Overcharging conspiracy

It is routine for military prosecutors to overcharge in courts-martial. They feel the more they can pile on the worse it makes the accused look. So that’s why you might see a charge of murder along with a charge of spitting on the side-walk.

One of the areas of frequent abuse is the use of inchoate crimes – primarily here conspiracy. The Army Court of Criminal Appeals has just issued an opinion in a case I defended at trial a couple of years ago. The case was tried in 2012, and the first stage of appeal was decided in February 2015. The next stage is CAAF.

In United States v. Willis, we had objected at trial to a conviction on multiple conspiracies, but the trial judge denied our motion. The prosecution had it’s way in overcharging on this issue. But that didn’t pass muster with the appeals court. In ruling for the defense the court repeated basic principles.

Whether a single conspiracy or multiple conspiracies existed in a given circumstance is a question of fact determined by reference to the totality of the circumstances. See United States v. Fields, 72 F.3d 1200, 1210 (5th Cir. 1996); 16 AM. JUR. 2D Conspiracy § 11 (2002). As the United States Supreme Court noted long ago, “the character and effect of a conspiracy [are] not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.” United States v. Patten, 226 U.S. 525, 544 (1913).

58 M.J. 824, 826-27 (Army Ct. Crim. App. 2003) (footnote omitted); see also Braverman, 317 U.S. at 53 (1942) (“The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one”); Pereira, 53 M.J. at 184 (“A single agreement to commit multiple offenses ordinarily constitutes a single conspiracy.”). The factors used to determine the number of conspiracies include: “(1) the objectives and (2) nature of the scheme in each alleged conspiracy; (3) the nature of the charge and (4) the overt acts alleged in each; (5) the time and (6) location of each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8) the degree of interdependence between the alleged conspiracies.” Finlayson, 58 M.J. at 827.