United States v. Valigura

(dissenting):

The central issue in this case is whether appellee can be convicted of conspiracy if her sole coconspirator was an undercover government agent. The coconspirator’s status as an undercover agent is problematic because his lack of intent to complete the substantive offense calls into question the existence of an agreement, which is an essential component of the crime of conspiracy. This Court, taking a bilateral approach to conspiracy, holds that the conviction of the defendant should be overturned because there was in fact no agreement. I dissent. The Uniform Code of Military Justice, the Manual for Courts-Martial, military case law, and public policy all support a unilateral approach to conspiracy that determines whether there was an agreement based on the perspective of the defendant only. Because appellee believed that she had entered into an agreement to sell marijuana, she should be convicted of conspiracy.

I. The Issue

Conspiracy, like all crimes, is defined by the defendant’s mens rea and actus reus, the defendant’s mental state, and the act performed. The mens rea required for conspiracy includes both the conscious purpose to conspire and the conscious purpose to commit the substantive offense. The actus reus of conspiracy is the agreement that is formed between or among eoconspirators.1

The element of mens rea is clearly satisfied in this case. Appellee had both the intent to conspire and the intent to commit the substantive offense — to sell marijuana. The element of actus reus, however, is problematic. Did the parties actually make an agreement if the sole coconspirator did not intend to follow through with the substantive offense? In other words, did the coeonspirator’s intentional deception of appellee destroy the actus reus of the alleged conspiracy?

The answer depends on the definition of “agreement.” Traditionally, an “agreement” is bilateral, requiring that at least two parties involved in a conspiracy sincerely intend to complete the substantive offense. An alternative approach relies upon a unilateral definition. Under this approach, the “agree*193ment” element is satisfied if the defendant himself believes that there is an agreement. A conspiracy conviction will stand despite a coconspirator’s concealed intent not to follow through with the substantive offense.

Which approach, the bilateral or the unilateral, should prevail in military justice?

II. The Law

A. A Bilateral Past

The United States Code section on conspiracy, 18 USC § 371, takes a bilateral approach to the crime. This means that for an agreement to be found, both parties must intend to commit the substantive offense. Cases interpreting this section have highlighted the significance of a common design or purpose and a meeting of the minds. “The essence of the crime is the agreement on the part of each party to effect the object involved. They must each intend the accomplishment of the object; and they must agree on this.” United States v. Markowitz, 176 F.Supp. 681, 684 (E.D.Pa.1959); see also United States v. Goss, 329 F.2d 180 (4th Cir.1964). Other cases have clarified that it takes two parties to conspire. Thus, “there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy.” Sears v. United States, 343 F.2d 139, 142 (5th Cir.1965). One defendant alone cannot be convicted of conspiracy.

The drug conspiracy statute, 21 USC § 846, emphasizes that no conspiratorial agreement exists unless at least two culpable coconspirators agree. Consequently, defendant’s agreement must be with someone other than a government agent or informant. Therefore, in United States v. Rodriguez, 765 F.2d 1546, 1552 (11th Cir.1985), the court held that neither an informant nor an agent of the Drug Enforcement Administration could be considered a party to an “illegal agreement since government agents and informers cannot be conspirators.” See also United States v. Hendrickson, 26 F.3d 321, 333 (2d Cir.1994).

Older military cases seem to mirror the bilateral perspectives of 18 USC § 371 and 21 USC § 846. See United States v. Nathan, 12 USCMA 398, 30 CMR 398 (1961); United States v. Kidd, 13 USCMA 184, 32 CMR 184 (1962); United States v. LaBossiere, 13 USCMA 337, 32 CMR 337 (1962). The majority points in addition to two Supreme Court decisions that embraced the bilateral approach to conspiracy, namely Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), and Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934).

B. A Unilateral Shift

The ALI Model Penal Code, by contrast, follows a unilateral approach to conspiracy and evaluates the agreement from the perspective of the defendant only. If the defendant believed that there was an agreement, then there was in fact an agreement, regardless of the true intentions of the coconspirator. This is consistent with the Model Penal Code’s general view that an analysis of any alleged criminal behavior should consider the circumstances as the defendant believed them to be.

The Uniform Code of Military Justice is, of course, the primary authority in military law. The Code mirrors the Model Penal Code in several respects. First, as the majority points out, the “substantial step” test is the test applied in a court-martial to determine whether an accused’s conduct will support a conviction of attempt. See Art. 80, UCMJ, 10 USC § 880(a). This is compatible with the Model Penal Code’s standard (§ 5.01(1)(c)) for finding an attempt.2 Second, as the majority also notes, the Code has rejected impossibility of fact as a defense to *194conspiracy or attempt. Not only is this consistent with the Model Penal Code’s view on factual impossibility (§ 5.01(1)(a)), but it conceptually supports a unilateral approach to conspiracy. A coconspirator’s concealed resolve not to follow through with a substantive offense is really just a form of factual impossibility. Finally, the language of Article 81 of the Code resembles Model Penal Code § 5.03 more so than the language of 18 USC § 391. Thus, as the majority concludes, it seems plausible to argue that military justice should also follow the Model Penal Code in favoring the unilateral approach to conspiracy.

The Uniform Code of Military Justice is the principal authority in military law. Also persuasive is the non-binding language of the Manual that clearly supports a unilateral approach to conspiracy. For example, according to the Manual, “[a] person who purposely engages in conduct which would constitute” a substantive offense is guilty of an attempt “if the attendant circumstances were as that person believed them to be.” Para. 4c(3), Part IV, Manual for Courts-Martial, United States (1998 ed.). Regarding conspiracy, the Manual provides: “It is not a defense that the means adopted by the conspirators to achieve their object, if apparently adapted to that end, were actually not capable of success, or that the conspirators were not physically able to accomplish their intended object.” Para. 5c(7), Part IV. By analogy, the fact that the sole coeonspirator is an undercover agent who has no intention of completing the substantive offense would not be a defense to conspiracy.3

In addition to the statutory and Manual support for the unilateral approach, military case law in more recent years has embraced the unilateral approach to conspiracy. In United States v. Garcia, 16 MJ 52 (1983), this Court faced the question of inconsistency of verdicts and ruled that an accused could be convicted of conspiracy despite the fact that in a different trial, the only other alleged coeonspirator had been acquitted. Garcia supported an individualized inquiry into the circumstances of the defendant, a perspective that mirrors the unilateral approach to conspiracy. In United States v. Tuck, 28 MJ 520, 521 (ACMR 1989), the service court concluded that Garcia expressly “rejected the bilateral concept of conspiracy ... in favor of the unilateral theory.”4 (Internal quotation marks omitted.)

Several non-military cases also favor the unilateral approach to conspiracy. In Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530(1981), the Supreme Court held that a codefendant’s acquittal is not necessarily inconsistent with a defendant’s conviction for conspiracy. See also United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943); State v. St. Christopher, 305 Minn. 226, 232 N.W.2d 798 (1975); Platt v. State, 143 Neb. 131, 8 N.W.2d 849, 856 (1943). Each defendant is evaluated on the basis of his own independent circumstances. This reasoning would allow a defendant to be convicted of conspiracy, even if a coconspirator’s status as an undercover agent prevented the coconspirator’s own conviction.

*195Finally, “ordinary contract law” supports a unilateral approach.5 Contract law is particularly relevant to a conspiracy analysis because the agreement required for a conspiracy in many ways resembles a contract. Several cases have held that the assent required for the formation of a contract is a matter of overt acts and expressions, and not of inward unanimity in motives, design, or the interpretation of words.6 Other cases have noted that “[t]the meeting of minds which is essential to the formation of a contract is not determined by the secret intentions of the parties,” but rather by the intentions each party outwardly manifests to the other.7

These common-law views on contract creation can be applied to conspiracy analysis. In making an agreement to commit a crime, the conspiring parties are, in effect, making a contract. The defining elements of contract formation — namely: offer, acceptance, and consideration — are present.8 It follows that the agreement, or contract, formed between coeonspirators should be evaluated based on the outward manifestations, not the inward intentions, of the parties. The outward manifestations of the parties in the present case reveal an agreement between them to sell and purchase drugs. According to contract law, this is the basis on which the existence of a conspiracy should be evaluated. The concealed motives of the undercover agent do not change the fact that his overt behavior indicated his agreement to buy drugs from appellee.

III. Public Policy

Policy considerations provide what is perhaps the most compelling support for recognizing the unilateral approach to conspiracy.9

In Sauer v. United States, 241 F.2d 640, 648 (9th Cir.1957), the court stated that the purpose of criminal law is to define socially intolerable conduct and to hold conduct within the limits which are reasonably acceptable from a social point of view. In short, criminal law aims to punish and deter socially undesirable behavior.

Several rationales are offered for the existence of conspiracy as a specific crime. First, conspiracy is an inchoate crime centered on the preparation to commit a substantive offense.10 This “inchoate nature” rationale demands that society permit preventive steps to be taken against those who show a disposition to commit crime.11 More prominent than the “inchoate nature” rationale is the idea that conspiracy entails special dangers inherent in group criminal activity. See United States v. Feola, 420 U.S. 671, 693, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). Psychological reinforcement, effectiveness, degree of harm, and the creation of a focal *196point are often cited as contributory factors to the increased danger inherent in group crimes.12

The purpose of criminal law, and therefore the rationales for conspiracy outlined above, take on heightened significance in military justice. The United States Armed Forces play a unique and vital role in society. The members of the military pledge their commitment to protect and defend the Nation. To prepare for and perform its role, the military must insist upon a respect for duty and discipline unparalleled in civilian society. Based on this reasoning, in United States v. Bickel, 30 MJ 277 (1990), this Court held that contraband obtained during a search which was allegedly improper under civilian law could be used as evidence despite the impropriety of the search because of the unique position of the military and the need to ensure the readiness of military units.13 In short, the need to punish and deter socially undesirable behavior is particularly strong in military justice due to the character of the military and its paramount role in the defense of the nation.14

It is significant that this case is a drug conspiracy case. Statistics reveal that drug-related charges account for a substantial portion of military cases each year.15 Drugs pose a special threat to the function of the military, and drug-related offenses in the military therefore demand consistent and stringent punishment.16 In Murray v. Haldeman, 16 MJ 74, 78 (CMA 1983), the majority repeated earlier observations that possession of drugs by military personnel “is a matter of immediate and direct concern to the military as an act intimately concerned with prejudice to good order and discipline or to the discredit of the armed forces.” Similarly, in United States v. Bickel, supra, this Court determined that drugs diminish the *197military effectiveness of servicemembers who are using drugs. When such persons are entrusted with important responsibilities, sometimes involving access to complex equipment or to lethal weapons, it may endanger other persons, their property, or government property. In Bickel this Court cited Article 112a of the Uniform Code of Military Justice, 10 USC § 912a, through which Congress specifically forbade drug use in the military out of concern for the dangers resulting from use of controlled substances by servicemembers. See 30 MJ at 283. Finally, in United States v. Jackson, 48 MJ 292, 295 (1998), the majority stated: “Physical and mental fitness are the quintessential requirements of military readiness. The use of illegal drugs significantly diminishes the user’s physical and mental capabilities.... ”

Because drugs pose a particular threat to the unique duties of military personnel and because military justice necessarily must create a more disciplined environment than exists in civilian society, it is imperative that drug offenses in the military be punished severely. The goal in adjudicating this case is to punish appellee for what she did and to deter her, and others, from selling drugs in the future. As far as appellee was concerned, she was involved in a conspiracy. She was prepared to follow through with the drug sale she planned with her “eoconspirator.” Such behavior on the part of an Army private, with the attendant danger associated with group crime, should be punished for what appellee believed her act to be: a conspiracy. To do so is to act in the best interest of military justice and to aim as strenuously as possible to combat the serious threat of drugs in the military.17

A final policy motive for appellee’s conspiracy conviction is the consequences the majority’s decision could have for classified cases. In classified cases the identity of the coconspirator, as either an undercover agent or a willing coconspirator, may not be known. The majority’s strict bilateral view of the requisite “agreement” would prevent conspiracy convictions in such cases. Under the majority view, there must be at least two parties who sincerely intend to follow through with the substantive offense in order *198for an agreement to be present. The inability to identify the true intentions of one of the parties would automatically negate the “agreement” element of a conspiracy. This could, in effect, provide an unintended escape hatch for a defendant from the crime of conspiracy. The participants in actual conspiracy situations might not be convicted as conspirators under the bilateral approach. This is particularly disadvantageous in drug-related military cases, such as this one, where a chief goal of the court should be to combat the deleterious effect of drugs in the military.18

The majority states:

For this Court retroactively to introduce an entirely new [unilateral] 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” conditions advanced in Chief Judge Crawford’s dissent.

54 MJ at 190. This is an inaccurate interpretation of the public-policy rationales I offer above.

In McCulloch v. Maryland, 17 U.S. (4 Wheat 159, 200) 316, 407, 4 L.Ed. 579 (1819), the eminent Chief Justice Marshall opined:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

In Hurtado v. California, 110 U.S. 516, 530, 4 S.Ct. 111, 28 L.Ed. 232 (1884), the Court reasoned:

It is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.

In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 596, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), Justice Frankfurter (concurring) summarized the idea that the Constitution is a “living document”:

The pole-star for constitutional adjudications is John Marshall’s greatest judicial utterance that “it is a constitution we are expounding.” McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579. That requires both a spacious view in applying an instrument of government “made for an undefined and expanding future,” Hurtado v. California, 110 U.S. 516, 530, 4 S.Ct. 111, and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today.

Several military cases have embraced the same principle. In United States v. Trottier, 9 MJ 337 (1980), this Court dealt with the question whether use of drugs by military persons had special military significance. In responding to the Government’s request for *199this Court to overrule its prior decisions on the issue, the majority wrote:

The law is not an end in itself; more properly it is a means to accomplish the ends of an ordered society. When change occurs in the conditions of that society upon which the law is based, the law, in turn, must respond thereto.

Id. at 344. Referring to the Constitution, the Court continued:

It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time.

Id. (quoting Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 442, 54 S.Ct. 231, 78 L.Ed. 413 (1934)). It reasoned that “while the jurisdictional test of service connection may remain firm, its application must vary to take account of changing conditions in the military society.” 9 MJ at 345.

In United States v. Minnifield, 9 USCMA 373, 26 CMR 153 (1958), this Court considered whether an accused’s handwriting exemplar was a “statement” within the meaning of Article 31, Uniform Code of Military Justice, 10 USC § 831. In drawing its conclusion this Court referred to the Uniform Code of Military Justice as a “living document” and concluded that “it is a liberal and enlightened, rather than a narrow and grudging, application of Article 31 that is best calculated to insure to the military the preservation of our traditional concepts of justice and fair play.” Id. at 379, 26 CMR at 159.

The general idea behind these excerpts is that the times do change, and the judicial interpretation of legal documents must shift accordingly. The military cannot tolerate drug use. Its role in society is too precious to punish drug use any less severely than my dissent advocates. What the majority labels as a retroactive introduction of “an entirely new theoiy of conspiracy that was not contemporaneously in the minds of the legislators or discussed by them” is not “improper judicial lawmaking,” but rather an attempt to account for “changing conditions in military society.” This Court must face the corruption head-on, interpret the Code in a “liberal and enlightened” manner, and apply rigorous standards of punishment that will most effectively eradicate the problem of drug use in the military.

As I argue above, there is case law that supports the unilateral theoiy. But even if this point is not conceded, public policy does justify implementation of a unilateral approach to conspiracy. The role of the military in society is too important to allow the judiciary to apply a rigid interpretation of the law that does not account for evolving circumstances and needs.

The majority notes that my approach exceeds the scope of its rationale because the unilateral theory would have to be applied not only to drug conspiracies but to all conspiracies. I need only remind the majority that a substantial proportion of military eases concern drug use.

The majority contends that this Court is not justified in adopting the unilateral theory because, although the civilian community is concerned with drug abuse, its drug conspiracy statute, 21 USC § 846,19 does not incorporate the unilateral theory. However, this is a case of statutory interpretation.

Just as the majority misinterprets Article 81, UCMJ, 10 USC § 881, the majority further infers that, pursuant to Article 36 of the Code, 10 USC § 836, military justice should follow the “principles of law” as to substantive crimes generally recognized in the civilian federal district courts. 54 MJ at 191. Article 36 provides that the President may prescribe rules of “[pjretrial, trial, and post-trial procedures, including modes of proof ... and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts____” See, e.g., United States v. Scheffer, 523 U.S. 303, 307 n. 2, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). *200However, this is not a case involving “modes of proof’ or “rules of evidence,” but rather one of statutory interpretation concerning what constitutes a substantive crime. I reject the majority’s inference. Cf. United States v. McElhaney, 54 MJ 120 (2000); United States v. Dowty, 48 MJ 102 (1998).

In this instance, we should not be limited by the perspective of the civilian statute which is different from Article 81. As I argued above, military society is distinctly different from civilian society, and military justice must be administered accordingly. Congress has recognized this difference by establishing a separate system of justice for the military that includes judicial oversight by this civilian Court.

Finally, the majority believes that the statute at bar, Article 81, is unambiguous in its adoption of the bilateral approach. I disagree. The federal statute, 18 USC § 371, provides:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Article 81, substantively unchanged since 1950, provides:

Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

Article 81 is distinguished by its provision that a person “who conspires with any other person to commit an offense” (emphasis added) provided there is an overt act “to effect the object of the conspiracy” constitutes conspiracy. As to whether there is an agreement, Article 81 is ambiguous. It does not say whether we determine the existence of an agreement based on the defendant’s state of mind or the state of mind of the defendant’s co-conspirators. Because the statute is ambiguous, we must consider the purpose behind the statute. Certainly one of the purposes is to prevent conspiracies. When there are multiple parties to a crime, the lowest common denominator will be the lowest ethical conduct. When there is more than one party to the crime, others become emboldened. Thus, we should examine the defendant’s state of mind as to his expectation of support.

As I indicated earlier, several non-military cases prior to the adoption of the Code favored a unilateral approach to conspiracy. 54 MJ at 194. Historically, the unilateral theory of conspiracy was in existence and had been recognized in some jurisdictions prior to the drafting and enactment of the Code. This historic fact, coupled with the obvious difference between the language of the federal civilian statute, 18 USC § 371, and Article 81 of the Code, cast doubt on the majority’s assertion that the unilateral theory is an “entirely new theory of conspiracy,” 54 MJ at 190. For all of the above-mentioned reasons, I believe that there is a compelling argument to adopt and apply the unilateral theory of conspiracy.

IV. The Alternative: Attempted Conspiracy

The most compelling objection to adoption of a unilateral approach to the offense of conspiracy on the part of military justice is the argument that existence of attempted conspiracy precludes the need for a conspiracy analysis in this case. In United States v. Anzalone, 43 MJ 322, 323 (1995), this Court held that the Uniform Code of Military Justice “does not prohibit a charge of attempted conspiracy where there is a purported agreement between a servicemember and an undercover government agent”. See id. at 327 (Sullivan and Wiss, JJ., each concurring in the result). Furthermore, in United States v. Lawrence, 47 MJ 75 (1997), Judge Sullivan wrote in his concurring opinion that a plain reading of the Uniform Code of Military Justice (§§ 880-881) reveals that there is a crime of attempted conspiracy in the federal criminal code that governs the military. An agreement between a defendant and a law enforcement agent is attempted conspiracy. See 47 MJ at 75.

*201If the court-martial can convict the defendant of attempted conspiracy, why do we need to even evaluate the existence of an agreement? A conviction of attempted conspiracy would eliminate the debate surrounding the bilateral versus unilateral approach to conspiracy. However, the above discussion concerning the purpose of military justice and the particular threat drugs pose to the military suggests that conspiracy would be a more appropriate conviction. The dangers inherent in group criminal activity, specifically to group criminal activity involving drugs, have the severest of consequences for the military and its vital role in society. To make the point that conspiracy in the military cannot be tolerated, a conspiracy conviction should be permitted even when the sole eoconspirator is an undercover agent.

Accordingly, I would answer the certified question in the affirmative and would reverse the decision below setting aside appellee’s conviction for conspiracy.