CAAF decided the certified case of United States v. Schell, No. 13-5001/AR, 72 M.J. 339 (Schell II) (CAAFlog case page) (link to slip op.), on July 8, 2013, finding that the CCA erred in interpreting the intent requirement of 18 U.S.C. § 2422(b), and in finding that Appellee’s unsworn statement was inconsistent with his pleas of guilty. But CAAF finds that the military judge’s failure to discuss the substantial step requirement of an attempt with Appellee provides a substantial basis in law to question his plea to attempted persuasion, inducement, or enticement of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). The court affirms the Army CCA’s action that set aside the findings of guilty of the § 2422(b) offense and authorized a rehearing.

Judge Stucky writes for a unanimous court.

Appellee was convicted by a general court-martial composed of a military judge alone, pursuant to his pleas of guilty, of attempted indecent language and attempted indecent acts in violation of Article 80, UCMJ, and of attempted persuasion, inducement, or enticement of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), as incorporated by clause 3 of Article 134, UCMJ. He was sentenced to confinement for 18 months, total forfeitures, and a bad-conduct discharge. Pursuant to a pretrial agreement, the confinement was reduced to 13 months.

The case arose out of Appellee’s graphic internet chats in 2010 with what he thought was a 10 year-old girl. Appellee talked to the “girl” about sex, described his girlfriend to “her,” asked if “she” would participate in sexual activity with his girlfriend and him, and sent “her” images of his erect penis hoping “she” would send him graphic photos of herself. He also arranged to meet “her” for the purpose of sexual activity, but cancelled the planned meeting and then ceased all contact. Of course, “she” was actually a law enforcement officer. Eventually Appellee was apprehended, leading to his pleas of guilty. But in the plea inquiry for the § 2422(b) offense, the military judge did not inform Appellee that in order to be guilty he must have taken a substantial step toward the commission of the underlying offense. Appellee did admit that the messages and images were “steps to persuade [the “girl”] to engage in sexual acts with him,” but in his unsworn statement he claimed that “he never actually intended to act on their discussions.” Slip op. at 5-6.

In a published en banc opinion, a divided Army CCA found “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.” United States v. Schell, 71 M.J. 574, 578–79 (A. Ct. Crim. App. 2012) (Schell I). The CCA relied on legislative history to make this finding. Further, because Appellee claimed in his unsworn statement that he never intended to do anything with the “girl,” a majority of the CCA found that the unsworn statement was inconsistent with the plea, and set aside the finding of guilty. The CCA did not address the substantial step issue.

The Judge Advocate General of the Army then certified two issues:

I. Whether the Army Court of Criminal Appeals erred when, contrary to the plain language of 18 U.S.C. §2422(b), United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005), and the United States Courts of Appeals, the service court held that “the intent element of attempted persuasion, inducement, or enticement requires [that] the accused. . .must intend that the minor, ultimately, actually engage in illegal sexual activity as a result of his persuasion, inducement, or enticement.”

II. Whether the accused’s unsworn statement during the sentencing phase of trial was inconsistent with his guilty plea.

CAAF subsequently granted review of a cross-petition by Appellee on the ultimately-dispositive issue:

Whether the military judge’s failure to discuss with cross-appellant that the offense of attempted enticement of a minor requires a substantial step toward the commission of the underlying substantive offense provides a substantial basis in law to question cross-appellant’s plea.

Judge Stucky begins by explaining that CAAF finds 18 U.S.C. § 2422(b) to be unambiguous, and nothing in the plain language of the statute “indicates that an accused must intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity.” Slip op. at 12 (marks omitted) (emphasis in original). But more importantly, even if the plain language were ambiguous, “There is nothing in the legislative history suggesting that an accused had to intend to actually engage in a sexual crime.” Slip op. at 12. This conclusion makes the CCA’s analysis incorrect, but Judge Stucky continues:

the opinions in Winckelmann, Brooks, and Garner support the Government’s interpretation of § 2422(b). See Winckelmann, 70 M.J. at 407 n.4 (addressing what constitutes a substantial step under § 2422(b) and noting that “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”); Brooks, 60 M.J. at 498 (citing federal circuit precedent indicating “that a conviction under § 2422(b) does not require a defendant to attempt an actual sexual act”); Garner, 67 M.J. at 738 (“an accused need not intend that the underlying sexual activity actually take place but only that the accused intend[ed] to persuade a minor to engage in such activity), aff’d, 69 M.J. 31, 33 (C.A.A.F. 2010) (affirming a § 2422(b) conviction on the grounds that the record contained the required guilty plea admissions by the accused).

Additionally, although not binding on this Court, nearly every federal circuit disagrees with the CCA’s interpretation of § 2422(b)’s intent requirement.

Slip op. at 13-14. Judge Stucky concludes that “the intent required to support an attempt conviction under § 2422(b) is the intent to commit the predicate offense — that is, the intent to persuade, induce, entice, or coerce…” Slip op. at 15. Moreover, since only enticement is necessary to commit the offense, Appellee’s unsworn statement that he did not intend to actually engage in unlawful sexual activity is not inconsistent with his plea to attempted enticement.

But on the granted issue, Judge Stucky and the unanimous court find a significant shortcoming in the plea inquiry:

In defining the elements of the Article 134, UCMJ, offense the military judge erred because she failed to instruct Schell that he had to take a substantial step toward persuading, inducing, enticing, or coercing a minor in order to plead guilty to an attempt under Article 134, UCMJ. Additionally, neither the specification nor the stipulation of fact mentioned that a “substantial step” was an element of the Article 134, UCMJ, offense.

Slip op. at 18. Judge Stucky notes that CAAF determined in United States v. Winkelmann that a substantial step is a necessary element of an attempt to violate 18 U.S.C. § 2422(b). And while “Schell was not entitled to receive a hornbook review of the distinction between mere preparation and a substantial step . . . the record must objectively reflect that he understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense.” Slip op. at 19 (marks omitted).

So even though the CCA got it wrong, the result remains the same. Schell’s conviction of violation of 18 U.S.C. § 2422(b) is set aside, but his convictions of attempted indecent language and attempted indecent acts in violation of Article 80, UCMJ, survive. And he long ago completed his approved sentence of confinement for 13 months. But the broad reach of 18 U.S.C. § 2422(b) is further clarified.

Case Links:
ACCA opinion (71 M.J. 574) (Schell I)
Blog post: Interesting published en banc opinion…
Blog post: Army JAG certifies Schell
Blog post: Cross-petition granted
Appellant (Government) brief
Appellee brief
Cross-Appellant brief
Cross-Appellee (Government) brief
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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