                                    IN THE CASE OF


                            UNITED STATES, Appellee

                                            v.


                       David M. ROESELER, Specialist
                            U.S. Army, Appellant


                                     No. 01-0077


                             Crim. App. No. 9900760

        United States Court of Appeals for the Armed Forces

                             Argued March 28, 2001

                             Decided August 6, 2001

    SULLIVAN, J., delivered the opinion of the Court, in which
 CRAWFORD, C.J., and EFFRON and BAKER, JJ., joined. GIERKE, J.,
            filed an opinion concurring in the result.

                                        Counsel

For Appellant: Captain Maanvi M. Patoir (argued); Captain Stephanie L. Haines
     (on brief).




For Appellee:   Captain William J. Nelson (argued); Colonel David L. Hayden,
     Lieutenant Colonel Edith M. Rob, and Captain Daniel G. Brookhart (on
     brief).



Military Judge:   Donna M. Wright

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Roeseler, 01-0077/AR


    Judge SULLIVAN delivered the opinion of the Court.

    Appellant was tried by a general court-martial composed of a

military judge sitting alone at Hanau, Germany, on July 28, 1999.

In accordance with his pleas, he was found guilty of the

attempted murder of Private First Class (PFC) Toni Bell, in

violation of Article 80, Uniform Code of Military Justice, 10 USC

§ 880, and conspiracy to murder her, in violation of Article 81,

UCMJ, 10 USC § 881.    In addition, in accordance with his pleas

but with some modifications, he was found guilty of attempted

conspiracy to murder Joyce and Jerry Bell, in violation of

Article 80, UCMJ.


    Appellant was then sentenced to a dishonorable discharge,

confinement for 19 years, total forfeitures, and reduction to pay

grade E-1.    In accordance with a pretrial agreement, the

convening authority on December 10, 1999, approved the adjudged

sentence, except for confinement, which he reduced to 15 years.

On September 27, 2000, the Army Court of Criminal Appeals

affirmed the approved sentence in a memorandum opinion.      (No.

9900760.)


    On January 9, 2001, this Court specified review on the

following question of law:

            WHETHER APPELLANT’S PLEA OF GUILTY TO
            ATTEMPTED CONSPIRACY (SPECIFICATION 2 OF
            CHARGE I) OR ANY OTHER OFFENSE WAS
            PROVIDENT IN VIEW OF THE FACT THAT THE
            ALLEGED VICTIMS OF THE OBJECTIVE OF THE
            CONSPIRACY DID NOT EXIST.




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United States v. Roeseler, 01-0077/AR


We hold that appellant’s pleas of guilty to attempted conspiracy

to murder the Bells were provident and affirm his conviction of

this offense.    See generally United States v. Riddle, 44 MJ 282,

285-86 (1996).


      This was a guilty plea case, and the facts giving rise to

appellant’s conviction for attempted conspiracy to murder Joyce

and Jerry Bell are not in dispute.      In late December 1997 or

early January 1998, appellant became acquainted with PFC Toni

Bell, a female member of his platoon in Germany. R. at 36-37.

PFC Bell was unmarried and had two children, of different

fathers, who were staying with her parents in Iowa. R. at 38;

Pros. Ex. 1, ¶ 8 (Stipulation of Fact) (hereinafter “P.E. 1”).

However, PFC Bell told appellant that she had been married to one

of the children’s fathers and that he had died. R. at 38.


      Around February 1998, PFC Bell confided in appellant that her

in-laws (“Joyce and Jerry Bell”), who lived on a farm in Iowa,

were trying to get custody of her children. R. at 35-36, 40; P.E.

1, ¶ 8, 10.    PFC Bell was very upset about the prospect of losing

her children and told appellant she “wished [the Bells] were

dead” and would pay somebody to “take care of them.” R. at 36,

39.


      Appellant told PFC Bell that he knew of a soldier who could

help and introduced her to Private (PVT) Armann, another member

of their platoon.    P.E. 1, ¶ 4, 9.    PVT Armann had bragged to the

platoon that he was an assassin and had killed several people

before and during his enlistment.      Id.   Over the next few months,


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United States v. Roeseler, 01-0077/AR


appellant, PFC Bell, and PVT Armann discussed how they could get

rid of the Bells so that PFC Bell could retain custody of her

children.    Appellant and PVT Armann eventually agreed to kill the

Bells for money. R. at 40; P.E. 1, ¶ 10.       Appellant obtained

detailed information about Joyce and Jerry from PFC Bell,

including their work schedules, directions to their farm in Iowa,

and their physical descriptions, in preparation for the Bells’

murder.    P.E. 1, ¶ 10.   Appellant and PVT Armann both submitted

requests to take leave to the United States at the same time in

March 1998 to carry out their plans.       Id., ¶ 11.


      PVT Armann prepared a contract for PFC Bell, providing for

the “termination” of Joyce and Jerry Bell in return for $55,000

($5,000 of which was a deposit).       Id., ¶ 9 & Attach. 1-2.   The

contract also contained a “reversion clause” whereby PFC Bell

would herself be killed if she failed to comply with its various

clauses.    Id., ¶ 9.   After commencing preparations for the

killing, appellant and PVT Armann demanded that PFC Bell make the

$5,000 deposit.    P.E. 1, ¶ 11.   When PFC Bell told them that her

bank accounts were frozen as a result of a dispute with her in-

laws, appellant insisted that she call her bank in his presence.

Id.    While PFC Bell was on the line, appellant took the phone

away from her and identified himself to the bank representative

as an Army judge advocate serving as PFC Bell’s lawyer.       Id.

Despite these efforts, appellant failed to obtain the $5,000.


      Unbeknownst to either appellant or PVT Armann, however,

“Joyce and Jerry Bell” were fictitious names, and the detailed



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United States v. Roeseler, 01-0077/AR


information provided by PFC Bell concerning her purported “in-

laws” was false.    R. at 45.   In fact, it was the natural father

of one of her children who she had not married and his parents

who had threatened to get custody of one of her children.      P.E.

1, ¶ 8.    Nevertheless, both appellant and PVT Armann believed

that Joyce and Jerry Bell were real people living in Iowa, and

maintained an intent to murder them.


      As the date for the Bells’ “termination” drew near, PVT

Armann and appellant became frustrated that PFC Bell had not made

the down payment.    P.E. 1, ¶ 11-12.    Realizing her lie had gone

too far, PFC Bell told PVT Armann that the situation had resolved

itself when her two children had joined her in Germany. R. at 47-

48.


      In return, PVT Armann decided to make good on his “reversion

clause” and kill PFC Bell for backing out of the contract.      P.E.

1, ¶ 12.    He enlisted the assistance of appellant, whom PFC Bell

still trusted and believed was her friend.      Id.   Appellant agreed

to help PVT Armann plan PFC Bell’s murder while maintaining his

relationship with her so as not to arouse suspicion.      Id., ¶ 13.

Appellant persuaded PFC Bell to name him as her personal

representative and guardian of her children in her will.      Id.   In

accordance with this appointment, PFC Bell desired that appellant

receive the proceeds of her $200,000 SGLI life insurance policy

if anything should happen to her.      R. at 48.


      Appellant and PVT Armann agreed that PVT Armann would kill

PFC Bell and appellant would share half of the life insurance


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United States v. Roeseler, 01-0077/AR


proceeds with PVT Armann.      Id.   After considering and rejecting a

number of possible methods for the killing, including, inter

alia, poisoning, a car bomb, and a “drive-by” shooting, PVT

Armann and appellant agreed that PVT Armann would shoot PFC Bell

with a sniper rifle as she stood guard duty.      R. at 49, 51-52;

P.E. 1, ¶ 17-19.    PVT Armann, appellant, and an accomplice

designed and built a sniper rifle, equipped with a scope and

silencer.   R. at 52; P.E. 1, ¶ 18.      PVT Armann’s roommate drove

him to an area where he could shoot PFC Bell in her guard post

undetected.    P.E. 1, ¶ 19.    PVT Armann shot and hit Bell.   Id.;

R. at 55.   Fortunately, however, PFC Bell was wearing a kevlar

vest with the collar turned up, which probably saved her life.

P.E. 1, ¶ 20.    Although the bullet pierced the collar and entered

her neck (missing her spine by .5 cm), she recovered after

undergoing surgery.    Id.


                               ___ ___ ___

   Appellant generally asserts that his guilty pleas to the

charge of attempting to conspire with PFC Bell and PVT Armann to

commit the premeditated murder of Joyce and Jerry Bell were

improvident.    See Article 45(a), UCMJ, 10 USC § 845(a).    In

particular, he asserts that the military judge should have told

him that, because PFC Bell knew Joyce and Jerry Bell were

fictitious persons, she did not legally share his intent to kill

them as required for a conspiracy conviction.      See generally

United States v. LaBossiere, 13 USCMA 337, 340, 32 CMR 337, 340

(1962).   In addition, he complains that the military judge did

not explain the defense of impossibility to him, which may have


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United States v. Roeseler, 01-0077/AR


been applicable in his case because the Bells were fictitious

persons.    See United States v. Clark, 19 USCMA 82, 41 CMR 82

(1969).    In sum, he concludes that these errors invalidated his

guilty pleas because the military judge failed to fully explain

“the law in relation to the facts” supporting his guilty pleas.

See United States v. Care, 18 USCMA 535, 539, 40 CMR 247, 251

(1969).


    Before addressing these contentions, we note that appellant

pleaded guilty to attempting to conspire to murder Joyce and

Jerry Bell.    In United States v. Riddle, 44 MJ 282 (1996), a

majority of this Court clearly held that attempted conspiracy to

commit a crime under the Uniform Code of Military Justice is a

military offense under Article 80, UCMJ.    We said:


              Clearly, the language of this statute is
            broad and makes no distinction between a
            conspiracy or other inchoate offense and
            any other type of military offense as the
            lawful subject of an attempt offense. See
            Note, Conspiracy: Statutory Reform Since
            the Model Penal Code [hereafter Note], 75
            Col.L.Rev. 1122, 1133 (1975); Developments
            in the Law-Criminal Conspiracy, 72 Harv.
            L.Rev. 920, 927 n.35 (1959); see generally
            2 W. LaFave & A. Scott, Substantive
            Criminal Law § 6.4 at 72-73 (1986). In
            addition, no other statute or case law
            from this Court precludes application of
            Article 80 to a conspiracy offense as
            prohibited in Article 81, UCMJ, 10 USC §
            881. See Robbins, Double Inchoate Crimes,
            [26 Harv. J. on Legis. 1,] 35 n.153, 76
            [1989]; see also Note, supra, 75
            Col.L.Rev. at 1134 n.61; cf. State v.
            Sanchez, 174 Ariz. 44, 846 P.2d 857, 861
            (App. 1993). Finally, conviction of an
            attempt under Article 80 is particularly
            appropriate where there is no general
            solicitation statute in the jurisdiction
            or a conspiracy statute embodying the


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United States v. Roeseler, 01-0077/AR


          unilateral theory of conspiracy. See
          Robbins, Double Inchoate Crimes, supra at
          91. Accordingly, we reject appellant’s
          argument that he was not found guilty of a
          crime under the Uniform Code of Military
          Justice.

Id. at 285 (footnote omitted).

                                 I

    Appellant first contends that the military judge had a duty

to explain to him the differences between attempted conspiracy

and conspiracy as a matter of military law.   He notes that the

record shows he believed he had an agreement with PFC Bell to

kill Joyce and Jerry Bell, even though PFC Bell knew these

persons were fictitious. R. at 45.   He then challenges the

military judge’s failure to explain to him the various legal

theories of conspiracy which would permit only a finding of

attempted conspiracy in these circumstances. ∗/   See generally

United States v. Valigura, 54 MJ 187, 191 (2000).



    We generally agree with appellant that guilty pleas in the

military justice system must be both voluntary and intelligent

(see United States v. Roane, 43 MJ 93, 99 (1995)), and the

military judge is tasked with ensuring that the military accused


∗/ It was stipulated at trial that the natural father of PFC
Bell’s son and his parents were seeking custody of that child and
PFC Bell was upset with them. It was also stipulated that PFC
Bell was not married to this man, and she falsely told appellant
and PVT Armann that her married name was Bell and her in-laws,
Jerry and Joyce Bell, were seeking custody of her children. We
need not decide whether appellant could have been lawfully found
guilty of conspiracy in these circumstances. See United States
v. Causor-Serrato, 234 F.3d 384, 388 (8th Cir. 2000) (holding
absence of knowledge by conspirator of specific controlled
substance does not defeat charge of conspiracy to distribute
methamphetamine).

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United States v. Roeseler, 01-0077/AR


understands the nature of the offenses to which guilty pleas are

accepted.    See United States v. Smith, 44 MJ 387, 392 (1996).    We

do not, however, agree that appellant was entitled to a law

school lecture on the difference between bilateral and unilateral

conspiracy.    E.g., United States v. Anzalone, 43 MJ 322 (1995).

Some leeway must be afforded the trial judge concerning the

exercise of his judicial responsibility to explain a criminal

offense to an accused servicemember.    See also United States v.

Pretlow, 13 MJ 85, 89 n.6 (CMA 1982) (military judge must explain

elements of offense but related principles of law may be

explained in his discretion).


    Here, appellant pleaded guilty to the offense of attempted

conspiracy to murder the fictitiously named Bells.      This offense

did not require agreement or a shared intent among the expected

conspirators with respect to the object of the alleged

conspiracy, i.e., the murder of the Bells.    See United States v.

Valigura, supra.     The military judge clearly explained to

appellant that it was appellant’s belief or understanding that

was critical to establish his guilt of this attempt offense.      See

United States v. Riddle, supra at 286.


    The record in this regard states:


            MJ: Okay. Now did you actually believe
            that you had an agreement between you and
            Armann and Bell to kill the Bells?

            ACC:   Yes, ma’am.

            MJ: And ..and did you specifically intend
            to commit the premeditated murder of Joyce
            and Jerry Bell?


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United States v. Roeseler, 01-0077/AR



          ACC:    Yes, ma’am.

          MJ: And do you believe the acts you’ve
          just described doing, calling the bank and
          getting this information from Toni Bell,
          do you believe the acts amounted to more
          than mere preparation?

          ACC: Yes, I do, ma’am.

          MJ: And do you believe these acts would
          have affected an agreement between you,
          Bell and Armann -- well, would it have
          affected an agreement? Would they have
          cemented an agreement in other words?

                    [No response by the ACC].

          MJ:    Do you understand that?

          ACC:    No, not really, ma’am.

          MJ: Okay. Well, let me ask another
          question. Do the Bells really -- do these
          people really exist?

          ACC: No, ma’am.

          MJ: Okay.     And when did you find that
          out?

          ACC: Not until after the shooting, ma’am.

          MJ:    So that was in October?

          ACC: Yes, ma’am.

          MJ: Okay. So much later on you find out
          that these -- Joyce and Jerry Bell aren’t
          her real in-laws and the situation was not
          as you believed it to be in the February,
          March, April time frame, right?

          ACC:    Right, ma’am.

          MJ: Okay. But if they had existed, do
          you believe -- if these people had existed
          and they really did live on a farm in
          Iowa, did you believe that you had an
          agreement with Bell and Armann to murder
          them?

          ACC:    Yes, ma’am.


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United States v. Roeseler, 01-0077/AR



R. at 45 (emphasis added).


    In addition, we note that the military judge effectively

informed appellant of the difference between attempted conspiracy

and conspiracy.   Appellant had earlier pleaded guilty to

conspiracy to murder PFC Bell, and the military judge fully

explained the elements of that offense to him. R. at 26.    In

particular, she explained to him that conspiracy required a

finding that “the minds of the parties reach a common

understanding to accomplish the object of the conspiracy[.]” R.

at 28.   The military judge later incorporated her previous

instructions on conspiracy into her discussion of the offense of

attempted conspiracy with PFC Bell and PVT Armann to kill the

Bells. R. at 34-35.


    In explaining the offense of attempted conspiracy, the

military judge said the following:


             Now finally look at Specification 1 of -
           - I’m sorry, Specification 2 of Charge I.
           Now there you are pleading guilty to an
           attempted conspiracy to commit the
           premeditated murder of Joyce and Jerry
           Bell, also in violation of Article 80.
           The elements of this offense are:

                 that at or near Hanau, Germany,
           between on or about 1 February 1998 and 1
           April 1998, you spoke to a bank
           representative and inquired about an
           account on behalf of PFC Bell in order to
           obtain funds necessary to finance . . your
           plans to kill the Bells, and you and
           Private Armann both got information from
           PFC Bell concerning the address and daily
           schedules of Joyce and Jerry Bell;




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United States v. Roeseler, 01-0077/AR


                that you did this with the specific
          intent to commit the premeditated murder
          of Joyce and Jerry Bell;

                that these acts amounted to more
          than mere preparation;

                and, that the acts apparently tended
          to affect an agreement between you, PFC
          Bell and Private Armann to commit the
          premeditated murder of Joyce and Jerry
          Bell except for a circumstance unknown to
          you, which was that Joyce and Jerry Bell
          were not real people and not really the
          in-laws of PFC Bell.

R. at 34 (emphasis added).


These instructions, viewed together, were sufficient to inform

appellant that conspiracy, unlike attempted conspiracy, required

that the alleged conspirators actually share the same criminal

intent or mental state.    See United States v. Smith, 44 MJ at 393

(holding model guilty plea instructions not required when record

as whole unquestionably established appellant’s guilt as a matter

of fact and law).


                                 II

    Appellant next contends that the military judge erred by

failing to explain the defense of impossibility to him.   Citing

two decisions of this Court, United States v. Thomas, 13 USCMA

278, 32 CMR 278 (1962), and United States v. Clark, 19 USCMA 82,

41 CMR 82 (1969), he argues that impossibility is a defense to an

attempt charge under Article 80, UCMJ.   Accordingly, he contends

that the military judge should have explained this defense to him

because the objects of his alleged attempted conspiracy to murder

were fictitious persons.   See United States v. Biscoe, 47 MJ 398



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United States v. Roeseler, 01-0077/AR


(1998) (holding that possible defense to charges must be

explained to an accused by judge before accepting guilty pleas).


    The language of Article 80, UCMJ, does not support

appellant’s argument that the impossibility of the crime

attempted is a valid defense to a charge of attempt.    See para.

4c(3), Part IV, Manual for Courts-Martial, United States (1998

ed.).   Article 80, UCMJ, states:


           (a) An act, done with specific intent to
           commit an offense under this chapter,
           amounting to more than mere preparation
           and tending, even though failing, to
           effect its commission, is an attempt to
           commit that offense.

(Emphasis added).



    The language of Article 81, UCMJ, likewise does not support

an argument that the impossibility of the crime conspired upon is

a valid defense to a charge of conspiracy.   See para. 5c(7), Part

IV, Manual, supra.   Article 81, UCMJ, states:


           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.

(Emphasis added).



Since the impossibility of the fictitious Bells being murdered

was not a defense to either charge, i.e., attempt or conspiracy,

we conclude as well that it was not a defense to the charge of



                                13
United States v. Roeseler, 01-0077/AR


attempted conspiracy.    See United States v. Riddle, 44 MJ at 286-

87.


      Our conclusion is well supported by our case law.   Contrary

to appellant’s suggestion, United States v. Thomas holds that

impossibility of the crime attempted or conspired is not a

defense to a charge of attempt or conspiracy under military law.

13 USCMA at 286-87, 290, 32 CMR at 286-87, 290.    Moreover, in

United States v. Riddle, 44 MJ at 286, we likewise said:


              Article 80 prohibits attempts to commit
            “an offense under” the Uniform Code of
            Military Justice. On its face, it
            provides for no defense that the crime
            attempted could not factually or legally
            be committed by an accused under the
            circumstances of his case. This Court has
            expressly rejected these defenses on
            several occasions. See United States v.
            Thomas, 13 USCMA at 286, 32 CMR at 286;
            United States v. Dominguez, 7 USCMA 485,
            22 CMR 275 (1957); cf. Grill v. State, 337
            Md. 91, 651 A.2d 856 (1995). In a more
            recent case, a majority of this Court
            found it unnecessary to revisit this
            question. See United States v. Allen, 27
            MJ 234, 239 n.4 (CMA 1988). Our general
            rule is that an accused should be treated
            in accordance with the facts as he or she
            supposed them to be. United States v.
            Thomas, supra. See para. 4c(3), Part IV,
            Manual for Courts-Martial, United States,
            1984: “A person who purposely engages in
            conduct which would constitute an offense
            if the attendant circumstances were as
            that person believed them to be is guilty
            of an attempt.” See also United States v.
            Quijada, 588 F.2d 1253 (9th Cir. 1978).


      Finally, more recently in United States v. Valigura, 54 MJ at

189, Senior Judge Everett, speaking for this Court, reiterated

our view:    “[I]n military justice, impossibility - whether of law



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United States v. Roeseler, 01-0077/AR


or fact - is no defense in a prosecution for conspiracy or

attempt.”   See United States v. Thomas, 13 USCMA at 291-92, 32

CMR at 291-92 (affirming convictions for attempted rape of a dead

person and conspiracy to rape a dead person); see also United

States v. Allen, 27 MJ 234, 239 (CMA 1988).


    United States v. Clark, the case so heavily relied on by

appellant for a contrary proposition, is neither binding nor

applicable authority.    It was a one-judge opinion, where the two

other judges on this Court concurred in the result.    19 USCMA at

84, 41 CMR at 84.    Moreover, United States v. Clark was a case

based on a uniquely worded Federal statute, 49 USC § 1472(i),

which specifically required as a matter of law that even an

attempt to commit air piracy be committed while the plane in

question was in the air.    The attempt itself, not just the object

of the attempt, was legally impossible under the language of that

federal statute.    Id. at 83, 41 CMR at 83.   In appellant’s case,

there was no statutory provision which provided an impossibility

defense for either an attempt to conspire or a conspiracy to

murder.   In view of these circumstances, we must reject

appellant’s second claim of instructional error.


    The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Roeseler, No. 01-0077/AR



GIERKE, Judge (concurring in the result):

    For the reasons set out in my separate opinion in United

States v. Anzalone, 43 MJ 322, 326 (1995), I do not believe that

there is a crime of attempted conspiracy.     Thus, I would hold

that appellant’s plea of guilty to attempted conspiracy was

improvident.

    In Anzalone, I concluded that the allegation of attempted

conspiracy was sufficient to allege a solicitation.     In this

case, the record is unclear whether PFC Bell solicited appellant

to kill the non-existent in-laws or appellant solicited PFC Bell.

The record clearly reflects, however, that appellant solicited

PVT Armann, the “assassin,” to carry out the actual killing.

Since the specification alleges that appellant conspired with

both PFC Bell and PVT Armann, I believe that the specification is

sufficient to allege that appellant solicited PVT Armann to

murder the fictitious in-laws, in violation of Article 134, UCMJ,

10 USC § 934.     Accordingly, I would affirm the conviction of

attempted conspiracy to commit premeditated murder as a

mislabeled solicitation to commit premeditated murder.

         While there is a significant difference between the

maximum imposable period of confinement for attempted conspiracy

to commit premeditated murder (life imprisonment) and

solicitation to commit premeditated murder (confinement for 5

years), this circumstance alone does not require a remand for

sentence reassessment.      Appellant’s conviction for the other two
United States v. Roeseler No. 01-0077/AR


offenses of attempted murder and conspiracy to commit murder each

has a maximum sentence of life imprisonment.   See paras. 4e and

43e(1), Part IV, Manual for Courts-Martial, United States (2000

ed.).   Moreover, it was the victim of the attempted murder and

conspiracy to commit murder offenses who was actually shot, and

of course, there was no physical harm to the fictitious in-laws,

the putative victims of the solicitation offense.   In this case,

it is clear that the military judge sentenced appellant for his

actions and not the name of his offenses.   I am satisfied beyond

a reasonable doubt that the mislabeled solicitation to commit

premeditated murder had no impact on the sentencing by the

military judge in this case, and the error was harmless.   See

Loving v. Hart, 47 MJ 438, 447 (1998).




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