ARTICLE 81 CONSPIRACY

Article 81 of the UCMJ deals with conspiracy charges. The accused is punished as seen fit through a court martial process if the charges against him are proved conclusively.

The elements of conspiracy outlined under Article 81 are:

• That the accused agreed with one or more persons to commit a conspiracy.
• And, that while the accused continued to be a party to this plan, an overt act to fulfill the objective of the conspiracy was carried out a) by him and the other conspirators or b) by other conspirators.

EXPLANATION OF ARTICLE 81 CONSPIRACY

Under Article 81, two or more people should be involved in the incident. The accused must be subject to the UCMJ, but the other conspirators need not. During trial, it is not necessary to establish the identity of the other conspirators or prove their involvement in the offense. To be charged under Article 81, it is not necessary that the accused be physically capable of actually carrying out the offense himself. For example, a person who is immobile may be charged as co-conspirator in a fraud if he has knowingly offered access to his computer to facilitate the offense.

When a person joins a group of people who are already planning a conspiracy, this does not mean that a new conspiracy is being hatched. A key point to note with Article 81 is that this new conspirator can be punished under Article 81 only if an overt act is carried out which helps achieve the objective of the conspiracy. This overt act need not be criminal in nature, but it should provide clear indication that the conspiracy is being carried out. For example, collection of data about a bank's security measures may not be a criminal act in itself, but it is an overt act that enables the robbing of the bank.

It is also important to note that the conspiracy to carry out an offense is tried as a separate offense from the actual objective of the conspiracy. For example, a murder has been committed by two or more persons who have conspired to do the act. The murder is tried as a separate offense and the conspiracy to murder is tried as a distinct offense where all the co-conspirators face trial even if only one of them actually committed the act.

POINTS TO NOTE ABOUT ARTICLE 81

• It is not necessary to prove that the objective of the conspiracy was actually fulfilled.
• To prove that the accused was a co-conspirator, the prosecution does not need to show the existence of an actual physical agreement between him and the other parties involved. However, mere presence of the accused at the scene of crime does not constitute agreement or involvement in conspiracy.
• The objective of the conspiracy should involve the carrying out of offense(s) under the UCMJ. For some offenses (e.g.: bigamy) it is necessary that more than two conspirators are involved
• Each and every conspirator is liable for any offense committed by all or one of them to achieve the objective of the conspiracy as long as he remains party to the conspiracy when the offense is carried out.
• If the accused can prove that he withdrew from the conspiracy before an overt act to further its fulfillment was committed, he is deemed 'not guilty' of Article 81 charges with respect to such acts committed after his withdrawal. To use this defense, the accused has to conclusively prove that he had severed connections with the conspirators before the offenses were committed.
• The accused cannot defend himself by pointing out that the plan adopted by the conspirators was incapable of successful completion.

WHAT IS THE MAXIMUM PUNISHMENT GRANTED UNDER ARTICLE 81 CONSPIRACY?

With exception of death penalty, the accused under Article 81 can be given maximum punishment authorized for the offense that is the object of the conspiracy. Typically, servicemen may be punished with fines, rank reductions, and punitive discharge if they are proven guilty of Article 81 violation.

EXAMPLE OF ARTICLE 81 CONSPIRACY INCIDENCE

In the trial of United States v. Walker, 39 M.J. 731 (N-M.C.M.R. 1994), the accused acted as lookout while associates were selling marijuana. The accused was deemed as co-conspirator as he was aware of his associates' criminal act and yet he remained involved in it and facilitated the completion of the sale through his act.

For more information about this punitive article, refer to the Manual for Courts Martial.