Conspiracy – UCMJ art. 81


Conspiracy – UCMJ art. 81:

Article 81 “Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.”

Public Policy Rationale The concerted activity of a conspiracy is much more dangerous to society than the acts of individuals. The criminal enterprise is more difficult to detect because of its secrecy, is more likely to succeed because of the combination of strengths and resources of its members, and may continue to exist even after the initial object of the conspiracy has been achieved. See United States v. Feola , 420 U.S. 671, 693-94 (1975); United States v. Rabinowich , 238 U.S. 78, 88 (1915).

Elements MCM, pt. IV, 5b.

  1. The accused entered into an agreement with one or more persons to commit an offense under the code; and
  2. While the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.

Pleading Only the elements of the inchoate offense (conspiracy) need to be alleged – the elements of the conspired 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).

Parties to a Conspiracy

“Bilateral Theory” of liability

The Agreement

Overt Act

Wharton’s Rule




Wharton’s Rule