U.S. v. Winckelmann, 70 M.J. 403

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge must provide instructions that sufficiently cover the issues in the case and focus on the facts presented by the evidence

Military Justice Personnel: Military Judge: Instructions

1. the military judge must provide instructions that sufficiently cover the issues in the case and focus on the facts presented by the evidence

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. there is an elusive line separating mere preparation from a substantial step in an attempt prosecution; for an attempt conviction, a substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. the underage enticement statute, 18 USC § 2422(b), criminalizes attempts to knowingly persuade, induce, entice, or coerce any minor to engage in any sexual activity using a means of interstate commerce; 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
2. there is an elusive line separating mere preparation from a substantial step; for an attempt conviction, a substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances
3. in the context of the underage enticement statute, 18 USC § 2422(b), different types of evidence can establish a substantial step depending on the facts of a particular case; for example, travel constitutes a substantial step in § 2422(b) cases; but travel is not a sine qua non of finding a substantial step in a section 2422(b) case; in non-travel cases involving online dialogue on the Internet, courts analyze the factual sufficiency of the requisite substantial step using a case-by-case approach; 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; where an accused has not traveled to a rendezvous point and not engaged in such concrete conversation, an accused may be found to have taken a substantial step toward enticement of a minor where there is a course of more nebulous conduct, characterized as grooming the victim
4. under the facts of this case, an online chat line “u free tonight” from the accused to the alleged victim did not constitute a substantial step toward enticement of a minor to engage in sexual activity in violation of 18 USC § 2422(b), and the evidence was thus not legally sufficient; 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; the accused engaged in a single chat with the alleged victim containing 41 lines of text; even though the chat was sexually explicit, the accused 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, and left it up to the alleged victim to contact him if he wanted to get together; 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 alleged victim contacted the accused; therefore, the accused’s actions did not exceed the threshold level of evidence required for a substantial step under the fact-specific analysis required in 18 USC § 2422(b) cases, and the evidence was not legally sufficient for a finding of guilt

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. the underage enticement statute, 18 USC § 2422(b), criminalizes attempts to knowingly persuade, induce, entice, or coerce any minor to engage in any sexual activity using a means of interstate commerce; 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
2. there is an elusive line separating mere preparation from a substantial step in an attempt prosecution; for an attempt conviction, a substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances
3. in the context of the underage enticement statute, 18 USC § 2422(b), different types of evidence can establish a substantial step depending on the facts of a particular case; for example, travel constitutes a substantial step in § 2422(b) cases; but travel is not a sine qua non of finding a substantial step in a section 2422(b) case; in non-travel cases involving online dialogue on the Internet, courts analyze the factual sufficiency of the requisite substantial step using a case-by-case approach; 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; where an accused has not traveled to a rendezvous point and not engaged in such concrete conversation, an accused may be found to have taken a substantial step toward enticement of a minor where there is a course of more nebulous conduct, characterized as grooming the victim
4. under the facts of this case, an online chat line “u free tonight” from the accused to the alleged victim did not constitute a substantial step toward enticement of a minor to engage in sexual activity in violation of 18 USC § 2422(b), and the evidence was thus not legally sufficient; 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; the accused engaged in a single chat with the alleged victim containing 41 lines of text; even though the chat was sexually explicit, the accused 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, and left it up to the alleged victim to contact him if he wanted to get together; 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 alleged victim contacted the accused; therefore, the accused’s actions did not exceed the threshold level of evidence required for a substantial step under the fact-specific analysis required in 18 USC § 2422(b) cases, and the evidence was not legally sufficient for a finding of guilt

Trial Stages: Merits: Instructions › Generally

1. the military judge must provide instructions that sufficiently cover the issues in the case and focus on the facts presented by the evidence

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. under Article 66(c), UCMJ, the CCA may act only with respect to the findings and sentence as approved by the convening authority; where in this case, the CCA affirmed a forfeiture of pay even though the convening authority did not approve such a forfeiture, the CCA committed error; however, the error was not prejudicial; under Article 58b, UCMJ, appellant had already forfeited any 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. 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; 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
2. under Article 66(c), UCMJ, the CCA may act only with respect to the findings and sentence as approved by the convening authority; where in this case, the CCA affirmed a forfeiture of pay even though the convening authority did not approve such a forfeiture, the CCA committed error; however, the error was not prejudicial; under Article 58b, UCMJ, appellant had already forfeited any 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews issues of legal sufficiency de novo
2. 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; in applying this test, an appellate court must draw every reasonable inference from the evidence of record in favor of the prosecution
3. 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; 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