CAAFlog » September 2012 Term » United States v. Schell

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.

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CAAF issued three opinions today:

United States v. Schell, No. 13-5001/AR (opinion) (CAAFlog case page)

United States v. Porter, No 12-5003/MC (opinion) (CAAFlog case page)

United States v. Mott, No. 12-0604/NA (opinion) (CAAFlog case page)

It’s going to be a few days before I’ll have a chance to analyze them.

The court also docketed a certificate of review in another (see Arriaga and Carter) Air Force case involving prejudice and the plain error test:

United States v. Lindgren, No. 13-5009/AF

Issues:
I. Whether Appellee satisfied his burden to demonstrate that the defective specification under Article 134, UCMJ, materially prejudiced his substantial rights when he was provided actual notice of the terminal element through an Article 32 report received prior to trial.
II. Whether the Air Force Court of Criminal Appeals applied an erroneous standard of law when evaluating whether the defective specification under Article 134, UCMJ, materially prejudiced Appellee’s substantial rights by failing to consider whether the evidence on the missing element was “overwhelming and essentially uncontroverted” and by finding notice of the missing element was not extant in the record.
III. Whether this honorable court should apply the fourth prong of the plain error analysis as articulated by the United States Supreme Court in United States v. Olano, 507 U.S. 725 (1993), when assessing whether the defective specification under Article 134, UCMJ, materially prejudiced appellee’s substantial rights in this case.

Here are links to audio recordings of the oral arguments at CAAF on April 15, 2013:

United States v. Schell, No. 13-5001/AR

United States v. Jasper, No. 13-0013/AR

On Wednesday, CAAF granted a cross-petition to consider this issue in Schell, No. 13-5001/AR:

WHETHER THE MILITARY JUDGE’S FAILURE TO DISCUSS WITH CROSS-APPELLANT THAT THE OFFENSE OF ATTEMPTED ENTICEMENT OF A MINOR REQUIRES A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THE UNDERLYING SUBSTANTIVE OFFENSE PROVIDES A SUBSTANTIAL BASIS IN LAW TO QUESTION CROSS-APPELLANT’S PLEA.

United States v. Schell, __ M.J. __, No. 13-5001/AR (C.A.A.F. Feb. 6, 2013).

The Zee Man previously noted the Judge Advocate General of the Army’s certification of Schell here.  ACCA’s opinion is published at 71 M.J. 574.

On Monday, CAAF specified an additional issue in Kelly, No. 12-0524:

WHETHER THE EXAMINATION OF THE CONTENTS OF APPELLANT’S COMPUTER WAS AN UNLAWFUL INSPECTION UNDER M.R.E. 313(b).

We previously noted the granting of two issues in Kelly here.  ACCA’s opinion in the case is here.  Briefs from both parties are due by Valentine’s Day.  The case is being orally argued at the University of Arizona’s James E. Rogers College of Law  on 26 February.

On Friday, November 9, CAAF docketed a certificate for review in United States v. Schell, No. 13-5001/AR, on the following issues:

I. Whether the Army Court of Criminal Appeals erred when, contrary to the plain language of 18 U.S.C. §2422(b), United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005), and the United States Courts of Appeals, the service court held that “the intent element of attempted persuasion, inducement, or enticement requires [that] the accused. . .must intend that the minor, ultimately, actually engage in illegal sexual activity as a result of his persuasion, inducement, or enticement.”

II. Whether the accused’s unsworn statement during the sentencing phase of trial was inconsistent with his guilty plea.

Col Sullivan covered the ACCA’s published opinion in Schell in this post, in which he wrote:

I’ll be surprised if the Judge Advocate General of the Army doesn’t certify this one to CAAF.

ACCA has issued an en banc published opinion that’s already on WESTLAW but isn’t yet on ACCA’s own website:  United States v. Schell, __ M.J. ___, No. ARMY 20110264, 2012 WL 4018280 (A. Ct. Crim. App. Sept. 12, 2012) (en banc).  Judge Krauss wrote for a 7-judge majority.  Judge Haight wrote for the four dissenters.  I’ll be surprised if the Judge Advocate General of the Army doesn’t certify this one to CAAF.

ACCA sets aside the accused’s conviction for violating 18 U.S.C. § 2422(b) as improvident and authorizes a rehearing on that charge or, if the convening authority prefers, a rehearing on sentence for the remaining offenses.  The case involves the all-too-familiar scenario of a military member who engages in sexually explicit communication over the Internet with someone he believes to be a 14-year-old female.  Fortunately, the case also involves the familiar scenario that the accused’s Internet friend was actually an adult male law enforcement officer.

The accused set up a meeting with the “14-year-old,” but then canceled it.  During his unsworn statement in this guilty plea case, he said he never actually intended to meet the 14-year-old.  ACCA found that statement inconsistent with the intent required for an 18 U.S.C. § 2422(b) offense.

ACCA expressly disagreed with the First, Second, Fourth, Sixth, and Seventh Circuits’ interpretation of the statute.  (According to the Seventh Circuit, the Eighth, Ninth, Tenth, and Eleventh Circuits also agree with its approach, which ACCA rejected.  See United States v. Berg, 640 F.3d 239, 251-52 (7th Cir. 2011).  ACCA points to a later Eleventh Circuit decision consistent with its approach, United States v. Lebowitz, 676 F.3d 1000, 1013-14 (11th Cir. 2012, and also relies on Fifth and Eighth Circuit case law.)  ACCA reasoned:

We hold 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. See 18 U.S.C. § 2422(b) . . . .   In short, the accused must intend that the minor, ultimately, actually engage in illegal sexual activity as a result of his persuasion, inducement, or enticement.  One who specifically intends to persuade another to do something, expects and intends that something to be done; otherwise he does not actually intend to persuade anyone to do anything.  Therefore, we also hold that appellant’s unsworn statements made during the sentencing phase of his court-martial, denying that he ever had any intent to do anything with the minor, set up matter inconsistent with his plea requiring disapproval of that finding of guilty in this case.

Schell, 2012 WL 4018280, at *4 (footnote omitted).

ACCA also explained:

The statute makes criminal attempts to persuade a minor to engage in illegal sexual activity.  It does not make criminal attempts to persuade children to merely want to engage in sexual activity or to merely gain the assent of the minor for the sake of that assent.  It is intended to address those who lure children out to actually engage in illegal sexual activity; it is not intended to address those who simply encourage or incite children to assent to the possibility of illegal sex.  It is a luring statute; not a corrupting statute.  The legislative history emphasizes the distinction.
Id. at *5.
The dissent adopted the interpretation of the statute favored by a majority of the federal circuits (and, according to the First Circuit, by all federal circuits) that have examined the issue, as well as by NMCCA:
The specific intent required to violate § 2422(b) was also addressed by the Court of Appeals for the Armed Forces (CAAF) in Brooks. Specifically, CAAF adopted a Sixth Circuit Court of Appeals’ view that an accused need not intend that the underlying sexual activity actually take place but only that the accused intend to persuade a minor to engage in such activity.
Schell, 2012 WL 4018280, at *9 (Haight, J., dissenting) (quoting United States v. Garner, 67 M.J. 734, 738 (N-M. Ct. Crim. App. 2009)).  The dissent disagrees with the majority’s position that NMCCA misinterpreted BrooksId.