United States v. Garner, C.A.A.F. (2010)

UNITED STATES, Appellee
v.
Jerry A. GARNER, Gunnery Sergeant
U.S. Marine Corps, Appellant
No. 09-0729
Crim. App. No. 200800481
United States Court of Appeals for the Armed Forces
Argued April 21, 2010
Decided May 24, 2010
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Commander Thomas P. Belsky, JAGC, USN

(argued); Rebecca S. Snyder, Esq. (on brief).
For Appellee: Captain Robert E. Eckert Jr., USMC (argued);

Brian K. Keller, Esq.
Military Judge:
R. H. Kohlman
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Garner, No. 09-0729/MC

Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his pleas, of attempting
to communicate indecent language to a child under the age of
sixteen years and of attempting to persuade, entice, and induce
a minor to engage in intercourse and oral sodomy, in violation
of Articles 80 and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. 880, 934 (2006).
The sentence adjudged by the
court-martial and approved by the convening authority included a

dishonorable discharge, confinement for twelve months, and
reduction to pay grade E-1.
The United States Navy-Marine Corps
Court of Criminal Appeals affirmed.
United States v. Garner, 67
M.J. 734, 741 (N-M. Ct. Crim. App. 2009).

On Appellants petition, we granted review of the following
issue:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN
AFFIRMING APPELLANTS CONVICTION FOR ATTEMPTING TO
ENTICE A MINOR TO ENGAGE IN ILLEGAL SEXUAL ACTIVITY,
IN VIOLATION OF 18 U.S.C. 2422(b), WHERE THE RECORD
OF TRIAL FAILED TO SHOW THAT APPELLANT TOOK THE
SUBSTANTIAL STEP NECESSARY FOR AN ATTEMPT CONVICTION
UNDER THE STATUTE.
For the reasons set forth below, we affirm.
I.
BACKGROUND
In a stipulation of fact, Appellant admitted to engaging in

numerous online conversations in an Internet chat room with an

individual using the name Molly.
Appellant, who was then
stationed at Camp Lejeune, believed that he was communicating

with a fourteen-year-old girl residing in Greensboro, North
Carolina.
In reality, Molly was an undercover police officer.
Appellant communicated online with Molly at various

times, totaling approximately seventeen hours.
During their
online exchanges, Appellant engaged in sexually explicit

communications.
In the course of expressing an interest in
engaging in sexual activities with Molly, he described

specific sexual acts.
In addition, he transmitted a webcam
video to Molly showing himself in the act of masturbation.

The conversations alluded to meetings for the purpose of
engaging in sexual activity, but Appellant did not make specific
arrangements for such meetings.
Appellants conduct resulted in charges under Article 134,
UCMJ, for attempting to violate 18 U.S.C. 2422(b) (2006).
Section 2422(b) criminalizes use of the Internet to knowingly
persuade, induce, entice, or coerce any individual under the age
of eighteen to engage in any sexual activity for which any
person can be charged with a criminal offense, or attempts to do
so.
In the course of evaluating the providence of Appellants
plea to this offense, the military judge explained each element
of this offense to the accused.
When describing the attempt

aspect of the offense, the military judge stated that an attempt
required proof that the act of using the Internet amounted to
more than mere preparation; that is, it was a substantial step
and a direct movement toward the commission of the intended
offense of enticing or persuading a minor to engage in illegal
sexual [activity].
The military judge defined a substantial
step as one that is strongly corrobative of your criminal

intent and is indicative of your resolve to commit the offense.
In response to the questions that the military judge posed
during the plea inquiry, Appellant explained that his online
conversations amounted to an effort to persuade Molly to
engage in sexual activity because he was talking to her about
sex, different sexual acts, and asking her to do different
sexual things.
Asking her what type of sexual things that she
would like, if she would like to do them with me . . . .
In
addition, Appellant acknowledged that the online conversations

included some discussion about meeting to engage in the sexual
activity.
Appellant specifically addressed his intent in
engaging in sexually explicit conversations with Molly.
He
stated that he intended to attempt to persuade, entice, or

induce her to engage in sexual activity and that he knew that
the online conversations might reasonably have the effect of
inducing her to engage in sexual activity.

The military judge and Appellant engaged in the following
colloquy with respect to the purpose of his sending Molly a
sexually explicit video of himself:
MJ:
And why did you send that?
ACC:
sir.
MJ:
Trying to get the person at the other end turned on,
And was that part of the --
ACC:
That was part of the enticing and persuading, sir.
In the context of discussing the substantial step aspect

necessary for an attempt conviction, Appellant affirmed his
belief:
(1) that his actions were more than mere preparatory
steps towards completing that offense of enticing or persuading

[Molly] to engage in sexual activity; and (2) that his
attempts would have been successful but for the fact that
Molly was not a real person.
II.
DISCUSSION
When considering a conviction pursuant to a guilty plea,

this Court reviews the military judges decision to accept the
plea for an abuse of discretion.
United States v. Inabinette,
66 M.J. 320, 322 (C.A.A.F. 2008).
In doing so, this Court
applies the substantial basis test, looking at whether there is

something in the record of trial, with regard to the factual

basis or the law, that would raise a substantial question
regarding the appellants guilty plea.
Id.
Appellant contends that his plea to the attempt offense was

improvident as a matter of law because he did not take a
substantial step towards completing the offense.
According to
Appellant, the substantial step test, when applied to an

attempt to commit an offense under 2422(b), requires a
specific arrangement for an actual rendezvous with the purported
minor.
In Appellants view, in the absence of such an
arrangement, his conversations with Molly could have simply

constituted fantasy role playing.
Appellant relies on United States v. Gladish, 536 F.3d 646,
650 (7th Cir. 2008), in which the Seventh Circuit concluded that
the substantial step requirement of 2422(b) was not
satisfied where there was no evidence that the defendant
intended to travel to meet the purported minor or to actually
engage in sexual activity with her.
The Government responds
that this Court should rely on United States v. Goetzke, 494

F.3d 1231 (9th Cir. 2007).
In Goetzke, the Ninth Circuit
rejected the argument that specific travel arrangements were

necessary to establish a substantial step.
The court concluded
that the defendant, by sending sexually explicit letters

proposing a future meeting to a minor with whom he had prior
contact, had engaged in grooming behavior, which was

sufficient to meet the substantial step requirement.
1236-37.
Id. at
In the present case, the Court of Criminal Appeals
cited Goetzke in the course of describing Appellants actions as

grooming behavior sufficient to constitute a substantial step.
Garner, 67 M.J. at 738-39.
The present case does not require us to rely on either
Gladish or Goetzke, nor does it require us to address the lower
courts interpretation of those cases.
In contrast to those
contested cases, the case before us involves a guilty plea, with

a detailed plea inquiry in which Appellant admitted that he
intended to persuade, entice, or induce Molly into sexual
activity.
The military judge correctly advised Appellant on the
definition of a substantial step.

24 M.J. 286, 290 (C.M.A. 1987).
See United States v. Byrd,
Appellant specifically
explained that his communications to Molly were designed to

induce her to engage in sexual activity, and he admitted that
those actions constituted more than mere preparatory steps.
He
further acknowledged that in sending Molly a sexually explicit

video of himself, he sought to persuade or entice her to engage
in sexual activity.
In light of these admissions at trial, the
record does not support his contention on appeal that his

conduct could have been considered fantasy role play.
Court has explained:
As this

Quite simply, where an accused pleads guilty and
during the providence inquiry admits that he went
beyond mere preparation and points to a particular
action that satisfies himself on this point, it is
neither legally nor logically well-founded to say that
actions that may be ambiguous on this point fall short
of the line as a matter of law so as to be
substantially inconsistent with the guilty plea.
United States v. Schoof, 37 M.J. 96, 103 (C.M.A. 1993) (citation
omitted).
In light of Appellants own admissions during the
providence inquiry, we conclude that the military judge did not
abuse his discretion in accepting the plea.
In that posture, we
need not address the parameters of an attempt offense under

2422(b) where the record does not contain such admissions.
III.
CONCLUSION
The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

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UNITED STATES, Appellee

For Appellant: Lieutenant Commander Thomas P. Belsky, JAGC, USN

For Appellee: Captain Robert E. Eckert Jr., USMC (argued);

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.

United States v. Garner, No. 09-0729/MC

The sentence adjudged by the

court-martial and approved by the convening authority included a

The United States Navy-Marine Corps

Court of Criminal Appeals affirmed.

United States v. Garner, 67

M.J. 734, 741 (N-M. Ct. Crim. App. 2009).

In a stipulation of fact, Appellant admitted to engaging in

United States v. Garner, No. 09-0729/MC

Appellant, who was then

stationed at Camp Lejeune, believed that he was communicating

In reality, Molly was an undercover police officer.

Appellant communicated online with Molly at various

online exchanges, Appellant engaged in sexually explicit

In the course of expressing an interest in

engaging in sexual activities with Molly, he described

In addition, he transmitted a webcam

video to Molly showing himself in the act of masturbation.

When describing the attempt

United States v. Garner, No. 09-0729/MC

The military judge defined a substantial

step as one that is strongly corrobative of your criminal

Asking her what type of sexual things that she

would like, if she would like to do them with me . . . .

addition, Appellant acknowledged that the online conversations

Appellant specifically addressed his intent in

engaging in sexually explicit conversations with Molly.

stated that he intended to attempt to persuade, entice, or

United States v. Garner, No. 09-0729/MC

And why did you send that?

Trying to get the person at the other end turned on,

And was that part of the --

That was part of the enticing and persuading, sir.

In the context of discussing the substantial step aspect

(1) that his actions were more than mere preparatory

steps towards completing that offense of enticing or persuading

When considering a conviction pursuant to a guilty plea,

United States v. Inabinette,

66 M.J. 320, 322 (C.A.A.F. 2008).

In doing so, this Court

applies the substantial basis test, looking at whether there is

United States v. Garner, No. 09-0729/MC

Appellant contends that his plea to the attempt offense was

Appellant, the substantial step test, when applied to an

In Appellants view, in the absence of such an

arrangement, his conversations with Molly could have simply

The Government responds

that this Court should rely on United States v. Goetzke, 494

In Goetzke, the Ninth Circuit

rejected the argument that specific travel arrangements were

The court concluded

that the defendant, by sending sexually explicit letters

United States v. Garner, No. 09-0729/MC

In the present case, the Court of Criminal Appeals

cited Goetzke in the course of describing Appellants actions as