UCMJ Article 81

Elements of UCMJ Article 81 (Conspiracy)

The two elements required to constitute a violation of Article 81 are as follows:

a) The accused entered into an agreement with one or more persons to commit an offense under the code; and

b) 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-accused performed an overt act for the criminal purpose of bringing about the object of the conspiracy.

For an agreement to take form, no particular words or actions are required, only a common understanding to accomplish the object of the conspiracy. Likewise, the agreement need not state how the conspiracy is to be accomplished or what part each conspirator is to play. This may be shown by the conduct of the accused service members. A good example of this can be found in the case of United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002) where an agreement was formed simply by circling back to take a duffel bag after spotting it outside a vehicle while driving through a housing area.

In addition, the overt act must be independent of the agreement, and it must take place during or after the agreement. In United States v. Kauffman, 34 C.M.R. 63 (C.M.A. 1963), the act of receiving the name and address of his contact, which was not separate from the agreement, was not a sufficient overt act for conspiracy to wrongfully communicate with agents of East Germany. Other examples include:

• United States v. Schwab, 27 M.J. 559 (A.C.M.R. 1988), where the accused’s conversations with his alleged co-conspirator, his statement that he put money aside, and the co-conspirator’s notes and sketches did not satisfy the overt act requirement for conspiracy to commit larceny and wrongful sale of firearms.
• United States v. Farkas, 21 M.J. 458 (C.M.A. 1986), cert. denied, 479 U.S. 857 (1986), which claims that an act done prior to the agreement is not a sufficient overt act.

A conspiracy ends when the object of the conspiracy is accomplished, the members withdraw, or the members abandon the conspiracy.³

Withdrawal From the Conspiracy

An individual is not guilty of conspiracy if he or she effectively withdraws before the alleged overt act is committed. An effective withdrawal must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from the conspiracy after the performance of the alleged overt act remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal, but they are not liable for offenses committed by the remaining conspirators after his or her withdrawal.

What are the Penalties for a UCMJ Article 81 Violation?

Members of the armed forces who are found guilty of an Article 81 violation at a court-martial may face serious consequences. In fact, a conspiracy conviction warrants the maximum punishment authorized for the offense that is involved in the conspiracy. This excludes the death penalty, however. Also, aside from cases involving attempted murder, the punishment may not exceed 20 years of confinement upon conviction. As such, a service member may face significant fines, the forfeiture of pay and allowances, a reduction in rank, confinement, and even punitive discharge if they are found to be guilty of conspiracy charges.

For instance, if a service member is found guilty of conspiring to distribute drugs, he or she faces the corresponding punishment of a violation of Article 112a as well as any lesser included offenses. A few examples of this include the case of United States v. Gaeta, 14 M.J. 383 (C.M.A. 1983), where service members were properly instructed on liability for co-conspirator’s drug distribution, and United States v. Figueroa, 28 M.J. 570 (N.M.C.M.R. 1989), where a guilty plea to drug distribution by co-conspirator was provident.

Why Do Military Prosecutors Favor Article 81 Violations?

The legal theory of vicarious liability makes the crime of conspiracy a very powerful tool for the prosecution to use in a case. A co-conspirator may be convicted for substantive offenses committed by another co-conspirator, provided such offenses were committed while the agreement continued to exist and were in furtherance of the agreement.⁴

If it can be shown that a conspiracy existed, then all persons involved in the conspiracy can be held accountable for the actions of the other co-conspirators (within reason). While this may seem a bit unfair, the public policy reason articulated for this feature existing under the law is that the concerted activity of a conspiracy is much more dangerous to society than the acts of individual persons. 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.⁵

Another reason the prosecutors love the crime of conspiracy is due to the fact that the conspiracy to commit an offense is distinct and separate from the offense that is the object of the conspiracy. The accused can be convicted and punished separately for both the conspiracy and the underlying offense. Also, commission of the intended offense may constitute the overt act required for conspiracy.⁶

Defense for Article 81 Conspiracy Violation

When you equip the help of skilled civilian legal counsel for your Article 81 violation case, you obtain the best chance at minimizing or avoiding punishment for the alleged conspiracy charge. Prosecutors must have a preponderance of evidence that shows you were fully aware of the developing conspiracy and that you and your co-conspirators performed a covert act to bring about the object of said conspiracy.

Aden Wilkie of the The Wilkie Law Group has the legal skill and knowledge it takes to clear your name or at the very least propose reasonable doubt that you were one of the parties involved in the conspiracy to commit a military offense. Unlike a military-appointed JAG attorney who wears the same uniform as those seeking to penalize you, he will dedicate himself fully to your individual case and stop at nothing to achieve the most favorable outcome on your behalf. With the freedom of legal maneuver and no threat to his own career, a civilian criminal defense lawyer like the Devil Dog Defender will make sure your best interests and at the forefront of his work.

Military Criminal Defense Attorney for Article 81 Violation

Members of the United States military are expected to meet much higher standards than their civilian counterparts. As such, they stand to lose a lot when they face a conviction for violation of UCMJ Article 81. That’s why, if you’ve been accused, are under investigation, or are pending courts-martial for your conduct, you need someone in your corner who knows the Uniform Code of Justice through and through and whose only concern is fighting as hard as possible for your own rights, freedom, career, and future.

In addition to creating a strong legal defense and handling all court-martial and military criminal justice matters, Aden Wilkie can also provide superior military discharge upgrade counsel and record correction, as well. Located in Jacksonville, NC, The Wilkie Law Group provides Camp Lejeune legal services as well as Fort Bragg legal services, in addition to serving other bases, camps, stations, and posts across the nation.

Please keep in mind that this article is for general information purposes. Once an attorney-client relationship with Aden Wilkie is established, you will be able to learn more about your legal options regarding your unique Article 81 conspiracy case. Call 910-333-9626 today for a consultation or complete our online intake form to learn more.