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Solicitation. UCMJ Art. 82 and Art. 134. Discussion

  1. militarydefenselawyers316Instantaneous offense. The offense is complete when a solicitation is made or advicegiven with the specific wrongful intent to influence another or others to commit an offense. It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice. MCM, pt. IV,  6c(1).
  2. Form of solicitation. Solicitation may be by means other than word of mouth orwriting. Any act or conduct that reasonably may be construed as a serious request or advice to commit an offense can be considered solicitation. It is not necessary that the accused act alone; the accused may act through other persons in committing this offense. MCM, pt. IV,  6c(2).
  3. The prosecution must prove the accused had the specific intent that the offense actually be committed. United States v. Taylor , 23 M.J. 314 (C.M.A. 1987); United States v. Benton , 7 M.J. 606 (N.C.M.R. 1979).
  4. An express or implicit invitation to join in a criminal plan is a solicitation. The contextin which an alleged statement was made can be considered to determine its criminal nature as a solicitation. United States v. Williams , 52 M.J. 218 (C.A.A.F. 2000) (where accused and other person had used drugs together and the other person was informed of the accused’s international drug smuggling operation, including the employment of a third party for drug buying trips to Turkey, the accused’s statement, “Are you ready to go; you got your passport?” to which the other person promptly answered, “I’m not going to go,” could reasonably be construed as an invitation to join the criminal enterprise).
  5. The person solicited must know that an offense is contemplated. United States v.Higgins , 40 M.J. 67 (C.M.A. 1994) (guilty plea to solicitation improvident where accused asked soldier to withdraw money from ATM machine but did not tell him that the ATM card did not belong to accused); United States v. Davis , 39 M.J. 1110 (A.F.C.M.R. 1994) (plea to solicitation improvident where accused asked person to cash “girlfriend’s check,” and solicitee believed the act was properly authorized and thus legal).
  6. The person solicited cannot be the victim of the offense. United States v. Sutton , 68M.J. 455 (C.A.A.F. 2010). OVERRULED United States v. Conway , 40 M.J. 859 (A.F.C.M.R. 1994) (accused who requested to see his 15-year-old stepdaughter naked, when child was aware of improper purpose, was guilty of solicitation) and United States v. Harris , 2003 C.C.A. Lexis 269 (N-M.C.C.A. 2003).
  7. The person solicited may be predisposed toward the crime. United States v. Hays , 62M.J. 158 (2005) (holding neither the MCM nor the UCMJ Court Martial Trial Practice Blog precludes a conviction for solicitation because the object is predisposed towards the crime (rejecting the requirement set forth in Dean , 44 M.J. 683 (Army Ct. Crim. App. 1996)).