                      UNITED STATES, Appellee

                                      v.

                  Phillip L. PIERCE, Specialist
                       U.S. Army, Appellant

                     Nos. 11-0239 and 11-5004

                      Crim. App. No. 20080009

    United States Court of Appeals for the Armed Forces

                      Argued October 12, 2011

                     Decided December 8, 2011

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

                                  Counsel

For Appellant: Captain Kristin B. McGrory (argued);
Lieutenant Colonel Imogene M. Jamison and Major Jacob D.
Bashore (on brief); Colonel Mark Tellitocci, Lieutenant
Colonel Peter Kageleiry Jr., and Lieutenant Colonel
Jonathan F. Potter.

For Appellee: Captain Frank E. Kostik Jr. (argued);
Colonel Michael E. Mulligan, Major LaJohnne A. White, and
Major Amber J. Williams (on brief); Captain Benjamin M.
Owens-Filice.

Military Judge:    Michele B. Shields




         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Pierce, 11-0239/AR & 11-5004/AR


     Judge RYAN delivered the opinion of the Court.

     Appellant was convicted by a general court-martial

composed of officer and enlisted members of a charged

violation of Article 80, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 880 (2006), and two specifications

thereunder (one specification of attempting to commit an

indecent act with a minor and one specification of

attempting to communicate indecent language to a minor),

and a charged violation of Article 134, UCMJ, 10 U.S.C.

§ 934 (2006), and one specification thereunder (using the

Internet to attempt to entice a minor to engage in sexual

activity, in violation of 18 U.S.C. § 2422 (2006)).   The

panel sentenced Appellant to a bad-conduct discharge,

confinement for fifteen months, forfeiture of all pay and

allowances, and reduction to E-1.   The convening authority

approved the sentence except for the forfeiture of all pay

and allowances.   The convening authority also granted

Appellant twenty days of confinement credit.

     The United States Army Court of Criminal Appeals

(ACCA) affirmed the finding of guilty as to Charge I and

its specifications and to the specification of Charge II,

except to the words “in violation of Title 18, United

States Code, Section 2422.”   United States v. Pierce, No.

ARMY 20080009, slip op. at 11 (A. Ct. Crim. App. Nov. 8,


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United States v. Pierce, 11-0239/AR & 11-5004/AR


2010).   We granted Appellant’s petition under Article 67,

UCMJ, 10 U.S.C. § 867 (2006).1

     The dispositive issues in this case are whether the

military judge or the members should determine whether the

“[I]nternet” constitutes “any facility or means of

interstate . . . commerce,” an element of 18 U.S.C.

§ 2422(b), and, relatedly, whether use of the word

“[I]nternet” in the member instructions satisfied the

requirement that the attempted enticement of a minor, a

1
  On May 23, 2011, we granted Appellant’s petition on the
following issue:

     I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS
     INCORRECTLY FOUND THAT THE MILITARY JUDGE’S FAILURE TO
     INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS
     HARMLESS BEYOND A REASONABLE DOUBT.

We also specified the following issue:

     II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
     AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY
     JUDGE’S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH
     INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY
     FACILITY OR MEANS OF INTERSTATE COMMERCE” WAS NOT
     HARMLESS BEYOND A REASONABLE DOUBT.

On June 14, 2011, the Judge Advocate General of the Army
certified an additional issue to this Court:

     III. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
     AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY
     JUDGE’S INSTRUCTION ON 18 U.S.C. § 2422(B), WHICH
     INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY
     FACILITY OR MEANS OF INTERSTATE OR FOREIGN COMMERCE,”
     WAS ERRONEOUS.




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United States v. Pierce, 11-0239/AR & 11-5004/AR


violation of § 2422, was accomplished via “any facility or

means of interstate . . . commerce,” an element of 18

U.S.C. § 2422(b).   See Rule for Courts-Martial (R.C.M.)

307(c)(3) (“A specification is sufficient if it alleges

every element of the charged offense expressly or by

necessary implication.”); see also United States v. Glover,

50 M.J. 476, 478 (C.A.A.F. 1999) (“A military judge is

required to instruct the members on the elements of each

charged offense.”).   The question whether the language “any

facility or means of interstate . . . commerce” encompasses

the Internet is one of statutory interpretation, a question

of law that the military judge considered, and that we

answer in the affirmative.   See United States v. Giordano,

442 F.3d 30, 39-41 (2d Cir. 2006); United States v. Marek,

238 F.3d 310, 315-16 (5th Cir. 2001); Dupuy v. Dupuy, 511

F.2d 641, 642 (5th Cir. 1975).      The question whether the

Internet was used to commit the attempted enticement of a

minor in this case is one of fact, and was presented as

such to the members in the instructions for Charge II and

the specification thereunder.       Thus, contrary to the ACCA’s

holding, there was no error with respect to the

instructions on the Article 134, UCMJ, clause 3 offense.




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United States v. Pierce, 11-0239/AR & 11-5004/AR


                      I.   FACTUAL BACKGROUND

        From October 25, 2006, to December 18, 2006, Appellant

engaged in sexually explicit online conversations with an

individual he believed to be a thirteen-year-old girl,

“Anastasia.”    In fact, he was conversing with a Naval

Criminal Investigative Service agent, Special Agent

Lepovetsky.    Appellant arranged a meeting between himself,

“Anastasia,” and her thirteen-year-old friend.     On December

18, 2006, when he arrived at the rendezvous location,

Special Agent Lepovetsky arrested him.

        As relevant to the issue in this case, Appellant was

charged with, inter alia, attempted enticement of a minor

to engage in sexual activity in violation of Article 134,

UCMJ.    The specification stated:

        In that Specialist (E-4) Phillip Lynn Pierce,
        U.S. Army, did, at or near Fort Lewis,
        Washington, on divers occasions, between on or
        about 25 October 2006 and on or about 18 December
        2006, via the [I]nternet, wrongfully and
        knowingly attempt to persuade, induce, entice, or
        coerce “Anastasia,” someone he thought was a
        female 13 years of age, who was, in fact, Rachel
        Lepovetsky, a Naval Criminal Investigative
        Service undercover special agent, to engage in
        sexual activity in violation of Title 18, United
        States Code, Section 2422, which conduct was
        prejudicial to good order and discipline or
        likely to bring discredit upon the armed forces.

        Prior to trial, the military judge ordered the parties

to address the following issue:      “In light of United States



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United States v. Pierce, 11-0239/AR & 11-5004/AR


v. Leonard, 64 M.J. 381 (2007), is it necessary to allege

an interstate or foreign commerce element to state an

offense when assimilating a federal crime?”   Counsel

briefed the issue and presented argument in an Article

39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session.

Implicitly answering her question in the affirmative, the

military judge ruled that the specification “necessarily

implie[d]” all elements of § 2422 and that it only alleged

“an offense under Article 134, Clause 3, UCMJ.”

     At trial, Special Agent Lepovetsky testified that,

during the time period in question, “Anastasia” and

Appellant engaged in sexually explicit online “chats” in a

private “Yahoo!” chat room.   The Government also introduced

records of chat logs from Yahoo! corroborating the agent’s

testimony that these communications took place via the

Internet, as well as a sworn statement by Appellant

admitting to his participation in these online chats.

While Appellant engaged in these chats with Agent

Lepovetsky from Washington, the Yahoo! server is located in

California.

     The military judge provided the following instructions

to the members on the attempted enticement specification:

     In the specification of Charge II, the accused is
     charged with the offense of use of the [I]nternet
     to solicit illicit sex which is a violation of


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United States v. Pierce, 11-0239/AR & 11-5004/AR


     federal law that has been assimilated under
     Article 134, UCMJ. In order to find the accused
     guilty of this offense, you must be convinced by
     legal and competent evidence beyond reasonable
     doubt:

     One, that between on or about 25 October 2006 and
     on or about 18 December 2006, on divers
     occasions, that accused knowingly used the
     [I]nternet to attempt to persuade, induce, entice
     or coerce “Anastasia,” an individual under the
     age of 18 to engage in sexual activity, as
     charged;

     Two, that the accused believed that such
     individual, “Anastasia,” was less than 18 years
     of age;

     Three, that if the sexual activity had occurred,
     the accused could have been charged with a
     criminal offense under Article 125 or Article 134
     of the Uniform Code of Military Justice; and

     Four, that the accused acted knowingly and
     willfully.

Appellant did not object to the military judge’s

instructions.

     The ACCA nonetheless held that the military judge

erred when she failed to include the language “any facility

or means of interstate or foreign commerce,” in her

instructions to the panel:   “[T]he interstate commerce

element was, in fact, omitted, rather than misphrased.    The

panel was never told, in any manner, that they must find

the [I]nternet is a means or facility of interstate

commerce in order for appellant to be guilty of the offense

alleged . . . .”   Pierce, No. ARMY 20080009, slip op. at 6.


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United States v. Pierce, 11-0239/AR & 11-5004/AR


The ACCA further held that this error was not harmless

beyond a reasonable doubt under Neder v. United States, 527

U.S. 1 (1999), because (1) the issue was not actually

litigated, and (2) the Government failed to present any

evidence that the Internet satisfies the jurisdictional

element.2   Id. at 8.

                        II.   DISCUSSION

     Clause 3 offenses under Article 134, UCMJ, “involve

noncapital crimes or offenses which violate Federal law.”

Manual for Courts-Martial, United States pt. IV, para.

60.c.(1) (2008 ed.) (MCM).    “When alleging a clause 3

violation, each element of the federal . . . statute must

be alleged expressly or by necessary implication.”     MCM pt.

IV, para. 60.c(6)(b).   Moreover, members must be instructed

on all elements of an offense.      Article 51(c), UCMJ, 10

U.S.C. § 851(c) (2006); R.C.M. 920(e)(1).     “Military judges

have ‘substantial discretionary power in deciding on the

instructions to give.’”   United States v. McDonald, 57 M.J.


2
  The ACCA went on to affirm the specification under the
first two clauses of Article 134, UCMJ, although the
instructions did not include the terminal element of either
clause. Pierce, No. ARMY 20080009, slip op. at 9. We
vacate that portion of the decision and remand for a
factual sufficiency review because: (1) the military judge
made clear that the specification presented a clause 3
offense; and (2) we resolve the case based on the error
related to the ACCA’s analysis of the instruction on
clause 3.

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United States v. Pierce, 11-0239/AR & 11-5004/AR


18, 20 (C.A.A.F. 2002) (quoting United States v. Damatta-

Olivera, 37 M.J. 474, 478 (C.M.A. 1993), cert. denied, 512

U.S. 1244 (1994)).   Whether a specification alleges all

elements of an offense and whether instructions were proper

are questions of law, which we review de novo.     See United

States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (“Whether

a panel was properly instructed is a question of law

reviewed de novo.”); United States v. Crafter, 64 M.J. 209,

211 (C.A.A.F. 2006) (“The question of whether a

specification states an offense is a question of law, which

this Court reviews de novo.”); see also United States v.

Alston, 69 M.J. 214, 215-17 (C.A.A.F. 2010) (applying

principles of statutory construction to determine whether a

military judge’s lesser included offense instruction was

proper).

     The federal law Appellant was alleged to have violated

in this case is § 2422(b).   In order to be guilty of that

offense, an accused must use, inter alia, “any facility or

means of interstate . . . commerce” to knowingly entice a

minor.   18 U.S.C. § 2422(b).   This element recognizes that

regulating activity under the Commerce Clause provides a

means for Congress to create federal crimes.   See United

States v. Lopez, 514 U.S. 549, 558-59 (1995) (holding that

Congress may regulate the use of “channels” and


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United States v. Pierce, 11-0239/AR & 11-5004/AR

“instrumentalities” of interstate commerce pursuant to its

Commerce Clause power).   While the constitutionality of 18

U.S.C. § 2422 is not before us, it is nonetheless important

to note here that, contrary to the ACCA’s assumption, the

question whether an activity constitutes a facility or

means of interstate commerce is a question of law.   See

Giordano, 442 F.3d at 39-41 (finding, as a matter of

statutory interpretation, that intrastate telephone use

constitutes the use of a facility or means of interstate

commerce under 18 U.S.C. § 2425 (2006)); Marek, 238 F.3d at

315-16 (using statutory construction to determine whether

use of an interstate commerce facility in an intrastate

fashion meets the jurisdictional language of the federal

murder-for-hire statute); Dupuy, 511 F.2d at 642 (“This

appeal presents a narrow question of law -- Does the making

of intrastate telephone calls satisfy the jurisdictional

requirement of ‘use of any means or instrumentality of

interstate commerce’ [in the Securities Exchange Act of

1934] . . . .”).

     With respect to the chapter under which the offense at

issue is found, “any facility or means of interstate . . .

commerce” is not defined.   18 U.S.C. § 2422(b).

Determining whether that phrase includes “[I]nternet” is an

exercise in statutory interpretation.   See Giordano, 442


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United States v. Pierce, 11-0239/AR & 11-5004/AR

F.3d at 39-41; Marek, 238 F.3d at 315-16.     This is a

question of law, to be answered by the military judge -- as

the military judge in this case recognized when she

concluded that the specification alleged all elements of

the § 2422(b) offense.   There is no support for the

proposition that it is within the province of the members

to either interpret statutory language or to traverse

Commerce Clause jurisprudence, as would be necessary to

determine whether the Internet was a constitutionally

sufficient “facility or means of interstate . . .

commerce.”

     Simply put, we agree with the military judge that the

use of “[I]nternet,” in place of “any facility or means of

interstate . . . commerce,” was sufficient.    Every court to

address the issue agrees with the unremarkable proposition

that the Internet is a means of interstate commerce,

deciding the question as one of law, albeit at the

appellate level.   See, e.g., United States v. Barlow, 568

F.3d 215, 220 (5th Cir. 2009) (“[I]t is beyond debate that

the Internet and email are facilities or means of

interstate commerce.”); United States v. Tykarsky, 446 F.3d

458, 470 (3d Cir. 2006) (“[T]he ‘facility of interstate

commerce’ involved in this case -- the Internet -- is both

‘an instrumentality and channel of interstate commerce.’”


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United States v. Pierce, 11-0239/AR & 11-5004/AR

(quoting United States v. MacEwan, 445 F.3d 237, 245 (3d

Cir. 2006))); United States v. Hornaday, 392 F.3d 1306,

1311 (11th Cir. 2004) (“Congress clearly has the power to

regulate the [I]nternet, as it does other instrumentalities

and channels of interstate commerce, and to prohibit its

use for harmful or immoral purposes regardless of whether

those purposes would have a primarily intrastate impact.”).

     Answering this point of law -- that the Internet is

encompassed within “facility or means of interstate . . .

commerce” -- does not remove the separate and distinct

question of fact –- whether the accused used the facility

or means alleged -- from the trier of fact.   See United

States v. Gaudin, 515 U.S. 506, 513 (1995) (explaining that

the judge must instruct the jury on the law and juries must

decide questions of fact and apply the law to the facts to

reach a verdict); see also 3 Leonard B. Sand et al., Modern

Federal Jury Instructions -- Criminal, Inst. 64-12 (2011)

(instructing that the Internet is a means of interstate

commerce, but requiring the jury to decide the factual

question whether the Internet was used).   The members in

this case were instructed that they must find that the

“accused knowingly used the [I]nternet” to attempt to

entice a minor.   There was no error in this instruction,

and the evidence on this point is legally sufficient.


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United States v. Pierce, 11-0239/AR & 11-5004/AR

                       III.   DECISION

     The certified question is answered in the affirmative.

The decision of the United States Army Court of Criminal

Appeals, finding prejudicial error in the instructions of

the military judge, is reversed.   Given our conclusion that

the military judge’s instructions were proper under clause

3 of Article 134, UCMJ, the case is remanded to the Court

of Criminal Appeals to fulfill its statutory

responsibilities under Article 66, UCMJ, 10 U.S.C. § 866

(2006), to conduct a factual sufficiency review of the

Article 134, UCMJ, clause 3 finding.




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