CORE CRIMINAL LAW SUBJECTS: Crimes: Article 80 - Attempts

2017 (October Term)

United States v. Simpson, 77 M.J. 279 (an attempt, like a conspiracy, is an inchoate offense). 

(in this case, the accused’s admissions during the providence inquiry, together with the stipulation of fact, established all the elements of the lesser included offense of attempted larceny where he admitted to performing overt acts, namely obtaining and withholding property that he believed belonged to a zero-balance account holder and these acts were done with the specific intent to commit a larceny by permanently depriving the account holder of the money at issue, and constituted more than mere preparation; the accused did, in fact, commit and plead guilty to larceny, but he was merely mistaken about who he was stealing from). 

2016 (October Term)

United States v. Feliciano, 76 M.J. 237 (voluntary abandonment is a defense to the crime of attempt). 

(it is a defense to an attempt offense 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; the voluntary abandonment defense is not allowed if abandonment results, in whole or in part, from other reasons, for example, the person feared detection or apprehension, decided to await a better opportunity for success, was unable to complete the crime, or encountered unanticipated difficulties or unexpected resistance). 

2013 (September Term)

United States v. Payne, 73 M.J. 19 (there are four elements of attempt: (1) that the accused did a certain overt act; (2) that the act was done with the specific intent to commit a certain offense under the code; (3) that the act amounted to more than mere preparation; and (4) that the act apparently tended to effect the commission of the intended offense). 

(specification alleging that the accused knowingly attempted to persuade, induce, entice, or coerce someone he believed was a female 14 years of age, who was, in fact, an undercover police detective, to create child pornography by requesting that she send nude photos of herself to him, which conduct was prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, alleged all of the elements of attempt and it provided the accused with notice that he was charged with an attempt to commit an Article 134, UCMJ, offense). 

(the military judge’s instruction on the offense of attempted persuasion of a minor to create child pornography, in violation of the general article, Article 134, UCMJ, adequately covered the first two elements of attempt, but failed to cover the third element which requires that the overt act taken amount to more than mere preparation – that is, that the accused take a substantial step toward commission of the crime; although the military judge did instruct the members that they needed to find that the accused’s statements constituted a serious request that the offense be committed, this instruction was not the equivalent of an instruction that an accused must have taken a substantial step toward the commission of the substantive offense; the serious request instruction focused the members upon the accused’s mental state at the time of the act in question, not on the extent to which the accused actually acted in furtherance of his attempted crime). 

(where a military judge’s instructions did not include the third element of attempt, the error is plain and obvious). 

(a military judge’s failure to instruct on the fourth element of attempt constitutes plain and obvious error).

2012 (September Term)

United States v. Schell, 72 M.J. 339 (unlike some simple military offenses, attempt is a more complex, inchoate offense that includes two specific elements designed to distinguish it from mere preparation: (1) the intent to commit the substantive offense, and (2) taking a substantial step toward committing the substantive offense). 

2011 (September Term)

United States v. Norwood, 71 M.J. 204 (in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense; in this regard, Article 134 predicate offenses should not be treated differently in pleadings under Article 80 or 81 from the enumerated offenses in Articles 83 through 132).

(a specification expressly alleged the elements of attempted adultery by alleging that appellant, a married man, attempted to commit adultery by having intercourse with the victim, who was not his wife, and he did so by trying to place his penis inside her vagina and have sexual intercourse with her). 

United States v. King, 71 M.J. 50 (to constitute an attempt, there must be a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose; preparation consists of devising or arranging the means or measures necessary for the commission of the offense; the overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense).

(during a Skype Internet conversation, appellant’s request to his 14-year-old stepdaughter to expose her breasts so that he could observe them utilizing the web camera constituted an attempt to commit an indecent act; appellant’s request was an overt act that constituted direct movement toward the commission of an indecent act; but for his stepdaughter’s refusal to lift her shirt, appellant would have viewed his stepdaughter’s breasts).   

United States v. Winckelmann, 70 M.J. 403 (there is an elusive line separating mere preparation from a substantial step in an attempt prosecution; for an attempt conviction, a substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances).

2008 (September Term)

United States v. Miller, 67 M.J. 87 (an attempt requires an act tending to effect the commission of the intended offense).

2008 (Transition)

United States v. Mitchell, 66 M.J. 176 (appellant’s admissions during the providence inquiry that he believed the substance he sold was marijuana, but was later told that it was not marijuana, established all the elements of attempted distribution of marijuana). 



United States v. Roeseler, 55 MJ 286 (attempted conspiracy to commit a crime under the Uniform Code of Military Justice is a military offense under Article 80, UCMJ).

(the offense of attempted conspiracy to murder fictitious persons did not require agreement or a shared intent among the expected conspirators with respect to the object of the alleged conspiracy; it was appellant’s belief or understanding that was critical to establish his guilt of this attempt offense).

(the military judge’s explanations of a charged conspiracy and a charged attempted conspiracy, taken together, were sufficient to inform appellant that conspiracy, unlike attempted conspiracy, required that the alleged conspirators actually share the same criminal intent or mental state).

(the defense of impossibility of the crime attempted or conspired is not a defense to a charge of attempt or conspiracy under military law; therefore, because the impossibility of the offenses is not a defense to either attempt or conspiracy, it is not a defense to the charge of attempted conspiracy).

(with respect to the offense of attempt under Article 80, an accused should be treated in accordance with the facts as he or she supposed them to be; "A person who purposely engages in conduct which would constitute an offense in the attendant circumstances were as that person believed them to be is guilty of an attempt" (para. 4c(3), Part IV, MCM, 1984)).


United States v. Smith, 50 MJ 380 (where accused admits in providence inquiry that acts went beyond mere preparation and points to a particular action that satisfies himself on this point, it is neither legally nor logically well-founded to say that actions that may be ambiguous on this point fall short of the line “as a matter of law” so as to be substantially inconsistent with guilty plea).

(accused’s admissions during guilty plea inquiry, in their entirety, show substantial step toward commission of crime of larceny and are sufficient to constitute an attempt to commit larceny where:  (1) accused previously devised and executed a particular scheme to falsely obtain credit card from same bank and used it to make purchases; (2) accused provided co-actor unauthorized military personnel information with which to acquire second credit card from same bank; and (3) accused’s actions showed unequivocal criminal intent to commit larceny).

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