- A co-conspirator may be convicted for substantive offenses committed by anotherco-conspirator, provided such offenses were committed while the agreement continued to exist and were in furtherance of the agreement. MCM, pt. IV, ¶ 5c(5); Pinkerton v. United States , 328 U.S. 640 (1946); United States v. Browning , 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta , 14 M.J. 383 (C.M.A. 1983) (members were properly instructed on liability for co-conspirator’s drug distribution); United States v. Figueroa , 28 M.J. 570 (N.M.C.M.R. 1989) (guilty plea to drug distribution by co-conspirator was provident).
- United States v. Billings , 58 M.J. 861 (A.C.C.A. 2003) (accused’s silent consent asapproval authority for all gang activity supported conviction for robbery even though other gang members carried out the crime) aff’d, 61 M.J. 163 (2005).
- United States v. Finlayson , 58 M.J. 824 (A.C.C.A. 2003) (dicta) (accused could becriminally liable for the actions of other conspirators before he joined the conspiracy).
- Article 77 is broad enough to encompass vicarious liability of co-conspirators. UnitedStates v. Browning , 54 M.J. 1, 7 (C.A.A.F. 2000) (holding that prosecution could prove larceny and fraudulent claim charges on theory that accused was perpetrator, aider and abettor, or co-conspirator, even though conspiracy was not on the charge sheet).
- A co-conspirator’s statement may be admissible under MRE 801(d)(2)(E) even though conspiracy is not a charged offense. United States v. Knudson , 14 M.J. 13 (C.M.A. 1982).