The Navy-Marine Corps Court of Criminal Appeals recently decided the case of United States v. Gomezvillalobos. Captain Gomezvillalobos was convicted of conspiracy to distribute a controlled substance as well as three other specifications on unrelated offenses. In early 2019, the Captain was texting with a 2ndLt he knew about attending an upcoming concert. The 2ndLt offered to obtain MDMA for the Captain and his date. Captain Gomezvillalobos was not sure he wanted to take MDMA but after discussing the possibility of the 2ndLt selling any leftover MDMA to other concertgoers, he agreed. A couple of hours later, the 2ndLt texted again, letting the Captain know the MDMA would cost 60 dollars and arranging for the Captain to pay him a few days later.
Two days later, before the Captain had paid any money, he texted the 2ndLt and said that neither he nor his date would want to buy or take any MDMA. The Government charged the Captain with conspiracy to distribute a controlled substance for this text message exchange.
Conspiracy consists of two elements: 1) that the accused entered an agreement with another person to commit an offense; and 2) that, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.
So, while the text messages showed an agreement between the Captain and the 2ndLt to provide MDMA to the Captain’s date and potentially to others at the concert, the Government needed to prove more to get a guilty finding. There had to have been an overt act performed by either the Captain or the 2ndLt furthering their plan for him to be guilty of conspiracy. The Government charged that the Captain’s agreement to pay the 2ndLt 60 dollars was the overt act required.
The Captain was found guilty at trial, but the appellate court decided that this overt act was not sufficient to support a guilty finding. Under the law, the overt act must be independent of the agreement itself, must happen after or at the same time as the agreement, must be done by one of the co-conspirators, and must be done in furtherance of the conspiracy. The overt act does not need to be criminal on its own, but must be an overt sign that the agreement is being carried out. For example, if two people agree to kidnap another and hold them for ransom, the purchase of rope by a co-conspirator could be the overt act needed to show that the plot was moving forward.
The Navy-Marine Corps Court did not find that the Captain’s agreement to pay the 2ndLt the 60 dollars was independent of the agreement itself. The Court determined that this was still part of the conversation establishing the agreement, and not a separate action done to further the conspiracy.
The Court set aside the guilty finding and ordered a new sentencing proceeding.
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