Keegan L. Lovell v. United States

The relevant federal criminal statute requires that “[a]ny person subject to the [Uniform Code of Military Justice (UCMJ)] who solicits or advises another to commit an offense under [the UCMJ] . . . shall be punished as a court-martial may direct.” 10 U.S.C. § 882 (emphasis added). The term to “commit an offense under the UCMJ” has been construed in other contexts to require both jurisdiction over the offense and that the person be subject to the UCMJ. United States v. Ali, 71 M.J. 256, 262 (C.A.A.F. 2012). However, in ruling against Petitioner, the Air Force Court of Criminal Appeals interpreted the statute to merely require that the solicited conduct be generally considered an offense under the UCMJ if the solicited person had been subject to the code, rather than the solicited person actually being subject to the UCMJ. This case raises the following question: Where a federal criminal statute for solicitation requires the person solicited to fall within a narrow class, can a conviction be sustained if the person solicited was not actually in that class?