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CONSPIRACY. UCMJ ART. 81. Overt Act
- The overt act must be independent of the agreement, and it must take place during or after the agreement. MCM, pt. IV, ¶ 5c(4)(a). United States v. Kauffman , 34 C.M.R. 63 (C.M.A. 1963) (the act of receiving the name and address of his contact, which was not separate from the agreement, was not a sufficient overt act for conspiracy to wrongfully communicate with agents of East Germany); United States v. Schwab , 27 M.J. 559 (A.C.M.R. 1988) (accused’s conversations with his alleged co-conspirator, his statement that he put money aside, and co-conspirator’s notes and sketches did not satisfy the overt act requirement for conspiracy to commit larceny and wrongful sale of firearms); United States v. Farkas , 21 M.J. 458 (C.M.A. 1986), cert. denied , 479 U.S. 857 (1986) (act done prior to agreement is not a sufficient overt act).
- The overt act must be done by one or more of the co-conspirators, but not necessarily the accused. MCM, pt. IV, ¶ 5c(4)(a); see United States v. Yarborough , 5 C.M.R. 106 (C.M.A. 1962) (in conspiracy to intentionally inflict self-injury, the government could have alleged overt acts proven to be committed by the co-conspirator, but the government alleged overt acts by the accused that it did not prove).
- An overt act by one conspirator is the act of all; the overt act may be performed byany member of the conspiracy. Each conspirator is equally guilty even though each does not participate in, or have knowledge of, all of the details. MCM, pt. IV, ¶ 5c(4)(c); see United States v. Figueroa , 28 M.J. 570 (N.M.C.M.R. 1989).
- The overt act need not be criminal. Although committing the intended offense mayconstitute the overt act, it is not essential. Mere preparation may be enough, as long as it manifests that the agreement is being executed. MCM, pt. IV, ¶ 5c(4)(b); United States v. Choat , 21 C.M.R. 313 (C.M.A. 1956) (obtaining crowbar with which to break and enter a store was sufficient overt act for conspiracy to commit larceny); see United States v. Brown , 41 M.J. 504 (A.C.C.A. 1994) (agreement may be contemporaneous with the offense itself in a conspiracy to organize a strike), aff’d, 45 M.J. 389 (C.A.A.F. 1996).
- At least one overt act must be alleged and proved; United States v. McGlothlin , 44 M.R. 533 (A.C.M.R. 1971) (holding that specification alleging conspiracy to commitpandering but not alleging any overt act in furtherance of the conspiracy was fatally defective). Government may allege several overt acts, but need prove only one; United States v. Reid , 31 C.M.R. 83 (C.M.A. 1961).
- Substitution of proof of an unalleged overt act does not necessarily constitute a fatalvariance, as long as there is “substantial similarity” between the alleged overt act and the overt act proven at trial. United States v. Collier , 14 M.J. 377 (C.M.A. 1983); see United States v. Moreno , 46 M.J. 216 (C.A.A.F. 1997) (where basic facts remain unchanged, amendment of alleged overt act the day before trial was permissible minor change).