New (and odd) AFCCA published opinion

The Air Force Court's web site posted an odd little published opinion today. United States v. McAfee, __ M.J. ___, No. ACM 36340 (A.F. Ct. Crim. App. 15 March 2007).

According to the providence inquiry, Airman First Class McAfee was sitting in his room in a highly inebriated state when his friend A1C P (why the Air Force Court feels a need to protect McAfee's druggie friend's identity I know not) came by and asked McAfee to drive him downtown. McAfee, who as events would demonstrate had more compunctions about DUI than about riding with cocaine, declined on the grounds of intoxication. P offered to drive and McAfee consented, conditioned on going along for the ride. Only after the two had driven off base did McAfee inquire as to the purpose of the journey. P told McAfee that he was going to buy cocaine -- an idea that McAfee apparently endorsed.

The McAfee decision tells us that "appellant argues that the alleged overt act consisted of his allowing A1C P to use the appellant's car. Since it was only after the appellant had consented to the use of his car and he and A1C P were on their way downtown that the appellant learned the purpose of the trip was to purchase cocaine, the appellant espouses an ex post facto theory to defeat the conspiracy finding." McAfee, slip op. at 2. Somewhat more helpfully, the opinion earlier explained that "appellant asserts that his plea of guilty to the conspiracy charge was improvident in that the overt act in furtherance of the alleged conspiracy occurred before the formation of any agreement that had a criminal purpose." Id. Unfortunately, the opinion never sets out the specification to allow the reader to assess whether the providence inquiry indicated that the charged overt act occurred before the formation of the conspiracy. If it did, as Judge Sullivan noted in his concurring opinion in United States v. Moreno, there would have been a potential legal defense to the charge. United States v. Moreno, 46 M.J. 216, 219 (C.A.A.F. 1997) (Sullivan, J., concurring) (citing, inter alia, Dahly v. United States, 50 F.2d 37, 42 (8th Cir. 1931) ("it must be established that the conspiracy . . . was existing at the time of the commission of the overt act or acts")).

If I am right that the issue in this case was whether the overt act preexisted the formation of the conspiracy, then the Air Force Court's opinion simply doesn't resolve the issue, rejecting instead what appears to be a quite different issue about the formation of the conspiracy:

[H]ad the appellant known the purpose of the trip ab initio, the conspiracy would have been well-formed. Since the appellant is thus deemed to have controlled the nature and purpose of the vehicle's use at the launching of the escapade, we are at a loss to understand how he managed to lose his controlling interest in mid-course upon learning that A1C P's intended purpose for the trip was to purchase cocaine. In the absence of protest, we must conclude that the appellant consented to the use of the vehicle for that purpose at that time, and that it was from that time onwards that the conspiracy existed. The formation of a conspiracy "need not take any 'particular form or be manifested in any formal words'" . . . the agreement can be "silent, . . . 'tacit[,] or [only a] mutual understanding between the parties'", and it "is usually manifested by the conduct of the parties themselves." United States v. Whitten, 56 M.J. 234, 236 (C.A.A.F. 2002) (quoting United States v. Barnes, 38 M.J. 72, 75 (C.M.A. 1993) (internal citations omitted)). Accordingly, we find the appellant's argument to be without merit.

Gosh that looks like a swing and a miss.

If I am right about AFCCA missing the issue, it might still have reached the correct result, but only through application of the Felty doctrine to affirm a finding of guilty where the providence inquiry admits to a criminal offense different than but related to the offense to which the accused pled guilty. See United States v. Felty, 12 M.J. 438 (C.M.A. 1982). [Note that Garner would recommend use of "pleaded" in the previous sentence. This is one of the few instances where I disagree with the guru.] Now I have a new appreciation for why my junior high school math teacher would grade me down for reaching the right answer the wrong way.

The Air Force Court then launches off on a frolic of its own, considering whether a providence inquiry in which the accused admits that "the agreement was that [A1C P] was going to purchase Cocaine and use it," McAfee, slip op. at 4, supports a finding of guilty to conspiracy to use cocaine. The rather unsurprising answer to that question is, Yes. See id. at 7.

In the midst of this strange discussion, the Air Force Court interjects, appropos of nothing: "In resolving legal sufficiency questions, the appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution. United States v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000)." Both Rogers and United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)--the case Rogers quoted for the proposition that "in resolving legal-sufficiency questions, . . . [we are] bound to draw every reasonable inference from the evidence of record in favor of the prosecution," Rogers, 54 M.J. at 246--were contested cases. The legal sufficiency standard that CAAF was discussing has nothing to do with assessing the providence of a guilty plea. Rather, CAAF was discussing how an appellate court is to decide a Jackson v. Virginia, 443 U.S. 307 (1979), issue.

Having read McAfee twice, I am left with two questions: (1) am I right in supposing that the Air Force Court misconstrued the issue in this case; and (2) why is this a published opinion? I would welcome any enlightenment on either of those questions.