Attempts, Conspiracy, and Solicitation Under the UCMJ
Key takeaways
- Attempt requires specific intent plus an overt act that is a substantial step beyond mere preparation — a line that is factual, contested, and decisive. Byrd.
- Factual impossibility is no defense to attempt, but voluntary abandonment — a complete renunciation from one’s own sense that the act was wrong — is. MCM, pt. IV, ¶ 4c.
- Conspiracy needs a genuine meeting of the minds: an agreement with only an undercover agent is not conspiracy, at most attempted conspiracy. Valigura.
- Withdrawal before the overt act defeats conspiracy liability entirely; withdrawal after it cuts off liability only for the confederates’ later crimes.
- The inchoate offense and the completed crime are separately punishable — conspiracy does not merge into its object.
Crimes of trying: the three inchoate offenses
The UCMJ’s first three true offense articles punish steps toward a crime rather than the crime itself. Each targets a different step, and each is complete at a different moment:
| Offense | Core conduct | Complete when | Key limits |
|---|---|---|---|
| Attempt (Art. 80) | Overt act, with specific intent, beyond mere preparation | The substantial step is taken — even if the crime fails | Voluntary abandonment; specific intent required |
| Conspiracy (Art. 81) | Agreement between two or more culpable persons | Any conspirator commits an overt act to effect the object | Bilateral agreement required; withdrawal; Wharton’s Rule |
| Solicitation (Art. 82) | Serious request or advice to commit an offense | Instantly, when made with wrongful intent | Solicitee must know an offense is contemplated and cannot be the victim |
These charges dominate undercover and sting prosecutions — where no crime ever could have been completed — which is why they travel with doctrines like impossibility, abandonment, and entrapment. They sit in the general provisions of the punitive articles described in how military crimes are defined.
Attempts under Article 80
“An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.”Art. 80(a), UCMJ
The Manual breaks that sentence into four elements: an overt act; done with specific intent to commit a UCMJ offense; amounting to more than mere preparation; and apparently tending to effect the commission of the intended offense. MCM, pt. IV, ¶ 4b. The specific-intent requirement is absolute even when the target offense is not a specific-intent crime — attempted murder requires an actual intent to kill, and there is no such thing as an attempt to commit involuntary manslaughter by culpable negligence. United States v. Roa, 12 M.J. 210 (C.M.A. 1982).
The overt act need not be alleged in the specification and need not itself be illegal — an accused committed attempted desertion through acts done entirely within the limits of a legitimate pass. United States v. Johnson, 22 C.M.R. 278 (C.M.A. 1957). In a guilty plea, the military judge must explain all four elements, including that the conduct had to go beyond preparation — a frequent source of improvident-plea litigation. United States v. Redlinski, 58 M.J. 117 (C.A.A.F. 2003).
Preparation vs. the substantial step
Almost every contested attempt case is fought on one line: where preparation ends and the attempt begins. Preparation is devising or arranging the means; an attempt requires a direct movement toward commission — a substantial step that is strongly corroborative of the firmness of the accused’s criminal intent. United States v. Byrd, 24 M.J. 286 (C.M.A. 1987). The accused does not have to reach the doorstep of the crime: retrieving a rifle, chambering a round, and starting toward the victim’s tent was attempt, even though the accused was stopped well short. United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994).
But the government can fail this test even in ugly cases. Accepting money and riding toward an off-post drug buy was not strongly corroborative of intent to distribute (Byrd); phone calls to a supplier after agreeing to obtain marijuana were not a substantial step (United States v. Presto, 24 M.J. 350 (C.M.A. 1987)). Words alone can be enough — a recruiter’s request to perform a bogus “hernia examination” crossed the line — and the courts concede the boundary is primarily one of fact, decided case by case. That makes the attempt line a trial issue, not a paper issue.
Impossibility and voluntary abandonment
Factual impossibility is not a defense. If the facts had been as the accused believed them to be, the conduct would be judged on that belief: intercourse with a woman the accused believed unconscious — who was in fact dead — supported attempted rape (United States v. Thomas, 32 C.M.R. 278 (C.M.A. 1962)); injecting a substance believed to be a narcotic supported attempted use regardless of what the powder was (United States v. Dominguez, 22 C.M.R. 275 (C.M.A. 1957)). The same principle sustains convictions where the “co-conspirator” or “hit man” was an undercover agent all along.
Voluntary abandonment is a defense — recognized in Byrd and codified in the Manual: it must be a voluntary and complete abandonment of the intended crime, made solely because of the accused’s own sense that it was wrong, before completion. MCM, pt. IV, ¶ 4c(4). It is unavailable when the accused quits because detection loomed, because an unexpected obstacle made the crime harder, or after the victim has already suffered substantial harm — and postponing the crime or switching to a similar victim is not abandonment. United States v. Rios, 33 M.J. 436 (C.M.A. 1991).
Conspiracy under Article 81: the agreement
Conspiracy has two elements: an agreement with one or more persons to commit a UCMJ offense, and an overt act by any party to the agreement, while it exists, to bring about its object. MCM, pt. IV, ¶ 5b. The agreement needs no particular words or form — it can be inferred entirely from conduct, as when two soldiers spotted an unattended duffel bag, circled back, and took it. United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002). But mere presence at the scene, or sitting in on barracks gripe sessions, is never enough — the government must prove a deliberate, knowing decision to join.
Military law follows the bilateral theory: conspiracy requires a genuine meeting of at least two culpable minds. An “agreement” whose only other party is an undercover agent, an informant feigning agreement, or a person incapable of criminal intent is not conspiracy — though it can be charged as attempted conspiracy. United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000). Co-conspirators need not be subject to the UCMJ, and a co-conspirator’s acquittal in a separate trial does not bar conviction of the accused. One agreement is one conspiracy no matter how many crimes it contemplates — separate conspiracy specifications built on a single agreement get consolidated. United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000).
The conspiracy overt act and vicarious liability
The overt act requirement is modest but real. The act must be independent of the agreement itself and occur during or after it — the conversations forming the deal do not count. It need not be criminal: obtaining a crowbar to break into a store sufficed. It may be done by any conspirator, and one member’s act is the act of all. At least one overt act must be alleged and proved, and a specification alleging none is fatally defective. MCM, pt. IV, ¶ 5c(4).
The stakes of joining are vicarious: a conspirator can be convicted of substantive offenses committed by confederates in furtherance of the agreement while it continues — the Pinkerton doctrine, carried into military law through Article 77. Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Browning, 54 M.J. 1 (C.A.A.F. 2000). A member of a robbery conspiracy who never touches a victim answers for the robberies the others commit.
Withdrawing from a conspiracy
Withdrawal is the one exit, and its timing controls everything. A person who effectively withdraws before the overt act is not guilty of conspiracy at all. Withdrawal after the overt act leaves the accused guilty of the conspiracy and of offenses already committed under it, but cuts off liability for what the remaining conspirators do afterward. MCM, pt. IV, ¶ 5c(6).
The standard is demanding: affirmative conduct wholly inconsistent with adherence to the agreement, showing the accused severed all connection with the conspiracy. Refusing to participate and staying behind when the group carried on to commit the offense qualified. United States v. Miasel, 24 C.M.R. 184 (C.M.A. 1957). Mere inactivity does not: a soldier who agreed in Moscow to supply information to Soviet agents, went home, and did nothing for years was still guilty when a confederate later committed an overt act — because a conspiracy is presumed to continue until the contrary is shown. United States v. Rhodes, 28 C.M.R. 427 (A.B.R. 1959).
What this means if you’re accused of a crime that never happened
Inchoate charges are built on interpretation — of your words, your intent, and how far things actually went. That is precisely why they are defensible: the government must prove a specific criminal intent and a legally sufficient act, not just ugly talk or bad company. What you should not do is explain yourself to investigators, because in an attempt or conspiracy case your own statements about what you meant are the case. Invoke your Article 31 rights, and get counsel who has tried these lines — preparation versus substantial step, presence versus agreement — in front of panels.
Solicitation under Article 82
Article 82 punishes soliciting another to commit an offense — with a heightened track for soliciting desertion, mutiny or sedition, or misbehavior before the enemy. It is an instantaneous offense: complete the moment the request or advice is made with the specific wrongful intent that the offense be committed. The person solicited never has to agree, act, or even take it seriously. MCM, pt. IV, ¶ 6c(1). Any conduct reasonably understood as a serious request qualifies — in context, “Are you ready to go; you got your passport?” was an invitation to join a drug-smuggling operation. United States v. Williams, 52 M.J. 218 (C.A.A.F. 2000).
Three limits give the defense room. The person solicited must know an offense is contemplated — asking someone to cash a check they believe is legitimate is not solicitation. United States v. Higgins, 40 M.J. 67 (C.M.A. 1994). The person solicited cannot be the victim of the intended offense. United States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010). And while soliciting is not an attempt — the Manual says so expressly — the solicitee’s predisposition toward the crime is no defense. United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005).
Separate crimes, separate punishments
The inchoate offenses do not merge into their objects or into each other. Conspiracy is distinct from the crime that is its object — the accused can be convicted and punished for both, and committing the intended offense can itself serve as the overt act. Conspiracy and solicitation of the same crime are separate offenses; so are conspiracy and attempt, because each requires proof the other does not. United States v. Stottlemire, 28 M.J. 477 (C.M.A. 1989). Even attempted conspiracy is a viable charge. United States v. Riddle, 44 M.J. 282 (C.A.A.F. 1996).
That stacking power is checked in two places: multiplicity and unreasonable-multiplication doctrine, which polices piling inchoate theories onto one transaction, and Article 79, under which an attempt is a lesser included offense the panel can reach when proof of the completed crime falls short. Element-by-element treatment of the individual target offenses lives in our UCMJ offense library.
Practitioner’s note
In sting-driven attempt and conspiracy cases, we build the timeline backward from the moment of apprehension and mark every act the government calls a “substantial step,” asking of each: is this devising the means, or moving on the crime? Then we do the same for intent — because under Byrd the act must corroborate the firmness of the intent, and agents’ scripts are written to manufacture momentum. In conspiracy cases our first question is who, exactly, the culpable second mind is supposed to be; when the answer is an informant or an agent, the charge is overpled, and we say so by motion.
Frequently asked questions
Can I be convicted of attempt if the crime was impossible to complete?
Usually, yes. Factual impossibility is not a defense: if the facts had been as you believed them to be, the attempt stands — selling a substance you believed was a drug, or dealing with a 'hit man' who was an undercover agent. The real defenses lie elsewhere: whether you had specific intent and whether your acts went beyond mere preparation.
What is the difference between preparation and an attempt?
Preparation is arranging the means — planning, gathering tools, making calls. Attempt requires a substantial step: a direct movement toward committing the offense that strongly corroborates the firmness of your criminal intent. Courts decide the line case by case as a question of fact, and prosecutions fail on it regularly, even in cases involving serious intended crimes.
Can I withdraw from a conspiracy and avoid conviction?
Only by affirmative conduct that severs all connection with the agreement — and timing is everything. Effective withdrawal before any overt act defeats conspiracy liability entirely. Withdrawal after an overt act leaves you guilty of the conspiracy and earlier offenses, but not of crimes the others commit afterward. Simply going inactive is not withdrawal; the conspiracy is presumed to continue.
Is agreeing with an undercover agent a conspiracy under the UCMJ?
No. Military law requires a bilateral agreement — a genuine meeting of at least two culpable minds — so an 'agreement' whose only other party is an undercover agent or a feigning informant is not conspiracy. It can, however, be charged as attempted conspiracy, which CAAF has repeatedly sustained, so the exposure does not disappear; it changes shape.
Is solicitation a crime even if the other person refuses?
Yes. Solicitation is complete the instant a serious request or advice to commit an offense is made with intent that it be committed — no agreement or action by the other person is required. But the person solicited must know an offense is contemplated, and cannot be the intended victim of the offense; either gap defeats the charge.
Can the military punish both conspiracy and the completed crime?
Yes. Conspiracy is a separate offense from the crime that was its object, and the accused can be convicted and punished for both. Conspiracy is also separate from solicitation and from attempt of the same crime. The check on overcharging is multiplicity and unreasonable-multiplication doctrine, which must be raised and litigated by the defense.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has defended attempt, conspiracy, and solicitation charges for more than 25 years, including the online-sting prosecutions where every element — intent, substantial step, agreement — is manufactured on an agent’s keyboard. A former Army prosecutor and defense counsel and a nationally recognized author on cross-examination, he has tried these cases worldwide, and cross-examining the undercover agent on script, momentum, and who proposed what is where his courtroom work concentrates.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent more than 20 years defending service members charged as conspirators and accomplices in violent-offense, sexual assault, and war crimes courts-martial — cases where the government’s theory turns on presence, silence, or an inferred agreement rather than the client’s own hands. She legally reviewed this page against Articles 80 through 82, MCM Part IV, and the controlling CAAF case law.
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Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.