“Bilateral Theory” of liability
- Conspiracy, under Article 81, requires a “meeting of the minds” to achieve thepurported criminal goal. United States v. Valigura , 54 M.J. 187 (C.A.A.F. 2000); United States v. LaBossiere , 32 C.M.R. 337 (C.M.A. 1962) (if only two persons involved, one cannot be a government agent); United States v. Duffy , 47 C.M.R. 658 (A.C.M.R. 1973) (mentally incapacitated co-accused not culpably involved).
- The law does not require ‘consistency of verdicts.’ If one of two co-conspirators isacquitted of conspiracy in a previous trial, the other co-conspirator may still be tried and convicted of conspiracy. United States v. Garcia , 16 M.J. 52, 57 (C.M.A. 1983).
- An accused may be convicted of attempted conspiracy with an undercover lawenforcement agent. United States v. Anzalone , 43 M.J. 322 (C.A.A.F. 1995); United States v. Valigura , 54 M.J. 187 (C.A.A.F. 2000).
- Attempted conspiracy does not require an agreement or shared intent among theexpected conspirators with respect to the object of the conspiracy. United States v. Roeseler , 55 M.J. 286 (C.A.A.F. 2001) (accused agreed to murder fictitious parents-in- law of fellow member of platoon).