UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 MARQUILL D. WILLIS 

United States Army, Appellant 

ARMY 20120999 

U.S. Army Combined Arms Support Command Sustainment Center of Excellence 

and Fort Lee 

James W. Herring, Military Judge 

Colonel Andrew J. Glass, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA, Captain 

Robert N. Michaels, JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Daniel D. Derner, JA; Captain Nathan S. Mammen, JA (on brief). 

13 February 2015 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge: 

A panel of officer and enlisted members sitting as a general court-martial 

convicted appellant, contrary to his pleas, of one specification each of conspiracy to 

commit rape, conspiracy to commit forcible oral sodomy, and conspiracy to commit 

forcible anal sodomy; three specifications of rape; two specifications of indecent 

conduct; two specifications of forcible sodomy; and one specification of assault, in 

violation of Articles 81, 120, 125, and 128, Uniform Code of Military Justice, 10 

U.S.C. §§ 881 920, 925, 928 (2006 & Supp. IV 2011) [hereinafter UCMJ]. The 

panel sentenced appellant to a dishonorable discharge, confinement for eighteen 

months, and reduction to the grade of E-1. The convening authority approved the 

sentence as adjudged. 
WILLIS–ARMY 20120999 

2 

We now review appellant’s case under Article 66, UCMJ. One of appellant’s 

two assignments of error warrants discussion and relief. Appellant argues his 

convictions for conspiracy to commit rape, conspiracy to commit forcible oral 

sodomy, and conspiracy to commit forcible anal sodomy (Specifications 1, 2, and 3 

of Charge III, respectively) constitute a single conspiracy. We agree. The 

remaining assignment of error and the matters raised personally by appellant 

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) do not warrant 

relief. Additionally, although not raised by the parties, we consolidate appellant’s 

two indecent acts specifications into a single specification. 

BACKGROUND 

 On or about 12 November 2011, appellant and his friends, Private First Class 

(PFC) JC, Private (PV1) AB, and PFC AP, traveled from Fort Lee, Virginia, to 

Colonial Heights, Virginia, on a weekend pass from Advanced Individual Training 

(AIT). There appellant and his friends rented a room at Candlewood Suites. 

 After checking into the hotel, appellant saw PV1 KE, a female soldier, in the 

hotel lobby. Private KE was attending AIT at Fort Lee with appellant. Private KE 

was also on pass and staying at the hotel with friends. Appellant and PV1 KE 

previously had a sexual encounter during AIT. 

 Appellant approached PV1 KE and began flirting with her and kissing her. 

Appellant guided PV1 KE into the elevator, unbuckled his pants and attempted to 

undress PV1 KE. When the elevator door opened, PFC JC was standing outside the 

elevator door. Appellant led PV1 KE to his room. Private First Class JC followed. 

Private AB and PFC AP were already present inside the room. Once inside the 

room, appellant continued to kiss PV1 KE and attempted to remove her clothes in an 

effort to have sexual intercourse. Private KE, however, refused to have sex while 

others were in the room. Appellant directed the three other soldiers to leave the 

room, which they did. Appellant proceeded to have consensual sex with PV1 KE. 

 Once finished, appellant got up and opened the hotel room door. Private First 

Class JC and PV1 AB came back into the room. At this point, PV1 KE was still 

naked on the bed. She got up, grabbed some of her clothes and went into the 

bathroom. Appellant and PV1 AB followed PV1 KE into the bathroom and 

suggested she perform oral sex on one of them while simultaneously having vaginal 

sex with the other. Private KE refused and walked out of the bathroom. 

 After leaving the bathroom, PV1 AB pushed PV1 KE onto the bed, climbed on 

top of her, and began “grinding” on her while appellant stood at the foot of the bed 

and PFC JC stood to the right of the bed. Private AB got up and continued to ask 

PV1 KE for oral sex but she refused. Appellant repositioned PV1 KE on the bed, 
WILLIS–ARMY 20120999 

3 

and despite her protests, pulled her pants down to her ankles and forced his penis 

inside her vagina while holding her legs to his chest. 

While appellant was doing this, PFC JC tried to put his erect penis in PV1 

KE’s mouth but PV1 KE turned her head and refused. Seeing this, appellant said “I 

got you, battle,” slapped PV1 KE’s thigh, and forcefully thrust his penis inside her 

vagina, thereby resulting in her opening her mouth. Private First Class JC inserted 

his penis into PV1 KE’s mouth and while holding her head in place with both his 

hands. Private AB left the room. 

 Appellant and PFC JC then switched places. While PFC JC forcibly 

penetrated PV1 KE’s vagina with his penis, appellant forcibly orally sodomized her. 

 At some point, wanting to switch again, appellant pushed PFC JC off PV1 KE 

and pulled PV1 KE on top of him onto a chair, with her facing away from him. 

Appellant then directed PV1 KE to engage in vaginal sexual intercourse with him 

while he was seated in the chair, but she refused and attempted to get up. When PV1 

KE tried to stand up, appellant moved her back to the bed, bent her over at the waist 

and penetrated her vagina again with his penis. 

 Private First Class JC wanted to have sex again so he suggested one of them 

have anal sex with her while the other had vaginal sex. Appellant then rolled PV1 

KE over so that he was underneath her penetrating her vaginally, holding her down 

face-to-face on top of him, while PFC JC penetrated her anus with his penis. When 

PV1 KE yelled stop, PFC JC laughed, and then he stopped, got dressed and left the 

room. 

 Appellant then put PV1 KE on her back and continued to penetrate her vagina 

until he ejaculated. Appellant got up and said “get dressed, battle” to PV1 KE. 

LAW AND DISCUSSION 

 

Conspiracy 

Appellant was found guilty, inter alia, of three separate specifications of 

conspiracy: conspiracy to commit rape, conspiracy to commit forcible oral sodomy 

and conspiracy to commit forcible anal sodomy. At trial, defense counsel asked the 

court to consolidate the three conspiracy specifications on the basis that there was 

only one conspiracy. The military judge denied the defense motion. Appellant 

argues here that he should only be convicted of a single conspiracy. 

 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 
WILLIS–ARMY 20120999 

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conspiracy.” Manual for Courts-Martial, United States (2008 ed.) [hereinafter 

MCM], Part IV, ¶ 5.b. As we noted in United States v. Finlayson: 

“[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 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. 

After weighing these factors, we conclude, under the totality of the 

circumstances, appellant and his co-conspirator, PFC JC, engaged in a single 
WILLIS–ARMY 20120999 

5 

conspiracy with diverse means to effectuate the object of the conspiracy – namely, 

to sexually assault PV1 KE. While the nature of the criminal enterprise evolved and 

the overt acts of each sexual offense alleged are different, the sexual nature of the 

objective of the conspiracy is the same. The three underlying crimes alleged in each 

conspiracy are all of a sexual nature. Each act took place at the same location 

during the same episode or course of conduct. The participants in the three 

conspiracy specifications are the same and their acts are interdependent. Many of 

the object offenses occurred simultaneously and some occurred at the urging of a coconspirator while other sexual offenses were ongoing. Given the facts of this case, 

we conclude that sufficient facts to distinguish separate conspiracies from one 

another do not exist, and appellant and his co-conspirator had a single criminal 

agreement to commit multiple crimes. 

 Indecent Acts and Unreasonable Multiplication of Charges 

Although not raised by the parties, we find an unreasonable multiplication of 

charges for appellant’s two convictions for indecent acts under Article 120(k), 

UCMJ. “What is substantially one transaction should not be made the basis for an 

unreasonable multiplication of charges against one person.” Rule for Courts–Martial 

307(c)(4). The prohibition against unreasonable multiplication of charges 

“addresses those features of military law that increase the potential for overreaching 

in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 

23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 

2001)). In Quiroz, our superior court listed five factors to guide our analysis of 

whether charges have been unreasonably multiplied: 

(1) Did the accused object at trial that there was an unreasonable 

multiplication of charges and/or specifications?; 

(2) Is each charge and specification aimed at distinctly separate 

criminal acts?; 

(3) Does the number of charges and specifications misrepresent 

or exaggerate the appellant’s criminality?; 

(4) Does the number of charges and specifications [unreasonably] 

increase the appellant’s punitive exposure?; and 

(5) Is there any evidence of prosecutorial overreaching or 

abuse in the drafting of the charges? 

55 M.J. at 338–39 (internal quotation marks omitted). 
WILLIS–ARMY 20120999 

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The elements of “indecent acts” are: (1) the accused engaged in certain 

conduct; and (2) the conduct was indecent conduct. MCM, Part IV, ¶ 45.b.(11). 

“Indecent conduct” is “that form of immorality relating to sexual impurity that is 

grossly vulgar, obscene, and repugnant to common propriety, and tends to excite 

sexual desire or deprave morals with respect to sexual relations.” UCMJ, art. 

120(t)(12). Indecent acts has traditionally included fornication committed “openly 

and notoriously.” See United States v. Izquierdo, 51 M.J. 421, 422 (C.A.A.F. 1999); 

United States v. Berry, 6 U.S.C.M.A. 609, 614, 20 C.M.R. 325, 330 (1956) (both 

cases considering indecent acts charged under Article 134, UCMJ). 

The record reflects that two indecent acts which took place in the presence of 

others arose during the course of the same transaction. Under the facts of this case, 

we find the unit of prosecution is the open and notorious nature in which the sexual 

offenses took place, not the number of sexual acts which were done in an open and 

notorious way. Application of the Quiroz factors to the evidence elicited during the 

colloquy requires the consolidation of the particulars in Specifications 4 and 5 of 

Charge I 

CONCLUSION 

After consideration of the entire record of trial, appellant’s assignments of 

error, and the matters personally raised by appellant pursuant to Grostefon, 

Specifications 2, 3, and 4 of Charge III are consolidated into a single specification, 

numbered Specification 2 of Charge III, to read as follows: 

In that Private (E-2) Marquill Willis, U.S. Army, did at or near 

Colonial Heights, Virginia, on or about 12 November 2011, 

conspire with Private First Class Jeremy Champion to commit 

offenses under the Uniform Code of Military Justice, to wit: rape, 

forcible oral sodomy, and forcible anal sodomy, and in order to 

effect the objects of the conspiracy the said Private (E-2) Marquill 

Willis, penetrated Private (E-1) K.Y.E.’s vulva with his penis; and 

caused Private K.Y.E. to open her mouth by hitting her upper thigh, 

allowing Private First Class Jeremy Champion to put his penis in 

her mouth; and held the body of Private (E-1) K.Y.E. with his 

hands and penetrated the vulva of Private (E-1) K.Y.E. with his 

penis, allowing Private First Class Jeremy Champion to penetrate 

the anus of Private (E-1) K.Y.E. 

The findings of guilty of Specifications 3 and 4 of Charge III are set aside and those 

specifications are dismissed. 

Renumbered Specifications 4 and 5 of Charge I are consolidated into a single 

specification, renumbered Specification 4 of Charge I, to read as follows: 
WILLIS–ARMY 20120999 

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In that Private (E-2) Marquill Willis, U.S. Army, did at or near 

Colonial Heights, Virginia, on or about 12 November 2011, 

wrongfully commit indecent conduct, to wit: engaging in oral 

sodomy and sexual intercourse in the presence of others. 

The finding of guilty of renumbered Specification 5 of Charge I is set aside and that 

specification is dismissed. 

Those consolidated specifications are AFFIRMED. The remaining findings of 

guilty are AFFIRMED. We are able to reassess the sentence on the basis of the 

errors noted, and do so after conducting a thorough analysis of the totality of 

circumstances presented by appellant’s case and in accordance with the principles 

articulated by our superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 

(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In 

evaluating the Winckelmann factors, we find no dramatic change in the penalty 

landscape or exposure which might cause us pause in reassessing appellant’s 

sentence. Second, although appellant was sentenced by members, here, this factor 

carries less weight because the remaining offenses do not “address service custom, 

service discrediting conduct or conduct unbecoming.” Winckelmann, 73 M.J. at 16. 

Third, the gravamen of appellant’s misconduct remains unchanged. Finally, based 

on our experience, we are familiar with the remaining offenses so that we may 

reliably determine what sentence would have been imposed at trial. After 

reassessing the sentence based on the entire record, the sentence is AFFIRMED. We 

find this reassessed sentence is not only purged of any error but is also appropriate. 

All rights, privileges, and property, of which appellant has been deprived by virtue 

of that portion of the findings set aside by our decision, are ordered restored. 

Senior Judge TOZZI and Judge CELTNIEKS concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: