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been performed to effect the object of the agreement.16

From this article it can be seen that the military crime of conspiracy is a particular application of the general federal crime of conspiracy. The important difference between the two statutes is that military law requires that the intention of the combination be to commit an offense under the Code. The requirement that at least one of the co-conspirators be subject to the Code is purely a jurisdictional one, for no members of a conspiracy among persons not subject to the Code would be amenable to prosecution by court-martial. In all other matters, however, the Court of Military Appeals has generally followed the rules of the federal courts.

What remedy exists when persons subject to the Code combine together and start in motion an unlawful or criminal plan which does not involve a particular offense under the Code, but which violates federal law? Under these circumstances, the offenders are subject to prosecution under the general article" as the authors of crimes under Title 18 of the United States Code, the penalty for which is not capital. As stated above, some specific federal statutes govern conspiracies to commit certain acts and render any such combination a criminal one without the necessity for an overt act. The Code, however, specifically includes an overt act in furtherance of the object of the conspiracy within the essential elements of the military crime of conspiracy. The seemingly anomalous prospect is thus presented of conspiracies tried by courts-martial requiring different elements of proof depending upon the objects of the conspiracy.

An analogous situation would be presented if the elements of larceny differed depending upon the object of the theft. The explanation, however, is fairly simple.

In trying offenses not capital under Title 18 of the United States Code a court-martial is acting as a federal court rather than as a purely military court. Under these circumstances, the requirements of military law may be superseded by the federal statutes involved. A discussion of the situation can be found in the case of the United States v. French.18 The accused was convicted of offering to sell defense information to foreign powers. The basis for the conviction of the accused lay in the Atomic Energy Act of 1954,19 although he was convicted of service dis

16. Art. 81, UCMJ.

17. Art. 134(3), UCMJ. See: United States v. French, 10 USCMA 171, 27 CMR 245 (1959).

18. United States v. French, supra note 17.

19. 42 USC § 2274(b).

crediting conduct under Article 134 of the Uniform Code of Military Justice.

The Court rejected the contention of the accused that the failure of the government to receive the consent of the Attorney General of the United States prior to initiating prosecution for these acts, as required by the statute, 20 resulted in a failure of jurisdiction. The Court stated that, "while the proof furnished by the Government showed a violation of the Atomic Energy Act, it also established a breach of Article 134. The specification did not specifically charge a violation of a particular act, and the prosecution did not proceed under civilian law. From beginning to end, this prosecution has been bottomed on a violation of military law, and the civilian statute was used only to protect the accused on the maximum sentence. Accordingly, we conclude that the court-martial had jurisdiction to try the offense alleged in the two specifications without regard to the consent of the Attorney General." 21

Judge Ferguson, in his concurring opinion, states that had a violation of the Atomic Energy Act been alleged, "the provisions of 42 USC § 2271 (c) would need to be complied with even though trial is in the military courts." 22

From the foregoing it would appear that accused before courts-martial could be convicted of conspiracy without proof of an overt act only when the violation of a particular federal statute which required no overt act was alleged and proven. All other conspiracies would be subject to the proof of an overt act required by Article 81. Persons violating specific federal statutes would be punishable as soon as an agreement had been reached among them and an alliance thus formed, as at common law.

An "overt act", the commission of which by any member of a combination planning a substantive offense under the Code will make all the members of the alliance liable to the penalties for conspiracy, may consist of any action which is intended to put into action the plans of the group. The act itself need not be criminal, unlawful or even immoral. Examples of acts which were sufficient to fulfill the requirements for an overt act are the mailing of a letter, a telephone call, aiding false voter registrations, distributing pamphlets urging disobedience to particular laws, and picking a lock.23 All that is necessary is that the act indicate that the com

20. 42 USC § 2271(c).

21. United States v. French, supra note 17 at 183, 27 CMR at 257. 22. United States v. French, supra note 17 at 186, 27 CMR at 260. 23. James Snedeker, Military Justice Under the Uniform Code, 549 (1953).

bination has gone from the preparatory to the active stage of its plotting.

Of particular importance is the general federal and military requirement that an overt act is needed to convert an agreement to commit an offense, at some time in the future, into a present crime.24 A person involved in a conspiracy who withdraws from it prior to the accomplishment of an act initiating the plan is not responsible for the activities of the combination after he has severed his connection with it. At common law, however, the crime is complete once the combination has been formed; a subsequent withdrawal from the partnership will not affect the criminal liability of a member of the conspiracy.25

Such a withdrawal by a member of a group may not be tacit; there must be an affirmative showing that the individual abandoned his participation in the objects of the group and communicated his intention to the other members, or at least to the recognized leader of the group if one exists.26 The reason for this requirement for affirmative action on behalf of one attempting to separate himself from a criminal partnership is not a desire on the part of the law to prevent him from changing his mind. The requirement is rather based on a hope that the withdrawal of one member may cause the other members to abandon their intentions, and the evidentiary necessity that some objective evidence be present to buttress the contention of a defendant that he had withdrawn from the gang. The latter fact is especially important since a conspiracy is presumed to continue until its termination is shown.27

Once a conspiracy has ceased to exist an important question arises as to when the statute of limitations will bar the prosecution of alleged conspirators. The general rule is that the statute of limitations will begin running from the commission of the last overt act by any one of the members of the group. Unless an express agreement to conceal the conspiracy exists, acts intended to conceal the crime, performed after the ends of the combination have been attained, are not overt acts which will start the period of the statute of limitations running anew. 28

In a military context the Court of Military Appeals held that an overt act performed by one co-conspirator without the knowledge of the ac

24. Cf. United States v. Bufalino, 285 F. 408 (2d Cir. 1960). 25. Burdick, supra note 1 at § 1000.

26. United States v. Miasel, 8 USCMA 374, 24 CMR 184 (1957). Withdrawal may be manifested by acts wholly inconsistent with the ends of the conspiracy, as well as by words.

27. United States v. Rhodes, 11 USCMA 735, 29 CMR 551 (1960). 28. Gruenwald v. United States, 353 U.S. 391 (1957).

cused, in furtherance of a conspiracy which he had joined during a previous enlistment, was sufficient to confer jurisdiction over the accused upon a court-martial.29

The situation presented in that case serves to illustrate one of the thorniest areas of the law of conspiracy. This area is the responsibility of each member of a gang for the acts and declarations of the other members of the alliance. In general, it can be stated that every member is individually responsible for every act or declaration of each of his co-conspirators which occurs during the existence of the conspiracy, subject to some exceptions.30 A person who may be unaware of the identity or existence of another member of the conspiracy is bound by his acts if they are in furtherance of the original goals of the combination, and are a probable consequence of the execution of the original plan although the particular acts were not originally envisioned by the originators of the plan.31 Acts performed by others prior to the adherence of another member are generally not chargeable against him unless he was aware of them when he joined the alliance.32 In a similar fashion, once a member of a combination has effectively disassociated himself from the group, either by words or by actions, he is free from his responsibility for the subsequent acts of his former partners, although he retains his liability for acts done during his membership.33

As in any partnership situation, a question of fact exists as to whether or not the actions of one member of the group are in furtherance of its aims and thus are changeable against all the other members. While a homicide committed in the course of an armed robbery would probably be chargeable against all members of the gang as a probable consequence of the original scheme, it is unlikely that a killing by one member of a conspiracy involved with tax frauds would be the responsibility of any other member. As Judge Learned Hand stated: "Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change.

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29. United States v. Rhodes, supra note 27. The accused had entered into a conspiracy to supply information to Russia while he was stationed at the U.S. Embassy in Moscow. After his return to the United States and reenlistment, a member of the group attempted to get in contact with him. This action was held to be a sufficient overt act to render the fact that his prior enlistment had terminated no bar to his prosecution by

court-martial.

30. 22 C.J.S. Criminal Law § 754. 31. 11 Am. Jur. Conspiracy $ 8.

32. 22 C.J.S. Criminal Law § 765.

33. United States v. Miasel, supra note 26; CMO 3-1945, p. 100. 34. United States v. Poeni, 100 F. 2d 401, 403 (2d Cir. 1938).

The responsibility for the acts of companions also exists for persons other than those formally accused of conspiracy. Although not charged with conspiracy, a defendant whose actions in concert with others in pursuance of a common plan are established is fully responsible for the deeds of his co-actors.35 The responsibility is total. As far as the law is concerned, the hand of the accused committed the act in question. The same liability extends to the declarations of co-actors which were made during the life of the conspiracy.

Once a conspiracy has terminated, either by the accomplishment of its object, by the abandonment of the object or by the arrest of the coconspirators, the declarations of one member of the group are not admissible against any other member, unless made in his presence without denial. A different rule, however, applies to the actions of former partners in conspiracy.

Acts occurring after the termination of the combination, which were not intended as a means of expression and which are relevant to indicate the existence of the conspiracy, may be received in evidence despite the prior termination of the group enterprise. 37 Evidence of attempts by others to conceal larcenies, for which the accused was on trial, was properly received against the accused in order to establish his prior participation in a combination to effectuate the larcenies. Since the conspiracy had terminated prior to the attempts at concealment, however, he was not liable for the substantive offenses committed by the others in the course of the attempts, nor were declarations made after the termination of the project by the former coconspirators admissible against him.38

Since the core of the crime of conspiracy consists of a combination against the public, a consideration of the relationships of the parties to the crime is vital to an understanding of the offense. At common law husband and wife could not be guilty of conspiracy with each other, but each could be guilty of conspiracy with another person.39 This disability no longer exists. A conspiracy between husband and wife is presently punishable in almost all jurisdictions in this country. In special circumstances an indi

35. United States v. Miasel, supra note 26; Robinson v. United States, 33 F. 2d 238 (9th Cir. 1929).

36. 11 Am. Jur. Conspiracy § 41.

37. Lutwak v. United States, 344 U.S. 604 (1953). Rapid dissolutions of marriages which had rendered alien spouses eligible to enter U.S. held admissible to show existence of conspiracy to evade immigration laws.

38. United States v. Salisbury, 14 USCMA 171, 33 CMR 383 (1963). In United States v. Taylor, 6 USCMA 289, 20 CMR 5 (1955), an express plan to conceal prior offenses was established by the evidence.

39. 11 Am. Jur. Conspiracy § 7.

vidual may be found guilty of conspiracy to commit a crime although he is incapable of committing the substantive crime.

Although a man cannot rape his wife, he may be guilty of a conspiracy to commit that offense if he joins with others who are capable of effecting that crime. If one member of the group is capable of commiting the substantive offense, all members of the combination may be convicted of the conspiracy.40 A guard who agrees to help a prisoner of war escape could be guilty of a conspiracy to effect an escape from confinement, despite the fact that the prisoner himself is guilty of no offense.

Where the concerted action of all the participants is necessary to commit the substantive offense, however, they cannot be guilty of conspiracy as well. Into this classification fall such crimes as dueling, adultery, fornication, bigamy and bribery when the active participants are the only persons involved in the combination.41 The crime may, of course, be the subject of a conspiracy between one of the participants and a third party.

That a person cannot conspire with himself is a basic fact. This seemingly impossible result would be produced if, after all members of a conspiracy were acquitted, the lone exception were convicted. Military law will not permit this result.42 When all of the alleged co-conspirators with an individual have been acquitted of the conspiracy, or discharged under circumstances amounting to an acquittal, a conviction of the remaining defendant cannot stand. The acquittals must be on the merits; "a mere termination of prosecution not amounting to an acquittal" 43 will not suffice.

The rule applies only when all persons with whom it is alleged the defendant conspired are accounted for. The fact that they are dead, immune from prosecution or unknown will not aid him. Whether the accused was tried before or after his compatriots is immaterial; the important fact is only that the acquittal of all except one member of an alleged conspiracy will

40. Snedeker, supra note 23 at 550. In this manner a woman may be guilty of a conspiracy to rape another woman.

41. Aycock and Wurfell, Military Law Under the Uniform Code of Military Justice, 276 (1955).

42. But see: United States v. Yarborough, 1 USCMA 678, 5 CMR 106 (1952); limited and distinguished, United States v. Nathan, 12 USCMA 398, 30 CMR 398 (1961).

43. United States v. Kidd, 13 USCMA 184 (1962). Although respectable authority exists for the proposition that a nolle prosequi as to one of two defendants will bar the conviction of the other (11 Am. Jur. Conspiracy § 26), the federal courts as well as the Court of Military Appeals require an acquittal on the merits. United States v. Fox, 130 F. 2d 56 (3d Cir. 1942). CMO 2-1947, 7.

result in the discharge of the remaining individual as well.

Conspiracy is an offense with which many persons are unfamiliar. For this reason the basic legal elements of the crime itself tend to be somewhat unclear to many, as do the evidentiary problems involving the acts and statements of coconspirators. From an examination of the military and federal cases in this area, which are in complete accord, the basic factors become quite clear. When a group of military personnel have joined together to commit an offense under the Code, in most instances they will commit the offense of conspiracy before the actual commission of their intended substantive crime.

The offense of conspiracy has its proper place in the inventory of legal weapons against crime. While it should not be ignored, neither should it be used as a catchall merely because it is felt that proof of another offense would be difficult. Nor should it be used in an effort to increase the number of charges against an accused. It is hoped that this discussion will help to dispel some of the clouds which have tended to surround the offense and that it will aid in the proper utilization of Article 81 of the Uniform Code of Military Justice.

SELF-DEFENSE (Continued from page 308) "reasonable man" standard enunciated by USCMA by inclusion of references to the concepts of "aggressor" and "vindictive" conduct would give the court a full framework within which to judge the accused's conduct.

CONCLUSION

In the line of cases leading to the rejection of the doctrine of retreat to the wall and the expression like degree of force, USCMA has been continually critical of the instructions furnished the court. In Acosta-Vargas,88 the Court criticized the practice of lifting portions of substantive law from the Manual and using them as instructions on modes of proof.39 In Smith,40 the Court called for a "meaningful submission" of the issues to the court-martial, and suggested that careful "tailoring" of pre-prepared general instructions was an appropriate means of accomplishing this end. In addition to the elements of the offenses, all issues, defenses, and lesser offenses raised reasonably by the evidence must be instructed upon in the particular fashion in which they arise in each case. "Shotgun" instructions, drawn either from the Manual or

38. Note 35, supra.

39. Id. at 392, 33 CMR at 392.

40. Note 24, supra.

instruction pamphlets must be meticulously edited and adjusted.

Whether or not a defense has been reasonably raised by the evidence can often be a vexing problem, indeed. As a broad general rule, it might be said that when there has been introduced some evidence, which, if believed, would amount to a defense, then it has been raised and must be the subject of instruction to the courtmartial. Further, a good working rule is: "When in doubt, instruct." There are cases where USCMA has found self-defense instructions deficient, but, since the defense was not reasonably raised, the accused was the recipient of a windfall.41 In another case involving selfdefense, United States v. Duckworth, there is cautionary language to the effect that instructing, correctly or incorrectly, on self-defense when it is not raised by the evidence could under some circumstances lead to prejudice to the accused. However, despite the Duckworth dicta, in cases where a close question is involved, it is the better practice to instruct. In general courts-martial, this is the responsibility of the law officer, an experienced military lawyer. special courts-martial, the president has the absolute and independent responsibility of deciding which issues have been raised and formulating appropriate instructions thereon. Both trial and defense counsel, who have an opportunity in advance of trial to anticipate the issues, should consider the preparation of proposed instructions an integral part of their preparation for trial. These proposals may be considered by the president, who, of course, must bear in mind that they have been submitted by partisan advocates.

In

41. U.S. v. Green, 13 USCMA 545, 33 CMR 77 (1963); U.S. v. Campbell, 13 USCMA 531, 33 CMR 63 (1963); U.S. v. Regalado, 13 USCMA 480, 33 CMR 12 (1963).

42. 13 USCMA 515, 33 CMR 47 (1963). See also U.S. v. Tucker, 14 USCMA 376, 34 CMR 156 (1964).

JAG JOURNAL REDUCTION

The JAG JOURNAL, along with other Navy Department publications, was recently screened by the Navy Publications and Printing Policy Committee with a view towards achieving additional economy in the publications field. As a result of this screening the Commit tee made the decision to reduce the number of issues of the JAG JOURNAL. Consequently, beginning after this issue the JAG JOURNAL will be published only five times per year. The Policy Committee did authorize a maximum of 32 pages per issue. Accordingly, an effort will be made to increase the number of pages per issue so that the total number of pages per year will not be substantially less than it has been previously.

SPCM ERRORS (Continued from page 303) under any circumstances in courts-martial proceedings.

It is, of course, preferable to completely avoid improper arguments. However, if improper argument is presented at trial it should immediately be brought to the attention of the president. In many instances an instruction to disregard is sufficient to cure the defect.56 However, if the improper matter is particularly inflammatory or otherwise prejudicial to the accused, a motion to disregard may not purge the error, in which instance the president has no alternative but to declare a mistrial.

This discussion on improper argument is far from all-inclusive. Many instances of improper

56. United States v. Seay, 13 USCMA 540, 33 CMR 72 (1963).

MEDAL AWARDED

Captain Jerry R. Siefert, U.S. Navy, was presented the Navy and Marine Corps Medal by Rear Admiral Wilfred A. Hearn, U.S. Navy, the Judge Advocate General of the Navy, during ceremonies in the Pentagon, Washington, D.C., on 4 June 1964.

The Navy and Marine Corps Medal is awarded to Naval personnel who distinguish themselves by heroism not involving actual combat with the enemy. For acts of lifesaving it is awarded for extreme and heroic daring at the risk of one's own life. Captain Siefert received the medal for heroism in saving a woman bather from drowning in treacherous waters at Barefoot Mailman Beach, Pompano Beach, Fla., on Christmas Day, 1962. Upon learning that four persons were experiencing difficulty in the heavy seas approximately one hundred yards offshore, Captain Siefert, who was engaged in attempting to salvage ancient relics from a sunken ship near the shore, immediately plunged into the turbulent waters and swam to the scene in order to render assistance. Despite the fierce undertow and crushing breakers, he managed to effect the rescue of one of the victims, a woman, after an exhaustive struggle. In the citation accompanying the medal, Secretary of the Navy Paul H. Nitze stated, "His prompt, courageous, and determined actions were in keeping with the highest traditions of the United States Naval Service."

Captain Siefert has just completed a tour of duty in the Office of the Judge Advocate General where he served as Director of the Civil Law Division. He will assume duties as Assistant District Legal Officer of the 11th Naval District with headquarters in San Diego, Calif.

argument have been completely omitted. However, the improprieties discussed are those most commonly occurring in special courts with lay counsel. If the discussed errors can be prevented, instances of improper argument will be reduced to a minimum.

CONCLUSION

There are, of course, innumerable possibilities for error in any court-martial proceeding. However, the three categories of error which have been discussed in this article have been singled out, not only because of their frequent appearance, but also primarily because of their particularly damaging effect. A thorough familiarity with these areas will substantially reduce the large number of rehearings which obstruct the flow of justice.

EMIL BROWN FUND

PREVENTIVE LAW PRIZE AWARDS

The Emil Brown Fund has announced the establishment of annual Preventive Law Prize awards. The purpose of the award program is to expand the field of written knowledge of successful preventive law techniques that may be put to use by practicing attorneys and students of the law. The first awards will be made in November 1964.

Cash awards will be made for outstanding lead articles on preventive law. Special awards or recognition may be given for noteworthy projects in Preventive Law. The Fund has stated that work done in the legal assistance field would come within the scope of "special projects."

This is not a contest. No entry blanks or applications are required. Any article or writing in an appropriate journal or publication or other special project which comes to the attention of the Reviewing Board will be considered.

The Reviewing Board is composed of Professor David F. Cavers, Harvard Law School; Chief Justice Frank R. Kenison, Supreme Court of New Hampshire; Professor F. Hodge O'Neal, Duke Law School; Felix F. Stumpf, Administrator, California Continuing Education of the Bar; and Richard P. Tinkham, former chairman of the American Bar Association Committee on Public Relations.

All communications concerning the awards should be addressed to Emil Brown Fund, Preventive Law Prize Awards, ATTN: Louis M. Brown, Administrator, 9171 Wilshire Boulevard, Beverly Hills, Calif.

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