Q. If a service member knows some friends are stealing goods but does not report them, can he be charged with conspiracy?
A. Conspiracy, a violation of Article 81 of the Uniform Code of Military Justice, occurs when a service member enters “into an agreement with one or more persons to commit an offense.” At least one of those co-conspirators must perform “an overt act for the purpose of bringing about the object of the conspiracy,” according to the Manual for Courts Martial.
When others commit an offense, in order for silence or inaction to rise to the level of conspiracy, it must be shown that the “minds of the parties arrive[d] at a common understanding to accomplish the object of the conspiracy.” Silence, by its nature, does not involve what the manual refers to as “formal words,” but it can still be used to forge an agreement in a conspiracy.
For example, the U.S. Navy-Marine Corps Court of Criminal Appeals case U.S. v. Stetson O. Holmes (2012) involved a Navy electronics electrical seaman who was convicted of, among other things, conspiracy to commit aggravated sexual assault. This stemmed from an incident in which five sailors forced themselves on a intoxicated female sailor in a motel room. This occurred after Holmes had sexual contact with her there — an act that led to a separate charge of aggravated sexual assault, of which he was convicted.
Before the group moved from a diner to the motel, one co-conspirator said to the other men, including Holmes, “I know she [the victim] wants me and Holmes, you all could jump in too, we can all try tonight.” This same co-conspirator told the other male sailors after the assaults: “This night never happened.” The court affirmed the conspiracy charge, noting that “the appellant’s direct involvement, combined with his failure to stop or report the sexual assaults, support a reasonable inference that the conspirators had reached a common understanding to commit sexual acts upon … [the victim] while she was substantially incapacitated.”
In contrast, the court refused to uphold the conspiracy conviction of the appellant in another case, U.S. v. Esdrace Dominique (2011). Dominique, a Marine private, had been convicted of, among other things, conspiracy to commit larceny. While working as a postal clerk in Afghanistan, he became friends with two other postal clerks, whom he later learned were stealing items from the mail. The conspiracy charge stemmed from his failure to report these crimes.
The court set aside the findings of guilt on the conspiracy charge, saying the “record reflects little more than that the appellant was aware of the ongoing larcenies and allowed them to occur out of a sense of loyalty.” Further, the government failed to provide “evidence of any shared criminal purpose between the appellant and the postal clerks engaged in larceny.”
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.
