United States v. Wheeler

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Alexander S. WHEELER, Staff Sergeant
United States Air Force, Appellant
No. 17-0456
Crim. App. No. 38908
Argued January 23, 2018 —Decided March 22, 2018
Military Judges: Matthew S. Ward and Vance H. Spath
For Appellant: Major Virginia M. Bare (argued); Lieuten-
ant Colonel Nicholas W. McCue.
For Appellee: Major Matthew L. Tusing (argued); Colonel
Katherine E. Oler and Lieutenant Colonel Joseph Kubler
(on brief); Mary Ellen Payne, Esq.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges OHLSON and
SPARKS, and Senior Judge EFFRON, joined.
_______________
Judge RYAN delivered the opinion of the Court.
A military judge sitting as a general court-martial con-
victed Appellant, contrary to his pleas, of one specification of
attempting to commit a lewd act upon a person he believed
to be a child in violation of Article 80, Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. § 880 (2012), and one specifi-
cation of attempting to persuade, induce, or entice a person
he believed to be a child to engage in sexual activity through
the use of interstate commerce in violation of 18 U.S.C.
§ 2422(b) (2012), and charged under clause three of Article
134, UCMJ, 10 U.S.C. § 934 (2012). Appellant was sentenced
to thirty months of confinement, a dishonorable discharge,
forfeiture of all pay and allowances, and a reduction to E-1.
The convening authority deferred mandatory forfeitures un-
til the date of his action, waived mandatory forfeitures for a
period of six months or until release from confinement or
expiration of service (whichever was sooner), commencing on
United States v. Wheeler, No. 17-0456/AF
Opinion of the Court
the date of his action, and directed that the pay and allow-
ances be paid to Appellant’s wife, but otherwise approved
the sentence as adjudged.
The United States Air Force Court of Criminal Appeals
(AFCCA) affirmed the findings and the sentence, and con-
cluded, inter alia, that the specification charging Appellant
under clause three of Article 134, UCMJ, for attempting to
“persuade, induce, or entice” a minor into engaging in sexual
activity, in violation of a federal statute, 18 U.S.C. § 2422(b),
was not preempted by Article 120b(c), UCMJ, 10 U.S.C.
§ 920b(c) (2012). United States v. Wheeler, 76 M.J. 564, 572,
575 (A.F. Ct. Crim. App. 2017).1 We granted Appellant’s pe-
tition to review the following issue:2
WHETHER THE LOWER COURT
ERRONEOUSLY CONCLUDED CHARGE II WAS
NOT PREEMPTED BY ARTICLE 120b, UCMJ, 10
U.S.C. §920.
We hold that the Government was not preempted from
charging Appellant under clause three of Article 134, UCMJ,
for attempting to “persuade, induce, or entice” a minor to
engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
Article 134, UCMJ, expressly permits charging military
members for “crimes and offenses not capital” that are “not
specifically mentioned” in the UCMJ, and which include, in-
1 The AFCCA ordered the convening authority to promulgate a
corrected action and General Court-Martial Order (CMO) due to
an error regarding Appellant’s award of confinement credit.
Wheeler, 76 M.J. at 575 n.8.
2 We further note that a split among the Courts of Criminal
Appeals (CCA) exists on the issue of whether, and under what cir-
cumstances, Article 120b, UCMJ, preempts offenses under Article
134, UCMJ, alleging enticement or solicitation of a child. See
C.A.A.F. R. 21(b)(5)(A)–(B); compare United States v. Hill, No.
ACM 38848, 2016 CCA LEXIS 291, 2016 WL 3193182 (A.F. Ct.
Crim. App. May 9, 2016) (unpublished) (Article 134, UCMJ, of-
fense for enticing child to engage in lewd conduct for purpose of
producing child pornography was not preempted by Article 120b,
UCMJ), with United States v. Rodriguez, No. ARMY 20130577,
2015 CCA LEXIS 551, 2015 WL 7828574 (A. Ct. Crim. App. Dec.
1, 2015) (Article 120b, UCMJ, covers all sexual misconduct with
children and preempted the government from charging an offense
under Article 134, UCMJ).
2
United States v. Wheeler, No. 17-0456/AF
Opinion of the Court
ter alia, “crimes and offenses prohibited by the United
States Code.” 10 U.S.C. § 934; Manual for Courts-Martial,
United States pt. IV, para. 60.c.(4) (2012 ed.) (MCM). Accord-
ingly, we affirm.
I. Facts
The charges against the Appellant arose from his com-
munications with “Gaby” occurring between on or about
April 11 and 12, 2014. Gaby was not a real person, but ra-
ther a fictitious character played by several agents from the
Air Force Office of Special Investigations (AFOSI) during a
law enforcement operation focused on identifying and ap-
prehending individuals using the Internet to engage in sex-
ual activity with minors. Appellant responded to a post by
Gaby on Craigslist, where she claimed to be an eighteen-
year-old female seeking a sexual encounter with a male
servicemember. Shortly after Appellant responded to the
post, Gaby informed him that she was only fourteen years
old. Despite some initial hesitance about her purported age,
Appellant continued to communicate with Gaby.
Appellant’s conversations with Gaby took place through
several mediums: email, text message, and telephone calls.
During these conversations, Appellant repeatedly asked Ga-
by where she lived and asked to meet her in person on sev-
eral occasions. On one occasion, Appellant asked Gaby to
meet him first “in a public place” then they “could go to the
beach or back [to his home].” In a telephone conversation,
Appellant asked Gaby if it was okay if he came over to her
house and told her that when he gets “horny” he “jack[s]
[his] dick” and asked Gaby if she “likes to masturbate.” Lat-
er in the conversation, Appellant again asked for Gaby’s ad-
dress and suggested that they “could just make out” and
that she could “finally touch a dick.” Near the end of this
conversation, Appellant told Gaby he no longer wanted to
come over because it was “kind of illegal” due to her age. The
next day, Appellant called Gaby and asked to “hang out” and
asked for her address once again. At this time, Appellant
drove to Gaby’s purported house to meet her. Upon arrival,
Appellant was taken into custody by AFOSI agents. During
search incident to arrest, officers discovered a condom on
Appellant’s person. In addition to these specific conversa-
3
United States v. Wheeler, No. 17-0456/AF
Opinion of the Court
tions, Appellant also asked Gaby for “sexy pictures” and pic-
tures of her breasts.3
II. Discussion
Appellant alleges that the Article 134, UCMJ, offense of
attempted enticement of a minor to engage in sexual activi-
ty, a violation of federal law, 18 U.S.C. § 2422(b) (entitled
“Coercion and enticement”) is preempted by Article 120b(c),
UCMJ (entitled “Sexual abuse of a child”). Whether an of-
fense is preempted depends on statutory interpretation,
which is a question of law we review de novo. United States
v. Cooley, 75 M.J. 247, 257 (C.A.A.F. 2016).
The sole specification of Charge II―charging Appellant
with an Article 134, UCMJ, violation―provided that:
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 STAFF SERGEANT
ALEXANDER S. WHEELER by the screen name
“GABY” and the email address [ ]@yahoo.com, as
masked by and routed from [ ]@pers.craigslist.org a
person STAFF SERGEANT ALEXANDER S.
WHEELER believed to be a child who had not at-
tained the age of 18 years, to engage in sexual ac-
tivity which, if undertaken would constitute a crim-
inal offense under 10 USC Section 920b, by means
or facility of interstate commerce, to wit: the Inter-
net and cellular telephone, in violation of 18 USC
Section 2422(b), a crime or offense not capital.
The noncapital federal offense referenced in this specifi-
cation, 18 U.S.C. § 2422(b), provides that:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the spe-
cial maritime and territorial jurisdiction of the
United States knowingly persuades, induces, entic-
es, 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
3 The aforementioned comments formed the basis for Charge I,
Article 80, UCMJ, attempted lewd acts upon a child by intention-
ally communicating indecent language, a violation of Article
120b(c), UCMJ.
4
United States v. Wheeler, No. 17-0456/AF
Opinion of the Court
be fined under this title and imprisoned not less
than 10 years or for life.
Despite the fact that clause three of Article 134, UCMJ,
clearly contemplates and permits the incorporation of non-
capital federal crimes under its aegis, MCM pt. IV, para.
60.c.(4), Appellant alleges that it was impermissible as a
matter of law to charge Appellant for attempted child en-
ticement under Article 134, UCMJ. In his view, the highly
particular federal “Coercion and enticement” statute, 18
U.S.C. § 2422(b), is preempted by Article 120b(c), UCMJ
(“Sexual abuse of a child”). We disagree.
In its nascent form, Article 120b(c), UCMJ, provided
that: “Any person subject to this chapter who commits a
lewd act upon a child is guilty of sexual abuse of a child ….”
10 U.S.C. § 920b(c) (2012).4 As relevant here, “lewd act”
included:
(C) intentionally communicating indecent language
to a child by any means, including via any commu-
nication technology, with an intent to abuse, humil-
iate, or degrade any person, or to arouse or gratify
the sexual desire or any person; or
(D) any indecent conduct, intentionally done with
or in the presence of a child, including via any
communication technology, that amounts to a form
of immorality relating to sexual impurity which is
grossly vulgar, obscene, and repugnant to common
4 The first iteration of Article 120b, UCMJ―the iteration ap-
plicable to the time period of Appellant’s case―enacted in 2011,
contained a basic definition of sexual abuse of a child. National
Defense Authorization Act for Fiscal Year 2012, 112 Pub. L. No.
81, § 541, 125 Stat. 1298, 1407−09 (2011) (codified at 10 U.S.C. §
920b (2012)). In 2016, Congress amended the definitions of sexual
act and sexual contact under Article 120, UCMJ, as well as
amended Article 120b, UCMJ, to expand the definition of sexual
act and sexual contact to not only include the definition of those
terms under Article 120, UCMJ, but also included “the intentional
touching, not through the clothing, of the genitalia of another per-
son who has not attained the age of 16 years with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.’’ National Defense Authorization Act for Fis-
cal Year 2017, 114 Pub. L. No. 328, § 5430(b)–(c), 130 Stat. 2000,
2950−51 (2016).
5
United States v. Wheeler, No. 17-0456/AF
Opinion of the Court
propriety, and tends to excite sexual desire or de-
prave morals with respect to sexual relations.
Article 120b(h)(5)(C)–(D), UCMJ. Both parties spend a sig-
nificant amount of their respective efforts comparing apples
and oranges: the precise language of Article 120b(c), UCMJ,
and 18 U.S.C. § 2422(b), have little in common other than
that they are both aimed at criminalizing the sexual preda-
tion of children. Compare MCM Analysis of Punitive Articles
app. 23 at A23–16 (2012 ed.), with United States v. Schell,
72 M.J. 339, 343−44 (C.A.A.F. 2013) (Congress intended for
18 U.S.C. 2422(b) “to address those who lure children out to
actually engage in illegal sexual activity”) (internal quota-
tion marks omitted) (citations omitted)). Moreover, entice-
ment is not addressed expressly under Article 120b, UCMJ,
or otherwise under the provisions subject to the preemption
doctrine, Articles 80–132, UCMJ, as a distinct offense. And
while it might be possible to contort the then extant version
of Article 120b(c), UCMJ, to accommodate enticement of a
child to engage in sexual activity, it fits precisely under the
federal statute specifically aimed at proscribing that activi-
ty. In this context, enticement may be prosecuted under Ar-
ticle 134, UCMJ.
Nor, in this particular context, is legislative intent
regarding “ ‘occupy[ing] . . . a field’ ” relevant, let alone
paramount. United States v. Robbins, 52 M.J. 159, 162
(C.A.A.F. 1999) (quoting Lewis v. United States, 523 U.S.
155, 164 (1998)). Notably, Article 134, UCMJ, and 18 U.S.C.
§ 2422(b), are both federal statutes. Article 134, UCMJ, and
the Discussion thereunder make abundantly clear that it is
indeed permissible to incorporate violations of noncapital
federal crimes through clause three of Article 134, UCMJ.
MCM pt. IV, para. 60.c.(4) and Discussion; see United States
v. McGuinness, 35 M.J. 149 (C.M.A. 1992) (incorporating a
violation of 18 U.S.C. § 793 through clause three of Article
134, UCMJ). Unless, and herein lies the basis for our
decision, the Government turned to a hypothetical federal
noncapital crime that lessened its evidentiary burden at
trial by circumventing the mens rea element or removing a
specific vital element from an enumerated UCMJ offense.
“The preemption doctrine prohibits application of Article 134
to conduct covered by Articles 80 to 132,” MCM pt. IV, para.
6
United States v. Wheeler, No. 17-0456/AF
Opinion of the Court
60.c.(5)(a), and as the President’s guidance makes clear, is
designed to prevent the government from eliminating
elements from congressionally established offenses under
the UCMJ, in order to ease their evidentiary burden at trial.
Id; see United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979);
United States v. Wright, 5 M.J. 106, 110−11 (C.M.A. 1978);
United States v. Norris, 2 C.M.A. 236, 239, 8 C.M.R. 36, 39
(1953) (“We cannot grant to the services unlimited authority
to eliminate vital elements from common law crimes and
offenses expressly defined by Congress and permit the
remaining elements to be punished as an offense under
Article 134.”). That is the precise limitation the President
placed on Article 134, UCMJ. MCM pt. IV, para. 60.c.(5)(a)
(“Article 134 cannot be used to create a new type of larceny
offense, one without the required intent, where Congress
already set the minimum requirements for such an offense
in Article 121.”).
But this limitation by the President on Article 134,
UCMJ, is not applicable here because there is no indication
that the Government charged a violation of the United
States Code via Article 134, UCMJ, to circumvent an ele-
ment of an enumerated offense in the UCMJ. Appellant has
not and cannot establish that this Article 134, UCMJ, speci-
fication created a “child sexual abuse offense,” with either a
lower mens rea or a lower evidentiary burden than Article
120b(c), UCMJ. Rather, it incorporated a specific federal
statute aimed with precision at a particular type of inten-
tional conduct with its own evidentiary burden. United
States v. Curry, 35 M.J. 359, 361 (C.M.A. 1992) (finding no
preemption where none of the punitive articles in the UCMJ
specifically covered “bribery” and where offense charged was
a common law offense “long recognized by military courts
and codified in the federal criminal code”); see United States
v. Picotte, 12 C.M.A. 196, 198, 30 C.M.R. 196, 198 (1961)
(recognizing that when Congress has proscribed a course of
conduct by more than one statute, the government may elect
to prosecute on either statute applicable (citing Rosenberg v
United States, 346 U.S. 273, 294 (1953))); see also Ball v.
United States, 470 U.S. 856, 859 (1985) (acknowledging the
government’s broad discretion to select the charges to be
brought in a particular case). Nor has Appellant demon-
7
United States v. Wheeler, No. 17-0456/AF
Opinion of the Court
strated that it is somehow easier to prove the offense of at-
tempted knowing enticement of a minor to engage in sexual
activity, 18 U.S.C. § 2422(b), than it is to prove the offense of
attempted sexual abuse via Article 120b(c), UCMJ.
For the reasons stated above the Government was not
preempted from charging Appellant with an Article 134,
UCMJ, violation for attempting to “persuade, induce, or en-
tice” a minor to engage in sexual activity, in violation of the
federal civilian statute, 18 U.S.C. § 2422(b).
III. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
8