(concurring in the result):
The majority correctly observe that a conspirator is prosecutable “for substantive offenses which were committed pursuant to the conspiracy and to carry out its objectives.” 12 M.J. 218, 220. Here, the allegations of the conspiracy specification (specification 3, Charge II) are, in material part, that the accused did “conspire ... to commit an offense ... to wit: the sale of a habit forming narcotic drug, cocaine.” (Emphasis supplied.) In my opinion, the allegations limit the objective of the criminal agreement to a single sale. It may be that the limitation was inadvertent, but the Government is bound by what is actually alleged. See United States v. Fout, 3 USCMA 565, 13 CMR 121 (1953). The accused was, therefore, quite correct in asking clarification of the transmutation of the allegation of a single sale objective into a means by which he “could be charged a thousand times,” if Sams had broken the amount of cocaine he had received by accused into “a thousand little packages” and had sold them. As the accused had no connection with the sales made by Sams, other than that provided by the conspiracy charge, his vicarious liability as an aider and abettor extended no further than the earliest of the sales made by Sams.
Sams made two sales on January 30, 1979 (specifications 15 and 16). The record does not indicate the time sequence, but both involved the same quantity of cocaine. In this situation I think one or the other sale can be selected as that tied to the conspiracy charge.
For the reasons indicated, I agree with the majority that the accused’s plea of guilty was provident as to the conspiracy charge in issue (specification 3, Charge II), and one of the four sale charges related to it, specifically specification 16, Charge I. However, I would reverse the decision of the Court of Military Review as to the findings of guilty of specifications 13, 14, and 15 of Charge I and dismiss those specifications. I would affirm the decision of the court in all other respects, including the sentence, because the accused stands convicted of 16 offenses that are of the same genre as those dismissed and there is no reasonable likelihood that a remand for reconsideration of the sentence would result in a reduction of it. United States v. Subia, 12 USCMA 23, 30 CMR 23 (1960).