Is there a Santa? What's in the box? Can I shake it? Who is that for? How did Santa get down the chimney, we don't have one?
In that vein, assume Mom tells Dad that Jimmy is asking about Santa and she wants to know what to tell Jimmy. Is it an overt act of a conspiracy for Dad to say that they should tell Jimmy words to the effect of, "Santa has a cloaking device which makes him invisible and yes, he'll be back this year?" They also agree to still put out the milk and cookies on schedule. Mom agreeing, they go to bed never telling Jimmy anything--and of all things, the commissary is out of milk and cookies. It so happens that Dad's commanding officer gets word of this lying to a child and decides on a court-martial to make a point to Dad and all the other dads out there.
 For those who have been stationed at Lajes, Azores, this was at times a reality.
Dad's lawyer however has read NMCCA's decision in United States v. Gomezvillalobos.
There, the defense moved in advance of trial to dismiss a conspiracy specification which the military judge denied, with leave to ask for reconsideration or make a 917 motion.
At the close of the prosecution’s case, the military judge summarily denied the Defense motion brought under R.C.M. 917. The military judge reasoned: Denied. I continue to find, that there is evidence that has been presented that an agreement existed that after that agreement was formed that an overt action act was performed. That overt act was the agreement to purchase the MDMA, which was separate and apart from the original agreement, which was to distribute a controlled substance and that the agreement to purchase—essentially to front the money was not part of the original agreement. And by agreeing to front the money, that was an overt act to bring out—to accomplish the end state of the agreement; the object of the conspiracy. The issue as to whether the agreement between Appellant and 2ndLt November—that Appellant agreed to purchase drugs from 2ndLt November—was either an overt act in furtherance of a conspiracy to distribute drugs or was merely part of the agreement itself that formed the conspiracy to distribute drugs, is exactly the type of issue that would make an excellent law school final exam question.
NMCCA assigns the MJ to the naughty list.
Put simply, we find that the “overt act” charged was merely part of the overall agreement to distribute MDMA, and was not in any way independent of that agreement. Therefore, both the charge itself and the evidence adduced at trial were legally insufficient to sustain a conviction, and the military judge should have dismissed Charge I prior to trial (or at the close of the government’s case under Rule for Court-Martial 917). It follows that as the specification under Charge I fails to state an offense, the conviction for Charge I is therefore legally insufficient.
NMCCA was not Santa here, in case you were wondering--no offense meant. The appellant has served his Brig time and the remaining charges are sufficient to justify a dismissal at a sentence rehearing.
Off to enjoy some spiced eggnog which was NOT purchased from Cranford's Supermarket.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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