CAAFlog » September 2011 Term » United States v. Pierce

In its second opinion of the term, CAAF today reversed the Army CCA in United States v. Pierce, No. 11-0239/AR – 11-5004/AR, __ M.J. __ (CAAF, 2011), and found no error in the trial military’s instruction on an offense under 18 U.S.C. § 2422(B) that used the term “internet” instead of “any facility or means of interstate or foreign commerce.” Judge Ryan wrote for a unanimous court.

The instruction given to the members, which did not draw objection from the defense, was:

In the specification of Charge II, the accused is charged with the offense of use of the [I]nternet to solicit illicit sex which is a violation of federal law that has been assimilated under Article 134, UCMJ. In order to find the accused guilty of this offense, you must be convinced by legal and competent evidence beyond reasonable doubt:

One, that between on or about 25 October 2006 and on or about 18 December 2006, on divers occasions, that accused knowingly used the [I]nternet to attempt to persuade, induce, entice or coerce “Anastasia,” an individual under the age of 18 to engage in sexual activity, ascharged;

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On 23 May, CAAF granted review of one issue and specified another in the Army’s Pierce case, No. 11-0239/AR:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS INCORRECTLY FOUND THAT THE MILITARY JUDGE’S FAILURE TO INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS HARMLESS BEYOND A REASONABLE DOUBT.

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE COMMERCE” WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

Yesterday, the Judge Advocate General of the Army cross-certified a third issue in the case:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. § 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE OR FOREIGN COMMERCE,” WAS ERRONEOUS.

The cross-certification seems like a wise move on the Government’s part to avoid the kind of law of the case doctrine issue that the Government confronted in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

CAAF added another three trailers to the Fosler trailer park today. United States v. Gentry, No. 11-0362/AR; United States v. Tyson, No. 11-0422/AR; United States v. Patla, 11-0427/AR.

In non-Fosler news, CAAF also granted review of an Army petition in United States v. Pierce, No. 11-0239/AR.  CAAF granted review of this issue:  “WHETHER THE ARMY COURT OF CRIMINAL APPEALS INCORRECTLY FOUND THAT THE MILITARY JUDGE’S FAILURE TO INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS HARMLESS BEYOND A REASONABLE DOUBT.”  CAAF also specified this issue:  “WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH INSTRUCTION USED THE TERM ‘INTERNET’ INSTEAD OF ‘ANY FACILITY OR MEANS OF INTERSTATE COMMERCE’ WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.”  ACCA’s unpublished decision is available here.