ANSWER: NO. IT IS IMPORTANT TO UNDERSTAND THAT WHEN TWO INDIVIDUALS
ENTER INTO AN AGREEMENT TO COMMIT A CRIME RECOGNIZED BY THE UCMJ, BOTH
INDIVIDUALS MUST HAVE CRIMINAL INTENT BEFORE A CONSPIRACY EXISTS. THIS
ISSUE WILL ARISE WHEN AN UNDERCOVER LAW ENFORCEMENT OFFICER APPROACHES
A SUSPECTED DRUG DEALER AND PROPOSES TO PURCHASE A CONTROLLED
SUBSTANCE. IN THIS SITUATION, NO CONSPIRACY WILL EXIST, AS THE LAW
ENFORCEMENT OFFICER IS ACTING IN THE PERFORMANCE OF HIS DUTIES AND DOES
NOT POSSESS CRIMINAL INTENT. UNITED STATES V. WEST, 13 MJ 800, 802 (ACMR 1982).
2. Overt Act. Besides the agreement, an overt act done by one or more of the conspirators
at the time of or following the agreement is necessary to complete the offense. U.S. v. Johnson, 25 MJ
8789 (NMCMR 1988). Unlike an attempt, the overt act necessary to complete a conspiracy does not
have to be beyond mere preparation.
QUESTION: IF THREE INDIVIDUALS PLAN TO ROB THE BANK ON POST AND ONE OF
THEM GOES TO A PAWN SHOP AND BUYS A GUN TO USE, AND ANOTHER GOES TO A
DEPARTMENT STORE AND BUYS SOME HALLOWEEN MASKS TO WEAR DURING THE
OFFENSE, HAS A CONSPIRACY OCCURRED?
ANSWER: YES. EITHER THE PURCHASE OF THE GUN OR THE PURCHASE OF THE MASKS
WOULD BE SUFFICIENT OVERT ACTS FOR A CONSPIRACY. EVEN THOUGH THE
PURCHASE OF THESE ITEMS IS "MERE PREPARATION" FOR THE ROBBERY, "MERE
PREPARATION" IS ENOUGH OF AN OVERT ACT TO CONSTITUTE A CONSPIRACY.
QUESTION: HAS AN ATTEMPTED ROBBERY OCCURRED?
ANSWER: NO. MERE PREPARATION IS ENOUGH FOR A CONSPIRACY.
IT IS NOT
SUFFICIENT FOR AN ATTEMPTED ROBBERY.
The overt act itself does not have to be illegal, but it does have to be a manifestation that the
agreement is being executed. Any overt act is enough, no matter how preliminary or preparatory in
nature as long as it demonstrates that the agreement is being set into motion. An example would be
purchasing a crowbar with which to break and enter a store. Such an act would be a sufficient overt act
to sustain a conviction of conspiracy to commit larceny. United States v. Choat, 21 CMR 313 (CMA
1956).
3. Criminal Liability.
QUESTION: TEN INDIVIDUALS PLAN TO COMMIT A CRIME WHILE POSING AS MILITARY
POLICE. THAT NIGHT WHILE 9 OF THE INDIVIDUALS ARE SLEEPING, ONE GOES OUT TO
A STORAGE ROOM AND STEALS 10 MP ARMBANDS TO BE USED DURING THE CRIME. IS
THE OFFENSE OF CONSPIRACY COMPLETE?
ANSWER: YES. BY SECURING THESE ARMBANDS WHICH IS AN OVERT ACT IN
FURTHERANCE OF THE AGREEMENT, THE OFFENSE OF CONSPIRACY IS COMPLETE.
QUESTION: ARE THE NINE SLEEPING INDIVIDUALS CRIMINALLY LIABLE FOR
CONSPIRACY?
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