United States v. Schell
2013 CAAF LEXIS 748
| C.A.A.F. | 2013Background
- In March 2010, Sgt. Nicholas Schell engaged in explicit online chats with an undercover detective he believed was a 14‑year‑old girl, describing sexual acts, sending photos, and arranging a meeting for sex. He later canceled and never met her.
- Schell pled guilty at a general court‑martial to attempted indecent language and indecent acts (Article 80, UCMJ) and to attempted persuasion/inducement/enticement of a minor under 18 U.S.C. § 2422(b) (charged under Article 134, UCMJ).
- The military judge accepted guilty pleas but did not instruct on the substantial‑step element for the § 2422(b) attempt charge during the plea colloquy (she did define substantial step for the Article 80 attempts).
- The Army Court of Criminal Appeals (en banc) set aside the § 2422(b) conviction, holding § 2422(b) requires an accused to intend that the minor actually engage in illegal sexual activity, and found Schell’s unsworn sentencing statement (“never intended to do anything”) inconsistent with his plea.
- The Court of Appeals for the Armed Forces reviewed three issues: (1) proper construction of § 2422(b)’s intent element; (2) whether Schell’s unsworn statement was inconsistent with his plea; and (3) whether the military judge’s failure to explain the substantial‑step element rendered Schell’s plea improvident.
- The CAAF rejected the CCA’s intent construction and held Schell’s unsworn statement was not inconsistent with his plea, but set aside Schell’s § 2422(b) guilty plea because the plea colloquy failed to explain the substantial‑step requirement, creating a substantial basis in law to question the plea.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Schell) | Held |
|---|---|---|---|
| 1) Proper intent requirement for an attempt under 18 U.S.C. § 2422(b) | § 2422(b)’s plain text does not require intent that the minor actually engage in sexual activity; intent to persuade/induce/entice is sufficient | § 2422(b) requires a specific intent that the minor ultimately actually engage in illegal sexual activity | Held for Government: intent element is intent to commit the predicate (to persuade/induce/entice), not an additional intent that the sexual act actually occur. |
| 2) Whether Schell’s unsworn sentencing statement was inconsistent with his guilty plea | Even if Schell said he never intended to have sex, he admitted intent to entice; no inconsistency exists requiring plea withdrawal | His unsworn statement that he “never intended to do anything” with the minor contradicts his plea admissions and requires invalidation of the conviction | Held for Government: no inconsistency. Schell’s admissions at plea established requisite intent to entice; the unsworn statement did not create an unresolved inconsistency. |
| 3) Whether plea was improvident because judge failed to explain the substantial‑step element for the § 2422(b) attempt | The record as a whole shows Schell understood the elements and admitted the facts; no providency problem | The judge’s omission left Schell unaware that a substantial step was required, rendering the plea potentially improvident | Held for Schell on this point: the judge erred by not explaining the substantial‑step element for the Article 134 attempt charge; there is a substantial basis in law to question the plea, so the guilty finding to that specification is set aside. |
Key Cases Cited
- United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005) (discusses attempt elements for § 2422(b) and supporting precedent)
- United States v. Winckelmann, 70 M.J. 403 (C.A.A.F. 2011) (addresses substantial‑step requirement for § 2422(b) attempt)
- United States v. Redlinski, 58 M.J. 117 (C.A.A.F. 2003) (standards for plea providency and when record must reflect understanding of elements)
- United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008) (de novo review of legal questions arising from guilty pleas)
- United States v. Jones, 34 M.J. 270 (C.M.A. 1992) (failure to explain elements at plea can be reversible unless record shows accused understood elements)