CORE CRIMINAL LAW SUBJECTS: Crimes: Article 81 - Conspiracy

2011 (September Term)

United States v. Norwood, 71 M.J. 204 (in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense; in this regard, Article 134 predicate offenses should not be treated differently in pleadings under Article 80 or 81 from the enumerated offenses in Articles 83 through 132). 

(it is not essential to the validity of the inchoate charge of conspiracy that the offense that is the object of the agreement be described with technical precision; however, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense - particularly in the context of an underlying Article 134, UCMJ, offense). 

(a specification expressly alleged the elements of conspiracy to obstruct justice by alleging that appellant entered into an agreement with others to commit an offense under the UCMJ, specifically, obstruction of justice into the alleged sexual assault of the victim, and in order to effect that object of the conspiracy, appellant made false statements to an NCIS special agent concerning his involvement and knowledge of the sexual assault of the victim).

2009 (September Term)

United States v. Harmon, 68 M.J. 325 (under Article 81, UCMJ, conspiracy requires: (1) that the accused entered into an agreement with one or more persons to commit an offense under the code; and (2) that, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy; conspiracy need not be in any particular form or manifested in any formal words; rather, it is sufficient if the agreement is merely a mutual understanding among the parties; the existence of a conspiracy may be established by circumstantial evidence, including reasonable inferences derived from the conduct of the parties themselves).

(appellant’s conduct was legally sufficient to support her conspiracy conviction where she actively participated in the abuse of prisoners and encouraged others to do so while she was serving as a guard in an Iraqi prison; appellant freely chose to participate in the abuse and, in fact, voluntarily left to retrieve a camera so she could return to join and photograph the abuse; a picture of appellant that showed her smiling, making a thumbs up hand signal in front of a nude pyramid of prisoners, showed approval and encouragement to her co-conspirators as they maltreated the prisoners; an inference that she was joining their purpose was justified; appellant’s direct involvement and obvious approbation, combined with her jokes and failure to stop or report the abuse, further supported a reasonable inference of conspiracy derived from the conduct of the parties themselves). 

2008 (September Term)

United States v. Ashby, 68 M.J. 108 (evidence that appellant, after the aircraft he piloted severed the cable supporting a gondola, causing the deaths of 20 passengers, discussed with his co-accused what to do with the videotape of the flight, removed the tape from the aircraft, and then gave it to his co-accused several days later knowing that he was going to get rid of it, was sufficient to establish the elements of conspiracy, as that offense was incorporated into a charge of conduct unbecoming an officer). 


United States v. Mack, 65 M.J. 108 (the prosecution is not required to establish the identity of co-conspirators or their particular connection with the criminal purpose; the agreement in a conspiracy need not be in any particular form or manifested in any formal words; it is sufficient if the agreement is merely a mutual understanding among the parties; the existence of a conspiracy may be established by circumstantial evidence, including reasonable inferences derived from the conduct of the parties themselves). 


(the evidence was legally sufficient to support appellant’s conviction for conspiracy to obstruct justice with an unknown female by threatening to kill a witness or the witness’s family if that witness testified at appellant’s court-martial, despite appellant’s contention that the evidence did not show that any other person other than he mailed a package to the mother of the witness with a threatening note; the third threatening phone call made by appellant and an unknown female asking whether the mail was received, and accompanied by further threats to the mother of the witness, provided sufficient evidence for a rational factfinder to have found appellant guilty of this offense beyond a reasonable doubt; the members could have concluded that the unknown female recorded on the third telephone call was coaching appellant in an attempt to make their threats credible).


United States v. Finch, 64 M.J. 118 (although an overt act is an element of the offense of conspiracy, it is not the core of the offense; rather, its purpose as an element is to demonstrate that the agreement to commit a crime –- which is the inherent nature of the offense of conspiracy -- is alive and in motion).



United States v. Shelton
, 62 M.J. 1 (appellant’s conviction for conspiracy to commit unpremeditated murder cannot be affirmed on appeal because the military judge’s instructions authorized the members to base the conviction on a finding of an intent to inflict great bodily harm; if the intent of the parties to the agreement was limited to the infliction of great bodily harm, their agreement was to commit aggravated assault, not unpremeditated murder). 


United States v. Mack, 58 MJ 413 (it is the agreement which constitutes the conspiracy; one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one).


United States v. Whitten, 56 MJ 234 (a conspirator who joins an existing conspiracy can be convicted of conspiracy only if, at or after the time of joining the conspiracy, an overt act in furtherance of the object of the agreement is committed).

(viewed under the standard for assessing legal sufficiency of the evidence, Court finds legally sufficient evidence to find appellant guilty of conspiracy to commit larceny and larceny where: (1) R and M formed an agreement, manifested by their conduct, to steal a duffel bag; (2) appellant joined the ongoing conspiracy to steal the duffel bag; (3) several overt acts in furtherance of the conspiracy were committed after appellant joined the conspiracy; and (4) appellant aided and abetted the larceny before asportation of the stolen property was complete).


United States v. Roeseler, 55 MJ 286 (attempted conspiracy to commit a crime under the Uniform Code of Military Justice is a military offense under Article 80, UCMJ).

(the offense of attempted conspiracy to murder fictitious persons did not require agreement or a shared intent among the expected conspirators with respect to the object of the alleged conspiracy; it was appellant’s belief or understanding that was critical to establish his guilt of this attempt offense).

(the military judge’s explanations of a charged conspiracy and a charged attempted conspiracy, taken together, were sufficient to inform appellant that conspiracy, unlike attempted conspiracy, required that the alleged conspirators actually share the same criminal intent or mental state).

(the defense of impossibility of the crime attempted or conspired is not a defense to a charge of attempt or conspiracy under military law; therefore, because the impossibility of the offenses is not a defense to either attempt or conspiracy, it is not a defense to the charge of attempted conspiracy).


United States v. Periera, 53 MJ 183 (a single agreement to commit multiple offenses ordinarily constitutes a single conspiracy; thus, where providence inquiry and stipulation of fact established the existence of only one agreement to commit murder, assault, robbery, and kidnapping, there was but a single conspiracy as a matter of law).

United States v. Browning, 54 MJ 1 (a co-conspirator may be held criminally responsible under theory of vicarious liability pursuant to Article 77, UCMJ, even though the Article does not specifically deal with vicarious liability of co-conspirator and even if not specifically alleged in the pleadings).

United States v. Valigura, 54 MJ 187 (if one person is only feigning a criminal purpose and does not intend to achieve the purported purpose, under the traditional “bilateral” theory the crime of conspiracy has not been committed; for example, the crime of conspiracy is not committed by either an undercover agent, who lacks mens rea, or an appellant who entered an agreement to sell contraband to the undercover agent even though that appellant clearly possessed a purpose to enter into an agreement to sell contraband; there can be no conspiracy when a supposed participant merely feigns acquiescence with another’s criminal purpose in order to secure his detection and apprehension by proper authorities).

(Court of Appeals for the Armed Forces rejects the unilateral theory of conspiracy where someone may be punished as a conspirator who believes he or she has agreed with another to commit a crime, even though the other person had no purpose to commit that crime).

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