                         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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United States v. Winckelmann, 11-0280/AR


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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United States v. Winckelmann, 11-0280/AR


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.
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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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United States v. Winckelmann, 11-0280/AR


     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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United States v. Winckelmann, 11-0280/AR


     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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United States v. Winckelmann, 11-0280/AR


     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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United States v. Winckelmann, 11-0280/AR


                         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.

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United States v. Winckelmann, 11-0280/AR

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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United States v. Winckelmann, 11-0280/AR

     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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United States v. Winckelmann, 11-0280/AR

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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United States v. Winckelmann, 11-0280/AR

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)).
                                13
United States v. Winckelmann, 11-0280/AR

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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United States v. Winckelmann, 11-0280/AR

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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United States v. Winckelmann, 11-0280/AR

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.




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