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ATTEMPTS. UCMJ ART. 80. Pleading

ATTEMPTS. UCMJ ART. 80. Pleading

ATTEMPTS. UCMJ ART. 80. Pleading

  1. test1 009 (Side 9)Only the elements of the inchoate offense (attempt) need to be alleged – the elements of the attempted offense (also called the “predicate” or “target” offense) need not be plead. “However, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense.” United States v. Norwood, M.J. (C.A.A.F. 2012).
  2. Overt act need not be alleged. United States v. Marshall, 40 C.M.R. 138 (C.M.A. 1969).Air Force Appellate Defense Division
  3. Attempted drug offenses.
    1. United States v. Showers, 45 C.M.R. 647 (A.C.M.R. 1972). Specification alleging that the accused “did on or about 31 August 1971 attempt to sell some quantity of a habit forming drug, to wit: Heroin” was fatally defective, because it fails to allege that the attempt was wrongful. Accord United States v. Brice, 38 C.M.R. 134 (C.M.A. 1967); but see United States v. Simpson, 25 M.J. 865 (A.C.M.R. 1988) (omission of the word “wrongful” from one of four drug distribution specifications not a fatal defect where defendant pled guilty), aff’d, 27 M.J. 483 (C.M.A. 1988).
    2. United States v. Guevara, 26 M.J. 779 (A.F.C.M.R. 1988). Conviction for attempted use of a controlled substance, alleged in the generic, affirmed. Accused intended to use some type of controlled substance.
  • Attempted Robbery
    1. All the essential elements of robbery must be alleged in an attempted robbery specification. United States v. Rios, 15 C.M.R. 203 (C.M.A. 1954) (specification failing to allege the attempted taking was from the person or the presence of the victim was fatally defective).
    2. United States v. Hunt, 7 M.J. 985 (A.C.M.R. 1979) (specification failing to allege the attempted taking was from the person or the presence of the victims was fatally defective; conviction of attempted larceny affirmed), aff’d 10 M.J. 222 (C.M.A. 1981).
    3. United States v. Ferguson, 2 M.J. 1225 (N.C.M.R. 1976) (specification alleging, in part, that the accused did “attempt to rob a wallet, the property of PFC Hoge,” was fatally defective).
    4. United States v. Wright, 35 C.M.R. 546 (A.B.R. 1964) (specification alleging that accused “attempted to commit the offense of robbery by entering the Wolfgang Roth Insurance and Loan Agency, wearing a mask and armed with a pistol,” was fatally defective).