CAAF decided the certified case of United States v. Schell, No. 13-5001/AR, 72 M.J. 339 (Schell II) (opinion) (CAAFlog case page) 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.