Michael A. PEREIRA, Lance Corporal
U.S. Marine Corps, Appellant
Crim. App. No. 97-1027
United States Court of Appeals for the Armed Forces
Argued April 6, 2000
Decided July 14, 2000
The Court issued a Per Curiam opinion. CRAWFORD, C.J., filed a dissenting opinion.
For Appellant: Lieutenant Commander Michael J. Wentworth, JAGC, USN.
For Appellee: Major Mark K. Jamison, USMC (argued & on brief); Colonel Kevin M. Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: W.P. Hollerich
This opinion is subject to editorial correction before publication
A general court-martial, composed of military judge alone, convicted appellant, pursuant to his pleas, of conspiracy to commit premeditated murder, conspiracy to commit robbery, conspiracy to commit aggravated assault, conspiracy to commit kidnapping, premeditated murder, robbery, aggravated assault, kidnapping, and carrying a concealed weapon, in violation of Articles 81, 118, 122, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 918, 922, 928, and 934, respectively. The court sentenced him to confinement for life, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged. The Court of Criminal Appeals dismissed specification 3 of Charge I (conspiracy to commit aggravated assault) based upon the military judge’s finding that it was multiplicious for sentencing with specification 1 of Charge I (conspiracy to commit murder). The lower court affirmed the remaining findings and sentence approved by the convening authority.
On appellant’s petition to this Court, we granted review of the following issue:
On May 6, 1996, appellant and three other Marines formed an agreement to assault, kidnap, rob, and kill another Marine, Lance Corporal Guerrero. During the extensive providence inquiry conducted by the military judge, appellant described the nature of the agreement, when it was formed, and whether appellant and his co-actors agreed at that time to commit all of the substantive offenses. Appellant consistently responded that he and his co-actors formed only one agreement, on May 6, 1996, to commit all of the charged substantive offenses.
The Government had ample opportunities to ensure that the record demonstrated separate conspiracies. Trial counsel could have requested that the military judge clarify this matter during the providence inquiry. Moreover, the stipulation of fact submitted for the record by the trial counsel provided a vehicle for the prosecution to demonstrate the existence of multiple conspiracies. The prosecution, however, did not avail itself of these opportunities. Instead, trial counsel submitted a stipulation that was consistent with appellant's statements during the providence inquiry, and that did not establish the existence of separate conspiracies. Based upon the Government’s failure to clarify the record, despite numerous opportunities to do so, we conclude that the providence inquiry established the existence of only one agreement between appellant and his co-conspirators as a matter of law.
A single agreement to commit multiple offenses ordinarily constitutes a single conspiracy. See Braverman v. United States, 317 U.S. 49 (1942); see also para. 5c(3), Manual for Courts-Martial, United States (1998 ed.). As the Supreme Court stated in Braverman, "[O]ne agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. Id. at 53. This is because the critical aspect of the offense of conspiracy is the agreement, not the object of the conspiracy. Id. at 53-54. Whether the object of a single agreement is to "commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes." Id. at 53.
In United States v. Reliford, 27 MJ 176 (CMA 1988)(summary disposition), this Court consolidated two conspiracy specifications, one to commit murder and one to commit robbery, where the record demonstrated that "there was one agreement between appellant and his co-actors to commit murder and robbery,. . . [because] [i]n such situations there is one conspiracy." Similarly, in appellant’s case, the record demonstrates that there was one agreement between appellant and his co-actors to commit murder, robbery, aggravated assault, and kidnapping. Under the circumstances of this case, there is only one conspiracy. Id. Therefore, we conclude that specifications 1, 2, and 3 of Charge I should be consolidated to allege one conspiracy to commit the murder, kidnapping, and robbery of Lance Corporal Guerrero. However, because appellant was also convicted of premeditated murder, an offense for which the life sentence was mandatory, we are satisfied that appellant suffered no prejudice as to his sentence.
Specifications 1, 2, and 3 of Charge I are consolidated into a single specification to read as follows:
CRAWFORD, Chief Judge (dissenting):
RCM 1003(c)(1)(C), Manual for Courts-Martial, United States (1998 ed.), sought to adopt the "same evidence" rule as set forth in Blockburger v. United States, 284 U.S. 299 (1932). Under RCM 1003(c)(1)(C), "offenses are not separate if each does not require proof of an element not required to prove the other." Clearly under the "same evidence" rule, the "proof" as to each conspiracy specification in this case is different. Accordingly, they are not multiplicious. The crimes sought to be committed, murder, robbery, and kidnapping, as well as the overt acts, are different.
Relying on Blockburger, the Court stated in Braverman v. United States, 317 U.S. 49, 54 (1942):
The challenged specifications are not facially duplicative. They do not necessarily constitute an unreasonable piling on of charges under the facts of this case. RCM 307(c)(4); see United States v. Foster, 40 MJ 140, 144 n.4 (CMA 1994). The three conspiracies of which appellant remains convicted after review at the Court of Criminal Appeals (conspiracies to commit murder, robbery, and kidnapping), require proof of different elements. Even if the conspiracies to kidnap and rob were somehow the means by which the conspirators decided to murder the victim, appellant would be entitled to no relief. See United States v. Oatney, 45 MJ 185 (1996); United States v. Teters, 37 MJ 370 (CMA 1993); United States v. Neblock, 45 MJ 191, 202 (1996) (Crawford, J., concurring in the result).
Additionally, in Braverman, the Government conceded that there was but one conspiracy agreement. 317 U.S. at 52.* The Government also conceded that there was only one conspiracy in United States v. Reliford, 27 MJ 176-77 (1988) (summary disposition). There has been no such concession by appellee in this case. To the contrary, the Government asserts, and I agree, that the limited evidence in this case shows three separate agreements to commit three different felonies, each punishable under the Uniform Code of Military Justice as separate and distinct offenses. As appellant has foreclosed the Government from the opportunity to present evidence by virture of his guilty plea to separate conspiracies, he cannot now be heard to complain that he was improperly convicted. See Broce, 488 U.S. at 572.
I would affirm the lower court's decision.
* Braverman has been routinely distinguished by courts for the last 45 years. See e.g., Albernaz v. United States, 450 U.S. 333, 339-40 (1981); United States v. Ervasti, 201 F.3d 1029, 1040 n.10 (8th Cir. 2000); United States v. Smith, 574 F.2d 308, 311 (5th Cir. 1978); United States v. James, 494 F.2d 1007, 1025-26 (D.C. Cir. 1974).