UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            COOK, CAMPANELLA, and HAIGHT
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                       Staff Sergeant DAVID J. MALLAR, JR.
                            United States Army, Appellant

                                      ARMY 20130523

                               Headquarters, Fort Bliss
                   Timothy P. Hayes, Military Judge (arraignment)
                         David L. Conn, Military Judge (trial)
                 Colonel Edward K. Lawson IV, Staff Judge Advocate


For Appellant: Major Vincent T. Shuler, JA; Captain Patrick A. Crocker, JA (on
brief); Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Vincent T. Shuler, JA;
Captain Patrick A. Crocker, JA (on brief on specified issues).

For Appellee: Lieutenant Colonel James L. Varley, JA (on brief); Colonel John P.
Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues,
JA; Captain T. Campbell Warner, JA (on brief on specified issues).


                                        30 April 2014

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy to commit murder, one
specification of conspiracy to violate a lawful general regulation, one specification
of violating a lawful general regulation, and two specifications of communicating a
threat, in violation of Articles 81, 92, and 134 of the Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 892, and 934 [hereinafter UCMJ]. The military judge
sentenced appellant to a dishonorable discharge, confinement for ten years, and
MALLAR — ARMY 20130523

reduction to the grade of E-1. The convening authority approved the sentence as
adjudged. 1

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted a merits pleading to this court and also raised two issues personally
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the
issues raised personally by appellant to be without merit.

        This court subsequently specified two issues that warranted additional review.
The first issue is whether the two conspiracies to commit murder constitute but one
ongoing conspiracy and therefore constitute an unreasonable multiplication of
charges. The second issue is whether the specification alleging a conspiracy to
violate a lawful general regulation constitutes an unreasonable multiplication of
charges, in that appellant was also charged with the underlying offense (wrongfully
organizing and operating an extremist organization) that already required concerted
criminal activity to commit. We find both specified issues warrant comment and
relief.

                                    BACKGROUND

       In October 2011, appellant established, organized and led an extremist
organization in El Paso, Texas. The organization, dubbed the “20th Infantry,” was a
stand-alone militia composed of approximately fourteen members, both military and
civilian. From its inception, the ideological purpose of the 20th Infantry was to
protect the U.S.-Mexico border against drug cartel members and traffickers through
the use of deadly force, as they believed the United States government was not doing
an adequate job of protecting the border. Specifically, the group’s aim was to kill
and rob Mexican drug cartel members and drug traffickers.

      Appellant organized the group like a military unit, with appellant as its
“commander.” Appellant organized meetings, training events, fundraising efforts,
and the procurement of weapons and equipment for use by the organization. The
members wore uniforms, carried weapons, and had a rank structure and specific job
designations.

       Appellant held numerous meetings and training events and communicated
with group members on a regular basis to propagate his message and discuss ways to
accomplish their stated goals. A training program was set up to allow members to
earn a 20th Infantry patch and rise within the ranks of the group after successfully
completing various training tasks. Specialist (SPC) MM was the group’s “executive
officer” in charge of training and marksmanship.



1
    The convening authority waived automatic forfeitures for a period of six months.


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       In July 2012, under appellant’s leadership of the appellant, Specialist MM,
SPC KH, and three other members of the group (including civilian MVM) conducted
an armed surveillance mission at the U.S.-Mexico border for the purpose of
identifying ambush positions to which the group could later return to kill and rob
drug cartel members and drug traffickers by shooting them. While the group was
conducting the reconnaissance, the U.S. Border Patrol detained the group and
questioned them about their activities. After giving a cover story that they were
hunting rabbits, the Border Patrol released the militia members the following day.

       Undeterred by their detention, the group continued to meet, train, and discuss
ways to accomplish its goals. In September 2012, appellant conducted another
surveillance mission with MVM at the LaQuinta Inn, in El Paso, Texas. Appellant
believed drug traffickers frequented the hotel and could be ambushed and killed
either at the hotel or in route to their “safe house.” During the hotel visit, appellant
reviewed ingress and egress routes with MVM and discussed the means by which
they could execute an ambush. The next day, appellant discussed ambush methods
at the LaQuinta Inn with MMH, another member of 20th Infantry militia.

       Eventually, the group’s plan to kill and rob Mexican drug cartel members and
drug traffickers was uncovered by law enforcement when a friend of appellant
reported his activities to the authorities. The government charged appellant, inter
alia, with two specifications of conspiracy to commit murder of unknown and
unnamed drug traffickers and dealers 2 by means of shooting them with a firearm, and
one specification of conspiracy to violate Army Regulation (AR) 600-20 by
wrongfully organizing and operating an extremist organization. Army Reg. 600-20,
Army Command Policy, para. 4-12 (Extremist Organizations and Activities) (18
Mar. 2008) (RAR, 27 Apr. 2010). The government also charged appellant with the
actual violation of AR 600-20, by organizing and operating an extremist
organization.

                              LAW AND DISCUSSION

                                  Ongoing Conspiracy

      Whether two alleged conspiracy offenses constitute one actual conspiracy is a
question of law we review de novo. See United States v. Finlayson, 58 M.J. 824,
827 (Army Ct. Crim. App. 2003).



2
 In the first specification pertaining to the conspiracy to commit premeditated
murder, the charging language refers only to “unnamed drug traffickers.” The
second specification pertaining to this objective refers to “unnamed drug traffickers
and drug dealers.” Any concerns over this minor distinction are alleviated by the
relief provided in our decretal paragraph.


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MALLAR — ARMY 20130523

      Article 81, UCMJ, provides that “[a]ny 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.” The elements of the offense are as follows:

             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.

Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 5.b.

       “A conspiracy is a partnership in crime.” Pinkerton v. United States, 328 U.S.
640, 644 (1946). The essence of a conspiracy is in the “agreement or confederation
to commit a crime, and that is what is punishable as a conspiracy, if any overt act is
taken in pursuit of it.” United States v. Bayer, 331 U.S. 532, 542 (1947); see also
United States v. Braverman, 317 U.S. 49, 53 (1942).

             When the activities of alleged co-conspirators are
             interdependent or mutually supportive of a common or
             single goal, a single conspiracy will be inferred. Thus, if
             the agreement contemplates the bringing to pass of a
             continuous result that will not continue without the
             continuous cooperation of the conspirators to keep it up,
             and there is such continuous cooperation, there is a single
             conspiracy rather than a series of distinct conspiracies.

16 Am. Jur. 2d Conspiracy § 11 (2014) (footnotes omitted). “As such, it is ordinarily
the agreement that forms the unit of prosecution for conspiracy, ‘even if it
contemplates the commission of several offenses.’” Finlayson, 58 M.J. at 826
(quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 683 (3rd ed. 1982));
see also United States v. Pereira, 53 M.J. 183, 184-85 (C.A.A.F. 2000) (finding
single conspiracy to commit murder, robbery, and kidnapping).

      The Supreme Court has instructed that “the character and effect of a
conspiracy are not to be judged by dismembering it and viewing its separate parts,
but only by looking at it as a whole.” United States v. Patten, 226 U.S. 525, 544
(1913). A variety of factors may be relevant in determining the number of
conspiracies including: the common goal; nature of the scheme in each alleged




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conspiracy; overlapping participants in various dealings; the overt acts alleged in
each; and the time and location of each conspiracy. See Finlayson, 58 M.J. at 827.

       In appellant's case, the record demonstrates that there was but one common
agreement and goal among the members of the 20th Infantry militia—to commit
murder of Mexican drug cartel members, traffickers, and dealers. The members of
the group trained to accomplish this stated goal and sought ways to hide their
criminal enterprise from law enforcement. Each alleged conspiracy to murder
involved conducting surveillance at locations where drug cartel members or
traffickers might be found for the purpose of later killing them at or near El Paso,
Texas. The two occasions of surveillance, first on the U.S.-Mexico border and then
at the LaQuinta Inn in El Paso, were but two different overt acts in furtherance of
the same common aim. The surveillance missions were not compartmentalized and
there was an overlap of participants. MVM was involved in each of the overt acts,
and thus was already part of the existing conspiracy on the date of the second
conspiracy to commit murder offense. Therefore, under the totality of circumstances
in this case, we find but one ongoing conspiracy.

      We will therefore consolidate specifications 1 and 2 of Charge II into one
conspiracy to commit murder.

                      Unreasonable Multiplication of Charges

       In Specification 3 of Charge I, appellant was charged with conspiring to fail
to obey a lawful general regulation, by “wrongfully organizing and operating an
extremist organization” which he effected by “conduct[ing] meetings and training
events on divers occasions between on or about 1 October 2011 and on or about 1
February 2012.” In the Specification of Charge III, appellant was charged with
“fail[ing] to obey a lawful general regulation . . . by wrongfully organizing and
operating an extremist organization” between on or about 1 February 2012 and on or
about 22 October 2012.

       “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts–Martial
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). In Quiroz, our superior court listed five factors to help guide our analysis of
whether charges have been unreasonably multiplied:

             1) Did the accused object at trial that there was an
             unreasonable multiplication of charges and/or
             specifications?;



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             2) Is each charge and specification aimed at distinctly
             separate criminal acts?;

             3) Does the number of charges and specifications
             misrepresent or exaggerate the appellant's criminality?;

             4) Does the number of charges and specifications
             [unreasonably] increase the appellant's punitive
             exposure?; and

             5) Is there any evidence of prosecutorial overreaching or
             abuse in the drafting of the charges?

55 M.J. at 338–39 (internal quotation marks omitted).

       Application of the Quiroz factors in this case balances in favor of appellant
and requires a finding of unreasonable multiplication of charges for findings.
Appellant stands convicted of both failure to obey a lawful general regulation by
violating Army Regulation 600-20 by organizing and operating an extremist
organization, and conspiracy to violate the very same lawful general regulation by
organizing and operating an extremist organization. Although no objection to this
charging scheme was made at trial, nor was appellant’s punitive exposure increased
as he was facing potential imprisonment for life regardless, the two separate charges
exaggerate his criminality by penalizing the same act two ways. Each charged
offense is aimed at precisely the same criminal activity. The agreement that attends
each individual offense addresses the same threat to society that each law seeks to
avert concerted criminal activity. See Iannelli v. United States, 420 U.S. 770
(1975).

       The Supreme Court repeatedly has recognized that a “conspiracy poses
distinct dangers quite apart from those of the [underlying] substantive offense” that
is the object of the conspiracy. The Iannelli Court reemphasized that:

             ‘This settled principle derives from the reason of things in
             dealing with socially reprehensible conduct: collective
             criminal agreement partnership in crime-presents a greater
             potential threat to the public than individual delicts.
             Concerted action both increases the likelihood that the
             criminal object will be successfully attained and decreases
             the probability that the individuals involved will depart
             from their path of criminality. Group association for
             criminal purposes often, if not normally, makes possible
             the attainment of ends more complex than those which one
             criminal could accomplish. Nor is the danger of a



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             conspiratorial group limited to the particular end toward
             which it has embarked. Combination in crime makes more
             likely the commission of crimes unrelated to the original
             purpose for which the group was formed. In sum, the
             danger which a conspiracy generates is not confined to the
             substantive offense which is the immediate aim of the
             enterprise.’

Id. at 778 (quoting Callanan v. United States, 364 U.S. 587, 593-94 (1961). “The
basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself,
independently of any other evil it seeks to accomplish.” Dennis v. United States,
341 U.S. 494, 573 (1951) (Jackson, J., concurring opinion). Similarly, the regulatory
prohibition against extremist organizations addresses the same societal dangers of
concerted criminal activity.

       In a sense, the nature of the regulatory violation of organizing and under these
circumstances operating an extremist group requires a conspiracy or, at a minimum,
a meeting of the minds. Therefore, appellant should not be convicted or punished
twice for a single act which posed a singular danger and threat. As such, we find
appellant’s conviction for conspiracy to violate the regulation constituted an
unreasonable multiplication of charges with the separate charge for his violation of
the regulation itself pursuant to Article 92, UCMJ.

                                   CONCLUSION

       Specifications 1 and 2 of Charge II are consolidated into a single
specification, numbered Specification 1 of Charge II, to read as follows:

             In that SSG David J. Mallar, did, between on or about 1
             February 2012 and on or about 22 September 2012, at or
             near El Paso, Texas, and at or near McNary, Texas,
             conspire with Specialist MM, Specialist KH and MVM to
             commit an offense under the Uniform Code of Military
             Justice, to wit: murder of unknown and unnamed drug
             traffickers and drug dealers by means of shooting them
             with a firearm, and in order to effect the object of the
             conspiracy, the said SSG Mallar did conduct surveillance
             missions on the U.S.-Mexican border at or near El Paso,
             Texas on or about 16 July 2012 and at LaQuinta Inn at or
             near El Paso, Texas, on or about 22 September 2012.

       The finding of guilty of Specification 1 of Charge II, as so amended, is
AFFIRMED. The finding of guilty to Specification 2 of Charge II is set aside and
that specification is DISMISSED. Additionally, the finding of guilty to



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Specification 3 of Charge II is set aside and that specification DISMISSED. The
remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we find no dramatic change in the
penalty landscape or exposure that might cause us pause in reassessing appellant’s
sentence. Our consolidation of Specifications 1 and 2 of Charge II and dismissal of
Specifications 2 and 3 of Charge II does not affect appellant’s punishment exposure
which remains a dishonorable discharge, confinement for life without the possibility
of parole, reduction to the grade of E-1, and total forfeitures. Second, appellant was
tried and sentenced by a military judge. Third, we find the nature of the remaining
offenses still captures the gravamen of the original offenses and the aggravating
circumstances surrounding appellant’s conduct remains admissible and relevant to
the remaining offenses. Finally, based on our experience, we are familiar with the
remaining offenses so that we may reliably determine what sentence would have
been imposed at trial.

       Reassessing the sentence based on the noted errors, we AFFIRM the approved
sentence. We find this reassessed sentence is not only purged of any error but is
also appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

      Senior Judge COOK and Judge HAIGHT concur.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM     H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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