ATTEMPTS. UCMJ ART. 80. Defenses

  1. test1 011 (Side 11)Factual Impossibility. Factual impossibility is not a defense to attempt. If the accused’s act would constitute a crime if the facts and circumstances were as the accused believed them to be, then he may be found guilty of an attempt to commit the intended crime, even though it was impossible to commit the intended crime under the actual circumstances. MCM, pt. IV, 4c(3).
    1. The defense of factual impossibility does not preclude conviction of attempted conspiracy where the other purported conspirator is an undercover government agent. United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995) (attempted conspiracy to commit espionage); see also United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000); United States v. Baker, 43 M.J. 736 (Ao.F.C.C.A. 1995) (conspiracy would have been completed, but for the fact that informant did not share accused’s criminal intent); United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001) (factual impossibility not a defense to attempted conspiracy where accused agreed to murder the fictitious in-laws of a fellow member of his platoon; because the impossibility of the fictitious victims being murdered was not a defense to either attempt or conspiracy, it was not a defense to the offense of attempted conspiracy).
    2. United States v. Thomas, 32 C.M.R. 278 (C.M.A. 1962). The accused and two companions committed sexual intercourse with a female, whom they believed to be unconscious, under circumstances amounting to rape. The female, however, was dead at the time of the sexual intercourse. Conviction for attempted rape affirmed.
    3. United States v. Dominguez, 22 C.M.R. 275 (C.M.A. 1957). The accused injected himself with a substance he believed to be a narcotic drug. Regardless of the true nature of the white powdery substance, accused was guilty of attempted use of a narcotic drug.
    4. United States v. Riddle, 44 M.J. 282 (C.A.A.F. 1996). The accused could be convicted of attempted conspiracy to steal military pay entitlements to which he was entitled by law or regulation, where he did not believe he was married at the time, even if he was married at the time.
    5. United States v. Church, 29 M.J. 679 (A.F.C.M.R. 1989) aff’d 32 M.J. 70 (C.M.A. 1991). Evidence supported the accused’s conviction for attempted premeditated murder of his wife, although the person he hired to kill his wife was an undercover agent.
    6. United States v. Wilson, 7 M.J. 997 (A.C.M.R. 1979). The accused came upon another person who was unconscious. Beside the person was a hypodermic needle and syringe used by him to inject heroin. The accused destroyed the needle and syringe to hinder or prevent the person’s apprehension for use and possession of narcotics. Because this person was probably dead at the time the items were destroyed, the accused cannot be found guilty of accessory after the fact in violation of Article 78. Because the accused believed the person was alive at the time he destroyed the needle and syringe, however, he may be found guilty of attempted accessory after the fact.
    7. United States v. Longtin, 7 M.J. 784 (A.C.M.R. 1979). The accused sold a substance, which he believed to be opium, as opium. The laboratory test was inconclusive, and the Government could not prove it was opium. The court affirmed the conviction for attempted sale of opium. Had the facts and circumstances been as he believed them to be, he could have been convicted of sale of opium.
    8. United States v. Powell, 24 M.J. 603 (A.F.C.M.R. 1987) (attempted larceny even though bank denied loan application).
  2. Voluntary Abandonment.
    1. test1 021 (Side 21)A person who, with the specific intent to commit a crime, has performed an act that is beyond mere preparation and a substantial step toward commission of the offense may nevertheless avoid liability for the attempt by voluntarily abandoning the criminal effort. United States v. Byrd, 24 M.J. 286 (C.M.A. 1987) (recognizing voluntary abandonment as an affirmative defense in military justice) Joint Service Comm. on Military Justice.
    2. It is a defense to a completed attempt that the person voluntarily and completely abandoned the intended crime, solely because of the person’s own sense that it was wrong, prior to the completion of the crime. MCM, pt. IV, 4c(4) (added to the MCM in 1995).
    3. When the actions of the accused have progressed into their last stages and the victim has already suffered substantial harm, voluntary abandonment is not a defense to attempt. United States v. Smauley, 42 M.J. 449 (C.A.A.F. 1995) (upholding guilty plea to attempted carnal knowledge).
    4. The defense of voluntary abandonment is “unavailable if the criminal venture is frustrated by any circumstance that was not present or apparent when the actor began his criminal course of conduct that makes the accomplishment of the criminal purpose more difficult.” United States v. Haney, 39 M.J. 917 (N.M.C.M.R. 1994) (citing United States v. Rios, 33 M.J. 436 (C.M.A 1991)).
    5. Applications.
      1. United States v. Schoof, 37 M.J. 96 (C.M.A. 1993) (fact that accused, later the same day, solicited someone to assist him in continuing to pursue the same crime of delivering classified microfiche to the Soviet Embassy undermined his claim that he had completely renounced his criminal purpose).
      2. United States v. Rios, 33 M.J. 436 (C.M.A 1991) (accused did not voluntarily abandon attempted robbery where he merely postponed the criminal conduct to a more advantageous time and transferred the criminal effort to a different but similar victim); see also United States v. Haney, 39 M.J. 917 (N.M.C.M.R. 1994) (defense of voluntary abandonment not available to an accused where he and another sailor tried to rob a vending machine by drilling a hole in the glass and the glass shattered, “prompt[ing] their conclusion that continuing in the endeavor would be a ‘bad idea’”).
      3. United States v. Collier, 36 M.J. 501 (A.F.C.M.R. 1992) (holding that when an attempted murder has proceeded so far that injury results, abandonment is not available as a defense).
      4. United States v. Wilmouth 34 M.J. 739 (N.M.C.M.R. 1991) (accused’s failure to deliver classified information because of inability to locate agent could not be attributed to a change of heart).
      5. United States v. Miller, 30 M.J. 999 (N.M.C.M.R. 1990) (abandoning a course of action is not voluntary when it is motivated by circumstances that increase the probability of detection and apprehension).
      6. United States v. Walthers, 30 M.J. 829 (N.M.C.M.R. 1990) (where the record indicated that the accused abandoned attempt to steal a car stereo, after breaking into the car, because of his own sense that it was wrong, the guilty plea to attempted larceny was improvident).fj