## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Specialist CHRIST OPHER R. KEARNS United States Army, Appellant

ARMY 20110348

Headquarters, Fort Bliss David H. Robertson, Military Judge Colonel Francis P. King, Staff Judg e Advocate (pretr ial & addendum)
Lieutenant Colonel Oren H. McKnel ly, Acting Staff Judge Advocate (recommendation)

For Appellant: Colone l Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bash ore, JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA; Captain Jessica J. Mora les, JA (on brief).

17 April 2013

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OPINION OF THE COURT

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KRAUSS, Judge:

A panel of officers sitting as a general court-martial properly tried appellant in absentia, and convic ted him, contrary to his pleas of not guilty prop erly entered, of false official statement, aggravated sexu al assault of a child, transportation of a minor for illegal sexu al activity (as defined by 18 U.S. C. § 2423(a)), and disorderly conduct, in violation of Articles 107, 120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920, 934 (2006 & Supp. II 2008) [hereinafter UCMJ]. 1
The convening authority approved the adjudge d sentence to a bad- conduct discharge,

1 Charges of conspiracy to transport mino rs under Articles 81 and 134, UCMJ, were dismissed by the judge, an d the panel acquitted appe llant of adultery.KEARNS—ARMY 20110348

2 confinement for four years, fo rfeiture of all pay and allo wances, and reduc tion to the grade of E-1.

Appellant’s case is now be fore this court for review under Article 66, UCMJ. Appellant assigns as error that the evidence is legally and factually insufficient to support his conviction for transportation of a minor and that his conviction for disorderly conduct is invalid under applicat ion of the preemption doctrine. He also
raises a number of i ssues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). After examining the record of trial, considering the parties’ briefs
and matters raised pursuant to Grostefon , we agree with the parties on the propriety of dismissing the diso rderly conduct charge but othe rwise find the findings and
sentence correct in law and fact.

Appellant’s assigned error re lative to the transportati on of a minor warrants
discussion and we here deci de the intent required to convict under 18 U.S.C. § 2423(a).

BACKGROUND

Appellant twice had sexual intercourse with a minor, KO, in Pennsylvania. KO was fifteen years old at all relevant time s in this case and the sister-in-law of appellant’s brother. Appell ant had known the gi rl for several year s. Not long after appellant engaged in sexual intercourse with KO he returned to Texas. Soon thereafter he arrang ed for KO to accompa ny another of his para mours, NA, in a car from Pennsylvania to Texas. Once in Texas, poli ce authorities arrested NA and placed KO and one of her friends in de tention as runaways . The Texas police contacted Army law enforcem ent authorities and requeste d their assistance, asking that Criminal Investigati on Command (CID) agents inte rview appellant. This request was apparently inspir ed by KO’s statement that she was on her way to visit appellant.

The Department of the Army detective who then interviewed appellant testified that the Texas police agent suspected that human trafficking might be
involved. The detective did not read appellant his Ar ticle 31, UCMJ, rights and testified that he did not so advise appella nt because he did not suspect appellant of any offense. Appellant procee ded to render a statement in which he denied any part in the minor’s transportati on whatsoever. Defense counsel made no motion to suppress this unwar ned statement.

Sometime later appellant was again interviewed by different CID agents,
informed that he was suspected of aggravated sexual assault of a ch ild and advised of his Article 31 rights. He waived those rights and duri ng the course of a lengthy interview initially characterize d his relationship with KO as purely famili al, platonic and mentoring. He de scribed himself as fulf illing the role of gu idance coun selor to KO and that his reason for carrying on a frie ndship with KO was to help her. SheKEARNS—ARMY 20110348

3 was inclined to sel f-abuse, expressed depr essed and suicidal thoughts, and claimed that appellant’s brother had raped and abus ed her.

In both the initial and second interview appellant, at length, described his
motives as altruistic. He essentially stated that he wanted to help KO.

There is no doubt KO co mplained that appellant’s brother raped her and repeated that complaint to the authorities in Pennsylvania as well as to appellant.
These claims turned out to be false. There is also no doubt that KO wa nted to be with appellant in Texas. She claimed, however, that neithe r she nor appellant
intended to have sex again before she turn ed eighteen. Prior to her departure from Pennsylvania, KO and appellant frequent ly talked by phone and KO admitted to sending appellant a photograph of he r naked breast by text message.

Ultimately, appellant admitted to previo usly having sexual relations with KO but never made any admission about transporting her over state lines with the intent to engage in illegal sex with her.

Specification 1 of Charge III , in this case, alleged:

SPC Christopher Kearns . . . did, at or near Fort Bliss, Texas, and Pennsylvania, be tween on or ab out 1 January 2010 and 5 February 2010, wr ongfully and knowingly transport [KO], an individua l who has not attained 18 years of age, in interstate commerce in violation of 18 U.S.C. 2423(a), with intent that [KO] would engage in
sexual intercourse with SPC Ke arns, a criminal offense, to wit: Aggravated Sexual Assault of a Child in violation of Article 120, Uniform Code of Militar y Justice.

The defense argued that he did not transport KO with the intent that she engage in illegal sex but rather that he tr ansported KO with the intent to rescue her
from abuse.

Without objection or requ est for additional instruction the military judge instructed the panel that in order to conv ict appellant of the transportation offense they had to find:

beyond any reasonab le doubt that betw een on or about 1 January 2010 and 5 Fe bruary 2010, at or near Fort Bliss, Texas and Pennsylvan ia, [NA] wrongful ly and knowingly transported KO in interstate commerce; that at the time of the transportation KO was less than 18 years old; that at
the time of the tran sportation the accus ed intended that KO would engage in illegal sexu al activity, to wit: sexual intercourse with the accused; that at the time Title 18KEARNS—ARMY 20110348

4 United States Code Section 2 423(a) was in existence; and that the accused knowingly an d willfully aide d and abetted [NA] in transporting [KO] in interstate commerce.

The judge proceeded to instruct on princi pal liability, that th e offense required appellant to possess the “specific intent to engage in sexual intercourse with [KO] knowing she was a minor,” offere d the elements of the alle gedly intended aggravated sexual assault offense, 2 and further definitions including that “to transport in
interstate commerce means to move or car ry someone or cause someone to be moved
or carried from one state to another.” 3

LAW AND DISCUSSION

The statutory provision alle ged under Article 134, Clau se 3, in this case, was subsection (a) of 18 U.S.C. § 24 23, “Transportation of Minors,” 4 provides:

T RANSPORTATION WITH INTENT TO ENGAGE IN CRIMINAL

SEXUAL ACTIVITY .—A person who knowi ngly transports an
individual who has not attain ed the age of 18 years in interstate or foreign commer ce, or in any commonwealth, territory or possession of th e United States, with intent that the individual engage in pr ostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

Appellant argues that the evidence is insu fficient to prove th at any intent he may have had to engage in illegal sexual activity with KO was a motivating, compelling, or significant purpose for tran sporting KO across st ate lines, culling
definition of the in tent required from various fede ral circuit courts of appeals. 5
Indeed the parties ne ither offer nor do we find any p ublished military justice opinion relative to the intent required to convict under 18 U.S.C. § 2423(a). Neither do we

2 The judge properly included instruction that this offense required proof that at the
time of the intended sexual intercourse KO must not have attained the age of sixteen

years.

3 We need not and do not d ecide here whether the judge’s instruction requiring that appellant know KO was a mino r to be guilty of the offe nse charged wa s correct.

4 This statute is still popula rly known as the Mann Act.

5 The evidence is certainly sufficient to establish his transportation of KO as a principal under Article 77, UCMJ.KEARNS—ARMY 20110348

5 find any circuit that has ad dressed the matter to hold that the singular purpose of transporting a minor mu st be that the minor engage in illegal sexua l activity. Rather the circuits are in essential agreement that an accused must entert ain the intent that the minor engage in unlaw ful sexual activity as a purpose of the transportation not necessarily the purpose. See, e.g.

, United States v. Hayward , 359 F.3d 631, 638 (3rd Cir. 2004) (collecting ca ses and discussing dominant versus significant or motivating purpose).

Though the circuits employ various formulations to describe the quality of intent required, fundamental agreement on the subject in those courts prevails. Id. ; United States v. McGuire , 627 F.3d 622, 624–6 25 (7th Cir. 2010 ) (discussing the
evolution of the Mann Act an d the various formulas used to interpret the intent required in ligh t of dictum in Mortensen v. United States , 322 U.S. 3 69, 374 (1944), where the Supreme Court “said that engaging in forbidden sexual activity ‘must be the dominant purpos e of such inters tate movement’”). 6 We agree with the court in

McGuire and decline to ad opt any such formul a as unnecessary. As long as the illegal sexual acti vity is a purpose of th e transport and not merely incidental to the travel, the requisite intent is met. See, e.g.

, United States v. Campbell , 49 F.3d 1079, 1083 (5th Cir. 1995 ).

We need not contort langua ge to properly apply the law; if you transport a minor, with the intent that the minor engage in illegal sexual ac tivity, whether that activity be the sole purpose of the transp ort or one of many, yo u are guilty of the
offense. See, e.g.

, United States v. Tavares , 705 F.3d 4, 17 (1st Cir. 2013). The evidence in this case is sufficient to prov e the appellant entertained that intent. He had already engaged in illegal sexual activity with KO be fore he arranged for her transportation across st ate lines. Her feelings for him were romantic and she sent him a sexually s uggestive photograph prior to her departure. His initial dishonest denial of any role in her transportation 7 and dishonest charac terization of his

6 See also United States v. Broxmeyer , 616 F.3d 120, 128–130 (2d Cir. 2010); United

States v. Bennett , 364 F.2d 77, 78–79 (4th Cir. 1966); United States v. Harris , 480 F.2d 601, 602 (6th Cir. 1973); United States v. Hoffman , 626 F.3d 993, 9 96 (8th Cir. 2010); Ghadiali v. United States , 17 F.2d 236, 237 (9th Cir. 1927); United States v.
Meacham , 115 F.3d 1488, 1495– 96 (10th Cir. 1997); United States v. Hoschouer

, 224 F.App’x 923, 926–27 (11th Ci r. Apr. 3, 2 007) (unpub.); cf. United States v.
Miller , 148 F.3d 207, 212–13 (2d Cir. 1998) (maintaining that the motive of illegal sex must “predominate” ove r other purposes of transport; criticized in McGuire ).

7 Pursuant to Grostefon , appellant alleges that his defense counsel was constitutionally ineffective for failing to make a motion to su ppress his first and
unwarned statement to law enforcement on th e subject. Because the record reveals a tactical choice for such failure (prese nting an innocent explanation for the transport), and appellant fails “to show that his counse l would have been successful

(continued . . .)KEARNS—ARMY 20110348

6 relationship with KO as merely that of a “guidance counselor,” mentor and platonic friend intending only to help her cope with her pr oblems removes any reasonable
doubt about the fact that at least one purpose of arranging fo r KO’s transport from Pennsylvania to Texas was to further commit criminal acts of sex with the girl. We do not accept appellant’s assertion that the purpose of transporting KO was to
facilitate her es cape from further abuse at the hands of his brother 8 and find his
conviction for a violation of 18 U.S.C. § 2423(a), under Article 134 , correct in law
and fact. See, e.g.

, United States v. Garcia-Lopez , 234 F.3d 217, 220 (5th Cir. 2000); United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002).

CONCLUSION

On consideration of the entire record, the partie s’ briefs, and those matters raised pursuant to Grostefon , the finding of guilty of Specifica tion 2 of Charge III (as redesignated) is set asid e and that specification is dismissed. The remaining findings of guilty are A FFIRMED. Reassessing the se ntence based on the error
noted and in accordance wi th the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit , 63 M.J. 40 (C.A.A.F . 2006), to include the factors identified by Judge Bake r in his concurri ng opin ion in Moffeit , the approved sentence is AFFIRMED. All ri ghts, privileges, and property, of which appellant has been deprived by virtue of that porti on of the finding set aside by this decision, are orde red restored. See UCMJ art. 75(a).

Senior Judge YOB and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

(. . . continued) if he had filed a timely motion,” we ne ed not address the issue further. United

States v. Jameson , 65 M.J. 160, 163–64 (C.A.A.F. 2007); see United States v.
Mazza , 67 M.J. 470, 474– 75 (C.A.A.F. 2009).

8 Nor do we find KO’s assert ion that she and appellant planned to wa it until she reached the age of ei ghteen before engaging in any further sexual act ivity to be
credible. MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: