United States v. Kowalski

69 M.J. 705, 2010 CCA LEXIS 394, 2010 WL 5096131
U S Coast Guard Court of Criminal Appeals·Decided December 15, 2010·No. CGCMG 0265·Published·Cited by 7 cases

Opinion

McClelland, Chief Judge:

Appellant was tried by general court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of attempting to communicate indecent language to minors, in violation of Article 80, 10 U.S.C. § 880, Uniform Code of Military Justice (UCMJ); and four specifications of violating 18 U.S.C. § 2251 by enticing or attempting to entice a minor to produce child pornography, two specifications of violating 18 U.S.C. § 2252A by possessing child pornography, three specifications of violating 18 U.S.C. § 2422(b) by attempting to engage a minor in illegal sexual activity, and one specification of communicating indecent language, all in violation of Article 134, UCMJ, 10 U.S.C. § 934. The military judge sentenced Appellant to confinement for sixty-five months, reduction to E-l, and a dishonorable discharge. The Convening Authority approved the sentence, but suspended confinement in excess of thirty months for twelve months after release from confinement, pursuant to the pretrial agreement.

Before this court, Appellant has assigned the following errors:

I. Appellant’s pleas of guilty to specifications 30, 31 and 32 to Charge II were improvident since the preemption doctrine applies to these specifications.
II. Appellant’s pleas of guilty to specifications 31 and 32 to Charge II were improvident because the military judge failed to establish a substantial basis in law and fact that Appellant took a substantial step to attempt at enticement or persuasion as to the underlying crimes of sodomy and carnal knowledge.
III. Appellant’s pleas of guilty to specification 30 to Charge II were improvident because the military judge provided conflicting instruction as to the law so that Appellant did not understand what he was pleading guilty to.
IV. This court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c).

We affirm the findings, and we grant some sentence relief on account of post-trial delay.

Preemption

Appellant argues that his convictions of three specifications under Article 134, UCMJ, alleging that he violated 18 U.S.C. § 2422(b) are prohibited by the preemption doctrine, because they could have been charged as attempts under Article 80, UCMJ. This is a question of law, which we review de novo.

Manual for Courts-Martial (MCM), United States (2005 ed.),1 Pt IV, ¶ 60c(5)(a) explains, “The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132.” It goes on to provide as an example the fact pattern of United States v. Norris, 2 USCMA 236, 8 C.M.R. 36, 1953 WL 1616 (1953). In Norris, the Court of Military Appeals reversed a conviction of “wrongful taking” under Article 134, a putative offense resembling larceny or wrongful appropriation but lacking any requirement of specific intent. That holding proceeded from a finding, upon examination of legislative history, “that Congress has, in Article 121, covered the entire field of criminal conversion for military law,” id. at 39, precluding a “wrongful taking” offense under Article 134. Later cases made clear that the preemption limitation depends on a showing of legislative intent to cover a class of offenses in a complete way, as well as a showing that the offense alleged under Article 134 is composed of a residuum of elements of an offense under another article. United States v. Maze, 21 USCMA 260, 45 C.M.R. 34, 36-[707]*70737, 1972 WL 14113 (1972); United States v. Wright, 5 M.J. 106, 110-11 (C.M.A.1978).

18 U.S.C. § 2422(b) provides in pertinent part:

Whoever, using the mail or any facility or means of interstate or foreign commerce, ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in ... 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 ...

The three specifications at issue were in the following form:

... did, at or near [location], [date range], using the Internet, a means of interstate commerce, knowingly attempt to persuade and entice [an identified individual], whom the said FN Kowalski believed to be a [minor], to engage in sexual activity for which a person may be charged with a criminal offense, to wit: Article [125 or 120] of the Uniform Code of Military Justice, in violation of Title 18, United States Code § 2422(b), such conduct being prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces.

In two instances, the crime “for which a person may be charged” was sodomy under Article 125 (specifications 30 and 32), and in the third instance, the crime was carnal knowledge under Article 120,2 as he believed the individual was a 14-year-old girl (specification 31).

Appellant’s arguments that Congress intended prosecutions for sodomy and carnal knowledge to be limited to Articles 125 and 120, or attempts thereof to be limited to Article 80, consist of bare assertions and are wholly without foundation. Furthermore, the offenses as charged are not composed of a residuum of elements of an offense under another article. On the contrary, they have an obvious additional element: use of a means of interstate commerce. The doctrine of preemption has no application to this ease.

Providence of two pleas to 18 U.S.C. § 2422(b)

Appellant pleaded guilty to two specifications under Article 134, UCMJ, of attempting to persuade and entice a minor Internet chat partner to engage in illegal sexual activities with him, in violation of 18 U.S.C. § 2422(b). He now argues that the pleas were improvident because the providence inquiry did not establish that he took a substantial step toward persuading or enticing the minor identified in each specification.

The legal standard for determining whether a guilty plea is provident is whether the record presents a substantial basis in law or fact for questioning it. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.2008). The record must contain a sufficient factual basis to support the plea. MCM, Rule for Courts-Martial (R.C.M.) 910(e). The accused must believe and admit every element of the offense. United States v. Whiteside, 59 M.J. 903, 906 (C.G.Ct.Crim.App.2004) (citing R.C.M.

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United States v. Kowalski, 69 M.J. 705, 2010 CCA LEXIS 394, 2010 WL 5096131 (uscgcoca 2010).

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