Preventing Criminal Activity

The purpose behind the law of attempts is to provide a basis for law-enforcement to intervene in a criminal enterprise before an individual can complete the offense. Criminal attempts are of two varieties – completed attempts and incomplete attempts. In a completed attempt, the accused does every act planned, but is unsuccessful in the outcome. An incomplete attempt is usually thwarted by some intervening cause – usually either law enforcement or incompetence.


  • That the accused did a certain overt act
  • That the act was done with the specific intent to commit a certain offense under the code
  • That the act amounted to more than mere preparation
  • That the act apparently tended to effect the commission of the intended offense

Overt Act Requirement

An attempt requires a specific intent to commit an offense accompanied by an overt act “which directly tends to accomplish the unlawful purpose.”[2] Most issues at trial center on whether the overt act amounted to more than mere preparation. The line between preparation and a direct movement towards the offense is typically a question of fact, not law.[3] In Smith, the Court referred to the line between preparation and direct movement towards the offense as the “twilight zone.”[4] That is certainly an apt description.

The ALI Model Penal Code identifies certain acts that can be strongly corroborative of an actor’s criminal purpose. The list is not exhaustive, but may be of help to the military practitioner. The list includes acts such as: lying in wait for a victim, enticing a victim to go to a certain place, reconnoitering the contemplated location of a crime, unlawful entry of a structure where the crime will be committed, possession of materials to be used in the commission of the offense, and soliciting innocent agents to engage in conduct constituting an element of the crime.

Specific Intent Requirement

Generally, criminal attempts have two forms of intent. Firstly, the accused must intentionally commit the acts that form the basis for the overt act. Secondly, the accused must commit the acts with the specific intent of committing the substantive offense. Usually, the facts on both issues merge. Defense counsel, however, should be cautious to carefully investigate the facts underlying the alleged overt act.

The facts must show that the accused engaged in conduct that is strongly corroborative of his or her criminal intent.[5] It is not only the acts that determine the intent of the person committing them, but also the circumstances in which the acts were done can be indicative of a person’s intent.[6]

The Requirement of More than Mere Preparation

The third element of an attempt requires that the overt act be more than mere preparation.[7] The military has adopted the substantial step test. Whether the act is only preparatory or is a substantial step towards the commission of the crime is determined on a case-by-case basis.[8]

The overt act need not be the ultimate step in completing the crime. An accused is still liable for an attempt even if extraneous causes intervene to prevent the completion of the intended offense.[9]

Sufficiency of the Pleadings

In attempt cases, the government does not have to allege the overt act in the specification.[10] In fact, the overt act need not even be illegal.[11] The government should, however, allege that the attempt was wrongful.[12]

In attempted robbery cases, all of the essential elements should be alleged. Any specification failing to allege that the attempted taking was from the person or in the presence of the victim is fatally defective.[13] Likewise, in a larceny case where there are graduated punishments depending on the value of the property, the value, type of property (particularly if military property), or other factors should be alleged.

Common Defenses

Common defenses include lack of specific intent and voluntary abandonment. Factual impossibility is not a defense.

Lack of Specific Intent

In every attempted offense case, defense counsel should immediately examine the client’s specific intent. Benchbook instruction 5-17 “Evidence Negating Mens Rea” is helpful, particularly in cases where there is no lack of mental responsibility defense.

Defense counsel will want to pay careful attention to the following considerations which could negate the specific intent element:

  • Mental diseases (e.g. mood disorders, psychotic disorders, etc.)
  • Mental defects (e.g. traumatic brain injury)
  • Mental impairments (e.g. alcohol or drug abuse)
  • Mental conditions (e.g. traumatic events – heat of sudden passion)
  • Mental deficiency (e.g. low intelligence)
  • Character or behavior disorder (e.g. Asperger’s Syndrome, personality disorders)
  • Any evidence of consent, where applicable

Voluntary Abandonment

After attacking the issue of specific intent, the next most common defense is voluntary abandonment. An accused can avoid liability for an attempt by voluntarily abandoning any criminal efforts.[14] In 1995, the Manual for Courts-Martial was amended to include this defense. The defense, however, requires that prior to the completion of the offense the person voluntarily and completely abandon the intended crime because of his or her own sense that is wrong.[15] Abandoning a course of action is not voluntary when it is motivated by circumstances that increase the probability of detection and apprehension.[16] When the actions of the accused have progressed into their last stages and the victim has already suffered harm, voluntarily abandonment is not a defense.[17]

Factual Impossibility not a Defense

Factual impossibility is not a defense to attempt. If the accused’s act would constitute a crime if the facts and circumstances were as the accused believed them to be, then he or she may be found guilty of an attempt to commit the intended crime, even though it was impossible to commit the intended crime under the actual circumstances.[18] The classic is example involves person A, with an intent to steal, reaching into person B’s pocket for their billfold, only to discover that the pocket is empty. Person A is still liable for an attempt to commit larceny.

Practice Pointers

Most attempts should be charged under Article 80, UCMJ. Some attempts, however, should be charged under the article defining the primary offense. For instance, soliciting another to commit an offense does not ordinarily constitute an attempt.[19] Some more examples are below[20]:

  • Article 85 (desertion)
  • Article 94 (mutiny)
  • Article 100 (subordinate compelling surrender)
  • Article 104 (aiding the enemy)
  • Article 106a (espionage)
  • Article128 (assault)

The intellectual challenge occurs when the counsel is presented with double inchoate offenses like attempted conspiracy. Attempted conspiracy is, in fact, an offense under the UCMJ.[21] The basic idea is that Article 80 prohibits attempts to commit any offense under the UCMJ – including conspiracy. Attempted conspiracy is most common where the facts involve undercover government agents.

Practice Pointers -- Lesser Included Offenses

In most identified crimes under the UCMJ, a lesser included offense (LIO) is an attempt. In defending general intent crimes such as rape, the practitioner must be vigilant to simultaneously counter the LIO of attempt by demonstrating a lack of specific intent.

Practice Pointers -- Sexual Assault Cases

Attempted rape requires specific intent to have sexual intercourse by force and without consent, even though rape is general intent crime.[22] For defense counsel, that means that you will typically ask for the benchbook instruction on “Ignorance or Mistake – Where Specific Intent or Actual Knowledge is in Issue.” The Military Judge will instruct the panel that “The (ignorance)(mistake), no matter how unreasonable it might have been, is a defense.

In sexual assault cases, defense counsel will certainly want to explore any facts that suggest that the client believed the victim was consenting to sexual activity

Practice Pointers -- Murder Offenses

The law here is clear that the overt act must be done with the specific intent to commit an offense under the UCMJ. For example, attempted murder requires a specific intent to kill, though murder may require a lesser intent. For that reason, there can be no attempt to commit involuntary manslaughter by culpable negligence.[23]

Whether the concept of transferred intent can be applied to attempted murder is a difficult question.[24] Transferred intent describes the results of unanticipated consequences to an unintended victim. Concurrent intent describes expected results to an intended victim, with additional expected results to secondary victims. The distinctions can be fuzzy at best. Military appellate courts have generally demonstrated a willingness to accept pleas to any theory of attempts that result in the accused taking responsibility for the natural and probable consequences of his or her actions. The courts, however, have not “delineate[d]” the “outer limits of concurrent intent or transferred intent…”[25] Defense counsel might have better luck arguing it before a panel.

One rule is certain, any theory of transferred intent should not be used to prove the attempted murder of an unintended victim while engaging in an act inherently dangerous (Article 118 (3)).[26]

Practice Pointers -- Orders Violations

A sometimes overlooked provision of Article 80, is the provision that allows for attempted violations of a lawful general regulation under Article 92(1). The accused must have had the specific intent to commit the alleged act. It is immaterial whether the accused knew that the act violated any particular provision of any particular regulation.[27]

Practice Pointers -- Drug Cases

In drug cases, if your client believes that the substance used or possessed was an illegal drug, then the accused can be convicted of attempting to commit the drug offense.[28] On the other hand, if the accused did not believe the substance was illegal, then there may not be an attempt. For instance, an accused that intentionally tries to sell brown sugar as heroin will not have committed an attempted drug offense. On the same token, an accused that knows that he or she was deceived by a seller, but smokes a substance anyways hoping to achieve a high, is not guilty of an attempted use.[29]

Of course, clients who sell fake drugs could be charged and convicted of larceny by false pretenses under Article 121. [30]

Practice Pointers -- Guilty Pleas

The Military Judge must adequately advise the accused of the elements of attempt in addition to the elements of the underlying offense.[31] If your client pleads guilty to an attempt, it is unlikely that the appellate courts will find actions within the “twilight zone” between mere preparation and attempt to be substantially inconsistent with the plea. [32]

The scripts for each of the services involves questions regarding intervening circumstances and voluntary abandonment. Be sure to prepare your client to answer questions about voluntary abandonment.

Standard Instructions
Standard Instructions (Citations taken from Department of the Army Pamphlet 27-9)
3-4-1. Attempts – Other than Murder and Voluntary Manslaughter[33]
3-4-2. Attempts – Murder, Premeditated and Unpremeditated[34]
3-4-3. Attempts – Voluntary Manslaughter[35]

Maximum Punishments

The maximum punishment for an attempt under Article 80 is the same maximum punishment authorized for the commission of the offense attempted. In no case, however, are the death penalty or minimum mandatory punishment provisions applicable. In no case other than attempted murder, shall confinement exceeding 20 years be adjudged.


  • [1] MCM, Pt. IV, ¶ 4a.
  • [2] MCM, pt. IV, ¶ 4c(2); United States v. Jackson, 5 M.J. 765 (A.C.M.R. 1978).
  • [3] United States v. Choat, 21 C.M.R. 313 (C.M.A. 1956) (attempted unlawful entry).
  • [4] United States v. Smith, 50 M.J. 380 (1999).
  • [5] United States v. Byrd, 24 M.J. 286 (C.M.A. 1987).
  • [6] United States v. Jones, 32 M.J. 430, 432 (C.M.A. 1991).
  • [7] United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994)
    • (the accused retrieved his rifle, locked and loaded a round in the chamber, and started toward the victim’s tent, even though he was stopped before he reached a point where he could have actually inflicted harm),
    • United States v. Owen, 47 M.J. 501 (A.C.C.A. 1997) (giving middle-man a map, automobile license number, and guidance on the method to be used by a hit man, where accused believed hit man had already arrived in town for the job, was sufficient overt act for attempted murder.
  • [8] United States v. Jones, 32 M.J. 430 (C.M.A. 1991)
    • (soliciting another to destroy car, making plans to destroy it, and finally delivering the car and its keys to that person on the agreed day of the auto’s destruction is a substantial step toward larceny from insurance company).
    • United States v. Williamson, 42 M.J. 613 (N.M.C.C.A.1995) (putting knife in his pocket and going after an intended victim, without some indication of how close he came to completing the crime or why he failed to complete it, were not factually sufficient to constitute a substantial step toward the commission of the intended crime.
    • United States v. Church, 29 M.J. 679 (A.F.C.M.R. 1989), aff’d, 32 M.J. 70 (C.M.A. 1991) (planning wife’s murder, hiring undercover agent to kill wife, making payments for killing, and telling agent how to shoot wife constituted substantial step toward murder.
  • [9] United States v. Johnson, 22 C.M.R. 278 (C.M.A. 1957); United States v. Gugliotta, 23 M.J. 905 (N.M.C.M.R. 1987).
  • [10] United States v. Mobley, 31 M.J. 273 (C.M.A. 1990); United States v. Marchall, 40 C.M.R. 138 (C.M.A. 1969).
  • [11] United States v. Johnson, 22 C.M.R. 278 (C.M.A. 1957).
  • [12] United States v. Brice, 38 C.M.R. 134 (C.M.A. 1967).
  • [13] United States v. Rios, 15 C.M.R. 203 (C.M.A. 1954); United States v. Hunt, 7 M.J. 985 (A.C.M.R. 1979); United States v. Ferguson, 2 M.J. 1225 (N.C.M.R. 1976); United States v. Wright, 35 C.M.R. 546 (A.B.R. 1964).
  • [14] United States v. Byrd, 24 M.J. 286 (C.M.A. 1987).
  • [15] MCM, pt. IV, ¶4c(4), 10 USCS § 880 (2008).
  • [16] United States v. Miller, 30 M.J. 999 (N-M.C.M.R. 1990); United States v. Haney, 39 M.J. 917 (N.M.C.M.R. 1994) (citing United States v. Rios, 33 M.J. 436 (C.M.A 1991)).
  • [17] United States v. Smauley, 42 M.J. 449 (1995).
  • [18] MCM, pt. IV, ¶ 4c(3)
    • United States v. Walthers, 30 M.J. 829 (N.M.C.M.R. 1990) (where the record indicated that the accused abandoned attempt to steal a car stereo, after breaking into the car, because of his own sense that it was wrong, the guilty plea to attempted larceny was improvident).
    • United States v. Riddle, 44 M.J. 282 (C.A.A.F. 1996). The accused could be convicted of attempted conspiracy to steal military pay entitlements to which he was entitled by law or regulation, where he did not believe he was married at the time, even if he was married at the time.
    • United States v. Church, 29 M.J. 679 (A.F.C.M.R. 1989) aff’d 32 M.J. 70 (C.M.A. 1991). Evidence supported the accused’s conviction for attempted premeditated murder of his wife, although the person he hired to kill his wife was an undercover agent.
    • United States v. Wilson, 7 M.J. 997 (A.C.M.R. 1979). The accused came upon another person who was unconscious. Beside the person was a hypodermic needle and syringe used by him to inject heroin. The accused destroyed the needle and syringe to hinder or prevent the person’s apprehension for use and possession of narcotics. Because the accused believed the person was alive at the time he destroyed the needle and syringe, however, he may be found guilty of attempted accessory after the fact.
    • United States v. Longtin, 7 M.J. 784 (A.C.M.R. 1979). The accused sold a substance, which he believed to be opium, as opium. The laboratory test was inconclusive, and the Government could not prove it was opium. The court affirmed the conviction for attempted sale of opium. Had the facts and circumstances been as he believed them to be, he could have been convicted of sale of opium.
    • United States v. Powell, 24 M.J. 603 (A.F.C.M.R. 1987) Attempted larceny even though bank denied loan application.
  • [19] MCM, pt. IV, ¶ 4c(5)
  • [20] MCM, pt. IV, ¶ 4c(6)
  • [21] United States v. Riddle, 44 M.J. 282 (C.A.A.F. 1996).
  • [22] United States v. Sampson, 7 M.J. 513 (A.C.M.R. 1979); cf. United States v. Adams, 13 M.J. 818 (A.C.M.R. 1982) (assault with intent to commit rape).
  • [23] United States v. Roa, 12 M.J. 210 (C.M.A. 1982).
  • [24] United States v. Willis, 46 M.J. 258 (C.A.A.F. 1997).
  • [25] United States v. Willis, 46 M.J. 258 (C.A.A.F. 1997).
  • [26] United States v. Roa, 12 M.J. 210 (C.M.A. 1982).
  • [27] United States v. Foster, 14 M.J. 246 (C.M.A. 1982).
  • [28] United States v. Dominguez, 22 C.M.R. 275 (C.M.A. 1957).
  • [29] United States v. Giles, 42 C.M.R. 960 (A.F.C.M.R. 1970).
  • [30] United States v. Williams, 3 M.J. 555 (A.C.M.R. 1977).
  • [31] United States v. Redlinski, 58 M.J. 117 (2003).
  • [32] United States v. Smith, 50 M.J. 380 (1999)
    • (giving the co-conspirator unauthorized military personnel information to make a false credit card information, directing that person to make an application call to the bank, and later ensuring the call was made were substantial steps toward the commission larceny of money from the bank).
  • [33] Military Judges Benchbook, ¶ 3-4-1 – Attempts – Other than Murder and Voluntary Manslaughter.
  • [34] Military Judges Benchbook, ¶ 3-4-2 – Attempts – Murder, Premeditated and Unpremeditated.
  • [35] Military Judges Benchbook, ¶ 3-4-3 – Attempts – Voluntary Manslaughter.

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