United States v. Valigura

54 M.J. 187 (2000)

Quick Summary

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Private Audrey Valigura (defendant) was implicated in selling marijuana to an undercover investigator and appealed her conspiracy conviction on the basis that it required more than one person with criminal intent. The United States Court of Appeals for the Armed Forces (plaintiff) reviewed her case.

The dispute centered on whether an actual conspiratorial agreement existed when one party was an undercover agent without criminal intent. The court concluded that under traditional legal theory, a true conspiracy did not exist without mutual criminal intent, thus setting aside Valigura’s conspiracy conviction while affirming attempted conspiracy.

Facts of the Case

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Private Audrey Valigura (defendant) was involved in a drug transaction where she sold marijuana to an undercover military-police investigator. The investigator, while undercover, portrayed willingness to engage in the illegal act, leading Valigura to believe she had entered into a conspiratorial agreement with him.

However, the investigator had no intention of actually participating in the crime, as his role was solely to apprehend those involved in such activities. Valigura was then tried and convicted for conspiracy to distribute marijuana among other charges.

She appealed the conviction on the grounds that a genuine conspiracy requires at least two parties with a real intent to commit a crime, which was not the case since her only co-conspirator was an undercover agent acting with a law enforcement purpose.

Procedural Posture and History

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  1. Private Audrey Valigura was convicted by a general court-martial for various charges including conspiracy to distribute marijuana.
  2. Valigura appealed her conspiracy conviction, and the appellate court reversed the conspiracy conviction but upheld a conviction for the lesser included offense of attempted conspiracy.
  3. The Judge Advocate General certified an issue regarding the appellate court’s decision to the United States Court of Appeals for the Armed Forces.

I.R.A.C. Format


Issue Icon

Whether the conspiracy conviction should be set aside because Valigura’s only co-conspirator was an undercover government agent with no criminal intent.

Rule of Law

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The traditional ‘bilateral’ theory of conspiracy requires that more than one person genuinely agrees to commit a crime. An actual meeting of the minds is essential for a conspiracy to exist. If one party is feigning agreement, there is no true conspiracy.

Reasoning and Analysis

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The court examined the traditional bilateral theory of conspiracy, which requires a genuine agreement between at least two people to commit a crime. Valigura believed she had entered into such an agreement with the undercover investigator.

However, since the investigator did not possess the criminal intent necessary for a conspiracy, no true agreement existed between two culpable parties. The court referenced long-standing precedents that have consistently required this bilateral agreement for a conspiracy conviction.

The court also considered the Model Penal Code’s unilateral theory of conspiracy, which permits conviction based on the defendant’s belief in an agreement’s existence, regardless of the co-conspirator’s actual intent.

The court determined that adopting this theory would exceed their judicial authority and make a policy change that rests with Congress. Military law recognizes an offense of attempted conspiracy, which allows for prosecution even when a bilateral agreement is lacking. Thus, the court resolved to uphold the established bilateral approach to conspiracy within military law.


Conclusion Icon

The court affirmed the decision of the United States Army Court of Criminal Appeals, upholding Valigura’s conviction for attempted conspiracy but setting aside her conviction for conspiracy.

Concurring Opinions

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Judge Sullivan concurred with the majority opinion and emphasized that ten circuits have adopted the bilateral theory of conspiracy. He also noted that military law allows for prosecution of attempted conspiracy, ensuring no gap exists for prosecuting individuals like Valigura.

Dissenting Opinions

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Chief Judge Crawford dissented, arguing that military justice should adopt a unilateral approach to conspiracy which aligns with the Model Penal Code and reflects changing conditions in military society. She contended that public policy and efficiency in combating drug use within the military support a unilateral theory where one individual’s belief in an agreement suffices for a conspiracy conviction.

Key Takeaways

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  1. The court upheld the traditional bilateral approach to conspiracy requiring mutual criminal intent between conspirators.
  2. A unilateral theory of conspiracy, where an individual’s belief in an agreement suffices despite another party’s lack of intent, was considered but not adopted by the court.
  3. Military law provides for prosecution of attempted conspiracy as a lesser included offense when a bilateral conspiratorial agreement is not present.
  4. Policy considerations alone do not justify judicially adopting new legal theories without Congressional action.

Relevant FAQs of this case

What is the bilateral theory of conspiracy and why does it require mutual intent?

The bilateral theory of conspiracy necessitates that all parties involved in an alleged conspiracy must have a genuine and mutual intent to commit the crime for a valid conviction. This mutual intent, or ‘meeting of the minds’, creates a joint commitment to unlawful conduct.

  • For example: Two friends plan and agree to rob a bank together, each with the intention to carry out the robbery.

How does the Model Penal Code's approach to conspiracy differ from traditional theories?

The Model Penal Code (MPC) adopts a unilateral approach to conspiracy, meaning a conviction can occur if only one party genuinely believes they are participating in a criminal agreement, even if other parties do not share this intent.

  • For example: An individual who genuinely agrees to join a fake criminal plan orchestrated by undercover officers could be convicted under MPC’s unilateral theory.

In what circumstances can someone be charged with attempted conspiracy?

Attempted conspiracy charges can arise when an individual takes substantial steps towards forming an illegal agreement or commits overt acts to further such an agreement, but fails to establish mutual criminal intent with another person.

  • For example: A person who prepares and attempts to engage others in an illegal scheme, but those others turn out to be unwilling or undercover law enforcement, could face charges of attempted conspiracy.


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