UCMJ Article 81: Conspiracy
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Conspiracy under Article 81 is an agreement to commit an offense plus one overt act by any member of the agreement, and it is punished separately from the crime the conspirators planned. The maximum is the maximum for the object offense. Death is excluded with one exception that the statute writes out: a conspiracy to commit a law-of-war offense in which a conspirator knowingly acts and a victim dies.
Two offenses in one article
Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.
Source: 10 U.S.C. § 881(a).
Subsection (b) covers a different agreement: one to commit an offense under the law of war. Its overt act must be done knowingly by the accused, and the punishment depends on the outcome. If death results to one or more victims, the accused may be punished by death or such other punishment as a court-martial or military commission may direct; if no victim dies, by any punishment other than death.
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 5.b, sets out the elements for each:
| Article 81(a): offense under the UCMJ | Article 81(b): offense under the law of war | |
|---|---|---|
| Agreement | With one or more persons to commit an offense under the UCMJ | With one or more persons to commit an offense under the law of war |
| Overt act | By the accused or at least one co-conspirator, while the agreement existed and the accused was still a party | By the accused, knowingly, while the agreement existed and the accused was still a party |
| Result | Not an element | Death of one or more victims (for the death-eligible form) |
The agreement
No particular form or words are required. It is enough that “the minds of the parties arrive at a common understanding to accomplish the object of the conspiracy,” and that understanding may be shown by the parties’ conduct (¶ 5.c(2)). The agreement need not spell out the means or each person’s role.
The Manual adds several rules that turn on who the parties are (¶ 5.c(1)):
- At least two persons are required, but only the accused must be subject to the UCMJ; a co-conspirator may be a civilian.
- The accused need not know who all the co-conspirators are.
- A person can conspire to commit an offense that person could not personally commit.
- Someone who joins an existing conspiracy is guilty only if an overt act occurs at or after the time of joining.
An agreement to commit several offenses is ordinarily a single conspiracy (¶ 5.c(3)). And where an offense by definition requires two culpable people acting together, there is no conspiracy if the agreement is only between those necessary participants; the Manual’s examples are dueling, bigamy, extramarital sexual conduct, and bribery.
The overt act
The overt act must be independent of the agreement, occur at or after the time of the agreement, be done by at least one conspirator, and be done to carry out the agreement’s object (¶ 5.c(4)(a)). It does not have to be criminal. “Any overt act is enough, no matter how preliminary or preparatory in nature, as long as it is a manifestation that the agreement is being executed” (¶ 5.c(4)(b)). That is a lower bar than an attempt under Article 80, which requires an act beyond mere preparation. An overt act by one conspirator becomes the act of all.
Some federal conspiracy statutes require no overt act at all, such as 18 U.S.C. § 372 (impeding a federal officer), 18 U.S.C. § 241 (conspiracy against civil rights), and certain drug conspiracies under 21 U.S.C. § 846. The Manual directs that those be charged under Article 134 rather than Article 81 (¶ 5.c(9)).
Liability for the others’ crimes, and withdrawal
Each conspirator is liable for all offenses committed pursuant to the conspiracy by any co-conspirator while the conspiracy continues and while that person remains a party to it (¶ 5.c(5)).
Withdrawal has two different effects depending on timing (¶ 5.c(6)):
- Before any overt act: a party who withdraws is not guilty of conspiracy.
- After an overt act: the party remains guilty of conspiracy and of offenses committed pursuant to it up to the withdrawal, but is not liable for offenses the others commit afterward.
To be effective, the withdrawal must be “affirmative conduct which is wholly inconsistent with adherence to the unlawful agreement” showing that the person has severed all connection with the conspiracy. Quietly stopping participation does not meet that standard. Factual impossibility is not a defense: it does not matter that the chosen means could not actually have succeeded (¶ 5.c(7)).
Punishment follows the object offense
Under ¶ 5.d of the Manual:
- Conspiracy to commit an offense under the UCMJ: the maximum punishment authorized for the object offense, except that death may not be imposed.
- Conspiracy to commit a law-of-war offense: death or other punishment a court-martial or military commission may direct if death results to any victim; any punishment other than death if no victim dies.
The conspiracy and the completed object offense are separate offenses, and both may be charged, tried, and punished; the completed offense can itself serve as the overt act (¶ 5.c(8)). When every finding of guilty is for an offense committed after December 27, 2023, sentencing at a general or special court-martial is by the military judge, with a separate procedure for capital cases (10 U.S.C. § 853(b)-(c)).
A conspiracy to commit a covered offense, such as an offense under Article 120, is itself a covered offense under 10 U.S.C. § 801(17)(B), which places it under special trial counsel authority for offenses committed after December 27, 2023.
How conspiracy differs from solicitation
Solicitation under Article 82 is complete when the request or advice is made with the intent that the offense be committed, whether or not the other person agrees. Conspiracy needs the other person’s agreement and an overt act. If the person solicited agrees and someone takes a step to carry out the plan, the same events can support a conspiracy charge.
Sources
- 10 U.S.C. § 881, Article 81, Conspiracy (Cornell LII)
- 10 U.S.C. § 801, Article 1, Definitions, paragraph (17) (Cornell LII)
- 10 U.S.C. § 853, Article 53, Findings and sentencing (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 5
General information about military law, not legal advice for any individual case.