United States v. Schoof

34 M.J. 811, 1992 CMR LEXIS 133, 1992 WL 21721

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: January 30, 1992
• Docket: NMCM 90 3831
• Status: Published

Opinions

PER CURIAM:

In early October of 1989, the appellant was experiencing financial difficulties as a result of his drinking, cocaine use, absence without leave, and involvement with civilian authorities. He approached Operations Specialist Third Class (OS3) John J. Haeger on his ship, the USS FAIRFAX COUNTY (LST 1193), located in Norfolk, Virginia, and suggested that they might make money by selling classified material to the Soviets. OS3 Haeger was the ship’s Naval Warfare Publications Custodian and had access to the Naval Warfare Publications Library safe in the Combat Information Center (CIC), where various classified material was stowed. The appellant and OS3 Haeger entered CIC, and OS3 Haeger opened the safe. The appellant claims that he asked Haeger for microfiches that would be the least damaging to the United States but of sufficient value to the Soviets to get the appellant out of debt. Haeger took and gave to the appellant twelve microfiches still classified SECRET. They endeavored to take only such material as had been superseded. The appellant put the microfiches into his locker on board ship.

Later that month, the appellant attended a counter-intelligence briefing, where he listened to a Naval Investigative Service (NIS) agent describe how John Walker, the infamous U.S. Navy officer now serving a life sentence for espionage, had walked into the Soviet Embassy. Instead of heeding the counter-intelligence briefing as an admonition, the appellant treated it as instruction on modus operandi and decided that he could sell the classified material he had in the same way. He telephoned the Soviet Embassy in Washington, D.C., at least three times. The first time he was asked to bring the material to the embassy; when he countered that the embassy should send someone to pick it up from him, the person at the embassy said no and hung up. He called back and argued with the person at the embassy about having someone pick up the material from him in Norfolk but got nowhere. Another time he called to find out the hours that the embassy was open for business. Sometimes there was no answer.

In mid-November 1989, the appellant borrowed a motorcycle and began driving toward Washington with the intent to deliver the classified material to the Soviet Embassy. Upon reaching a point between Williamsburg and Richmond, he changed his mind, decided that he could not go through with it, and returned to Norfolk. Upon his return, he stopped at a bar and was drinking heavily when he encountered a friend who was on terminal leave. He explained, in sufficient detail for his friend to surmise what he was up to, how he planned to make some money and solicited his friend to drive him up to Washington. After stalling for a few days, the friend ultimately refused. A short time later, the microfiches in the possession of the appellant were discovered missing from the ship’s safe, and a search for them was ordered. The appellant was apprehended on 1 December 1989 while leaving the ship. When it was clear that he would be searched, he surrendered the microfiches to a Naval Investigative Service agent.

On the above facts, the appellant was charged with conspiracy with OS3 Haeger to commit espionage, espionage by attempting to deliver the microfiches to a foreign power, larceny of the microfiches, solicitation of the friend on terminal leave to aid and abet espionage, and three violations of 18 U.S.C. § 793. He was also charged with using cocaine on and off his ship. He pled guilty, with minor exceptions, to the drug charges and the conspiracy charge, guilty as charged to the attempted espionage and solicitation charges, and not guilty to the rest. He was found in accordance with his pleas. In compliance with a pretrial agreement, the Government did not contest the charges or other matters to which the appellant pleaded not guilty. The court-martial, composed of officer members, sentenced the appellant to a dishonorable discharge, forfeiture of all pay and allowances, reduction to pay grade E-l, and confinement for 25 years. The convening authority approved the sentence but suspended confinement over 20 years for 12 months from the date of sentencing in compliance with the pretrial agreement.

Appellate defense counsel has raised six assignments of error². In light of the disposition of the appeal herein, only Assignments I and II need be addressed. These assignments are closely related, because the latter asserts that the appellant did not so nearly approximate the completed offense as to have committed an attempt, while the former asserts that, even if he did, the inquiry raises, but does not settle, the affirmative defense of voluntary abandonment.

At common law, there was no attempt unless the defendant had committed an overt act which “must be the final one towards the completion of the offense, and of such character that, unless it had been interrupted, the offense itself would have been committed.” People v. Sullivan, 173 N.Y. 122, 65 N.E. 989, 992 (1903). See also United States v. Coplon, 185 F.2d 629 (2d Cir.1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952). There was, therefore, little or no need for the affirmative defense of voluntary abandonment, since virtually any locus poenitentiae would necessarily be excluded by the very elements of attempt.

The rule in this country seems to be based less upon concerns with the proximity to completion of the crime than on the dangers posed by people abroad in society seriously intent upon committing specific crimes. Under this theory, the inquiry is focused upon the firmness of the defendant’s resolve to commit the crime; an overt act is still required, but proximity of the overt act to the completed crime is just one indicium of the firmness of the defendant’s resolve, not necessarily the only one that the law will entertain. Consequently, the rule is now phrased as requiring conduct by the defendant which goes beyond mere preparation and constitutes a substantial step toward commission of the crime, a substantial step being one which is strongly corroborative of the defendant’s criminal intent. United States v. Byrd, 24 M.J. 286, 290 (C.M.A.1987) (opinion of Chief Judge Everett).

Even though, under current law, the principal function of overt acts is said to be to demonstrate the seriousness of the accused’s intent, the U.S. Court of Military Appeals has made clear in United States v. Byrd, United States v. Presto, 24 M.J. 350 (C.M.A.1987), and United States v. Church, 32 M.J. 70 (C.M.A.1991), that the distinction between mere preparation and substantial steps, however difficult it may be to discern, and the insufficiency of mere preparation for a finding of attempt remain viable legal principles in the substantive law of attempts. It would, therefore, be entirely too facile to argue that guilty pleas, insofar as they may be construed as, in effect, admitting the seriousness of the accused’s intent, thereby dispense with any requirement for the record to show acts amounting to more than mere preparation. At most, it appears that guilty pleas may serve to elucidate intent in borderline cases—cases that are, on their facts, already in the “twilight zone” of substantial, steps. Since United States v. Byrd and United States v. Presto are guilty plea cases, and both participating judges expressed the view that the respective providence inquiries did not demonstrate facts going beyond mere preparation, the law is clear that even guilty pleas, although ostensibly admitting the seriousness of the accused’s intent, neither supplant nor eliminate the substantive legal requirement of substantial steps amounting to more than mere preparation.

In United States v. Church, Judge Cox cites several of the tests formulated to distinguish substantial steps from mere preparation. 32 M.J. at 71. Courts have also looked to the defendant’s investment of time, money, and risk in the undertaking to ascertain his seriousness of purpose. Thus, although the overt act need not be criminal in itself, it is noteworthy if it is, for the defendant’s self-exposure to criminal liability may be indicative of his intent to carry the matter through to completion. Where money has changed hands as the consideration for the illegal transaction, that has been cited as a material factor. See United States v. Johnson, 767 F.2d 673 (10th Cir.1985), wherein the court, in distinguishing United States v. Joyce, 693 F.2d 838 (8th Cir.1982), states: “The required substantial step towards commission of the crime was lacking when the defendant refused to produce any money for the purchase of the drug ...” 767 F.2d at 675. See also United States v. Pennyman, 889 F.2d 104 (6th Cir.1989). According to United States v. Byrd, however, even the exchange of money may not be sufficient. Cf, United States v. Mandujano, 499 F.2d 370 (5th Cir.1974). Being the central player in detailed negotiations and making firm logistical arrangements predicated on success of the criminal enterprise have proved significant in some cases, at least in the expansive view of the First Circuit. See United States v. Dworken, 855 F.2d 12 (1st Cir.1988), disapproving both United States v. Joyce and United States v. Delvecchio, 816 F.2d 859 (2d Cir.1987). The magnitude of the danger engendered by the attempt is occasionally cited.

The more remote that conduct may be and still be characterized as a “substantial step,” the more essential it is to recognize an affirmative defense of voluntary abandonment. Whether it is desirable to do so in cases of such extreme proximity as United States v. Walther, 30 M.J. 829 (N.M.C.M.R.1990), is less obvious. In United States v. Byrd, Chief Judge Everett writes: “In various Federal cases the doctrine of voluntary abandonment seems to have been recognized either expressly or by implication.” 24 M.J. at 291 (footnote omitted). Those words are well-chosen, for, in many of the cases cited for the proposition, it is difficult to distinguish between whether the courts are recognizing voluntary abandonment as an affirmative defense to attempt or are merely treating the opportunity for abandonment, as evidenced by the actual abandonment, as an indication that events had not gone beyond mere preparation. See United States v. Joyce and United States v. Delvecchio.

In some cases, such as United States v. Byrd, in which both participating judges opined that Byrd’s actions had not gone beyond mere preparation, the distinction will be immaterial, for, in either situation, the result will be the same, and the defendant will be exonerated. In cases where an attempt has already been committed, however, the distinction is material, indeed. This is so because the affirmative defense of voluntary abandonment comes with numerous conditions attached, as shown by § 5.01(4) of the ALI Model Penal Code (1962), quoted in Byrd, 24 M.J. at 286. As stated therein:

Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

If the courts, instead of applying voluntary abandonment as an affirmative defense, use the fact of abandonment to negate the element of more than mere preparation, the motive for the abandonment loses much of its significance. Usually, the abandonment in such cases comes about from the defendant’s failure to appear for a transaction which he senses is a set-up (Delvecchio), or imposition of conditions either at the moment of the crime to back out of a transaction which he senses is a set-up {Joyce), or earlier on so as to make a set-up more difficult {Dworken). Although none of these situations meets the criteria for the affirmative defense of voluntary abandonment, the first two served to negate convictions for attempt in Delvecchio and Joyce, respectively, while the third failed to do so in Dworken.

The providence inquiry in this case never explicitly established the reason for the appellant’s change of mind which caused him to return to Norfolk, but, when the inquiry progressed to the solicitation charge, it satisfactorily excluded any affirmative defense of voluntary abandonment. No sooner did the appellant return to Norfolk than he began seeking an alternative mode of transportation to Washington. That sequence of events allows for the inference that his change of mind was due to some dissatisfaction with the motorcycle as a mode of transportation, rather than with the underlying treacherous design. While there may be some theoretical possibility that the appellant could have “permanently” abandoned, and then later revived, his original criminal purpose, the providence inquiry need not eliminate every such theoretical possibility. The record adequately demonstrates that the appellant had not permanently renounced his criminal purpose and, therefore, could not avail himself of the affirmative defense of voluntary abandonment.

The real issue in this case is whether or not there was an attempt at all. The providence inquiry shows that the appellant made vague, preliminary unreported contacts from Norfolk by telephone with the Soviet Embassy in Washington, conspired with OS3 Haeger to obtain the classified material in question and did obtain it, borrowed a motorcycle, and headed off in the direction of Washington, where the Soviet Embassy is located, to an uncertain reception. He had no appointment with anyone in the embassy; in fact, no one in the embassy was even aware that he was coming. The Soviets had no idea who he was or what he had, and no terms of payment or delivery had even been mentioned, much less agreed upon. In this regard, it should be remembered that the appellant’s ultimate objective was not to commit espionage for political reasons but to obtain money, and that the delivery of classified material was intended solely as a means to that end. Thus, it may be inferred that any intent to deliver the material to the Soviets was probably only conditional upon reaching a satisfactory agreement with the Soviets on price and terms of payment. Unlike the situation in United States v. Mandujano as between that accused and his supplier, there had been no previous dealings between the appellant and the Soviets from which to extrapolate anything about his probable subsequent actions or the Soviets’ likely response. At the time he turned back, more than a hundred miles of locus poenitentiae lay between him and the Soviet Embassy. Had the appellant ever reached Washington, he would still have been confronted with the daunting choice of whether or not to take the fateful step of entering the curtilage of the Soviet Embassy, not to mention the embassy building, itself—steps not dependent upon external circumstances but requiring the further exercise of the appellant’s will. The charge is that he did “attempt to deliver microfiche ... to a foreign government[.]” As a matter of law, no reasonable trier of fact could have found the appellant guilty of an attempt to deliver on such evidence. Cf, United States v. Coplon. Even though the appellant pled guilty, a conviction of espionage by attempting to deliver microfiche may not be affirmed on such a record.

Assignment II has merit. The appellant’s pleas of guilty to Charge II and its Specification are vacated, and the findings of guilty based thereon are set aside. Since it is not known with certainty what evidence the Government might have been able to present had the appellant pleaded not guilty, it would be premature to dismiss Charge II and its Specification at this time. Accordingly, a rehearing on Charge II and its specification may be ordered. Assignment I is thereby rendered moot, and Assignments III through VI pertain only to the sentence. Accordingly, the remaining findings of guilty are affirmed.

The sentence is set aside. If a rehearing is ordered on Charge II and its Specification, a rehearing on the sentence, based on the affirmed findings of guilty and any additional findings of guilty entered at the rehearing, will, likewise, be ordered. If the convening authority elects to dismiss Charge II and its Specification, he may order a rehearing on the sentence or may reassess the sentence in accordance with the principles explained in United States v. Sales, 22 M.J. 305 (C.M.A.1986). At the conclusion of the further proceedings indicated in this paragraph, the record will be returned, via the Judge Advocate General, to this Court for completion of appellate review. Assignments III through VI are, therefore, moot.

1 . Oral argument in this case was heard at the Naval Legal Service Office, Norfolk, Virginia.

2 . I. THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY WHERE THE PROVIDENCE INQUIRY INDICATED THAT APPELLANT HAD A POTENTIAL VOLUNTARY ABANDONMENT DEFENSE TO THE CHARGED ATTEMPTED ESPIONAGE.

II. THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO ATTEMPTED ESPIONAGE WHERE THE PROVIDENCE INQUIRY FAILED TO REVEAL AN OVERT ACT WHICH MOVED BEYOND MERE PREPARATION TO COMMIT ESPIONAGE.

III. THE MILITARY JUDGE ERRED BY DENYING A CHALLENGE FOR CAUSE AGAINST A MEMBER WHO WAS RESPONSIBLE FOR PREVENTING LOSS OR THEFT OF CLASSIFIED MATERIAL FROM HIS SHIP WHERE THE ACCUSED HAD PLED GUILTY TO CONSPIRING TO COMMIT ESPIONAGE BY SELLING CLASSIFIED MICROFICHE TAKEN FROM ABOARD A U.S. NAVY VESSEL.

IV. A SENTENCE WHICH INCLUDES CONFINEMENT FOR 20 YEARS IS INAPPROPRIATELY SEVERE IN LIGHT OF THE SENTENCES ADJUDGED FOR OTHER SIMILAR OFFENSES.

V. THE CONVENING AUTHORITY ERRED BY FAILING TO INDICATE IN HIS ACTION THAT A COMPANION CASE HAD BEEN TRIED SEPARATELY.

VI. THE STAFF JUDGE ADVOCATE ERRED BY INFORMING THE CONVENING AUTHORITY THAT APPELLANT HAD BEEN CONVICTED OF ESPIONAGE WHEN, IN FACT, HE WAS CONVICTED OF ATTEMPTED ESPIONAGE.