Attempts Expressly Enumerated in Substantive Offenses

Attempts Expressly Enumerated in Substantive Offenses

Attempts Expressly Enumerated in Substantive Offenses

  1. test1 125 (Side 125)While most attempts should be charged under Article 80, the attempts listed below are specifically addressed under the article defining the primary offense and should be charged accordingly. MCM, pt. IV, 4c(6).
    1. Article 85 (desertion).
    2. Article 94 (mutiny)
    3. Article 100 (subordinate compelling surrender).
    4. Article 104 (aiding the enemy).
    5. Article 106a (espionage).
    6. Article128 (assault).
  2. Attempted Conspiracy. Attempted conspiracy is a viable offense under the UCMJ. United States v. Riddle, 44 M.J. 282 (C.A.A.F. 1996) (affirming conviction for attempted conspiracy to steal military pay entitlements). Attempted conspiracy is applicable where an accused agrees with an undercover United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995) (holding that attempt and conspiracy statutes did not prohibit charge of attempted conspiracy to commit espionage, when other alleged conspirator is an undercover government agent); United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001) (affirming conviction for attempted conspiracy to murder fictitious in-laws of fellow soldier).
  3. Solicitation. “Soliciting another to commit an offense does not constitute an attempt.” MCM, pt. IV, 4c(5).
  4. Attempted drug offenses.
    1. If the accused believed the substance was an illegal drug, but the prosecution cannot prove it or the substance was actually not an illegal drug, then the accused can be convicted of attempting to commit the drug offense. United States v. Dominguez, 22 C.M.R. 275 (C.M.A. 1957) (attempted use of narcotic drug); United States v. Longtin, 7 M.J. 784 (A.C.M.R. 1979) (attempted sale of opium, where laboratory test inconclusive); United States v. Gray, 41 C.M.R. 756 (N.C.M.R. 1969) (attempted possession of marijuana and mescaline, where substances were not seized).
    2. If the accused did not believe the substance was an illegal drug, however, the accused did not attempt to commit a drug offense. United States v. Collier, 3 M.J. 932 (A.C.M.R. 1977) (where accused was putting one over on the heroin buyer by selling him brown sugar, guilty plea to attempted transfer of heroin was improvident); United States v. Giles, 42 C.M.R. 960 (A.F.C.M.R. 1970) (accused who knows he has been deceived by seller, but nevertheless smokes substance hoping to achieve a “high,” was not guilty of attempted use).
    3. If the accused sold fake drugs, he can be charged and convicted of larceny by false pretenses, under Article 121. See United States v. Williams, 3 M.J. 555 (A.C.M.R. 1977) (sale of fake LSD) rev’d on other grounds 4 M.J. 336 (C.M.A. 1978).
  5. Attempted Adultery. United States v. St. Fort, 26 M.J. 764 (A.C.M.R. 1988) (man returned home unexpectedly and found his wife clad only in bathrobe and the accused naked in a closet).