bestmilitarydefensedefenseattorneys9.50.24PMcopyATTEMPTS. UCMJ ART. 80. Overt Act

ATTEMPTS. UCMJ ART. 80. Overt Act

ATTEMPTS. UCMJ ART. 80. Overt Act

  1. Generally.
    1. The overt act need not be alleged in the specification. United States v. Mobley , 31 M.J. 273 (C.M.A. 1990); United States v. Marshall , 40 C.M.R. 138 (C.M.A. 1969).
    2. The overt act need not be illegal. United States v. Johnson , 22 C.M.R. 278 (C.M.A. 1957) (accused guilty of attempted desertion where all acts occurred within limits of legitimate pass).

    AFCCA Rules

  2. Specific Intent.
    1. The overt act must be done with the specific intent to commit an offense under the UCMJ.
    2. Applications.
      1. Attempted murder requires specific intent to kill, even though murder may require a lesser intent. See United States v. Roa , 12 M.J. 210 (C.M.A. 1982) (explaining that, because an attempt requires a specific intent, there can be no “attempt” to commit involuntary manslaughter “by culpable negligence”); United States v. Allen , 21 M.J. 72 (C.M.A. 1985) (finding circumstantial evidence sufficient to prove intent to kill required for attempted murder).
      2. Attempted rape requires specific intent to have sexual intercourse by force and without consent, even though rape is general intent crime. United States v. Sampson , 7 M.J. 513 (A.C.M.R. 1979); cf. United States v. Adams , 13 M.J. 818 (A.C.M.R. 1982) (assault with intent to commit rape).
      3. In a prosecution for attempted violation of a lawful general regulation, under Article 92(1), the accused must have had the specific intent to commit the proscribed act, and it is immaterial whether the accused knew the act violated any particular provision of any particular regulation. United States v. Foster , 14 M.J. 246 (C.M.A. 1982).
      4. No attempted sale of heroin where accused intentionally sold brown sugar. United States v. Collier , 3 M.J. 932 (A.C.M.R. 1977).
      5. Transferred or concurrent intent doctrine may be applied to attempted murder. United States v. Willis , 43 M.J. 889 (A.F.C.C.A. 1996), aff’d, 46 M.J. 258 (C.A.A.F. 1997).
  3. More Than Mere Preparation.
    1. Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. The required overt act must go beyond preparatory steps and be a direct movement towards the commission of the offense. MCM, pt. IV,  4c(2); United States v. Jackson , 5 M.J. 765 (A.C.M.R. 1978) (holding that approaching and asking other soldiers if they want to buy a “bag” or “reefer” was not an attempt, but affirming it as a solicitation).
    2. For the accused to be guilty of an attempt, the overt acts tending toward commission of the consummated offense must amount to more than mere preparation and constitute at least the beginning of its effectuation. However, “[t]here is no requirement under the law of attempts that the trip to the doorstep of the intended crime be completed in order for the attempt to have been committed.” United States v. Anzalone , 41 M.J. 142 (C.M.A. 1994) (affirming assault by attempt, where accused retrieved his rifle, locked and loaded a round in the chamber, and started toward the victim’s tent, even though he was stopped before he reached a point where he could have actually inflicted harm); United States v. Owen , 47 M.J. 501 (A.C.C.A. 1997) (holding that giving middle-man a map, automobile license number, and guidance on method for “hit man,” where accused believed “hit man” had already arrived in town for the job, was sufficient overt act for attempted murder).
    3. The line of demarcation between preparation and a direct movement towards the offense is not always clear. Primarily the difference is one of fact, not law. United States v. Choat , 21 C.M.R. 313 (C.M.A. 1956) (attempted unlawful entry).
    4. After a guilty plea where the accused admits that her acts went beyond mere preparation and points to a particular action that satisfies herself on this point, appellate courts will not find actions that fall within the “twilight zone” between mere preparation and attempt to be substantially inconsistent with the guilty plea. United States v. Smith , 50 M.J. 380 (C.A.A.F. 1999).
    5. Words alone may be sufficient to constitute an overt act. United States v. Brantner , 28 M.J. 941 (N.M.C.M.R. 1989) (a recruiter’s request to conduct a “hernia examination” was an act deemed more than mere preparation for a charge of attempted indecent assault).
  4. “Substantial Step.”
    1. The overt act must be a “substantial step” toward the commission of the crime. Whether the act is only preparatory or a substantial step toward commission of the crime must be determined on a case-by-case basis. United States v. Jones , 32 M.J. 430 (C.M.A. 1991) (holding that soliciting another to destroy car, making plans to destroy it, and finally delivering the car and its keys to that person on the agreed day of the auto’s destruction constituted substantial step toward larceny from insurance company); United States v. Williamson , 42 M.J. 613 (N.M.C.C.A. 1995) (accused’s acts of putting knife in his pocket and “going after” intended victim, without some indication of how close he came to completing the crime or why he failed to complete it, were not factually sufficient to constitute a substantial step toward the commission of the intended crime); United States v. Church , 29 M.J. 679 (A.F.C.M.R. 1989), aff’d , 32 M.J. 70 (C.M.A. 1991) (planning wife’s murder, hiring undercover agent to kill wife, making payments for killing, and telling agent how to shoot wife constituted substantial step toward murder).
    2. The “Test.” United States v. Byrd , 24 M.J. 286 (C.M.A. 1987).
      1. The overt act must be a substantial step and direct movement toward commission of the crime.
      2. A substantial step is one strongly corroborative of the accused’s criminal intent and is indicative of resolve to commit the offense.
    3. The accused must have engaged in conduct 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) (accepting money from undercover agent and riding to an off-post location to purchase marijuana was not strongly corroborative of the firmness of the accused’s intent to distribute marijuana); United States v. Presto , 24 M.J. 350 (C.M.A. 1987) (after agreeing to try to get marijuana for undercover agent, placing phone calls to drug supplier was not a substantial step toward distribution of marijuana); United States v. LeProwse , 26 M.J. 652 (A.C.M.R. 1988) (offering to pay two boys to remove their trousers was strongly corroborative of the firmness of the accused’s intent to commit indecent liberties); see also United States v. Jones, 32 M.J. 430, 432 (C.M.A. 1991) (“It is not the acts alone which determine the intent of the person committing them. The circumstances in which those acts were done are also indicative of a person’s intent.”).
  5. Tending to Effect the Commission of the Offense.
    1. United States v. McGinty , 38 M.J. 131 (C.M.A. 1993) (the accused’s running his fingers through the victim’s hair and hugging him was an affirmative step toward committing indecent acts).
    2. The overt act need not be the ultimate step in the consummation of the crime. It is sufficient if it is one that in the ordinary and likely course of events, would, if not interrupted by extraneous causes, result in the commission of the offense itself. United States v. Johnson , 22 C.M.R. 278 (C.M.A. 1957) (although within the 50 mile limit of his pass, the accused’s walking to within the prohibited distance from the East German border, after unsuccessful attempts to get taxi drivers to cross the border, was sufficient overt act for attempted desertion); United States v. Gugliotta , 23 M.J. 905 (N.M.C.M.R. 1987) (overt act sufficient to constitute direct movement to commission of robbery where accused and accomplices made plans, procured implements, and went to the site of the crime with the tools for purpose of robbing exchange).