United States v. Sergeant NICHOLAS R. SCHELL
71 M.J. 574
A.C.C.A.2012Background
- Appellant pled guilty by military judge to attempted indecent language/act under Article 80, and attempted persuasion of a minor to engage in sexual activity via the internet under 18 U.S.C. §2422(b) as a violation of Article 134, UCMJ; adjudged sentence included confinement and a bad-conduct discharge; convening authority approved most of the adjudged punishment.
- Appellant's case proceeded under Article 66, UCMJ; initial challenge focused on whether Article 80 preempts prosecution under Article 134, whether plea admission aligned with unsworn statements, and whether life confinement was the proper maximum.
- The charged §2422(b) attempt involved online enticement to a person appellant believed to be a fourteen-year-old girl; the apparent victim was actually law-enforcement posing as a minor.
- Stipulations and providence inquiry showed explicit, graphic chats and photos; appellant stated intent to meet and engage in sexual activity, including descriptions of sexual acts.
- During sentencing, appellant made unsworn statements denying intent to act on the conversations, creating an inconsistency with his guilty plea.
- Court ultimately reversed the §2422(b) conviction due to inconsistency regarding intent, reduced the maximum confinement to seven years, and remanded for rehearing on Charge II or sentence unless rehearing on Charge II is impracticable; preemption and related legal points were discussed but did not salvage the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2422(b) requires intent that the minor actually engage in illegal activity | Government argued appellant intended to entice actual illegal activity | Schell contended no such intent required beyond enticement | Intent must be to actually engage in illegal activity by the minor |
| Whether the unsworn statement created an inconsistency with the guilty plea | Inconsistency not asserted by government as fatal | Unswn statement contradicted intent element | Inconsistency found; conviction reversed for §2422(b) |
| Whether the offense is preempted by Article 80 or permissible under Article 134 | §2422(b) can be prosecuted alongside Article 134 | Preemption argued; defense urged separate maximum issues | Preemption not controlling to salvage conviction; remand appropriate |
| What is the correct maximum punishment for a §2422(b) conviction in this context | Life imprisonment potentially authorized | Maximum should align with §2422(b) as construed | Maximum reduced to seven years after §2422(b) conviction set aside; remand for sentence on remaining offenses |
Key Cases Cited
- United States v. Winckelmann, 70 M.J. 403 (C.A.A.F. 2011) (defined elements of §2422(b) and discussed substantial step vs intent)
- United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005) (intent to persuade vs. intent to perform acts; guidance on §2422(b))
- United States v. Bailey, 228 F.3d 637 (6th Cir. 2000) (distinguishes persuasion/enticement from performance of acts; no double intent required)
- United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007) (oppose minor assent focus; supports plain-language interpretation)
- United States v. Berg, 640 F.3d 239 (7th Cir. 2011) (illustrates minor assent approach in some circuits)