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Article 81 – Conspiracy

The law of conspiracy was developed to fill a gap created by the law of attempts. The law of conspiracy provides law enforcement justification for intervening in a contemplated crime before the preparation for the crime proceeds so far that it creates a danger to society. The law assumes that collective action in furtherance of a criminal purpose creates a greater risk to society than individual action towards that same criminal purpose.[2] Conspiracy charges have become a regular part of court-martial practice anytime there is one or more co-accused.

Elements of conspiracy under the UCMJ:

  • That the accused entered into an agreement with one or more persons to commit an offense under the code; and,
  • 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.[1]

A conspiracy necessarily involves a twofold specific intent. Firstly, there must exist an intent to partnership with one or more persons to commit an offense under the code. Secondly, there must exist a specific intent to accomplish the illegal objective. In the military, the conspiracy does not merge into the substantive offense once completed. As noted in the previous chapter, the military does recognize the offense of attempted conspiracy.

The conspiracy ends when the object of the conspiracy is accomplished, the members withdraw, or the members abandon the conspiracy.[3] The conspiracy does not necessarily terminate merely because the government defeated the object of the conspiracy. In other words, your client could be convicted of a conspiracy even though he or she joined the conspiracy after it was defeated.[4]

It is well-known that there are different ways to categorize complex conspiracies involving large numbers of individuals with various roles and objectives. Some terms have included chains, links, wheels, and hubs and spokes. The most common categories are chain conspiracies and wheel conspiracies. The chain conspiracy typically involves several layers of co-conspirators dealing with a single objective – e.g. drug distribution. A single conspiracy can exist if each link knew of the other links and was aware of the larger criminal enterprise.

We typically see military conspiracy cases involving an element of fraud - housing allowance fraud, debt reduction schemes, check fraud, etc. For that reason, wheel conspiracies are probably more common in military practice. A wheel conspiracy involves one individual, or a small group of individuals, conducting illegal transactions with various other co-conspirators (the spokes).

The Agreement

The Court of Appeals for the Armed Forces has historically adhered to the bilateral theory of conspiracy. In other words, CAAF requires that the parties to the conspiracy achieve a “meeting of the minds” to achieve the object of the conspiracy.[5] For example, in the military there can be no conspiracy where the only co-conspirator was an undercover agent was feigning agreement. Under those circumstances, trial counsel, of course, would still have the ability to allege an attempted conspiracy.[6] The acquittal of a co-conspirator in a separate trial does not preclude a conspiracy conviction for the accused.[7]

The unilateral theory of conspiracy was originally adopted in the Model Penal Code. The unilateral theory basically requires only that an accused believe that he or she is conspiring with another to commit a crime. Courts have generally disapproved of the unilateral theory of conspiracy because it does nothing to further the public policy concern of preventing group criminal activity. Further, a unilateral conspiracy will often satisfy the requirements for a solicitation type offense.

No particular words or form of agreement are required other than a meeting of the minds to accomplish the object of the conspiracy. The agreement can be proved by the conduct of the parties.[8] Also, silence can constitute agreement, particularly where the accused shares in the proceeds of the conspiracy.[9] The military courts have also found the existence of a conspiracy on the basis of a conditional agreement where the accused believed that the condition was likely to occur.[10]

The agreement does not have to specify the precise roles that each co-conspirator will play.[11] The object of the conspiracy, however, must be an offense under the UCMJ.[12] It can be sufficient for the government to show only that each defendant knew or had reason to know of the scope of the conspiracy and their own benefit was dependent on the success of the co-conspirators.[13] Evidence of only a slight connection can be sufficient to convict a defendant of knowingly participating in a conspiracy.[14]

The Parties

In the military, co-conspirators need not be subject to the UCMJ.[15] Nonetheless, at least two parties must be involved in the agreement. Vicarious liability is applicable. A co-conspirator can be convicted for substantive offenses committed by another co-conspirator while the agreement continued to exist and in furtherance of the agreement.[16] There is also dicta that suggests that a co-conspirator can be liable for the actions of other co-conspirators that occurred before the accused joined the conspiracy.[17]

The Overt Act

The requirement of an overt act is a separate element from the agreement. The act can occur during or after the agreement.[18] Counsel should remember that an act done prior to the agreement is not an overt act for purposes of the law of conspiracy.[19] An overt act must be done by one or more the co-conspirators, but not necessarily the accused.[20]

There is no requirement that the overt act be illegal. In certain cases, mere preparation is enough provided that it demonstrates that the agreement is being executed.[21]

Wharton’s Rule

Wharton’s Rule is simple. There is no conspiracy where the agreement exists only between the people necessary to commit the offense. Classic examples are dueling, bigamy, incest, adultery, and bribery. The rule is preserved in paragraph 5(c)(3) of the statute. The rule does not apply where the substantive offense does not require concerted activity – drug distribution cases for instance.[22] The rule also does not apply where the conspiracy involves a greater number of persons than is required for commission of the substantive offense.[23]

Pleading Issues

In conspiracy cases, the government must alleged at least one overt act.[24] The government may allege multiple overt acts, but they need only prove one.[25] Proof of an uncharged overt act is not necessarily a fatal variance as long as there is “substantial similarity” between the alleged overt act and the act proven at trial.[26] Where the basic facts remain unchanged, the amendment of an alleged overt act the day before trial could be a permissible minor change.

It should also be noted that conspiracy to commit a crime and solicitation to commit the same crime are separate offenses.[27] Similarly, conspiracy to commit a crime and the attempted commission of the crime are also separate offenses.[28]

A single agreement to commit multiple crimes is a single conspiracy. The classic example is Mack, where the accused was convicted of both conspiracy to commit check forgery and conspiracy to commit larceny.[29] The reasoning is simple, the law is intended to punish the agreement. In larceny cases that involve the theft of multiple items, the value of the items can be aggregated to calculate the maximum punishment for the conspiracy.[30]

A “totality of the circumstances” analysis is the correct approach when determining the number of conspiracies in a given case.[31] There are a variety of factors that may help counsel determine whether a single or multiple conspiracies exist. Among such factors are the following:

  • The objectives of each alleged conspiracy;
  • The nature of the scheme in each alleged conspiracy;
  • The nature of the charge;
  • The overt acts alleged in each;
  • The time each of the alleged conspiracies took place;
  • The location of each of the alleged conspiracies;
  • The conspiratorial participants in each; and
  • The degree of interdependence between the alleged conspiracies.

A wheel conspiracy only requires the government to prove that the collective action of all parties is intended for the accomplishment of a common purpose. The agreement can be inferred.

Common Defenses:

  • Lack of agreement
  • Withdrawal
  • Factual Impossibility is not a defense

Lack of Agreement

In every conspiracy case, defense counsel will plainly be looking for evidence demonstrating that his client was not in agreement with the criminal purpose. Gripe sessions do not constitute a conspiracy.[32]

The Stryker 5 murder cases out Fort Lewis involved a number of Soldiers who allegedly conspired to kill civilian local nationals for sport. The conspiracies, however, were alleged to have formed during hash smoking sessions on their forward operating base. The sessions involved breath-taking gallows humor and joking about various ways to kill civilians. If there exists evidence that your client was present during discussions of a conspiracy, defense counsel will want to explore the existence of alcohol or drugs at the time of the discussions, jokes, and other evidence demonstrating a lack of agreement.

Withdrawal

Another common defense is the defense of withdrawal. Simply stated, an individual is not guilty of a conspiracy if he or she withdraws before the alleged overt act is committed. The withdrawal must consist of some affirmative conduct that is inconsistent with the agreement. Likewise, the conduct must demonstrate that the accused has severed all connections with the conspiracy. Withdrawal after performance of the overt act is an ineffective withdrawal, but the accused is not liable for offenses committed by the remaining conspirators after withdrawal.[33]

If your client is present during discussions of a conspiracy, but refuses to participate or go to the location of the overt act, then that might constitute effective withdrawal.[34] Nonetheless, mere inactivity alone may not be enough.[35] Look for evidence that the client was severing ties with the conspiracy.

Practice Pointers

In conspiracy cases, defense counsel will want to carefully consider the possibility of entering into a Joint Defense Agreement with the other co-accused or co-conspirators. A JDA may provide useful in coordinating favorable trial schedules and defense.

Handling Kastigar Issues

Often conspiracy cases involve multiple charged co-accused. The defense usually wants grants of immunity provided for various co-accused. When the government prosecutes a previously immunized witness, it has the “heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.”[36] The United States Supreme Court and Court of Appeals for the Armed Forces have vigilantly ensured that the government honors an American citizen’s Fifth Amendment protection against self-incrimination.[37]

Immunity issues plainly create problems for the government in prosecuting co-accused. The government must do more than negate the taint; they must “affirmatively prove that its evidence is derived from a legitimate source wholly independent of the compelled testimony.”[38] In addition to the government’s burden of showing that they have not derived any direct evidence from compelled testimony, they must also prove that they have not used compelled testimony for any indirect or non-evidentiary purposes.[39]

Non-evidentiary purposes include assistance in investigating, preparing witnesses, interpreting evidence, and general trial planning and strategy.[40] Part of the rationale is that the accused should be left in the same position he was in before the immunized testimony.

Kastigar, of course, requires a hearing in which the prosecution must present all of the evidence intended for trial and identify the sources of that evidence to ensure that it was not derived from or based on the inadmissible compelled testimony. A review of the evidence “must proceed witness by witness; if necessary, it will proceed line by line and item by item.”[41] In North, the District Court for the District of Columbia also noted that the government is forbidden from using the testimony of any witness who was influenced by immunized testimony.

In Mapes, C.A.A.F. noted that the prosecution may not indirectly do what it may not do directly. In Mapes, the Court of Appeals for the Armed Forces outlined a serious of four non-exclusive factors designed to help military judges analyze whether evidence was obtained wholly independent of compelled testimony.

The factors include:

  • Whether the immunized testimony revealed anything not already known to the government
  • Whether the investigation was completed prior to the immunized
    testimony
  • Whether the decision to prosecute was made prior to the
    immunized testimony
  • Whether prosecutors exposed to the immunized testimony participated in the prosecution of appellant.

A Kastigar hearing is a complex event and requires significant diligence on the part of defense counsel. The essential ingredients which give rise to Kastigar issues are that:

  • Your client was granted immunity
  • Your client was interviewed or testified under that grant of immunity
  • your client is not pending court-martial charges

The government has a duty and a burden not to use any of your client’s immunized testimony or information derived from your client as a result of the grant of immunity against your client. A Kastigar hearing puts the government to the test. Somewhere along the road the government will have failed in their burden. It is defense counsel’s job to find that burden.

The failure of the government to meets its burden can have drastic consequences. When tainted evidence is introduced at trial, the defendant is entitled to a new trial. Accused are entitled to similar protections against non-evidentiary uses of immunized testimony.[42]

Under North, unless every "i" is dotted and every "t" is crossed, the government has an almost insurmountable burden to demonstrate that the use of immunized testimony, no matter how indirect, has not been tainted by knowledge of the compelled testimony.

At the Kastigar hearing, defense counsel should consider calling the following witnesses:

  • Trial counsel in your client’s court-martial;
  • Trial counsel in the court-martial where your client gave immunized testimony;
  • Investigating agents who investigated both cases;
  • The Staff Judge Advocate at the legal office who provided advice to the convening authority in both cases;
  • The Convening Authority in both cases;
  • Other witnesses who may have been tainted by immunized testimony.

The focus for all witness examinations should be how evidence against your client was sequestered in such a fashion that only evidence obtained prior to the grant of immunity is being used against him or her. The witnesses should be required to go over your client’s immunized testimony line by line and to identify all new information derived from their testimony. Law enforcement must disclose conversations with witnesses and the trial counsel in your case. Law enforcement agents will often attend the trials of companion cases. Look for evidence of taint from their attendance at those proceedings.

Trial counsel in both cases must disclose their relationship, their working conditions, and the manner in which evidence was sequestered and even discussed. The Staff Judge Advocate and Convening Authority must also demonstrate that the immunized testimony played no role in their decision-making.

Evidentiary Issues

For a more thorough discussion of evidentiary issues in conspiracy cases see…It is important to note, however, that under Military Rule of Evidence 801 (d)(2)(E) the statements of a co-conspirator may not be hearsay, even if conspiracy is not a charged offense.[43] Defense counsel must be careful to analyze whether the proffered statement was made during the course of the conspiracy and was in furtherance of the conspiracy. The issue may be waived by a failure to object.

Standard Instructions
DA Pamphlet 27-9
3-5-1. Conspiracy[44]

Maximum Punishments and Lesser Included Offenses

The maximum punishment for a conspiracy is the “maximum punishment authorized for the offense which is the object of the conspiracy…” In no case “shall” the death penalty be imposed. As previously noted, Article 80 (attempts) is an enumerated lesser included offense. Under Article 80, the maximum punishment is the same maximum punishment authorized for the commission of the offense attempted, except for the death penalty and mandatory minimum punishment provisions. In “no case, other than attempted murder, shall confinement exceeding 20 years be adjudged.”

References

  • [1] MCM, Pt. IV, ¶ 5a.
  • [2] Direct Sales Co. v. US, 319 US 703 (1943); Accord US v. Falcone, 311 US 205 (1940); Blumenthal v. US, 332 US 539 (1948); US v. Dunbar, 12 MJ 218 (CMA 1982); US v. Herrick, 12 MJ 858 (AFCMR 1981)
  • [3] United States v. Beverly, 14 U.S.C.M.A. 468, 471 (C.M.A. 1964).
  • [4] United States v. Jimenez Recio, 537 U.S. 270 (2003).
  • [5] United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000).
  • [6] United States v. LaBossiere, 32 C.M.R. 337 (C.M.A. 1962).
  • [7] United States v. Garcia, 16 M.J. 52 (C.M.A. 1983); United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001).
  • [8] United States v. Barnes, 38 M.J. 72 (C.M.A. 1993).
  • [9] United States v. Billings, 58 M.J. 861 (A. Ct. Crim. App. 2003), aff’d, 61 M.J. 163 (C.A.A.F. 2005);
    United States v. Cobb, 45 M.J. 82 (C.A.A.F. 1996); United States v. Garner, 43 M.J. 435 (C.A.A.F. 1996);
    United States v. Jackson, 20 M.J. 68 (C.M.A. 1985).
  • [10] United States v. Wright, 42 M.J. 163, 166-67 (C.A.A.F. 1995).
  • [11] United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002).
  • [12] United States v. Denaro, 62 M.J. 663 (C.G. Ct. Crim. App. 2006).
  • [13] United States v. Kostoff, 585 F.2d 378, 380 (9th Cir. 1978).
  • [14] United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977).
  • [15] United States v. Rhodes, 29 C.M.R. 551 (C.M.A. 1960) (co-conspirator was a foreign national).
  • [16] Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Browning, 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta, 14 M.J. 383 (C.M.A. 1983).
  • [17] United States v. Finlayson, 58 M.J. 824 (A.C.C.A. 2003); 16 Am. Jur. 2d 15, p. 135; See also Direct Sales Co. v. US, 319 US 703 (1943); Accord US v. Falcone, 311 US 205 (1940); Blumenthal v. US, 332 US 539 (1948); US v. Dunbar, 12 MJ 218 (CMA 1982); US v. Herrick, 12 MJ 858 (AFCMR 1981).
  • [18] United States v. Kauffman, 34 C.M.R. 63 (C.M.A. 1963); United States v. Schwab, 27 M.J. 559 (A.C.M.R. 1988).
  • [19] United States v. Farkas, 21 M.J. 458 (C.M.A. 1986), cert. denied, 479 U.S. 857 (1986).
  • [20] United States v. Yarborough, 5 C.M.R. 106 (C.M.A. 1962).
  • [21] United States v. Choat, 21 C.M.R. 313 (C.M.A. 1956).
  • [22] United States v. Crocker, 18 M.J. 33, 38-39 (C.M.A. 1984) (drug distribution); United States v. Johnson, 58 M.J. 509 (N-M. Ct. Crim. App. 2003) (drug use); United States v. Osthoff, 8 M.J. 629 (A.C.M.R. 1979).
  • [23] United States v. Crocker, 18 M.J. 33, 38 (C.M.A. 1984).
  • [24] United States v. McGlothlin, 44 C.M.R. 533 (A.C.M.R. 1971).
  • [25] United States v. Reid, 31 C.M.R. 83 (C.M.A. 1961).
  • [26] United States v. Collier, 14 M.J. 377 (C.M.A. 1983); see United States v. Moreno, 46 M.J. 216 (C.A.A.F. 1997).
  • [27] United States v. Ramsey, 52 M.J. 322 (C.A.A.F. 2000); United States v. Carroll, 43 M.J. 487 (C.A.A.F. 1996).
  • [28] United States v. Stottlemire, 28 M.J. 477 (C.M.A. 1989).
  • [29] United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003), United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000).
  • [30] United States v. Crawford, 31 M.J. 736 (A.F.C.M.R. 1990).
  • [31] United States v. Finlayson, 58 M.J. 824 (A. Ct. Crim. App. 2003).
  • [32] United States v. Pete, 39 M.J. 521 (A.C.M.R. 1994).
  • [33] MCM, pt. IV, ¶ 5c(6).
  • [34] United States v. Miasel, 24 C.M.R. 184 (C.M.A. 1957).
  • [35] United States v. Rhodes, 28 C.M.R. 427 (A.B.R. 1959), aff’d 29 C.M.R. 551 (C.M.A. 1960).
  • [36] Kastigar v. United States, 406 U.S. 441 (1972).
  • [37] United States v. Mapes, 59 M.J.60, 66-67 (C.A.A.F. 2003).
  • [38] Id.
  • [39] United States v. Olivero, 399 M.J. 246, 249 (C.M.A. 1994)(citing United States v. Kimble, 33 M.J.284 (C.M.A. 1991).
  • [40] United States v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973).
  • [41] United States v. North, 910 F.2d 843, 872 (D.C.Cir. 1990), cert.den., 500 U.S. 941 (1991).
  • [42] White Collar Crime: Fifth Survey of Law-Immunity, 26 Am. Crim. L. Rev. 1169, 1179, n.62 (1989).
  • [43] United States v. Knudson, 14 M.J. 13 (C.M.A. 1982).
  • [44] Military Judges Benchbook, ¶ 3-5-1 – Conspiracy.

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