ACCA has issued an en banc published opinion that’s already on WESTLAW but isn’t yet on ACCA’s own website: United States v. Schell, __ M.J. ___, No. ARMY 20110264, 2012 WL 4018280 (A. Ct. Crim. App. Sept. 12, 2012) (en banc). Judge Krauss wrote for a 7-judge majority. Judge Haight wrote for the four dissenters. I’ll be surprised if the Judge Advocate General of the Army doesn’t certify this one to CAAF.
ACCA sets aside the accused’s conviction for violating 18 U.S.C. § 2422(b) as improvident and authorizes a rehearing on that charge or, if the convening authority prefers, a rehearing on sentence for the remaining offenses. The case involves the all-too-familiar scenario of a military member who engages in sexually explicit communication over the Internet with someone he believes to be a 14-year-old female. Fortunately, the case also involves the familiar scenario that the accused’s Internet friend was actually an adult male law enforcement officer.
The accused set up a meeting with the “14-year-old,” but then canceled it. During his unsworn statement in this guilty plea case, he said he never actually intended to meet the 14-year-old. ACCA found that statement inconsistent with the intent required for an 18 U.S.C. § 2422(b) offense.
ACCA expressly disagreed with the First, Second, Fourth, Sixth, and Seventh Circuits’ interpretation of the statute. (According to the Seventh Circuit, the Eighth, Ninth, Tenth, and Eleventh Circuits also agree with its approach, which ACCA rejected. See United States v. Berg, 640 F.3d 239, 251-52 (7th Cir. 2011). ACCA points to a later Eleventh Circuit decision consistent with its approach, United States v. Lebowitz, 676 F.3d 1000, 1013-14 (11th Cir. 2012, and also relies on Fifth and Eighth Circuit case law.) ACCA reasoned:
We hold that the intent element of attempted persuasion, inducement, or enticement requires the accused intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity. See 18 U.S.C. § 2422(b) . . . . In short, the accused must intend that the minor, ultimately, actually engage in illegal sexual activity as a result of his persuasion, inducement, or enticement. One who specifically intends to persuade another to do something, expects and intends that something to be done; otherwise he does not actually intend to persuade anyone to do anything. Therefore, we also hold that appellant’s unsworn statements made during the sentencing phase of his court-martial, denying that he ever had any intent to do anything with the minor, set up matter inconsistent with his plea requiring disapproval of that finding of guilty in this case.
Schell, 2012 WL 4018280, at *4 (footnote omitted).
ACCA also explained:
The statute makes criminal attempts to persuade a minor to engage in illegal sexual activity. It does not make criminal attempts to persuade children to merely want to engage in sexual activity or to merely gain the assent of the minor for the sake of that assent. It is intended to address those who lure children out to actually engage in illegal sexual activity; it is not intended to address those who simply encourage or incite children to assent to the possibility of illegal sex. It is a luring statute; not a corrupting statute. The legislative history emphasizes the distinction.
The specific intent required to violate § 2422(b) was also addressed by the Court of Appeals for the Armed Forces (CAAF) in Brooks. Specifically, CAAF adopted a Sixth Circuit Court of Appeals’ view that an accused need not intend that the underlying sexual activity actually take place but only that the accused intend to persuade a minor to engage in such activity.