UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

YOB, KRAUSS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist CHRISTOPHER R. KEARNS 

United States Army, Appellant 

ARMY 20110348 

Headquarters, Fort Bliss 

David H. Robertson, Military Judge 

Colonel Francis P. King, Staff Judge Advocate (pretrial & addendum) 

Lieutenant Colonel Oren H. McKnelly, Acting Staff Judge Advocate 

(recommendation) 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief). 

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA; 

Captain Jessica J. Morales, JA (on brief). 

17 April 2013 

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OPINION OF THE COURT 

-----------------------------------

KRAUSS, Judge: 

A panel of officers sitting as a general court-martial properly tried appellant 

in absentia, and convicted him, contrary to his pleas of not guilty properly entered, 

of false official statement, aggravated sexual assault of a child, transportation of a 

minor for illegal sexual 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 adjudged sentence to a bad-conduct discharge, 

 

1

 Charges of conspiracy to transport minors under Articles 81 and 134, UCMJ, were 

dismissed by the judge, and the panel acquitted appellant of adultery. 
KEARNS—ARMY 20110348 

2

confinement for four years, forfeiture of all pay and allowances, and reduction to the 

grade of E-1. 

 Appellant’s case is now before 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 application of the preemption doctrine. He also 

raises a number of issues 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 disorderly conduct charge but otherwise find the findings and 

sentence correct in law and fact. 

Appellant’s assigned error relative to the transportation of a minor warrants 

discussion and we here decide 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 times in this case and the sister-in-law of 

appellant’s brother. Appellant had known the girl for several years. Not long after 

appellant engaged in sexual intercourse with KO he returned to Texas. Soon 

thereafter he arranged for KO to accompany another of his paramours, NA, in a car 

from Pennsylvania to Texas. Once in Texas, police authorities arrested NA and 

placed KO and one of her friends in detention as runaways. The Texas police 

contacted Army law enforcement authorities and requested their assistance, asking 

that Criminal Investigation Command (CID) agents interview appellant. This 

request was apparently inspired 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 Article 31, UCMJ, rights and 

testified that he did not so advise appellant because he did not suspect appellant of 

any offense. Appellant proceeded to render a statement in which he denied any part 

in the minor’s transportation whatsoever. Defense counsel made no motion to 

suppress this unwarned statement. 

Sometime later appellant was again interviewed by different CID agents, 

informed that he was suspected of aggravated sexual assault of a child and advised 

of his Article 31 rights. He waived those rights and during the course of a lengthy 

interview initially characterized his relationship with KO as purely familial, platonic 

and mentoring. He described himself as fulfilling the role of guidance counselor to 

KO and that his reason for carrying on a friendship with KO was to help her. She 
KEARNS—ARMY 20110348 

3

was inclined to self-abuse, expressed depressed and suicidal thoughts, and claimed 

that appellant’s brother had raped and abused 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 complained 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 wanted to be 

with appellant in Texas. She claimed, however, that neither she nor appellant 

intended to have sex again before she turned eighteen. Prior to her departure from 

Pennsylvania, KO and appellant frequently talked by phone and KO admitted to 

sending appellant a photograph of her naked breast by text message. 

Ultimately, appellant admitted to previously 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, between on or about 1 January 

2010 and 5 February 2010, wrongfully and knowingly 

transport [KO], an individual 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 Kearns, a criminal offense, to 

wit: Aggravated Sexual Assault of a Child in violation of 

Article 120, Uniform Code of Military Justice. 

The defense argued that he did not transport KO with the intent that she 

engage in illegal sex but rather that he transported KO with the intent to rescue her 

from abuse. 

Without objection or request for additional instruction the military judge 

instructed the panel that in order to convict appellant of the transportation offense 

they had to find: 

beyond any reasonable doubt that between on or about 1 

January 2010 and 5 February 2010, at or near Fort Bliss, 

Texas and Pennsylvania, [NA] wrongfully 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 transportation the accused intended that 

KO would engage in illegal sexual activity, to wit: sexual 

intercourse with the accused; that at the time Title 18 
KEARNS—ARMY 20110348 

4

United States Code Section 2423(a) was in existence; and 

that the accused knowingly and willfully aided and abetted 

[NA] in transporting [KO] in interstate commerce. 

The judge proceeded to instruct on principal liability, that the offense required 

appellant to possess the “specific intent to engage in sexual intercourse with [KO] 

knowing she was a minor,” offered the elements of the allegedly intended aggravated 

sexual assault offense,2 and further definitions including that “to transport in 

interstate commerce means to move or carry someone or cause someone to be moved 

or carried from one state to another.”3

 

LAW AND DISCUSSION 

The statutory provision alleged under Article 134, Clause 3, in this case, was 

subsection (a) of 18 U.S.C. § 2423, “Transportation of Minors,”4

 provides: 

TRANSPORTATION WITH INTENT TO ENGAGE IN CRIMINAL 

SEXUAL ACTIVITY.—A person who knowingly transports an 

individual who has not attained the age of 18 years in 

interstate or foreign commerce, or in any commonwealth, 

territory or possession of the United States, with intent 

that the individual engage in prostitution, 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 insufficient to prove that any intent he 

may have had to engage in illegal sexual activity with KO was a motivating, 

compelling, or significant purpose for transporting KO across state lines, culling 

definition of the intent required from various federal circuit courts of appeals.5

Indeed the parties neither offer nor do we find any published 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 decide here whether the judge’s instruction requiring that 

appellant know KO was a minor to be guilty of the offense charged was correct. 

4

 This statute is still popularly 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 addressed the matter to hold that the singular purpose of 

transporting a minor must be that the minor engage in illegal sexual activity. Rather 

the circuits are in essential agreement that an accused must entertain the intent that 

the minor engage in unlawful 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 cases 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, 624–625 (7th Cir. 2010) (discussing the 

evolution of the Mann Act and the various formulas used to interpret the intent 

required in light of dictum in Mortensen v. United States, 322 U.S. 369, 374 (1944), 

where the Supreme Court “said that engaging in forbidden sexual activity ‘must be 

the dominant purpose of such interstate movement’”).6 We agree with the court in 

McGuire and decline to adopt any such formula as unnecessary. As long as the 

illegal sexual activity is a purpose of the 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 language to properly apply the law; if you transport a 

minor, with the intent that the minor engage in illegal sexual activity, whether that 

activity be the sole purpose of the transport or one of many, you 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 prove the appellant entertained that intent. He 

had already engaged in illegal sexual activity with KO before he arranged for her 

transportation across state lines. Her feelings for him were romantic and she sent 

him a sexually suggestive photograph prior to her departure. His initial dishonest 

denial of any role in her transportation7

 and dishonest characterization 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, 996 (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 Cir. Apr. 3, 2007) (unpub.); cf. United States v. 

Miller, 148 F.3d 207, 212–13 (2d Cir. 1998) (maintaining that the motive of illegal 

sex must “predominate” over 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 suppress his first and 

unwarned statement to law enforcement on the subject. Because the record reveals a 

tactical choice for such failure (presenting an innocent explanation for the 

transport), and appellant fails “to show that his counsel 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 problems removes any reasonable 

doubt about the fact that at least one purpose of arranging for 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 escape from further abuse at the hands of his brother8

 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 parties’ briefs, and those matters 

raised pursuant to Grostefon, the finding of guilty of Specification 2 of Charge III 

(as redesignated) is set aside and that specification is dismissed. The remaining 

findings of guilty are AFFIRMED. Reassessing the sentence based on the error 

noted and in accordance with 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 Baker in his concurring opinion in Moffeit, the 

approved sentence is AFFIRMED. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the finding set aside by this 

decision, are ordered 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 need 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 assertion that she and appellant planned to wait until she 

reached the age of eighteen before engaging in any further sexual activity to be 

credible. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: