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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Condon, No.17-0392/AF (CAAFlog case page): Oral argument audio.

United States v. Wheeler, No.17-0456/AF (CAAFlog case page): Oral argument audio.

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.

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On Wednesday CAAF granted review in this Air Force case:

No. 17-0456/AF. U.S. v. Alexander S. Wheeler. CCA 38908. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRONEOUSLY CONCLUDED CHARGE II WAS NOT PREEMPTED BY ARTICLE 120b, UCMJ, 10 U.S.C. § 920.

Briefs will be filed under Rule 25.

The CCA issued a published decision in April that (for no good reason) I didn’t discuss on this blog. United States v. Wheeler, No. 38908, 76 M.J. 564 (A.F. Ct. Crim. App. Apr. 19, 2017) (link to slip op.). The appellant was convicted of a violation of Clause 3 of Article 134 for:

attempting to knowingly persuade, induce or entice a person he believed to be a child who had not yet attained the age of 18 years to engage in sexual activity which, if undertaken, would constitute a criminal offense under Article 120b, UCMJ, 10 U.S.C. § 920b, by means or facility of interstate commerce, to wit: the Internet and cellular telephone, in violation of 18 U.S.C. § 2422(b).

Slip op. at 2. The CCA concluded that:

Consistent with the plain language of Article 120b, UCMJ, 18 U.S.C. § 2422(b), and the holding in Schell, we find that the Article 134 clause 3 offense Appellant was charged with is not composed of a residuum of elements of any of the other enumerated UCMJ offenses. [citations omitted -zds]. We find that the defining characteristic of a violation of 18 U.S.C. § 2422(b), as it was charged in this case, is the “enticement” element. With respect to 18 U.S.C. § 2422(b), Congress intended to criminalize adult use of a means of interstate commerce to intentionally “persuade, induce, or entice” a minor into engaging in sexual activity. Schell, 72 M.J. at 343–44; see also United States v. Brooks, 60 M.J. 495, 498 (C.A.A.F. 2005); Thomas, 2013 CCA LEXIS 667, at *22 (unpub. op.). In its current form, this is a harm that the UCMJ does not specifically address. Under the circumstances, the Government was not preempted from charging Appellant, under clause 3 of Article 134, UCMJ, for attempting to “persuade, induce, or entice” a minor into engaging in sexual activity, in violation of 18 U.S.C. § 2422b.

Slip op. at 10.

In United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013) (CAAFlog case page), CAAF interpreted 18 U.S.C. § 2422(b) and found a substantial basis in law to question the providence of a plea of guilty to violating the statute.