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U S Air Force Court of Military Review • 1989

United States v. Church

29 M.J. 679

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Takeaway

In short, this case holds that a person who hires and equips a supposed hit man, pays for the killing, and believes the plan is in motion has attempted murder—not merely solicitation—even when the hit man is an undercover agent.

Background

Senior Airman Church, facing a troubled separation and custody dispute, repeatedly discussed having his wife killed so that he could regain custody of their son. After coworkers reported his statements to the Office of Special Investigations (OSI), an undercover OSI agent, Nicholas Karnezis, posed as a contract killer.

Church met Karnezis twice at a Fargo motel. He paid money toward the murder, supplied photographs, maps, diagrams, phone information, and details about the occupants and layout of his wife’s home. He discussed how the killing should be staged, directed how he wanted his wife shot, agreed to pay more after being told she had moved, and later paid an additional installment after Karnezis falsely reported that the murder had been completed.

A general court-martial convicted Church, contrary to his pleas, of attempted premeditated murder under Article 80, UCMJ. The military judge dismissed a separate attempted-conspiracy charge as multiplicious. The approved sentence included a dishonorable discharge, ten years’ confinement, total forfeitures, and reduction to E-1. Church appealed principally on the ground that his conduct was only solicitation or preparation, not an attempt.

Issues

Issue #1

Whether the evidence established attempted premeditated murder rather than only solicitation to commit murder.

Holding

Yes. Church’s conduct went beyond mere preparation and constituted a substantial step toward murder that strongly corroborated his firm intent to have his wife killed.

Reasoning

Article 80 requires a specific intent to commit the substantive offense plus an overt act that directly tends to accomplish it. Although solicitation is complete when a person counsels or encourages another to commit a crime, attempt requires conduct beyond preparation. The Manual specifically states that solicitation alone is not an attempt, but impossibility does not excuse an accused who acts as though the crime can be completed.

The court applied the substantial-step standard recognized in United States v. Byrd: the accused must engage in conduct strongly corroborative of the firmness of his criminal intent. This approach asks not whether every final step toward the completed crime occurred, but whether the accused’s conduct, viewed with his intent, crossed the line from arranging a crime to setting it in motion.

Church did far more than ask someone to kill his wife. He hired a person he believed was a hit man, made an initial payment, provided photographs and highly detailed directions and diagrams, described the household’s schedules and weapons, discussed a method of murder and the desired treatment of potential witnesses, arranged an alibi, and agreed to pay an increased fee when the supposed hit man said his wife had moved.

His later conduct further confirmed the firmness of his intent. After locating his wife’s new number, Church conveyed it through the ongoing plan; after receiving the staged report of her death, he praised Karnezis’s work and made another payment. The court concluded that Church had done everything he believed necessary to bring about the murder without personally committing it.

The undercover agent’s lack of genuine intent to kill did not reduce Church’s conduct to mere preparation. Attempt liability turns on the accused’s intent and on what he believed his actions would accomplish. Accepting Church’s contrary argument would effectively prevent attempted-murder prosecutions in contract-killing schemes whenever the purported killer was an undercover agent or informant.

Issue #2

Whether the discrepancy between the charged dates and location and the proof at trial created a fatal variance.

Holding

No. The variance was not prejudicial because Church was not misled in preparing his defense and remained protected against a later prosecution for the same offense.

Reasoning

The specification alleged conduct at Grand Forks Air Force Base on or about April 25 and 26, while key planning meetings occurred in Fargo on April 22. The court treated these differences as nonfatal because the companion attempted-conspiracy charge had expressly identified both Grand Forks and Fargo and alleged a date range encompassing the central meetings.

A variance warrants relief only when it materially prejudices the accused, such as by impairing trial preparation or exposing him to a second prosecution for the same conduct. Neither concern was present here: Church had adequate notice of the contract-killing allegations and the record clearly identified the transaction for double-jeopardy purposes.