United States v. Specialist JOHN DADSON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JOHN DADSON
United States Army, Appellant
ARMY 20160305
Headquarters, U.S. Army Alaska
Jeffery D. Lippert, Military Judge
Colonel Erik L. Christiansen, Staff Judge Advocate
For Appellant: Colonel Mary J. Bradley, JA (on brief); Major Christopher D.
Coleman, JA.
For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.
17 November 2016
----------------------------------
SUMMARY DISPOSITION
----------------------------------
CAMPANELLA, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy, one specification of
wrongful sale of military property, and one specification of larceny of military
property, in violation of Articles 81, 108, and 121, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 908, 921 (2012) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a bad-conduct discharge, six months of
confinement, and reduction to the grade of E-1.
This case is before us for review pursuant to Article 66, UCMJ. While neither
appellant nor his appellate counsel raise any allegations of error, we find he should
have been convicted of only one specification of conspiracy. See United States v.
Chandler, 74 M.J. 674, 686 (Army Ct. Crim. App. 2015).
Appellant was found guilty, inter alia, of two separate specifications of
conspiracy with another specialist: 1) conspiracy to commit larceny of military
property; and 2) conspiracy to commit wrongful sale of military property.
DADSON—ARMY 20160305
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 (2012 ed.), pt. IV, ¶ 5.b(1).
“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. United States v. Finlayson, 58 M.J. 824, 827 (Army Ct. Crim. App.
2003) (citing United States v. Fields, 72 F.3d 1200, 1210 (5th Cir. 1996); 16 A M .
J UR . 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). “A single agreement to commit
multiple offenses ordinarily constitutes a single conspiracy.” United States v.
Pereira, 53 M.J. 183, 184 (C.A.A.F. 2000). “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.” Braverman v. United States, 317 U.S.
49, 53 (1942)
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.” United States v.
Inman, ARMY 20150042, 2016 CCA LEXIS 286 (Army Ct. Crim. App. 4 May 2016)
(citing Finlayson, 58 M.J. at 827).
After weighing these factors, we conclude, under the totality of the
circumstances, appellant and his co-conspirator engaged in a single conspiracy to
effectuate the object of the conspiracy “to steal and sell military property.” 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 larceny and wrongful sale of military property.
CONCLUSION
After consideration of the entire record of trial, Specifications 1 and 2 of
Charge III are consolidated into a single specification, denominated the
Specification of Charge III, to read as follows:
In that [appellant], U.S. Army, did, at or near Joint Base
Elmendorf-Richardson, Alaska, between on or about 1
February 2015 and 1 June 2015, conspire with Specialist
Anthony Entwistle to commit offenses under the Uniform
Code of Military Justice, to wit: larceny and wrongful sale
of military property, of a value over $500.00, the property
2
DADSON—ARMY 20160305
of the U.S. Army, and in order to effect the objects of the
conspiracy the said SPC Dadson and the said SPC
Entwistle did steal and sell military property.
The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the error 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). We are confident that based on the entire record and appellant’s
course of conduct, the military judge would have imposed a sentence of at least that
which was adjudged and approved, and accordingly we AFFIRM the sentence.
All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the findings set aside by this decision, are ordered restored.
See UCMJ arts. 58b(c), and 75(a).
Judge HERRING and Judge PENLAND concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
3