## Facts

- Private Audrey J. Valigura agreed to sell marijuana to an undercover military police investigator.
- Valigura delivered marijuana and received payment as arranged.
- The charged conspiracy specification named only two participants: Valigura and the undercover investigator.
- The investigator’s conduct outwardly indicated agreement, but he acted solely for law-enforcement purposes and lacked criminal intent.
- At a judge-alone general court-martial, Valigura was convicted (contrary to pleas) of conspiracy to distribute marijuana (Article 81) and failure to go to an appointed place of duty (Article 86).
- Pursuant to guilty pleas, she was also convicted of failure to obey a lawful order (Article 92) and wrongful distribution of marijuana (Article 112a).
- The approved sentence included a bad-conduct discharge, 6 months’ confinement, total forfeitures, and reduction to E-1.

## Issues

1. Whether a conviction for conspiracy under Article 81, UCMJ, may stand when the only alleged co-conspirator is an undercover government agent who feigned agreement for law-enforcement purposes and lacked criminal intent.

## Decision

- The Court of Appeals for the Armed Forces affirmed the Army Court of Criminal Appeals’ decision setting aside the Article 81 conspiracy conviction.
- The court held that, under Article 81’s bilateral conspiracy requirement, no conspiracy was completed because the undercover investigator lacked mens rea.
- The court left in place the substituted lesser-included finding of attempted conspiracy.

## Legal Principles

- Article 81 conspiracy follows the traditional bilateral theory: a completed conspiracy requires an actual agreement between at least two persons who each possess the requisite criminal intent.
- Apparent assent by an undercover agent acting for law-enforcement purposes does not satisfy the agreement element because there is no shared criminal intent.
- When an accused intends to form an unlawful agreement but the only supposed partner is an undercover agent, liability may exist for attempted conspiracy rather than conspiracy.

## Conclusion

A completed conspiracy under Article 81 requires a genuine agreement between two culpable actors; when the only alleged partner is an undercover agent without criminal intent, the conspiracy conviction must be set aside, though an attempted conspiracy conviction may be sustained.


United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000)