United States v. Schell ( 2013 )

UNITED STATES, Appellant/Cross-Appellee
v.
Nicholas R. SCHELL, Sergeant
U.S. Army, Appellee/Cross-Appellant
No. 13-5001
Crim. App. No. 20110264
United States Court of Appeals for the Armed Forces
Argued April 15, 2013
Decided July 8, 2013
STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and RYAN, JJ., and EFFRON, S.J., joined.
Counsel
For Appellant/Cross-Appellee: Major Daniel D. Maurer (argued);
Lieutenant Colonel Amber J. Roach, Major Katherine S. Gowel, and
Captain Chad M. Fisher (on brief).
For Appellee/Cross-Appellant: Captain Brandon H. Iriye
(argued); Colonel Patricia A. Ham, Lieutenant Colonel Imogene M.
Jamison, and Major Jaired D. Stallard (on brief); Lieutenant
Colonel Jonathan F. Potter.
Military Judge: Susan K. Arnold
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Schell, No. 13-5001/AR
Judge STUCKY delivered the opinion of the Court.
The Judge Advocate General of the Army certified two issues
to this Court: (1) whether the United States Army Court of
Criminal Appeals (CCA) erred in holding that attempted
persuasion, inducement, or enticement of a minor to engage in
sexual activity under 18 U.S.C. § 2422(b) (2006), requires that
an accused “must intend that the minor, ultimately, actually
engage in illegal sexual activity as a result of his persuasion,
inducement, or enticement”; and (2) whether the accused’s
unsworn statement during sentencing that he “never intended to
do anything” with the minor was inconsistent with his guilty
plea. We also granted review of a related plea issue -- whether
the accused’s plea was improvident because the military judge
failed to discuss that an attempt under § 2422(b) requires a
substantial step toward the commission of the underlying
substantive offense.
We hold that the CCA erred in interpreting the intent
requirement of § 2422(b), and that the accused’s unsworn
statement was therefore consistent with his guilty plea.
However, we hold that the military judge’s failure to discuss
the substantial step requirement with the accused provides a
substantial basis in law to question his plea.
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I. Procedural History
Consistent with his pleas, Appellee/Cross-Appellant
(Schell) was convicted by a military judge sitting alone as a
general court-martial of one specification each of attempted
indecent language and attempted indecent acts in violation of
Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 880 (2006). He also pled guilty to and was convicted of one
specification of attempted persuasion, inducement, or enticement
of a minor to engage in sexual activity under § 2422(b),
pursuant to clause 3 of Article 134, UCMJ, 10 U.S.C. § 934(2006). The military judge sentenced him to a bad-conduct
discharge, eighteen months of confinement, forfeiture of all pay
and allowances, and reduction to the lowest enlisted grade.
Pursuant to a pretrial agreement, the convening authority
reduced confinement to thirteen months but otherwise approved
the findings and sentence. The CCA set aside the findings of
guilty as to the § 2422(b) offense (Charge II and its
specification), and authorized a rehearing on Charge II and the
sentence, or a rehearing only on the sentence. United States v.
Schell, 71 M.J. 574, 582–83 (A. Ct. Crim. App. 2012) (en banc).
II. Background
A. Facts
In March 2010 Schell engaged in graphic Internet chats with
“Taylor” -- an individual Schell believed to be a fourteen-year-
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old girl, but who was actually a Johnson County, Kansas, police
detective. During the chats Schell asked “Taylor” about her
sexual history, discussed sexual intercourse with her, described
what he wanted to do with her sexually, asked if she would
participate in sexual activity with his girlfriend and him, and
suggested that her friends might also want to join in the sexual
activity. In order to entice “Taylor” to engage in sexual
activity with his girlfriend and him, Schell described his
girlfriend’s physical attributes and sexual tendencies. He also
sent “Taylor” photos of his erect penis hoping that she would
send him graphic photos in return.
After assurances from “Taylor” that they would not get in
trouble, Schell set up a time and place to meet with her for the
purpose of engaging in sexual activity. Schell later cancelled
the planned meeting, citing timing issues and his worry that his
girlfriend would get mad. He told “Taylor” “not tonight maybe
another day.” Although police waited several months for Schell
to reinitiate contact with “Taylor,” he never did.
B. Court-Martial
The Government charged the offense as follows:
Charge II: Violation of the UCMJ, Article 134
SPECIFICATION: In that [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 “Taylor
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United States v. Schell, No. 13-5001/AR
Ackles,” a person [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.
At the plea inquiry, the military judge began by explaining the
elements of the two Article 80, UCMJ, specifications. First,
the military judge defined the elements of indecent language,
and informed Schell that in order to commit the offense of
attempted indecent language under Article 80, UCMJ, his conduct
would have to amount to more than mere preparation -- that he
would have had to take a substantial step toward the commission
of the intended offense. The military judge defined
“preparation” and “substantial step.” The military judge then
turned to the attempted indecent acts specification and
described the elements of the offense. The military judge
defined “preparation” again, but Schell declined the military
judge’s offer to repeat the definition of “substantial step” for
this offense.
For the Article 134, UCMJ, enticement charge, the military
judge listed the elements as: (1) “[Schell] knowingly attempted
to persuade, induce, or entice” “Taylor” believing that she was
under eighteen years of age; (2) “which if undertaken would
constitute a criminal offense under Article 120 of the Uniform
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United States v. Schell, No. 13-5001/AR
Code of Military Justice” and § 2422(b); (3) “by means of or a
facility of interstate commerce, in this case the internet”; and
(4) which under the circumstances “was of a nature to bring
discredit upon the armed forces.” The military judge did not
inform Schell that in order to constitute an attempt under
§ 2422(b), he would have had to take a substantial step toward
the commission of the underlying offense. Both parties
indicated that they had no issues with the elements or
definitions given by the military judge.
Schell stated he was guilty of the enticement offense
because the messages and photos were “steps” to persuade
“Taylor” to engage in sexual acts with him and possibly other
individuals. He agreed that the Internet is a means of
interstate commerce, and admitted that his conduct would have
constituted an offense under Article 120, UCMJ, if “Taylor” had
been a fourteen-year-old girl and he had engaged in sexual
activity with her. He also agreed that his conduct violated
§ 2422(b). Finally, he agreed that his conduct was service
discrediting because it would harm the reputation of the
military. Neither side believed any further inquiry into
Schell’s conduct was required. The military judge found Schell
guilty of all three specifications.
During sentencing, defense counsel pointed out that Schell
never left Fort Leavenworth to meet “Taylor,” and that Schell
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United States v. Schell, No. 13-5001/AR
never actually intended to meet with “Taylor” or initiated
contact with her after he told her he was not coming to her
house. In his unsworn statement, Schell echoed that he never
actually intended to act on their discussions. Based upon
Schell and defense counsel’s sentencing arguments, the military
judge said it was probably “prudent” to ensure that Schell and
his counsel understood that the enticement offense was complete,
even if Schell did not leave Fort Leavenworth to meet with
“Taylor.” Schell’s counsel agreed that the offense was complete
-- “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 the
offense.” The Government and Schell agreed.
C. CCA Opinion
The CCA specified three issues, including whether Schell
raised a matter inconsistent with his plea during his unsworn
statement. Schell, 71 M.J. at 575. Schell also filed a
supplemental assignment of error asserting that the military
judge failed to sufficiently discuss the substantial step
requirement for the enticement offense. Id.
A divided court, en banc, set aside the enticement offense,
holding “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
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United States v. Schell, No. 13-5001/AR
in illegal sexual activity.” Id. at 578–79. In reaching this
holding, the majority heavily relied on the legislative history
of § 2422(b) reasoning that the statute was intended to address
individuals “who lure children out to actually engage in illegal
sexual activity” as opposed to those “who simply encourage or
incite children to assent to the possibility of illegal sex.”
Id. at 579. The majority concluded “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.” Id. The
majority did not reach the substantial step providency issue.
The dissenting judges argued that the majority’s reasoning
was contrary to the plain language of the statute, and proposed
adopting the federal circuits’ approach to interpreting
§ 2422(b) -- “[we] ‘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.’” Id. at 583–84 (Haight, J., joined by
Ayres, C.J., Cook, S.J., and Gallagher, J., dissenting) (quoting
United States v. Dwinells, 508 F.3d 63, 65 (1st Cir. 2007)).
They also argued that this Court’s precedent supported their
interpretation. Id. at 584–85 (citing United States v. Brooks,
60 M.J. 495, 498 (C.A.A.F. 2005); United States v. Winckelmann,
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United States v. Schell, No. 13-5001/AR
70 M.J. 403, 407 n.4 (C.A.A.F. 2011); United States v. Garner,
67 M.J. 734, 738 (N-M. Ct. Crim. App. 2009), aff’d, 69 M.J. 31(C.A.A.F. 2010)). Under their interpretation of the intent
requirement, the dissenting judges believed that the conviction
should stand because Schell admitted intending to entice
“Taylor,” and his unsworn statement only contradicted whether he
intended to actually engage in sex with her, not whether he
intended to entice her. Id. at 585.
III. Certified Issue I
A. The Law
This Court reviews questions of law arising from a guilty
plea de novo. United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008).
18 U.S.C. § 2422(b) reads:
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.
Unless the text of a statute is ambiguous, “the plain
language of a statute will control unless it leads to an absurd
result.” United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012);
see also United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F.
9
United States v. Schell, No. 13-5001/AR
2003) (“In construing the language of a statute or rule, it is
generally understood that the words should be given their common
and approved usage.” (citation and internal quotation marks
omitted)).
B. Parties’ Arguments
The Government argues that § 2422(b) is unambiguous and
therefore the CCA incorrectly relied on legislative history to
interpret the statute. It also argues that the CCA opinion is
inconsistent with this Court’s precedent, and contradicts well-
settled uniformity among the federal circuits.
Schell’s arguments mirror the CCA opinion. First, he
argues the plain language of the statute requires that an
accused must have a specific intent to have the minor actually
engage in illegal sexual activity.
Second, he argues that the legislative history of § 2422(b)
supports the CCA’s interpretation. In drafting § 2422(b)
Congress contemplated, but decided against, prohibiting contact
or attempts to contact minors via the Internet for the purposes
of engaging in sexual activity -- the “contact amendment.” H.R.
Rep. No. 105–557, at 687 (1998). Schell argues Congress
rejected the contact amendment because it would have essentially
created a thought crime. Schell equates the Government’s
interpretation of § 2422(b) with the failed contact amendment
10
United States v. Schell, No. 13-5001/AR
and urges this Court to follow Congress’s lead and reject the
Government’s interpretation.
Third, Schell believes that the CCA’s opinion is not
inconsistent with this Court’s Winckelmann, Brooks, and Garner
opinions because those opinions did not explicitly address
§ 2422(b)’s intent requirement.
Finally, Schell downplays the uniformity of the federal
circuits on this issue. He argues that the law encompassing the
intent requirement continues to evolve in the federal circuits,
and points out that at least one federal circuit has recently
adopted the same intent requirement as the CCA. See United
States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir. 2012) (“the
Government [must] prove beyond a reasonable doubt that Lebowitz
intended to engage in criminal sexual activity with [a minor]”).
C. Analysis
As a threshold matter, we believe that the plain language
of § 2422(b) is unambiguous. 1 Contrary to the CCA’s holding,
1
The terms “entice,” “induce,” and “persuade” are not
statutorily defined. Therefore we accord them their ordinary
meaning. United States v. Falk, 50 M.J. 385, 390 (C.A.A.F.
1999). 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.’” United States v. Engle, 676 F.3d 405, 411 n.3 (4th Cir.
2012) (alteration in original) (quoting United States v.
Broxmeyer, 616 F.3d 120, 125 (2d Cir. 2010)); see also Black’s
Law Dictionary 611, 845, 1260 (9th ed. 2009) (defining “entice”
as “[t]o lure or induce; esp., to wrongfully solicit (a person)
to do something”; “inducement” as “[t]he act or process of
11
United States v. Schell, No. 13-5001/AR
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.” Compare
Schell 71 M.J. at 578–79 (emphasis added), with 18 U.S.C.
§ 2422(b) (2006).
Even if we were to view § 2422(b) as ambiguous, Schell’s
characterization of the legislative history is unpersuasive.
The legislative history indicates that Congress intended the
statute “to address those who lure children out to actually
engage in illegal sexual activity,” Schell, 71 M.J. at 579, but
also to more broadly “protect children and families from online
harm.” H.R. Rep. No. 104-458 (1996); H.R. Rep. No. 104-652, §
508, at 1130 (1996) (Conf. Rep.). There is nothing in the
legislative history suggesting that an accused had to intend to
actually engage in a sexual crime. H.R. Rep. No. 104-652, §
508, at 1130 (“Section 508 would amend [§ 2422(b)] to prohibit
the use of a facility of interstate commerce . . . for the
purpose of luring, enticing or coercing a minor into
prostitution or a sexual crime for which a person could be held
criminally liable, or attempt to do so.”).
Furthermore, we do not find Schell’s reliance on the failed
contact amendment compelling. See United States v. Craft, 535
enticing or persuading another person to take a certain course
of action”; and “persuade” as “induc[ing] (another) to do
something”).
12
United States v. Schell, No. 13-5001/AR
U.S. 274, 287 (2002) (“Failed legislative proposals are ‘a
particularly dangerous ground on which to rest an interpretation
of a prior statute.’” (citation omitted)). To establish an
attempt under § 2422(b), we have held that 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. Brooks, 60 M.J. at 498–99;
Winckelmann, 70 M.J. at 407; see also Manual for Courts-Martial,
United States (MCM) pt. IV, paras. 4.a.(a), 4.c.(1) (2008 ed.). 2
This second element -- the substantial step requirement --
ensures that mere thought crimes are not prosecuted.
Schell is correct that this Court has not directly
addressed the intent requirement of § 2422(b). However, the
opinions in Winckelmann, Brooks, and Garner support the
Government’s interpretation of § 2422(b). See Winckelmann, 70
M.J. at 407 n.4 (addressing what constitutes a substantial step
under § 2422(b) and noting that “the military judge incorrectly
instructed the members that the substantial step must be toward
2
Other federal circuits require the same for an attempt under §
2422(b). See, e.g., United States v. Murrell, 368 F.3d 1283,
1286 (11th Cir. 2004) (“[T]he government need only prove (1)
that the defendant had the specific intent to engage in the
criminal conduct for which he is charged and (2) that he took a
substantial step toward commission of the offense.”); United
States v. Young, 613 F.3d 735, 742 (8th Cir. 2010); United
States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009); United
States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006).
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actually engaging in sexual activity rather than a substantial
step towards enticement alone”); Brooks, 60 M.J. at 498 (citing
federal circuit precedent indicating “that a conviction under
§ 2422(b) does not require a defendant to attempt an actual
sexual act”); Garner, 67 M.J. at 738 (“an accused need not
intend that the underlying sexual activity actually take place
but only that the accused intend[ed] to persuade a minor to
engage in such activity), aff’d, 69 M.J. 31, 33 (C.A.A.F. 2010)
(affirming a § 2422(b) conviction on the grounds that the record
contained the required guilty plea admissions by the accused).
Additionally, although not binding on this Court, nearly
every federal circuit disagrees with the CCA’s interpretation of
§ 2422(b)’s intent requirement. See, e.g., United States v.
Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v.
Douglas, 626 F.3d 161, 164 (2d Cir. 2010); United States v.
Nestor, 574 F.3d. 159, 161–62 (3d Cir. 2009); United States v.
Engle, 676 F.3d 405, 419 (4th Cir. 2012); United States v.
Broussard, 669 F.3d 537, 548 (5th Cir. 2012); United States v.
Hart, 635 F.3d 850, 854 (6th Cir. 2011); United States v. Berg,
640 F.3d 239, 251 (7th Cir. 2011); United States v. Pierson, 544
F.3d 933, 939 (8th Cir. 2008); United States v. Hofus, 598 F.3d
1171, 1178–79 (9th Cir. 2010); United States v. Lee, 603 F.3d
14United States v. Schell, No. 13-5001/AR
904, 914 (11th Cir. 2010). 3 These cases span a broad range of
procedural postures and fact patterns, and the Supreme Court has
not seen fit to question the federal circuits’ interpretation of
§ 2422(b), nor does there appear to be a trend among the federal
circuits towards the CCA’s interpretation. Therefore, we find
no reason to depart from this Court’s precedent or established
federal practice.
The plain language of the statute, this Court’s precedent,
and federal circuit precedent support the Government’s
interpretation of § 2422(b)’s intent requirement. The CCA erred
in holding that “the accused must intend that the minor,
ultimately, actually engage in illegal sexual activity as a
result of his persuasion, inducement, or enticement.” Schell,
71 M.J. at 578. Rather, the intent required to support an
attempt conviction under § 2422(b) is the intent to commit the
predicate offense -- that is, the intent to persuade, induce,
entice, or coerce a minor for the purposes of engaging in
illegal sexual activity.
3
The United States Court of Appeals for the Eleventh Circuit has
wavered slightly on this issue. See Lebowitz, 676 F.3d at 1013(“the Government [must] prove beyond a reasonable doubt that
Lebowitz intended to engage in criminal sexual activity with
K.S.”). However, it appears that Lebowitz may just be an
outlier. See United States v. Slaughter, 708 F.3d 1208, 1215
(11th Cir. 2013) (indicating that § 2422(b) is intended to
“criminalize enticement and attempted enticement of an
individual under the age of eighteen years”).
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IV. Certified Issue II
“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.” United
States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2005) (quoting
United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996))
(internal quotation marks omitted); Article 45(a), UCMJ,
10 U.S.C. § 845(a) (2006). A military judge abuses his
discretion if he neglects or chooses not to resolve an
inconsistency or reject the inconsistent or irregular pleading.
United States v. Hayes, 70 M.J. 454, 457–58 (C.A.A.F. 2012).
Schell argues that trial defense counsel’s statements
during sentencing that he did not actually intend to engage in
sexual activity with “Taylor,” and his unsworn statement that he
“never intended to do anything” with her raised a matter
inconsistent with his plea that the military judge left
unresolved. This argument is unavailing given our holding on
Certified Issue I.
Even if Schell did not actually intend to engage in illegal
sexual activity with “Taylor,” 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.
Therefore, Schell admitted that he had the requisite intent to
support an attempt conviction under § 2422(b), and neither trial
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defense counsel’s statements nor Schell’s unsworn statement
raised a matter inconsistent with his plea. See Schell, 71 M.J.
at 583 (Haight, J., joined by Ayres, C.J., Cook, S.J., and
Gallagher, J., dissenting) (“[a] stated lack of intent to engage
in sexual activity is not inconsistent with the intent to entice
to engage in sexual activity”).
V. Granted Issue
A.
A military judge’s acceptance of an accused’s guilty plea
is reviewed for an abuse of discretion. Inabinette, 66 M.J. at
322. The test for an abuse of discretion is whether the record
shows a substantial basis in law or fact for questioning the
plea. Id. “For this 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.” United States v. Redlinski, 58
M.J. 117, 119 (C.A.A.F. 2003) (quoting United States v. Care, 18
C.M.A. 535, 541, 40 C.M.R. 247 (1969)); see also Article 45,
UCMJ; Rule for Courts-Martial 910(c)(1). 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.” United States v. Jones, 34 M.J.
270, 272 (C.M.A. 1992). “Rather than focusing on a technical
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United States v. Schell, No. 13-5001/AR
listing of the elements of an offense, this Court looks at the
context of the entire record to determine whether an accused is
aware of the elements, either explicitly or inferentially.”
Redlinski, 58 M.J. at 119.
“Unlike some simple military offenses, attempt is a more
complex, inchoate offense that includes two specific elements
designed to distinguish it from mere preparation.” Id. To
establish an attempt under § 2422(b), this Court has held that
the Government must prove that the 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. Winckelmann, 70 M.J. at
407.
B.
In defining the elements of the Article 134, UCMJ, offense
the military judge erred because she failed to instruct Schell
that he had to take a substantial step toward persuading,
inducing, enticing, or coercing 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.
The fact that the military judge instructed on and defined
“substantial step” for the Article 80, UCMJ, offenses does not
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cure this error. There is nothing in the record to indicate
that Schell understood that the Article 134, UCMJ, offense
shared the “substantial step” element with the Article 80, UCMJ,
offenses. The military judge did not discuss the element with
respect to the Article 134, UCMJ, charge, nor cross-reference
the element with the Article 80, UCMJ, attempt offenses. See
United States v. Barton, 60 M.J. 62, 63–65 (C.A.A.F. 2004)
(recognizing that cross-referencing an element of separate
offenses during a plea colloquy may not amount to error).
Schell was “not entitled to receive a hornbook review of
the distinction” between mere preparation and a substantial
step, but “the record must 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.” Redlinski, 58 M.J. at 119.
That Schell admitted facts during his plea colloquy that are
likely sufficient to prove that he took a substantial step
towards enticing “Taylor,” does not answer the altogether
different question whether he understood that a substantial step
was necessary to make his conduct criminal. Even though Schell
agreed that the military judge correctly described his crime,
and admitted that he took “steps” to attempt to persuade
“Taylor,” the record before us does not demonstrate that Schell
understood how the law related to the facts. United States v.
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United States v. Schell, No. 13-5001/AR
Medina, 66 M.J. 21, 26 (C.A.A.F. 2008). Therefore, we set aside
Schell’s guilty plea to the Article 134, UCMJ, offense because
there is a substantial basis in law to question the providence
of his plea.
VI.
We reject the reasoning of the United States Army Court of
Criminal Appeals as to the certified issues, but affirm the
judgment of that court because there is a substantial basis in
law to question Schell’s plea.
20