United States v. Vela ( 2012 )

UNITED STATES, Appellee
v.
Evan VELA, Sergeant
U.S. Army, Appellant
No. 12-0194
Crim. App. No. 20080133
United States Court of Appeals for the Armed Forces
Argued May 15, 2012
Decided July 18, 2012
BAKER, C.J., delivered the opinion of the Court, in which
STUCKY, J., and COX, S.J., joined. ERDMANN, J., filed a
separate opinion concurring in part and dissenting in part, in
which RYAN, J., joined.
Counsel
For Appellant: Daniel Conway, Esq. (argued); Lieutenant Colonel
Jonathan F. Potter and Major Richard E. Gorini (on brief);
Captain Matthew T. Grady.
For Appellee: Captain Chad M. Fisher (argued); Lieutenant
Colonel Amber J. Roach (on brief); Major Katherine Gowel.
Military Judge: R. P. Masterton
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Vela, No. 12-0194/AR
Chief Judge BAKER delivered the opinion of the Court.
A general court-martial composed of members was convened in
Iraq. Contrary to his pleas, Appellant was convicted of
unpremeditated murder, making a false official statement, and
wrongfully placing a weapon with the remains of an Iraqi
national, in violation of Articles 118, 107, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 907, 934
(2006). The adjudged and approved sentence included a
dishonorable discharge, confinement for ten years, forfeiture of
all pay and allowances, and reduction to pay grade E-1. In a
summary disposition, the United States Army Court of Criminal
Appeals affirmed the findings and the sentence with the
exception of the forfeitures. United States v. Vela, No. ARMY
20080133 (A. Ct. Crim. App. Oct. 13, 2011). We granted review
on the following issues:
I. WHETHER THE MILITARY JUDGE ERRED IN DENYING THE
DEFENSE’S MOTION TO DISMISS OR DISQUALIFY UNDER UNITED
STATES v. KASTIGAR.
II. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
SUPPORT THE FINDINGS OF GUILTY TO CHARGE III.
FACTS
On the night of May 10, 2007, Staff Sergeant Hensley was
the leader of a team of snipers ordered to provide over watch
security on a site in Jurf As-Sakhr, Iraq. The site included
several houses, one of which was thought to harbor a warlord
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United States v. Vela, No. 12-0194/AR
suspected of storing and shipping weapons. The team consisted
of Hensley, Appellant, Sergeant Redfern, Sergeant Hand and
Specialist Sandoval. They departed their patrol base at about
10:00 p.m. and arrived at the objective between 3:00 a.m. and
3:30 a.m. on the morning of May 11.
After this mission was completed, between 6:30 a.m. and
7:00 a.m., Hensley established a “hide”1 and organized a rest
plan for the team. The plan called for one soldier to remain
awake to provide security and monitor the radio while the others
slept. The hide was about six meters wide and was near a pump
house. According to Sandoval, he began his watch at about 7:00
a.m., and after about an hour he woke Appellant and handed him
the radio and a 9-millimeter (mm) pistol. Some time later, he
was awakened by a voice and saw an Iraqi man about three feet in
front of him speaking in Arabic. Sandoval looked over at
Appellant who was “sitting there with his head down.” Sandoval
called Appellant’s name three times before Appellant responded.
The man was motioned into the hide. Appellant awakened the rest
of the team while Sandoval held the man under guard. When
Hensley awoke, he searched the man, who was face down at this
point, and placed a knee on his back as he tried to get the man
1
Hensley described a hide as a covered and concealed place to
observe and interdict targets.
3
United States v. Vela, No. 12-0194/AR
to quiet down. No weapons were discovered on the man, and
Hensley bound the man’s hands with cord.
A short while later, the man’s teenage son approached the
position and was also ordered into the hide. After about an
hour, the son was released, and Hensley ordered Redfern and
Sandoval out of the hide and over to the pump house. Hensley,
Appellant and Hand remained in the hide. After the boy left,
Hensley, still kneeling on the man’s back, made several radio
transmissions back to the patrol base. According to Appellant’s
sworn statement, Hensley “radioed to [the patrol base] that we
had a local national walking 400 meters out with an AK-47.” A
little while later Hensley asked for permission “to execute a
close kill on this guy.” After apparently receiving such
permission, Hensley told Appellant to “pull out his 9mm and prep
it.” Hensley pulled the man’s head scarf over the man’s face,
asked Appellant if he was ready and then told Appellant to shoot
the man. Appellant complied by firing one shot into the
victim’s head from about six inches away and fired a second shot
that apparently missed. Hensley testified that after the second
shot he, Hensley, “grabbed an AK-47 out of the top map flap of
someone’s ruck” and “routed the sling on the [victim’s] shoulder
and I placed it on top of his body.”
A short time later, members of the unit’s Sensitive Site
Exploitation (SSE) team arrived to inspect the site while the
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sniper team members returned to the patrol base.2 It was later
determined that the victim was Mr. Ghani Nasr Khudayyer Al-
Janabi, an Iraqi national who owned the land on which the sniper
team was positioned. According to the victim’s son, Mr. Al-
Janabi had apparently come upon the hide on his way to turn on
his irrigation pump.
THE SUFFICIENCY ISSUE
Appellant was charged with wrongfully placing the AK-47 on
the body of the victim in violation of Article 134, UCMJ. The
Government’s theory was that Appellant aided and abetted
Hensley’s placement of the weapon on the body. Appellant argues
that the evidence on this offense is legally insufficient; he
could not have aided and abetted Hensley because he took no
action. Specifically, Appellant argues that the record fails to
establish (1) that he had a duty to interfere in this crime (2)
that he took any affirmative step in the commission of the crime
and (3) that he was even aware that Hensley placed the weapon on
the victim’s body.
The test for legal sufficiency is “whether, after viewing
the evidence in the light most favorable to the prosecution, any
2
A member of the SSE team testified that the purpose of such
teams is to go into a site and conduct an orderly and methodical
search for evidence. Specifically, he stated, “Basically we go
in, search a body for evidence purposes, and make sure that
every thing [sic] that’s on the body goes with the body and
nothing is missing when it gets turned over to whoever it’s
turned over to.”
5
United States v. Vela, No. 12-0194/AR
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). “This familiar standard gives full
play to the responsibility of the trier of fact . . . to draw
reasonable inferences from basic facts to ultimate facts.” Id.
“[T]he factfinder’s role as weigher of the evidence is preserved
through a legal conclusion that upon judicial review all of the
evidence is to be considered in the light most favorable to the
prosecution.” Id.
Article 77, UCMJ,3 imposes liability as a principal on one
who (1) “assist[s], encourage[s], advise[s], counsel[s] or
command[s] another in the commission of the offense”; and (2)
“share[s] in the criminal purpose of design.” United States v.
Gosselin, 62 M.J. 349, 352 (C.A.A.F. 2006) (citation and
quotation marks omitted); United States v. Thompson, 50 M.J.
257, 259 (C.A.A.F. 1999). The elements of aiding and abetting
are:
(1) the specific intent to facilitate the crime by another;
(2) guilty knowledge on the part of the accused;
(3) that an offense was being committed by someone; and
(4) that the accused assisted or participated in the
commission of the offense.
Gosselin, 62 M.J. at 351-52.
3
10 U.S.C. § 877 (2006).
6
United States v. Vela, No. 12-0194/AR
“Our case law has generally interpreted Article 77[, UCMJ,]
to require an affirmative step on the part of the accused.”
Thompson, 50 M.J. at 259. The accused must “in some sort
associate himself with the venture, in that he participate in it
as in something that he wishes to bring about, [and] that he
seek by his action to make it succeed.” United States v.
Mitchell, 66 M.J. 176, 178 (C.A.A.F. 2008); United States v.
Pritchett, 31 M.J. 213, 217 (C.M.A. 1990). However, while mere
presence is not enough to impose liability as an aider or
abettor, United States v. McCarthy, 11 C.M.A. 758, 761, 29
C.M.R. 574, 577 (1960):
[i]n some circumstances, inaction may make one liable as a
party, where there is a duty to act. If a person . . . has
a duty to interfere in the commission of an offense, but
does not interfere, that person is a party to the crime if
such noninterference is intended to and does operate as an
aid or encouragement to the actual perpetrator.
Gosselin, 62 M.J. at 353 (quoting Manual for Courts-Martial,
United States pt. IV, para. 1.b.(2)(b)(ii) (2008 ed.)).
Finally, intent, like other mental states can be shown by
circumstantial evidence. United States v. Davis, 49 M.J. 79, 83
(C.A.A.F. 1998).
In this case, the members were instructed that, “An aider
and abettor must knowingly and willfully participate in the
commission of the crime as something he wishes to bring about
and must aid, encourage, or incite the person to commit the
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United States v. Vela, No. 12-0194/AR
criminal act.” Regarding the evidence in the case, the members
were properly instructed that even though they must keep the
evidence of each offense separate, “[i]f evidence has been
presented which is relevant to more than one offense, you may
consider that evidence with respect to each offense to which it
is relevant.” This is an accurate statement of the law and
Appellant has not challenged the military judge’s instructions.
See United States v. Haye, 29 M.J. 213, 215 (C.M.A. 1989);
United States v. Hogan, 20 M.J. 71, 72 (C.M.A. 1985).
The record, including facts drawn directly from Appellant’s
statement, indicates that Appellant’s conduct, before and after
Hensley placed the weapon, support a conclusion that Appellant
had the requisite specific intent and knowledge for aiding and
abetting in this instance. Rational court members could have
found that Appellant was only feet from Hensley who, while
actively restraining the bound victim, falsely informed the
patrol base that a local national was walking 400 meters out
with an AK-47 and then asked to execute a “close kill.” They
could have further found that after the false radio
transmissions to the base, Hensley told Appellant to “prep” his
9mm and then asked Appellant if he was ready -- presumably ready
to shoot the victim. Appellant also lied to members of the
Criminal Investigative Division (CID) consistent with Hensley’s
false version of events that Hensley shared with him before
8
United States v. Vela, No. 12-0194/AR
Appellant spoke with investigators. Rational court members
could have concluded that both soldiers intended to kill Mr. Al-
Janabi and stage the scene to make it appear that he was the
combatant earlier described as carrying an AK-47. Appellant
completed his part by taking the affirmative act of shooting the
victim in the head. Hensley completed his part by staging the
weapon on the body. Appellant casts his conduct as inaction
without a duty to interfere, but the evidence, as noted above,
is to the contrary. Appellant participated in the offense by
setting the stage for the offense and later participating in the
cover-up of the incident. See United States v. Richards, 56
M.J. 282, 285 (C.A.A.F. 2002) (finding a conviction for
voluntary manslaughter legally sufficient where the accused set
the stage by assaulting the victim before and after the victim
was stabbed by the accused’s friend); United States v. Shearer,
44 M.J. 330, 335 (C.A.A.F. 1996) (upholding guilty plea where
accused aided and abetted friend in fleeing the scene of an
accident because, among other things, he helped to form a cover-
up for the accident).
The members might also have reasonably concluded that the
discrete act of placing the weapon on the body of Mr. Al-Janabi
was wrongful, not just because it covered up a crime, but
because it could reasonably have caused United States forces to
reach erroneous conclusions about the strength and location of
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United States v. Vela, No. 12-0194/AR
enemy combatants as well as put local civilians at risk. While
the murder of Mr. Al-Janabi and the placement of the weapon were
charged in a discrete manner, the members were free to review
all the evidence in determining whether Appellant was guilty of
the offenses.
Based on this evidence as a whole, rational court members
could have concluded beyond a reasonable doubt that Appellant
had the specific intent to facilitate Hensley’s act of placing
the weapon with the body, and that he actively participated in
Hensley’s staging of the scene by ensuring the death of Mr. Al-
Janabi.
THE IMMUNITY ISSUE
Background4
Following investigation into Mr. Al-Janabi’s death the
Government brought charges against Appellant, Hensley, and
Sandoval. Colonel (COL) Allen was the staff judge advocate
(SJA) for the general court-martial convening authority and
Captains Rykowski and Haugh were detailed as trial counsel for
the cases. Charges were preferred against Appellant on July 2,
2007. Appellant waived his right to an Article 32, UCMJ,5
investigation, and the charges were referred to trial on August
4
This background section is taken from the military judge’s
“Essential Findings and Ruling.”
5
10 U.S.C. § 832 (2006).
10
United States v. Vela, No. 12-0194/AR
6, 2007. Around the middle of September, before Appellant was
granted immunity on September 19, COL Allen advised Captains
Rykowski and Haugh that they were no longer detailed to
Appellant’s case and that they were not to discuss the Hensley
and Sandoval cases with anyone else in the office, to include
himself and the new prosecutors that were to be assigned to
Appellant’s case. After COL Allen’s discussion with Captains
Rykowski and Haugh, on September 20, 2007, a grant of immunity
and an order to testify in the Sandoval case was served on
Appellant.6
On September 25, 2007, the evidence in Appellant’s case was
sealed. This evidence consisted of several confessions taken
from Appellant the previous June, statements of others in the
unit corroborating the confessions and the CID reports related
to the case. All of the sealed evidence had been prepared prior
to Appellant’s grant of immunity. On September 27, 2007, COL
Allen detailed Captains Nef and Young as trial counsel in
Appellant’s case.7 COL Allen advised these two officers not to
discuss the case with the prosecutors in the Hensley and
6
A grant of immunity and an order to testify was subsequently
served on Appellant prior to his testimony in the Hensley case
as well.
7
Later, Captain Young redeployed to the United States and Major
Kuhfahl replaced him on the case.
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United States v. Vela, No. 12-0194/AR
Sandoval cases and not to learn anything relating to Appellant’s
immunized testimony.
That same day, Appellant testified in the Sandoval case.
He testified consistently with his prior statements to CID in
which he described his and Hensley’s actions in the hide and his
shooting of the victim. On November 6, 2007, Appellant
testified in the Hensley case. Again, his testimony was
consistent with his prior admissions concerning how he shot and
killed the victim. However, during this testimony, Appellant
claimed that he did not recall Hensley making any statements to
him before he shot the victim.
In September as well, Appellant prevailed on a motion for
relief on the basis that his Article 32, UCMJ, waiver was
involuntary. As a result, the charges were withdrawn and an
Article 32, UCMJ, investigation was ordered. The Article 32,
UCMJ, investigation was held on November 20, 2007, and the same
charges that were referred to trial in August were again
referred to trial on November 26, 2007.
The defense moved to dismiss the charges, or in the
alternative to disqualify trial counsel, on Kastigar grounds.
See Kastigar v. United States, 406 U.S. 441 (1972); United
States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003). Appellant argued
that the Government used his immunized testimony to prosecute
him.
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United States v. Vela, No. 12-0194/AR
In response, the military judge considered testimony from
COL Allen, Captains Rykowski, Haugh and Nef, and Special Agent
Mitchum of CID, the lead agent in Appellant’s case. The thrust
of COL Allen’s testimony was that he had not been exposed to
Appellant’s immunized testimony, he had not exposed the
convening authority to immunized testimony during the referral
in Appellant’s case, and that he had no discussions with the
trial counsel detailed to Appellant’s case regarding Appellant’s
immunized testimony after the grant of immunity. Captain Haugh
testified that after Appellant’s grant of immunity, he did not
discuss Appellant’s case with COL Allen or the new prosecutors,
nor did he discuss the substance of Appellant’s immunized
testimony in the Sandoval and Hensley cases. Similarly, Captain
Nef testified that he had not discussed Appellant’s immunized
testimony with the prosecutors in the Hensley and Sandoval cases
nor had he been exposed to Appellant’s testimony. On these
relevant points, Captain Rykowski’s testimony was consistent
with the testimony of COL Allen, and Captains Nef and Haugh.
Special Agent (SA) Mitchum testified that as the lead agent in
the case, he had had no discussions with COL Allen or any of the
prosecutors detailed to Appellant’s case after Appellant was
immunized.
The military judge concluded that the Government met its
burden demonstrating no direct or indirect use of Appellant’s
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United States v. Vela, No. 12-0194/AR
immunized testimony to prosecute Appellant. The military
judge’s specific findings, framed around the factors set out in
Mapes, were as follows:
a. The accused’s immunized statements reveal nothing that
was not already known to the government by virtue of the
accused’s own pretrial statements.
b. The investigation against the accused was completed
prior to the immunized statement. The only portion of
the investigation that was completed after the grant of
immunity was a final report that simply summarized
statements and similar documents that were gathered
before the grant of immunity. The accused’s immunized
statement did not affect the investigation in any way.
c. The decision to prosecute the accused [had] been made
long before his immunized statements were made. The
convening authority and his legal advisors made the
decision to send the accused’s case to a general court-
martial in August 2007 based essentially on the same
evidence that was the basis for the November referral.
d. The trial counsel who had been exposed to the immunized
statement did not participate in the prosecution of the
accused’s case in any way. Once immunity had been
granted a wall was effectively built between the
prosecutors in the Sandoval and Hensley cases (Rykowski
and Haugh) and the other legal advisors in the . . .
legal office and the convening authority. The
prosecutors in the current case (Nef and Kuhfahl) have
not been exposed to the immunized testimony in any way.
On appeal to this Court, Appellant renews his trial arguments
focusing on the Mapes factors.
Analysis
The Fifth Amendment’s privilege against self-
incrimination provides that “‘[n]o person . . . shall be
compelled in any criminal case to be a witness against
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himself.’” Mapes, 59 M.J. at 65 (alteration in original).
“[I]mmunity from the use of compelled testimony and evidence
derived therefrom is coextensive with the scope of the
privilege” and “is sufficient to compel testimony over a claim
of the privilege.” Kastigar, 406 U.S. at 452-53. The
government may prosecute an immunized witness where it can
demonstrate that it has made neither direct nor indirect use of
the testimony. United States v. Morrissette, 70 M.J. 431, 438
(C.A.A.F. 2012). The government must affirmatively prove by a
preponderance of the evidence that its evidence “is derived from
a legitimate source wholly independent of the compelled
testimony.” Kastigar, 406 U.S. at 460. The grant of immunity
must leave the witness and the government in “‘substantially the
same position as if the witness had claimed his privilege in the
absence of a state grant of immunity.’” Id. at 457 (quoting
Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 (1964)).
Whether the Government has shown, by a preponderance of the
evidence, that it has based Appellant’s prosecution on sources
independent of the immunized statements is a preliminary
question of fact. Morrissette, 70 M.J. at 439; Mapes, 59 M.J.
at 67. We will not overturn a military judge’s resolution of
this question unless it is clearly erroneous or is unsupported
by the evidence. Morrissette, 70 M.J. at 439. In reviewing for
clear error, we must ask “whether, on the entire evidence, [we
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United States v. Vela, No. 12-0194/AR
are] left with the definite and firm conviction that a mistake
has been committed.” Easley v. Cromartie, 532 U.S. 234, 242
(2001) (citation and quotation marks omitted).
Since Appellant takes particular issue with each of the
military judge’s conclusions on the four Mapes factors, we
discuss each of them in order.
The first factor is whether Appellant’s immunized testimony
revealed anything not already known to the Government.
Appellant argues that the Government’s theory, that Sandoval was
not in the hide site at the time of the shooting, is information
gleaned from his immunized testimony. However, this argument
ignores the fact that Appellant’s own statement of June 25,
2007, which was included in the sealed materials, states that
Sandoval was not in the hide site.
Appellant also asserts that the Government used his
immunized testimony in the prior two courts-martial to decide to
amend the charges before trial from premeditated murder to
unpremeditated murder. However, at the Article 39(a), UCMJ, 10
U.S.C. § 839(a) (2006), session when the trial counsel moved to
amend, the defense indicated that it had no objection and did
not pursue this claim during the Kastigar hearing. Appellant
also asserts that CID agents learned from lawyers in the SJA’s
office that the defense might be considering an insanity
defense, and was able to interview potential witnesses with an
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United States v. Vela, No. 12-0194/AR
eye toward this theory. The problem here is that SA Mitchum,
testified that he never spoke to COL Allen or the prosecutors in
Appellant’s case about Appellant’s prior testimony.
Furthermore, there were other indicators suggesting the
Appellant might raise such a defense, including defense
counsel’s request for a forensic psychologist, a request for a
sanity board and references in the file to post-traumatic stress
disorder.
The second factor considers whether the investigation, as
it pertained to Appellant, was completed prior to Appellant’s
immunized testimony. The military judge found that the
investigation, as it pertained to Appellant, was concluded prior
to Appellant’s immunized statement, and this finding is
supported by Captain Nef’s testimony concerning the contents of
the CID file that he received when he was detailed to the case.
In particular, Captain Nef testified that he remembered seeing
SA Mitchum’s final report of investigation which had been
prepared after September 19, 2007. He stated that this document
was basically a table of contents of the CID file that had been
prepared before Appellant’s immunity grant.8 He also stated that
8
The military judge erroneously stated in his findings that this
document was issued on October 13, 2007. The document itself,
however, is dated October 3, 2007.
17
United States v. Vela, No. 12-0194/AR
this document had no relationship to Appellant’s immunized
testimony.
Appellant further argues that the investigation was
incomplete because the Government did not locate the victim’s
son until after he, Appellant, testified in the Sandoval case.
However, Appellate Exhibit XIII contains an entry by an
investigator that data concerning the boy was entered on July 4,
2007. Further, Appellant’s statement of June 25, 2007, contains
detailed information about the boy and how Appellant and Hensley
interacted with him. There is no evidence that Appellant
testified to the specific whereabouts of the boy and that the
Government acted on that information.
Regarding the third factor, the military judge found that
the decision to prosecute Appellant was made long before he gave
any immunized testimony, and this finding is amply supported by
the documentary evidence and the testimony of COL Allen that the
re-referral of charges in November was based on the same
evidence as the original August referral. Likewise, regarding
the fourth factor, the military judge’s finding that the
prosecutors in Appellant’s case were not exposed to immunized
testimony is supported by the lengthy testimony of all the
witnesses at the hearing. We conclude that none of these
findings is clearly erroneous. Accordingly, we hold that the
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United States v. Vela, No. 12-0194/AR
military judge did not err in concluding that the Government had
met its burden under Kastigar and Mapes.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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ERDMANN, Judge, with whom RYAN, Judge, joins (concurring in
part and dissenting in part):
I concur with the majority’s determination that the
military judge did not err in denying the motion to dismiss the
charges or to disqualify trial counsel based on Kastigar v.
United States, 406 U.S. 441 (1972). I respectfully dissent,
however, from the majority’s conclusion that the evidence in
this case is legally sufficient to convict Vela under Article
134, UCMJ, 10 U.S.C. § 934 (2006), of wrongfully placing an AK-
47 on the body of Ghani Nasr Khudayyer Al-Janabi. While the
majority is correct in stating the panel members were free to
examine all evidence presented in the case when rendering their
verdict, there is no evidence from which a reasonable panel
member could infer that Vela placed the weapon himself, knew
Hensley was going to place a weapon on Al-Janabi’s body,
assisted Hensley in placing the weapon, or had a duty to prevent
Hensley from committing the act. Accordingly, I would set aside
the findings as they pertain to this charge and specification.
The starting point in any legal sufficiency analysis is to
compare the plain language of the charge and specification with
the evidence presented at trial. The charge and specification
here alleged a discrete act –- that Vela wrongfully placed an
AK-47 on Al-Janabi’s body and that conduct was to the prejudice
of good order and discipline in the armed forces or of a nature
United States v. Vela, No. 12-0194/AR
to bring discredit upon the armed forces. At trial, Hensley
testified that he placed the AK-47 on Al-Janabi’s body and that
Vela did not know about the AK-47, nor did he assist Hensley in
placing the weapon on Al-Janabi’s body. This is consistent with
Vela’s statements to CID. Additionally, Hensley testified that
he did not discuss the “cover-up” story with the members of his
unit until after they returned to base. While the specification
charged Vela with wrongfully placing an AK-47 on Al-Janabi’s
body, there was no evidence to support that Vela did so. The
Government, however, proceeded under an aiding and abetting
theory both at trial and before this court.
In order to convict under an aiding and abetting theory,
the Government must show: (1) specific intent to facilitate the
commission of the crime by another; (2) guilty knowledge on the
part of the accused; (3) that an offense was being committed by
someone; and (4) that the accused assisted or participated in
the commission of the crime. United States v. Gosselin, 62 M.J.
349, 351-52 (C.A.A.F. 2006). To be convicted, the aider must
share the criminal intent to commit the crime with the
principal. United States v. Pritchett, 31 M.J. 213, 216 (C.M.A.
1990). Our case law has generally required the defendant to
take an affirmative step to assist in the crime, but failure to
act when there is a duty to prevent the crime can also be
sufficient to establish intent to aid and abet. Gosselin, 62
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United States v. Vela, No. 12-0194/AR
M.J. at 352; United States v. Simmons, 63 M.J. 89, 93 (C.A.A.F
2006). The existence of a duty to prevent the crime, however,
does not per se establish a shared purpose to commit the crime.
Simmons, 63 M.J. at 93. Additionally, mere presence at the
scene of the crime is not enough to prove aiding and abetting,
even though it is a factor to be considered in deciding whether
the evidence meets the elements of aiding and abetting.
Pritchett, 31 M.J. at 217 (noting that presence is a factor, but
that the court “still must examine the record for other evidence
of [A]ppellant’s purposeful association with [the crime] and
some act of participation, assistance, or encouragement of [the
crime]”).
In its brief, the Government states Vela’s actions after
the incident, including lying to CID about the events
surrounding the murder, provide a legally sufficient basis on
which a rational panel member could infer that Vela intended to
commit the crime of wrongfully placing an AK-47 on Al-Janabi’s
body. However, this argument ignores the evidence that Vela had
no knowledge that Hensley had an AK-47 and intended to place it
on Al-Janabi’s body, as well as the fact that covering up the
murder was not discussed until well after the incident occurred.
A person cannot form the requisite intent to aid and abet
another in committing a crime without knowledge that the other
party intends to commit the crime. Simmons, 63 M.J. at 93.
3
United States v. Vela, No. 12-0194/AR
Contrary to the Government’s argument, Vela’s collusion with
Hensley to murder Al-Janabi is not sufficient to infer he also
knew of or agreed to Hensley’s actions in placing the AK-47 on
Al-Janabi’s body. Gosselin, 62 M.J. at 352 (an affirmative act,
which provides assistance for one offense, does not “translate
into an affirmative act for [a] later separate offense”).
The majority asserts that a rational panel member could
find the requisite intent to kill Al-Janabi and stage the scene
by examining Vela’s actions before, during, and after the murder
and placement of the weapon. It goes into great detail
discussing the different interpretations of the evidence panel
members could have used to reach their verdict, including the
suggestion that Vela intended to facilitate Hensley’s commission
of a minor crime -- the placing of the weapon -- by committing a
major crime –- the killing Al-Janabi. This is similar to the
Government’s theory that the “affirmative step” Vela took in
order to aid and abet Hensley’s wrongful placement of the weapon
was to murder Al-Janabi. This analysis strains logic.
There is nothing to support the contention that Vela’s
actions at the hide site were the result of an intention to aid
and abet Hensley in covering up the murder of Al-Janabi by
placing the AK-47 on the victim’s body. The majority’s reliance
on United States v. Richards, 56 M.J. 282 (C.A.A.F. 2002), and
United States v. Shearer, 44 M.J. 330 (C.A.A.F. 1996), is not
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United States v. Vela, No. 12-0194/AR
persuasive. In Richards, this court held that while Richards
did not know his codefendant had a knife and intended to use it
to assault the victim, Richards’ intent to aid and abet could be
inferred provided Richards intended the consequence of the
principal’s actions. Richards, 56 M.J. at 286. This is
distinguishable from Vela’s case because while a rational
factfinder could conclude someone who was actively and
continuously assaulting a helpless victim intended that the
victim be harmed (as was the case in Richards), there is no
logical way to conclude Vela intended that Hensley would cover-
up the murder by planting an AK-47 on the victim after Vela shot
him, when Vela had no knowledge of that weapon or Hensley’s
intent when he shot Al-Janabi. As for Shearer, while it is true
that this court found Shearer aided and abetted the fleeing of
the accident scene by helping to cover up the accident, that
case is distinguishable from Vela’s because Shearer actively
encouraged and participated in fleeing the scene and the cover
up of the accident as it was occurring. That is not the case
with Vela.
Nor is there any evidence that Vela had a duty to prevent
Hensley from placing the weapon. The evidence proves beyond a
reasonable doubt that Vela killed Al-Janabi at Hensley’s
direction. But that is where Vela’s participation ends. There
is simply no evidence from which a reasonable panel member could
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United States v. Vela, No. 12-0194/AR
infer that Vela intended to assist Hensley in placing the weapon
on Al-Janabi’s body and actually assisted or participated in
that discrete act. Without this essential element of the crime,
the charge cannot stand.
A more appropriate charge against Vela may have been
obstruction of justice, in which the accused commits an act with
the belief that there are or will be criminal charges against
him and that act is intended to “influence, impede, or otherwise
obstruct the due administration of justice.” Manual for Courts-
Martial, United States pt. IV, para. 96.b.(1-3) (2008 ed.).
Vela’s actions during the subsequent criminal investigation may
have supported an intent to impede the investigation at that
time by lying about what actually happened at the hide site.
While there may be evidence from which a reasonable panel
member could have found Vela guilty of obstruction of justice,
that is not the crime with which he was charged. Therefore I
would find the conviction for placing the AK-47 on Al-Janabi’s
body to be legally insufficient.
6