

   
   
   
   U.S. v. Pereira



UNITED STATES, Appellee
v.
Michael A. PEREIRA, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 99-1001
Crim. App. No. 97-1027
 
United States Court of Appeals for the Armed
Forces
Argued April 6, 2000
Decided July 14, 2000
The Court issued a Per Curiam opinion. CRAWFORD,
C.J., filed a dissenting opinion.
Counsel
For Appellant: Lieutenant Commander Michael
J. Wentworth, JAGC, USN.
For Appellee: Major Mark K. Jamison,
USMC (argued & on brief); Colonel Kevin M. Sandkuhler, USMC,
and Commander Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: W.P. Hollerich
 
 


This opinion is subject
to editorial correction before publication


PER CURIAM:
A general court-martial, composed of military
judge alone, convicted appellant, pursuant to his pleas, of conspiracy
to commit premeditated murder, conspiracy to commit robbery, conspiracy
to commit aggravated assault, conspiracy to commit kidnapping, premeditated
murder, robbery, aggravated assault, kidnapping, and carrying a concealed
weapon, in violation of Articles 81, 118, 122, 128, and 134, Uniform Code
of Military Justice, 10 USC §§ 881, 918, 922, 928, and 934, respectively.
The court sentenced him to confinement for life, reduction to pay grade
E-1, and a dishonorable discharge. The convening authority approved the
sentence as adjudged. The Court of Criminal Appeals dismissed specification
3 of Charge I (conspiracy to commit aggravated assault) based upon the
military judges finding that it was multiplicious for sentencing with
specification 1 of Charge I (conspiracy to commit murder). The lower court
affirmed the remaining findings and sentence approved by the convening
authority.
On appellants petition to this Court, we granted
review of the following issue:



WHETHER THE LOWER COURT ERRED IN AFFIRMING
APPELLANTS SEPARATE CONVICTIONS FOR SPECIFICATION 1 (CONSPIRACY TO COMMIT
MURDER), SPECIFICATION 2 (CONSPIRACY TO COMMIT ROBBERY), AND SPECIFICATION
3 (CONSPIRACY TO COMMIT KIDNAPPING) OF CHARGE I WHERE THERE WAS BUT ONE
AGREEMENT TO COMMIT THE MULTIPLE SUBSTANTIVE OFFENSES.



For the reasons stated below, we conclude that
specifications 1, 2, and 3 of Charge I should be consolidated into a single
specification, and that the findings, as consolidated, and the sentence
should be affirmed.

I
On May 6, 1996, appellant and three other Marines
formed an agreement to assault, kidnap, rob, and kill another Marine, Lance
Corporal Guerrero. During the extensive providence inquiry conducted by
the military judge, appellant described the nature of the agreement, when
it was formed, and whether appellant and his co-actors agreed at that time
to commit all of the substantive offenses. Appellant consistently responded
that he and his co-actors formed only one agreement, on May 6, 1996, to
commit all of the charged substantive offenses.
The Government had ample opportunities to ensure
that the record demonstrated separate conspiracies. Trial counsel could
have requested that the military judge clarify this matter during the providence
inquiry. Moreover, the stipulation of fact submitted for the record by
the trial counsel provided a vehicle for the prosecution to demonstrate
the existence of multiple conspiracies. The prosecution, however, did not
avail itself of these opportunities. Instead, trial counsel submitted a
stipulation that was consistent with appellant's statements during the
providence inquiry, and that did not establish the existence of separate
conspiracies. Based upon the Governments failure to clarify the record,
despite numerous opportunities to do so, we conclude that the providence
inquiry established the existence of only one agreement between appellant
and his co-conspirators as a matter of law.

II
A single agreement to commit multiple offenses
ordinarily constitutes a single conspiracy. See Braverman v.
United States, 317 U.S. 49 (1942); see also para. 5c(3),
Manual for Courts-Martial, United States (1998 ed.). As the Supreme Court
stated in Braverman, "[O]ne agreement cannot be taken to be several
agreements and hence several conspiracies because it envisages the violation
of several statutes rather than one. Id. at 53. This is because
the critical aspect of the offense of conspiracy is the agreement, not
the object of the conspiracy. Id. at 53-54. Whether the object of
a single agreement is to "commit one or many crimes, it is in either case
that agreement which constitutes the conspiracy which the statute punishes."
Id.
at 53.
In United States v. Reliford, 27 MJ
176 (CMA 1988)(summary disposition), this Court consolidated two conspiracy
specifications, one to commit murder and one to commit robbery, where the
record demonstrated that "there was one agreement between appellant and
his co-actors to commit murder and robbery,. . . [because] [i]n such situations
there is one conspiracy." Similarly, in appellants case, the record demonstrates
that there was one agreement between appellant and his co-actors to commit
murder, robbery, aggravated assault, and kidnapping. Under the circumstances
of this case, there is only one conspiracy. Id. Therefore, we conclude
that specifications 1, 2, and 3 of Charge I should be consolidated to allege
one conspiracy to commit the murder, kidnapping, and robbery of Lance Corporal
Guerrero. However, because appellant was also convicted of premeditated
murder, an offense for which the life sentence was mandatory, we are satisfied
that appellant suffered no prejudice as to his sentence.
Specifications 1, 2, and 3 of Charge I are
consolidated into a single specification to read as follows:



In that Lance Corporal Michael A. Pereira,
U.S. Marine Corps, Combat Support Company, 3d Marines, 3d Marine Division,
on active duty, did, on the island of Oahu, Hawaii, on or about 6 May 1996,
conspire with Lance Corporals Daryl A. Antle, William J. Baer, and Alejandro
Soto, U.S. Marine Corps, to commit offenses under the Uniform Code of Military
Justice, to wit: the robbery of a motor vehicle, various car stereo components,
and other items of personal property, of a value over $100.00, the property
of Lance Corporal Juan R. Guerrero, U.S. Marine Corps, and the kidnapping
and murder of Lance Corporal Juan R. Guerrero, U.S. Marine Corps, and in
order to effect the objects of the conspiracy, the said Lance Corporals
Antle, Baer, Pereira, and Soto did meet at the residence of Lance Corporal
Pereira aboard Marine Corps Base Hawaii on or about 7 May 1996, and Lance
Corporal Baer did bring duct-tape, and Lance Corporal Pereira did bring
a pistol, and Lance Corporal Pereira did ask Lance Corporal Juan R. Guerrero,
U.S. Marine Corps, to come to his residence where they planned to assault
Lance Corporal Guerrero, and where Lance Corporals Antle, Baer, Pereira,
and Soto did then beat Lance Corporal Guerrero with a club, stunhim with
an electronic stun-gun, punch, kick, and choke him, and Lance Corporals
Antle, Baer, Pereira, and Soto did then tape Lance Corporal Guerreros
legs, arms, body, and head with the duct-tape, and by means of said force
and violence, and by putting Lance Corporal Guerrero in fear, steal said
property of Lance Corporal Guerrero, and wrap Lance Corporal Guerrero in
a car cover, load him into a vehicle, and take him to a secluded area where
they shot Lance Corporal Guerrero in the head.



The decision of the United States Navy-Marine
Corps Court of Criminal Appeals as to Charge I and its specification (consolidated),
Charges II through V and the specifications thereunder, and the sentence
is affirmed.


CRAWFORD, Chief Judge (dissenting):
RCM 1003(c)(1)(C), Manual for Courts-Martial,
United States (1998 ed.), sought to adopt the "same evidence" rule as set
forth in Blockburger v. United States, 284 U.S. 299 (1932). Under
RCM 1003(c)(1)(C), "offenses are not separate if each does not require
proof
of an element not required to prove the other." Clearly under the "same
evidence" rule, the "proof" as to each conspiracy specification in this
case is different. Accordingly, they are not multiplicious. The crimes
sought to be committed, murder, robbery, and kidnapping, as well as the
overt acts, are different.
Relying on Blockburger, the Court stated
in Braverman v. United States, 317 U.S. 49, 54 (1942):



Since the single continuing agreement, which
is the conspiracy here, thus embraces its criminal objects, it differs
from successive acts which violate a single penal statute and from a
single act which violates two statutes.



In United States v. Broce, 488 U.S. 563,
570-71 (1989), the Supreme Court said:



We held in Braverman . . . that "[t]he
gist of the crime of conspiracy as defined by the statute is the agreement
... to commit one or more unlawful acts," from which it follows that "the
precise nature and extent of the conspiracy must be determined by reference
to the agreement which embraces and defines its objects." A single agreement
to commit several crimes constitutes one conspiracy. By the same reasoning,
multiple agreements to commit separate crimes constitute multiple conspiracies.
When respondents pleaded guilty to two charges of conspiracy on the explicit
premise of two agreements which started at different times and embraced
separate objectives, they conceded guilt to two separate offenses.



As did the respondents in Broce, appellant
had the opportunity to plead not guilty to any and all of the four different
specifications of conspiracy. He had the liberty to challenge the proof
and show but one conspiracy. However, he chose to plead guilty, eliminating
the need for the Government to produce detailed evidence. Consequently,
appellant has forfeited this issue. See United States v. Lloyd,
46 MJ 19 (1997).
The challenged specifications are not facially
duplicative. They do not necessarily constitute an unreasonable piling
on of charges under the facts of this case. RCM 307(c)(4); see United
States v. Foster, 40 MJ 140, 144 n.4 (CMA 1994). The three conspiracies
of which appellant remains convicted after review at the Court of Criminal
Appeals (conspiracies to commit murder, robbery, and kidnapping), require
proof of different elements. Even if the conspiracies to kidnap and rob
were somehow the means by which the conspirators decided to murder the
victim, appellant would be entitled to no relief. See United
States v. Oatney, 45 MJ 185 (1996); United States v. Teters,
37 MJ 370 (CMA 1993); United States v. Neblock, 45 MJ 191, 202 (1996)
(Crawford, J., concurring in the result).
Additionally, in Braverman, the Government
conceded that there was but one conspiracy agreement. 317 U.S. at 52.*
The Government also conceded that there was only one conspiracy in United
States v. Reliford, 27 MJ 176-77 (1988) (summary disposition). There
has been no such concession by appellee in this case. To the contrary,
the Government asserts, and I agree, that the limited evidence in this
case shows three separate agreements to commit three different felonies,
each punishable under the Uniform Code of Military Justice as separate
and distinct offenses. As appellant has foreclosed the Government from
the opportunity to present evidence by virture of his guilty plea to separate
conspiracies, he cannot now be heard to complain that he was improperly
convicted. See Broce, 488 U.S. at 572.
I would affirm the lower court's decision.
FOOTNOTE:
* Braverman has been routinely distinguished
by courts for the last 45 years. See e.g., Albernaz v.
United States, 450 U.S. 333, 339-40 (1981); United States v. Ervasti,
201 F.3d 1029, 1040 n.10 (8th Cir. 2000); United States v.
Smith, 574 F.2d 308, 311 (5th Cir. 1978); United States
v. James, 494 F.2d 1007, 1025-26 (D.C. Cir. 1974).


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