CONSPIRACY. UCMJ ART. 81. The Agreement

  1. militarydefenselawyers421No particular words or form of agreement are required, only a common understanding to accomplish the object of the conspiracy. This may be shown by the conduct of the parties. The agreement need not state the means by which the conspiracy is to be accomplished or what part each conspirator is to play. United States v. Whitten , 56 M.J. 234 (C.A.A.F. 2002) (agreement formed by circling back to take a duffel bag after spotting it outside a vehicle while driving through housing area); MCM, pt. IV, 5c(2).
        1. United States v. Shelton , 62 M.J. 1 (C.A.A.F. 2005). The MJ instructed on lesser included offenses of unpremeditated murder and conspiracy to commit unpremeditated murder. MJ told the members that they would have to find “that at the time of the killing, the accused had the intent to kill or inflict great bodily harm on PFC Chafin.” MJ erred. If the intent of the parties to the agreement was limited to the infliction of great bodily harm, their agreement was to commit aggravated assault, not unpremeditated murder.
        2. United States v. Denaro , 62 M.J. 663 (C.G. Ct. Crim. App. 2006). Object must be a UCMJ offense. Interfering with a urinalysis constitutes the Article 134 offense of wrongfully interfering with an adverse administrative proceeding, thereby establishing the unlawful object of the conspiracy.
        3. “Object of the conspiracy.”United States v. Billings , 58 M.J. 861 (A. Ct. Crim. App. 2003) (evidence established an agreement by the accused to commit robbery where accused was leader of the gang and she silently concurred when a subordinate outlined the robbery plan as a way to make money for the gang and evidence suggested that the accused shared in the proceeds) aff’d, 61 M.J. 163 (C.A.A.F. 2005).


    1. United States v. Cobb , 45 M.J. 82 (C.A.A.F. 1996) (evidence established agreement to commit robbery, where accused brought co-conspirators together, knew of their criminal venture, and expected to share in the proceeds).
    2. United States v. Garner , 43 M.J. 435 (C.A.A.F. 1996) (affirming conviction for conspiracy to steal insurance funds where accused hired a fellow soldier to kill accused’s wife with promise to share her life insurance proceeds).
    3. United States v. Barnes , 38 M.J. 72 (C.M.A. 1993) (“existence of a conspiracy is generally established by circumstantial evidence and is usually manifested by the conduct of the parties themselves”).
    4. United States v. Matias , 25 M.J. 356 (C.M.A. 1987) (conduct of accused and roommate was sufficient evidence of an agreement between them to sell marijuana), cert. denied, 485 U.S. 968 (1988).
    5. United States v. Jackson , 20 M.J. 68 (C.M.A. 1985) (without saying a word, the co-conspirator joined the accused in a conspiracy to commit larceny).
    6. United States v. Brown , 41 M.J. 504 (A. Ct. Crim. App. 1994) (conspiracy to organize a strike manifested by circumstantial evidence) aff’d, 45 M.J. 389 (C.A.A.F. 1996).
    7. United States v. Dickey , 41 M.J. 637 (N-M. Ct. Crim. App. 1994), vacated and remanded , 43 M.J. 170 (C.A.A.F. 1995), aff’d , 46 M.J. 123 (C.A.A.F. 1996) (agreement to commit rape need not be expressed but only need be implied). j) United States v. Pete , 39 M.J. 521 (A.C.M.R. 1994) (mere involvement in “gripe sessions” at which soldiers discussed leaving post without authority to protest conditions did not amount to a conspiracy). k) United States v. Walker , 39 M.J. 731 (N-M.C.M.R. 1994) (affirming conviction for conspiracy to distribute marijuana where accused acted as a lookout and knew his associates were selling marijuana), aff’d, 41 M.J. 79 (C.M.A. 1994). l) United States v. Graalum , 19 C.M.R. 667, 697-98 (A.F.B.R. 1955) (“conduct of the alleged co-conspirators, their declarations to or in the presence of each other, and other circumstantial evidence” clearly manifested agreement to commit bribery). m) United States v. Triplett , 56 M.J. 875 (A. Ct. Crim. App. 2002) (accused’s acts of straddling victim’s chest and placing hands on her throat to facilitate rape by co-conspirator established that accused and co-conspirator formed an agreement to rape victim). n) United States v. Brown , 9 M.J. 599 (A.F.C.M.R. 1980) (accused’s involvement in first two of four thefts was insufficient to establish that the scope and object of the conspiracy, of which the accused was a member, included the last two thefts).
  2. Mere presence is insufficient basis for inference of agreement. United States v.Wright , 42 M.J. 163 (C.A.A.F. 1995) (evidence that accused agreed to be present to assist if necessary and to assist in disposal of the victim’s body was sufficient proof of agreement to commit premeditated murder); United States v. Mukes , 18 M.J. 358 (C.M.A. 1984) (conspiracy requires “deliberate, knowing, and specific intent to join the conspiracy, not . . . that [the accused] was merely present when the crime was committed”).
  3. A conditional agreement is sufficient for conspiracy if the accused believes that thecondition is likely to be fulfilled. United States v. Wright , 42 M.J. 163, 166-67 (C.A.A.F. 1995) (citing federal case law).
  4. Single Agreement to Commit Multiple Crimes. A single agreement to commitmultiple offenses is a single conspiracy.
    1. United States v. Mack , 58 M.J. 413 (C.A.A.F. 2003). Accused was convicted separately of conspiracy to commit check forgery and conspiracy to commit larceny of the check proceeds. On appeal, the government acknowledged there was only one agreement and thus, only one conspiracy. The court consolidated the two conspiracy specifications. “[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.”
    2. United States v. Pereira , 53 M.J. 183 (C.A.A.F. 2000). Accused pled guilty to and was convicted of separate specifications of conspiracy to commit murder, conspiracy to commit robbery, and conspiracy to commit kidnapping. The record established that the accused and his co-conspirators formed only one agreement to commit all the underlying offenses. As a matter of law, there was only one conspiracy, and the court consolidated the three specifications into one specification.
  5. Complex Conspiracies. The scope and structure of conspiracies will varyconsiderably. The simplest form is a single bilateral agreement to commit a single crime. From that simple model, conspiracies may evolve into highly complex networks involving agreements between multiple parties to commit multiple crimes. In some cases, separate conspiracies are linked together by one or more common members. The scope and structure of the conspiracy has critical implications for determining liability of co-conspirators for crimes committed in furtherance of the conspiracy, resolving of evidentiary issues, and presenting a coherent theory to the panel. Two common metaphors used to describe complex conspiracies are the “wheel with spokes” conspiracy and the “chain” conspiracy.
    1. A “totality of the circumstances” analysis is the correct approach when determining the number of conspiracies in a given case. Federal court decisions have identified a variety of factors that may be relevant to determining whether a single or multiple conspiracies exist. Among such factors are the following: (1) the objectives of each alleged conspiracy; (2) the nature of the scheme in each alleged conspiracy; (3) the nature of the charge; (4) the overt acts alleged in each;
    2. the time each of the alleged conspiracies took place; (6) the location of each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8) the degree of interdependence between the alleged conspiracies. United States v. Finlayson , 58 M.J. 824 (A. Ct. Crim. App. 2003) (applying the eight factors to find one conspiracy where the accused used two suppliers, one of whom also supplied the other, and later had his wife join him in his drug distributing venture).
    3. Under the “wheel” metaphor, establishing a single conspiracy requires that the prosecution prove that the spokes are bound by a “rim,” which is the concerted action of all the parties working together with a single design for the accomplishment of a common purpose. The circumstances must lead to an inference that some form of overall agreement existed. This agreement may be inferred from the parties’ acts or other circumstantial evidence. United States v. Kenny , 645 F.2d 1323, 1334-35 (9th Cir. 1981) (finding a single conspiracy in the form of a “wheel” with the defendant as a central “hub” dealing in individual transactions with the other defendants as “spokes”), cert. denied, 452 U.S. 920 (1981).
    4. The government need not show direct contact or explicit agreement between the defendants. It is sufficient to show that each defendant knew or had reason to know of the scope of the conspiracy and that each defendant had reason to believe that their own benefits were dependent upon the success of the entire venture. United States v. Kostoff , 585 F.2d 378, 380 (9th Cir. 1978).
    5. Once the existence of a conspiracy has been established, evidence of only a slight connection is necessary to convict a defendant of knowing participation in it. United States v. Dunn , 564 F.2d 348, 357 (9th Cir. 1977).


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