(concurring):
I agree with the lead opinion that solicitation and conspiracy are different offenses. United States v. Teters, 37 MJ 370 (CMA 1993), cert, denied, — U.S.-, 114 S.Ct. 919,127 L.Ed.2d 213 (1994). The actus reus and the mens rea are different; thus, the offenses are not multiplicious. See also United States v. Weymouth, 43 MJ 329, 342 (1995)(Crawford, J, concurring in the result). A solicitation occurs when an individual “solicits or advises” another to commit an offense. United States v. Anzalone, 43 MJ 322, 323 (1995). Whereas a conspiracy exists when one “enter[s] into an agreement with” another and “perform[s] an overt act for the purpose of bringing about the object of the conspiracy.” Para. 5b, Part IV, Manual for Courts-Martial, United States (1995 ed.). See also United States v. Anzalone, 43 MJ at 324. Solicitation does not require an agreement. The crime is complete once the solicitation is made.
The Court should not revert to the continuation theory, single-impulse theory, or other similar theory in determining multiplicity.