                         UNITED STATES, Appellee

                                         v.

                  Jerry A. GARNER, Gunnery Sergeant
                     U.S. Marine Corps, Appellant

                                  No. 09-0729
                        Crim. App. No. 200800481

       United States Court of Appeals for the Armed Forces

                          Argued April 21, 2010

                           Decided May 24, 2010

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Lieutenant Commander Thomas P. Belsky, JAGC, USN
(argued); Rebecca S. Snyder, Esq. (on brief).


For Appellee: Captain Robert E. Eckert Jr., USMC (argued);
Brian K. Keller, Esq.



Military Judge:    R. H. Kohlman




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Garner, No. 09-0729/MC


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his pleas, of attempting

to communicate indecent language to a child under the age of

sixteen years and of attempting to persuade, entice, and induce

a minor to engage in intercourse and oral sodomy, in violation

of Articles 80 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 880, 934 (2006).    The sentence adjudged by the

court-martial and approved by the convening authority included a

dishonorable discharge, confinement for twelve months, and

reduction to pay grade E-1.   The United States Navy-Marine Corps

Court of Criminal Appeals affirmed.    United States v. Garner, 67

M.J. 734, 741 (N-M. Ct. Crim. App. 2009).

     On Appellant’s petition, we granted review of the following

issue:

     WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN
     AFFIRMING APPELLANT’S CONVICTION FOR ATTEMPTING TO
     ENTICE A MINOR TO ENGAGE IN ILLEGAL SEXUAL ACTIVITY,
     IN VIOLATION OF 18 U.S.C. § 2422(b), WHERE THE RECORD
     OF TRIAL FAILED TO SHOW THAT APPELLANT TOOK THE
     “SUBSTANTIAL STEP” NECESSARY FOR AN ATTEMPT CONVICTION
     UNDER THE STATUTE.

For the reasons set forth below, we affirm.


                         I.     BACKGROUND

     In a stipulation of fact, Appellant admitted to engaging in

numerous online conversations in an Internet chat room with an



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United States v. Garner, No. 09-0729/MC


individual using the name “Molly.”    Appellant, who was then

stationed at Camp Lejeune, believed that he was communicating

with a fourteen-year-old girl residing in Greensboro, North

Carolina.   In reality, “Molly” was an undercover police officer.

       Appellant communicated online with “Molly” at various

times, totaling approximately seventeen hours.   During their

online exchanges, Appellant engaged in sexually explicit

communications.   In the course of expressing an interest in

engaging in sexual activities with “Molly,” he described

specific sexual acts.   In addition, he transmitted a webcam

video to “Molly” showing himself in the act of masturbation.

The conversations alluded to meetings for the purpose of

engaging in sexual activity, but Appellant did not make specific

arrangements for such meetings.

       Appellant’s conduct resulted in charges under Article 134,

UCMJ, for attempting to violate 18 U.S.C. § 2422(b) (2006).

Section 2422(b) criminalizes use of the Internet to knowingly

persuade, induce, entice, or coerce any individual under the age

of eighteen to engage in “any sexual activity for which any

person can be charged with a criminal offense, or attempts to do

so.”

       In the course of evaluating the providence of Appellant’s

plea to this offense, the military judge explained each element

of this offense to the accused.   When describing the attempt


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United States v. Garner, No. 09-0729/MC


aspect of the offense, the military judge stated that an attempt

required proof that the “act of using the Internet amounted to

more than mere preparation; that is, it was a substantial step

and a direct movement toward the commission of the intended

offense of enticing or persuading a minor to engage in illegal

sexual [activity].”   The military judge defined a “substantial

step” as “one that is strongly corrobative of your criminal

intent and is indicative of your resolve to commit the offense.”

     In response to the questions that the military judge posed

during the plea inquiry, Appellant explained that his online

conversations amounted to an effort to persuade “Molly” to

engage in sexual activity because he “was talking to her about

sex, different sexual acts, and asking her to do different

sexual things.   Asking her what type of sexual things that she

would like, if she would like to do them with me . . . .”    In

addition, Appellant acknowledged that the online conversations

included some discussion about meeting to engage in the sexual

activity.   Appellant specifically addressed his intent in

engaging in sexually explicit conversations with “Molly.”    He

stated that he intended to attempt to persuade, entice, or

induce her to engage in sexual activity and that he knew that

the online conversations might reasonably have the effect of

inducing her to engage in sexual activity.




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United States v. Garner, No. 09-0729/MC


     The military judge and Appellant engaged in the following

colloquy with respect to the purpose of his sending “Molly” a

sexually explicit video of himself:

     MJ:    And why did you send that?

     ACC:    Trying to get the person at the other end turned on,
     sir.

     MJ:    And was that part of the --

     ACC:    That was part of the enticing and persuading, sir.

     In the context of discussing the substantial step aspect

necessary for an attempt conviction, Appellant affirmed his

belief:    (1) that his actions were “more than mere preparatory

steps towards completing that offense of enticing or persuading

[“Molly”] to engage in sexual activity;” and (2) that his

attempts would have been successful but for the fact that

“Molly” was not a real person.



                           II.   DISCUSSION

     When considering a conviction pursuant to a guilty plea,

this Court reviews the military judge’s decision to accept the

plea for an abuse of discretion.       United States v. Inabinette,

66 M.J. 320, 322 (C.A.A.F. 2008).      In doing so, this Court

applies the “substantial basis test, looking at whether there is

something in the record of trial, with regard to the factual




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United States v. Garner, No. 09-0729/MC


basis or the law, that would raise a substantial question

regarding the appellant’s guilty plea.”   Id.

     Appellant contends that his plea to the attempt offense was

improvident as a matter of law because he did not take a

“substantial step” towards completing the offense.   According to

Appellant, the “substantial step” test, when applied to an

attempt to commit an offense under § 2422(b), requires a

specific arrangement for an actual rendezvous with the purported

minor.   In Appellant’s view, in the absence of such an

arrangement, his conversations with “Molly” could have simply

constituted “fantasy role playing.”

     Appellant relies on United States v. Gladish, 536 F.3d 646,

650 (7th Cir. 2008), in which the Seventh Circuit concluded that

the “substantial step” requirement of § 2422(b) was not

satisfied where there was no evidence that the defendant

intended to travel to meet the purported minor or to actually

engage in sexual activity with her.   The Government responds

that this Court should rely on United States v. Goetzke, 494

F.3d 1231 (9th Cir. 2007).   In Goetzke, the Ninth Circuit

rejected the argument that specific travel arrangements were

necessary to establish a substantial step.   The court concluded

that the defendant, by sending sexually explicit letters

proposing a future meeting to a minor with whom he had prior

contact, had engaged in “grooming behavior,” which was


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United States v. Garner, No. 09-0729/MC


sufficient to meet the substantial step requirement.   Id. at

1236-37.    In the present case, the Court of Criminal Appeals

cited Goetzke in the course of describing Appellant’s actions as

“grooming behavior” sufficient to constitute a substantial step.

Garner, 67 M.J. at 738-39.

     The present case does not require us to rely on either

Gladish or Goetzke, nor does it require us to address the lower

court’s interpretation of those cases.    In contrast to those

contested cases, the case before us involves a guilty plea, with

a detailed plea inquiry in which Appellant admitted that he

intended to persuade, entice, or induce “Molly” into sexual

activity.   The military judge correctly advised Appellant on the

definition of a “substantial step.”   See United States v. Byrd,

24 M.J. 286, 290 (C.M.A. 1987).   Appellant specifically

explained that his communications to “Molly” were designed to

induce her to engage in sexual activity, and he admitted that

those actions constituted more than mere preparatory steps.      He

further acknowledged that in sending “Molly” a sexually explicit

video of himself, he sought to persuade or entice her to engage

in sexual activity.    In light of these admissions at trial, the

record does not support his contention on appeal that his

conduct could have been considered “fantasy role play.”    As this

Court has explained:




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United States v. Garner, No. 09-0729/MC


     Quite simply, where an accused pleads guilty and
     during the providence inquiry admits that he went
     beyond mere preparation and points to a particular
     action that satisfies himself on this point, it is
     neither legally nor logically well-founded to say that
     actions that may be ambiguous on this point fall short
     of the line “as a matter of law” so as to be
     substantially inconsistent with the guilty plea.

United States v. Schoof, 37 M.J. 96, 103 (C.M.A. 1993) (citation

omitted).

     In light of Appellant’s own admissions during the

providence inquiry, we conclude that the military judge did not

abuse his discretion in accepting the plea.   In that posture, we

need not address the parameters of an attempt offense under §

2422(b) where the record does not contain such admissions.



                        III.   CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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