On Wednesday CAAF granted review in this Air Force case:
No. 17-0456/AF. U.S. v. Alexander S. Wheeler. CCA 38908. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE LOWER COURT ERRONEOUSLY CONCLUDED CHARGE II WAS NOT PREEMPTED BY ARTICLE 120b, UCMJ, 10 U.S.C. § 920.
Briefs will be filed under Rule 25.
The CCA issued a published decision in April that (for no good reason) I didn’t discuss on this blog. United States v. Wheeler, No. 38908, 76 M.J. 564 (A.F. Ct. Crim. App. Apr. 19, 2017) (link to slip op.). The appellant was convicted of a violation of Clause 3 of Article 134 for:
attempting to knowingly persuade, induce or entice a person he believed to be a child who had not yet attained the age of 18 years to engage in sexual activity which, if undertaken, would constitute a criminal offense under Article 120b, UCMJ, 10 U.S.C. § 920b, by means or facility of interstate commerce, to wit: the Internet and cellular telephone, in violation of 18 U.S.C. § 2422(b).
Slip op. at 2. The CCA concluded that:
Consistent with the plain language of Article 120b, UCMJ, 18 U.S.C. § 2422(b), and the holding in Schell, we find that the Article 134 clause 3 offense Appellant was charged with is not composed of a residuum of elements of any of the other enumerated UCMJ offenses. [citations omitted -zds]. We find that the defining characteristic of a violation of 18 U.S.C. § 2422(b), as it was charged in this case, is the “enticement” element. With respect to 18 U.S.C. § 2422(b), Congress intended to criminalize adult use of a means of interstate commerce to intentionally “persuade, induce, or entice” a minor into engaging in sexual activity. Schell, 72 M.J. at 343–44; see also United States v. Brooks, 60 M.J. 495, 498 (C.A.A.F. 2005); Thomas, 2013 CCA LEXIS 667, at *22 (unpub. op.). In its current form, this is a harm that the UCMJ does not specifically address. Under the circumstances, the Government was not preempted from charging Appellant, under clause 3 of Article 134, UCMJ, for attempting to “persuade, induce, or entice” a minor into engaging in sexual activity, in violation of 18 U.S.C. § 2422b.
Slip op. at 10.
In United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013) (CAAFlog case page), CAAF interpreted 18 U.S.C. § 2422(b) and found a substantial basis in law to question the providence of a plea of guilty to violating the statute.