UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant SCOTT A. HILL

United States Air Force

ACM 38848

9 May 2016

Sentence adjudged 24 March 2015 by GCM convened at Wright-Patterson 

Air Force Base, Ohio. Military Judge: Matthew S. Ward (sitting alone).

Approved Sentence: Bad-conduct discharge, confinement for 7 months, 

forfeiture of all pay and allowances, and reduction to E-1.

Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primoli.

Appellate Counsel for the United States: Captain Collin F. Delaney and 

Gerald R. Bruce, Esquire.

Before

ALLRED, TELLER, and MAYBERRY

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

TELLER, Senior Judge:

Appellant was convicted by a military judge sitting alone, in accordance with his 

pleas, of sexual abuse of a child and enticing a minor to engage in lewd acts for the purpose 

of producing a visual depiction thereof in violation of Articles 120b and 134, UCMJ, 10 

U.S.C. §§ 920b, 934. The court sentenced him to reduction to the grade of E-1, forfeiture 

of all pay and allowances, confinement for 7 months, and a bad-conduct discharge. The 

sentence was approved, as adjudged, on 30 June, 2015.
2 ACM 38848

Appellant argues that the enticement alleged in Charge II, Specification 2, may not 

be charged under Article 134, UCMJ, 10 U.S.C. § 934, because the offense alleged is 

preempted by other offenses under the code, and that his plea to that specification was 

improvident because the conduct alleged was constitutionally protected. Finding no error 

that materially prejudices a substantial right of Appellant, we affirm the findings and 

sentence.

Background

Appellant was convicted of engaging in sexually explicit exchanges with three 

teenage girls he met at a convention. The exchanges included explicit messages, video 

chats of himself masturbating, and the transmission of nude or partially nude photos of 

himself and the teenagers. Appellant raises no issues with regard to the charges related to 

two of the teens who were under the age of 16 at the time, but asserts that since one of the 

girls was over the age of 16 at the time, he should not have been convicted of any offense 

based upon sexually explicit exchanges with her.

Preemption

Appellant first argues that the Government was preempted from charging an Article 

134, Clause 2 offense in this case because Congress intended to limit prosecution for such 

conduct in a complete way to Article 120b(c) or child pornography under Article 134. This 

court reviews questions of statutory interpretation, including preemption, de novo. United 

States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015); United States v. Benitez, 65 M.J. 827, 

828 (A.F. Ct. Crim. App. 2007).

The preemption doctrine “prohibits application of Article 134 to conduct covered 

by Articles 80 through 132.” Manual for Courts-Martial, United States (MCM), pt. IV, 

¶ 60.c.(5)(a). In United States v. Kick, 7 M.J. 82 (C.M.A. 1979), our superior court further 

defined the preemption doctrine as the

legal concept that where Congress has occupied the field of a 

given type of misconduct by addressing it in one of the specific 

punitive articles of the code, another offense may not be 

created and punished under Article 134, UCMJ, by simply 

deleting a vital element. However, simply because the offense 

charged under Article 134, UCMJ, embraces all but one 

element of an offense under another article does not trigger 

operation of the preemption doctrine. In addition, it must be 

shown that Congress intended the other punitive article to 

cover a class of offenses in a complete way.

Id. at 85 (citations omitted); see also United States v. Erickson, 61 M.J. 230 (C.A.A.F. 

2005). Accordingly, the preemption doctrine only precludes prosecution under Article 
3 ACM 38848

134, UCMJ, where two elements are met: “(1) ‘Congress intended to limit prosecution for 

. . . a particular area’ of misconduct ‘to offenses defined in specific articles of the Code,’

and (2) ‘the offense charged is composed of a residuum of elements of a specific offense.’” 

United States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992) (quoting United States v. 

McGuinness, 35 M.J. 149, 151–52 (C.M.A. 1992)) (omission in original); see also United 

States v. Wright, 5 M.J. 106 (C.M.A. 1978).

The Government argues this assignment of error was waived by Appellant’s pretrial 

agreement. We disagree. The basis for the preemption doctrine is the principle that, if 

Congress has occupied the field for a given type of misconduct, then an allegation under 

Article 134, Clause 2, fails to state an offense. See United States v. Robbins, 52 M.J. 159, 

160 (C.A.A.F. 1999). A claim of preemption therefore presents a question of subjectmatter jurisdiction of the trial court and thus cannot be waived by either a plea or failure to 

object. See United States v. Jones, 66 M.J. 704, 706 (A.F. Ct. Crim. App. 2008). Although 

Jones related only to an unconditional guilty plea, and not an agreement to waive all 

waivable motions, we conclude the result is the same. A provision in a pretrial agreement 

purporting to waive a challenge on the basis of lack of subject matter jurisdiction over the 

offense is unenforceable. Rule for Courts-Martial (R.C.M.) 705(c)(1)(B).

In this case, we need not delve into congressional intent because the offense alleged 

did not consist of a residuum of another offense. During the providence inquiry, the 

military judge defined the elements of Charge II, Specification 2, as follows:

The elements of this offense are that at world wide locations 

on divers occasions between on or about 2 August 2013 and on 

or about 30 November 2013, you knowingly and wrongfully 

enticed [the victim], a female who had not attained the age of 

18 years, to engage in lewd acts for the purpose of producing a 

visual depiction of such conduct of a female who had not 

attained the age of 18 years for transmission via 

communication technology and two, that conduct was of a 

nature to bring discredit upon the Armed Forces.

Accordingly, while the lewd acts alleged concerning the two teenagers who had not 

reached the age of 16 were similar to the conduct alleged in Charge II, Specification 2, the 

allegation is based on a completely different theory of liability, enticement to engage in 

lewd acts for the purpose of producing a visual depiction. We find the elements alleged 

under this theory do not constitute a residuum of the elements of sexual abuse of a child 

under Article 120b(c), UCMJ. 

Appellant also asserts that the preemption doctrine applies to the enumerated 

offense of producing child pornography under Article 134, UCMJ. This argument relies 

on a different premise than the argument that preemption applies to Articles 80 through 
4 ACM 38848

132, UCMJ. Both the Manual and Kick rely on an analysis of the power of the executive 

branch to act “where Congress has occupied the field.” Kick, 7 M.J. at 85. By contrast, 

the enumerated offense of child pornography was promulgated by the President. 

Accordingly, the preemption doctrine as described in the Manual and Kick does not apply. 

Appellant’s argument is not without support in case law, however. In United States 

v. Manos, our superior court observed that even in the context of Article 134 offenses, it 

“would not permit the services to eliminate indiscriminately vital elements of recognized 

offenses and ‘permit the remaining elements to be punished as an offense under Article 

134.’” 25 C.M.R. 238, 240 (C.M.A. 1958) (quoting United States v. Norris, 8 C.M.R. 36, 

39 (C.M.A. 1953)); see also United States v. Downard, 20 C.M.R. 254, 261 (C.M.A. 1955)

(dismissing a specification under Article 134, UCMJ, alleging negligent, rather than willful 

or reckless, failure to maintain funds). We find that these cases are better understood as 

cases addressing the mens rea requirement under criminal law, rather than an extension of 

the preemption doctrine discussed in Norris and Kick. Since Charge II, Specification 2,

alleged a different theory of liability than production of child pornography, rather than just 

a lesser mens rea, we do not find the reasoning in Manos and similar cases applicable here.

Even if we found that the preemption doctrine applied to enumerated offenses under 

Article 134, UCMJ, we would still conclude that Charge II, Specification 2, is not a 

residuum of the enumerated offense of producing child pornography. The allegation in 

this case focuses on the harm posed by those who entice minors to engage in illegal conduct 

independent of the underlying offense. Federal law recognizes such enticement as a 

distinct offense. Compare 18 U.S.C. §§ 2422, 2427, with 18 U.S.C. §§ 2251, 2252, 2252A. 

Our superior court analyzed this distinction between enticement and the underlying offense 

in United States v. Schell.

The legislative history indicates that Congress intended 

[18 U.S.C. § 2422] “to address those who lure children out to 

actually engage in illegal sexual activity,” but also to more 

broadly “protect children and families from online harm.”

There is nothing in the legislative history suggesting that an 

accused had to intend to actually engage in a sexual crime. 

72 M.J. 339, 343–44 (C.A.A.F. 2013) (quoting United States v. Schell, 71 M.J. 574, 579 

(Army Ct. Crim. App. 2012)) (citations omitted). We find that the element of enticement 

in Charge II, Specification 2, distinguishes it from the enumerated offense of child 

pornography under Article 134, UCMJ.

Because Charge II, Specification 2, was not a residuum of any other offense, we 

find that the preemption doctrine does not apply.
5 ACM 38848

Constitutionally Protected Privacy Interest

Appellant next argues that his plea to Charge II, Specification 2, was improvident 

under Article 45, UCMJ, 10 U.S.C. § 845, as his conduct was constitutionally protected in 

light of Lawrence v. Texas, 539 U.S. 558 (2003). A military judge must determine whether 

an adequate basis in law and fact exists to support a guilty plea by establishing on the record 

that the “acts or the omissions of the accused constitute the offense or offenses to which he 

is pleading guilty.” United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969). Acceptance 

of a guilty plea is reviewed for an abuse of discretion, and questions of law arising from 

the plea are reviewed de novo. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 

2008). Rejection of a guilty plea requires that the record show a substantial basis in law 

and fact for questioning the providence of the plea. Inabinette, 66 M.J. at 322; United 

States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).

Appellant argues that his plea was improvident because his conduct was 

constitutionally protected in that both he and the victim were “consenting adults.” This 

argument raises two questions. First, it raises the issue whether the colloquy between 

Appellant and the military judge “contain[ed] an appropriate discussion and 

acknowledgment on the part of [Appellant] of the critical distinction between permissible 

and prohibited behavior.” United States v. Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011). 

Second, it presents the question whether the information elicited during the inquiry 

demonstrated that the alleged conduct falls so squarely within a protected liberty interest 

that accepting even a well-informed plea was an abuse of discretion. 

The Government argues that this assignment of error was also waived. We disagree. 

While the pretrial agreement to waive all waivable motions may preclude review of the 

substantive issue whether his conduct was constitutionally protected, it does not, as the 

Government acknowledges, preclude our review of the providence of Appellant’s plea. 

Under Article 45(a), UCMJ, if an appellant

after a plea of guilty sets up matter inconsistent with the plea, 

or if it appears that he has entered the plea of guilty 

improvidently or through lack of understanding of its meaning 

and effect, or if he fails or refuses to plead, a plea of not guilty 

shall be entered in the record, and the court shall proceed as 

though he had pleaded not guilty.

Article 45, therefore establishes an obligation on the court, completely independent of an 

accused’s earnest desire to plead guilty, to enter a plea of not guilty if the facts disclosed 

during the inquiry demonstrate that the accused’s conduct was not criminal because it was 
6 ACM 38848

constitutionally protected. We review Appellant’s assignment of error in that context, 

rather than substantive review of the underlying constitutional issue.*

First, we find that the military judge performed a thorough inquiry as to Appellant’s 

understanding of the difference between criminal and constitutionally protected conduct. 

The military judge specifically addressed the issue of this particular victim’s age on the 

record.

[Military Judge]: So, what I'm trying to get to, with regard to 

this is you may have a defense with regard to one, this is 

constitutionally protected behavior that I engaged with [the 

victim]. She was over the age of 16, which for these purposes 

means she’s not a minor. It was private. There was no force 

or coercion. If that’s an accurate statement then the 

government would have to show there are additional factors 

relevant solely in the military environment in order to find you 

guilty of that offense. Do you understand that? 

[Appellant]: Yes, sir.

[Military Judge]: They have to prove to a panel beyond a 

reasonable doubt that there [are] additional factors that warrant 

finding you guilty for something that otherwise would be legal. 

Does that make sense? 

[Appellant]: Yes, sir.

The military judge went on to provide several examples to illustrate his point. He then 

recessed the trial for over 30 minutes to ensure that Appellant had time to discuss this 

particular matter with his counsel. While we can infer from his findings that the military 

judge did not ultimately conclude that the conduct was constitutionally protected, his 

colloquy certainly provided an adequate discussion and acknowledgement by the Appellant 

that such an argument could be made.

Second, we conclude that the military judge did not abuse his discretion by finding 

that the conduct was not constitutionally protected, and therefore that Appellant’s plea was 

provident in that regard. While the victim in Charge II, Specification 2, did not meet the 

definition of “child” under Article 120b(c), UCMJ, that does not necessarily make her an 

adult as that word is used in Lawrence. The 8th Circuit has specifically addressed the 

applicability of Lawrence to conduct with minors over the age of consent.

 

* This is not a distinction without a difference. The remedies available should we address the underlying question 

may include dismissal of the specification. The remedy for a failure to ensure a provident plea consists only of a 

remand for a new proceeding.
7 ACM 38848

The liberty interest the Court recognized in Lawrence

was for adults engaging in consensual sexual relations in 

private, but in this case [the appellant] engaged in sex with a 

minor and pressured him to pose nude for photographs, one of 

which was sent over the internet. We find no support in 

Lawrence to prevent [the appellant’s] prosecution under 

[18 U.S.C.] §§ 2251 and 2252. [The appellant’s] privacy 

argument also fails, for his activities related to child 

pornography are not protected by a constitutional right of 

privacy. See United States v. Vincent, 167 F.3d 428, 431 (8th 

Cir. 1999). As we pointed out in Vincent, “the Constitution 

offers less protection when sexually explicit material depicts 

minors rather than adults.” Id. [The appellant] has not shown 

that the conduct charged in counts 1, 4, and 7 was 

constitutionally protected. 

United States v. Bach, 400 F.3d 622, 629 (8th Cir. 2005). We find the 8th Circuit’s 

rationale convincing. Our superior court has also observed in dicta that conduct involving 

minors or conduct involving transmission of contraband images over the Internet fall 

outside the protection of Lawrence. See United States v. Goings, 72 M.J. 202, 206 

(C.A.A.F. 2013). Although Appellant was charged under Article 134, UCMJ, and not 

federal child pornography statutes, the privacy analysis is the same. We find that enticing 

a minor, even one who has reached the age of consent, to engage in lewd conduct for the 

purpose of producing a visual depiction of such conduct does not fall within the sphere of 

constitutionally protected conduct under Lawrence, and Appellant’s plea was not 

improvident on that basis.

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 

66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

sentence are AFFIRMED.

FOR THE COURT

 LEAH M. CALAHAN

Clerk of the Court