Inchoate Offenses – Conspiracy to Commit Maltreatment of Subordinates

United States v. Harman, 68 M.J. 325 (C.A.A.F. 2010) deals with the evidence required to conviction for conspiracy to commit maltreatment of subordinates. The accused was convicted of several charges, including conspiracy, stemming from her role in abusing detainees at the Abu Ghraib prison in Iraq. In particular, the accused participated in an episode where a detainee wearing a poncho was placed on an MRE box with a sandbag over his head and wires tied to his hands. The detainee was then told that he would be electrocuted if he stepped off of the MRE box. In another incident, the accused took pictures while soldiers punched detainees and stomped on their fingers and toes. She also wrote “I’m a rapeist [sic]” on the leg of a detainee accused of rape. Finally, the accused posed for a picture in front of a “human pyramid” of detainees.

The CAAF held that the conviction for conspiracy, established by circumstantial evidence and reasonable inferences derived from the conduct of the accused and others, is legally sufficient. In 2008, ACCA ruled that the evidence was factually and legally sufficient to support her conviction for conspiracy. In conducting its de novo review, CAAF agreed. Though the accused was a junior participant and her presence in the prison was mandatory, her participation in the misconduct was voluntary. Evidence of the voluntary nature of her participation included taking photographs, appearing in photographs with a smile on her face, and giving a “thumbs up” in the photographs. The accused claimed that her appearance in the photographs does not demonstrate a common purpose with her conspirators, but ACCA concluded that her conduct permitted the inference that she joined in the co-conspirators’ purpose by smiling and giving a “thumbs up” in the photos. CAAF affirmed this conclusion, and further pointed to her leaving and returning with the camera used as evidence of her intent. The court rejected the accused’s argument that her previous letter to a roommate, indicating that she wanted to report the wrongdoing, spoiled the sufficiency of evidence regarding her intent.