U.S. v. Schell, 72 M.J. 339

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge abuses his discretion if he neglects or chooses not to resolve an inconsistency or reject the inconsistent or irregular pleading
2. if a military judge fails to explain the elements of an offense to an accused during a guilty plea inquiry, it is reversible error unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty

Military Justice Personnel: Military Judge: Discretion

1. if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge abuses his discretion if he neglects or chooses not to resolve an inconsistency or reject the inconsistent or irregular pleading

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. unlike some simple military offenses, attempt is a more complex, inchoate offense that includes two specific elements designed to distinguish it from mere preparation: (1) the intent to commit the substantive offense, and (2) taking a substantial step toward committing the substantive offense

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. the plain language of 18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, is unambiguous; nothing in the plain language of § 2422(b) indicates that an accused must intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity; because the terms “entice,” “induce,” and “persuade” in 18 USC § 2422(b) are not statutorily defined, they are accorded their ordinary meaning, and in ordinary usage, they are effectively synonymous - the idea conveyed is of one person leading or moving another by persuasion or influence, as to some action or state of mind; the legislative history indicates that Congress intended the statute 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
2. to establish an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the government must prove that an accused: (1) had the intent to commit the substantive offense; and (2) took a substantial step toward persuading, inducing, enticing or coercing a minor to engage in illegal sexual activity; the second element - the substantial step requirement - ensures that mere thought crimes are not prosecuted
3. 18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, does not require that the accused have the specific intent that the minor, ultimately, actually engage in illegal sexual activity as a result of his enticement; the intent required to support an attempt conviction under § 2422(b) is the intent to commit the predicate offense - that is, the intent to entice a minor for the purpose of engaging in illegal sexual activity
4. where appellant pleaded guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), he did not raise a matter inconsistent with his guilty in his unsworn statement during sentencing when he stated that he did not actually intend to engage in illegal sexual activity with the minor; because he admitted in a detailed stipulation of fact and during the plea colloquy that he intended to entice her to engage in illegal sexual activity, he had the requisite intent to support an attempt conviction under § 2422(b); the offense did not require that he have the specific intent to actually engage in illegal sexual activity with the minor – only the intent to entice the minor into engaging in illegal sexual activity
5. during a providence inquiry with an accused pleading guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the military judge erred in defining the elements of the offense because she failed to instruct the accused that he had to take a substantial step toward enticing a minor in order to plead guilty to an attempt under Article 134, UCMJ; additionally, neither the specification nor the stipulation of fact mentioned that a substantial step was an element of the Article 134, UCMJ, offense; although the accused was not entitled to receive a hornbook review of the distinction between mere preparation and a substantial step, the record had to objectively reflect that he understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense; that the accused admitted facts during his plea colloquy that were likely sufficient to prove that he took a substantial step towards enticing a minor did not answer the altogether different question whether he understood that a substantial step was necessary to make his conduct criminal; even though the accused agreed that the military judge correctly described his crime, and admitted that he took steps to attempt to entice the minor, the record did not demonstrate that the accused understood how the law related to the facts; as such, there was a substantial basis in law to question the providence of the plea

Trial Stages: Merits: Guilty Pleas

1. if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge abuses his discretion if he neglects or chooses not to resolve an inconsistency or reject the inconsistent or irregular pleading
2. where appellant pleaded guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), he did not raise a matter inconsistent with his guilty in his unsworn statement during sentencing when he stated that he did not actually intend to engage in illegal sexual activity with the minor; because he admitted in a detailed stipulation of fact and during the plea colloquy that he intended to entice her to engage in illegal sexual activity, he had the requisite intent to support an attempt conviction under § 2422(b); the offense did not require that he have the specific intent to actually engage in illegal sexual activity with the minor – only the intent to entice the minor into engaging in illegal sexual activity
3. if a military judge fails to explain the elements of an offense to an accused during a guilty plea inquiry, it is reversible error unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty
4. during a providence inquiry with an accused pleading guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the military judge erred in defining the elements of the offense because she failed to instruct the accused that he had to take a substantial step toward enticing a minor in order to plead guilty to an attempt under Article 134, UCMJ; additionally, neither the specification nor the stipulation of fact mentioned that a substantial step was an element of the Article 134, UCMJ, offense; although the accused was not entitled to receive a hornbook review of the distinction between mere preparation and a substantial step, the record had to objectively reflect that he understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense; that the accused admitted facts during his plea colloquy that were likely sufficient to prove that he took a substantial step towards enticing a minor did not answer the altogether different question whether he understood that a substantial step was necessary to make his conduct criminal; even though the accused agreed that the military judge correctly described his crime, and admitted that he took steps to attempt to entice the minor, the record did not demonstrate that the accused understood how the law related to the facts; as such, there was a substantial basis in law to question the providence of the plea

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews questions of law arising from a guilty plea de novo
2. a military judge’s acceptance of an accused’s guilty plea is reviewed by an appellate court for an abuse of discretion; the test for an abuse of discretion is whether the record shows a substantial basis in law or fact for questioning the plea; for an appellate court to find a plea of guilty to be knowing and voluntary, the record of trial must reflect that the elements of each offense charged have been explained to the accused by the military judge; if the military judge fails to explain the elements to an accused, it is reversible error unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty; rather than focusing on a technical listing of the elements of an offense, an appellate court looks at the context of the entire record to determine whether an accused is aware of the elements, either explicitly or inferentially

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. unless the text of a statute is ambiguous, the plain language of a statute will control unless it leads to an absurd result

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. unless the text of a statute is ambiguous, the plain language of a statute will control unless it leads to an absurd result
2. the plain language of 18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, is unambiguous; nothing in the plain language of § 2422(b) indicates that an accused must intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity; because the terms “entice,” “induce,” and “persuade” in 18 USC § 2422(b) are not statutorily defined, they are accorded their ordinary meaning, and in ordinary usage, they are effectively synonymous - the idea conveyed is of one person leading or moving another by persuasion or influence, as to some action or state of mind; the legislative history indicates that Congress intended the statute 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
3. to establish an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the government must prove that an accused: (1) had the intent to commit the substantive offense; and (2) took a substantial step toward persuading, inducing, enticing or coercing a minor to engage in illegal sexual activity; this second element - the substantial step requirement - ensures that mere thought crimes are not prosecuted
4. 18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, does not require that the accused have the specific intent that the minor, ultimately, actually engage in illegal sexual activity as a result of his enticement; the intent required to support an attempt conviction under § 2422(b) is the intent to commit the predicate offense - that is, the intent to entice a minor for the purpose of engaging in illegal sexual activity
5. where appellant pleaded guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), he did not raise a matter inconsistent with his guilty in his unsworn statement during sentencing when he stated that he did not actually intend to engage in illegal sexual activity with the minor; because he admitted in a detailed stipulation of fact and during the plea colloquy that he intended to entice her to engage in illegal sexual activity, he had the requisite intent to support an attempt conviction under § 2422(b); the offense did not require that he have the specific intent to actually engage in illegal sexual activity with the minor – only the intent to entice the minor into engaging in illegal sexual activity
6. during a providence inquiry with an accused pleading guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the military judge erred in defining the elements of the offense because she failed to instruct the accused that he had to take a substantial step toward enticing a minor in order to plead guilty to an attempt under Article 134, UCMJ; additionally, neither the specification nor the stipulation of fact mentioned that a substantial step was an element of the Article 134, UCMJ, offense; although the accused was not entitled to receive a hornbook review of the distinction between mere preparation and a substantial step, the record had to objectively reflect that he understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense; that the accused admitted facts during his plea colloquy that were likely sufficient to prove that he took a substantial step towards enticing a minor did not answer the altogether different question whether he understood that a substantial step was necessary to make his conduct criminal; even though the accused agreed that the military judge correctly described his crime, and admitted that he took steps to attempt to persuade the minor, the record did not demonstrate that the accused understood how the law related to the facts; as such, there was a substantial basis in law to question the providence of the plea