## UNITED STATES ARMY COUR T 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 In fantry Division

Jeffery D. Lippert, Military Judge Lieutenant Colonel Michael S. Devine, Staff Judge Advocate

For Appellant: Colone l 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 Stev en J. Collins, JA; Lieutenant Colonel Gregory A. Marchand, JA (on brief).

15 September 2015

------------------------------------- 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 sp ecification of absence without leave, four specifications of wro ngful disposition of military property, three specifications of larceny of military pr operty, and one specification of housebreaking in vi olation of Articles 81, 86, 108, 121, and 130, Uniform Code of Military Justice, 10 U.S. C. §§ 881, 886, 90 8, 921 and 930 (2012 ) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge and five

months confinement. The convening auth ority approved only so much of the sentence as provided for fo ur months confinement and a bad-conduct disc harge. He also credited appellant with seven days pretrial confinement credit.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises two assignments of error, one of which merits discussion and relief.MCGEE —ARMY 20130824

2 BACKGROUND

Between 1 April 2013 an d 21 April 2013, appell ant and Spec ialist (SPC) J.R.H., entered into an agreem ent 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 militar y property, and a second specificati on for the agreement to sell the military property

.

With regard to the cons piracy to unlawfully enter the supply ro om and steal military property, the pertinent exchange during the providence inquiry was as

follows:

ACC: [SPC J.R.H.] ac tually brought it up to me and he said, “Hey, I’ve got a quick way to ma ke some easy cash.” I said, “What’s going on?” He said. “We ll, I’ve got a key. We’re going to get into one of the su pply rooms and see what we can get our hands on basically.”

. . . .

MJ: . . . when you went into that supp ly room, into that building, you in tended to steal something?

ACC: Yes, sir.

The judge then turned to the conspi racy to sell mi litary property:

MJ: “When you went into the building th ere at A Company, 1st battalion, did you know what y ou were going -- that you were going to -- you knew you were go ing 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 so me sort of profit off of it, sir.MCGEE —ARMY 20130824

3 MJ: So you meant to pr ofit. 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 anythi ng in there that you would have wanted to keep for y ourself? Was that th e 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 fa ct, “Make some easy cash,” correct?

ACC: Yes, sir.

MJ: So he -- so when you walked in th ere, you had the id ea that there was going to be some sort of sale happen, correct?

ACC: Yes, sir.

MJ: All right. Because they don’t ke ep cash inside the supply room,

correct?

ACC: I don’t beli eve they do, sir.

MJ: So you weren’t inte nding to steal money; you were intending to steal something and th en sell it, right?

ACC: Yes, sir.

The military judge fo und appellant guilty, inter alia , of both spec ifications of conspiracy.MCGEE —ARMY 20130824

4 LAW AND DISCUSSION

A conspiracy exists when one “enter s into an agreemen t with” another and “performs an overt act for the purpose of bringing about th e object of the conspiracy.” Manual for Courts-Mar tial, 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 pa rtnership 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 (1 942). 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. Perk ins & Ronald N. Boyce, Criminal Law 683 (3rd ed. 1 982) (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, robber y, and kidnapping); cf.

United States v. Universa l C. I. T. Credit Corp ., 344 U.S. 218, 221 & n.3 (1952) (introducing concep t of “unit of prosecution”)

. . . .

Whether a single conspiracy or multiple c onspiracies 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 conspi racy [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 numbe r 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 conspiraci es; (7) the conspiratorial pa rticipants in each; and (8) the degree of interdependence between the alleged conspiracies.” Id. at 827.

After weighing these fact ors, we conclude appellant and his co-conspirator, engaged in a single conspira cy to commit two cr imes – namely, to unlawfully enter the supply company room to steal government property, and to sell it for “easyMCGEE —ARMY 20130824

5 cash.” While the two charged conspiracies have different overt acts associated with them, the objective of the conspiracy is th e same – to steal government property and sell it to make money. The two underlying charged conspiracies arose from the same conversation, betw een the same two parties, at th e same place a nd time, for the same purposes – with one me eting of the minds. Appellant and his co-conspirator’s acts were interdependent. We, therefore, conclude appe llant 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 in to a single specifi cation, denominated The Specification of Charge I, to read as follows:

In that [appellant], U. S. Army, did, at or near Joint Base LewisMcChord, 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 en ter 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 Battalio n, 17th Infantry Regiment and sell military property.

The finding of guilty of Th e Specification of Charge I, as so amended, is AFFIRMED. The finding of gu ilty of Specificatio n 2 of Charge I is set aside and

DISMISSED. The re maining 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, priv ileges, and property, of which appellant has been deprived by virtue of that portion of th e findings set aside and dismissed by this decisi on, are ordered restored. See UCMJ arts. 58b(c), and 75(a).MCGEE —ARMY 20130824

6 Senior Judge TOZZI and Ju dge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: