Argument Preview: Whether Article 120b preempts attempted enticement of a minor under 18 U.S.C. § 2422(b), in United States v. Wheeler
CAAF will hear oral argument in the Air Force case of United States v. Wheeler, No.17-0456/AF (CAAFlog case page), today, after the oral argument in Condon. The court granted review of a single issue:
Whether the lower court erroneously concluded Charge II was not preempted by Article 120b, UCMJ, 10 U.S. C. § 920.
The preemption doctrine prohibits application of Article 134 to conduct covered by the other punitive articles. See ¶ 60.c.(5)(a), Part IV, MCM (2016). Wheeler was convicted of attempted enticement of an individual under the age of 18, in violation of 18 U.S.C. § 2422(b), incorporated into the UCMJ by clause 3 of Article 134. The issue before CAAF is whether this offense is preempted by Article 120b, which is a rather comprehensive prohibition against child sex offenses.
Wheeler was convicted of:
a violation of Article 134 for an attempt to “knowingly persuade, induce, or entice an individual . . . believed to be a child who had not attained the age of 18 years . . . in violation of 18 USC Section 2422(b), a crime or offense not capital.”
Gov’t Div. Br. at 5. There was, however, no actual minor. It “was actually Special Agent WG and Sergeant AM.” Gov’t Div. Br. at 5.
Wheeler’s argument is straightforward:
With the revision of Article 120 [in 2012], sexual offenses against children, including those through the Internet and cell phones, are appropriately prosecuted under Article 120b. Charge II was preempted by Article 120b, UCMJ, 10 U.S.C. § 920b, and the finding of guilt should be set aside by this Court.
App. Br. at 12.
The Air Force Government Appellate Division’s response relies heavily on the fact that CAAF did not apply preemption to prosecutions under § 2422(b) prior to the 2012 enactment of Article 120b, and on the assertion that:
Because Congress intended §920b to “consolidate” parts of already-existing law, and Congress did not specifically state that §920b replaced charging §2422 through Article 134, Congress did not intend §920b to occupy the field of enticement.
Gov’t Div. Br. at 14. Wheeler’s reply brief disputes this assertion:
The government’s position that § 920b is intended to “consolidate parts of already-existing law” is contradicted by the plain language of the statute. Although consolidation of the law was part of the revision, another aim was to expand definitions to include a broader array of offenses, as described in the Analysis of Article 120b quoted above. A plain language review of this spectrum of offenses shows that it includes online enticement. Using indecent language with a child is prohibited by Article 120b, any indecent exposure is prohibited by Article 120b, sexual contact and sexual acts are prohibited by Article 120b, and attempts to commit any of these offenses can be charged under Article 80.
Reply Br. at 3-4.
The wildcard for today’s oral argument is whether CAAF will focus more on the statute or on the facts. If Article 120b occupies the field of enticement of minors, then preemption will almost certainly apply. Alternatively, if the particular facts of Wheeler’s offense fit squarely within Article 120b, preemption will also almost certainly apply.
The current version of Article 120 is not as troublesome as the former version (discussed in this post).