                       UNITED STATES, Appellee

                                    V.

                  John A. WHITTEN, Staff Sergeant
                        U.S. Army, Appellant

                              No. 01-0243
                        Crim. App. No. 9900373



       United States Court of Appeals for the Armed Forces

                       Argued October 24, 2001

                       Decided January 14, 2002

    GIERKE, J., delivered the opinion of the Court, in which
           CRAWFORD, C.J., EFFRON and BAKER, JJ., and
                     SULLIVAN, S.J., joined.

                                 Counsel
For Appellant: Captain Stephanie D. Sanderson (argued); Colonel
   Adele H. Odegard, Lieutenant Colonel David A. Mayfield, Major
   Jonathan F. Potter, and Captain Katherine A. Lehmann (on
   brief); Major Imogene M. Jamison.

For Appellee: Captain Susana E. Watkins (argued); Lieutenant
   Colonel Edith M. Rob and Major Daniel G. Brookhart (on
   brief); Colonel Steven T. Salata.

Amicus Curiae: Samantha Schoell (law student)(argued); Karen L.
   Hecker (supervising attorney)(on brief)--For the Columbus
   School of Law, Catholic University of America.

Military Judge:   Robert F. Holland

    This opinion is subject to editorial correction before publication.
United States v. Whitten, No. 01-0243/AR



      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a general court-martial

convicted appellant, on mixed pleas, of conspiracy to commit

larceny, wrongful disposition of military property, larceny, and

wrongful appropriation of military property, in violation of

Articles 81, 108, and 121, Uniform Code of Military Justice, 10

USC §§ 881, 908, and 921, respectively.         The adjudged and

approved sentence provides for a bad-conduct discharge,

confinement for four months, and reduction to the lowest enlisted

grade.   The Court of Criminal Appeals affirmed the findings and

sentence in an unpublished opinion.         This Court granted review of

the following issue:

      WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE
      FINDINGS OF GUILTY TO THE OFFENSES OF CONSPIRACY TO COMMIT
      LARCENY (THE SPECIFICATION OF CHARGE I) AND LARCENY
      (SPECIFICATION 1 OF CHARGE III) BECAUSE THE CONSPIRACY AND
      LARCENY WERE COMPLETED BEFORE APPELLANT BECAME INVOLVED IN
      THE SITUATION.

      For the reasons set out below, we affirm.1

                                    Facts

      Specialist (SPC) Mark Rodbourn and Private First Class (PFC)
Joshua McCarus agreed to help appellant move from his off-post

trailer park to on-post military housing.          As they drove through

appellant’s trailer park in McCarus’s car, they noticed a

military duffel bag lying unattended behind a vehicle in a

parking area.     They “drove back around” a second time, took the

duffel bag, and put it in the car.



1
 This case was argued at the Columbus School of Law, Catholic University of
America, Washington, D.C., as part of the Court’s Project Outreach. See
United States v. Allen, 34 MJ 228, 229 n. 1 (CMA 1992).


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United States v. Whitten, No. 01-0243/AR


      Rodbourn testified that they parked “past [appellant’s]

house a little bit,” in case someone had seen McCarus’s car.

McCarus testified that they parked “[a] little bit away from his

house,” because he thought appellant would be moving with a truck

and trailer and he “didn’t want to get it scratched, or

anything.”

      The owner of the duffel bag, PFC Timothy Campbell, testified

that his neighbor ran up to him and said, “Somebody just took off

with your stuff.”     When the neighbor said that she could

recognize the car and its occupants, they drove around and found

it within “45 seconds to a minute.”        The car was “about six

houses away.”     He knocked on the door of the nearest trailer, but

no one answered.     He knocked on the doors of the neighbors, but

no one recognized the car.       At that point, PFC Campbell called

the police, who arrived in fifteen to twenty minutes.

      Rodbourn and McCarus both testified that they told appellant

about the duffel bag while they were at his trailer, but they did

not recall appellant saying anything in response.        Rodbourn

testified that while they were waiting for another person to

arrive to assist in the move, they noticed that the owner of the

duffel bag had parked his car behind McCarus’s car, blocking it

in, and the police were in the area.

      When the police left, Rodbourn and McCarus “got in McCarus’s

car real quick” and followed appellant to Sergeant First Class

(SFC) Lund’s house to pick up a trailer.        At Lund’s house,

Rodbourn, McCarus, and appellant opened the duffel bag, dumped

the contents on the lawn, “inventoried” them, and decided what

items each would keep.      The duffel bag contained military


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United States v. Whitten, No. 01-0243/AR


equipment, uniforms, and personal items.      They threw away the

personal items.     Appellant ripped the name tapes off the uniforms

and spray-painted over Campbell’s name on the duffel bag.        They

put the items to be distributed among themselves back into the

duffel bag and put the bag in McCarus’s car.      Rodbourn and

McCarus then followed appellant to his new on-post quarters,

where they left it.      Rodbourn testified that they left the duffel

bag at appellant’s quarters because McCarus’s car had already

been identified and “they’[d] find it in the barracks.”

      McCarus and appellant had also been involved in a theft of

ammunition left over from a gunnery training exercise.      As the

investigations into the stolen ammunition and stolen duffel bag

intensified, appellant took the stolen duffel bag and the stolen

ammunition to a wooded area and attempted to conceal them.

McCarus, Rodbourn, and appellant agreed that McCarus and Rodbourn

would take the blame for the theft of the duffel bag, and

appellant would take the blame for the ammunition.

      At the conclusion of the prosecution case, the defense made

a motion for a finding of not guilty, arguing, “The larceny was

completed before [appellant] ever even laid eyes on [the duffel

bag].”   Defense counsel conceded that, if appellant was guilty of

anything, he was guilty of being an accessory after the fact or

receiving stolen property.       Trial counsel argued that the larceny

was not completed until they divided the contents of the duffel

bag among themselves.      Neither side presented any legal authority

to support their arguments.       The military judge denied the motion

without explanation.




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                                 Discussion

      Appellant now asserts that the conspiracy, as well as the

larceny, were completed before appellant became involved.        He

argues that larceny continues only “until such time as its fruits

are secured in a place where they may be appropriated to the use

of the perpetrator of the scheme.”         United States v. Seivers, 8

MJ 63, 65 (CMA 1979), citing United States v. Escobar, 7 MJ 197

(CMA 1979).    The Government argues that asportation of the stolen

property continued until the property reached its final hiding

place in appellant’s on-post quarters.        Amicus curiae argues
there was no evidence that Rodbourn and McCarus formed a

conspiracy to steal the property; and that appellant could not

have conspired with Rodbourn and McCarus to steal the property

because the larceny was complete before appellant became involved

with the stolen property.       The question before us is “whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of [conspiracy and larceny] beyond a

reasonable doubt.”      Jackson v. Virginia, 443 U.S. 307, 319
(1979).

      The elements of conspiracy are:

            (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.




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Para. 5b, Part IV, Manual for Courts-Martial, United States (2000

ed.).2   “Each conspirator is liable for all offenses committed by

any of the co-conspirators while the conspiracy continues and the

person remains a party to it.”        Id. at para. 5c(5).

      The formation of a conspiracy “need not take any ‘particular

form or be manifested in any formal words.’”          The agreement can

be “silent, . . . ‘tacit[,] or [only a] mutual understanding

between the parties.’”      It “is usually manifested by the conduct

of the parties themselves.”       United States v. Barnes, 38 MJ 72,
75 (CMA 1993) (internal citations omitted.)          A conspirator who

joins an existing conspiracy “can be convicted of this offense

only if, at or after the time of joining the conspiracy, an overt

act in furtherance of the object of the agreement is committed.”

Para. 5c(1), Part IV, Manual, supra.         Thus, the prosecution was

required to prove that appellant joined an ongoing conspiracy

between Rodbourn and McCarus, and that after he joined the

conspiracy, an overt act in furtherance of the larceny of the

duffel bag was committed.

      The elements of larceny are:
            (1) That the accused wrongfully took, obtained, or
            withheld certain property from the possession of the
            owner or of any other person;

            (2) That the property belonged to a certain person;

            (3) That the property was of a certain value, or of
            some value; and

            (4) That the taking, obtaining, or withholding by the
            accused was with the intent permanently to deprive or
            defraud another person of the use and benefit of the
            property or permanently to appropriate the property for


2
 All provisions of the Manual are the same as those in effect at the time of
appellant’s court-martial.


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United States v. Whitten, No. 01-0243/AR


            the use of the accused or for any person other than the
            owner.

Id. at para. 46b.

      To prove larceny, the prosecution was required to prove that

appellant joined an ongoing conspiracy to commit larceny, as

discussed above, or that he aided and abetted an ongoing larceny

being committed by Rodbourn and McCarus.        See Art. 77, UCMJ, 10

USC § 877 (person who aids and abets the commission of an offense

is criminally liable as a principal).

      The pivotal factual issue at trial involved asportation of

the property.     The crime of larceny by taking continues as long

as asportation of the property continues.       Escobar, 7 MJ at 199,
citing United States v. Barlow, 470 F.2d 1245, 1253 (DC Cir.

1972).   “[F]actually the original asportation continues as long

as the perpetrator is not satisfied with the location of the

goods and causes the flow of their movement to continue

relatively uninterrupted.”       Id. at n. 4.

      The prosecution theory was that appellant joined the

conspiracy while asportation was continuing.       The defense theory
was that asportation was completed when Rodbourn and McCarus put

the duffel bag in the car and parked the car.

      With respect to the conspiracy, the specific issue before

this Court is whether any rational factfinder could have found

beyond a reasonable doubt:

      (1) That Rodbourn and McCarus formed a conspiracy to steal

Campbell’s duffel bag and its contents;

      (2) That they took the duffel bag;




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United States v. Whitten, No. 01-0243/AR


      (3) That appellant joined the conspiracy before Rodbourn and

McCarus were “satisfied with the location of the goods” and while

the movement of the goods continued “relatively uninterrupted”;

and

      (4) That an overt act in furtherance of the agreement to

steal the duffel bag was committed after appellant joined the

conspiracy.

      With respect to the larceny, the specific issue is whether

any rational factfinder could have found beyond a reasonable

doubt that appellant joined an ongoing conspiracy to commit

larceny or aided and abetted the larceny before Rodbourn and

McCarus were “satisfied with the location of the goods” and while

the movement of the goods continued “relatively uninterrupted.”

      The evidence of record, viewed in the light most favorable

to the prosecution, reflects the following:

            (1) That Rodbourn and McCarus decided to steal the

      duffel bag after they saw it unattended and circled the area

      a second time;

            (2) That almost immediately after they took the duffel

      bag, Rodbourn and McCarus became concerned that McCarus’s

      car had been identified;

            (3) That within minutes, they knew that McCarus’s car

      had been identified and the police notified of the theft;

            (4) That within minutes, they decided that the stolen

      property could not be kept in the car or the barracks;

            (5) That, at the first opportunity, they moved the car

      and the duffel bag to SFC Lund’s house;




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United States v. Whitten, No. 01-0243/AR


            (6) That, at SFC Lund’s house, appellant participated

      in the division of property, removed Campbell’s

      identification from some of the items, and identified which

      items he wanted to keep for himself;

            (7) That appellant, Rodbourn, and McCarus did not know

      the exact contents of the duffel bag and did not decide what

      items they wanted to keep until they “inventoried” it at SFC

      Lund’s house; and

            (8) That after appellant, Rodbourn, and McCarus divided

      the property and threw away the items they did not want,

      appellant agreed to hide the stolen property in his new on-

      post quarters.

      Based on this evidence, we hold that a rational factfinder

could have found beyond a reasonable doubt that Rodbourn and

McCarus formed an agreement, manifested by their conduct, to

steal the duffel bag after initially seeing it and then circling

back around to take it; that appellant joined the ongoing

conspiracy to steal Campbell’s duffel bag and its contents; and

that several overt acts in furtherance of the conspiracy were

committed after he joined it: inventory and division of property,

removal of identifying markings and name tapes, and further

transportation to appellant’s quarters for safekeeping.   We

further hold that a rational factfinder could have found beyond a

reasonable doubt that appellant aided and abetted in the larceny

before asportation of the stolen property was complete.

Accordingly, we hold that the evidence is legally sufficient to

support appellant’s convictions of conspiracy and larceny.




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United States v. Whitten, No. 01-0243/AR


                                  Decision

      The decision of the United States Army Court of Criminal

Appeals is affirmed.




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