United States v. Pierce ( 2011 )

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,
2
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.
4
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.
2The 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.
8
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
9
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
10
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.’”
11
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.
12
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.
13