UNITED STATES, Appellant/Cross-Appellee

v.

Nicholas R. SCHELL, Sergeant

U.S. Army, Appellee/Cross-Appellant

No. 13-5001

Crim. App. No. 20110264

United States Court of Appeals for the Armed Forces

Argued April 15, 2013

Decided July 8, 2013

STUCKY, J., delivered the opinion of the Court, in which BAKER, 

C.J., ERDMANN and RYAN, JJ., and EFFRON, S.J., joined.

Counsel

For Appellant/Cross-Appellee: Major Daniel D. Maurer (argued); 

Lieutenant Colonel Amber J. Roach, Major Katherine S. Gowel, and

Captain Chad M. Fisher (on brief).

For Appellee/Cross-Appellant: Captain Brandon H. Iriye

(argued); Colonel Patricia A. Ham, Lieutenant Colonel Imogene M.

Jamison, and Major Jaired D. Stallard (on brief); Lieutenant 

Colonel Jonathan F. Potter.

Military Judge: Susan K. Arnold

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Schell, No. 13-5001/AR

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Judge STUCKY delivered the opinion of the Court.

The Judge Advocate General of the Army certified two issues 

to this Court: (1) whether the United States Army Court of 

Criminal Appeals (CCA) erred in holding that attempted 

persuasion, inducement, or enticement of a minor to engage in 

sexual activity under 18 U.S.C. § 2422(b) (2006), requires that 

an accused “must intend that the minor, ultimately, actually 

engage in illegal sexual activity as a result of his persuasion, 

inducement, or enticement”; and (2) whether the accused’s 

unsworn statement during sentencing that he “never intended to 

do anything” with the minor was inconsistent with his guilty

plea. We also granted review of a related plea issue -- whether

the accused’s plea was improvident because the military judge

failed to discuss that an attempt under § 2422(b) requires a 

substantial step toward the commission of the underlying 

substantive offense.

We hold that the CCA erred in interpreting the intent 

requirement of § 2422(b), and that the accused’s unsworn

statement was therefore consistent with his guilty plea.

However, we hold that the military judge’s failure to discuss 

the substantial step requirement with the accused provides a 

substantial basis in law to question his plea.
United States v. Schell, No. 13-5001/AR

3

I. Procedural History

Consistent with his pleas, Appellee/Cross-Appellant 

(Schell) was convicted by a military judge sitting alone as a 

general court-martial of one specification each of attempted 

indecent language and attempted indecent acts in violation of

Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 880 (2006). He also pled guilty to and was convicted of one 

specification of attempted persuasion, inducement, or enticement 

of a minor to engage in sexual activity under § 2422(b), 

pursuant to clause 3 of Article 134, UCMJ, 10 U.S.C. § 934 

(2006). The military judge sentenced him to a bad-conduct 

discharge, eighteen months of confinement, forfeiture of all pay 

and allowances, and reduction to the lowest enlisted grade. 

Pursuant to a pretrial agreement, the convening authority 

reduced confinement to thirteen months but otherwise approved 

the findings and sentence. The CCA set aside the findings of 

guilty as to the § 2422(b) offense (Charge II and its 

specification), and authorized a rehearing on Charge II and the 

sentence, or a rehearing only on the sentence. United States v. 

Schell, 71 M.J. 574, 582–83 (A. Ct. Crim. App. 2012) (en banc).

II. Background

A. Facts

In March 2010 Schell engaged in graphic Internet chats with 

“Taylor” -- an individual Schell believed to be a fourteen-year-
United States v. Schell, No. 13-5001/AR

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old girl, but who was actually a Johnson County, Kansas, police 

detective. During the chats Schell asked “Taylor” about her 

sexual history, discussed sexual intercourse with her, described 

what he wanted to do with her sexually, asked if she would 

participate in sexual activity with his girlfriend and him, and 

suggested that her friends might also want to join in the sexual 

activity. In order to entice “Taylor” to engage in sexual

activity with his girlfriend and him, Schell described his 

girlfriend’s physical attributes and sexual tendencies. He also 

sent “Taylor” photos of his erect penis hoping that she would 

send him graphic photos in return.

After assurances from “Taylor” that they would not get in 

trouble, Schell set up a time and place to meet with her for the 

purpose of engaging in sexual activity. Schell later cancelled 

the planned meeting, citing timing issues and his worry that his 

girlfriend would get mad. He told “Taylor” “not tonight maybe 

another day.” Although police waited several months for Schell 

to reinitiate contact with “Taylor,” he never did.

B. Court-Martial

The Government charged the offense as follows:

Charge II: Violation of the UCMJ, Article 134

SPECIFICATION: In that [Schell], U.S. Army, did, at or 

near Fort Leavenworth, Kansas, on or between 17 March 

2010 and 18 March 2010, knowingly attempt to persuade, 

induce or entice an individual known to him by the 

screen name “joco_cheer_girl” and given name “Taylor 
United States v. Schell, No. 13-5001/AR

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Ackles,” a person [Schell] believed to be less than 18 

years of age, by means or facility of interstate 

commerce, to wit: the internet, to engage in sexual 

activity which, if undertaken, would constitute a 

criminal offense under Article 120 of the Uniform Code 

of Military Justice, in violation of 18 U.S. Code 

Section 2422(b) which conduct was of a nature to bring 

discredit upon the armed forces.

At the plea inquiry, the military judge began by explaining the 

elements of the two Article 80, UCMJ, specifications. First, 

the military judge defined the elements of indecent language, 

and informed Schell that in order to commit the offense of 

attempted indecent language under Article 80, UCMJ, his conduct 

would have to amount to more than mere preparation -- that he 

would have had to take a substantial step toward the commission 

of the intended offense. The military judge defined 

“preparation” and “substantial step.” The military judge then 

turned to the attempted indecent acts specification and 

described the elements of the offense. The military judge 

defined “preparation” again, but Schell declined the military 

judge’s offer to repeat the definition of “substantial step” for 

this offense.

For the Article 134, UCMJ, enticement charge, the military 

judge listed the elements as: (1) “[Schell] knowingly attempted 

to persuade, induce, or entice” “Taylor” believing that she was 

under eighteen years of age; (2) “which if undertaken would 

constitute a criminal offense under Article 120 of the Uniform 
United States v. Schell, No. 13-5001/AR

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Code of Military Justice” and § 2422(b); (3) “by means of or a 

facility of interstate commerce, in this case the internet”; and 

(4) which under the circumstances “was of a nature to bring 

discredit upon the armed forces.” The military judge did not 

inform Schell that in order to constitute an attempt under 

§ 2422(b), he would have had to take a substantial step toward 

the commission of the underlying offense. Both parties 

indicated that they had no issues with the elements or 

definitions given by the military judge.

Schell stated he was guilty of the enticement offense

because the messages and photos were “steps” to persuade 

“Taylor” to engage in sexual acts with him and possibly other 

individuals. He agreed that the Internet is a means of 

interstate commerce, and admitted that his conduct would have 

constituted an offense under Article 120, UCMJ, if “Taylor” had 

been a fourteen-year-old girl and he had engaged in sexual 

activity with her. He also agreed that his conduct violated 

§ 2422(b). Finally, he agreed that his conduct was service 

discrediting because it would harm the reputation of the 

military. Neither side believed any further inquiry into 

Schell’s conduct was required. The military judge found Schell 

guilty of all three specifications.

During sentencing, defense counsel pointed out that Schell 

never left Fort Leavenworth to meet “Taylor,” and that Schell 
United States v. Schell, No. 13-5001/AR

7

never actually intended to meet with “Taylor” or initiated 

contact with her after he told her he was not coming to her 

house. In his unsworn statement, Schell echoed that he never 

actually intended to act on their discussions. Based upon 

Schell and defense counsel’s sentencing arguments, the military 

judge said it was probably “prudent” to ensure that Schell and 

his counsel understood that the enticement offense was complete, 

even if Schell did not leave Fort Leavenworth to meet with 

“Taylor.” Schell’s counsel agreed that the offense was complete 

-- “there is case law that does not require a substantial step 

moving forward to actually commit the offense for which he was 

enticing for, just that he intended to entice them to commit the 

offense.” The Government and Schell agreed.

C. CCA Opinion

The CCA specified three issues, including whether Schell 

raised a matter inconsistent with his plea during his unsworn 

statement. Schell, 71 M.J. at 575. Schell also filed a 

supplemental assignment of error asserting that the military 

judge failed to sufficiently discuss the substantial step 

requirement for the enticement offense. Id.

A divided court, en banc, set aside the enticement offense,

holding “that the intent element of attempted persuasion,

inducement, or enticement requires the accused intend to 

actually persuade, induce, or entice a minor to actually engage 
United States v. Schell, No. 13-5001/AR

8

in illegal sexual activity.” Id. at 578–79. In reaching this 

holding, the majority heavily relied on the legislative history 

of § 2422(b) reasoning that the statute was intended to address 

individuals “who lure children out to actually engage in illegal 

sexual activity” as opposed to those “who simply encourage or 

incite children to assent to the possibility of illegal sex.” 

Id. at 579. The majority concluded “that appellant’s unsworn 

statements made during the sentencing phase of his courtmartial, denying that he ever had any intent to do anything with 

the minor, set up matter inconsistent with his plea requiring 

disapproval of that finding of guilty in this case.” Id. The 

majority did not reach the substantial step providency issue.

The dissenting judges argued that the majority’s reasoning 

was contrary to the plain language of the statute, and proposed 

adopting the federal circuits’ approach to interpreting 

§ 2422(b) -- “[we] ‘reject the . . . thesis that section 2422(b) 

should be interpreted to include, as an additional element of 

the offense, an intent that the underlying sexual activity 

actually take place.’” Id. at 583–84 (Haight, J., joined by 

Ayres, C.J., Cook, S.J., and Gallagher, J., dissenting) (quoting 

United States v. Dwinells, 508 F.3d 63, 65 (1st Cir. 2007)). 

They also argued that this Court’s precedent supported their 

interpretation. Id. at 584–85 (citing United States v. Brooks, 

60 M.J. 495, 498 (C.A.A.F. 2005); United States v. Winckelmann, 
United States v. Schell, No. 13-5001/AR

9

70 M.J. 403, 407 n.4 (C.A.A.F. 2011); United States v. Garner, 

67 M.J. 734, 738 (N-M. Ct. Crim. App. 2009), aff’d, 69 M.J. 31 

(C.A.A.F. 2010)). Under their interpretation of the intent 

requirement, the dissenting judges believed that the conviction 

should stand because Schell admitted intending to entice

“Taylor,” and his unsworn statement only contradicted whether he 

intended to actually engage in sex with her, not whether he 

intended to entice her. Id. at 585.

III. Certified Issue I

A. The Law

This Court reviews questions of law arising from a guilty 

plea de novo. United States v. Inabinette, 66 M.J. 320, 322 

(C.A.A.F. 2008).

18 U.S.C. § 2422(b) reads:

Whoever, using the mail or any facility or means of 

interstate or foreign commerce, or within the special 

maritime and territorial jurisdiction of the United 

States knowingly persuades, induces, entices, 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 be fined 

under this title and imprisoned not less than 10 years 

or for life.

Unless the text of a statute is ambiguous, “the plain 

language of a statute will control unless it leads to an absurd 

result.” United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012); 

see also United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F. 
United States v. Schell, No. 13-5001/AR

10

2003) (“In construing the language of a statute or rule, it is 

generally understood that the words should be given their common 

and approved usage.” (citation and internal quotation marks 

omitted)).

B. Parties’ Arguments

The Government argues that § 2422(b) is unambiguous and 

therefore the CCA incorrectly relied on legislative history to 

interpret the statute. It also argues that the CCA opinion is 

inconsistent with this Court’s precedent, and contradicts wellsettled uniformity among the federal circuits.

Schell’s arguments mirror the CCA opinion. First, he 

argues the plain language of the statute requires that an 

accused must have a specific intent to have the minor actually 

engage in illegal sexual activity.

Second, he argues that the legislative history of § 2422(b)

supports the CCA’s interpretation. In drafting § 2422(b)

Congress contemplated, but decided against, prohibiting contact 

or attempts to contact minors via the Internet for the purposes 

of engaging in sexual activity -- the “contact amendment.” H.R. 

Rep. No. 105–557, at 687 (1998). Schell argues Congress 

rejected the contact amendment because it would have essentially 

created a thought crime. Schell equates the Government’s 

interpretation of § 2422(b) with the failed contact amendment 
United States v. Schell, No. 13-5001/AR

11

and urges this Court to follow Congress’s lead and reject the 

Government’s interpretation.

Third, Schell believes that the CCA’s opinion is not 

inconsistent with this Court’s Winckelmann, Brooks, and Garner

opinions because those opinions did not explicitly address 

§ 2422(b)’s intent requirement.

Finally, Schell downplays the uniformity of the federal 

circuits on this issue. He argues that the law encompassing the 

intent requirement continues to evolve in the federal circuits, 

and points out that at least one federal circuit has recently 

adopted the same intent requirement as the CCA. See United 

States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir. 2012) (“the 

Government [must] prove beyond a reasonable doubt that Lebowitz 

intended to engage in criminal sexual activity with [a minor]”).

C. Analysis

As a threshold matter, we believe that the plain language 

of § 2422(b) is unambiguous.1

 Contrary to the CCA’s holding, 

 

1 The terms “entice,” “induce,” and “persuade” are not 

statutorily defined. Therefore we accord them their ordinary 

meaning. United States v. Falk, 50 M.J. 385, 390 (C.A.A.F. 

1999). In ordinary usage, they are effectively synonymous --

“‘the idea conveyed is of one person leading or moving another 

by persuasion or influence, as to some action [or] state of 

mind.’” United States v. Engle, 676 F.3d 405, 411 n.3 (4th Cir. 

2012) (alteration in original) (quoting United States v. 

Broxmeyer, 616 F.3d 120, 125 (2d Cir. 2010)); see also Black’s 

Law Dictionary 611, 845, 1260 (9th ed. 2009) (defining “entice” 

as “[t]o lure or induce; esp., to wrongfully solicit (a person) 

to do something”; “inducement” as “[t]he act or process of 
United States v. Schell, No. 13-5001/AR

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nothing in the plain language of § 2422(b) indicates that an 

accused must “intend to actually persuade, induce, or entice a 

minor to actually engage in illegal sexual activity.” Compare

Schell 71 M.J. at 578–79 (emphasis added), with 18 U.S.C. 

§ 2422(b) (2006).

Even if we were to view § 2422(b) as ambiguous, Schell’s 

characterization of the legislative history is unpersuasive. 

The legislative history indicates that Congress intended the 

statute “to address those who lure children out to actually 

engage in illegal sexual activity,” Schell, 71 M.J. at 579, but 

also to more broadly “protect children and families 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 intend to 

actually engage in a sexual crime. H.R. Rep. No. 104-652, § 

508, at 1130 (“Section 508 would amend [§ 2422(b)] to prohibit 

the use of a facility of interstate commerce . . . for the 

purpose 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.”).

Furthermore, we do not find Schell’s reliance on the failed 

contact amendment compelling. See United States v. Craft, 535 

 

enticing or persuading another person to take a certain course 

of action”; and “persuade” as “induc[ing] (another) to do 

something”).
United States v. Schell, No. 13-5001/AR

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U.S. 274, 287 (2002) (“Failed legislative proposals are ‘a 

particularly dangerous ground on which to rest an interpretation 

of a prior statute.’” (citation omitted)). To establish an 

attempt under § 2422(b), we have held that the Government must 

prove that an 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. Brooks, 60 M.J. at 498–99; 

Winckelmann, 70 M.J. at 407; see also Manual for Courts-Martial, 

United States (MCM) pt. IV, paras. 4.a.(a), 4.c.(1) (2008 ed.).2 

This second element -- the substantial step requirement --

ensures that mere thought crimes are not prosecuted.

Schell is correct that this Court has not directly 

addressed the intent requirement of § 2422(b). However, the 

opinions in Winckelmann, Brooks, and Garner support the 

Government’s interpretation of § 2422(b). See Winckelmann, 70 

M.J. at 407 n.4 (addressing what constitutes a substantial step 

under § 2422(b) and noting that “the military judge incorrectly 

instructed the members that the substantial step must be toward 

 

2 Other federal circuits require the same for an attempt under § 

2422(b). See, e.g., United States v. Murrell, 368 F.3d 1283, 

1286 (11th Cir. 2004) (“[T]he government need only prove (1) 

that the defendant had the specific intent to engage in the 

criminal conduct for which he is charged and (2) that he took a 

substantial step toward commission of the offense.”); United 

States v. Young, 613 F.3d 735, 742 (8th Cir. 2010); United 

States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009); United 

States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006).
United States v. Schell, No. 13-5001/AR

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actually engaging in sexual activity rather than a substantial 

step towards enticement alone”); Brooks, 60 M.J. at 498 (citing 

federal circuit precedent indicating “that a conviction under 

§ 2422(b) does not require a defendant to attempt an actual 

sexual act”); Garner, 67 M.J. at 738 (“an accused need not 

intend that the underlying sexual activity actually take place 

but only that the accused intend[ed] to persuade a minor to 

engage in such activity), aff’d, 69 M.J. 31, 33 (C.A.A.F. 2010)

(affirming a § 2422(b) conviction on the grounds that the record 

contained the required guilty plea admissions by the accused).

Additionally, although not binding on this Court, nearly 

every federal circuit disagrees with the CCA’s interpretation of 

§ 2422(b)’s intent requirement. See, e.g., United States v. 

Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v.

Douglas, 626 F.3d 161, 164 (2d Cir. 2010); United States v. 

Nestor, 574 F.3d. 159, 161–62 (3d Cir. 2009); United States v. 

Engle, 676 F.3d 405, 419 (4th Cir. 2012); United States v. 

Broussard, 669 F.3d 537, 548 (5th Cir. 2012); United States v. 

Hart, 635 F.3d 850, 854 (6th Cir. 2011); United States v. Berg, 

640 F.3d 239, 251 (7th Cir. 2011); United States v. Pierson, 544 

F.3d 933, 939 (8th Cir. 2008); United States v. Hofus, 598 F.3d 

1171, 1178–79 (9th Cir. 2010); United States v. Lee, 603 F.3d 
United States v. Schell, No. 13-5001/AR

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904, 914 (11th Cir. 2010).3 These cases span a broad range of 

procedural postures and fact patterns, and the Supreme Court has 

not seen fit to question the federal circuits’ interpretation of 

§ 2422(b), nor does there appear to be a trend among the federal 

circuits towards the CCA’s interpretation. Therefore, we find 

no reason to depart from this Court’s precedent or established 

federal practice.

The plain language of the statute, this Court’s precedent, 

and federal circuit precedent support the Government’s 

interpretation of § 2422(b)’s intent requirement. The CCA erred 

in holding that “the accused must intend that the minor, 

ultimately, actually engage in illegal sexual activity as a 

result of his persuasion, inducement, or enticement.” Schell, 

71 M.J. at 578. Rather, the intent required to support an 

attempt conviction under § 2422(b) is the intent to commit the 

predicate offense -- that is, the intent to persuade, induce, 

entice, or coerce a minor for the purposes of engaging in 

illegal sexual activity.

 

3 The United States Court of Appeals for the Eleventh Circuit has 

wavered slightly on this issue. See Lebowitz, 676 F.3d at 1013 

(“the Government [must] prove beyond a reasonable doubt that 

Lebowitz intended to engage in criminal sexual activity with 

K.S.”). However, it appears that Lebowitz may just be an 

outlier. See United States v. Slaughter, 708 F.3d 1208, 1215 

(11th Cir. 2013) (indicating that § 2422(b) is intended to 

“criminalize enticement and attempted enticement of an 

individual under the age of eighteen years”).
United States v. Schell, No. 13-5001/AR

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IV. Certified Issue II

“If an accused sets up matter inconsistent with the plea at 

any time during the proceeding, the military judge must either 

resolve the apparent inconsistency or reject the plea.” United 

States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2005) (quoting 

United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996))

(internal quotation marks omitted); Article 45(a), UCMJ, 

10 U.S.C. § 845(a) (2006). A military judge abuses his 

discretion if he neglects or chooses not to resolve an 

inconsistency or reject the inconsistent or irregular pleading. 

United States v. Hayes, 70 M.J. 454, 457–58 (C.A.A.F. 2012).

Schell argues that trial defense counsel’s statements 

during sentencing that he did not actually intend to engage in 

sexual activity with “Taylor,” and his unsworn statement that he 

“never intended to do anything” with her raised a matter 

inconsistent with his plea that the military judge left 

unresolved. This argument is unavailing given our holding on 

Certified Issue I.

Even if Schell did not actually intend to engage in illegal 

sexual activity with “Taylor,” he admitted in a detailed 

stipulation of fact and during the plea colloquy that he 

intended to entice her to engage in illegal sexual activity. 

Therefore, Schell admitted that he had the requisite intent to 

support an attempt conviction under § 2422(b), and neither trial 
United States v. Schell, No. 13-5001/AR

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defense counsel’s statements nor Schell’s unsworn statement 

raised a matter inconsistent with his plea. See Schell, 71 M.J. 

at 583 (Haight, J., joined by Ayres, C.J., Cook, S.J., and 

Gallagher, J., dissenting) (“[a] stated lack of intent to engage 

in sexual activity is not inconsistent with the intent to entice 

to engage in sexual activity”).

V. Granted Issue

A.

A military judge’s acceptance of an accused’s guilty plea 

is reviewed for an abuse of discretion. Inabinette, 66 M.J. at 

322. The test for an abuse of discretion is whether the record 

shows a substantial basis in law or fact for questioning the 

plea. Id. “For this Court to find a plea of guilty to be 

knowing and voluntary, the record of trial ‘must reflect’ that 

the elements of ‘each offense charged have been explained to the 

accused’ by the military judge.” United States v. Redlinski, 58 

M.J. 117, 119 (C.A.A.F. 2003) (quoting United States v. Care, 18 

C.M.A. 535, 541, 40 C.M.R. 247 (1969)); see also Article 45, 

UCMJ; Rule for Courts-Martial 910(c)(1). If the military judge 

fails to explain the elements to an accused, it is reversible 

error unless “it is clear from the entire record that the 

accused knew the elements, admitted them freely, and pleaded 

guilty because he was guilty.” United States v. Jones, 34 M.J. 

270, 272 (C.M.A. 1992). “Rather than focusing on a technical 
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listing of the elements of an offense, this Court looks at the 

context of the entire record to determine whether an accused is 

aware of the elements, either explicitly or inferentially.”

Redlinski, 58 M.J. at 119.

“Unlike some simple military offenses, attempt is a more 

complex, inchoate offense that includes two specific elements 

designed to distinguish it from mere preparation.” Id. To 

establish an attempt under § 2422(b), this Court has held that 

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. Winckelmann, 70 M.J. at 

407.

B.

In defining the elements of the Article 134, UCMJ, offense 

the military judge erred because she failed to instruct Schell 

that he had to take a substantial step toward persuading, 

inducing, enticing, or coercing a minor in order to plead guilty 

to an attempt under Article 134, UCMJ. Additionally, neither 

the specification nor the stipulation of fact mentioned that a 

“substantial step” was an element of the Article 134, UCMJ, 

offense.

The fact that the military judge instructed on and defined 

“substantial step” for the Article 80, UCMJ, offenses does not 
United States v. Schell, No. 13-5001/AR

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cure this error. There is nothing in the record to indicate 

that Schell understood that the Article 134, UCMJ, offense 

shared the “substantial step” element with the Article 80, UCMJ, 

offenses. The military judge did not discuss the element with 

respect to the Article 134, UCMJ, charge, nor cross-reference 

the element with the Article 80, UCMJ, attempt offenses. See

United States v. Barton, 60 M.J. 62, 63–65 (C.A.A.F. 2004)

(recognizing that cross-referencing an element of separate 

offenses during a plea colloquy may not amount to error).

Schell was “not entitled to receive a hornbook review of 

the distinction” between mere preparation and a substantial 

step, but “the record must objectively reflect that [he] 

understood that his conduct, in order to be criminal, needed to 

go beyond preparatory steps and be a direct movement toward the 

commission of the intended offense.” Redlinski, 58 M.J. at 119. 

That Schell admitted facts during his plea colloquy that are 

likely sufficient to prove that he took a substantial step 

towards enticing “Taylor,” does not answer the altogether 

different question whether he understood that a substantial step 

was necessary to make his conduct criminal. Even though Schell 

agreed that the military judge correctly described his crime, 

and admitted that he took “steps” to attempt to persuade 

“Taylor,” the record before us does not demonstrate that Schell 

understood how the law related to the facts. United States v. 
United States v. Schell, No. 13-5001/AR

20

Medina, 66 M.J. 21, 26 (C.A.A.F. 2008). Therefore, we set aside 

Schell’s guilty plea to the Article 134, UCMJ, offense because 

there is a substantial basis in law to question the providence

of his plea.

VI.

We reject the reasoning of the United States Army Court of 

Criminal Appeals as to the certified issues, but affirm the 

judgment of that court because there is a substantial basis in 

law to question Schell’s plea.