UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                            Before the Court sitting En Banc

                           UNITED STATES, Appellee
                                       v.
                        Sergeant NICHOLAS R. SCHELL
                         United States Army, Appellant

                                  ARMY 20110264

      Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth
                         Susan K. Arnold, Military Judge
                  Colonel Fred P. Taylor, Staff Judge Advocate


For Appellant: Captain Richard M. Gallagher, JA (argued); Colonel Patricia A. Ham,
JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA;
Captain Richard M. Gallagher, JA (on brief & on brief in response to specified
issues); Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA;
Captain Richard M. Gallagher, JA (on supplemental brief); Colonel Patricia A. Ham,
JA; Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA (on reply for
supplemental brief).

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).


                                 12 September 2012

                             -----------------------------------
                               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 Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880 (2006 &
Supp. III 2009) [hereinafter UCMJ], and attempted persuasion, inducement, or
enticement of a minor to engage in sexual activity that would be criminal under
Article 120, UCMJ, by means of the internet, in violation of 18 U.S.C. § 2422(b)
(2006) as a violation of Article 134, UCMJ. The military judge sentenced appellant
to a bad-conduct discharge, confinement for eighteen months, forfeiture of all pay
and allowances, and reduction to the grade of E-1. In accordance with the terms of a
SCHELL—ARMY 20110264

pretrial agreement, the convening authority approved confinement for thirteen
months, but otherwise approved the adjudged sentence.

        Appellant’s case is now before this court for review under Article 66, UCMJ.
Appellant initially asserted only that the charge and specification alleging attempted
indecent language failed to state an offense for failure to allege a terminal element
associated with the offense attempted under Article 134, UCMJ. We specified three
issues, in essence: whether Article 80, UCMJ, preempts prosecution of the offense
alleged under Article 134, UCMJ; whether appellant raised matter inconsistent with
his plea to the same offense, when, in his unsworn statement, he stated that he never
intended to do anything with the girl; and whether confinement for life was the
correct maximum punishment. Appellant then filed a supplemental assignment of
error essentially asserting that the military judge failed to sufficiently discuss with
appellant the substantial step necessary to support his guilty plea to the clause three,
Article 134, UCMJ, offense at issue.

       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 18 U.S.C. §
2422(b) conviction for attempting to persuade, induce, or entice a minor to engage in
illegal sexual activity.

                                     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 18 U.S.C. § 2422(b), which
states:

                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.


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      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



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SCHELL—ARMY 20110264

“[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 up for the purposes of engaging
in sexual activity with ‘Taylor.’” Appellant later cancelled the planned meeting
concluding “not tonight maybe another day.”

       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



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SCHELL—ARMY 20110264

             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



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SCHELL—ARMY 20110264

             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); UCMJ art. 45(a); Rule for Court-Martial
[hereinafter R.C.M.] 910(h)(2). “A military judge who fails to do so has abused his
or her discretion.” United States v. Hayes, 70 M.J. 454, 458 (C.A.A.F. 2012).
Having failed to properly resolve such inconsistency, a substantial basis in law and
fact to disapprove any finding of guilty entered upon such plea exists and the court
will reverse the conviction at issue. See UCMJ, art. 45(a); Hayes, 70 M.J. at 458;
United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969); United
States v. Estes, 62 M.J. 544, 548 (Army Ct. Crim. App. 2005).

         A plea of guilty to an attempt under 18 U.S.C. § 2422(b) cannot properly be
accepted absent admission by the accused, inter alia, (1) that he intended to
persuade, induce, or entice a minor to engage in sexual activity that would be
criminal under the law, by means of the internet, and (2) that he took a substantial
step toward such persuasion, inducement, or enticement. See United States v.
Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011). A definition for the intent
required has yet to be resolved in our jurisdiction. See id. at 407–08 (resolving a
definition for the substantial step required but leaving open a definition for the
requisite intent, reinforced by reference to federal circuit court decisions that define
that intent differently, compare United States v. Young, 613 F.3d 735, 742–43 (8th
Cir. 2010), and Eighth Circuit Pattern Jury instructions: Criminal § 6.18.2422B
(2012), with United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006)). 1

1
  Though our superior court commented upon the military judge’s erroneous
instruction as to substantial step in Winckelmann, the court made no comment on the
military judge’s instruction that it was “necessary for the government to prove that
the accused intended to engage in some form of unlawful sexual activity.”
Winckelmann, 70 M.J. at 407 n.4; United States v. Winckelmann, ARMY 20070243,
2010 WL 4892816, at *5 (Army Ct. Crim. App. 2010). The Court of Appeals for the
Armed Forces also previously declined to resolve the definition of the intent element
for this offense upon review of a service court decision that we find relied upon a
misinterpretation of a previous decision by our superior court. United States v.
Garner, 69 M.J. 31, 33 (C.A.A.F. 2010); United States v. Garner, 67 M.J. 734, 738
(N.M. Ct. Crim. App. 2009) (misinterpreting United States v. Brooks, 60 M.J. 495
(C.A.A.F. 2005)). It is also worthy of note that the Air Force and Coast Guard


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       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 18 U.S.C. § 2422(b); United
States v. Shinn, 681 F.3d 924, 930–31 (8th Cir. 2012); United States v. Lebowitz,
676 F.3d 1000, 1013–14 (11th Cir. 2012); United States v. Lundy, 676 F.3d 444,
450–52 (5th Cir. 2012); Young, 613 F.3d at 742–43; United States v. Pierson, 544
F.3d 933, 938–40 (8th Cir. 2008) (illustrating a case where accused does not intend
to engage in physical act himself but intends the minor to engage in illegal sexual
activity while affirming that persuasion of an actual minor is not required for
conviction of attempt under the statute). In short, the accused must intend that the
minor, ultimately, actually engage in illegal sexual activity as a result of his
persuasion, inducement, or enticement. One who specifically intends to persuade
another to do something, expects and intends that something to be done; otherwise
he does not actually intend to persuade anyone to do anything. 2 Therefore, we also
hold that appellant’s unsworn statements made during the sentencing phase of his
court-martial, denying that he ever had any intent to do anything with the minor, set
up matter inconsistent with his plea requiring disapproval of that finding of guilty in
this case. Hayes, 70 M.J. at 458. 3



(. . . continued)
Courts of Criminal Appeals have also published opinions involving cases where the
military judge defined or discussed the § 2422(b) intent element as requiring the
accused to actually intend the illegal sexual activity to occur without comment or
criticism of that definition. United States v. Kowalski, 69 M.J. 705, 708 (C.G. Ct.
Crim. App. 2010), pet. denied, 70 M.J. 35 (C.A.A.F. 2011); United States v.
Amador, 61 M.J. 619, 622–23 (A.F. Ct. Crim. App. 2005), pet. denied, 63 M.J. 183
(C.A.A.F. 2006).
2
  Characterization of this as a “double intent” is a misconception. We disagree with
the reasoning offered by the Court of Appeals for the First Circuit on the matter and
note that its conclusion is based, at least in part, on a misapplication of Eighth
Circuit precedent. See United States v. Dwinells, 508 F.3d 63, 68–70 (1st Cir. 2007)
(citing United States v. Patten, 397 F.3d 1100, 1103 (8th Cir. 2005)). Patten
reflects application of the singular intent we describe above. Id. at 1103–04. Intent
that illegal sexual activity occur is part and parcel of any attempt to persuade
another to engage in illegal sexual activity.
3
  This holding does not contradict Winckelmann because a substantial step toward
persuasion, inducement, or enticement may be different than a substantial step
toward engaging in sex. The inquiry and dialogue in this case exemplify admission
of a substantial step sufficient for a § 2422(b) offense, but insufficient for an
attempted rape or sexual assault.



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       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 § 2422(b) does not require
the accused to intend for the minor to actually engage in sexual activity, but only
that the accused intend for the minor to achieve a certain mental state—that the
minor assent to engage in illegal sexual activity. See, e.g., United States v. Engle,
676 F.3d 405, 419 (4th Cir. 2012). We decline to adopt such an interpretation as
contrary to the plain language of the statute and its legislative history.

       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



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             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 . . . .

             H.R. 3494, the “Child Protection and Sexual Predator
             Punishment Act of 1998,” is a response to requests of
             victim parents and law enforcement to address public
             safety issues involving the most vulnerable members of
             our society, our children. H.R. 3494 is the most
             comprehensive package of new crimes and increased
             penalties ever developed in response to crimes against
             children, particularly assaults facilitated by computers.
             The bill attacks pedophiles who stalk children on the
             Internet.

H.R. Rep. No. 105–557, at 680–81 (1998).

       The attempt and ultimate failure to attach the so-called “contact amendment” 4
to § 2422 further illustrates the fact that this statute is intended to counter sexual
predators who use the internet to lure children into illegal sexual activity and not
merely to achieve a mental state in the victim. The House of Representatives passed
the amendment unanimously, but it was rejected by the Senate.

       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,

4
 The proposed amendment was to be § 2422(c):
“(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.”


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               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 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 687.

     The Senate rejected this amendment. To paraphrase one Senator, this
amendment would move the law too close to creating a thought crime. 6




5
    Section 2422(b).
6
  “As passed by the House, H.R. 3494 would make it a crime, punishable by up to 5
years’ imprisonment, to do nothing more than ‘contact’ a minor, or even just attempt
to ‘contact’ a minor, for the purpose of engaging in sexual activity. This provision,
which would be extremely difficult to enforce and would invite court challenges,
does not appear in the Hatch–Leahy–DeWine substitute. In criminal law terms, the
act of making contact is not very far along the spectrum of an overt criminal act.
Targeting ‘attempts’ to make contact would be even more like prosecuting a thought
crime. It is difficult to see how such a provision would be enforced without inviting
significant litigation.” 144 Cong. Rec. S12257–01, S12263 (daily ed. Oct. 9, 1998)
(statement of Sen. Leahy).



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       In other words, Congress understood § 2422(b) as requiring more than merely
engaging in sexually explicit conversation that engendered, encouraged, or incited
the thought of assent to possible sex. Nor does it make criminal “cybersex.”
Indeed, the proposed defense to the offense reveals, again, the evil to be addressed is
the specter of actual sexual activity. 7 As described above, some United States
Courts of Appeals, on the other hand, have decided to interpret the statute in a
different fashion. 8

        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

7
  The simultaneous passage of 18 U.S.C. § 1470 (2006), “Transfer of obscene
material to minors,” its lesser penalties, and its associated legislative history further
reinforces our conclusion that § 2422(b) addresses sexual predators who actually
intend illegal sexual activity to occur rather than those who merely gain the assent
of a minor. The proposed contact amendment and § 1470 specifically address
Congressional efforts to make criminal those acts that affect the mental state of the
child victim (“to entice the child to believe that such sexual activities are ‘normal’”)
but fall short of the intent and act required to establish actual attempts to persuade
or induce a minor to engage in illegal sexual activity. H.R. Rep. No. 105–557, at
688.
8
    See, e.g., United States v. Berg, 640 F.3d 239, 252 (7th Cir. 2011).
9
  The state of the law in the United States Court of Appeals for the Eleventh Circuit
exemplifies the lack of any necessity to interpret the statute to focus on assent of the
minor rather than the intent of the accused. In United States v. Lee, 603 F.3d 904
(11th Cir. 2010), the court upheld a § 2422(b) conviction applying the “minor’s
assent” interpretation in a case where the jury actually convicted on the instruction
that the government must prove “that the defendant intended to engage in some form
of unlawful sexual activity.” Id. at 914, 920. Yet this year, the court affirmed a §
2422(b) conviction based on an interpretation of the statute that required the
defendant to actually intend illegal sexual activity occur and did so without
reference to Lee or any other decision. See Lebowitz, 676 F.3d at 1013–14. A
meaningful distinction between an attempted persuasion, inducement, or enticement


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       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 possible
examples of the potentially absurd consequences associated with basing the question
of intent on the mental state of the victim. See also United States v. Douglas, 626
F.3d 161 (2d Cir. 2010) (applying a “minor’s assent” interpretation in a case
involving attempted inducement through an intermediary where the facts revealed
appellant’s indifference to the assent of the minor as much as any intent to
ultimately obtain the minor’s assent through a variety of possible means).

       In light of the above, we also hold that the preemption doctrine does not
prevent prosecution of this offense under clause three of Article 134, UCMJ, and
that the maximum punishment is life in confinement under R.C.M. 1003. There is
nothing enumerated by Congress under the UCMJ that contemplates the prosecution
and conviction of those who lure or attempt to lure children out to engage in illegal
sex by means of the internet nor is there any offense closely related to the same. 10


(. . . continued)
and an attempted sexual act does not require an interpretation with focus on assent
of the minor. It is plain that one need not prove an attempted rape, for example, in
order to prove an attempted enticement of a minor over the internet to engage in
what would amount to rape under the law. It is correct to say that “Congress has
made a clear choice to criminalize persuasion and the attempt to persuade, not the
performance of the sexual acts themselves.” Bailey, 228 F.3d at 639. It is incorrect
to say that, therefore, the law does not require the accused to intend to persuade a
minor to actually perform sex acts. It only means that the crime is complete with
persuasion rather than act and that the attempt is complete with a substantial step
towards persuasion rather than a substantial step towards performance of the act.
10
  If we were to embrace the “minor’s assent” definition of intent, the indecency
crimes defined under Articles 120 and 134, UCMJ, at the time of appellant’s trial,


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See United States v. Kowalski, 69 M.J. 705, 706–07 (C.G. Ct. Crim. App. 2010).
Though Congress never contemplated application of this maximum punishment
under the UCMJ but rather only contemplated its application within the framework
of the federal sentencing guidelines, we are bound to endorse it under the
circumstances. R.C.M. 1003(c)(1)(B)(ii) (“An offense not listed in Part IV and not
included in or closely related to any offense listed therein is punishable as
authorized by the United States Code . . . .”). 11

       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 § 2422(b) conviction. Hayes, 70 M.J. at 458.
Absent that charge, appellant’s maximum possible sentence to confinement is
reduced to seven years. We cannot say with confidence that in a case where the
maximum was seven years’ confinement, rather than confinement for life, appellant
would have received at least thirteen months’ confinement in this case absent the §


(. . . continued)
would constitute closely related offenses requiring a different maximum punishment.
See R.C.M. 1003(c)(1)(B)(i). Indeed, those indecency crimes directly address those
acts intended to change the mental state of a minor on matters of sex under
circumstances that warrant criminal sanction. This case exemplifies prosecution,
conviction, and punishment for such acts: appellant was convicted of both attempted
indecent act with a child and attempted indecent language for the same acts that
served as a basis for the § 2422(b) charge. See, e.g., United States v. King, 71 M.J.
50 (C.A.A.F. 2012). For offenses alleged after 28 June 2012, the same analysis
applies with reference to Articles 120b, 120c, and Article 134, UCMJ, along with
preemption issues anew especially in light of Articles 120b(c), (g), and
(h)(5)(B),(C), and (D), UCMJ.
11
  Because the UCMJ guarantees individual justice in each case, the convening
authority is able to exercise discretion in the disposition of such cases, panels and
military judges enjoy the discretion to impose the punishment deemed fit for the
particular circumstances of the case, the convening authority may exercise his
clemency authority, and, finally, this court may exercise its authority under Article
66(c), UCMJ, to address a sentence that may be inappropriately severe. This
guarantee serves as a sufficient check against the possibility of suffering life in
prison for an attempted enticement of a minor to engage in what amounts to sexual
abuse of a child when the actual offense of sexually abusing a child permits a
maximum of only fifteen years’ confinement, for example, or where, to use another
example, the actual attempted rape of a child under Article 80, UCMJ, permits a
maximum of twenty years’ confinement. The case at hand exemplifies our system
working in this respect.


                                          13
SCHELL—ARMY 20110264

2422(b) conviction. Therefore, we return the matter for a rehearing, where the
convening authority can either pursue the § 2422(b) offense, or simply order a
rehearing on sentence for the two remaining offenses. See United States v. Moffeit,
63 M.J. 40 (C.A.A.F. 2006); United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

                                    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 rehearing on Charge II and its
Specification and the sentence, which is set aside. If the convening authority
determines that a rehearing on Charge II and its Specification is impracticable, he
may dismiss the charge and order a rehearing on the sentence only.

    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 Article 134, UCMJ, of a violation of 18 U.S.C. §
2422(b), which criminalizes, under the requisite circumstances, the knowing
persuasion, inducement, enticement, or coercion of a minor to engage in illegal
sexual activity or attempts to do so. 1 Appellant pleaded guilty to and was convicted
of the attempted enticement.

       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

1
  The Specification of Charge II alleged, “In that Sergeant Nicholas R. Schell, U.S.
Army, did, at or near Fort Leavenworth, Kansas, on or between 17 March 2010 and
18 March 2010, knowingly attempt to persuade, induce or entice an individual
known to him by the screen name ‘joco_cheer_girl’ and given name ‘[TA]’, a person
the said Sergeant Schell believed to be less than 18 years of age, by means or
facility of interstate commerce, to wit: the internet, to engage in sexual activity
which, if undertaken, would constitute a criminal offense under Article 120 of the
Uniform Code of Military Justice, in violation of 18 U.S. Code Section 2422(b)
which conduct was of a nature to bring discredit upon the armed forces.”
2
  Significantly, when disavowing any possible defense of entrapment, appellant
stipulated that his predisposition to attempt to entice a minor to engage in sexual
activity was based upon his history of inviting others to engage in sexually deviant
behavior, not upon any history of actually engaging in sexually deviant behavior.


                                           14
SCHELL—ARMY 20110264

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 UCMJ art. 45(a). This is not such a case. A stated lack of intent to
engage in sexual activity is not inconsistent with the intent to entice to engage in
sexual activity. 3 The majority’s explicit holding merely adds the word “actually”
twice to the language of the statute. This addition is unnecessarily distortive and
creates an inconsistency where none need exist. Their determination that “[i]n short,
the accused must intend that the minor, ultimately, actually engage in illegal sexual
activity as a result of his persuasion, inducement, or enticement” is contrary to the
plain language of the statute.

       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 the underlying sexual
activity actually take place.” United States v. Dwinells, 508 F.3d 63, 65 (1st Cir.
2007). 4 The majority states “[a] definition for the intent required has yet to be


(. . . continued)
3
  Although it may be a practice of tautology, it is necessary to point out in the
simplest of terms that the lack of intent to have sex would only be contradictory with
an expressed intent to have sex, not the statutorily required intent to entice.
4
  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


                                           15
SCHELL—ARMY 20110264

resolved in our jurisdiction,” disregarding fairly clear guidance from our superior
court in United States v. Winckelmann, 70 M.J. 403 (C.A.A.F. 2011).

      In Winckelmann, our superior court, after correctly listing the elements of an
attempt under § 2422(b) as the intent to entice and a substantial step toward
enticement, added the following footnote:

             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 §
2422(b) is indicated by the declaration, “[A] substantial step must be conduct
strongly corroborative of the firmness of the defendant’s criminal intent.” Id. at 407
(citations omitted). Accordingly, the substantial step must correlate to the
appropriate intent, making the aforementioned footnote all the more persuasive.

       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 § 2422(b) was also addressed by the Court of Appeals for the Armed
Forces (CAAF) in Brooks. Specifically, CAAF adopted a Sixth Circuit Court of
Appeals’ view that an accused need not intend that the underlying sexual activity
actually take place but only that the accused intend to persuade a minor to engage in
such activity.” United States v. Garner, 67 M.J. 734, 738 (N.M. Ct. Crim. App.
2009). 5 The majority minimizes the import of Garner by labeling its reliance upon


(. . . continued)
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, 202 (2d Cir. 2006); United States v. Thomas, 410 F.3d 1235,
1244 (10th Cir. 2005); United States v. Patten, 397 F.3d 1100, 1103 (8th Cir. 2005);
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004); United States v.
Bailey, 228 F.3d 637, 639 (6th Cir. 2000); United States v. Goetzke, 494 F.3d 1231,
1236 (9th Cir. 2007)).
5
 That decision was affirmed by the Court of Appeals for the Armed Forces, without
addressing the lower court’s interpretation of United States v. Gladish, 536 F.3d 646
(7th Cir. 2008) or Goetzke, because the record contained the required guilty plea
admissions by the accused. United States v. Garner, 69 M.J. 31 (C.A.A.F. 2010),


                                          16
SCHELL—ARMY 20110264

United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005), as a misinterpretation. This
label is somewhat suspect as Brooks is referenced for its citation to United States v.
Bailey, 228 F.3d 637 (6th Cir. 2000). The language in Bailey is straightforward and
difficult to misinterpret:

             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.

Bailey, 228 F.3d at 639.

      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,
131 S. Ct. 364 (2010).

        While it is indeed interesting to consider whether § 2422(b) is a corrupting
statute, a luring statute, or a “minor’s assent” statute, ultimately, the plain language
of the statute must be given effect. Appellant pleaded guilty to attempting to entice
a minor to engage in illegal sexual activity, admitted to intending to entice one
whom he thought was a minor to engage in illegal sexual activity, and never
contradicted that admission. I simply do not share the majority’s concern that
application of the plain language of the statute would somehow create conflict with
its legislative history, 6 improperly exclude predators from criminal liability, or



(. . . continued)
aff’g 67 M.J. 734 (N.M. Ct. Crim. App. 2009). Similarly, the record in this case
contains ample admissions by appellant that he intended to persuade, entice, or
induce.
6
  Section 2422(b) targets the sexual grooming of minors as well as the actual sexual
exploitation of them. See United States v. Engle, 676 F.3d 405 (4th Cir 2012).
“Section 2422(b) . . . was designed to protect children from the act of solicitation
itself—a harm distinct from that proscribed by § 2423 [which criminalizes an intent
to engage in illicit sex].” United States v. Nitschke, 843 F.Supp.2d 4, 11 (D.D.C.
2011) (citing United States v. Hughes, 632 F.3d 956, 961 (6th Cir. 2011)).


                                           17
SCHELL—ARMY 20110264

inadequately address scenarios of indirect enticement, persuasion, or inducement. 7
Likewise, questions of preemption, maximum punishment, and closely related
offenses do not compel a conclusion other than the statute means what it says.

       For the above reasons, I respectfully dissent. I would affirm the findings of
guilty and the sentence.

                                        FORTHE
                                        FOR THECOURT:
                                                COURT:




                                        MALCOLM
                                        MALCOLMH.H.SQUIRES,   JR.JR.
                                                        SQUIRES,
                                        Clerk
                                        ClerkofofCourt
                                                  Court




7
  Whether the underlying sexual activity occurs or is intended to occur is equally
irrelevant to enticement of the minor to engage in illegal sexual activity with third
parties as it is to enticement of a minor to have illegal sexual activity with the
accused himself.


                                          18
