UCMJ Article 80:Attempts

Make the Government Prove What You Intended

The charge must identify the offense you supposedly intended to commit. An angry message does not automatically prove an intent to kill. Being present at a meeting does not, by itself, establish why you went there. A purchase that looks suspicious in an investigator’s summary may have a lawful explanation. We compare the allegation with the full conversation, the sequence of events and the witnesses who can explain what was happening.

The government can prove intent through circumstances; it does not need a confession. Our job is to test the inference it wants the judge or panel to draw. If a genuine mistake of fact or evidence about your ability to form the required intent matters to the charge, we examine that issue under the law governing the particular offense.

Separate Preparation from a Criminal Attempt

Preparation consists of devising or arranging the means or measures necessary for the commission of the attempted offense. A substantial step is conduct that strongly corroborates the accused’s criminal intent and shows a resolve to commit the offense. The government has to establish that you crossed that line.

Consider a service member who keeps a journal describing a plan to sell spice at Kadena Air Base but takes no action to carry it out. The journal may reveal an intention, but the plan alone is not an Article 80 attempt. Now change the facts: the service member obtains what he believes is the drug, arranges a sale and arrives to hand it to the buyer. Those additional acts change the analysis. The defense must address the actual steps alleged, not just the government’s description of someone as a drug dealer.

We build the timeline around the act the prosecution says crossed the line. Was it still arranging the means to commit an offense, or had the person begun carrying it out? What remained to be done? What did the person believe at that moment? The government does not have to wait for the last act before completion, so a defense cannot rest only on the fact that something remained unfinished.

Read the Whole Conversation and Check Who Took the Alleged Step

A screenshot can leave out the messages that explain it. We examine the full exchange, who introduced the subject, whether plans became specific, what changed and what happened afterward. If identity is disputed, we examine who controlled the account or device and whether the government can attribute the relevant messages and actions to you. Receipts, location information, surveillance and witness accounts may support or contradict the prosecution’s timeline.

An online conversation is not automatically protected just because nobody met in person. Depending on the offense and the content, words themselves may constitute criminal conduct or an important step toward it. Equally, an offensive conversation is not automatically proof of every element of the attempted offense charged. The exact words, their context and the applicable offense matter.

Examine the Sting Operation, Not Just the Arrest

Suppose you meet someone online who says she is 14. You discuss meeting at her house for sex. She asks you to bring gummy bears and condoms. You buy them, send a message saying you are on your way for that purpose, ask whether her mother is home, drive to the address and knock on the door. An undercover NCIS agent answers. The fact that the person was an adult agent does not, by itself, defeat an attempt charge.

That does not end the defense. We examine what you actually believed, what you intended and what the messages and conduct establish. If the criminal design originated with the government and you were not predisposed to commit the offense, entrapment may be a defense. Merely giving someone an opportunity to commit a crime is not entrapment. The agent’s role and the entire exchange must be examined, not assumed.

Determine Why You Stopped

Voluntary abandonment can be a defense, but its requirements are narrow. You must have voluntarily and completely abandoned the intended crime before completing it, solely because you decided it was wrong. Stopping because you feared detection, encountered resistance, could not finish or wanted a better opportunity is different. Messages sent before the arrest, actions taken to stop the plan and the timing of those decisions can matter. Abandoning an attempt also does not erase a separate offense you already completed.

Challenge Unlawful Searches and Statements Where the Facts Support It

We also review how investigators obtained the messages, seized or searched devices, and questioned you. If a search exceeded lawful authority or a statement was obtained in violation of your rights, we assess whether a motion to suppress is supported. A rights violation does not automatically dismiss the entire case. The remedy depends on the violation, the challenged evidence and what other admissible proof remains.

Attempted Murder Requires an Intent to Kill

For attempted premeditated murder, the government must additionally prove a premeditated design to kill. The necessary instructions must also address any properly raised issue of self-defense, accident or other legal justification or excuse.

What If Completing the Crime Was Impossible?

Proof that the intended offense actually occurred or was completed is not required. But the government must prove the required intent and conduct beyond a reasonable doubt. Failure does not excuse an otherwise proven attempt, and intent alone does not establish one.

This is where factual impossibility matters. Someone who rigs an arms depot with what he believes are working explosives, intending to destroy it, cannot rely only on the fact that the explosives were duds. If the government proves a substantial step toward the intended crime, the hidden defect does not provide a defense. Factual impossibility is not a separate element of Article 80, and it does not relieve the government of proving the attempt.

Similarly, soliciting someone else to commit a crime does not, by itself, constitute an Article 80 attempt. It may constitute a separate solicitation offense. The defense has to identify what the government is actually charging and whether the evidence meets that offense’s requirements.