In its second opinion of the term, CAAF today reversed the Army CCA in United States v. Pierce, No.s 11-0239/AR & 11-5004/AR, 70 M.J. 391 (C.A.A.F. Dec. 8, 2011) (CAAFlog case page) (link to slip op.), and found no error in the trial military’s instruction on an offense under 18 U.S.C. § 2422(B) that used the term “internet” instead of “any facility or means of interstate or foreign commerce.” Judge Ryan wrote for a unanimous court.
The instruction given to the members, which did not draw objection from the defense, was:
In the specification of Charge II, the accused is charged with the offense of use of the [I]nternet to solicit illicit sex which is a violation of federal law that has been assimilated under Article 134, UCMJ. In order to find the accused guilty of this offense, you must be convinced by legal and competent evidence beyond reasonable doubt:
One, that between on or about 25 October 2006 and on or about 18 December 2006, on divers occasions, that accused knowingly used the [I]nternet to attempt to persuade, induce, entice or coerce “Anastasia,” an individual under the age of 18 to engage in sexual activity, ascharged;
Judge Ryan described the ACCA’s action as follows:
The ACCA nonetheless held that the military judge erred when she failed to include the language “any facility or means of interstate or foreign commerce,” in her instructions to the panel: “[T]he interstate commerce element was, in fact, omitted, rather than misphrased. The panel was never told, in any manner, that they must find the [I]nternet is a means or facility of interstate commerce in order for appellant to be guilty of the offense alleged . . . .” Pierce, No. ARMY 20080009, slip op. at 6.
The ACCA further held that this error was not harmless beyond a reasonable doubt under Neder v. United States, 527 U.S. 1 (1999), because (1) the issue was not actually litigated, and (2) the Government failed to present any evidence that the Internet satisfies the jurisdictional element. Id. at 8.
Judge Ryan then finds that the question of whether an activity constitutes a facility or means of interstate commerce is a question of law, and an exercise of statutory interpretation; one that in this case the trial military judge determined correctly when she determined that the Internet meets that definition. Moreover, Judge Ryan writes that “there is no support for the proposition that it is within the province of the members to either interpret statutory language or to traverse Commerce Clause jurisprudence, as would be necessary to determine whether the Internet was a constitutionally sufficient ‘facility or means of interstate . . .commerce.'” Pierce, __ M.J. at __, slip op. at 11.
Of note, this case involved a cross-certification by the Judge Advocate General of the Army. CAAF initially granted and specified issues related to the effect of the Army CCA’s finding of error in the instruction. The certified issue caused CAAF to reconsider (and reverse) the CCA’s underlying finding of error, avoiding the possibility of defeat for the government by application of the law-of-the-case doctrine.