United States v. Private (E1) RYAN T. MCGEE ( 2015 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private (E1) RYAN T. MCGEE
United States Army, Appellant
ARMY 20130824
Headquarters, 7th Infantry Division
Jeffery D. Lippert, Military Judge
Lieutenant Colonel Michael S. Devine, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jason J. Elmore, JA;
Major Yolanda McCray Jones, JA (on brief).
For Appellee: Major A. G. Courie, III, JA; Major Steven J. Collins, JA; Lieutenant
Colonel Gregory A. Marchand, JA (on brief).
15 September 2015
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SUMMARY DISPOSITION
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CAMPANELLA, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy, one specification of
absence without leave, four specifications of wrongful disposition of military
property, three specifications of larceny of military property, and one specification
of housebreaking in violation of Articles 81, 86, 108, 121, and 130, Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 886, 908, 921 and 930 (2012) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge and five
months confinement. The convening authority approved only so much of the
sentence as provided for four months confinement and a bad-conduct discharge. He
also credited appellant with seven days pretrial confinement credit.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, one of which merits discussion and relief.
MCGEE —ARMY 20130824
BACKGROUND
Between 1 April 2013 and 21 April 2013, appellant and Specialist (SPC)
J.R.H., entered into an agreement to unlawfully enter into a unit supply room to steal
military property and then sell it.
The government charged appellant with two specifications of conspiracy
under Article 81, UCMJ – one for the agreement to unlawfully enter the unit supply
room and steal military property, and a second specification for the agreement to sell
the military property.
With regard to the conspiracy to unlawfully enter the supply room and steal
military property, the pertinent exchange during the providence inquiry was as
follows:
ACC: [SPC J.R.H.] actually brought it up to me and he said,
“Hey, I’ve got a quick way to make some easy cash.” I said,
“What’s going on?” He said. “Well, I’ve got a key. We’re
going to get into one of the supply rooms and see what we
can get our hands on basically.”
....
MJ: . . . when you went into that supply room, into that
building, you intended to steal something?
ACC: Yes, sir.
The judge then turned to the conspiracy to sell military property:
MJ: “When you went into the building there at A Company, 1st
battalion, did you know what you were going -- that you were
going to -- you knew you were going to go in and steal some
stuff, correct?
ACC: Yes, sir.
MJ: What was your -- what -- did you have an idea at the time
you went in there of what you were going to do with that stuff?
ACC: I -- I did, sir. We planned on making some sort of profit off
of it, sir.
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MCGEE —ARMY 20130824
MJ: So you meant to profit. You didn’t know exactly how, but there
was going to be something. You either were going to sell it or trade it
or do something with it, correct?
ACC: Yes, sir.
....
MJ: Would there have been anything in there that you would have
wanted to keep for yourself? Was that the idea of going in?
ACC: No, sir.
MJ: The idea was always to sell something?
ACC: Yes, sir.
MJ: And you would -- did you -- you said make -- when he proposed to
you, he said, in fact, “Make some easy cash,” correct?
ACC: Yes, sir.
MJ: So he -- so when you walked in there, you had the idea that there
was going to be some sort of sale happen, correct?
ACC: Yes, sir.
MJ: All right. Because they don’t keep cash inside the supply room,
correct?
ACC: I don’t believe they do, sir.
MJ: So you weren’t intending to steal money; you were intending to
steal something and then sell it, right?
ACC: Yes, sir.
The military judge found appellant guilty, inter alia, of both specifications of
conspiracy.
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MCGEE —ARMY 20130824
LAW AND DISCUSSION
A conspiracy exists when one “enters into an agreement with” another and
“performs an overt act for the purpose of bringing about the object of the
conspiracy.” Manual for Courts-Martial, United States (2008 ed.), Part IV, ¶ 5.b.
As we noted in United States v. Finlayson, 58 M.J. 824, 826-27 (Army Ct. Crim.
App. 2003):
“[C]onspiracy is a partnership in crime.” Pinkerton v. United
States, 328 U.S. 640, 644 (1946). The essence of a conspiracy is
in the “agreement or confederation to commit a crime, and that is
what is punishable as a conspiracy, if any overt act is taken in
pursuit of it.” United States v. Bayer, 331 U.S. 532, 542 (1947);
see Braverman v. United States, 317 U.S. 49, 53 (1942). As such,
it is ordinarily the agreement that forms the unit of prosecution for
conspiracy, “even if it contemplates the commission of several
offenses.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law
683 (3rd ed. 1982) (citing Braverman, 317 U.S. at 53); see United
States v. Pereira, 53 M.J. 183, 184 (C.A.A.F. 2000) (finding
single conspiracy to commit murder, robbery, and kidnapping); cf.
United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221
& n.3 (1952) (introducing concept of “unit of prosecution”)
....
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 A M . J UR . 2 D 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).
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.” Id. at 827.
After weighing these factors, we conclude appellant and his co-conspirator,
engaged in a single conspiracy to commit two crimes – namely, to unlawfully enter
the supply company room to steal government property, and to sell it for “easy
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MCGEE —ARMY 20130824
cash.” While the two charged conspiracies have different overt acts associated with
them, the objective of the conspiracy is the same – to steal government property and
sell it to make money. The two underlying charged conspiracies arose from the
same conversation, between the same two parties, at the same place and time, for the
same purposes – with one meeting of the minds. Appellant and his co-conspirator’s
acts were interdependent. We, therefore, conclude appellant and his co-conspirator
had a single conspiratorial criminal agreement.
CONCLUSION
After consideration of the entire record of trial, Specifications 1 and 2 of
Charge I are consolidated into a single specification, denominated The Specification
of Charge I, to read as follows:
In that [appellant], U.S. Army, did, at or near Joint Base Lewis-
McChord, between on or about 1 April 2013 and 21 April 2013,
conspire with [SPC] J.R.H. to commit offenses under the UCMJ,
to wit: unlawfully enter the supply room of Alpha Company, 1st
Battalion, 17th Infantry Regiment, the property of the U.S.
Army, with the intent to commit a criminal offense, to wit: steal
and sell military property of a value of more than $500.00, and
in order to effect the objects of the conspiracy the said
[appellant] and [SPC] J.R.H. did unlawfully enter Building
11351, Alpha Company, 1st Battalion, 17th Infantry Regiment
and sell military property.
The finding of guilty of The Specification of Charge I, as so amended, is
AFFIRMED. The finding of guilty of Specification 2 of Charge I is set aside and
DISMISSED. The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013) we AFFIRM the approved sentence. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings set aside
and dismissed by this decision, are ordered restored. See UCMJ arts. 58b(c), and
75(a).
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MCGEE —ARMY 20130824
Senior Judge TOZZI and Judge CELTNIEKS concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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