2019 (October Term)
United States v. Turner, 79 M.J. 401 (although 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, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense).
2017 (October Term)
United States v. Simpson, 77 M.J. 279 (conspiracy, an inchoate offense, is proscribed under Article 81, UCMJ, and has two elements: (1) that the accused entered into an agreement with one or more persons to commit an offense under the UCMJ, 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 out the object of the conspiracy).
(conspiracy punishes the agreement to commit a crime, and factual impossibility is no defense to conspiracy; in such cases, an accused should be treated in accordance with the facts as he or she supposed them to be).
(in this case, the accused’s plea of guilty to conspiracy to commit larceny was provident where the providence inquiry and the stipulation of fact showed an agreement between the accused and another soldier to use funds from an account holder’s zero-balance account in order to pay personal debts and where the accused performed overt acts in furtherance of the conspiracy such as arranging for the other soldier to receive the account information; the fact that the funds were actually obtained from a bank, as opposed to the account holder, was of no moment).
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).
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. 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).
2003
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).
2002United
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).
2001
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).
2000
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).