United States v. Wheeler
2017 CCA LEXIS 327
| A.F.C.C.A. | 2017Background
- Appellant, a 26-year-old servicemember, communicated via Craigslist and cellular phone with law enforcement agents posing as a 14-year-old girl (“Gaby”) during a sting operation.
- Appellant sent sexually explicit messages, masturbated while on the phone with “Gaby,” and arranged a meeting; he arrived at the rendezvous with a condom and was arrested.
- He was convicted at a general court-martial by a military judge of: (1) attempted lewd act on a person he believed under 16 (Article 80/Article 120b theory), and (2) attempted enticement of a minor via interstate commerce in violation of 18 U.S.C. § 2422(b) (charged under Article 134, clause 3).
- Sentence: dishonorable discharge, 30 months confinement, forfeitures (forfeitures later modified by convening authority); military judge credited six months for illegal pretrial punishment (administrative correction ordered for paperwork error).
- On appeal Appellant argued: (1) Charge II legally and factually insufficient; (2) federal-preemption barred the Article 134 charge; (3) multiplicity / unreasonable multiplication of charges; and (4) entrapment. The CCA affirmed.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Legal & factual sufficiency of Charge II (enticement under §2422(b)) | Appellant claimed he tried to end contact after learning of age and that "Gaby" induced him; thus insufficient evidence of attempt to persuade/induce a minor | Recorded emails/phone calls, admissions, travel to meeting, and condom supported intent and substantial step toward persuading a minor via interstate commerce | Affirmed: evidence legally and factually sufficient to prove intent and substantial step |
| Preemption (whether Article 134 charge is preempted by Article 120b) | The conduct should have been prosecuted under Article 120b (UCMJ), so Article 134 prosecution is preempted | §2422(b) (enticement via interstate commerce) criminalizes distinct conduct (enticement element) not fully covered by Article 120b; Congress intended to reach online enticement | Affirmed: preemption does not apply; Article 134 clause 3 charge for attempted enticement permissible |
| Multiplicity / Unreasonable multiplication of charges | Attempted lewd act and attempted enticement are same conduct and thus multiplicious / unreasonably multiplied | The offenses require different elements and target different gravamina (sexualized communication for arousal vs. persuading a minor via interstate commerce); no prosecutorial overreaching | Affirmed: not multiplicious; no unreasonable multiplication under Quiroz factors |
| Entrapment | Law enforcement’s use of sympathy/solicitation improperly induced Appellant | Government argued agents only provided opportunity; evidence showed Appellant was predisposed and voluntarily pursued sexual conduct | Affirmed: entrapment not proven; Government disproved entrapment beyond reasonable doubt |
Key Cases Cited
- United States v. Schell, 72 M.J. 339 (CAAF) (Congress intended §2422(b) to address online enticement and to protect children from online harm)
- United States v. Winckelmann, 70 M.J. 403 (CAAF) (travel to meet a minor can be a substantial step for §2422(b) attempt)
- United States v. Pierce, 70 M.J. 391 (CAAF) (use of internet/cellular phone constitutes interstate commerce)
- United States v. Kick, 7 M.J. 82 (C.M.A.) (preemption doctrine: Article 134 cannot be used to recreate offenses where Congress occupied the field)
- Blockburger v. United States, 284 U.S. 299 (Supreme Court) (separate-elements test for multiplicity)
- United States v. Quiroz, 55 M.J. 334 (CAAF) (factors for unreasonable multiplication of charges)
- United States v. Hall, 56 M.J. 432 (CAAF) (framework for burden allocation in entrapment defense)