§ Article 81 : Conspiracy

Article 81 of the UCMJ (10 U.S.C. § 881) punishes agreeing with another person to commit a UCMJ offense, once at least one of the conspirators takes an overt act toward carrying out that agreement. A separate, more severe provision applies to conspiracies to commit offenses under the law of war.

Who It Applies To

Conspiracy (Article 81(a)): any person subject to the UCMJ who conspires with any other person to commit an offense under the UCMJ, if one or more of the conspirators does an act to effect the object of the conspiracy.

Conspiracy to commit an offense under the law of war (Article 81(b)): any person subject to the UCMJ who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy.

What It Covers

Conspiracy

1. The accused entered into an agreement with one or more persons to commit an offense under the UCMJ.
2. While the agreement continued to exist, and while the accused remained a party to it, the accused or at least one co-conspirator performed an overt act for the purpose of bringing about the object of the conspiracy.

Conspiracy to commit an offense under the law of war, resulting in death

1. The accused entered into an agreement with one or more persons to commit an offense under the law of war.
2. While the agreement continued to exist, and while the accused remained a party to it, the accused knowingly performed an overt act for the purpose of bringing about the object of the conspiracy.
3. Death resulted to one or more victims.

Related rules

• At least two persons are required. The accused must be subject to the UCMJ, but other co-conspirators need not be, and their identities need not be known.
• The agreement need not take any particular form; a common understanding can be shown by the parties’ conduct.
• The overt act must be independent of the agreement, must occur at or after the time of the agreement, and must be done to carry out its object. It need not be criminal in itself, and the object offense need not be committed.
• There can be no conspiracy where the agreement exists only between the persons necessary to commit an offense that itself requires two or more people acting together — the Manual’s examples are dueling, bigamy, extramarital sexual conduct, and bribery.
• Each conspirator is liable for offenses committed by any co-conspirator in furtherance of the conspiracy while it continues and while the person remains a party to it.
• A party who withdraws before any conspirator commits an overt act is not guilty of conspiracy. A withdrawal after an overt act does not undo the conspiracy, but ends liability for offenses committed afterward. An effective withdrawal requires affirmative conduct wholly inconsistent with the agreement.
• It is not a defense that the chosen means could not actually succeed, if they were apparently adapted to the object.

Maximum Punishment

Maximum authorized punishment. For conspiracy to commit an offense under the UCMJ, the maximum punishment authorized for the offense that is the object of the conspiracy, except that death may not be imposed. For conspiracy to commit an offense under the law of war, where the accused knowingly did an overt act: if death results to one or more victims, death or such other punishment as a court-martial or military commission may direct; if death does not result, any punishment other than death that a court-martial or military commission may direct.

Sentencing parameters. Article 81 is classified as “dependent on underlying offense.”

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Conspiracy differs from an attempt (Article 80) in requiring an agreement between two or more people, rather than unilateral conduct — and unlike an attempt, the overt act required for conspiracy can be far short of what would constitute an attempt to commit the underlying offense itself. It differs from solicitation (Article 82), which punishes asking another to commit an offense whether or not they agree.

What the Provision Does

Article 81 treats an agreement to commit an offense, together with an overt act to carry it out, as an offense in its own right, whether or not the planned offense is completed.

History

The statutory language traces to the original 1950 Uniform Code of Military Justice and was re-enacted in its current form on August 10, 1956. Subsection (b), covering conspiracy to commit an offense under the law of war, was added in 2006 by Pub. L. 109-366.

Sources

• 10 U.S.C. § 881 (Article 81, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 5
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C