United States v. Kowalski
69 M.J. 705
USCG CCA
2010

Background

  • Appellant was convicted by general court-martial (judge alone) following guilty pleas; charges included three Article 134, UCMJ specifications alleging 18 U.S.C. §2422(b) attempts to persuade a minor via Internet to engage in unlawful sexual activity (specifications 30–32) and other specifications involving gaming child pornography offenses; the court-martial also involved counts under 18 U.S.C. §§2251, 2252A, and §2422(b) and a specification of indecent language (all under Article 134, UCMJ).
  • The military judge accepted providence for two §2422(b) specifications (31, 32) and for one §2422(b) specification (30) despite arguments about substantial-step evidence and potential preemption; the pretrial agreement suspended confinement beyond 30 months for 12 months after release.
  • The Convening Authority approved a sentence of 65 months confinement, reduction to E-1, and dishonorable discharge; a portion of confinement over 30 months was suspended for 12 months after release.
  • Post-trial delay was extensive and prompted a Barker/Moreno analysis; the court found unreasonable post-trial delay and granted some sentence relief under Article 66(c)
  • The Court affirmed findings and, on account of unreasonable post-trial delay, affirmed only sixty months confinement (with 30+ months suspended for 12 months), reduction to E-1, and dishonorable discharge; it noted a failure to enter a finding on Additional Charge I but found no prejudice from that procedural defect.
  • The opinion contains extensive discussion of preemption, providence standards, the substantial-step test for online enticement offenses, and the Barker four-factor framework for post-trial delay analysis.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether §2422(b) charges are preempted by Article 134 Appellant argues preemption limits §2422(b) prosecutions. Government contends no preemption; §2422(b) includes a distinct interstate element. Preemption does not apply; §2422(b) valid under Article 134.
Providence of pleas to Specifications 31 and 32 (substantial step) Record lacks substantial basis that Appellant took a substantial step. Chats show repeated ongoing efforts to arrange rendezvous; substantial-step standard met. Military judge did not abuse discretion; pleas providently made.
Providence of plea to Specification 30 (novel age issue) Confusion over age thresholds for Article 125 vs §2422(b). Elements were correctly explained; no substantial basis to question plea. Provident; no substantial basis to challenge the plea.
Post-trial delay and due process Delays are unreasonable; relief warranted under Tardif. Some delay attributable to government issues; not prejudicial. Unreasonable post-trial delay found; sentence relief granted to address delay.
Deficient findings regarding Additional Charge I Absence of a formal finding on one guilty specification. Plea of guilty substitutes for finding; no prejudice. No prejudice; nonetheless, recommend complete findings in future.

Key Cases Cited

  • United States v. Norris, 2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953) (1953) (preemption of Article 134 by Articles 80–132 for certain offenses)
  • United States v. Maze, 21 U.S.C.M.A. 260, 45 C.M.R. 34 (1972) (1972) (preemption analysis for residuum elements)
  • United States v. Wright, 5 M.J. 106, 110-11 (C.M.A. 1978) (1978) (preemption principle in military offenses)
  • United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008) (2008) (Providence standard for guilty pleas; substantial basis in law and fact)
  • United States v. Eberle, 44 M.J. 374 (C.A.A.F. 1996) (1996) (abuse of discretion in accepting guilty plea)
  • United States v. Naputi, 68 M.J. 538 (C.G.Ct.Crim.App. 2009) (2009) (prejudice considerations in plea-related issues)
  • United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (2006) (presumed unreasonable post-trial delay when timing thresholds not met; Barker framework)
  • United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006) (2006) (due process concerns in post-trial delay; comparison of egregious delay)
  • United States v. Holbrook, 64 M.J. 553 (C.A.A.F. 2007) (2007) (post-trial delay and sentence review considerations)
  • United States v. Greene, 64 M.J. 625 (C.G.Ct.Crim.App. 2007) (2007) (Tardif relief framework in post-trial delay)
  • United States v. Medina, 69 M.J. 637 (C.G.Ct.Crim.App. 2010) (2010) (recent examples of sentence relief for post-trial delay)
  • United States v. Gosser, 64 M.J. 93 (C.A.A.F. 2006) (2006) (prejudice and timing in post-trial claims)
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