United States v. Church
1989 WL 130988, 29 M.J. 679 (1989)
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Rule of Law:
An individual's actions of hiring an agent to commit murder, providing detailed plans, and paying consideration constitute a 'substantial step' toward the commission of the crime, satisfying the overt act requirement for an attempt, even if the hired agent is an undercover officer with no intention of completing the offense.
Facts:
- The appellant and his wife experienced marital difficulties, leading to a separation in 1987, after which a court awarded custody of their son to his wife.
- Between late 1987 and early 1988, the appellant, desiring to regain custody, asked several co-workers if they knew anyone he could hire to kill his wife.
- On April 7, 1988, the appellant asked a co-worker, Sergeant Skyberg, if he knew someone who could kill his wife, explaining it was the only way he could get custody of his son and that he wanted it done before he left the service to secure an alibi.
- The appellant provided Skyberg with details about his wife's home in Michigan, how someone could gain access by posing as a prospective buyer, and stated he could pay 'a few grand' for the job.
- Skyberg and another co-worker, Airman Meyer, reported the appellant's plan to the Office of Special Investigations (OSI).
- Meyer, assisting the OSI, introduced the appellant to 'Nick' (undercover Special Agent Nicholas J. Karnezis), who posed as a hitman.
- On April 22, 1988, the appellant met Karnezis at a hotel, confirmed he wanted his wife killed, and provided him with photos, detailed diagrams of the house, maps, and a local phone book.
- During this meeting, the appellant gave Karnezis $1,100, specified he wanted his wife shot in the head and another private area, and advised Karnezis to also kill his wife's grandfather if he became a witness.
Procedural Posture:
- The appellant was tried before a general court-martial.
- At trial, defense counsel moved for a finding of not guilty on the attempted murder charge, arguing the evidence only demonstrated mere preparation.
- The military judge denied the defense's motion.
- The court-martial members found the appellant guilty of attempted premeditated murder.
- The appellant was sentenced to a dishonorable discharge, ten years confinement, forfeiture of all pay and allowances, and reduction in rank.
- The appellant appealed his conviction and sentence to the United States Air Force Court of Military Review.
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Issue:
Do an individual's actions of hiring an undercover agent to commit murder, providing the agent with detailed plans and photos, and making a down payment constitute an overt act beyond mere preparation sufficient to support a conviction for attempted murder?
Opinions:
Majority - Blommers, Judge
Yes, the appellant's actions constitute an overt act beyond mere preparation sufficient for an attempted murder conviction. The court adopts the 'substantial step' test, which requires conduct strongly corroborative of the firmness of the defendant's criminal intent. The appellant's conduct—hiring whom he believed to be a hitman, providing detailed plans, specifying the method of murder, and making a significant down payment—went far beyond mere preparation or solicitation. The court rejected the argument that the crime was impossible because the hitman was an agent, stating that the focus is on the accused's intent and actions, not the agent's. The appellant did everything he could to effect his wife's murder short of committing the act himself, thus taking a substantial step toward its commission.
Analysis:
This decision solidifies the adoption of the Model Penal Code's 'substantial step' test for attempt liability in military jurisprudence, particularly for contract-for-hire crimes. It moves away from stricter, older tests like 'dangerous proximity,' making it easier to prosecute individuals who have taken concrete actions to arrange a crime, even when the crime's completion is factually impossible due to a government sting operation. The ruling clarifies that the legal analysis focuses on the defendant's manifested intent and corroborating actions, not the secret intentions of the hired agent. This precedent provides strong support for law enforcement's use of undercover agents to prevent serious crimes by intervening after the defendant has taken a substantial step but before the harm occurs.
