

   
   
   
   U.S. v. Valigura



United States, Appellant
v.
Audrey J. VALIGURA, Private
U.S. Army, Appellee
 
No. 99-5005
Crim. App. No. 9800225
 
United States Court of Appeals for the Armed
Forces
Argued December 16, 1999
Decided September 25, 2000
EVERETT, S.J., delivered the opinion of
the Court, in which SULLIVAN and EFFRON JJ., joined. SULLIVAN, J., filed
a concurring opinion. GIERKE, J., filed an opinion concurring in part and
dissenting in part. CRAWFORD, C.J., filed a dissenting opinion.
Counsel
For the Accused: Captain Sean S. Park
(argued);
Colonel Adele H. Odegard, Major Scott
R. Morris, and Major Jonathan F. Potter (on brief).
For the United States: Captain Joseph A.
Pixley (argued); Colonel Russell S. Estey (on brief); Lieutenant
Colonel Eugene R. Milhizer.
Military Judges: Ferdinand D. Clervi and Keith
H. Hodges



THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Senior Judge EVERETT delivered the opinion
of the Court.
Private Valigura (hereafter appellee) was tried
by a general court-martial consisting of a military judge alone. Contrary
to her pleas, she was convicted of conspiracy to distribute marijuana and
failure to go to her appointed place of duty; pursuant to her pleas, she
was convicted of failure to obey a lawful order and wrongful distribution
of marijuana. See Arts. 81, 86, 92, and 112a, Uniform Code of Military
Justice, 10 USC §§ 881, 886, 892, 912a, respectively. The sentence
as approved by the convening authority was a bad-conduct discharge, confinement
for 6 months, total forfeitures, and reduction to Private E-1.
This appeal concerns only the conspiracy charge
and seeks an answer to this issue certified by the Judge Advocate General:

WHETHER THE ARMY COURT OF CRIMINAL
APPEALS
ERRED BY HOLDING THAT APPELLEES CONSPIRACY
CONVICTION UNDER ARTICLE 81, UNIFORM CODE
OF
MILITARY JUSTICE, MUST BE SET ASIDE BECAUSE
THE EVIDENCE SHOWED THAT HER SOLE CO-CONSPIRATOR
WAS AN UNDERCOVER GOVERNMENT AGENT, WHERE
THE
AGENT ACTUALLY AGREED WITH APPELLEE TO DISTRIBUTE
ILLEGAL DRUGS, BUT DID SO FOR A LAW ENFORCEMENT
RATHER THAN A CRIMINAL PURPOSE.

We hold that the Court of Criminal Appeals ruled
correctly for the reasons expressed in the majority opinion by Judge Trant.
50 MJ 844 (1999).

I
The facts are not unusual. Private Valigura
agreed to sell marijuana to an undercover military police investigator;
and pursuant to this agreement, she received payment upon delivery of the
drug. The only two co-conspirators named in the conspiracy specification
are Valigura and the undercover investigator. Everything said and done
by that investigator indicated a concurrence of purpose with that of Valigura;
and the action of the two persons would also have suggested to any observer
that an agreement had been reached.
Even so, under the traditional "bilateral"
theory, the crime of conspiracy had not been committed by either the undercover
investigator, who lacked mens rea, or by Valigura, even though
she clearly possessed a purpose to enter into an agreement to sell marijuana.
She could not be guilty because no one can be found guilty of conspiracy
unless more than one person has the necessary mental state.
For decades most courts have followed this
view, which was well expressed by Justice Cardozo in Morrison v. California:


It is impossible in the nature of things
for a man to conspire with himself. In California as elsewhere conspiracy
imports a corrupt agreement between not less than two with guilty knowledge
on the part of each.


291 U.S. 82, 92 (1934)(footnote omitted).
Four decades later the Supreme Court reaffirmed
the need that more than one person agree on the criminal goal to be attained.
In Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975), it
stated that "agreement is the essential evil at which the crime of conspiracy
is directed" and it "remains the essential element of the crime." If there
is no actual agreement or "meeting of the minds" there is no conspiracy.
See W. LaFave & A. Scott, Substantive Criminal Law
§ 6.4(d) at 70-71 (1986).
Accordingly, if one person is only feigning
a criminal purpose and does not intend to achieve the purported purpose,
there is no conspiracy.1
As this Court has said: "[I]t is well settled that there can be no conspiracy
[Art. 81] when a supposed participant merely feigns acquiescence with anothers
criminal proposal in order to secure his detection and apprehension by
proper authorities." United States v. LaBossiere, 13 USCMA 337,
340, 32 CMR 337, 340 (1962).
In the federal courts, a conspiracy conviction
still requires at least two persons who genuinely wish to accomplish the
ostensible goal of the purported conspiracy. In Sears v. United States,
343 F.2d. 139, 142 (5th Cir. 1965), the Court of Appeals stated
that "it takes two to conspire, [therefore] there can be no indictable
conspiracy with a government informer . . . ." The Sears rule has
been followed by seven other Federal circuits.2
Many, if not most, state courts take the same approach.3
Why then does any issue of law exist as to the need that more than one
person share the criminal purpose?

II
Perhaps the chief reason for raising an issue
is provided by the Model Penal Code of the American Law Institute. Under
the "unilateral" theory of conspiracy adopted by the Institute, 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. This theory comports with the greater emphasis of
the Model Penal Code on an actors subjective intent than is demonstrated
by some other criminal codes. Likewise, under the Model Penal Code, a defendant
may be convicted of attempt or conspiracy even though the intended crime
was impossible of accomplishment.
Similarly, in prescribing the elements of the
crime of attempt, the Model Penal Code asks whether the accused committed
an act that was "a substantial step in a course of conduct planned to culminate
in [the accuseds] . . . commission of the crime." §5.01(1)(c). In
turn, the Model Code defines a "substantial step" as conduct that "is strongly
corroborative of the actors criminal purpose." §5.01(2). This approach
allows someone with a clear criminal purpose to be convicted of attempt
on the basis of conduct that traditionally may have been viewed
as only "preparation."
Military justice has taken some positions parallel
to the Model Penal Code. For example, the test used at a court-martial
to determine whether an accuseds conduct constituted an attempt is
whether the accused committed "an overt act which directly tend[ed]
to accomplish the unlawful purpose." Para. 4c(1), Part IV, Manual for Courts-Martial,
United States (1998 ed.). "The overt act required goes beyond preparatory
steps and is a direct movement toward the commission of the offense." Para.
4c(2). Even though military law requires more than mere preparation, a
court-martial may convict of attempt on evidence that might be insufficient
in some jurisdictions. Likewise, in military justice, impossibility  whether
of law or fact  is no defense in a prosecution for conspiracy or
attempt. United States v. Thomas, 13 USCMA 278, 32 CMR 278 (1962).
Accordingly, it seems plausible to argue that military justice should also
follow the Model Penal Code in rejecting the "bilateral" in favor of the
"unilateral" theory.
Moreover, it has been suggested that implicitly
this Court already has embraced the unilateral theory in United States
v. Garcia, 16 MJ 52 (1983), where we ruled that an accused could be
convicted of conspiracy, even though in a different trial the only other
alleged conspirator had been acquitted. Indeed, then-Judge Crawford reasoned
to this effect in her subsequent opinion in United States v. Anzalone,
43 MJ 322 (1995).

III
Whatever the persuasiveness of these contentions,
we must today reject the unilateral theory. In the first place, the
various separate opinions in Anzalone made clear that the other
four judges rejected then-Judge Crawfords view as to the impact of Garcia.
Thus, it seems clear that Garcia was predicated on the well-established
premise that totally inconsistent results may be reached in different trials.
Dunn v. United States, 284 U.S. 390, 393 (1932); United States
v. Powell, 469 U.S. 57 (1984). Indeed, even in the same trial, a jury
may render inconsistent verdicts as to different defendants, see
United States v. Dotterweich, 320 U.S. 277, 279 (1943); and the
same rule has been applied with respect to inconsistent judgments entered
by a judge as to different defendants, Harris v. Rivera, 454 U.S.
339 (1981). So far as we can determine, such decisions by the Supreme Court
have not been construed to mean an abandonment of the "bilateral" theory
of conspiracy in the federal courts.
Second, unlike the Model Penal Code, the Uniform
Code in Article 81 used only the word "conspires"  a word which had been
repeatedly construed to require a common criminal purpose by at least two
persons. On the other hand, in defining conspiracy in § 5.03, the
Model Penal Code uses the word "agrees"  a term which in civil
contractual litigation has sometimes been interpreted to include situations
where certain actions of the parties indicated they had made an agreement
 even if subjectively they were not in full accord. In drafting Article
81 of the Uniform Code, if Congress had wished to adopt such an approach,
presumably they would have used "agrees" or some similar word to make the
point and not have used only the word "conspires" - which has consistently
been interpreted by the federal courts to incorporate a bilateral theory.4
For this Court retroactively to introduce an entirely new theory of conspiracy
that was not contemporaneously in the minds of the legislators or discussed
by them would seem to cross the line between judicial interpretation and
improper judicial lawmaking and cannot be justified by the "public policy"
considerations advanced in Chief Judge Crawfords dissent.
Chief Judge Crawford emphasizes the harm to
military efficiency that results when servicemembers engage in drug use
and concludes therefrom that this Court should adopt the unilateral theory
of conspiracy to help deter drug use. Of course, if we took her approach,
the unilateral theory would have to be applied not only to drug conspiracies
but also to any other conspiracy prosecuted under Article 81 of the Code
and so the resulting change would exceed the scope of the rationale she
suggests. More important, we are sure that drug use is of great concern
not only in the military but also in the civilian community, and it has
been subjected there to severe penalties. For example, in enacting 21 USC
§ 846, which concerns drug conspiracies, Congress omitted the requirement
of an overt act, a requirement which is still included in the general conspiracy
statute, 18 USC § 371, as well as in Article 81 of the Code.5
Nonetheless, in dealing with
drug-abuse prevention, Congress has not yet adopted the unilateral theory
of conspiracy. Thus, 21 USC § 846, which deals specifically with drug
conspiracies, does not incorporate the unilateral theory. Certainly by
the time this statute was enacted in 1970 - some years after promulgation
of the Model Penal Code - Congress was aware of the "unilateral" theory
of conspiracy, and its failure then to adopt this theory is an added indication
that it still favored the "bilateral" theory.
Article 36(a), UCMJ, 10 USC §
836(a), provides that, in prescribing "procedures, including modes of proof,"
before courts-martial, the President may prescribe regulations "which shall,
so far as he considers practicable, apply the principles of law and the
rules of evidence generally recognized in the trial of criminal cases in
the United States district courts." The implication is that Congress intended
that, to the extent "practicable," trial by court-martial should resemble
a criminal trial in a federal district court. Even though Article 36 is
principally concerned with "procedures" and "rules of evidence," it can
be inferred that, unless there is a reason not to do so, an interpretation
of a provision of the Uniform Code should follow a well-established interpretation
of a federal criminal statute concerning the same subject. The bilateral
theory of conspiracy is consistently followed in those courts, and the
dissent fails to demonstrate that Congress intended for courts-martial
to apply in conspiracy cases a theory that makes it easier to convict than
if the prosecution took place in a federal district court.
Throughout her dissent, Chief Judge
Crawford makes no reference to the intention of Congress. On the contrary,
she makes clear her desire to use the power of this Court to change military
law unilaterally to meet the "changing conditions in the military society."
_____ MJ at (17). We, however, do not believe it is proper to arrogate
to this Court the policy-making prerogative that belongs to Congress. Our
role should be to interpret and apply faithfully the policy of Congress
in responding to drug offenses or other crimes, regardless of our own view
as to the wisdom or efficacy of that policy.
Finally, rejection of the unilateral
theory does not leave a significant loophole for harmful conduct. This
Court has recognized the crime of attempted conspiracy  the offense which
the court below affirmed as a lesser-included offense. 6
For an attempt, the Manual for Courts-Martial prescribes "the same maximum
punishment authorized for the commission of the offense attempted, except
that in no case should the death penalty be adjudged, nor shall any mandatory
minimum punishment apply; and in no case, other than attempted murder,
shall confinement exceeding 20 years be adjudged." See para. 4e,
Part IV. Thus, usually - as in this case - successful invocation of the
bilateral theory will have little or no effect on the maximum punishment
imposable.7
Therefore, in view of well-established precedent
and the lack of any indication from the legislative history that Congress
intended in 1950 to take a new approach to conspiracy, we uphold the conclusion
reached by the court below in its excellent opinion. Thus, we reject the
unilateral theory of conspiracy. However, Congress, if it so chooses, can
readily overrule our conclusion and adopt a "unilateral" theory of conspiracy.
In that event, it would seem likely that, in the interest of consistency,
Congress would also wish to amend 18 USC § 371 and 21 USC § 846.

IV
The certified question, which asks if the court
below erred, is answered in the negative.
The decision of the United States Army Court
of Criminal Appeals setting aside the conspiracy conviction but upholding
a conviction for attempted conspiracy is affirmed.
FOOTNOTES:
1 The same
logic would suggest that if two persons purport to enter a conspiracy but
because of a mental disease one of them is unable to know right from wrong
with respect to the goal of their agreement, neither person is guilty of
conspiracy. But cf. United States v. Tuck, 28 MJ 520 (ACMR
1989). In any event, we need not decide that question, which has not been
briefed or argued.
2
See, e.g., United States v. Rosenblatt, 554 F.2d 36, 38 (2d
Cir. 1977); United States v. Chase, 372 F.2d 453, 459 (4th
Cir.), cert. denied, 387 U.S. 907 (1967); United States v. Pennell,
737 F.2d 521, 536 (6th Cir. 1984), cert. denied, 469
U.S. 1158 (1985); United States v. Moss, 591 F.2d 428, 434 n.8 (8th
Cir. 1979); United States v. Escobar De Bright, 742 F.2d 1196, 1200
(9th Cir. 1984); United States v. Barboa, 777 F.2d 1420,
1422 (10th Cir. 1985); United States v. Tombrello, 666
F.2d 485, 490 n.3 (11th Cir. 1982).
3
See, e.g., People v. Foster, 457 N.E.2d 405 (Ill. 1983);
James v. State, 481 So.2d 805 (Miss. 1985); State v. Kihnel,
488 So.2d 1238 (La. Ct. App. 1986); Commonwealth v. Themelis, 498
N.E.2d 136 (Mass. App. Ct. 1986); Fortune v. Commonwealth, 406 S.E.2d
47 (Va. App. 1991); State v. Pacheco, 882 P.2d 183 (Wash. 1994);
State v. Villalobos, 905 P.2d 732 (N.M. App. 1995).
4
Indeed, this Court has followed the Model Penal Code as to issues such
as whether "substantial step" satisfies the requirement for attempt or
whether "impossibility" is a defense for attempt or conspiracy  issues
as to which the federal courts had not articulated clear precedents.
5
In line with decisions of the lower federal courts, the Supreme Court interpreted
21 USC § 846 to have deleted the overt-act requirement. See
United States v. Shabani, 513 U.S. 10 (1994). In so doing, the Court
followed "the settled principle of statutory construction that, absent
contrary indications, Congress intends to adopt the common law definition
of statutory terms." Id. at 13. That principle also seems to apply
in deciding the issue posed in the case at hand.
6
Judge Gierke has disagreed with the Courts view that military justice
recognizes an offense of attempted conspiracy. See United States
v. Riddle, 44 MJ 282, 289 (1996) (dissenting); United States v.
Anzalone, 43 MJ 322, 326 (1995) (concurring in the result). Even under
his view, the offense of solicitation would be available for consideration
by a prosecutor.
7
Of course, whether a conspiracy exists may have implications as to vicarious
liability and as to admissibility of statements under the hearsay exception.


SULLIVAN, Judge (concurring):
I agree with my Brother Judge Everetts excellent
and well-reasoned opinion. I write separately to make two points. First,
ten circuits have adopted the bilateral theory of conspiracy. See,
e.g., United States v. Mahkimetas, 991 F.2d 379, 383 (7th
Cir. 1993). Second, our rejection today of the unilateral theory of conspiracy
is supported by our previous holding that an attempt to conspire is an
offense punishable under the Uniform Code of Military Justice. See
United States v. Riddle, 44 MJ 282, 285 n. * (1996). Accordingly,
no loophole exists for prosecuting persons in appellants situation. See
United States v. Lawrence, 47 MJ 75 (Summary Disposition June 17,
1997).


GIERKE, Judge (concurring in part and dissenting
in part):
I agree with the majority that appellee was
not guilty of conspiracy. For the reasons set out in my separate opinion
in United States v. Anzalone, 43 MJ 322, 326 (1995), I disagree
with the majoritys holding that appellee was guilty of attempted conspiracy.
Unlike Anzalone, I cannot concur in
the result in this case, because the specification and the evidence will
not support a conviction of solicitation. The testimony of the undercover
agent establishes that appellee did not solicit the agent to commit a crime.
To the contrary, the agent solicited appellee.
I would reverse so much of the lower courts
decision as affirms a conviction of attempted conspiracy and remand the
case for sentence reassessment.


CRAWFORD, Chief Judge (dissenting):
The central issue in this case is whether appellee
can be convicted of conspiracy if her sole coconspirator was an undercover
government agent. The coconspirators status as an undercover agent is
problematic because his lack of intent to complete the substantive offense
calls into question the existence of an agreement, which is an essential
component of the crime of conspiracy. This Court, taking a bilateral approach
to conspiracy, holds that the conviction of the defendant should be overturned
because there was in fact no agreement. I dissent. The Uniform Code of
Military Justice, the Manual for Courts-Martial, military case law, and
public policy all support a unilateral approach to conspiracy that determines
whether there was an agreement based on the perspective of the defendant
only. Because appellee believed that she had entered into an agreement
to sell marijuana, she should be convicted of conspiracy.

I. The Issue
Conspiracy, like all crimes, is defined by
the defendants mens rea and actus reus, the defendants
mental state, and the act performed. The mens rea required for conspiracy
includes both the conscious purpose to conspire and the conscious purpose
to commit the substantive offense. The actus reus of conspiracy
is the agreement that is formed between or among coconspirators.1
The element of mens rea is clearly satisfied
in this case. Appellee had both the intent to conspire and the intent
to commit the substantive offense -- to sell marijuana. The element of
actus reus, however, is problematic. Did the parties actually make
an agreement if the sole coconspirator did not intend to follow through
with the substantive offense? In other words, did the coconspirators intentional
deception of appellee destroy the actus reus of the alleged
conspiracy?
The answer depends on the definition of "agreement."
Traditionally, an "agreement" is bilateral, requiring that at least two
parties involved in a conspiracy sincerely intend to complete the substantive
offense. An alternative approach relies upon a unilateral definition. Under
this approach, the "agreement" element is satisfied if the defendant himself
believes that there is an agreement. A conspiracy conviction will stand
despite a coconspirators concealed intent not to follow through with the
substantive offense.
Which approach, the bilateral or the unilateral,
should prevail in military justice?

II. The Law
A. A Bilateral Past
The United States Code section on conspiracy,
18 USC § 371, takes a bilateral approach to the crime. This means
that for an agreement to be found, both parties must intend to commit the
substantive offense. Cases interpreting this section have highlighted the
significance of a common design or purpose and a meeting of the minds.
"The essence of the crime is the agreement on the part of each party to
effect the object involved. They must each intend the accomplishment of
the object; and they must agree on this." United States v. Markowitz,
176 F.Supp. 681, 684 (E.D. Pa. 1959); see also United States
v. Goss, 329 F.2d 180 (4th Cir. 1964). Other cases have
clarified that it takes two parties to conspire. Thus, "there can be no
indictable conspiracy with a government informer who secretly intends to
frustrate the conspiracy." Sears v. United States, 343 F.2d 139,
142 (5th Cir. 1965). One defendant alone cannot be convicted
of conspiracy.
The drug conspiracy statute, 21 USC §
846, emphasizes that no conspiratorial agreement exists unless at least
two culpable coconspirators agree. Consequently, defendants agreement
must be with someone other than a government agent or informant. Therefore,
in United States v. Rodriguez, 765 F.2d 1546, 1552 (11th
Cir. 1985), the court held that neither an informant nor an agent of the
Drug Enforcement Administration could be considered a party to an
"illegal agreement since government agents and informers cannot be conspirators."
See also United States v. Hendrickson, 26 F.3d 321, 333 (2d
Cir. 1994).
Older military cases seem to mirror the bilateral
perspectives of 18 USC § 371 and 21 USC § 846. See United
States v. Nathan, 12 USCMA 398, 30 CMR 398 (1961); United States
v. Kidd, 13 USCMA 184, 32 CMR 184 (1962); United States v. LaBossiere,
13 USCMA 337, 32 CMR 337 (1962). The majority points in addition to two
Supreme Court decisions that embraced the bilateral approach to conspiracy,
namely Iannelli v. United States, 420 U.S. 770 (1975), and Morrison
v. California, 291 U.S. 82 (1934).


B. A Unilateral Shift


The ALI Model Penal Code, by contrast, follows
a unilateral approach to conspiracy and evaluates the agreement from the
perspective of the defendant only. If the defendant believed that there
was an agreement, then there was in fact an agreement, regardless of the
true intentions of the coconspirator. This is consistent with the Model
Penal Codes general view that an analysis of any alleged criminal behavior
should consider the circumstances as the defendant believed them to be.
The Uniform Code of Military Justice is, of
course, the primary authority in military law. The Code mirrors the Model
Penal Code in several respects. First, as the majority points out, the
"substantial step" test is the test applied in a court-martial to determine
whether an accuseds conduct will support a conviction of attempt. See
Art. 80, UCMJ, 10 USC § 880(a). This is compatible with the Model
Penal Codes standard (§5.01(1)(c)) for finding an attempt.2
Second, as the majority also notes, the Code has rejected impossibility
of fact as a defense to conspiracy or attempt. Not only is this consistent
with the Model Penal Codes view on factual impossibility (§5.01(1)(a)),
but it conceptually supports a unilateral approach to conspiracy. A coconspirators
concealed resolve not to follow through with a substantive offense is really
just a form of factual impossibility. Finally, the language of Article
81 of the Code resembles Model Penal Code § 5.03 more so than the
language of 18 USC § 391. Thus, as the majority concludes, it seems
plausible to argue that military justice should also
follow the Model Penal Code in favoring the
unilateral approach to conspiracy.
The Uniform Code of Military Justice is the
principal authority in military law. Also persuasive is the non-binding
language of the Manual that clearly supports a unilateral approach to conspiracy.
For example, according to the Manual, "[a] person who purposely engages
in conduct which would constitute" a substantive offense is guilty of an
attempt "if the attendant circumstances were as that person believed them
to be." Para. 4c(3), Part IV, Manual for Courts-Martial, United States
(1998 ed.). Regarding conspiracy, the Manual provides: "It is not a defense
that the means adopted by the conspirators to achieve their object, if
apparently adapted to that end, were actually not capable of success, or
that the conspirators were not physically able to accomplish their intended
object." Para. 5c(7), Part IV. By analogy, the fact that the sole coconspirator
is an undercover agent who has no intention of completing the substantive
offense would not be a defense to conspiracy.3
In addition to the statutory and Manual support
for the unilateral approach, military case law in more recent years has
embraced the unilateral approach to conspiracy. In United States v.
Garcia, 16 MJ 52 (1983), this Court faced the question of inconsistency
of verdicts and ruled that an accused could be convicted of conspiracy
despite the fact that in a different trial, the only other alleged coconspirator
had been acquitted. Garcia supported an individualized inquiry into
the circumstances of the defendant, a perspective that mirrors the unilateral
approach to conspiracy. In United States v. Tuck, 28 MJ 520, 521
(ACMR 1989), the service court concluded that Garcia expressly "rejected
the bilateral concept of conspiracy ... in favor of the unilateral
theory."4 (Internal quotation marks
omitted.)
Several non-military cases also favor the unilateral
approach to conspiracy. In Harris v. Rivera, 454 U.S. 339 (1981),
the Supreme Court held that a codefendants acquittal is not necessarily
inconsistent with a defendants conviction for conspiracy. See also
United States v. Dotterweich, 320 U.S. 277, 279 (1943); State
v. St. Christopher, 232 N.W.2d 798 (Minn. 1975); Platt v. State,
8 N.W.2d 849, 856 (Neb. 1943). Each defendant is evaluated on the basis
of his own independent circumstances. This reasoning would allow a defendant
to be convicted of conspiracy, even if a coconspirators status as an undercover
agent prevented the coconspirators own conviction.
Finally, "ordinary contract law" supports a
unilateral approach.5 Contract law
is particularly relevant to a conspiracy analysis because the agreement
required for a conspiracy in many ways resembles a contract. Several cases
have held that the assent required for the formation of a contract is a
matter of overt acts and expressions, and not of inward unanimity in motives,
design, or the interpretation of words.6
Other cases have noted that "[t]the meeting of minds which is essential
to the formation of a contract is not determined by the secret intentions
of the parties," but rather by the intentions each party outwardly manifests
to the other.7
These common-law views on contract creation
can be applied to conspiracy analysis. In making an agreement to commit
a crime, the conspiring parties are, in effect, making a contract. The
defining elements of contract formation  namely: offer, acceptance, and
consideration -- are present.8 It
follows that the agreement, or contract, formed between coconspirators
should be evaluated based on the outward manifestations, not the inward
intentions, of the parties. The outward manifestations of the parties in
the present case reveal an agreement between them to sell and purchase
drugs. According to contract law, this is the basis on which the existence
of a conspiracy should be evaluated. The concealed motives of the undercover
agent do not change the fact that his overt behavior indicated his agreement
to buy drugs from appellee.

III. Public Policy
Policy considerations provide what is perhaps
the most compelling support for recognizing the unilateral approach to
conspiracy.9
In Sauer v. United States, 241 F.2d
640, 648 (9th Cir. 1957), the court stated that the purpose
of criminal law is to define socially intolerable conduct and to hold conduct
within the limits which are reasonably acceptable from a social point of
view. In short, criminal law aims to punish and deter socially undesirable
behavior.
Several rationales are offered for the existence
of conspiracy as a specific crime. First, conspiracy is an inchoate crime
centered on the preparation to commit a substantive offense.10
This "inchoate nature" rationale demands that society permit preventive
steps to be taken against those who show a disposition to commit crime.11
More prominent than the "inchoate nature" rationale is the idea that conspiracy
entails special dangers inherent in group criminal activity. See
United States v. Feola, 420 U.S. 671, 693 (1975). Psychological
reinforcement, effectiveness, degree of harm, and the creation of a focal
point are often cited as contributory factors to the increased danger inherent
in group crimes.12
The purpose of criminal law, and therefore
the rationales for conspiracy outlined above, take on heightened significance
in military justice. The United States Armed Forces play a unique and vital
role in society. The members of the military pledge their commitment to
protect and defend the Nation. To prepare for and perform its role, the
military must insist upon a respect for duty and discipline unparalleled
in civilian society. Based on this reasoning, in United States v. Bickel,
30 MJ 277 (1990), this Court held that contraband obtained during a search
which was allegedly improper under civilian law could be used as evidence
despite the impropriety of the search because of the unique position of
the military and the need to ensure the readiness of military units.13
In short, the need to punish and deter socially undesirable behavior is
particularly strong in military justice due to the character of the military
and its paramount role in the defense of the nation.14
It is significant that this case is a drug
conspiracy case. Statistics reveal that drug-related charges account for
a substantial portion of military cases each year.15
Drugs pose a special threat to the function of the military, and drug-related
offenses in the military therefore demand consistent and stringent punishment.16
In Murray v. Haldeman, 16 MJ 74, 78 (CMA 1983), the majority repeated
earlier observations that possession of drugs by military personnel
"is a matter of immediate and direct concern to the military as an act
intimately concerned with prejudice to good order and discipline or to
the discredit of the armed forces." Similarly, in United States v. Bickel,
supra, this Court determined that drugs diminish the military effectiveness
of servicemembers who are using drugs. When such persons are entrusted
with important responsibilities, sometimes involving access to complex
equipment or to lethal weapons, it may endanger other persons, their property,
or government property. In Bickel this Court cited Article 112a
of the Uniform Code of Military Justice,
10 USC § 912a, through which Congress
specifically forbade drug use in the military out of concern for the dangers
resulting from use of controlled substances by servicemembers. See
30 MJ at 283. Finally, in United States v. Jackson, 48 MJ 292, 295
(1998), the majority stated: "Physical and mental fitness are the
quintessential requirements of military readiness. The use of illegal drugs
significantly diminishes the users physical and mental capabilities. .
. ."
Because drugs pose a particular threat to the
unique duties of military personnel and because military justice necessarily
must create a more disciplined environment than exists in civilian society,
it is imperative that drug offenses in the military be punished severely.
The goal in adjudicating this case is to punish appellee for what she did
and to deter her, and others, from selling drugs in the future. As far
as appellee was concerned, she was involved in a conspiracy. She
was prepared to follow through with the drug sale she planned with her
"coconspirator." Such behavior on the part of an Army private, with the
attendant danger associated with group crime, should be punished for what
appellee believed her act to be: a conspiracy. To do so is to act
in the best interest of military justice and to aim as strenuously as possible
to combat the serious threat of drugs in the military.17
A final policy motive for appellees conspiracy
conviction is the consequences the majoritys decision could have for classified
cases. In classified cases the identity of the coconspirator, as either
an undercover agent or a willing coconspirator, may not be known. The majoritys
strict bilateral view of the requisite "agreement" would prevent conspiracy
convictions in such cases. Under the majority view, there must be at least
two parties who sincerely intend to follow through with the substantive
offense in order for an agreement to be present. The inability to identify
the true intentions of one of the parties would automatically negate the
"agreement" element of a conspiracy. This could, in effect, provide an
unintended escape hatch for a defendant from the crime of conspiracy. The
participants in actual conspiracy situations might not be convicted as
conspirators under the bilateral approach. This is particularly disadvantageous
in drug-related military cases, such as this one, where a chief goal of
the court should be to combat the deleterious effect of drugs in the military.18
The majority states:



For this Court retroactively to introduce
an entirely new [unilateral] theory of conspiracy that was not contemporaneously
in the minds of the legislators or discussed by them would seem to cross
the line between judicial interpretation and improper judicial lawmaking
and cannot be justified by the "public policy" conditions advanced in Chief
Judge Crawfords dissent.



___ MJ at (9). This is an inaccurate interpretation
of the public-policy rationales I offer above.
In McCulloch v. Maryland, 17 U.S. (4
Wheat 159, 200) 316, 407 (1819), the eminent Chief Justice Marshall opined:



A constitution, to contain an accurate detail
of all the subdivisions of which its great powers will admit, and of all
the means by which they may be carried into execution, would partake of
the prolixity of a legal code, and could scarcely be embraced by the human
mind. It would, probably, never be understood by the public. Its nature,
therefore, requires, that only its great outlines should be marked, its
important objects designated, and the minor ingredients which compose those
objects, be deduced from the nature of the objects themselves. That this
idea was entertained by the framers of the American constitution, is not
only to be inferred from the nature of the instrument, but from the language.
Why else were some of the limitations, found in the 9th section of the
1st article, introduced? It is also, in some degree, warranted,
by their having omitted to use any restrictive term which might prevent
its receiving a fair and just interpretation. In considering this question,
then, we must never forget that it is a constitution we are expounding.



In Hurtado v. California, 110 U.S. 516,
530 (1884), the Court reasoned:



It is more consonant to the true philosophy
of our historical legal institutions to say that the spirit of personal
liberty and individual right, which they embodied, was preserved and developed
by a progressive growth and wise adaptation to new circumstances and situations
of the forms and processes found fit to give, from time to time, new expression
and greater effect to modern ideas of self-government.



In Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 596 (1952), Justice Frankfurter (concurring) summarized the
idea that the Constitution is a "living document":



The pole-star for constitutional adjudications
is John Marshalls greatest judicial utterance
that "it is a constitution we are expounding." McCulloch v. Maryland,
4 Wheat. 316, 407. That requires both a spacious view in applying an instrument
of government "made for an undefined and expanding future," Hurtado
v. California, 110 U.S. 516, 530, and as narrow a delimitation of the
constitutional issues as the circumstances permit. Not the least characteristic
of great statesmanship which the Framers manifested was the extent to which
they did not attempt to bind the future. It is no less incumbent upon this
Court to avoid putting fetters upon the future by needless pronouncements
today.



Several military cases have embraced the same
principle. In United States v. Trottier, 9 MJ 337 (1980), this Court
dealt with the question whether use of drugs by military persons had special
military significance. In responding to the Governments request for this
Court to overrule its prior decisions on the issue, the majority wrote:



The law is not an end in itself; more properly
it is a means to accomplish the ends of an ordered society. When change
occurs in the conditions of that society upon which the law is based, the
law, in turn, must respond thereto.



Id. at 344. Referring to the Constitution,
the Court continued:



It is no answer to say that this public need
was not apprehended a century ago, or to insist that what the provision
of the Constitution meant to the vision of that day it must mean to the
vision of our time.



Id. (quoting Home Bldg. & Loan Assn
v. Blaisdell, 290 U.S. 398, 442 (1934)). It reasoned that "while the
jurisdictional test of service connection may remain firm, its application
must vary to take account of changing conditions in the military society."
9 MJ at 345.
In United States v. Minnifield, 9 USCMA
373, 26 CMR 153 (1958), this Court considered whether an accuseds handwriting
exemplar was a "statement" within the meaning of Article 31, Uniform Code
of Military Justice, 10 USC § 831. In drawing its conclusion this
Court referred to the Uniform Code of Military Justice as a "living document"
and concluded that "it is a liberal and enlightened, rather than a narrow
and grudging, application of Article 31 that is best calculated to insure
to the military the preservation of our traditional concepts of justice
and fair play." Id. at 379, 26 CMR at 159.
The general idea behind these excerpts is that
the times do change, and the judicial interpretation of legal documents
must shift accordingly. The military cannot tolerate drug use. Its role
in society is too precious to punish drug use any less severely than my
dissent advocates. What the majority labels as a retroactive introduction
of "an entirely new theory of conspiracy that was not contemporaneously
in the minds of the legislators or discussed by them" is not "improper
judicial lawmaking," but rather an attempt to account for "changing conditions
in military society." This Court must face the corruption head-on, interpret
the Code in a "liberal and enlightened" manner, and apply rigorous standards
of punishment that will most effectively eradicate the problem of drug
use in the military.
As I argue above, there is case law that supports
the unilateral theory. But even if this point is not conceded, public policy
does justify implementation of a unilateral approach to conspiracy.
The role of the military in society is too important to allow the judiciary
to apply a rigid interpretation of the law that does not account for evolving
circumstances and needs.
The majority notes that my approach exceeds
the scope of its rationale because the unilateral theory would have to
be applied not only to drug conspiracies but to all conspiracies. I need
only remind the majority that a substantial proportion of military cases
concern drug use.
The majority contends that this Court is not
justified in adopting the unilateral theory because, although the civilian
community is concerned with drug abuse, its drug conspiracy statute, 21
USC § 846,19 does
not incorporate the unilateral theory. However, this is a case of statutory
interpretation.
Just as the majority misinterprets Article
81, UCMJ, 10 USC § 881, the majority further infers that, pursuant
to Article 36 of the Code, 10 USC § 836, military justice should follow
the "principles of law" as to substantive crimes generally recognized in
the civilian federal district courts. ___ MJ at (11). Article 36
provides that the President may prescribe rules of "[p]retrial, trial,
and post-trial procedures, including modes of proof ... and the rules of
evidence generally recognized in the trial of criminal cases in the United
States district courts...." See, e.g., United States v.
Scheffer, 523 U.S. 303, 307 n.2 (1998). However, this is not a case
involving "modes of proof" or "rules of evidence," but rather one of statutory
interpretation concerning what constitutes a substantive crime. I reject
the majoritys inference. Cf. United States v. McElhaney,
No. 99-0949, ___ MJ ___ (Sept. 14, 2000); United States v. Dowty,
48 MJ 102 (1998).
In this instance, we should not be limited
by the perspective of the civilian statute which is different from Article
81. As I argued above, military society is distinctly different from civilian
society, and military justice must be administered accordingly. Congress
has recognized this difference by establishing a separate system of justice
for the military that includes judicial oversight by this civilian Court.
Finally, the majority believes that the statute
at bar, Article 81, is unambiguous in its adoption of the bilateral approach.
I disagree. The federal statute, 18 USC § 371, provides:



If two or more persons conspire either
to commit any offense against the United
States, or to defraud the United States,
or any agency thereof in any manner or
for any purpose, and one or more of such
persons do any act to effect the object
of the conspiracy, each shall be fined
under this title or imprisoned not more
than five years, or both.



Article 81, substantively unchanged since 1950,
provides:



Any person subject to this chapter who
conspires with any other person to commit
an offense under this chapter shall, if
one or more of the conspirators does an
act to effect the object of the conspiracy,
be punished as a court-martial may direct.



Article 81 is distinguished by its provision that
a person "who conspires with any other person to commit an offense"
(emphasis added) provided there is an overt act "to effect the object of
the conspiracy" constitutes conspiracy. As to whether there is an agreement,
Article 81 is ambiguous. It does not say whether we determine the existence
of an agreement based on the defendants state of mind or the state of
mind of the defendants co-conspirators. Because the statute is ambiguous,
we must consider the purpose behind the statute. Certainly one of the purposes
is to prevent conspiracies. When there are multiple parties to a crime,
the lowest common denominator will be the lowest ethical conduct. When
there is more than one party to the crime, others become emboldened. Thus,
we should examine the defendants state of mind as to his expectation of
support.
As I indicated earlier, several non-military
cases prior to the adoption of the Code favored a unilateral approach to
conspiracy. ___ MJ at (7). Historically, the unilateral theory of
conspiracy was in existence and had been recognized in some jurisdictions
prior to the drafting and enactment of the Code. This historic fact, coupled
with the obvious difference between the language of the federal civilian
statute, 18 USC § 371, and Article 81 of the Code, cast doubt on the
majoritys assertion that the unilateral theory is an "entirely new theory
of conspiracy," ___ MJ at (9). For all of the above-mentioned reasons,
I believe that there is a compelling argument to adopt and apply the unilateral
theory of conspiracy.

IV. The Alternative: Attempted Conspiracy
The most compelling objection to adoption of
a unilateral approach to the offense of conspiracy on the part of military
justice is the argument that existence of attempted conspiracy precludes
the need for a conspiracy analysis in this case. In United States v.
Anzalone, 43 MJ 322, 323 (1995), this Court held that the Uniform Code
of Military Justice "does not prohibit a charge of attempted conspiracy
where there is a purported agreement between a servicemember and an undercover
government agent". See id. at 327 (Sullivan and Wiss, JJ.,
each concurring in the result). Furthermore, in United States v. Lawrence,
47 MJ 75 (1997), Judge Sullivan wrote in his concurring opinion that a
plain reading of the Uniform Code of Military Justice (§§ 880-881)
reveals that there is a crime of attempted conspiracy in the federal criminal
code that governs the military. An agreement between a defendant and a
law enforcement agent is attempted conspiracy. See 47 MJ at 75.
If the court-martial can convict the
defendant of attempted conspiracy, why do we need to even evaluate the
existence of an agreement? A conviction of attempted conspiracy would eliminate
the debate surrounding the bilateral versus unilateral approach to conspiracy.
However, the above discussion concerning the purpose of military justice
and the particular threat drugs pose to the military suggests that conspiracy
would be a more appropriate conviction. The dangers inherent in group criminal
activity, specifically to group criminal activity involving drugs, have
the severest of consequences for the military and its vital role in society.
To make the point that conspiracy in the military cannot be tolerated,
a conspiracy conviction should be permitted even when the sole coconspirator
is an undercover agent.
Accordingly, I would answer the certified question
in the affirmative and would reverse the decision below setting aside appellees
conviction for conspiracy.
FOOTNOTES:
1 While "the
law does not punish criminal thoughts," the Court noted in United States
v. Shabani, 513 U.S. 10, 16 (1994), that "the criminal agreement itself
is the actus reus." As the Court stated in Iannelli v. United
States, 420 U.S. 770, 777 (1975), "Conspiracy is an inchoate offense,
the essence of which is an agreement to commit an unlawful act."
2
It should be mentioned, however, that the Manual for Courts-Martial does
state that mere preparation does not constitute a substantial step toward
the substantive offense. See para. 4c(2), Part IV, Manual
for Courts-Martial, United States (1998 ed.). This does reflect the Model
Penal Codes claim that "[c]onduct shall not be held to constitute a substantial
step . . . unless it is strongly corroborative of the actors criminal
purpose." Model Penal Code § 5.01(2). According to both authorities,
something greater than mere preparation is required for "attempt" because
mere preparation is not necessarily "strongly corroborative" of the actors
criminal intent.
3
Criminal statutes, such as the Uniform Code of Military Justice, are commonly
criticized. It is often argued that criminal statutes are ambiguous, that
there are simply too many offenses covered, and finally that there is no
notice to potential criminals of the statutes contents. These general
criticisms do not apply to the criminal statutes relevant to this case.
4
The lower court majority argued that the reasoning in Garcia is
not applicable to this case because Garcia dealt only with the limited
question of consistency of verdicts, and should therefore not be expanded
to apply to a general analysis of conspiracy cases. See 50 MJ 844,
846. The court cited United States v. Anzalone, 43 MJ 322, 328 (1995),
in which Judge Wiss, concurring in the result, wrote that "Garcia
did not change the substantive law that a conspiracy in military jurisprudence
requires a meeting of the minds." Thus, the lower court rejected the Tuck
courts broad reading of Garcia, 50 MJ at 846-47. However, Judge
Squires wrote in dissent: "A failure to embrace the Model Penal Codes
unilateral approach to conspiracy prosecution is not tantamount to an outright
rejection of the theory, especially when the issue was not case dispositive.
In short, Anzalone did not overrule Tuck, nor, in my judgment,
weaken its holding." Id. at 849.
5
See Anzalone, 43 MJ at 326 (opinion of Crawford, J.).
6
See Lucy v. Zehmer, 84 S.E.2d 516 (Va. 1954); Washington
Shoe Mfg. Co. v. Duke, 218 P. 232 (Wash. 1923).
7
See Hudson v. Columbian Transfer Co., 100 N.W. 402, 403 (Mich.
1904); Howell v. Smith, 128 S.E.2d 144 (NC 1962).
8
Steinberg v. Chicago Medical School, 371 N.E.2d 634, 639 (Ill. 1977),
gives a concise discussion of contract formation. The court stated that
an offer, acceptance, and consideration are the "basic ingredients of a
contract." Further, "[a]ny act or promise which is of benefit to one party
or" detriment "to the other is a sufficient consideration to support" the
formation of a contract. Finally, the court noted that "a subjective understanding
is not" a requirement. It is sufficient "that the conduct of the contracting
parties indicates an agreement." Id. at 640. In the present case,
the undercover agent made an offer to purchase marijuana from appellee.
Appellee accepted the offer, stating that she would buy the marijuana when
it became available and that the agent could then pay her back. The promise
of payment offered for the drugs could be viewed as consideration for the
agreement. The elements of a contract were present.
9
At least one judge in Anzalone, 43 MJ at 324, wrote that
"determination of what" constitutes "criminal conduct may take into consideration
the question of social harm to be prevented." (Opinion of Crawford, J.)
10
See Marcus, Conspiracy: The Criminal Agreement in Theory and
in Practice, 65 Geo. L. Rev. 925, 929 (1977).
11
See United States v. Rabinowich, 238 U.S. 78, 88 (1915),
noting that conspiracy "involves deliberate plotting to subvert the laws,
educating and preparing the conspirators for further and habitual criminal
practices."
12
Conspiracy promotes psychological reinforcement because plurality of members
exerts social pressure against an individuals decision to reject commission
of the substantive offense. Consequently, even if one member withdraws
from the conspiracy, other conspirators may still complete the act the
withdrawn member helped to orchestrate.
The effectiveness of
a crime is increased through conspiracy due to the increased number of
participants. The existence of numbers, it could be argued, facilitates
division of labor, which promotes the efficiency with which a given object
can be pursued. This makes possible attainment of objects more elaborate
and ambitious than otherwise would be attainable. Related to this concept
is the idea that an increase in numbers is likely to result in more harm
than that which would be produced by an individual acting alone.
Finally, the presence
of a group with criminal objectives provides a continuing focal point for
further crimes, either related to or unrelated to those immediately planned.
For a more complete discussion
of these rationales and their contributory factors, see Burgman, Unilateral
Conspiracy: Three Critical Perspectives, 29 DePaul L. Rev. 75 (1979).
13
See also United States v. Middleton, 10 MJ 123 (CMA 1981).
14
In Anzalone, 43 MJ at 324, the lead opinion described the
important relationship between the actus reus of conspiracy and
dangerousness, as follows.

Here the focus on dangerousness
is on the accused and what he might do to implement his conspiracy, thinking
he has the support of a second person. . . . The FBI agent is not going
to act in furtherance of the conspiracy; however, the accused, feeling
he has cognitive support for the conspiracy, may very well act in furtherance
of the conspiracy. Thus, here there are more than just evil thoughts. These
are deeds being carried out by an accused which may result in harm to other
individuals just in obtaining the classified information.

15
In fiscal years 1997 and 1998, 57% and 39% of Air Force cases, respectively,
involved drugs. In fiscal years 1997, 1998, and 1999, 28%, 30%, and 31%
of Army cases, respectively, involved drugs. To date, 31% of the Army cases
in 2000 have involved drugs.
16
In fiscal years 1972 and 1973, "86,000 servicemen underwent some type of
rehabilitation for drug abuse ... and only 52% of these were able to return
to duty after rehabilitation." See Murray v. Haldeman, 16
MJ 74, 78 (CMA 1983), quoting Schlesinger v. Councilman, 420 U.S.
738, 761 n.34 (1975). In fiscal year 1999, the percentage of positive
results from urinalysis tests for the presence of illicit drugs increased
in the Air Force, Navy, and Army. See Brinkley, Agony of Ecstasy,
Navy Times of June 26, 2000, at 14. In United States v. Rivers,
49 MJ 434, 438 (1998), this Court quoted Major General Keanes memorandum
on Physical Fitness and Physical Training," in which he expressed his view
"that a soldiers body is a weapon system, and that our charge as commanders
is to help our soldiers condition their bodies and avoid abusing them."
17
In his work Nichomachean Ethics, Aristotle puts forth a theory of
human behavior that associates virtue with the habitual rehearsal of good
acts. He writes that moral virtue is acquired by the repetition of acts
that avoid excess and defect. Artistotle further asserts that moral action
is done by choice and that the object of choice is the result of previous
deliberation. Aristotle, Nichomachean Ethics 348-55 (W.D. Ross trans,
1952).
Saint Thomas Aquinas,
in his lauded work Summa Theologica, brings Aristotles discussion
of moral virtue into the legal realm. Aquinas writes:

[A] man needs to receive
this training from another, through which to arrive at the perfection of
virtue. . . . But since some [persons] are found to be depraved, and prone
to vice, and not easily amenable to words, it was necessary for such to
be restrained from evil by force and fear, in order that at least they
might cease from evil-doing and leave others in peace, and that they themselves,
by being accustomed in this way, might be brought to do willingly what
hitherto they did from fear, and thus become virtuous. Now this kind of
training, which compels through fear of punishment, is the discipline of
laws. Therefore, in order that man might have peace and virtue, it was
necessary for laws to be framed[.]

T. Aquinas, Summa Theologica
227 [Question XCV, Article I, Objection 3] (Fathers of the English Dominican
Province trans. 1952).
What Aristotle and Aquinas
add to the analysis of this case is support for the need for criminal law
to reinforce socially desirable behavior and to thwart socially undesirable
behavior. Conspiracy poses a special threat to society because of the dangers
inherent in group criminal activity. According to Aquinas, laws are required
to combat these dangers by curbing human behavior, first through fear,
but eventually by reshaping a would-be criminals will. Aristotle adds
that it is the repetition of good behavior that causes one to possess moral
virtue. Thus, laws, and the punishment entailed by breaking them, force
one to learn socially desirable behavior, and to eventually act in a socially
desirable way through ones own will. If military justice truly wishes
to prevent conspiracies, particularly drug-related conspiracies for the
compelling reasons mentioned above, then it must repeatedly instill in
the minds of military personnel that conspiracies are severely punishable.
A defendant who, emboldened by the support of peers, demonstrates that
she is actively prepared to engage in a conspiracy, and who in fact believes
that she is engaging in a conspiracy in a given situation, should be punished
as a conspirator. This should be the case even if her sole coconspirator
had no intention to follow through with the substantive offense.
18
See discussion, nn. 15-16, supra.
19
This section provides:

Any person who attempts
or conspires to commit any
offense defined in this
subchapter shall be subject
to the same penalties
as those prescribed for the
offense, the commission
of which was the object of
the attempt or conspiracy.
 


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