UNITED STATES, Appellee v. Sergeant Nicholas R. SCHELL, United States Army, Appellant.
ARMY 20110264
U.S. Army Court of Criminal Appeals
12 Sept. 2012
72 M.J. 574
For Appellee: Major Christopher S. Glascott, JA (argued); Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, JA; Major Christopher S. Glascott, JA (on brief, & brief in response to specified issues on supplemental brief).
Before the Court Sitting En Banc.
OPINION OF THE COURT
KRAUSS, Judge:
Pursuant to his pleas, a military judge, sitting as a general court-martial, convicted appellant of attempted indecent language and attempted indecent act in violation of
Appellant‘s case is now before this court for review under
We have examined the record of trial and considered the briefs and arguments of the parties. Our decision turns on the intent required to support an
BACKGROUND
Sergeant (SGT) Schell had a history of exploiting the internet to identify and locate individuals willing to engage in sexual activity with him. On a number of occasions he was successful, and each of these internet-facilitated sexual encounters involved adults. On the occasion giving rise to the case at hand, SGT Schell believed he was in contact with a fourteen year-old girl going by the name of Taylor. However, it was not a fourteen year-old girl chatting with appellant over the internet, but rather, an adult man and law enforcement agent, posing as a young girl, intent upon catching sexual predators who troll the internet searching for prospective child victims. This led to the charged attempts.
The charged attempt we address here stems from
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.
The military judge defined the elements of this offense as follows:
That on or between 17 March 2010 and 18 March 2010, at or near Fort Leavenworth, Kansas, that you knowingly attempted to persuade, induce, or entice an individual known to you by the screen name of Joco_cheer_girl and with the given name of [TA], to engage in sexual activity, which if undertaken would constitute a criminal offense under Article 120 of the Uniform Code of Military Justice; that you did so by means of or a facility of interstate commerce, in this case the internet; and that—I‘m sorry, going back to Article 120, that that would be a violation of 18 USC, Section 2422, subparagraph Bravo, and additionally, that under the circumstances your conduct was of a nature to bring discredit upon the armed forces. Service discrediting conduct is conduct which tends to harm the reputation of the service or lower it in the public esteem. . . . [a]nd . . . that you believe that the person you were communicating with was less than 18 years of age.
The judge did not address the elements inherent in such an attempt, those of intent to commit the predicate offense and a substantial step toward commission of that offense.
Appellant‘s admissions and the stipulation of fact in this case reveal a lurid and graphic internet chat exchange involving sexually explicit language and photos featuring appellant‘s erect penis. Appellant asked Taylor whether she would allow his girlfriend to perform various sexual acts on her. He stipulated that in order to entice Taylor into performing sexual activity with him and his girlfriend, he described his girlfriend‘s physical attributes and sexual inclinations. He further stipulated that “[i]n addition to attempting to entice ‘Taylor’ into committing sexual acts with him, [he] also throws out the idea to see if any of ‘Taylor‘s’ friends might want to join them in sexual activity.”
Appellant sent Taylor two photographs of his naked erect penis over the internet and hoped she would send him photos of her naked breasts or vagina. He explicitly discussed the act of sexual intercourse and what he wanted to do with her sexually. He further stipulated that “[a]t the time [he] enticed ‘Taylor’ into sexual activity with him, he believed she actually was a fourteen year-old girl,” and that “[he] attempted to entice ‘Taylor’ into having sexual intercourse with him, which if he engaged in sexual intercourse with a child under the age of sixteen years, would constitute aggravated sexual assault of a child, a violation of Article 120, U.C.M.J.”
Appellant stipulated that “[a]fter assurances by ‘Taylor’ that [he] would not get into trouble, [he] set up a time and place to meet
Addressing the defense of entrapment, appellant stipulated that “[he] was predisposed to attempt to entice a fourteen year-old girl to engage in sexual activity with him based on his history of inviting others to engage in sexually deviant behavior with him including multiple partnered sexual activity,” and that “[he] was in the Yahoo! Chat room for purposes of finding persons willing to engage in multiple-person sexual-partnered activity when he discovered ‘Taylor[,]’ who he quickly learned was fourteen years old.”
During the providence inquiry, appellant stated, in pertinent part, the following: “My intent was to meet a 14 year old girl, ma‘am.” “I did take the steps to attempt to persuade, come up with ideas using language that would—that would persuade them and not the other way around, ma‘am, and then make her want to have sex with me, ma‘am.” When asked by the judge “what [he was] trying to induce or persuade Taylor to do,” appellant answered: “Commit sexual acts with me or with other individuals, ma‘am.” The judge continued, “What sort of sexual activity were you trying to persuade her to do?” Appellant responded “To have sexual intercourse with me, ma‘am.” The judge finally asked “So you were trying to persuade her, a 14 year old girl, to have sexual intercourse with you?” Appellant replied “Correct, ma‘am.”
Upon completion of the providence inquiry, the military judge asked for the trial counsel‘s calculation of the maximum punishment authorized in the case. The defense agreed that the maximum included confinement for life and the judge so advised the appellant.
Later, in his unsworn statement, appellant said:
I never intended to do anything with that girl I thought I was talking to online. That‘s why I never left post and I did make an excuse not to meet up with her. I don‘t know why I decided to talk to her like that or why I sent the pictures. When I went online that day I was not looking for a 14 year old girl. I did not know she was 14 until she told me, and then I don‘t know if I decided to keep talking to her out of boredom or curiosity, ma‘am. I do know that I never intended to act on our discussions, but really there is no excuse for my actions, ma‘am.
In his sentencing argument, trial counsel emphasized the need to protect children from the likes of appellant and raised the specter of what would have occurred if ‘Taylor’ had actually been a fourteen year-old girl. The defense counsel, on the other hand, exploited appellant‘s unsworn statement and argued that no harm ever would have come to any child because appellant never actually intended to carry through with plans to meet ‘Taylor.’ The defense counsel also highlighted that appellant neither travelled to meet ‘Taylor’ nor attempted to contact her again after calling off the meeting discussed.
Defense counsel‘s argument prompted the following dialogue:
MJ: Counsel, before I close to deliberate and when we were talking about the elements of the Specification of Charge II this came up and I think it‘s probably prudent at this point to go ahead and address this, is that there‘s obviously testimony and argument that Sergeant Schell did not ever leave Fort Leavenworth, but that in my discussions with counsel that they indicated and defense agreed that the offense was—and let me summarize this and you can put your own take on it; that the offense was complete when the enticement happened, the fact that he never acted on it, that what he‘s charged with is attempting to persuade, induce, or entice this individual to engage in sexual activity and that it‘s not necessary that he actually drove or followed through or anything like that. Would you agree with that, defense?
DC: That is correct, Your Honor, and specifically there is case law that does not require a substantial step moving forward to actually commit the offense for which he was enticing for, just that he intended to entice them to commit that offense.
MJ: Okay, and, government, would you also agree?
ATC: Yes, Your Honor.
MJ: Okay, and, Sergeant Schell, do you agree? I would assume that you‘ve discussed this with your counsel that despite the fact that or even in light of the fact that you didn‘t actually leave Leavenworth, would you agree that you committed the offense when you were attempting to persuade or entice her?
ACC: Yes, ma‘am.
LAW AND DISCUSSION
Where an accused, testifying in an unsworn statement, “sets up matter inconsistent with” his plea of guilty, “the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006) (citations omitted);
A plea of guilty to an attempt under
We hold that the intent element of attempted persuasion, inducement, or enticement requires the accused intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity. See
The premise upon which the government prosecuted the offense and upon which it sought to secure certain punishment of the accused relied upon the notion that appellant actually intended to engage in sexual activity with a minor. The stipulation of fact and providence inquiry agree in this respect. Disagreement with that proposition came to light only during appellant‘s unsworn statement and was then amplified by defense counsel‘s argument on sentence. Though we might glean from the record ultimate agreement on the element of intent, the record effectively only addresses the substantial step element in that respect. Whether the judge failed to effectively resolve an inconsistency relative to intent or whether the parties and court agreed upon an intent contrary to that required, the result is the same.
Some United States Courts of Appeals hold that
The statute makes criminal attempts to persuade a minor to engage in illegal sexual activity. It does not make criminal attempts to persuade children to merely want to engage in sexual activity or to merely gain the assent of the minor for the sake of that assent. It is intended to address those who lure children out to actually engage in illegal sexual activity; it is not intended to address those who simply encourage or incite children to assent to the possibility of illegal sex. It is a luring statute; not a corrupting statute. The legislative history emphasizes the distinction.
Congress enacted the statute to address predatory behavior by adults intent upon exploiting the internet to actually persuade, induce, entice, or coerce children to actually engage in sexual activity:
With the advent of ever-growing computer technology, law enforcement officials are discovering that criminals roam the Internet just as they roam the streets.
. . . . Recent, highly publicized news accounts in which pedophiles have used the Internet to seduce or persuade children to meet them to engage in sexual activities have sparked vigorous debate about the wonders and perils of the information superhighway. Youths who have agreed to such meetings have been kidnapped, photographed for child pornography, raped, beaten, robbed, and worse.
During the 104th and 105th Congresses, the Subcommittee on Crime held seven hearings on issues related to crimes against children. At those hearings, the Subcommittee heard testimony from victim parents, child safety advocacy groups, and federal, state and local law enforcement about the nature, threat and best ways to stop pedophiles who prey on innocent children. . . .
The attempt and ultimate failure to attach the so-called “contact amendment”4 to
The legislative history of the amendment states that it would establish:
[A] fine and up to 5 years in prison for anyone who, using the mail or any facility of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly contacts (or attempts to contact) an individual who has not attained the age of 18, or who has been represented to the person making the contact as not having attained the age of 18, for purposes of engaging in criminal sexual activity.
H.R.Rep. No. 105-557, at 19, 1998 U.S.C.C.A.N. 678 at 687.
The history elaborates upon the perceived necessity of this amendment:
Under current law,5 the Federal Government must prove that a pedophile “persuaded, induced, enticed or coerced” a child to engage in a sexual act. This standard allows the criminal to establish a prolonged, intimate and highly destructive relationship with the victim, involving explicit sexual language, without actually violating the law. This new crime . . . establishes a lower penalty for initiating a harmful relationship with a child for the purpose of engaging in illegal sexual activity. [This amendment] also clarifies that this provision is not intended to apply to minors who engage in consensual sexual activity with other minors.
H.R.Rep. No. 105-557, at 19, 1998 U.S.C.C.A.N. 678 at 687.
The Senate rejected this amendment. To paraphrase one Senator, this amendment would move the law too close to creating a thought crime.6
In other words, Congress understood
Such an interpretation is unnecessary and inappropriate. Courts applying the “minor‘s assent” standard recognize that the evidence of intent will rarely, if ever, fail to establish intent to actually have children engage in illegal sex. See, e.g., United States v. Berg, 640 F.3d 239, 246-53 (7th Cir. 2011); United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000). Perusal of the published cases bears this out. Indeed, the evidence available to the government in this case, virtually equivalent to appellant‘s admissions during the guilty plea inquiry, would be sufficient to support a conviction in a contested case for the offense despite any denial by the accused that he never intended to actually engage in any sexual activity with a minor. See, e.g., Young, 613 F.3d at 740, 742-43; United States v. Patten, 397 F.3d 1100, 1102-04 (8th Cir. 2005).9
By rejecting an interpretation that focuses on the mental state of the victim, we also avoid excluding from liability those who may employ seemingly innocuous methods to lure a child out to engage in illegal sexual activity. The willingness of the minor victim to engage in sexual activity, or lack thereof, may be probative of the accused‘s intent, but should not be required to establish the offense. See, e.g., United States v. Dhingra, 371 F.3d 557, 567-68 (9th Cir. 2004). Indeed, cases may arise where a sexual predator uses the internet to persuade, induce, or entice a minor by promise of something other than sex, never mentioning sex, yet intend nothing other than criminal sexual activity as the purpose of his persuasion.
By maintaining proper focus on the accused‘s mental state, we also avoid the improper exclusion of those who attempt to induce a minor to engage in illegal sexual activity through a third party without ever attempting to obtain a minor‘s assent at all. See Brooks, 60 M.J. at 498-99. Excluding from liability those who intend to induce a child‘s unwary entry into a life of prostitution through a third party or lure a child out in order to commit forcible rape, illustrate two
In light of the above, we also hold that the preemption doctrine does not prevent prosecution of this offense under clause three of
Though the providency of appellant‘s plea was not affected by the possibility of an incorrect maximum punishment, and despite the fact that his admissions during that inquiry support a conviction under the definition of intent described above, the inconsistent statements made during his unsworn statement, unresolved at the court-martial, require our reversal of the
CONCLUSION
On consideration of the entire record, the finding of guilty of Charge II and its Specification is set aside. The remaining findings of guilty are affirmed. The same or a different convening authority may order a rehear-
Senior Judge KERN, Senior Judge YOB, Judge JOHNSON, Judge ALDYKIEWICZ, Judge BURTON, and Judge MARTIN concur.
HAIGHT, Judge, joined by Chief Judge AYRES, Senior Judge COOK, and Judge GALLAGHER, dissenting:
Appellant was charged under
In a written stipulation of fact, appellant repeatedly admitted that he had attempted to entice as well as enticed one whom he believed to be a fourteen year-old girl to engage in illegal sexual activity.2 During the providence inquiry, as the majority opinion details, appellant admitted sufficient facts detailing his attempted persuasion, enticement, or inducement of a minor to engage in sexual activity.
Later, in an unsworn statement, without denying any intent to entice, appellant stated he never intended to act on the sexually explicit conversations. This sentiment was echoed in defense counsel‘s sentencing argument. Before deliberation, the military judge clarified and all agreed that once the criminal enticement had occurred, it was unnecessary to show “follow-through.” The defense counsel concurred, “That is correct, Your Honor, and specifically there is case law that does not require a substantial step moving forward to actually commit the offense for which he was enticing for, just that he intended to entice them to commit that offense.”
THERE IS NO INCONSISTENCY
The majority correctly points out that this court will disapprove any finding of guilty when the military judge fails to resolve matters inconsistent with the plea of guilty. See
Rather than attempting to decipher the statute by scrutinizing the legislative history of proposed legislation, I would adopt the federal circuits’ approach and “conclude that, in enacting section 2422(b), Congress said what it meant and meant what it said” and “reject the . . . thesis that section 2422(b) should be interpreted to include, as an additional element of the offense, an intent that
In Winckelmann, our superior court, after correctly listing the elements of an attempt under
While in this case, the military judge incorrectly instructed the members that the substantial step must be toward actually engaging in sexual activity rather than a substantial step towards enticement alone, that does not affect the analysis of the question whether there was a substantial step at all under the facts of this case.
Id. at 407 n.4. As the majority highlights, Winckelmann revolved around a “substantial step” analysis. Nevertheless, exactly what intent is required by
Our sister court, the United States Navy-Marine Corps Court of Criminal Appeals squarely addressed this issue and determined, “The specific intent required to violate
While it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and the Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.
The majority takes the position that one who intends to persuade or entice must necessarily also intend for the underlying sexual activity to occur. This reasoning has been roundly rejected. When determining the admissibility of expert testimony regarding the likelihood that an accused would actually act on his enticements, courts have ruled that evidence as irrelevant because lack of intent to have sex does not make it more likely or not that the accused attempted to entice or persuade. See United States v. Hofus, 598 F.3d 1171 (9th Cir. 2010), cert. denied,
While it is indeed interesting to consider whether
For the above reasons, I respectfully dissent. I would affirm the findings of guilty and the sentence.
Notes
While uniformity among the federal circuits is not per se determinative, it is informative that the United States Court of Appeals for the First Circuit went so far as to explicitly reject any notion of alternative interpretations. “The appellant tries to paint a picture of uncertainty by arguing that the courts of appeals have split over the interpretation of section 2422(b). But the case law does not support that gloomy assessment. . . . Insofar as we can tell, the decisions that are on point uniformly reject the ‘double intent’ hypothesis.” Dwinells, 508 F.3d at 70 (citing United States v. Brand, 467 F.3d 179; United States v. Thomas, 410 F.3d 1235; United States v. Patten, 397 F.3d 1100; United States v. Murrell, 368 F.3d 1283; United States v. Bailey, 228 F.3d 637; United States v. Goetzke, 494 F.3d 1231).“(c) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States—
(1) knowingly contacts an individual who has not attained the age of 18 years; or
(2) knowingly contacts an individual, who has been represented to the person making the contact as not having attained the age of 18 years;
for the purposes of engaging in any sexual activity, with a person who has not attained the age of 18 years, for which any person may be criminally prosecuted, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both. It is a defense to a prosecution for an offense under this section that the sexual activity is prosecutable only because of the age of the individual contacted, the individual contacted had attained the age of 12 years, and the defendant was not more than 4 years older than the individual contacted.”