United States v. Wheeler

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
No. ACM 38908
________________________
UNITED STATES
Appellee
v.
Alexander S. WHEELER
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 19 April 2017
________________________
Military Judge: Matthew S. Ward (arraignment); Vance H. Spath (trial).
Approved sentence: Dishonorable discharge, confinement for 30 months, and
reduction to E-1. Sentence adjudged 8 July 2015 by a GCM convened at Mac-
Dill Air Force Base, Florida.
For Appellant: Major Virginia M. Bare, USAF.
For Appellee: Captain Sean J. Sullivan, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, BENNETT, and SPERANZA, Appellate Military Judges.
Judge BENNETT delivered the opinion of the court, in which Senior Judge
MAYBERRY and Judge SPERANZA joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
BENNETT, Judge:
At a general court-martial composed of a military judge sitting alone, Ap-
pellant was convicted, contrary to his pleas, of attempting to commit a lewd act
on a person he believed to be a child who had not yet attained the age of 16
years by intentionally communicating indecent language with an intent to
arouse or gratify his own sexual desires, in violation of Article 80, Uniform
United States v. Wheeler, No. ACM 38908
Code of Military Justice (UCMJ), 10 U.S.C. § 880. He was also convicted, con-
trary to his pleas, of attempting to knowingly persuade, induce or entice a per-
son he believed to be a child who had not yet attained the age of 18 years to
engage in sexual activity which, if undertaken, would constitute a criminal of-
fense under Article 120b, UCMJ, 10 U.S.C. § 920b, by means or facility of in-
terstate commerce, to wit: the Internet and cellular telephone, in violation of
18 U.S.C. § 2422(b). The latter offense was charged under clause 3 of Article
134, UCMJ, 10 U.S.C. § 934.
The adjudged sentence was a dishonorable discharge, confinement for 30
months, forfeiture of all pay and allowances, and reduction to E-1. The conven-
ing authority approved the sentence except for the forfeitures. He deferred
mandatory forfeitures until the date of action, waived all mandatory forfeitures
for a period of six months, and directed that the pay and allowances be paid to
Appellant’s spouse.
Appellant now asserts: (1) the finding of guilty for Charge II is legally and
factually insufficient; (2) the Government was preempted from charging the
Article 134 offense; (3) Charges I and II are multiplicious and an unreasonable
multiplication of charges; and (4) he was entrapped by law enforcement. 1 We
disagree and affirm.
I. BACKGROUND
Appellant used Craigslist to meet women on the Internet. On 11 April 2014,
he responded to a Craigslist advertisement that he initially believed was
posted by an 18-year-old female looking for male companionship. The adver-
tisement was actually posted by Air Force Office of Special Investigations
(AFOSI) Special Agent WG, a male agent posing as a 14-year-old female. At
the time, AFOSI was taking part in a joint law enforcement operation with the
Pinellas County Sheriff’s Office intended to identify and apprehend individuals
who used the Internet to lure minors into having sex.
Communication between Appellant and Special Agent WG, who for the pur-
poses of this operation went by “Gaby,” started with email messages on
Craigslist and quickly progressed to phone calls. To facilitate the phone con-
versation, Sergeant AW, a female law enforcement officer from the Pinellas
County Sheriff’s Office, played the part of “Gaby.” Early in his discourse with
“Gaby,” Appellant was informed that she was 14 years old.
1 Appellant raised the last issue pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
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United States v. Wheeler, No. ACM 38908
Despite some initial wavering about “Gaby’s” purported age, Appellant ul-
timately overcame his concerns. He intentionally communicated indecent lan-
guage to “Gaby,” masturbated during a telephone conversation with “Gaby,”
and told her he was doing so. Appellant also induced “Gaby” to meet him so
they could engage in sexual activity. For his misconduct, Appellant was
charged with these two offenses:
In that [Appellant] . . . did, at or near Tampa, Florida, between
on or about 11 April 2014 and on or about 12 April 2014, attempt
to commit a lewd act upon “Gaby”, a person [Appellant] believed
to be a child who had not yet attained the age of 16 years, by
intentionally communicating to “Gaby” indecent language, to
wit: stating the accused liked to “jack his dick”, stating “Gaby”
“can finally touch a dick” and asking whether “Gaby” likes to
masturbate, or words to that effect, with an intent to arouse or
gratify the sexual desire of [Appellant]. 2
In that [Appellant] . . . did, at or near Tampa, Florida, between
on or about 11 April 2014 and on or about 12 April 2014, attempt
to knowingly persuade, induce or entice an individual known to
[Appellant] by the screen name “GABY” and the email address
[ ]@yahoo.com,” as masked by and routed from
[ ]@pers.craigslist.org[,] a person [Appellant] believed to be a
child who had not attained the age of 18 years, to engage in sex-
ual activity which, if undertaken, would constitute a criminal
offense under 10 U.S.C. Section 920b, by means or facility of in-
terstate commerce, to wit: the Internet and cellular telephone,
in violation of 18 U.S.C. Section 2422(b), a crime or offense not
capital. 3
The underlying misconduct for both charges occurred during the same time
period, between on or about 11 and 12 April 2014, and in the same location, at
or near Tampa, Florida. Appellant was charged with attempts because “Gaby”
was not an underage girl; rather, she was a fictitious person played by Special
Agent WG and Sergeant AW.
2 Charge I and its Specification allege a violation of Article 80, UCMJ, 10 U.S.C. § 880.
3Charge II and its Specification allege a violation of Article 134, UCMJ, 10 U.S.C. §
934.
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United States v. Wheeler, No. ACM 38908
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant avers that his conviction under Charge II for enticement should
be set aside because the evidence is both legally and factually insufficient to
prove that he attempted to persuade, induce, or entice “Gaby,” a child under
the age of 18, to engage in sexual activity that would constitute a crime under
of Article 120b, UCMJ, in violation of 18 U.S.C. § 2422(b). In Appellant’s view,
he tried to end his interaction with “Gaby” once he learned she was underage,
and it was “Gaby” who attempted to persuade, induce, or entice him to engage
in sexual activity. We disagree.
This court reviews issues of legal and factual sufficiency de novo. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal suf-
ficiency is ‘whether, considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential ele-
ments beyond a reasonable doubt.’” United States v. Humpherys, 57 M.J. 83,
94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987)). In applying this test, “we are bound to draw every reasonable inference
from the evidence of record in favor of the prosecution.” United States v.
Barner, 56 M.J. 131, 134 (C.A.A.F. 2001); see also United States v. McGinty, 38
M.J. 131, 132 (C.M.A. 1993).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of [Appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, we
take “a fresh, impartial look at the evidence,” applying “neither a presumption
of innocence nor a presumption of guilt” to “make [our] own independent de-
termination as to whether the evidence constitutes proof of each required ele-
ment beyond a reasonable doubt.” Washington, 57 M.J. at 399. The term rea-
sonable doubt, however, does not mean that the evidence must be free from
conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
As charged, the elements of the Specification of Charge II are:
(1) That Appellant did, at or near Tampa, Florida, between on or
about 11 April 2014 and 12 April 2014, attempt to knowingly
persuade, induce, or entice an individual known to him by the
screen name “Gaby” and the email address [ ]@yahoo.com, as
masked by and routed from [ ]@pers.craigslist.org, to engage in
sexual activity;
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United States v. Wheeler, No. ACM 38908
(2) that Appellant used a means of interstate commerce to do so;
(3) that Appellant believed “Gaby” was a child who had not at-
tained the age of 18 years;
(4) that Appellant intended to persuade, induce, or entice “Gaby”
to engage sexual activity which, if undertaken by Appellant and
“Gaby,” would constitute a criminal offense under Article 120b,
UCMJ, 10 U.S.C. § 920b; and
(5) that Appellant’s acts amounted to more than mere prepara-
tion; that is they were a substantial step toward the commission
of the intended offense (i.e., the persuasion, inducement, or en-
ticement of “Gaby”).
In this case, the evidence consisted of, inter alia, testimony from Special
Agent WG and Sergeant AW, Craigslist email transcripts, recorded telephone
calls, and a video recording of Appellant’s post-apprehension law enforcement
interview—all of which provide ample evidence of Appellant’s guilt.
First, we find that Appellant, at or near Tampa, Florida, between on or
about 11 April 2014 and 12 April 2014, attempted to knowingly persuade, in-
duce, or entice a person known to him as “Gaby” to engage in sexual activity.
Appellant knowingly answered “Gaby’s” advertisement for male companion-
ship. He then began a dialogue with her over the Internet and by cellular
phone, the purpose of which was, among other things, to convince “Gaby” to
engage in some kind of sexual activity with him.
Second, we find that Appellant used a means of interstate commerce to at-
tempt to knowingly persuade, induce, or entice “Gaby” to engage in sexual ac-
tivity. Appellant relied on his email exchanges with “Gaby” and their cellular
phone conversations to encourage her. His use of the Internet and his cellular
phone, as a matter of law, constitutes a means of interstate commerce. See
United States v. Pierce, 70 M.J. 391, 395 (C.A.A.F. 2011).
Third, we find that Appellant believed “Gaby” was a child who had not at-
tained the age of 18 years. In fact, Appellant believed “Gaby” was just 14 years
old. The law enforcement officers pretending to be “Gaby” informed Appellant
that “Gaby” was 14 years old and sent Appellant photos of a female child
around that age. On more than one occasion, Appellant remarked that “Gaby”
was too young and that it would be illegal for him to engage in sexual activity
with her, or words to that effect. Appellant’s own remarks to “Gaby” and the
admissions he later made to law enforcement personnel evidence his belief that
“Gaby” was under the age of 18.
Fourth, we find that Appellant intended to persuade, induce, or entice
“Gaby” to engage in sexual activity which, if undertaken by Appellant and
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United States v. Wheeler, No. ACM 38908
“Gaby,” would constitute a criminal offense under Article 120b, UCMJ. 4 To es-
tablish attempt under 18 U.S.C. § 2422(b), 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.” United States v. Schell, 72 M.J. 339, 345–
46 (C.A.A.F. 2013). Here, the substantive offense was the persuasion, induce-
ment, or enticement of “Gaby” to engage in sexual activity that would be illegal
under Article 120b, UCMJ. Id. at 345.
The circumstance under which Appellant’s passive and overt cajoling took
place is a critical fact linking Appellant’s actions to his intent to win “Gaby’s”
agreement. “Gaby,” supposedly bored and lonely, posted an advertisement on
Craigslist searching for companionship, preferably from a male servicemem-
ber. Appellant, using the alias “Bob Buckhorny,” answered the call. From that
moment until the time of his apprehension, through an extended dialogue via
email and over his cellular phone, Appellant cajoled “Gaby.”
Their interaction was not random, and Appellant’s intentions were made
clear from the start. Appellant provided several pictures of himself, including
one in which he posed topless. He asked “Gaby” to send him naked pictures of
herself, which she did not do. However, Appellant did receive from “Gaby” a
picture of a clothed 14-year-old female, after which he complimented “Gaby”
on her looks.
When the content of their dialogue turned sexual—and it did multiple
times during their exchanges—Appellant repeatedly told “Gaby” that he did
not mind that she was “inexperienced,” that her lack of experience was good,
that “he would not be disappointed” in her, and that he would “show her the
ropes.” He did this in an effort to assuage her concerns. He also told “Gaby”
4 Article 120b(a), (b), and (c), UCMJ, 10 U.S.C. § 920b(a), (b), (c), prohibit rape, sexual
assault, or sexual abuse of a child. The article makes it illegal for servicemembers to
engage in sexual activity with children under the age of 16, including “sexual acts”
such as “contact between the penis and vulva or anus or mouth” and “sexual contact”
such as “touching, or causing another person to touch . . . any body part . . . if done
with the intent to arouse or gratify the sexual desire of any person.” Article 120b(h),
UCMJ; see also Article 120(g), UCMJ. Based on Appellant’s admissions, his dialogue
with “Gaby,” and the fact that he arrived at their rendezvous location with a condom,
we are convinced that the sexual activity Appellant was attempting to persuade, in-
duce, or entice “Gaby” to undertake would constitute a criminal offense under Article
120b, UCMJ.
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United States v. Wheeler, No. ACM 38908
that he was not bothered by the fact that she was only 14 and that he could fix
her “lonely problem.” When she asked him what he wanted to do when they
met, Appellant told “Gaby” that they could kiss, make out, and touch each
other. Appellant would have had no reason to say these things if he was not
intending to persuade, induce, or entice “Gaby” to engage in some type of sex-
ual activity.
Appellant eventually drove to their planned meeting spot and was appre-
hended with a condom in his pocket. After his apprehension, he told investiga-
tors that he was looking for someone to have sex with when he answered
“Gaby’s” Craigslist advertisement and his only fear was getting caught. 5 Ap-
pellant also told investigators that he saw an opportunity and that he wanted
to meet “Gaby” and “engage with her.”
These facts, among others, overwhelmingly demonstrate that Appellant in-
tended to persuade, induce, or entice “Gaby” to engage in sexual activity with
him.
Finally, Appellant’s acts amounted to more than mere preparation; that is,
these acts were a substantial step toward the commission of the intended of-
fense (i.e., the persuasion, inducement, or enticement of “Gaby”). In Schell, the
United States Court of Appeals for the Armed Forces (CAAF) noted that,
within the context of an 18 U.S.C. § 2422(b) offense, “persuade,” “induce,” and
“entice,” are all effectively synonymous, meaning “leading or moving another
by persuasion or influence, as to some action [or] state of mind.” 72 M.J. at 343
n.1 (quoting United States v. Engle, 676 F.3d 405, 411 n.3 (4th Cir. 2012)) (quo-
tation marks omitted); see also United States v. Thomas, No. ACM 37896, 2013
CCA LEXIS 667, at *22 (A.F. Ct. Crim. App. 2 Jul. 2013) (unpub. op.) (holding
that 18 U.S.C. § 2422(b) criminalizes an accused’s intentional effort to achieve
“a certain mental state in [a] minor—namely, [his or] her agreement” to engage
in a sexual act that would be illegal if it occurred.).
The emails sent by Appellant to “Gaby,” the recordings of his cellular phone
conversations with “Gaby,” and Appellant’s admissions prove his acts
amounted to more than mere preparation. Moreover, the CAAF has also noted
that an accused’s travel to a location to meet a minor can constitute a “sub-
stantial step” and thus constitute an attempt to violate 18 U.S.C. § 2422(b).
United States v. Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011) (citations
omitted). Taken as whole, there is overwhelming evidence that Appellant was
5 At the time, Appellant was 26 years old. It is not a crime for a 26 year old male to
spend time with a 14-year-old female. The only reason Appellant had to fear getting
caught was because he was trying to convince “Gaby” to engage in sexual activity,
something he believed would be illegal because he thought she was only 14.
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United States v. Wheeler, No. ACM 38908
indeed attempting to influence “Gaby” so she would engage in sexual activity
with him, and he took substantial steps toward doing so.
Appellant argues that “Gaby” was the pursuer. We are not persuaded. Ap-
pellant may have had fleeting second thoughts about meeting “Gaby” because
he thought she was too young, believed it would be illegal to engage in sexual
activity with her, and/or was afraid he would get caught. Regardless, Appellant
ultimately decided to contact “Gaby” to try to convince her to engage in sexual
activity with him.
We have considered the evidence in the light most favorable to the prose-
cution. We have also made allowances for not having personally observed the
witnesses. Having paid particular attention to the matters raised by Appellant,
we find the evidence legally sufficient to support his conviction. Furthermore,
we are, ourselves, convinced of his guilt beyond a reasonable doubt; thus, the
evidence is also factually sufficient to support this conviction.
B. Preemption
On appeal, Appellant contends that the military judge erred when he ruled
that the “pre-emption doctrine” did not prohibit the Government from charging
Appellant with an Article 134, UCMJ, offense for a crime that Appellant argues
should have been charged as an attempted violation of Article 120b, UCMJ, 10
U.S.C. § 920b. We disagree.
This court reviews questions of statutory interpretation, including preemp-
tion, 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).
At Appellant’s court-martial, the military judge denied his motion to dis-
miss Charge II, stating:
Section 2422(b) criminalizes using a particular meaning [sic] or
medium to persuade, induce, or entice a child in order to get
them to engage in a particular act – a sexual act. The type of
language used is not the issue rather it is the effort to induce,
entice, or persuade a child to engage in a sexual act through the
use of interstate commerce. Congress in [Article 120b, UCMJ]
was not attempting to regulate interstate commerce crimes.
What it was criminalizing was engaging in lewd acts with chil-
dren. Lewd acts including language that is indecent when it is
communicated to a child. What [Article 120b] lacks is both inter-
state commerce and the intent to have a child engage in a sexual
act during the transmission of the language through means of
interstate commerce. Given this, preemption does not apply to
the Specification of Charge II.
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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) (2012). In United States v. Kick, 7 M.J. 82 (C.M.A.
1979), our superior court referred to 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 vi-
tal 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 preemp-
tion doctrine. In addition, it must be shown that Congress in-
tended 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 Ar-
ticle 134, UCMJ, where two elements are met: “(1) ‘Congress intended to limit
prosecution for . . . a particular area’ of misconduct ‘to offenses defined in spe-
cific 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).
In Schell, the CAAF analyzed the legislative history of 18 U.S.C. § 2422,
the same statute incorporated by Appellant’s second charge, and found that:
Congress intended the statute “to address those who lure chil-
dren out to actually engage in illegal sexual activity,” Schell, 71
M.J. at 579, but also to more broadly “protect children and fam-
ilies 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 in-
tend to actually engage in a sexual crime. H.R. Rep. No. 104-
652, § 508, at 1130 (“Section 508 would amend [§ 2422(b)] to pro-
hibit the use of a facility of interstate commerce . . . for the pur-
pose 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.”).
72 M.J. at 343–44.
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United States v. Wheeler, No. ACM 38908
Consistent with the plain language of Article 120b, UCMJ, 18 U.S.C. §
2422(b), and the holding in Schell, we find that the Article 134 clause 3 offense
Appellant was charged with is not composed of a residuum of elements of any
of the other enumerated UCMJ offenses. See United States v. Hill, No. ACM
38848, 2016 CCA LEXIS 291, at *7 (A.F. Ct. Crim. App. 9 May 2016) (unpub.
op.) (“Federal law recognizes enticement of a minor to engage in illegal sexual
activity as a distinct offense. Compare 18 U.S.C. §§ 2422, 2427 with 18 U.S.C.
§§ 2251, 2252, 2252A.”); cf. United States v. Costianes, No. ACM 38868, 2016
CCA LEXIS 391 (A.F. Ct. Crim. App. 30 Jun. 2016) (unpub. op.). We find that
the defining characteristic of a violation of 18 U.S.C. § 2422(b), as it was
charged in this case, is the “enticement” element. With respect to 18 U.S.C. §
2422(b), Congress intended to criminalize adult use of a means of interstate
commerce to intentionally “persuade, induce, or entice” a minor into engaging
in sexual activity. Schell, 72 M.J. at 343–44; see also United States v. Brooks,
60 M.J. 495, 498 (C.A.A.F. 2005); Thomas, 2013 CCA LEXIS 667, at *22 (un-
pub. op.). In its current form, this is a harm that the UCMJ does not specifically
address. Under the circumstances, the Government was not preempted from
charging Appellant, under clause 3 of Article 134, UCMJ, for attempting to
“persuade, induce, or entice” a minor into engaging in sexual activity, in viola-
tion of 18 U.S.C. § 2422b.
C. Multiplicity and Unreasonable Multiplication of Charges
On appeal, and for the first time, Appellant argues that the offenses he was
convicted of are unconstitutionally multiplicious because his attempted lewd
act, charged under Article 80, UCMJ, and his attempted enticement of a minor,
charged under Article 134, UCMJ, are based on the same underlying miscon-
duct. Alternatively, he argues these offenses were unreasonably multiplied.
We disagree.
Multiplicity in violation of the Double Jeopardy Clause 6 occurs when “a
court, contrary to the intent of Congress, imposes multiple convictions and
punishments under different statutes for the same act or course of conduct.”
United States v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010) (quoting United
States v. Roderick, 62 M.J. 425, 431 (C.A.A.F. 2006)) (emphasis omitted). The
Supreme Court has established the following “separate elements test” for ana-
lyzing multiplicity issues: “[t]he applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). Accordingly, an accused
6 U.S. CONST. amend. V.
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United States v. Wheeler, No. ACM 38908
may not be convicted and punished for two offenses where one is necessarily
included in the other, absent congressional intent to permit separate punish-
ments. See United States v. Teters, 37 M.J. 370, 376–77 (C.M.A. 1993); United
States v. Morita, 73 M.J. 548, 564 (A.F. Ct. Crim. App. 2014), rev’d on other
grounds, 74 M.J. 116 (C.A.A.F. 2015).
This court normally reviews multiplicity claims de novo. See Anderson, 68
M.J. at 385. However, an appellant forfeits a multiplicity claim, unless the
specifications are “facially duplicative,” by not raising the issue at trial. United
States v. Parker, 73 M.J. 914, 917 (A.F. Ct. Crim. App. 2014) (quoting United
States v. Campbell, 68 M.J. 217, 219–20 (C.A.A.F. 2009)); see also United States
v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009) (distinguishing forfeiture from
waiver of multiplicity claims). Whether the specifications are facially duplica-
tive, i.e., factually the same, is a question of law reviewed de novo. United
States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004). Specifications are not facially
duplicative if each requires proof of a fact not required to prove the others.
Campbell, 68 M.J. at 220.
Here, each specification required proof of facts not required to prove the
other. The attempted lewd act specification required proof that Appellant in-
tended to communicate indecent language to a child for the purpose of gratify-
ing his own sexual desire. Factually, it differs from the attempted enticement
specification. The latter required proof that Appellant intended to use a means
of interstate commerce to persuade, induce, or entice another person—a
child—to engage in sexual activity with him that, if undertaken, would have
violated Article 120b, UCMJ. Appellant has not met his burden to show that
the specifications are facially duplicative and thus has forfeited this issue.
Even if charged offenses are not multiplicious, courts may apply the doc-
trine of unreasonable multiplication of charges to dismiss certain charges and
specifications. Rule for Courts-Martial (R.C.M.) 307(c)(4) summarizes this
principle as follows: “What is substantially one transaction should not be made
the basis for an unreasonable multiplication of charges against one person.”
The principle provides that the Government may not needlessly “pile on”
charges against an accused. United States v. Foster, 40 M.J. 140, 144 n.4
(C.M.A. 1994). “[U]nlike multiplicity—where an offense found multiplicious for
findings is necessarily multiplicious for sentencing—the concept of unreason-
able multiplication of charges may apply differently to findings than to sen-
tencing.” Campbell, 71 M.J. at 23.
In United States v. Quiroz, the CAAF endorsed the following non-exhaus-
tive list of factors to consider in determining whether an unreasonable multi-
plication of charges has occurred:
(1) whether the accused objected at trial;
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United States v. Wheeler, No. ACM 38908
(2) whether each charge and specification is aimed at distinctly
separate criminal acts;
(3) whether the number of charges and specifications misrepre-
sent or exaggerate the appellant’s criminality;
(4) whether the number of charges and specifications unreason-
ably increase the appellant’s punitive exposure; and,
(5) whether there is any evidence of prosecutorial overreaching
or abuse in the drafting of the charges.
55 M.J. 334, 338–39 (C.A.A.F. 2001). These non-exclusive factors are weighed
together, and “one or more factors may be sufficiently compelling.” Campbell,
71 M.J. at 23.
Appellant did not object at trial. We find that the charges were aimed at
distinctly separate criminal acts, do not misrepresent or exaggerate his crimi-
nality, and do not unreasonably increase his punitive exposure. The gravamen
of each offense was different. Regarding the attempted lewd act, Appellant
made graphic sexual comments to “Gaby” and asked her questions of a graphic
sexual nature. That these communications did in fact arouse or gratify his own
sexual desires was demonstrated by evidence that he masturbated on one oc-
casion while he communicated indecent language to “Gaby.” The attempted
enticement offense, on the other hand, focused on a different phase of Appel-
lant’s communications where he attempted to “knowingly persuade, induce, or
entice” “Gaby” into engaging in sexual activity that would have constituted a
criminal offense under Article 120b, UCMJ. The communication between Ap-
pellant and “Gaby” that led to their agreement to meet involved a significant
amount of cajoling, both passive and overt, beyond the graphic sexual com-
ments and questions that aroused or gratified Appellant’s sexual desires. The
purpose of this cajoling was to convince “Gaby” to engage in sexual activity.
Finally, there is no evidence of overreaching on the part of the prosecution.
Appellant asks us to align our decision with our sister court’s holding in
United States v. Ashley, No. ARMY 20120566, 2013 CCA LEXIS 601 (Army Ct.
Crim. App. 31 July 2013) (unpub. op.). However, we find Ashley to be distin-
guishable for a variety of reasons including the following. First, Ashley was
charged with different crimes. Unlike Appellant, Ashley was not charged with
attempting to commit a lewd act, under Article 80, UCMJ, 10 U.S.C. § 880 and
the current version of Article 120b. In addition to being charged with at-
tempted enticement of a minor to engage in unlawful sexual activity in viola-
tion of 18 U.S.C. § 2422(b), Ashley was charged with communicating indecent
language, and both crimes were charged as Article 134, UCMJ, 10 U.S.C. § 934
(2006) offenses. This is significant because for Ashley there was no question of
whether his indecent language was communicated with the intent to arouse or
12
United States v. Wheeler, No. ACM 38908
gratify his own sexual desires, as was the case for Appellant. Second, our sister
court found that “[Ashley’s] admitted indecent language was identical and a
subset of the very same language supporting the attempted enticement
charge.” Ashley, 2013 CCA LEXIS 601, at *8-9 (unpub. op.). Again, for the rea-
sons provided above, we find that the misconduct underlying Appellant’s at-
tempted lewd act and his attempted enticement amounted to separate commu-
nications.
Thus, we find there was no unreasonable multiplication of charges. 7
D. Entrapment
Appellant argues that by playing on his sympathies, for example by having
“Gaby” claim to be lonely and in need of attention, law enforcement agents
improperly induced him to commit the charged offenses. We disagree.
Entrapment is an affirmative defense when “the criminal design or sugges-
tion to commit the offense originated with the Government and the accused
had no predisposition to commit the offense.” R.C.M. 916(g). As with all affirm-
ative defenses, if an appellant was entrapped, he would not be criminally re-
sponsible. R.C.M. 916(a).
The defense has the initial burden of going forward to show that
a government agent originated the suggestion to commit the
crime . . . [and] the burden then shifts to the Government to
prove beyond a reasonable doubt that the criminal design did
not originate with the Government or that the accused had a
predisposition to commit the offense prior to first being ap-
proached by Government agents.
United States v. Hall, 56 M.J. 432, 436 (C.A.A.F. 2002) (citations and quotation
marks omitted). When an appellant generally challenges whether the quantum
of proof was sufficient to disprove the existence of an affirmative defense, we
analyze that assertion under the factual and legal sufficiency framework artic-
ulated above. See United States v. Ward, 39 M.J. 1085, 1089 (A.C.M.R. 1994);
7 When a factfinder “‘return[s] guilty findings for [multiple] specifications and it was
agreed that these specifications were charged for exigencies of proof, it [is] incumbent’
[upon the military judge] either to consolidate or dismiss [the contingent] specifica-
tion[s].” United States v. Elespuru, 73 M.J. 326, 329–30 (C.A.A.F. 2014) (quoting
United States v. Mayberry, 72 M.J. 467, 467–68 (C.A.A.F. 2013)) (additional citation
omitted). In a record completely barren of any mention of charging in the alternative,
Appellant’s argument that the specifications were charged in the alternative is not
compelling.
13
United States v. Wheeler, No. ACM 38908
cf. United States v. Rivera, 54 M.J. 489, 490 (C.A.A.F. 2001) (applying the legal
sufficiency framework to analyze claim evidence was insufficient to disprove
defense of parental discipline).
The essence of entrapment is an improper inducement by government
agents to commit the crime. United States v. Howell, 36 M.J. 354, 359 (C.M.A.
1993). Such improper inducement does not exist if government agents merely
provide the opportunity or facilities to commit the crime. Instead, for entrap-
ment, the government conduct must:
create[] a substantial risk that an undisposed person or other-
wise law-abiding citizen would commit the offense . . . [and may
take the form of] pressure, assurances that a person is not doing
anything wrong, persuasion, fraudulent representations,
threats, coercive tactics, harassment, promises of reward, or
pleas based on need, sympathy, or friendship.
Id. at 359–60 (citations and quotation marks omitted). For example, a govern-
ment agent’s repeated requests for drugs “do not in and of themselves consti-
tute the required inducement” to establish entrapment. Id. at 360.
Plainly, Appellant was not an undisposed person. After reviewing all the
evidence, we find, beyond a reasonable doubt, that nothing in the remarks or
questions of Special Agent WG or Sergeant AW caused Appellant to commit
his crimes. While the law enforcement officers may have been persistent, we
find that the evidence adduced at trial proves that Appellant, on his own and
without improper inducement, attempted to commit a lewd act upon “Gaby,” a
person he believed to be a child under the age of 16 years, by intentionally
communicating to “Gaby” indecent language. Specifically, we find that Appel-
lant did tell “Gaby” that he liked to “jack his dick,” that she “can finally touch
a dick,” and asked whether “Gaby” liked to masturbate, or words to that effect,
with an intent to arouse or gratify his own sexual desire. For reasons already
discussed, we also find the evidence proves that Appellant pursued “Gaby” with
the intent to persuade, induce, or entice her into engaging in sexual activity
with him, and not the other way around. We find that the evidence, when
viewed in the light most favorable to the government, could convince a reason-
able fact finder beyond a reasonable doubt that Appellant was not entrapped.
Furthermore, we are convinced beyond a reasonable doubt that Appellant was
not entrapped.
III. CONCLUSION
The findings and sentence are correct in law and fact, and no error materi-
ally prejudicial to the substantial rights of Appellant occurred. Articles 59(a)
14
United States v. Wheeler, No. ACM 38908
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and
sentence are AFFIRMED. 8
FOR THE COURT
MICAH L. SMITH
Deputy Clerk of the Court
8 We note, however, an error in the convening authority’s action and General Court-
Martial Order (CMO). The military judge awarded six months’ credit against Appel-
lant’s sentence to confinement for illegal pretrial punishment. Yet, the action and CMO
erroneously state that Appellant received credit for illegal pretrial confinement. We
find no prejudice but order promulgation of a corrected action and CMO to ensure ac-
curate court-martial records.
15