UNITED STATES ARMY COURT 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 Infantry Division 

Jeffery D. Lippert, Military Judge 

Lieutenant Colonel Michael S. Devine, Staff Judge Advocate 

For Appellant: Colonel 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 Steven J. Collins, JA; Lieutenant 

Colonel Gregory A. Marchand, JA (on brief). 

15 September 2015 

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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 specification of 

absence without leave, four specifications of wrongful disposition of military 

property, three specifications of larceny of military property, and one specification 

of housebreaking in violation of Articles 81, 86, 108, 121, and 130, Uniform Code of 

Military Justice, 10 U.S.C. §§ 881, 886, 908, 921 and 930 (2012) [hereinafter 

UCMJ]. The military judge sentenced appellant to a bad-conduct discharge and five 

months confinement. The convening authority approved only so much of the 

sentence as provided for four months confinement and a bad-conduct discharge. He 

also credited appellant with seven days pretrial confinement credit. 

 

 This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises two assignments of error, one of which merits discussion and relief. 

 
MCGEE —ARMY 20130824 

2

BACKGROUND 

 Between 1 April 2013 and 21 April 2013, appellant and Specialist (SPC) 

J.R.H., entered into an agreement 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 military property, and a second specification for the agreement to sell 

the military property. 

 With regard to the conspiracy to unlawfully enter the supply room and steal 

military property, the pertinent exchange during the providence inquiry was as 

follows: 

ACC: [SPC J.R.H.] actually brought it up to me and he said, 

“Hey, I’ve got a quick way to make some easy cash.” I said, 

“What’s going on?” He said. “Well, I’ve got a key. We’re 

going to get into one of the supply rooms and see what we 

can get our hands on basically.” 

. . . . 

MJ: . . . when you went into that supply room, into that 

building, you intended to steal something? 

ACC: Yes, sir. 

 

The judge then turned to the conspiracy to sell military property: 

MJ: “When you went into the building there at A Company, 1st 

battalion, did you know what you were going -- that you were 

going to -- you knew you were going 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 some sort of profit off 

of it, sir. 
MCGEE —ARMY 20130824 

3

MJ: So you meant to profit. 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 anything in there that you would have 

wanted to keep for yourself? Was that the 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 fact, “Make some easy cash,” correct? 

 ACC: Yes, sir. 

MJ: So he -- so when you walked in there, you had the idea that there 

was going to be some sort of sale happen, correct? 

ACC: Yes, sir. 

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

correct? 

ACC: I don’t believe they do, sir. 

MJ: So you weren’t intending to steal money; you were intending to 

steal something and then sell it, right? 

ACC: Yes, sir. 

The military judge found appellant guilty, inter alia, of both specifications of 

conspiracy. 

 

 
MCGEE —ARMY 20130824 

4

LAW AND DISCUSSION 

 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 

conspiracy.” Manual for Courts-Martial, 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 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). 

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.” Id. at 827. 

 After weighing these factors, we conclude appellant and his co-conspirator, 

engaged in a single conspiracy to commit two crimes – namely, to unlawfully enter 

the supply company room to steal government property, and to sell it for “easy 
MCGEE —ARMY 20130824 

5

cash.” While the two charged conspiracies have different overt acts associated with 

them, the objective of the conspiracy is the same – to steal government property and 

sell it to make money. The two underlying charged conspiracies arose from the 

same conversation, between the same two parties, at the same place and time, for the 

same purposes – with one meeting of the minds. Appellant and his co-conspirator’s 

acts were interdependent. We, therefore, conclude appellant 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 into a single specification, 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 enter 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 Battalion, 17th Infantry Regiment 

and sell military property. 

The finding of guilty of The Specification of Charge I, as so amended, is 

AFFIRMED. The finding of guilty of Specification 2 of Charge I is set aside and 

DISMISSED. The remaining 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, privileges, and property, of 

which appellant has been deprived by virtue of that portion of the findings set aside 

and dismissed by this decision, are ordered restored. See UCMJ arts. 58b(c), and 

75(a). 
MCGEE —ARMY 20130824 

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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: