United States v. Muerer
ACM S32406
| A.F.C.C.A. | May 24, 2017Background
- Appellant, an Air Force security forces member, met RS (15) through a motorcycle club and continued contact after a 2015 motorcycle ride and lunch.
- Appellant sent RS a Snapchat message instructing her to wear green or blue to a family event as a signal to go to a secluded place to have sex; about a week earlier he exposed his penis to RS over Skype.
- RS discussed Appellant’s message with a friend in a text indicating interest; at the event she wore a black shirt.
- Appellant pleaded guilty at a special court-martial to sexual abuse of a child (Article 120b) and to enticing a child via the Internet in violation of 18 U.S.C. § 2422(b) (Article 134); sentence approved included a bad-conduct discharge and 10 months confinement.
- On appeal Appellant argued his guilty plea to the Article 134 specification was improvident for three reasons: (1) the specification failed to allege the Article 134 “offense not capital” language; (2) inadequate factual basis because RS may not have been actually enticed; and (3) failure to instruct on attempt/substantial step if required.
- The Court of Criminal Appeals reviewed plea providence for abuse of discretion, considered the entire record, and affirmed findings and sentence.
Issues
| Issue | Appellant's Argument | Government's/Respondent's Argument | Held |
|---|---|---|---|
| Whether the Article 134 specification failed to state an offense by omitting the phrase “an offense not capital.” | Specification defective for not expressly alleging clause-three language as required after Fosler. | Specification expressly cited 18 U.S.C. § 2422(b) and included every element, thereby necessarily alleging a non-capital offense; no prejudice shown. | Held: No reversible error; omission not fatal and no material prejudice. |
| Whether there was an adequate factual basis for a guilty plea to "knowingly entic[ing]" (i.e., did victim actually become enticed). | Appellant: "Entice" requires actual arousal of desire; RS wore black, so she wasn’t enticed—insufficient factual basis. | Entire record (including RS’s texts) shows Appellant’s message did arouse RS’s interest; proximate failure to wear green/blue doesn’t negate enticement. | Held: Factual basis adequate; plea provident. |
| Whether the military judge erred by not instructing on attempt/substantial step (Schell standard). | If conviction required attempt, judge should have explained substantial-step vs mere preparation. | Appellant wasn’t charged with attempt; judge properly accepted plea to completed enticement because factual basis supported actual enticement. | Held: No instruction error; issue moot because adequate basis existed for completed offense. |
Key Cases Cited
- Blouin v. United States, 74 M.J. 247 (discusses review standard for guilty plea acceptance)
- Moon v. United States, 73 M.J. 382 (test for abuse of discretion—substantial basis in law or fact to question plea)
- Weeks v. United States, 71 M.J. 44 (military judge may not accept guilty plea without adequate factual basis)
- Jordan v. United States, 57 M.J. 236 (entire record may be considered to assess plea providence)
- Ballan v. United States, 71 M.J. 28 (analysis when a sufficiency challenge to a specification is raised after a guilty plea)
- Girouard v. United States, 70 M.J. 5 (plain error standard on unpreserved claims)
- Fosler v. United States, 70 M.J. 225 (Article 134 clause analysis and requirement to allege clause membership)
- Schell v. United States, 72 M.J. 339 (substantial-step test for attempt)