United States v. Valigura
54 M.J. 187 (2000)
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Rule of Law:
Under Article 81 of the Uniform Code of Military Justice, a conspiracy conviction requires a genuine agreement between two or more persons who share a criminal purpose. A person cannot be guilty of conspiracy if their sole alleged co-conspirator is a government agent who only feigns agreement and lacks the requisite criminal intent.
Facts:
- Private Valigura was a service member in the United States Army.
- An undercover military police investigator approached Valigura to arrange a purchase of marijuana.
- Valigura agreed to sell marijuana to the investigator.
- Pursuant to their agreement, Valigura delivered the marijuana to the investigator.
- Upon delivery, the investigator gave Valigura a payment for the drug.
- The investigator, acting in an official law enforcement capacity, never possessed any criminal intent and only feigned agreement to participate in the drug transaction.
- The only individuals involved in the purported agreement were Valigura and the undercover investigator.
Procedural Posture:
- Private Valigura was tried by a general court-martial consisting of a military judge alone.
- The court-martial convicted Valigura of conspiracy to distribute marijuana, among other offenses.
- Valigura appealed her conspiracy conviction to the United States Army Court of Criminal Appeals, an intermediate appellate court.
- The Army Court of Criminal Appeals set aside the conspiracy conviction, holding that no conspiracy existed, but it affirmed a conviction for the lesser-included offense of attempted conspiracy.
- The Judge Advocate General of the Army certified the legal question regarding the conspiracy conviction to the United States Court of Appeals for the Armed Forces for review.
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Issue:
Does a service member's agreement with an undercover government agent, who secretly does not intend to complete the criminal act, constitute a criminal conspiracy under Article 81 of the Uniform Code of Military Justice?
Opinions:
Majority - Senior Judge Everett
No. A criminal conspiracy under Article 81 requires a genuine 'meeting of the minds' between at least two people who both possess a criminal purpose. The court adheres to the traditional 'bilateral' theory of conspiracy, which is the well-established standard in federal courts. The term 'conspires' in Article 81 has consistently been interpreted to require a common criminal purpose by at least two persons. If Congress had intended to adopt the Model Penal Code's 'unilateral' approach, which focuses only on the defendant's intent, it would have used different statutory language. Policy arguments for creating a stricter rule to combat drug use in the military are matters for Congress, not the courts. Finally, rejecting the unilateral theory does not create a legal loophole, as defendants in this situation can still be prosecuted for attempted conspiracy.
Dissenting - Chief Judge Crawford
Yes. A criminal conspiracy should exist when the defendant believes they have entered into an agreement to commit a crime, regardless of the co-conspirator's secret intent. The court should adopt the 'unilateral' theory of conspiracy, focusing on the defendant's individual criminal intent and dangerousness. Public policy, especially the unique need to ensure discipline and combat the serious threat of drugs in the military, demands a stricter approach. The law should be interpreted as a 'living document' that adapts to new challenges, and principles of contract law, which look to outward manifestations of agreement rather than secret intentions, support finding a conspiracy in this case.
Concurring - Judge Sullivan
No. A conspiracy requires at least two genuine participants. This 'bilateral' theory is consistent with the holdings of ten federal circuits. Furthermore, the availability of an 'attempted conspiracy' charge under the Uniform Code of Military Justice ensures that no loophole exists for prosecuting individuals in the appellee's situation, making it unnecessary to expand the definition of conspiracy.
Concurring-in-part-and-dissenting-in-part - Judge Gierke
No. There was no conspiracy because a genuine agreement between two criminally-minded parties did not exist. The majority correctly applies the bilateral theory. However, the author dissents from the majority's holding and the lower court's finding that the appellee was guilty of attempted conspiracy, which he does not believe is a valid offense. Because the agent solicited the appellee, a conviction for solicitation is also not possible.
Analysis:
This decision solidifies the traditional bilateral theory of conspiracy as the governing standard in military justice, aligning it with the dominant view in federal civilian courts. The court expressly rejected a policy-driven shift toward the Model Penal Code's unilateral approach, emphasizing judicial restraint and deference to Congress on matters of substantive criminal law. The ruling clarifies that while a defendant in this scenario cannot be convicted of conspiracy, they remain culpable for attempted conspiracy, thus maintaining a path for prosecution without altering the fundamental definition of the crime.
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