United States v. Valigura

54 M.J. 187, 2000 CAAF LEXIS 1078, 2000 WL 1402016

• Court: Court of Appeals for the Armed Forces
• Decided: September 25, 2000
• Docket: 99-5005/AR
• Status: Published

Opinions

Senior Judge EVERETT

delivered the opinion of the Court.

Private Valigura (hereafter appellee) was tried by a general court-martial consisting of a military judge alone. Contrary to her pleas, she was convicted of conspiracy to distribute marijuana and failure to go to her appointed place of duty; pursuant to her pleas, she was convicted of failure to obey a lawful order and wrongful distribution of marijuana. See Arts. 81, 86, 92, and 112a, Uniform Code of Military Justice, 10 USC §§ 881, 886, 892, 912a, respectively. The sentence as approved by the convening authority was a bad-conduct discharge, confinement for 6 months, total forfeitures, and reduction to Private E-l.

This appeal concerns only the conspiracy charge and seeks an answer to this issue certified by the Judge Advocate General:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLEE’S CONSPIRACY CONVICTION UNDER ARTICLE 81, UNIFORM CODE OF MILITARY JUSTICE, MUST BE SET ASIDE BECAUSE THE EVIDENCE SHOWED THAT HER SOLE CO-CONSPIRATOR WAS AN UNDERCOVER GOVERNMENT AGENT, WHERE THE AGENT ACTUALLY AGREED WITH APPELLEE TO DISTRIBUTE ILLEGAL DRUGS, BUT DID SO FOR A LAW ENFORCEMENT RATHER THAN A CRIMINAL PURPOSE.

We hold that the Court of Criminal Appeals ruled correctly for the reasons expressed in the majority opinion by Judge Trant. 50 MJ 844 (1999).

I

The facts are not unusual. Private Valigura agreed to sell marijuana to an undercover military police investigator; and pursuant to this agreement, she received payment upon delivery of the drug. The only two co-conspirators named in the conspiracy specification are Valigura and the undercover investigator. Everything said and done by that investigator indicated a concurrence of purpose with that of Valigura; and the action of the two persons would also have suggested to any observer that an agreement had been reached.

Even so, under the traditional “bilateral” theory, the crime of conspiracy had not been committed by either the undercover investigator, who lacked mens rea, or by Valigura, even though she clearly possessed a purpose to enter into an agreement to sell marijuana. She could not be guilty because no one can be found guilty of conspiracy unless more than one person has the necessary mental state.

For decades most courts have followed this view, which was well expressed by Justice Cardozo in Morrison v. California:

It is impossible in the nature of things for a man to conspire with himself. In California as elsewhere conspiracy imports a corrupt agreement between not less than two with guilty knowledge on the part of each.

291 U.S. 82, 92, 54 S.Ct. 281, 78 L.Ed. 664 (1934)(footnote omitted).

Four decades later the Supreme Court reaffirmed the need that more than one person agree on the criminal goal to be attained. In Iannelli v. United States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), it stated that “agreement is the essential evil at which the crime of conspiracy is directed” and it “remains the essential element of the crime.” If there is no actual agreement or “meeting of the minds” there is no conspiracy. See W. LaFave & A. Scott, Substantive Criminal Law § 6.4(d) at 70-71 (1986).

Accordingly, if one person is only feigning a criminal purpose and does not intend to achieve the purported purpose, there is no conspiracy.¹ As this Court has said: “[I]t is well settled that there can be no conspiracy [Art. 81] when a supposed participant merely feigns acquiescence with another’s criminal proposal in order to secure his detection and apprehension by proper authorities.” United States v. LaBossiere, 13 USCMA 337, 340, 32 CMR 337, 340 (1962).

In the federal courts, a conspiracy conviction still requires at least two persons who genuinely wish to accomplish the ostensible goal of the purported conspiracy. In Sears v. United States, 343 F.2d 139, 142 (5th Cir.1965), the Court of Appeals stated that “it takes two to conspire, [therefore] there can be no indictable conspiracy with a government informer____” The Sears rule has been followed by seven other Federal circuits.² Many, if not most, state courts take the same approach.³ Why then does any issue of law exist as to the need that more than one person share the criminal purpose?

II

Perhaps the chief reason for raising an issue is provided by the Model Penal Code of the American Law Institute. Under the “unilateral” theory of conspiracy adopted by the Institute, someone may be punished as a conspirator who believes he or she has agreed with another to commit a crime, even though the other person had no purpose to commit that crime. This theory comports with the greater emphasis of the Model Penal Code on an actor’s subjective intent than is demonstrated by some other criminal codes. Likewise, under the Model Penal Code, a defendant may be convicted of attempt or conspiracy even though the intended crime was impossible of accomplishment.

Similarly, in prescribing the elements of the crime of attempt, the Model Penal Code asks whether the accused committed an act that was “a substantial step in a course of conduct planned to culminate in [the accused’s] ... commission of the crime.” § 5.01(l)(c). In turn, the Model Code defines a “substantial step” as conduct that “is strongly corroborative of the actor’s criminal purpose.” § 5.01(2). This approach allows someone with a clear criminal purpose to be convicted of attempt on the basis of conduct that traditionally may have been viewed as only “preparation.”

Military justice has taken some positions parallel to the Model Penal Code. For example, the test used at a court-martial to determine whether an accused’s conduct constituted an attempt is whether the accused committed “an overt act which directly tend[ed] to accomplish the unlawful purpose.” Para. 4c(1), Part IV, Manual for Courts-Martial, United States (1998 ed.). “The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense.” Para. 4c(2). Even though military law requires more than mere preparation, a court-martial may convict of attempt on evidence that might be insufficient in some jurisdictions. Likewise, in military justice, impossibility — whether of law or fact — is no defense in a prosecution for conspiracy or attempt. United States v. Thomas, 13 USCMA 278, 32 CMR 278 (1962). Accordingly, it seems plausible to argue that military justice should also follow the Model Penal Code in rejecting the “bilateral” in favor of the “unilateral” theory.

Moreover, it has been suggested that implicitly this Court already has embraced the unilateral theory in United States v. Garcia, 16 MJ 52 (1983), where we ruled that an accused could be convicted of conspiracy, even though in a different trial the only other alleged conspirator had been acquitted. Indeed, then-judge Crawford reasoned to this effect in her subsequent opinion in United States v. Anzalone, 43 MJ 322 (1995).

Ill

Whatever the persuasiveness of these contentions, we must today reject the unilateral theory. In the first place, the various separate opinions in Anzalone made clear that the other four judges rejected then-Judge Crawford’s view as to the impact of Garcia. Thus, it seems clear that Garcia was predicated on the well-established premise that totally inconsistent results may be reached in different trials. Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Indeed, even in the same trial, a jury may render inconsistent verdicts as to different defendants, see United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943); and the same rule has been applied with respect to inconsistent judgments entered by a judge as to different defendants, Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981). So far as we can determine, such decisions by the Supreme Court have not been construed to mean an abandonment of the “bilateral” theory of conspiracy in the federal courts.

Second, unlike the Model Penal Code, the Uniform Code in Article 81 used only the word “conspires” — a word which had been repeatedly construed to require a common criminal purpose by at least two persons. On the other hand, in defining conspiracy in § 5.03, the Model Penal Code uses the word “agrees” — a term which in civil contractual litigation has sometimes been interpreted to include situations where certain actions of the parties indicated they had made an agreement — even if subjectively they were not in full accord. In drafting Article 81 of the Uniform Code, if Congress had wished to adopt such an approach, presumably they would have used “agrees” or some similar word to make the point and not have used only the word “conspires” — which has consistently been interpreted by the federal courts to incorporate a bilateral theory.⁴ For this Court retroactively to introduce an entirely new theory of conspiracy that was not contemporaneously in the minds of the legislators or discussed by them would seem to cross the line between judicial interpretation and improper judicial lawmaking and cannot be justified by the “public policy” considerations advanced in Chief Judge Crawford’s dissent.

Chief Judge Crawford emphasizes the harm to military efficiency that results when servicemembers engage in drug use and concludes therefrom that this Court should adopt the unilateral theory of conspiracy to help deter drug use. Of course, if we took her approach, the unilateral theory would have to be applied not only to drug conspiracies but also to any other conspiracy prosecuted under Article 81 of the Code and so the resulting change would exceed the scope of the rationale she suggests. More important, we are sure that drug use is of great concern not only in the military but also in the civilian community, and it has been subjected there to severe penalties. For example, in enacting 21 USC § 846, which concerns drug conspiracies, Congress omitted the requirement of an overt act, a requirement which is still included in the general conspiracy statute, 18 USC § 371, as well as in Article 81 of the Code.⁵ Nonetheless, in dealing with drug-abuse prevention, Congress has not yet adopted the unilateral theory of conspiracy. Thus, 21 USC § 846, which deals specifically with drug conspiracies, does not incorporate the unilateral theory. Certainly by the time this statute was enacted in 1970 — some years after promulgation of the Model Penal Code — Congress was aware of the “unilateral” theory of conspiracy, and its failure then to adopt this theory is an added indication that it still favored the “bilateral” theory.

Article 36(a), UCMJ, 10 USC § 836(a), provides that, in prescribing “procedures, including modes of proof,” before courts-martial, the President may prescribe regulations “which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” The implication is that Congress intended that, to the extent “practicable,” trial by court-martial should resemble a criminal trial in a federal district court. Even though Article 36 is principally concerned with “procedures” and “rules of evidence,” it can be inferred that, unless there is a reason not to do so, an interpretation of a provision of the Uniform Code should follow a well-established interpretation of a federal criminal statute concerning the same subject. The bilateral theory of conspiracy is consistently followed in those courts, and the dissent fails to demonstrate that Congress intended for courts-martial to apply in conspiracy cases a theoiy that makes it easier to convict than if the prosecution took place in a federal district court.

Throughout her dissent, Chief Judge Crawford makes no reference to the intention of Congress. On the contrary, she makes clear her desire to use the power of this Court to change military law unilaterally to meet the “changing conditions in the military society.” 54 MJ at 199. We, however, do not believe it is proper to arrogate to this Court the policy-making prerogative that belongs to Congress. Our role should be to interpret and apply faithfully the policy of Congress in responding to drug offenses or other crimes, regardless of our own view as to the wisdom or efficacy of that policy.

Finally, rejection of the unilateral theory does not leave a significant loophole for harmful conduct. This Court has recognized the crime of attempted conspiracy — the offense which the court below affirmed as a lesser-included offense.⁶ For an attempt, the Manual for Courts-Martial prescribes “the same maximum punishment authorized for the commission of the offense attempted, except that in no case should the death penalty be adjudged, nor shall any mandatory minimum punishment apply; and in no case, other than attempted murder, shall confinement exceeding 20 years be adjudged.” See para. 4e, Part IV. Thus, usually- — as in this ease— successful invocation of the bilateral theory will have little or no effect on the maximum punishment imposable.⁷

Therefore, in view of well-established precedent and the lack of any indication from the legislative history that Congress intended in 1950 to take a new approach to conspiracy, we uphold the conclusion reached by the court below in its excellent opinion. Thus, we reject the unilateral theory of conspiracy. However, Congress, if it so chooses, can readily overrule our conclusion and adopt a “unilateral” theory of conspiracy. In that event, it would seem likely that, in the interest of consistency, Congress would also wish to amend 18 USC § 371 and 21 USC § 846.

IV

The certified question, which asks if the court below erred, is answered in the negative.

The decision of the United States Army Court of Criminal Appeals setting aside the conspiracy conviction but upholding a conviction for attempted conspiracy is affirmed.

1 . The same logic would suggest that if two persons purport to enter a conspiracy but because of a mental disease one of them is unable to know right from wrong with respect to the goal of their agreement, neither person is guilty of conspiracy. But cf. United States v. Tuck, 28 MJ 520 (ACMR 1989). In any event, we need not decide that question, which has not been briefed or argued.

2 . See, e.g., United States v. Rosenblatt, 554 F.2d 36, 38 (2d Cir. 1977); United States v. Chase, 372 F.2d 453, 459 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); United States v. Pennell, Til F.2d 521, 536 (6th Cir. 1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985); United States v. Moss, 591 F.2d 428, 434 n. 8 (8th Cir.1979); United States v. Escobar de Bright, 742 F.2d 1196, 1200 (9th Cir.1984); United States v. Barboa, 777 F.2d 1420, 1422 (10th Cir.1985); United States v. Tombrello, 666 F.2d 485, 490 n. 3 (11th Cir.1982).

3 . See, e.g., People v. Foster, 99 Ill.2d 48, 75 Ill. Dec. 411, 457 N.E.2d 405 (1983); James v. State, 481 So.2d 805 (Miss.1985); State v. Kihnel, 488 So.2d 1238 (La.Ct.App.1986); Commonwealth v. Themelis, 22 Mass.App.Ct. 754, 498 N.E.2d 136 (1986); Fortune v. Commonwealth, 12 Va.App. 643, 406 S.E.2d 47 (1991); State v. Pacheco, 125 Wash.2d 150, 882 P.2d 183 (1994); State v. Villalobos, 120 N.M. 694, 905 P.2d 732 (1995).

4 . Indeed, this Court has followed the Model Penal Code as to issues such as whether "substantial step” satisfies the requirement for attempt or whether "impossibility” is a defense for attempt or conspiracy — issues as to which the federal courts had not articulated clear precedents.

5 . In line with decisions of the lower federal courts, the Supreme Court interpreted 21 USC § 846 to have deleted the overt-act requirement. See United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). In so doing, the Court followed "the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms.” Id. at 13, 115 S.Ct. 382. That principle also seems to apply in deciding the issue posed in the case at hand.

6 . Judge Gierke has disagreed with the Court’s view that military justice recognizes an offense of attempted conspiracy. See United States v. Riddle, 44 MJ 282, 289 (1996) (dissenting); United States v. Anzalone, 43 MJ 322, 326 (1995) (concurring in the result). Even under his view, the offense of solicitation would be available for consideration by a prosecutor.

7 . Of course, whether a conspiracy exists may have implications as to vicarious liability and as to admissibility of statements under the hearsay exception.