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.
Id. at *5.
The dissent adopted the interpretation of the statute favored by a majority of the federal circuits (and, according to the First Circuit, by all federal circuits) that have examined the issue, as well as by NMCCA:
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.
Schell, 2012 WL 4018280, at *9 (Haight, J., dissenting) (quoting United States v. Garner, 67 M.J. 734, 738 (N-M. Ct. Crim. App. 2009)).  The dissent disagrees with the majority’s position that NMCCA misinterpreted BrooksId.

2 Responses to “Interesting published en banc ACCA opinion interpreting 18 U.S.C. § 2422(b)”

  1. Zachary Spilman says:

    The opinion is a little thin on whether or not the Appellant was questioned about the required substantial step towards committing the offense. There seems to be enough facts to warrant a finding of a substantial step (he chatted, sent photos, and set up a meeting), but there’s also this:

    The judge did not address the elements inherent in such an attempt, those of intent to commit the predicate offense and a substantial step toward commission of that offense.

    2012 WL 4018280, at *2 (emphasis added). Moreover, it seems like the military judge started to realize that something was wrong after sentencing arguments, but counsel convinced her otherwise:

    Defense counsel’s argument prompted the following dialogue:

    MJ: Counsel, before I close to deliberate and when we were talking about the elements of the Specification of Charge II this came up and I think it’s probably prudent at this point to go ahead and address this, is that there’s obviously testimony and argument that Sergeant Schell did not ever leave Fort Leavenworth, but that in my discussions with counsel that they indicated and defense agreed that the offense was—and let me summarize this and you can put your own take on it; that the offense was complete when the enticement happened, the fact that he never acted on it, that what he’s charged with is attempting to persuade, induce, or entice this individual to engage in sexual activity and that it’s not necessary that he actually drove or followed through or anything like that. Would you agree with that, defense?

    DC: That is correct, Your Honor, and specifically there is case law that does not require a substantial step moving forward to actually commit the offense for which he was enticing for, just that he intended to entice them to commit that offense.

    MJ: Okay, and, government, would you also agree?

    ATC: Yes, Your Honor.

    MJ: Okay, and, Sergeant Schell, do you agree? I would assume that you’ve discussed this with your counsel that despite the fact that or even in light of the fact that you didn’t actually leave Leavenworth, would you agree that you committed the offense when you were attempting to persuade or entice her?

    ACC: Yes, ma‘am.

    2012 WL 4018280, at *3-4 (emphasis added). This is getting close to “an erroneous view of the law” territory. See United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (abuse of discretion to accept a guilty plea “based on an erroneous view of the law.”).

    Of course, the ACCA rightly points out that a substantial step is an element of 18 U.S.C. § 2422(b):

    A plea of guilty to an attempt under 18 U.S.C. § 2422(b) cannot properly be accepted absent admission by the accused, inter alia, (1) that he intended to persuade, induce, or entice a minor to engage in sexual activity that would be criminal under the law, by means of the internet, and (2) that he took a substantial step toward such persuasion, inducement, or enticement.

    2012 WL 4018280, at *4 (citing United States v. Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011)).

    That said, I’m looking forward to certification, as it would be nice to get a clear delineation of the intent required to commit this offense. Especially since so many law enforcement resources are dedicated to pretending to be 14-year old girls on the internet that they make television shows about it.

  2. stewie says:

    Is this another example of the argument that maybe we should start using Clause 1 and 2 more instead of trying to assimilate under Clause 3 since we get it wrong so regularly?