United States v. Muerer ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32406
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UNITED STATES
Appellee
v.
Nelson W. MEURER
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 24 May 2017
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Military Judge: Vance H. Spath.
Approved sentence: Bad-conduct discharge, confinement for 10 months,
forfeiture of $1,000.00 pay per month for 10 months, and reduction to
E-1. Sentence adjudged 6 April 2016 by SpCM convened at Eglin Air
Force Base, Florida.
For Appellant: Major Annie W. Morgan, USAF.
For Appellee: Major G. Matt Osborn, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge SPERANZA joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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JOHNSON, Senior Judge:
A special court-martial composed of a military judge found Appellant
guilty, in accordance with his pleas and pursuant to a pretrial agreement with
the convening authority, of one specification of sexual abuse of a child and one
United States v. Meurer, No. ACM S32406
specification of enticement of a child under the age of 18 years as prohibited by
18 U.S.C. § 2422(b), in violation of Articles 120b and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920b, 934. 1 Appellant’s adjudged and
approved sentence consisted of a bad-conduct discharge, confinement for ten
months, forfeiture of $1,000.00 pay per month for ten months, and reduction
to the grade of E-1. 2
Before us, Appellant asserts his plea of guilty to the charge of enticing a
child in violation of Article 134, UCMJ, was improvident in multiple respects.
We find no error and affirm the findings and sentence.
I. BACKGROUND
Appellant was a security forces member stationed at Eglin Air Force Base,
Florida. In 2014, Appellant joined a local motorcycle club. His sponsor in the
club, DS, had a stepdaughter, RS, whom Appellant met through club activities.
DS later switched his affiliation to another motorcycle club, but Appellant con-
tinued to spend time with DS and his family, including RS. In August of 2015,
with DS’s guarded permission, Appellant spent several hours with RS, giving
her a ride on his motorcycle and taking her to lunch. DS warned Appellant
beforehand via text message that RS “was only 15 [years old] . . . I don’t want
to kill you,” to which Appellant responded “shes [sic] ur daughter bro I wouldn’t
try anything with a brothers [sic] daughter.”
Nevertheless, communications between Appellant and RS increased after
this motorcycle ride. During a Skype video call approximately one week later,
Appellant exposed his penis to RS while he masturbated. Also in August of
2015, Appellant sent RS a message via the SnapChat mobile phone application
to the effect that when they both attended an upcoming “family night” gather-
ing at the clubhouse, RS should wear a green or blue shirt as a signal that she
wanted to go to a secluded location to engage in sexual activity with Appellant.
RS later described Appellant’s message in a SnapChat exchange with a friend
during which she also expressed her desire to have sex with Appellant. How-
1Pursuant to the pretrial agreement between Appellant and the convening authority,
a separate specification of sexual abuse of a child in violation of Article 120b, Uniform
Code of Military Justice, was withdrawn and dismissed at trial.
2 The pretrial agreement provided the convening authority would approve no confine-
ment in excess of 11 months, but included no other limitations on the sentence he could
approve. Accordingly, the agreement had no impact on the convening authority’s abil-
ity to approve the adjudged sentence.
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United States v. Meurer, No. ACM S32406
ever, RS wore a black shirt to the event. Appellant’s activities came to the at-
tention of RS’s parents soon thereafter; they reported Appellant’s offenses to
civilian police and Appellant informed his Air Force supervisor.
At trial, Appellant pleaded guilty to sexual abuse of a child in violation of
Article 120b, UCMJ, by exposing his penis to RS during the Skype video call,
and to the following violation of Article 134, UCMJ:
In that [Appellant] . . . did, at or near Crestview, Florida, on or
about 17 August 2015, using a means of interstate commerce, to
wit: the Internet, knowingly entice, [RS], a child who had not
attained the age of 18 years, to engage in sexual activity of a
criminal nature, in violation of 18 United States Code Section
2422(b).
The military judge’s providence inquiry3 with Appellant included the fol-
lowing exchange regarding the meaning of “entice”:
MJ [Military Judge]: So, what does entice mean? Ordinary
meaning. So, just think of the dictionary. To attract someone to
do something by arousing hope, desire or interest in doing some
particular thing; does that make sense?
ACC [Appellant]: Yes, sir.
MJ: And so how do you believe you were knowingly enticing her
to engage in sexual conduct?
ACC: Because I was asking her to wear a specific article of cloth-
ing so that would be the signal to go across the street [to engage
in sexual activity].
MJ: Where were you meeting that day?
ACC: At the Iron Rockets Clubhouse, sir, located in Fort Walton
Beach.
MJ: And it was for a picnic or something?
ACC: Family dinner.
MJ: So, in your messaging to her it was a color to wear to indi-
cate to you that she had interest in engaging in the sexual activ-
ity?
ACC: Yes, sir.
MJ: And what were the colors?
3 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
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United States v. Meurer, No. ACM S32406
ACC: Blue or green, sir.
MJ: And then what were you thinking if she had worn that color
shirt? The plan was to go somewhere else away from the family
dinner and engage in the sexual activity; is that accurate?
ACC: Yes, sir.
II. DISCUSSION
A. Standard of Review
A military judge’s decision to accept a guilty plea is reviewed for an abuse
of discretion. United States v. Blouin, 74 M.J. 247, 251 (C.A.A.F. 2015). “The
test for an abuse of discretion in accepting a guilty plea is whether the record
shows a substantial basis in law or fact for questioning the plea.” United States
v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014). The military judge must question
the accused under oath about the offenses to ensure there is an adequate fac-
tual basis for a guilty plea. Rule for Courts-Martial 910(e); see Article 45(a),
UCMJ, 10 U.S.C. § 845(a). It is an abuse of discretion for the military judge to
accept a guilty plea without an adequate factual basis or based on an erroneous
view of the law. United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012). How-
ever, we look to the entire record to determine whether there is a substantial
basis to question the guilty plea. United States v. Jordan, 57 M.J. 236, 239
(C.A.A.F. 2002).
Whether a specification is defective is a question of law appellate courts
review de novo. United States v. Ballan, 71 M.J. 28, 34 (C.A.A.F. 2012). A claim
that a charge fails to state an offense, if not raised at trial, is tested for plain
error on appeal. Id. To prevail under a plain error analysis, an appellant must
show (1) there was an error; (2) the error was plain and obvious; and (3) the
error materially prejudiced a substantial right. United States v. Girouard, 70
M.J. 5, 11 (C.A.A.F. 2011).
B. Analysis
Appellant advances three arguments as to why his plea of guilty to enticing
a child to engage in illegal sexual activity in violation of Article 134, UCMJ, is
improvident. We consider each in turn.
1. Failure to State an Offense
Appellant contends for the first time on appeal that the specification alleg-
ing a violation of Article 134 fails to state an offense because it does not ex-
pressly include the language, “an offense not capital.” Citing the United States
Court of Appeals for the Armed Forces (CAAF) decision in United States v.
Fosler, he notes that Article 134 is composed of three clauses which constitute
“distinct and separate” categories of offenses: disorders and neglects to the
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United States v. Meurer, No. ACM S32406
prejudice of good order and discipline; conduct of a nature to bring discredit
upon the armed forces; and “crimes and offenses not capital.” 70 M.J. 225, 226,
230 (C.A.A.F. 2011); see Article 134, UCMJ, 10 U.S.C. § 934. Appellant cor-
rectly notes that a violation of one of these clauses does not necessarily lead to
a violation of the others, and an accused is entitled to notice as to which of the
three types of offenses he is charged with violating. Fosler, 70 M.J. at 230. Ap-
pellant asserts the specification’s failure to include the phrase “an offense not
capital,” coupled with the military judge’s failure to explain the third clause of
Article 134 to Appellant during the providence inquiry, fatally undermines his
guilty plea.
We disagree. In Fosler, the CAAF recognized that while the commission of
“an offense not capital” is a required element for a charge under the third
clause of Article 134, that element may be alleged “expressly or by necessary
implication.” Id. at 232. Unlike Fosler, the specification Appellant pleaded
guilty to here specifically cited a non-capital federal criminal statute, 18 U.S.C.
§ 2422(b), and included in its text every element of that offense. 4 Thus, the
specification clearly alleged the commission of “an offense not capital,” and we
have no doubt it was perfectly clear to the Defense which clause of Article 134
Appellant was charged with violating. 5
Moreover, Fosler involved a charge to which the accused pleaded not guilty;
in Ballan, the CAAF explained the analysis is quite different where an appel-
lant pleads guilty and challenges the sufficiency of the specification for the first
time on appeal. 71 M.J. at 34–35. In Ballan, the CAAF found the failure to
allege prejudice to good order and discipline or discredit to the service rendered
the specification defective in light of Fosler; yet, applying a plain error analysis,
the court found no prejudice to a substantial right where the appellant admit-
ted to every element of the offense—including the service discrediting nature
of his conduct—during the providence inquiry. Id. Similarly, Appellant was
informed of and admitted to every element of the Article 134 offense charged
against him. Appellant attempts to distinguish Ballan by arguing that in his
case the military judge did not use the terms “crime or offense not capital” or
specifically explain how clause three of Article 134 operates, but we are not
4 As the military judge explained to Appellant at trial, these elements included that
Appellant: (1) using a means of interstate commerce; (2) did knowingly entice; (3) RS,
a child under the age of 18 years; (4) to engage in criminal sexual activity; (5) in viola-
tion of 18 U.S.C. § 2422(b).
5 We note that Executive Order 13,740, published 22 September 2016, amended the
Manual for Courts-Martial, United States (MCM) by, inter alia, inserting a require-
ment that violations of Article 134 charged under clause 3 “must expressly allege that
the conduct was ‘an offense not capital . . . .’” MCM, pt. IV, ¶ 60.c.(6)(b) (2016 ed.).
However, this requirement did not exist at the time of Appellant’s trial.
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persuaded. As in Ballan, the military judge’s inquiry ensured Appellant un-
derstood the nature of the alleged violation and admitted to every element of
the offense he had been charged with. See id. at 35. Thus, even if the omission
of the language “an offense not capital” from the specification had been error,
we would find no material prejudice to a substantial right and, therefore, we
would find no relief warranted under the plain error standard. See Girouard,
70 M.J. at 11.
2. Factual Basis for the Guilty Plea
Appellant next contends the military judge failed to adduce a sufficient fac-
tual basis for his guilty plea. Specifically, Appellant notes the Government
charged him with “knowingly entic[ing]” RS to engage in criminal sexual ac-
tivity. Appellant argues this would require the Government to prove not only
that he sent a communication to RS with the intent to entice her, but that she
was actually enticed. Appellant points to the fact that RS wore a black shirt to
the family dinner, rather than the green or blue shirt that was to be the signal
that she desired to engage in sexual activity with Appellant, as evidence RS
was not, in fact, enticed.
It is true that the definition of “entice” the military judge gave Appellant
could be understood to mean an actual arousal of hope, desire, or interest in
the sexual activity. It is also true that the military judge’s colloquy with Ap-
pellant focused on Appellant’s intent in sending the message rather than on
his success in generating interest on RS’s part. The stipulation of fact admitted
as a prosecution exhibit also fails to clarify whether RS felt any desire or in-
terest as a result of Appellant’s message. Furthermore, the Government could
have charged an attempt to entice RS, which 18 U.S.C. § 2422(b) also prohibits,
rather than actual enticement, but it elected not to do so.
However, it is unnecessary for us to further parse the definition of “entice”
because, even accepting Appellant’s contention that the accomplishment of an
actual effect in the victim’s mind was required, the record here indicates Ap-
pellant’s message had the intended effect of arousing desire and interest in RS.
In examining the factual basis for the guilty plea we may consider not only the
providence inquiry, but the entire record. Jordan, 57 M.J. at 239. The text con-
versation between RS and her friend wherein she discusses Appellant’s text
regarding the green or blue shirt, admitted as a defense exhibit, clearly indi-
cates Appellant had aroused her interest and desire. The fact that RS, for any
number of possible reasons, ultimately wore a black shirt to the family dinner
rather than a green or blue one does not establish Appellant’s message had no
effect on RS. Therefore, we find no substantial basis in law or fact to disturb
the guilty plea. See Moon, 73 M.J. at 386.
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3. Military Judge’s Instructions to Appellant
Appellant’s final argument appears intended to complement, and to be
predicated on the success of, his second argument. Following his contention
that Appellant’s conviction for knowingly enticing RS fails for lack of a factual
basis, he acknowledges Appellant might have been charged with attempted
enticement, which is also a violation of 18 U.S.C. § 2422(b). However, he con-
tinues, a provident guilty plea to attempted enticement would require that the
military judge instruct Appellant that his actions amounted to a “substantial
step” toward enticing RS and not “mere preparation.” United States v. Schell,
72 M.J. 339, 345–46 (C.A.A.F. 2013). Here, the military judge did not so in-
struct Appellant for the logical reasons that (1) Appellant was not charged with
attempt, and (2) the military judge found Appellant’s plea to “actual” entice-
ment to be provident. Because we find a sufficient factual basis in the record
for the charged enticement, as described above, Appellant’s argument regard-
ing the failure to instruct on a substantial step loses any significance.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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