           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                              Airman Basic SYRIL D. MELVIN, IV
                                    United States Air Force

                                              ACM S32210

                                               1 April 2015

         Sentence adjudged 8 January 2014 by SPCM convened at Sheppard
         Air Force Base, Texas. Military Judge: Matthew S. Ward.

         Approved Sentence: Bad-conduct discharge and forfeiture of $600.00 pay
         per month for 3 months.

         Appellate Counsel for the Appellant: Captain Johnathan D. Legg.

         Appellate Counsel for the United States: Major Jason S. Osborne and
         Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                             under AFCCA Rule of Practice and Procedure 18.4.



MITCHELL, Senior Judge:

        The appellant providently pled guilty to the wrongful use of marijuana; and,
contrary to his other pleas, a special court-martial composed of officer and enlisted
members found the appellant guilty of conspiracy to obstruct justice and introduction of
marijuana onto Sheppard Air Force Base, in violation of Articles 81 and 112a, UCMJ,
10 U.S.C. §§ 881, 912a. The approved sentence was a bad-conduct discharge and
forfeiture of $600 pay per month for 3 months. The appellant avers one error: the
evidence regarding the conspiracy to obstruct justice is legally and factually insufficient.
We disagree and affirm the approved findings and sentence.
                                       Background

       Early in the morning of 22 September 2013, the appellant’s vehicle was selected
for a random inspection upon entering Sheppard Air Force Base, Texas. The search
included the use of a military working dog trained to detect the odor of various illegal
substances. The military dog alerted while in the front seat, indicating a substance was
located near the steering wheel and radio. Security Forces members then entered the car
and removed the face of the radio, behind which they found a bag containing a green
leafy substance and two cigarillos. Forensic testing of the substance identified it as
marijuana.

       Mr. Malon Ardamus-Kenyan Allen testified under a grant of immunity. He and
the appellant were good friends. The appellant told him the military police found
marijuana in his car. Mr. Allen stated that he independently decided to tell the police that
he was the owner of the marijuana because he believed that as a civilian he could not be
prosecuted. He stated he called the appellant and falsely told him, “Yeah, it was mine,
man. . . . I put it in your dash.” He then asked the appellant for the phone number of the
police officer he should tell, and the appellant told him to “Google” it. Mr. Allen
eventually called and falsely claimed that the marijuana was his. On cross-examination,
Mr. Allen answered, “No, sir,” when asked, “Was there ever any agreement between you
and [the appellant] that you would lie to OSI?”

       Detective MB with the Joint Drug Enforcement Team interviewed the appellant.
The appellant admitted he had used marijuana while on leave but denied knowing there
was marijuana in his car. The appellant blamed his cousin for putting the marijuana in
his car. On the evening of 23 September, the appellant called Detective MB and asked
him, “You know, if I have an individual that comes forward and says that bag of weed is
his, would he get arrested for it or in trouble?” Detective MB told the appellant that this
other person would not get arrested but that the bottom line was the marijuana was in the
appellant’s car. The appellant then called Detective MB again on the morning of the 24th
and again asked a similar question, then stated that “he had a guy who wants to come
forward and claim the weed.” Detective MB told the appellant to provide this person his
number. Shortly thereafter Mr. Allen called the detective, and they arranged to meet on
the 25th.

       At the meeting on the 25th, Mr. Allen at first claimed that the marijuana was his.
Detective MB confronted Mr. Allen with portions of the appellant’s statement and the
offenses of lying to a law enforcement investigator. Mr. Allen then admitted that it was
not his marijuana. Detective MB asked Mr. Allen if he and the appellant had talked
about the false statement he would provide. According to Detective MB, Mr. Allen
“stated on the 23rd and then the 24th that [he] and [the appellant] had had conversations
about the bag of weed. And then Allen told [Detective MB] finally on the 23rd is when



                                             2                                ACM S32210
he agreed that he would take the blame for the bag of weed in order to help his friend
out.”

                              Legal and Factual Sufficiency

       We review issues of factual sufficiency de novo. Article 66(c), UCMJ,
 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The test for factual sufficiency is “whether, after weighing the evidence in the record of
trial and making allowances for not having personally observed the witnesses,
[we are] . . . convinced of the accused’s guilt beyond a reasonable doubt.” United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting this unique appellate role, we
take “a fresh, impartial look at the evidence,” applying “neither a presumption of
innocence nor a presumption of guilt” to “make [our] own independent determination as
to whether the evidence constitutes proof of each required element beyond a reasonable
doubt.” Washington, 57 M.J. at 399.

        The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324.
“[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United States v.
Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citing United States v. Rogers,
54 M.J. 244, 246 (C.A.A.F. 2000)).

              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. Harman, 68 M.J. 325, 327 (C.A.A.F. 2010) (brackets, citations, and
internal quotation marks omitted).

       The appellant argues that his conviction of the alleged overt act—that the
appellant called Detective MB to inquire about potential criminal liability for civilians—
is legally and factually insufficient. “[A]n overt act is something apart from the

                                             3                                ACM S32210
conspiracy of agreement. It must be an independent act following the conspiracy; it must
be done to effect the object of the conspiracy.” United States v. Collier, 14 M.J. 377, 378
(C.M.A. 1983) (quoting Marino v. United States, 91 F.2d 691, 694 (9th Cir. 1937))
(internal quotation marks omitted). The appellant argues that the evidence is not
sufficient to show that the overt act occurred after the conspiracy as opposed to occurring
either before or during the forming of the conspiracy. “As a matter of law, an act done by
the conspirators prior to their agreement is not sufficient to constitute the overt act
required for a conspiracy conviction.” United States v. Farkas, 21 M.J. 458, 460
(C.M.A. 1986).

        Detective MB provided evidence that Mr. Allen and the appellant entered an
agreement on 23 September for Mr. Allen to falsely claim ownership of the marijuana.
After the agreement was formed, the appellant called Detective MB on 24 September to
confirm that a civilian who claimed possession would not be arrested. We agree that if
the phone calls to Detective MB only occurred before the agreement, the evidence would
not be legally or factually sufficient. However, our review of the evidence convinces us
that the phone call by the appellant on 24 September occurred after the agreement and
was done for the purpose of bringing about the object of the conspiracy that is the
obstruction of justice. The fact the appellant made a similar phone call the day before
either during the forming of the conspiracy or before the conspiracy does not diminish the
evidence that he made a phone call the next day after forming the conspiracy. After
applying the test for legal sufficiency and viewing the evidence in the light most
favorable to the prosecution, we conclude the evidence is legally sufficient. Additionally,
taking a fresh, impartial look at the evidence in the record and making allowances for not
having personally observed the witnesses, we find the evidence factually sufficient
beyond a reasonable doubt. We make this determination in part because while we
believe the appellant and Mr. Allen were friends, we do not believe the majority of the
remainder of his testimony.

                                       Conclusion

       The findings and sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are
AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court



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