOL has used since at least
1997, and it “enables the subscriber to create a list of
identified screen names employed by other users with whom the
subscriber wishes to communicate and displays which of those
pre-selected users is currently using the AOL service.” America
Online, Inc. v. AT & T Corp., 243 F.3d 812, 815 (4th Cir. 2001).
When a “buddy” from the list is identified as online, the AOL
subscriber can click on “buddy info” to initiate an instant
message conversation or join the “buddy” in a chat room.
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NYJOJO2G [9:05 PM]: gay or bi
Il ovean al 12 [9:05 PM]: brooklyn
Il ovean al 12 [9:05 PM]: bi
NYJOJO2G [9:05 PM]: kool
Il ovean al 12 [9:05 PM]: you
NYJOJO2G [9:06 PM]: manhattan
NYJOJO2G [9:06 PM]: bi
Il ovean al 12 [9:06 PM]: great
NYJOJO2G [9:06 PM]: u had sex with a guy
Il ovean al 12 [9:06 PM]: not yet
NYJOJO2G [9:07 PM]: u looking for younger or older
Il ovean al 12 [9:07 PM]: older
NYJOJO2G [9:07 PM]: kool
Il ovean al 12 [9:07 PM]: are you older
NYJOJO2G [9:07 PM]: y
Il ovean al 12 [9:07 PM]: age
NYJOJO2G [9:08 PM]: 27
Il ovean al 12 [9:08 PM]: location
NYJOJO2G [9:08 PM]: manhatten
NYJOJO2G [9:09 PM]: east side
Il ovean al 12 [9:09 PM]: you have sex with guys
NYJOJO2G [9:10 PM]: young men
Il ovean al 12 [9:10 PM]: how young
Il ovean al 12 [9:10 PM]: 15?
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NYJOJO2G [9:11 PM]: they want
Il ovean al 12 [9:11 PM]: what
NYJOJO2G [9:11 PM]: if they want
Il ovean al 12 [9:12 PM]: brb
[eleven-minute break]
Il ovean al 12 [9:23 PM]: hey
NYJOJO2G [9:23 PM]: yes
NYJOJO2G [9:23 PM]: u free tonight
Il ovean al 12 [9:24 PM]: gotta go talk soon?
NYJOJO2G [9:24 PM]: ok
Il ovean al 12 [9:24 PM]: got a number
NYJOJO2G [9:24 PM]: e-mail me u want to get together
Il ovean al 12 [9:26 PM]: ok
see ya
NYJOJO2G [9:26 PM]: bye
The chat room conversation with “Il ovean al 12” was the
basis of Specification 3 under Charge III: “knowingly
attempt[ing]” to persuade and entice an individual whom
Appellant believed to be a fifteen-year-old boy to engage in
sexual activity in an online chat in violation of § 2422(b).
When the military judge detailed the elements of the offense in
his instruction to the members, he did not explain or define
what constitutes a “substantial step.” The members found
Appellant guilty of, inter alia, Specification 3 of Charge III.
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III. DISCUSSION
A.
We review issues of legal sufficiency de novo. United
States v. Green, 68 M.J. 266, 268 (C.A.A.F. 2010). Evidence is
legally sufficient if, viewed in the light most favorable to the
Government, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). In applying this
test, we must “draw every reasonable inference from the evidence
of record in favor of the prosecution.” United States v.
Bright, 66 M.J. 359, 365 (C.A.A.F. 2008).
The underage enticement statute criminalizes “attempts” to
knowingly persuade, induce, entice, or coerce any minor “to
engage in . . . any sexual activity” using a means of interstate
commerce. 18 U.S.C. § 2422(b). To be guilty of an attempt
under § 2422(b), the Government must prove, inter alia, that the
defendant (1) had the intent to entice, and (2) took a
substantial step toward enticement.4 See, e.g., United States v.
Young, 613 F.3d 735, 742 (8th Cir. 2010); United States v.
4
While in this case, the military judge incorrectly instructed
the members that the substantial step must be toward actually
engaging in sexual activity rather than a substantial step
towards enticement alone, that does not affect the analysis of
the question whether there was a substantial step at all under
the facts of this case.
9
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Barlow, 568 F.3d 215, 219 (5th Cir. 2009); United States v.
Brand, 467 F.3d 179, 202 (2d Cir. 2006).
As the Government concedes, the issue is whether, under the
facts of this case, the chat line “u free tonight” constitutes a
substantial step. There is an “elusive” line separating mere
preparation from a substantial step. United States v. Schoof,
37 M.J. 96, 103 (C.M.A. 1993); see also United States v.
Resendiz-Ponce, 549 U.S. 102, 107 (2007) (requiring a
substantial step for criminal attempt because “the mere intent
to violate a federal criminal statute is not punishable as an
attempt unless it is also accompanied by significant conduct”);
United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003)
(“The distinction between preparation and attempt has proven
difficult for courts and scholars alike.”); Wayne R. LaFave,
Criminal Law § 11.4(a) (5th ed. 2010) (“Precisely what kind of
act is required is not made very clear by the language
traditionally used by courts and legislatures.”).5
5
This difficulty highlights the additional problem introduced in
this case. The military judge must provide instructions that
“‘sufficiently cover the issues in the case and focus on the
facts presented by the evidence.’” United States v. Maxwell, 45
M.J. 406, 424 (C.A.A.F. 1996) (quoting United States v. Snow, 82
F.3d 935, 938-39 (10th Cir. 1996)). Here, the members were not
instructed as to what constitutes a substantial step, or how
that differs from mere preparation. The better practice would
be for the military judge to craft an instruction that provides
definitional guidance to the members.
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Federal courts of appeals have defined a “substantial step”
as “more than mere preparation, but less than the last act
necessary before actual commission of the crime.” See, e.g.,
United States v. Chambers, 642 F.3d 588, 592 (7th Cir. 2011).
We have adopted a similar approach. See, e.g., United States v.
Byrd, 24 M.J. 286, 290 (C.M.A. 1987) (“‘[A] substantial step
must be conduct strongly corroborative of the firmness of the
defendant’s criminal intent.’” (quoting United States v.
Jackson, 560 F.2d 112, 116 (2d Cir. 1977), cert. denied, 434
U.S. 941 (1977))). To be found guilty of attempt under Article
80(a), UCMJ, 10 U.S.C. § 880(a) (2006), for example, the act
must amount to “more than mere preparation.” Accordingly, the
substantial step must “‘unequivocally demonstrat[e] that the
crime will take place unless interrupted by independent
circumstances.’” United States v. Goetzke, 494 F.3d 1231, 1237
(9th Cir. 2007) (quoting United States v. Nelson, 66 F.3d 1036,
1042 (9th Cir. 1995)).
In the context of § 2422(b), different types of evidence
can establish a substantial step depending on the facts of a
particular case. For example, courts agree that travel
constitutes a substantial step in § 2422(b) cases. See, e.g.,
United States v. Gagliardi, 506 F.3d 140, 150 (2d Cir. 2007);
United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir. 2006);
United States v. Munro, 394 F.3d 865, 870 (10th Cir. 2005).
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But, “[t]ravel is not a sine qua non of finding a substantial
step in a section 2422(b) case.” United States v. Gladish, 536
F.3d 646, 649 (7th Cir. 2008); see also United States v. Yost,
479 F.3d 815, 820 (11th Cir. 2007).
In non-travel cases involving the Internet, courts analyze
the factual sufficiency of the requisite substantial step using
a case-by-case approach. As relevant to the facts of this case,
the United States Court of Appeals for the Seventh Circuit has
cautioned against “[t]reating speech (even obscene speech) as
the ‘substantial step’” because it “would abolish any
requirement of a substantial step.” Gladish, 536 F.3d at 650.
We agree that the online dialogue must be analyzed to
distinguish “‘hot air’ and nebulous comments” from more
“concrete conversation” that might include “making arrangements
for meeting the (supposed) [minor], agreeing on a time and place
for a meeting, making a hotel reservation, purchasing a gift, or
traveling to a rendezvous point.” United States v. Zawada, 552
F.3d 531, 534-35 (7th Cir. 2008) (citing Gladish, 536 F.3d at
649); see also United States v. Nestor, 574 F.3d 159, 161 (3d
Cir. 2009) (posting an advertisement online seeking sexual
contact with children, repeatedly discussing such activity with
an adult intermediary, arranging a rendezvous for the sexual
encounter, and discussing ways to avoid police detection
“constitute[d] a substantial step”); United States v. Thomas,
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410 F.3d 1235, 1246 (10th Cir. 2005) (“Thomas crossed the line
from ‘harmless banter’ to inducement the moment he began making
arrangements to meet [the victim].”).
Where an accused has not traveled to a rendezvous point and
not engaged in such “concrete conversation,” courts have
nonetheless found that defendants have taken a substantial step
toward enticement of a minor where there is a course of more
nebulous conduct, characterized as “grooming” the victim.6 See,
e.g., Goetzke, 494 F.3d at 1236 (finding a substantial step when
the defendant mailed letters that “flattered” a minor,
“described the sex acts,” and “encouraged” the victim to visit
him again); United States v. Bailey, 228 F.3d 637, 639 (6th Cir.
2000) (affirming a § 2422(b) conviction where the defendant
repeatedly “contacted” a minor, “urged her to meet him, and used
graphic language to describe how he wanted to perform oral sex
on her”).
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
6
“Grooming” behavior refers to the “‘sexualization of the
relationship’” over time through repeated contact and attempts
to gain affection in preparation for sexual activity. Brand,
467 F.3d at 203 (quoting Sana Loue, Legal and Epidemiological
Aspects of Child Maltreatment, 19 J. Legal Med. 471, 479
(1998)).
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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.
Winckelmann, 2010 CCA LEXIS 390, at *64, 2010 WL 4892816, at *20
(Ham, J., concurring in part, dissenting in part and in the
result).
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.
Rather, the enticement or sexual activity could only occur if
the victim contacted Appellant. Therefore, Appellant’s actions
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did not exceed the threshold level of evidence required for a
substantial step under the fact-specific analysis used by the
federal courts of appeals in § 2422(b) cases, and the evidence
is not legally sufficient for the finding of guilt.
B.
The ACCA also erred in affirming the forfeiture of pay.
“If a servicemember on appeal alleges error in the application
of a sentence that involves forfeitures, the servicemember must
demonstrate that the alleged error was prejudicial.” United
States v. Lonnette, 62 M.J. 296, 297 (C.A.A.F. 2006) (citing
Article 59(a), 10 U.S.C. § 859(a) (2000)). “To establish
prejudice, an appellant bears the burden of demonstrating that
he or she was entitled to pay and allowances at the time of the
alleged error.” Id.Under Article 66(c), UCMJ, the ACCA “may act only with
respect to the findings and sentence as approved by the
convening authority.” In this case, the ACCA “affirm[ed]” the
forfeiture of pay, even though the final convening order
approved “[o]nly so much of the sentence as provides for
confinement for 31 years and a dismissal.” Under the facts of
this case, the ACCA committed error in affirming a forfeiture
that the final convening order did not approve.
Although the ACCA erred, the error was not prejudicial.
Under Article 58b, UCMJ, Appellant had already forfeited any
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claim to the pay and allowances due to him during his
confinement. Because the convening authority did not waive the
automatic forfeiture under Article 58b, UCMJ, Appellant was not
entitled to pay and allowances. See United States v. Emminizer,
56 M.J. 441, 443-45 (C.A.A.F. 2002). Therefore, the ACCA’s
error in affirming forfeiture did not prejudice Appellant.
IV. DECISION
The decision of the United States Army Court of Criminal
Appeals is reversed as to Specification 3 of Charge III. The
finding of guilty to that specification is set aside and that
specification is dismissed.
The decision of the lower court regarding Specification 2
of Charge III and Charge VII and its specifications is affirmed.
In addition, the decision and sentence of the lower court
is vacated as to Charges IV, V, and VI. The case is returned to
the Judge Advocate General of the Army for remand to the Court
of Criminal Appeals for further consideration of those charges
in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011), and for reassessment of the sentence, or if it determines
appropriate, for the ordering of a rehearing on sentence.
16