CAAF decided the Air Force case of United States v. Wheeler, 77 M.J. 289, No.17-0456/AF (CAAFlog case page) (link to slip op.), on Thursday, March 22, 2018. Limiting the preemption doctrine to cases where a federal offense is incorporated under Clause 3 of Article 134 for the purpose of reducing the prosecution’s evidentiary burden at trial, CAAF concludes that the appellant’s conviction of coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) is not preempted by the enumerated offense of sexual abuse of a child in violation of Article 120b(c) because there is no indication that the federal offense was charged in order to circumvent an element of the Article 120b offense. Accordingly, CAAF affirms the findings, sentence, and published decision of the Air Force CCA.
Judge Ryan writes for a unanimous court.
Staff Sergeant (E-5) Wheeler was convicted contrary to his pleas of not guilty “of one specification of attempting to commit a lewd act upon a person he believed to be a child, in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880 (2012), and one specification of attempting to persuade, induce, or entice a person he believed to be a child to engage in sexual activity through the use of interstate commerce in violation of 18 U.S.C. § 2422(b) (2012), and charged under clause three of Article 134, UCMJ, 10 U.S.C. § 934 (2012).” Slip op. at 1. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.
Wheeler moved to dismiss the Title 18 offense at trial, arguing that it was preempted by Article 120b. The preemption doctrine – the basis for Wheeler’s motion – is a limitation on the use of Article 134 that “prohibits application of Article 134 to conduct covered by Articles 80 to 132.” MCM pt. IV, para. 60.c.(5)(a). The military judge denied the motion, and the Air Force CCA affirmed in a published decision, reasoning in part that the Title 18 offense addresses “a harm that the UCMJ does not specifically address.” United States v. Wheeler, 76 M.J. 564, 572 (A.F. Ct. Crim. App. 2017).
CAAF then granted review to determine:
Whether the lower court erroneously concluded Charge II was not preempted by Article 120b, UCMJ, 10 U.S. C. § 920.
Yesterday’s decision affirms the Air Force CCA’s reasoning with a narrow interpretation of the preemption doctrine.
Judge Ryan’s analysis begins with a rejection of the parties’ efforts to compare Article 120b(c) and 18 U.S.C. § 2422(b):
Both parties spend a significant amount of their respective efforts comparing apples and oranges: the precise language of Article 120b(c), UCMJ, and 18 U.S.C. § 2422(b), have little in common other than that they are both aimed at criminalizing the sexual predation of children.
Slip op. at 6. Judge Ryan then highlights the distinction made by the CCA; that the Title 18 offense addresses a harm not specifically addressed in Article 120b:
enticement is not addressed expressly under Article 120b, UCMJ, or otherwise under the provisions subject to the preemption doctrine, Articles 80–132, UCMJ, as a distinct offense. And while it might be possible to contort the then extant version of Article 120b(c), UCMJ, to accommodate enticement of a child to engage in sexual activity, it fits precisely under the federal statute specifically aimed at proscribing that activity. In this context, enticement may be prosecuted under Article 134, UCMJ.
Slip op. at 6.
But CAAF goes a step further and interprets the preemption doctrine as a whole in very narrow terms:
Unless, and herein lies the basis for our decision, the Government turned to a hypothetical federal noncapital crime that lessened its evidentiary burden at trial by circumventing the mens rea element or removing a specific vital element from an enumerated UCMJ offense. “The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 to 132,” MCM pt. IV, para. 60.c.(5)(a), and as the President’s guidance makes clear, is designed to prevent the government from eliminating elements from congressionally established offenses under the UCMJ, in order to ease their evidentiary burden at trial. That is the precise limitation the President placed on Article 134, UCMJ.
Slip op. at 6-7 (citations omitted). And, “because there is no indication that the Government charged a violation of the United States Code via Article 134, UCMJ, to circumvent an element of an enumerated offense in the UCMJ,” the preemption doctrine does not apply. Slip op. at 7.
• AFCCA decision (76 M.J. 564)
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis