ARTICLE 80 ATTEMPTS

Here is a brief overview of Article 80 Attempts. A person subject to Article 80:

(a) must have performed an act with specific intent to commit an offense under this chapter; the act must amount to more than mere preparation and tend toward completion, even though he/she fails to effect its commission.
(b) shall be punished as per the verdict of a court-martial unless otherwise specifically prescribed.
(c) may be convicted of an attempt to commit an offense even if it appears during trial that the offense was actually accomplished.

Mere preparation refers to planning or arranging the means necessary to commit the offense.

ELEMENTS OF ARTICLE 80

The elements of the crime that must be proven under Article 80 of the UCMJ are:

• The accused performed a specific overt act, as alleged, at a particular time and place.
• The act was carried out with specific intent to commit the alleged offense.
• The act represented a substantial step and direct movement toward committing the intended crime.
• The act would have resulted in the actual offense but for circumstances that prevented its completion.

CONDITIONS FOR GUILT UNDER ARTICLE 80

To be found guilty of a violation of Article 80, the court must be convinced beyond a reasonable doubt that the accused took substantial steps reflecting a clear criminal intent. Failure to complete the offense is not a defense, nor is actual commission of the offense required. The intent to commit every element of the crime must be proven beyond a reasonable doubt.

A criminal attempt involves an intent to achieve a criminal result and taking substantial steps toward that result. The mental state required is purposeful intent. An attempt implies the accused actively tried to bring about the prohibited outcome.

DISTINGUISHING MERE PREPARATION FROM ATTEMPT

Mere preparation includes early steps that, even if paired with intent, are not punishable. For example, a defendant who gathers explosives with the aim of blowing up a laboratory, places them inside, and lights the fuse, has moved from preparation to attempt. Determining the exact moment a punishable attempt occurs depends on factors like:

• Commission of the last necessary act
• Proximity to the intended result
• An unequivocal act confirming the criminal intent

Courts may reach widely varying conclusions based on these factors. Understanding this legal gray area is critical for anyone defending against Article 80 UCMJ charges.

FACTUAL IMPOSSIBILITY

Factual impossibility is not a defense under Article 80. If the accused believes the act will succeed, but unknown circumstances prevent completion, guilt may still apply. For instance, pointing and pulling the trigger of a defective firearm, with intent to kill, still constitutes attempted murder.

LESSER INCLUDED OFFENSES

Some offenses may be lesser included within an attempt. For example:

• Assault is a lesser included offense of robbery.
• False imprisonment is a lesser included offense of kidnapping.

Each charge must be evaluated carefully by military defense counsel to determine how these distinctions may apply.

MAXIMUM PUNISHMENT UNDER ARTICLE 80

When found guilty of an Article 80 violation, the accused is subject to the same maximum punishment as the completed offense—except the death penalty, which cannot apply. Other than attempted murder, no attempt charge may result in confinement exceeding 20 years.

CASE LAW: BEYOND MERE PREPARATION

Two significant examples demonstrate how steps taken by the accused determined the outcome:

• In United States v. Sampson, 7 MJ 513 (ACMR 1979), the defendant broke into a female victim's quarters and reached toward her. This act was ruled an attempted rape, as it went beyond mere preparation.
• In U.S. v. St. Fort, 26 MJ 764 (ACMR 1988), the appellant was found naked in a closet and fled when confronted. The court held he had taken sufficient steps to be found guilty of attempted adultery.

Each case demonstrates how substantial steps can vary, requiring precise legal interpretation and a strong military defense strategy.

Such is the complexity of military law that it demands experienced legal representation. Joseph L. Jordan, a seasoned UCMJ lawyer, is well-versed in defending service members accused of attempted offenses under Article 80. Whether you are facing military attempt charges, need clarity on the substantial step requirement under Article 80, or are concerned with lesser included offenses in military trials, expert legal guidance is essential.

If you are being investigated or charged under Article 80, seek trusted representation. Defending against Article 80 UCMJ charges requires experience, precision, and a deep understanding of military justice.