           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                  Staff Sergeant SCOTT A. HILL
                                      United States Air Force

                                               ACM 38848

                                               9 May 2016

          Sentence adjudged 24 March 2015 by GCM convened at Wright-Patterson
          Air Force Base, Ohio. Military Judge: Matthew S. Ward (sitting alone).

          Approved Sentence: Bad-conduct discharge, confinement for 7 months,
          forfeiture of all pay and allowances, and reduction to E-1.

          Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primoli.

          Appellate Counsel for the United States: Captain Collin F. Delaney and
          Gerald R. Bruce, Esquire.

                                                  Before

                              ALLRED, TELLER, and MAYBERRY
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



TELLER, Senior Judge:

        Appellant was convicted by a military judge sitting alone, in accordance with his
pleas, of sexual abuse of a child and enticing a minor to engage in lewd acts for the purpose
of producing a visual depiction thereof in violation of Articles 120b and 134, UCMJ, 10
U.S.C. §§ 920b, 934. The court sentenced him to reduction to the grade of E-1, forfeiture
of all pay and allowances, confinement for 7 months, and a bad-conduct discharge. The
sentence was approved, as adjudged, on 30 June, 2015.
       Appellant argues that the enticement alleged in Charge II, Specification 2, may not
be charged under Article 134, UCMJ, 10 U.S.C. § 934, because the offense alleged is
preempted by other offenses under the code, and that his plea to that specification was
improvident because the conduct alleged was constitutionally protected. Finding no error
that materially prejudices a substantial right of Appellant, we affirm the findings and
sentence.

                                       Background

       Appellant was convicted of engaging in sexually explicit exchanges with three
teenage girls he met at a convention. The exchanges included explicit messages, video
chats of himself masturbating, and the transmission of nude or partially nude photos of
himself and the teenagers. Appellant raises no issues with regard to the charges related to
two of the teens who were under the age of 16 at the time, but asserts that since one of the
girls was over the age of 16 at the time, he should not have been convicted of any offense
based upon sexually explicit exchanges with her.

                                        Preemption

       Appellant first argues that the Government was preempted from charging an Article
134, Clause 2 offense in this case because Congress intended to limit prosecution for such
conduct in a complete way to Article 120b(c) or child pornography under Article 134. This
court reviews questions of statutory interpretation, including preemption, de novo. United
States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015); United States v. Benitez, 65 M.J. 827,
828 (A.F. Ct. Crim. App. 2007).

       The preemption doctrine “prohibits application of Article 134 to conduct covered
by Articles 80 through 132.” Manual for Courts-Martial, United States (MCM), pt. IV,
¶ 60.c.(5)(a). In United States v. Kick, 7 M.J. 82 (C.M.A. 1979), our superior court further
defined the preemption doctrine as the

              legal concept that where Congress has occupied the field of a
              given type of misconduct by addressing it in one of the specific
              punitive articles of the code, another offense may not be
              created and punished under Article 134, UCMJ, by simply
              deleting a vital element. However, simply because the offense
              charged under Article 134, UCMJ, embraces all but one
              element of an offense under another article does not trigger
              operation of the preemption doctrine. In addition, it must be
              shown that Congress intended the other punitive article to
              cover a class of offenses in a complete way.

Id. at 85 (citations omitted); see also United States v. Erickson, 61 M.J. 230 (C.A.A.F.
2005). Accordingly, the preemption doctrine only precludes prosecution under Article


                                             2                                    ACM 38848
134, UCMJ, where two elements are met: “(1) ‘Congress intended to limit prosecution for
. . . a particular area’ of misconduct ‘to offenses defined in specific articles of the Code,’
and (2) ‘the offense charged is composed of a residuum of elements of a specific offense.’”
United States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992) (quoting United States v.
McGuinness, 35 M.J. 149, 151–52 (C.M.A. 1992)) (omission in original); see also United
States v. Wright, 5 M.J. 106 (C.M.A. 1978).

       The Government argues this assignment of error was waived by Appellant’s pretrial
agreement. We disagree. The basis for the preemption doctrine is the principle that, if
Congress has occupied the field for a given type of misconduct, then an allegation under
Article 134, Clause 2, fails to state an offense. See United States v. Robbins, 52 M.J. 159,
160 (C.A.A.F. 1999). A claim of preemption therefore presents a question of subject-
matter jurisdiction of the trial court and thus cannot be waived by either a plea or failure to
object. See United States v. Jones, 66 M.J. 704, 706 (A.F. Ct. Crim. App. 2008). Although
Jones related only to an unconditional guilty plea, and not an agreement to waive all
waivable motions, we conclude the result is the same. A provision in a pretrial agreement
purporting to waive a challenge on the basis of lack of subject matter jurisdiction over the
offense is unenforceable. Rule for Courts-Martial (R.C.M.) 705(c)(1)(B).

       In this case, we need not delve into congressional intent because the offense alleged
did not consist of a residuum of another offense. During the providence inquiry, the
military judge defined the elements of Charge II, Specification 2, as follows:

              The elements of this offense are that at world wide locations
              on divers occasions between on or about 2 August 2013 and on
              or about 30 November 2013, you knowingly and wrongfully
              enticed [the victim], a female who had not attained the age of
              18 years, to engage in lewd acts for the purpose of producing a
              visual depiction of such conduct of a female who had not
              attained the age of 18 years for transmission via
              communication technology and two, that conduct was of a
              nature to bring discredit upon the Armed Forces.

Accordingly, while the lewd acts alleged concerning the two teenagers who had not
reached the age of 16 were similar to the conduct alleged in Charge II, Specification 2, the
allegation is based on a completely different theory of liability, enticement to engage in
lewd acts for the purpose of producing a visual depiction. We find the elements alleged
under this theory do not constitute a residuum of the elements of sexual abuse of a child
under Article 120b(c), UCMJ.

       Appellant also asserts that the preemption doctrine applies to the enumerated
offense of producing child pornography under Article 134, UCMJ. This argument relies
on a different premise than the argument that preemption applies to Articles 80 through


                                              3                                     ACM 38848
132, UCMJ. Both the Manual and Kick rely on an analysis of the power of the executive
branch to act “where Congress has occupied the field.” Kick, 7 M.J. at 85. By contrast,
the enumerated offense of child pornography was promulgated by the President.
Accordingly, the preemption doctrine as described in the Manual and Kick does not apply.

       Appellant’s argument is not without support in case law, however. In United States
v. Manos, our superior court observed that even in the context of Article 134 offenses, it
“would not permit the services to eliminate indiscriminately vital elements of recognized
offenses and ‘permit the remaining elements to be punished as an offense under Article
134.’” 25 C.M.R. 238, 240 (C.M.A. 1958) (quoting United States v. Norris, 8 C.M.R. 36,
39 (C.M.A. 1953)); see also United States v. Downard, 20 C.M.R. 254, 261 (C.M.A. 1955)
(dismissing a specification under Article 134, UCMJ, alleging negligent, rather than willful
or reckless, failure to maintain funds). We find that these cases are better understood as
cases addressing the mens rea requirement under criminal law, rather than an extension of
the preemption doctrine discussed in Norris and Kick. Since Charge II, Specification 2,
alleged a different theory of liability than production of child pornography, rather than just
a lesser mens rea, we do not find the reasoning in Manos and similar cases applicable here.

        Even if we found that the preemption doctrine applied to enumerated offenses under
Article 134, UCMJ, we would still conclude that Charge II, Specification 2, is not a
residuum of the enumerated offense of producing child pornography. The allegation in
this case focuses on the harm posed by those who entice minors to engage in illegal conduct
independent of the underlying offense. Federal law recognizes such enticement as a
distinct offense. Compare 18 U.S.C. §§ 2422, 2427, with 18 U.S.C. §§ 2251, 2252, 2252A.
Our superior court analyzed this distinction between enticement and the underlying offense
in United States v. Schell.

              The legislative history indicates that Congress intended
              [18 U.S.C. § 2422] “to address those who lure children out to
              actually engage in illegal sexual activity,” but also to more
              broadly “protect children and families from online harm.”
              There is nothing in the legislative history suggesting that an
              accused had to intend to actually engage in a sexual crime.

72 M.J. 339, 343–44 (C.A.A.F. 2013) (quoting United States v. Schell, 71 M.J. 574, 579
(Army Ct. Crim. App. 2012)) (citations omitted). We find that the element of enticement
in Charge II, Specification 2, distinguishes it from the enumerated offense of child
pornography under Article 134, UCMJ.

       Because Charge II, Specification 2, was not a residuum of any other offense, we
find that the preemption doctrine does not apply.




                                              4                                    ACM 38848
                        Constitutionally Protected Privacy Interest

        Appellant next argues that his plea to Charge II, Specification 2, was improvident
under Article 45, UCMJ, 10 U.S.C. § 845, as his conduct was constitutionally protected in
light of Lawrence v. Texas, 539 U.S. 558 (2003). A military judge must determine whether
an adequate basis in law and fact exists to support a guilty plea by establishing on the record
that the “acts or the omissions of the accused constitute the offense or offenses to which he
is pleading guilty.” United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969). Acceptance
of a guilty plea is reviewed for an abuse of discretion, and questions of law arising from
the plea are reviewed de novo. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008). Rejection of a guilty plea requires that the record show a substantial basis in law
and fact for questioning the providence of the plea. Inabinette, 66 M.J. at 322; United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).

       Appellant argues that his plea was improvident because his conduct was
constitutionally protected in that both he and the victim were “consenting adults.” This
argument raises two questions. First, it raises the issue whether the colloquy between
Appellant and the military judge “contain[ed] an appropriate discussion and
acknowledgment on the part of [Appellant] of the critical distinction between permissible
and prohibited behavior.” United States v. Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011).
Second, it presents the question whether the information elicited during the inquiry
demonstrated that the alleged conduct falls so squarely within a protected liberty interest
that accepting even a well-informed plea was an abuse of discretion.

       The Government argues that this assignment of error was also waived. We disagree.
While the pretrial agreement to waive all waivable motions may preclude review of the
substantive issue whether his conduct was constitutionally protected, it does not, as the
Government acknowledges, preclude our review of the providence of Appellant’s plea.
Under Article 45(a), UCMJ, if an appellant

              after a plea of guilty sets up matter inconsistent with the plea,
              or if it appears that he has entered the plea of guilty
              improvidently or through lack of understanding of its meaning
              and effect, or if he fails or refuses to plead, a plea of not guilty
              shall be entered in the record, and the court shall proceed as
              though he had pleaded not guilty.

Article 45, therefore establishes an obligation on the court, completely independent of an
accused’s earnest desire to plead guilty, to enter a plea of not guilty if the facts disclosed
during the inquiry demonstrate that the accused’s conduct was not criminal because it was




                                               5                                     ACM 38848
constitutionally protected. We review Appellant’s assignment of error in that context,
rather than substantive review of the underlying constitutional issue.*

       First, we find that the military judge performed a thorough inquiry as to Appellant’s
understanding of the difference between criminal and constitutionally protected conduct.
The military judge specifically addressed the issue of this particular victim’s age on the
record.

                 [Military Judge]: So, what I'm trying to get to, with regard to
                 this is you may have a defense with regard to one, this is
                 constitutionally protected behavior that I engaged with [the
                 victim]. She was over the age of 16, which for these purposes
                 means she’s not a minor. It was private. There was no force
                 or coercion. If that’s an accurate statement then the
                 government would have to show there are additional factors
                 relevant solely in the military environment in order to find you
                 guilty of that offense. Do you understand that?

                 [Appellant]: Yes, sir.

                 [Military Judge]: They have to prove to a panel beyond a
                 reasonable doubt that there [are] additional factors that warrant
                 finding you guilty for something that otherwise would be legal.
                 Does that make sense?

                 [Appellant]: Yes, sir.

The military judge went on to provide several examples to illustrate his point. He then
recessed the trial for over 30 minutes to ensure that Appellant had time to discuss this
particular matter with his counsel. While we can infer from his findings that the military
judge did not ultimately conclude that the conduct was constitutionally protected, his
colloquy certainly provided an adequate discussion and acknowledgement by the Appellant
that such an argument could be made.

        Second, we conclude that the military judge did not abuse his discretion by finding
that the conduct was not constitutionally protected, and therefore that Appellant’s plea was
provident in that regard. While the victim in Charge II, Specification 2, did not meet the
definition of “child” under Article 120b(c), UCMJ, that does not necessarily make her an
adult as that word is used in Lawrence. The 8th Circuit has specifically addressed the
applicability of Lawrence to conduct with minors over the age of consent.

*
  This is not a distinction without a difference. The remedies available should we address the underlying question
may include dismissal of the specification. The remedy for a failure to ensure a provident plea consists only of a
remand for a new proceeding.


                                                        6                                            ACM 38848
                    The liberty interest the Court recognized in Lawrence
             was for adults engaging in consensual sexual relations in
             private, but in this case [the appellant] engaged in sex with a
             minor and pressured him to pose nude for photographs, one of
             which was sent over the internet. We find no support in
             Lawrence to prevent [the appellant’s] prosecution under
             [18 U.S.C.] §§ 2251 and 2252. [The appellant’s] privacy
             argument also fails, for his activities related to child
             pornography are not protected by a constitutional right of
             privacy. See United States v. Vincent, 167 F.3d 428, 431 (8th
             Cir. 1999). As we pointed out in Vincent, “the Constitution
             offers less protection when sexually explicit material depicts
             minors rather than adults.” Id. [The appellant] has not shown
             that the conduct charged in counts 1, 4, and 7 was
             constitutionally protected.

United States v. Bach, 400 F.3d 622, 629 (8th Cir. 2005). We find the 8th Circuit’s
rationale convincing. Our superior court has also observed in dicta that conduct involving
minors or conduct involving transmission of contraband images over the Internet fall
outside the protection of Lawrence. See United States v. Goings, 72 M.J. 202, 206
(C.A.A.F. 2013). Although Appellant was charged under Article 134, UCMJ, and not
federal child pornography statutes, the privacy analysis is the same. We find that enticing
a minor, even one who has reached the age of consent, to engage in lewd conduct for the
purpose of producing a visual depiction of such conduct does not fall within the sphere of
constitutionally protected conduct under Lawrence, and Appellant’s plea was not
improvident on that basis.

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.




             FOR THE COURT


             LEAH M. CALAHAN
             Clerk of the Court



                                             7                                   ACM 38848
