There have been some significant rulings from CAAF this term — Neal and Jones leap to mind. But there have also been a number of cases in which CAAF chose not to grapple with some interesting issue that the case seemed destined to decide. At the Supreme Court, such cases might have been dismissed as improvidently granted. At CAAF, they’ve produced a number of narrow decisions this term. The latest example is today’s opinion in United States v. Garner, No. 09-0729/MC. Chief Judge Effron wrote for a unanimous court.
Garner punted on an interesting question that the granted issue appeared to present: whether “the ‘substantial step’ requirement ” of an attempt to induce a minor to engage in sexual activity can be “satisfied where there was no evidence that the defendant intended to travel to meet the purported minor or to actually engage in sexual activity with her.” Id., slip op. at 6. But given the speed with which CAAF disposed of Garner, it wasn’t only a punt, but a quick kick. Garner was the next-to-last case argued at CAAF this term, second only to its anagram, United States v. Graner.
In Garner, CAAF noted an interesting split between Seventh Circuit and Ninth Circuit case law — with the Ninth Circuit breaking from its stereotype by adopting the more prosecution-friendly approach. Gunnery Sergeant Garner engaged in sexually explicit Internet chats with “Molly,” a screen name that Garner thought was being used by a 14-year-old girl but was actually being used by, say it with me, an undercover cop. CAAF explained:
Appellant contends that his plea to the attempt offense was improvident as a matter of law because he did not take a “substantial step” towards completing the offense. According to Appellant, the “substantial step” test, when applied to an attempt to commit an offense under § 2422(b), requires a specific arrangement for an actual rendezvous with the purported minor. In Appellant’s view, in the absence of such an arrangement, his conversations with “Molly” could have simply constituted “fantasy role playing.”
Appellant relies on United States v. Gladish, 536 F.3d 646, 650 (7th Cir. 2008), in which the Seventh Circuit concluded that the “substantial step” requirement of § 2422(b) was not satisfied where there was no evidence that the defendant intended to travel to meet the purported minor or to actually engage in sexual activity with her. The Government responds that this Court should rely on United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007). In Goetzke, the Ninth Circuit rejected the argument that specific travel arrangements were ecessary to establish a substantial step. The court concluded hat the defendant, by sending sexually explicit letters proposing a future meeting to a minor with whom he had prior ontact, had engaged in “grooming behavior,” which was sufficient to meet the substantial step requirement. Id. at 1236-37. In the present case, the Court of Criminal Appeals cited Goetzke in the course of describing Appellant’s actions as “grooming behavior” sufficient to constitute a substantial step. Garner, 67 M.J. at 738-39.
Id., slip op. at 6-7. Gladish is a Posner opinion while Goetzke is a per curiam.
CAAF chooses not to pick a side between the Seventh and Ninth Circuits, ruling that under either standard, Garner’s provide inquiry was sufficient to uphold his conviction. CAAF concluded: “In light of Appellant’s own admissions during the providence inquiry, we conclude that the military judge did not abuse his discretion in accepting the plea. In that posture, we need not address the parameters of an attempt offense under § 2422(b) where the record does not contain such admissions.” Id., slip op. at 8.
The decision calls to mind Judge Cox’s aversion to resolving unsettled substantive legal questions in guilty plea cases. See, e.g., United States v. Byrd, 24 M.J. 286, 293 (C.M.A. 1987) (Cox, J., concurring in the result) (“I have often expressed my reservations about making substantive law on a guilty-plea record”); United States v. Reed, 24 M.J. 80, 86 (C.M.A. 1987) (Cox, J., dissenting) (“this guilty plea case is the wrong vehicle to use to make an earthshaking constitutional pronouncement or to set an otherwise proper plea aside as being improvident”). Unless the Supreme Court steps in to resolve the Seventh Circuit/Ninth Circuit split, the issue of what is required to constitute a substantial step in an attempt to induce a minor to engage in sexual activity case will remain ripe for litigation in some future contested court-martial.