United States v. Nagle

30 M.J. 1229, 1990 CMR LEXIS 725, 1990 WL 98750
U.S. Army Court of Military Review·Decided July 13, 1990·No. ACMR 8902137·Published

Opinion

OPINION OF THE COURT

GILLEY, Judge: *

Pursuant to the appellant’s pleas, the military judge found him guilty of conspiracy to commit larceny, larceny (two specifications), and wrongful damage to a private automobile, in violation of Articles 81, 121, and 109, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, and 909 (1982). Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as provides for a bad-conduct discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to Private El.

The appellant urges that the military judge erred by finding that an overt act of breaking a window of a private automobile was properly the subject of a separate offense. We find that the military judge correctly found the offenses separate for findings but that they were multiplicious for sentencing.

The conspiracy arose when the appellant agreed to a plan proposed by a Private J that they watch a Specialist McK, who had bragged to Private J that he had $10,000.00 with him in a briefcase. They agreed at a second meeting that if Specialist McK put his briefcase in his car, they would break into the car, smash a window, and steal the money. Later that night, they looked into Specialist McK’s car and saw his briefcase in the passenger’s compartment. The appellant took a tire iron from his assigned [1230] military vehicle, and Private J used it, on appellant’s urging, to smash the window. Appellant grabbed the briefcase containing a pistol, and $442.00 in cash, and ran.

The conspiracy specification alleged the larceny as its object and the breaking into the automobile as one of its overt acts. That act became a separate specification as well.

We observe that the Manual for Courts-Martial, United States, 1984, Part IV, para. 5(c)(8)[hereinafter MCM, 1984] provides that conspiracy is a separate offense from the offense which is the object of the conspiracy and that the object is also separately punishable from the conspiracy.1 Further, that paragraph provides that the conspired-for offense may be the overt act alleged, but it does not provide that non-object overt acts may be separately punishable. However, we find that an inference that such overt acts are not separately punishable was not the intent of the Manual provision and would be manifestly incorrect both in view of the development of the law of conspiracy as an inchoate offense and based on logic.

The defense’s contention ignores the fundamental criterion for conspiracy, “an inchoate offense, the essence of which is an agreement to commit an unlawful act.” Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975). Accordingly, American law now treats conspiracy and the completed substantive offense as separate crimes, subject to separate imposition of punishment for each of those two crimes. Id. at 777-78, 95 S.Ct. at 1289-90. Contemplation of the reasons why conspiracy is separately punishable assists us here:

This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement — partnership in crime— presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.

Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961), reh’g denied, 365 U.S. 825, 81 S.Ct. 687, 5 L.Ed.2d 703 (1961).

Further, the overt act alleged in the specification to show that the conspiracy is ongoing may be the criminal object of the conspiracy, and the “same or other acts in furtherance of the conspiracy are likewise ... attributable to the other [co-conspirators] for the purpose of holding them responsible for the substantive offense” if reasonably foreseeable as a “necessary or natural consequence of the unlawful agreement.” Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), reh’g denied, 329 U.S. 818, 67 S.Ct. 26, 91 L.Ed. 697 (1946). See MCM, 1984, Part IV, para. 5(c).

Other federal courts have held accused subject to separate punishments for the conspiracy and offenses flowing from it. For example, in United States v. McQuisten, 795 F.2d 858 (9th Cir.1986), separate punishments were upheld for conspiracy to manufacture methamphetamine and attempt to manufacture methamphetamine. The Court reasoned: “we have several distinct criminal acts. First, there was the [1231] conspiracy. That was followed by a number of separate transactions and events involving different people at various locations over a number of months.” Id. at 868. More poignantly, in Banghart v. United States, 148 F.2d 521 (4th Cir.), cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945), the court upheld conviction and punishment on separate counts an indictment alleging conspiracy to rob mail, four counts of robbery of the mail, and injury to mailbags with intent to steal mail. The court observed that injury of the mailbags has different elements from robbery of the mail, and that both are separate and distinct from the conspiracy. Id. at 521-22.

That court also applied the law of multiplicity as we have it in Rule for Courts-Martial 907(b)(3)(B). See United States v. Stottlemere, 28 M.J. 477 (C.M.A.1989) (upholding separate convictions for conspiracy to commit larceny of government funds and attempted larceny of those same funds upon applying rule set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); each crime required proof of an additional fact which the other does not).

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United States v. Nagle, 30 M.J. 1229, 1990 CMR LEXIS 725, 1990 WL 98750 (usarmymilrev 1990).

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Related

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Iannelli v. United States
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United States v. James Douglas McQuisten
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Banghart v. United States
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